JJS 2011 Volume 36 Issue 2

Permanent URI for this collection

http://hdl.handle.net/11660/2400

Browse

Browsing JJS 2011 Volume 36 Issue 2 by Subject "South Africa"

Now showing 1 - 3 of 3
  • Thumbnail Image
    ItemOpen Access
    The case for economic hardship in South Africa: lessons to be learnt from international practice and economic theory
    (Faculty of Law, University of the Free State, 2011) Coetzee, J.
    English: Although most leading legal systems provide for some form of legal relief in the case of economic hardship, South African law still does not address the issue of changed circumstances beyond that of objective impossibility or where the parties have provided for these instances contractually. Scholars have argued for an expansion of the doctrine of supervening impossibility in exceptional cases. However, the courts have to date not made any pronouncements in this regard. This article argues that a new default rule should be adopted that will reduce transaction costs and facilitate international trade. It is suggested that such a rule should build on the existing requirements set for the doctrine of supervening impossibility, but at the same time fuse international practice with the rules of economic theory.
  • Thumbnail Image
    ItemOpen Access
    Clinical legal education: planning a curriculum that can be assessed
    (Faculty of Law, University of the Free State, 2011) Du Plessis, M. A.
    English: Surveys conducted in a selection of jurisdictions are discussed to determine whether clinical legal education should be a core and mandatory course in the LLB curriculum. The focus of a university law clinic and the role of the clinician are examined. The pedagogy that must be used in clinical legal education is explored. The discussions specifically consider skills, values and expected outcomes for the course, as well as effective assessment programmes and common requirements for the design of a curriculum.
  • Thumbnail Image
    ItemOpen Access
    Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?
    (Faculty of Law, University of the Free State, 2011) Okpaluba, C.; Juma, L.
    English: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.