Browsing JJS 2009 Volume 34 Issue 2 by Issue Date
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Item Open AccessAn individualised, contextualised and child-centred determination of the child’s best interests, and the implications of such an approach in the South African context(Faculty of Law, University of the Free State, 2009) Heaton, J.English: This contribution deals with the approach that should be adopted when applying the concept of “the best interests of the child” and evaluating the individual factors that are used in determining what is in the child’s best interests. Section 28(2) of the Constitution of the Republic of South Africa, 1996 and Constitutional Court decisions are used as the main sources of guidance on the correct approach. The submission is made that an individualised, contextualised and child-centred determination of the child’s best interests is required. In view of our constitutional values of tolerance of and respect for diversity and pluralism, it is further submitted that we must move away from a mainly Judaeo-Christian, Eurocentric interpretation of “the best interests of the child” to an approach that takes the cultural and religious circumstances, interests and needs of the individual child into account. It is concluded that all factors that are shown to be relevant because they have, or could have, a negative or positive impact on the individual child should be taken into account in a contextualised child-centred way without reducing other constitutionally-protected rights and interests to nothing. Item Open AccessAssessment challenges in the clinical environment(Faculty of Law, University of the Free State, 2009) Du Plessis, M. A.English: The assessment of students’ performance in the clinical legal education course presents a challenge for a variety of reasons. Factors to be considered are large student numbers, language barriers, a large and diverse client pool, students working in pairs, specialised units within the clinic, education and experience variances amongst students, different levels in students’ knowledge of substantive and procedural law, different levels of experience in clinical supervision and assessment, student expectations and prescribed exit-level outcomes for the course. The setting of parameters for assessment and mark allocation, as well as further methods of assessment, not currently used, are discussed. Item Open AccessCelebrating the common law rights of man - a note on Blackstone's work on natural law and natural rights: chronicles(Faculty of Law, University of the Free State, 2009-12) Nydam, L.; Raath, A. W. G.William Blackstone's (1723-1780) Commentaries, a four-volume work, the first edition of which appeared in 1765, was produced in an epoch of natural law theory which marked the transition from "justification" to the "exposition" of natural law precepts and the shift from the ground of obligation of natural law to the formulation of detailed rules in natural law jurisprudence. Similar in style to E de Vattel's Le Droit des Gens, ou Principes de la Loi Naturelle (1758), and T Rutherford's Institutes of Natural Law (1748), Blackstone focused on the detailed rules of natural law rather than indulging in the philosophical underpinnings of natural law theory as such. Item Open AccessUbuntu versus the core values of the South African Constitution(Faculty of Law, University of the Free State, 2009-12) Keevy, I.English: At the dawn of South Africa's new era of constitutionalism the Constitutional Court introduced "African law and legal thinking" and ubuntu to South African jurisprudence as part of the Constitution's source of democratic values. Whereas the Constitutional Court averred on the one hand that African law sustains firmly entrenched gender inequality, it was contended on the other hand that ubuntu is "in consonance with the values of the Constitution in general and the Bill of Rights in particular". This article deconstructs the concepts "African law and legal thinking" and ubuntu and contends that ubuntu, African law and African religion are not only inseparable but that ubuntu - the basis of African law - sustains the deep-seated patriarchal hierarchy and entrenched inequality in traditional African societies. This article concludes that ubuntu "is [not] in consonance with the values of the Constitution in general and the Bill of Rights in particular". Item Open AccessDie effek van die regulering van maksimum werkure op werknemers se grondwetlike reg op gelykheid(Faculty of Law, University of the Free State, 2009-12) Marais, Marelize; Pretorius, J. LootEnglish: The paper examines the effect of the provisons regulating maximum working hours, with reference to the principle of equality entrenched in section 9 of the Constitution of the Republic of South Africa, 1996. Section 9(1) read with section 10(1) of the Basic Conditions of Employment Act 75/1997 has the effect that, subject to certain exceptions, employees are not allowed to work for the same employer for more than 55 hours per week. This does not prevent employees from working longer hours in total for different employers, an option that entails clear disadvantages. As a result of the adverse effect of past discrimination, black people, women and people on low socio-economic levels are disproportionately more unfavourably positioned in respect of levels of income, occupational status, financial ability and, consequentially, opportunities for promotion and improvement. This disadvantage often creates a need to work longer hours, specifically for the same employer. An application of the test developed in Harksen v Lane NO leads to a conclusion that the provisions referred to constitute unfair discrimination in terms of section 9 of the Constitution. The provisions also fail the proportionality test of section 36 of the Constitution. Item Open AccessChange to the age of majority: general impact and some consequences for the interpretation of wills(Faculty of Law, University of the Free State, 2009-12) Faber, James Thomas; Janse van Vuren, Louis TheunisOn 1 July 2008, the age at which a person attains majority was lowered from 21 years to 18 years. Section 17 of the Children's Act stipulates that : "A child,whether male or female, becomes a major upon reaching the age of 18 years." This change is consistent with the Constitution, which defines a child as a person under the age of 18 years.