JJS 2007 Volume 32 Issue 1

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http://hdl.handle.net/11660/2418

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    The need for legislative reform regarding the authorisation of trustees in the South African law of trusts
    (Faculty of Law, University of the Free State, 2007) Smith, B. S.; Van der Westhuizen, W. M.
    English: According to section 6(1) of the Trust Property Control Act 57 of 1988, all trustees to whom the Act applies 'shall act in that capacity only if authorized thereto in writing by the Master' of the High Court. The requirement of written authorisation has, however, not been interpreted and applied by the South African judiciary in a consistent fashion, leading to uncertainty regarding the precise ambit of the section and the consequences of non-compliance therewith. This contribution analyses these inconsistencies and concludes that legislative intervention along the lines of pre-formation contracts as provided for in both company law and the law of close corporations may provide an adequate solution to the problems faced by both the parties to the trust and the outsiders who deal with them.
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    Close corporations without end. Two remarkable decades of simply 'thinking small first': chronicle
    (Faculty of Law, University of the Free State, 2007-06) Henning, J. J.
    Abstract not available
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    Universal jurisdiction as procedural tool to institute prosecutions for international core crimes
    (Faculty of Law, University of the Free State, 2007-06) Swanepoel, C. F.
    English: The establishment of the International Criminal Court (ICC) with its intended purpose of ending the cycle of impunity that has notoriously attached to the perpetrators of gross human rights violations in the past hails a new chapter in international criminal law and justice. The structure of jurisdiction introduced by the ICC relies to a great extent on the co-operation of states to nationally prosecute perpetrators of gross violations of human rights. The ICC itself is intended to complement national jurisdiction and will only prosecute the most serious international crimes where the state that can exercise jurisdiction is either unwilling or unable to do so. This by necessity implies that states that are party to the ICC will be expected to establish and foster ways and means to enable themselves to investigate, prosecute, defend, adjudicate and to provide assistance to the ICC. One of the grounds upon which a state may exercise jurisdiction in terms of international criminal law is that of universal jurisdiction. This article explores aspects of the principle of universal jurisdiction and concludes that its application and development is of utmost importance in the quest of the international community to establish a credible international legal order.
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    Is die essentialia van die vennootskap ondergeskik aan die bedoeling van die partye? 'n Oorsig oor die Suid-Afrikaanse reg
    (Faculty of Law, University of the Free State, 2007-06) Snyman-Van Deventer, E.; Henning, J. J.
    English: When determining the existence of partnership, it is necessary to establish whether the essentialia of a partnership are present. However, apart from the essentialia, the intention of the parties is regularly referred to and it is stated that the intention of the parties shall be conclusive, even in the presence of all the essentials. This article will attempt to illustrate that only the essentials are determinants for the existence of a partnership and that the intention of the parties can only refer to the intention to comply with the essentialia. The essentialia of partnership are: the making of a contribution by each partner; the business must be conducted to the joint benefit of all the parties; and the objective of the partnership should be to make and distribute profit. Although the essentials of the partnership seem cut and dried at first glance, the whole issue is clouded by a series of court rulings in which a further requirement, viz. the intention of the parties to create a partnership was added to the essentials by reference to contrary evidence that the agreement between the parties may not be a partnership agreement. With all due respect, this view cannot be concurred. The question that has to be asked is if the intention referred to is the intention to comply with all the requirements of the partnership or the intention to specifically create a partnership?