Journal for Juridical Science
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The Journal for Juridical Science is an IBSS accredited national professional journal which publishes original research articles in law in Afrikaans and English. Multi- and interdisciplinary contributions which bridge the gap between legal scholarship and other pertinent academic disciplines, are welcomed. All published contributions were submitted for refereeing by peers and successful articles qualify for subsidy by the National Department of Higher Education and Training. The Journal is published two times per year by the Faculty of Law, University of the Free State. For purposes of reference the title of the Journal may be abbreviated to JJS.
Alternative title(s): Tydskrif vir Regswetenskap
ISSN 2415-0517 (Online), ISSN 0258-252X (Print)
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Item Open Access Legal evaluation of affirmative action in South Africa(Faculty of Law, University of the Free State, 2001) Pretorius, J. L.English: With its equality jurisprudence only in its infancy stage, affirmative action will provide a difficult challenge to the Constitutional Court. Employment equity and affirmative action, like other projects of social transformation translated into law, need to be balanced with individual and collective needs of security, continuity and national integration. The specific challenge facing the court will be to integrate its approach to affirmative action with its endorsement of the notion of substantive equality and the normative standards it has developed for the determination of unfair discrimination. It is submitted that the latter do provide at least a rudimentary focus, which is sensitive and open-ended enough to accommodate the complex array of competing interests at stake in affirmative action disputes. In this article, the implications of the court's equality approach for affirmative action are considered, with reference to some pertinent issues, such as the applicable standard for the constitutional review of affirmative action, and the fairness and proportionality of affirmative action measures (including the problem of the over- or underinclusiveness of affirmative action). The present state of South African case law on the subject is considered, with comparative references to approaches adopted in other jurisdictions.Item Open Access Die multilaterale beleggingsooreenkoms (MAI): 'n kruispad vir internasionale beleggingsregulering?: kroniek(Faculty of Law, University of the Free State, 2001) Wandrag, R.; Snyman, E.Abstract not availableItem Open Access Is 'n prokureur geregtig op die koste van geregtelike stappe teen 'n voormalige kliënt?: kronieke(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.Abstract not availableItem Open Access Die Wet op Getuiebeskerming 112 van 1998: enkele aspekte oor die praktiese werking daarvan(Faculty of Law, University of the Free State, 2001) Kruger, H. B.; Oosthuizen, H.English: To combat crime and especially serious crime by gangs, racketeers, syndicates and druglords, witnesses who are willing to testify against these criminals, must be protected efficiently. To address this problem the South African legislature amended the Criminal Procedure Act 51 of 1977 and enacted the Witness Protection Act 112 of 1998 to create a witness protection program. This program aims at protecting witnesses whose lives are endangered because of their willingness to give evidence in criminal court cases and other specified proceedings. Certain aspects concerning the practical functioning of the Witness Protection Act 112 of 1998 are discussed as well as the obstacles encountered and the positive contribution of the Act.Item Open Access Item Open Access Artikel 6 van die Wet op Binnekennistransaksies - 'n groepsgeding of aksie in die openbare belang vir die regulering van binnekennistransaksies?(Faculty of Law, University of the Free State, 2001) Henning, Johan; De Bruin, JacoEnglish: The Constitution introduced the concept of a class action in the South African legal system in 1993. The Constitution however limited the use of class actions to rights enshrined in the Constitution. The constitutional class action was followed by a proposal by the South African Law Commission for general legislation on class actions and actions in public interest. The Panel for Security Regulation commented on the discussion paper advocating the use of similar legislation in the fight against insider trading. The King Commission again raised the concept of a derivative action in the fight against insider trading resulting in section 6 of the Insider Trading Act. This action shares some of the characteristics of the class action and action in public interest and sets the way forward for the use of this type of legislation in the commercial world.Item Open Access Wat is die betekenis van boerdery vir inkomstebelastingdoeleindes?(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.English: The question is frequently asked whether certain activities by a taxpayer may be regarded as farming for income tax purposes. If so, certain farming expenses will be allowed as deductions in terms of the First Schedule to the Act which otherwise would not have been the case. Having indicated how the taxable income of a taxpayer is calculated, the definition of a trade is referred to. The meaning of farming is not defined, but in s 26 reference is made to pastoral, agricultural and other farming operations. There are certain sections in the Act, paragraphs in the First Schedule to the Act and practice notes which refer to certain types of farming activities. Reference is also made to the interpretation of farming by our courts (High and Special Courts) and the findings of the Special Boards. The viewpoints of several authors are also discussed. Additional examples of farming activities are given and the standard