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Open Access
A critical analysis of the inefficacy of court - Annexed Mediation (CAM) in South Africa – Lessons from Nigeria
(University of the Free State, 2021) Muller, E. C.; Nel, C. L.
As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.
Open Access
The acquisition of and subsequent judicial interference with parental responsibilities and rights of unmarried parents in terms of the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 38 OF 2005: lessons from case law, selected analogous divorce law and english law
(University of the Free State, 2023) Somi, Aphiwe; Smith, B. S.
Heaton and Kruger¹ provide the following convenient starting point for this study when they state that: “Internationally, the focus of the private-law rules regarding the parent-child relationship has increasingly shifted from the rights and powers of parents towards the rights and entitlements of children. In addition, international human-rights instruments and constitutional provisions have conferred specific rights on children. The emphasis on the rights of children is [also] evident in [South African] law.” 𝘊𝘢𝘭𝘪𝘵𝘻 𝘷 𝘊𝘢𝘭𝘪𝘵𝘻² affirms that in South Africa, the common-law position was that a married father was the dominant parent from a legal point of view because, although he shared custody with the mother, his rights were superior, especially as only he exercised guardianship over his child(ren) as a core component of what was then known as “parental authority”.³ Mothers, however, steadily gained increased legal recognition as parents, especially after promulgating the 𝘔𝘢𝘵𝘳𝘪𝘮𝘰𝘯𝘪𝘢𝘭 𝘈𝘧𝘧𝘢𝘪𝘳𝘴 𝘈𝘤𝘵 37 of 1953 and the 𝘎𝘶𝘢𝘳𝘥𝘪𝘢𝘯𝘴𝘩𝘪𝘱 Act 192 of 1993.⁴ Crucially, at least as from 1948, the concept of “the best interests of the child” became the golden rule in matters relating to children⁵ following the judgment of the Appellate Division (the highest court in South Africa at the time), in 𝘍𝘭𝘦𝘵𝘤𝘩𝘦𝘳 𝘷 𝘍𝘭𝘦𝘵𝘤𝘩𝘦𝘳.⁶ Building on this, our common law has always recognised the High Court as the upper guardian of all minors within its jurisdiction,⁷ and thus permits the court to interfere with “parental responsibilities and rights” (that has replaced the concept of “parental authority”), if the best interests of a child require doing so.⁸ This power is reinforced by certain statutes, as will be discussed below. The dawning of democracy in South Africa greatly facilitated the shift to a “child-centred approach”,⁹ as indicated by the extract from Heaton and Kruger quoted above. Section 28 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢 1996 (after this “the Constitution”) specifically deals with the fundamental constitutional rights of children. As Sachs J stated in S v M (𝘊𝘦𝘯𝘵𝘳𝘦 𝘧𝘰𝘳 𝘊𝘩𝘪𝘭𝘥 𝘓𝘢𝘸 𝘢𝘴 𝘈𝘮𝘪𝘤𝘶𝘴 𝘊𝘶𝘳𝘪𝘢𝘦),¹º “[s]ection 28(1) provides for a list of enforceable substantive rights that go well beyond anything catered for by the common law and statute in the pre-democratic era.” However, this list is not exhaustive.¹¹ Furthermore, as Boezaart states, a “plethora of laws” have been passed over the last two decades that govern various aspects of the lives of children. This was an attempt to improve domestic law in such a way that it is aligned with the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 and the international legal framework and to recognise the rights of children that may be enforced against parents, but also against the State.¹² One of the most important of these is the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵¹³ which was enacted (inter alia) to give effect to the constitutional rights of children¹⁴ and will feature throughout this study, particularly where the provisions or fundamental principles of this Act have been relied on by our courts to recognise, limit, terminate or broaden parental responsibilities and rights. The 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 effectively codifies the South African law of parent and child.¹⁵ As such, this study focuses on the acquisition of parental responsibilities and rights by unmarried parents and the role of the judiciary in interfering with the same in terms of sections 28, 29 and 34(5) of the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 and against the backdrop of the constitutional rights accorded to both children and their parents. While judicial interference will primarily be analysed in the specific context of unmarried parents, the fact that there is still relatively little case law dealing with such parents requires the study to draw on case law involving divorcing (or divorced) parents in which these provisions have featured. Having thus established the key legal principles regarding the application of these provisions, the study will identify certain lessons that can be learned when future courts are required to deal with the possible awarding, delineation, restriction or termination of unmarried parents' parental responsibilities and rights. In this regard, leading South African case law involving the possibility of awarding shared or joint care during or after divorce proceedings, as well as the potential restriction of separated parents’ rights of contact based on their sexual orientation, will be considered. Furthermore, because this issue has featured in English law (while there is only one such case in South Africa), the study will seek to determine whether South African courts can benefit from case law in that jurisdiction involving the outright termination of the parental responsibilities and rights of unmarried parents.
Open Access
Addressing domestic violence: to what extent does the law provide effective measures?
(Faculty of Law, University of the Free State, 2004) Kruger, H. B.
English: The high incidence of domestic violence in South Africa calls for a competent legal response. The Constitution as well as international human rights conventions oblige the state to protect human rights, including the rights of victims of domestic violence. The government is, therefore, challenged to enact effective legal measures to address domestic violence. This paper undertakes to examine the current legal remedies and protection available to victims of domestic violence. The focus is on the Domestic Violence Act 116 of 1998. The Act is discussed, compared to previous legislation and critically evaluated to assess its effectiveness in addressing domestic violence.
Open Access
African philosophical values and constitutionalism: a feminist perspective on Ubuntu as a constitutional value
(University of the Free State, 2008) Keevy, Ilze; Raath, A. W. G.
English: Since 1995 the South African Constitutional Court has contended that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africa’s open and democratic society. The Court acknowledged ubuntu as part of South Africa’s jurisprudence and fused Western and African jurisprudence into a new South African “rainbow” jurisprudence. But beneath this miraculous fusion lies a volatile philosophical relationship of two ancient patriarchal philosophies which resulted in the erosion of African values and innumerable injustices against the African Other. Like Greek philosophy, Western philosophy has always been plagued by philosophical prejudice towards women, slaves and barbarians. Racism, however, only entered the equation of Western philosophy when the West had to justify their trade in twenty million African men, women and children as African chattel slaves in the seventeenth century. This crime against humanity was justified in the name of Christianity by philosophers and clergy alike. Whilst the Enlightenment philosophers proclaimed human equality and individual liberties in the eighteenth century they also fuelled a “new racism” which stereotyped Africans as inferior and subhuman. Not only did the Otherness of Africans result in racial segregation in the United States of America in 1883, it also legitimised Western colonisation of the “Dark Continent”. Under the banner of the cross, Western colonial powers embarked on their Christian civilising mission of the African continent: destroying African trade patterns, ancestral lands, self government, tribal systems, African law, cultures, belief systems and values. It was, however, not these factors, the colonial genocides in Congo Free State and German South-West Africa or Apartheid South Africa’s crime against humanity which resulted in the lingering inferiority complex Africans experience on the African continent, but the most destructive weapon wielded by the West: the “cultural bomb”, which eroded African values. The publication of Temple’s Bantu Philosophy in 1945 did not only bring proof that traditional Africans have a collective philosophy but also sparked a heated international and national philosophical debate. In an attempt to structure the discourse on African philosophy Oruka introduced his six trends in African philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the collective philosophy, or ubuntu, of either an African community or Africa as a whole; sage philosophy illustrates that rational thought prevails in philosophical sages; political philosophy contains the liberation philosophies of African leaders who envisaged the rekindling of eroded traditional African values; Negritude is described as the “sum total of African values”; professional African philosophy is African philosophy in the strict sense produced by African philosophers; the hermeneutical approach attempts to reconstruct African reality in post-colonial Africa; and the literary trend illustrates the devastating effect of Western subjugation of the African Other. The debate on African philosophy illustrates that there is no homogenous way of African thinking and that professional African philosophers, modern Africans, African theologians and African feminists reject traditional African modes of thought. The Constitutional Court claims ubuntu values are in line with the Constitution in general and the Bill of Rights in particular but this study brings evidence to the contrary. Not only are ubuntu values represented in traditional Africa’s closed, strong communitarian societies unique and not universal, but ubuntu “moral philosophy” proves to be a religious philosophy. Whilst sec. 15(1) of the Constitution guarantees freedom of religion one has to question why the Court entertains a religious philosophy such as ubuntu in its deliberations and not other religious philosophies. The Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa aspire to revive ubuntu’s eroded traditional African values. African feminists, African theologians and modern Africans reveal that ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with international or regional human rights and gender mechanisms nor “the Constitution in general and the Bill of Rights in particular”.