bona fide farming questionnaire by the SAIS is examined. The exigency of a feasibility study is emphasised to determine the viability of a proposed farming project. The following two-pronged test is advocated (i) did the taxpayer genuinely intend to farm and (ii) did he have a reasonable prospect of making a profit from the farming activities in the foreseeable future?Item Open Access Plea-bargaining in South Africa: the need for a formalised trial run: chronicles(Faculty of Law, University of the Free State, 2001) Du Toit, S.; Snyman, E.Abstract not availableItem Open Access The impact of the Constitution on the South African criminal law sphere(Faculty of Law, University of the Free State, 2001) Kruger, H. B.English: In this article the extent of the impact of the new constitutional dispensation on the South African criminal law sphere is discussed. The influence of the Constitution on certain criminal offences, sentencing, justifiable homicide and specific presumptions are focussed on.Item Open Access Ontwikkeling in die Amerikaanse vennootskapswetgewing: die aanspreeklikheidsbeperkte vennootskap as 'n nuwe ondernemingsvorm(Faculty of Law, University of the Free State, 2001) Snyman, E.English: The fact that American corporate law is in a constant process of development, is clear from, firstly, the revision of their normal law of partnership since 1986, and, secondly, the incorporation of the limited liability partnership (LLP). The LLP developed as a result of attempts by the insurance industry to impart liability to attorneys and auditors when savings and loan societies collapse. The idea of a partner in a law or audit firm being liable for millions of dollars, created the need to limit the vicarious liability of partners. The limited liability partnership was created to this end. By 1996, more than 40 states had accepted limited liability partnership provisions into their partnership legislation. The general principle accepted by these states, is that a LLP could limit or exclude the joint and several liabillity of some or all of the partners for some or all of the duties or liabilities of that partnership. The provisions incorporated into the Uniform Partnership Act of 1997, regarding limited liability partnerships, deal chiefly with four aspects, namely (i) the extent of the limitations of a partner's liability; (ii) the voting requirements of establishing a limited liability partnership; (iii) the effect of establishment of an LLP on the partnership agreement; and (iv) the requirements of annual registration or filing.Item Open Access Die verhouding tussen 'n klient, sy regsverteenwoordigers en derde partye(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.English: The development of the contract of mandate (mandatum) between a client and his attorney as well as his advocate is discussed. Reference is also made to representation. The core of the client’s privity of contract with other parties consists of mandate and representation. Customs and usages are not referred to in this article. Other key concepts are also discussed. Delegation of authority is however the focus point and is based on consensual relations. There are two agreements which must show the intention to create privity of contract (a) the mandate between client and attorney and (b) the mandate between the attorney and other parties. A case study is given the facts of which are used to analyse the legal relationship between the following parties: the client, his country and city attorneys, his advocate and also a third party who is a debtor of the client.Item Open Access Tax laws harmonisation between Lesotho and the Republic of South Africa(Faculty of Law, University of the Free State, 2001-12) Thabane, K. S.; Dednam, M. J.English: Lesotho is geographically landlocked within the Republic of South Africa. Research has been done at border gates whereat Basotho shoppers are able to claim and gain reimbursement of the value-added tax amounts paid against shopping in South Africa. Basotho have to pay 10% general sales tax due on sales at the Lesotho side of the border. This arrangement is administratively difficult to implement and has therefore led to massive losses of sales tax revenue for Lesotho. Also, having acquired their trading stock free of value-added tax, branches of South African businesses are liable to commodity tax in Lesotho. Research has however revealed contrary practices as indicated. It is submitted that the existence of different laws governing economic activities in countries that cannot avoid interacting with one another leads to skewed distribution of resources amongst these countries. It remains unclear whether the provisions of the Lesotho valueadded tax law will address the widespread abuse of the system as well as the glaring evasion of the tax being experienced by Lesotho today. It is in the light of the abovementioned that the hypothesis of this article was formulated: that the efficient collection of tax revenue, the decline in the abuse of the tax system and the evasion of sales tax, will all occur to some significant extent if, amongst others, the Lesotho value-added tax legislation is in harmony with its South African equivalent. In conclusion the harmonisation of the tax rates provided for by statutes of the two countries is recommended.Item Open Access Some unfinished new thoughts on unilateral acts of states as a source of international law(Faculty of Law, University of the Free State, 2001-12) Suy, ErikEnglish: The unilateral acts of states in the form of a declaration concerning a legal or factual situation may create legal obligations for the state making the declaration when made with the intent to be bound. In such circumstances the intention confers on the declaration the character of a legal undertaking by the state to act in accordance with the undertaking. In this article the author revisits the