Open Access
Analysing the three-fold relationship between corruption, socio-economic rights and social justice in South Africa
(University of the Free State, 2023) Morisse, Taylor Riley; De Man, Annelie
This study analyses the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. This analysis consists of a review of three concepts and the relationship between these concepts in a South African context. Referred to as the three core concepts, the research problem that this study addresses and the research questions that emanate from it revolve categorically around (a) corruption, specifically governmental corruption; (b) human rights, specifically socio-economic rights; and (c) social justice. The aim of this study is two-fold. First, this study aims to combine academic comprehension of these core concepts. This study's second and overriding aim is to establish how these concepts relate, this second aim relates directly to the objective of this study which is to analyse the three-fold relationship between corruption, socio-economic rights, and social justice in South Africa. To establish this three-fold relationship between these concepts, each concept is investigated in terms of its attributed meanings, suggested consequences, assigned obligations, and debated achievement views. This investigation is done by analysing ample differing academic views. As it relates to the first core element of this study, corruption within government in South Africa is probed with the objective possibly to show its extent and gravity as its existence is well documented. The consequences of corruption within government are elucidated due to their potential contribution to understanding this element's role within this three-fold relationship. A commonly suggested consequence of corruption within government is that it adversely affects the fulfilment of human rights. To understand whether anything is undermining human rights fulfilment in South Africa, an assessment of the respect, protection, promotion, and fulfilment of human rights is applicable. Regarding the evaluation of human rights, the scope of this study is limited to the assessment of two socio-economic rights recognised in the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢, 1996 (𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯). Note below the applicable sections of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 that guarantee these rights and the limitations of this study. Sections 27(1)(a)-(c) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantee the following socio-economic rights: (a) everyone has the right to access healthcare (including reproductive healthcare), (b) everyone has the right to access to sufficient food and water, and (c) everyone has the right to access to social security. This study is limited to assessing the right to access healthcare as contained in Section 27(1)(a). This assessment includes the evaluation of the availability of pre-exposed HIV/AIDS (Human Immunodeficiency Virus Infection and Acquired Immune Deficiency Syndrome) medications for mother-to-child transmission, including nevirapine, but excludes the evaluation of reproductive healthcare. The space limitation of this study does not allow for this subset of rights to be addressed. Section 29 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 guarantees that everyone has the right: (a) to basic education, including adult basic education and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible. This study is limited to assessing the right to a basic education as contained in Section 29(a). This assessment excludes the evaluation of adult basic education due to the space limitation of this study. Therefore, the assessment of corruption within government in national departments in South Africa focuses on the Department of Health and the Department of Education as these departments are arguably the national departments responsible for enabling the realisation of the rights contained in Sections 27(1)(a) and 29(a) of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯. Considering modernity and the aim of providing an updated viewpoint, it must be acknowledged that governments have ever changing variables, when assessing a government, ongoing changes and challenges must be considered. The inclusion of current events does this. Befittingly, corruption in state-owned enterprises as it relates to the investigation into state capture in South Africa carried out by the 𝘑𝘶𝘥𝘪𝘤𝘪𝘢𝘭 𝘊𝘰𝘮𝘮𝘪𝘴𝘴𝘪𝘰𝘯 𝘰𝘧 𝘐𝘯𝘲𝘶𝘪𝘳𝘺 𝘪𝘯𝘵𝘰 𝘈𝘭𝘭𝘦𝘨𝘢𝘵𝘪𝘰𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 𝘊𝘢𝘱𝘵𝘶𝘳𝘦, 𝘊𝘰𝘳𝘳𝘶𝘱𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘍𝘳𝘢𝘶𝘥 𝘪𝘯 𝘵𝘩𝘦 𝘗𝘶𝘣𝘭𝘪𝘤 𝘚𝘦𝘤𝘵𝘰𝘳, 𝘪𝘯𝘤𝘭𝘶𝘥𝘪𝘯𝘨 𝘖𝘳𝘨𝘢𝘯𝘴 𝘰𝘧 𝘚𝘵𝘢𝘵𝘦 (the Zondo Commission) is included because it is the most recent investigation into corruption within government in South Africa. The findings of the Zondo Commission are included to demonstrate that it is not only corruption in national departments that has a potential plummeting effect on government funding in South Africa. Arguably, it is also corruption in state-owned enterprises that erodes the availability of government resources.¹ Although there are other variables that impact the availability of government resources this study is limited to the assessment of the above mentioned. Given the last core element of this study, the conceptual idea of social justice and what is believed to be necessary to achieve social justice is analysed to understand whether it is possible to achieve social justice in South Africa if socio-economic rights are not respected, protected, promoted, and fulfilled for everyone. An idea of social justice is to see all people be equal under the law and have equal opportunities to develop their potential.² Social justice includes the fair distribution of rights, resources, and opportunities.³ The achievement of social justice within a society is necessary because its potential to enable and promote human rights fulfilment including the fulfilment of socio-economic rights, redress injustices, ensure equality, create opportunities and an overall better standard of living.⁴
Open Access
An analysis of the codes of good practice issued in terms of the Broad Based Black Economic Empowerment Act 53 of 2003
(University of the Free State, 2006-11) Knoetze, Hyla Magdalena; Snyman-Van Deventer, E.; Conradie, M.
English: BBBBBEE170 is an essential ingredient in facilitating the meaningful participation of blacks at all levels of the South African economy, in order to ensure sustainable socio-political and economic stability and the sustainability of the economic growth and development. BBBEE key principles • It is an ongoing process and not an event • It is a business imperative and an integral component of the company’s business strategy and is based on the core values of the organization • • It must result in meaningful and significant participation of blacks in the company and in the broader economy, through substantial changes in the racial composition of ownership, control, management structures and of skilled and specialist positions • It must lead to advantaged strategic position for the company, greater profitability, business growth and sustainable increase in stakeholder value • it is the responsibility of all management in the organisation.
Open Access
Are the rights of the disabled a reality in South Africa? Part One
(Faculty of Law, University of the Free State, 2003-12) Reyneke, J. M.
English: For a long time the rights of disabled persons have been ignored not only in South Africa, but also in the rest of the world. There are many disabled persons who can participate on an equal level with able-bodied persons, but on the other hand, there are many disabled persons who are unable to do so due to the nature and severity of their disabilities. Discrimination against disabled persons leads to exclusion from functioning in a normal way in the community and the denial of the right to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.
Open Access
Are the rights of the disabled a reality in South Africa? Part two
(Faculty of Law, University of the Free State, 2004-06) Reyneke, J. M.; Oosthuizen, H.