hitherto restrictive definitions of the unilateral act as a source of international law in view of changed practices brought about by the progressive development and codification of the law of treaties.Item Open Access The limited partnership review. Historical and comparative perspectives on the revival of a "commercial mongrel" in the United Kingdom(Faculty of Law, University of the Free State, 2002) Henning, J. J.English: The United Kingdom limited partnership can be described as the statutory equivalent of the South African partnership en commandite, which was received from French law via Roman-Dutch law. Proposed in 1838 and eventually introduced in 1907, the limited partnership has not proved as popular as its proponents would have wished for. In fact, it has been described as a "commercial mongrel" and as "dismal failure", that was sunk "almost without trace" by the private company. Nevertheless, the limited partnership presently is a useful vehicle in the United Kingdom for investors who do not wish to take an active role in the management of their funds. It offers the investor privacy, as the accounts of the partnership are not generally disclosed. Like other partnerships, it also provides the benefit of fiscal transparency. On 13 September 2000 the Law Commission of England and Wales and the Scottish Law Commission released a comprehensive joint consultation paper envisaging a thorough review of the partnership law. Consequently, the Law Commissions completed a joint consultation paper on reforms of the Limited Partnership Act 1907 which was published in November 2001. In this contribution historical and comparative perspectives are given on the proposals contained in the second joint consultation paper.Item Open Access Permanent Secretary, Department of Welfare, Eastern Cape, and another v Ngxuza and others - hofreëls vir die voer van 'n groepsgeding?: case note(Faculty of Law, University of the Free State, 2002) De Bruin, J.Abstract not availableItem Open Access Inkwisatoriese en akkusatoriese elemente in die Amerikaanse pleitonderhandelingsproses: rigtingwyser of waarskuwingsteken?(Faculty of Law, University of the Free State, 2002-06) Fick, C. v.d. M.; Snyman-Van Deventer, E.No abstract availableItem Open Access Multiple marriages, burial rights and the role of lobolo at the dissolution of the marriage(Faculty of Law, University of the Free State, 2003) Jansen, R-M.English: This paper highlights three aspects which have an impact on both customary and common law that came to the fore in the Thembisile case. An evaluation of the way in which the court dealt with the different aspects is made. Regarding multiple marriages, where a civil marriage is also involved, it is suggested that the courts should be hesitant to simply declare either the civil or the customary marriage a nullity and should consider the different options available first. Where a funeral is marred by feuds about burial rights, it is suggested that a flexible approach should be followed. Strict adherence to common law principles could lead to unreasonable and inequitable results, especially in traditional communities. Lastly, there seems to be conflict between the official customary law and the living law regarding the return of the lobolo at the dissolution of a customary marriage. Empirical research should be undertaken to determine whether lobolo is in fact still returnedItem Open Access Financial markets in the Southern African development community: the harmonisation and approximation of commercial laws(Faculty of Law, University of the Free State, 2003) Henning, J.; Du Toit, S.English: The free flow of capital has been identified as a critical factor in the process of reducing poverty in the SADC region, along with the lowering of trade barriers. While the trade protocols have been adopted and much has been made of the harmonisation of stock exchange listing requirements and central banking regulation, it is an effort at harmonising corporate law that is noticeably absent. This article focuses on the harmonisation of business law including the supporting financial markets and the process of corporate law reform in South Africa, Botswana and Zimbabwe.Item Open Access Hospital disclaimers: Afrox Health Care v Strydom: chronicle(Faculty of Law, University of the Free State, 2003) Jansen, R-M.; Smith, B. S.Abstract not availableItem Open Access Optimising closely held entities to enhance commercial participation and development: the Southern African experience in comparative perspective(Faculty of Law, University of the Free State, 2003) Henning, J. J.English: The important contribution of the small business sector to economic growth and regional development is widely and generally acknowledged. In 1984, the South African Close Corporations Act introduced a simple, inexpensive and flexible closelyheld entity for the business consisting of a single entrepreneur or small number of participants, designed with a view to his or their reasonable needs and expectations and without burdening him or them with legal requirements that would not be meaningful in the circumstances. This example was followed with varying degrees of success in Southern Africa and Australia by legislative developments aimed at the introduction, in various guises, of new legal forms for small business. In more recent law reform initiatives in Australia and especially the United Kingdom, various options were analysed to optimise closely-held entities with a view to enhancing commercial participation and economic development through small businesses. Eventually, the somewhat less imaginative approach of merely simplifying the private company was chosen. Attention will be given to the Southern African experience of closely-held entities and then to a critical comparative analysis of and perspectives on recent developments in Australia and especially the United Kingdom.