English: For a long time the rights of disabled persons have been ignored not only in South Africa, but also in the rest of the world. There are many disabled persons who can participate on an equal level with able-bodied persons, but on the other hand there are many disabled persons who are unable to do so due to the nature and severity of their disabilities. Discrimination against disabled persons lead to the exclusion of them to function in a normal way in the community and the denial of their rights and to function freely in society. Legislation can assist in the prevention of discrimination against such persons and also in their upliftment.
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, Jaco
English: 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.
Open Access
The authorization of trustees in the South African law of trusts
(University of the Free State, 2006-11) Smith, Bradley Shaun; Van der Westhuizen, W. M.; Van Schalkwyk, J. H.
English: An analysis of the historical development of the trust in South Africa indicates that the trust has formed a part of South African jurisprudence for almost two centuries and, as such, has become a vibrant, dynamic and highly versatile institution in both commercial and legal practice. Initial recognition of the trust was occasioned chiefly by piecemeal (and fragmented) pre-Union legislation and case law. After 1910 the existence of the trust was confirmed by the Appellate Division – at that time the highest court in South Africa – and uniform legislation become applicable throughout the four provinces of the newly-established Union. The 1913 Administration of Estates Act was the first post-Union Act to apply to the law of trusts. This Act however only applied to the testamentary trust, but other legislation (such as the Trust Moneys Protection Act of 1934) eventually followed which applied to both testamentary and inter vivos trusts. The promulgation of the Trust Property Control Act 57 of 1988 is, however, widely regarded as being the most important contribution by the Legislature to the South African law of trusts. Section 6(1) of the 1988 Act introduced the requirement of written authorization of all trustees before they could act in that capacity. However, despite the seemingly clear and unambiguous wording adopted by the Legislature, the Courts have not interpreted and applied the section in a uniform fashion, leading to great uncertainty especially as far as the effect of non-compliance with section 6(1) is concerned. This dissertation attempts, by way of the legal historical method of research, to analyse the reported cases dealing with section 6(1), to compare the development of the requirement of written authorization with analogous requirements posed by previous legislation, and, as a consequence, to determine the true purpose of and rationale behind the insertion of the section. In order to combat the current uncertain legal position, three possible solutions are suggested, namely common law mechanisms, legislative intervention, and the correct interpretation of section 6(1).
Open Access
Authorship in copyright law: a critique in the context of the fourth industrial revolution
(University of the Free State, 2023) Dlamini, Simphiwe; Sindane, Ntando
This dissertation critically examines the demands for an amendment of the South African Copyright Act 98 of 1978 to bring it in line with modern times. It investigates authorship in copyright law from the perspective of the Fourth Industrial Revolution. This dissertation focuses specifically on artificial intelligence (AI) and its ability to generate copyrightable works under the Act. The growing use of AI technology inversely leads to the growing production of works generated by AI. These mechanically produced works share the same traits as those that, according to South African law, are entitled to copyright protection. As a result, there is currently uncertainty over who the author of such works is, because AI machines do not qualify as authors under the South African Copyright Act. This dissertation examines the definition of an author in the existing Copyright Act, as well as the requirements for authorship and copyright protection, in order to determine if this section of the Act needs to be amended to reflect the Fourth Industrial Revolution. To accomplish this, the dissertation investigates prominent South African intellectual property law textbooks as well as international sources that have conducted extensive research on the subject. The dissertation reveals the excessive use of artificial intelligence machinery and its products in the country and around the world. It demonstrates the growing need for legislation to govern such machinery in the country, as well as rules to regulate the usage of such technology and the copyrightable works it produces. The dissertation studies the nature of copyright in a work made by AI equipment nationwide and internationally, as well as how these machines will affect different areas in the country. An analysis of the requirements for copyright is provided, and it is argued that the present requirements for copyright cater to works generated by artificial intelligence even though these machines do not qualify as authors under the Act. Furthermore, the dissertation demonstrates how a lack of regulations in this regard will have a negative impact on specific areas, such as the country's education system. It indicates that South African legislation has not advanced sufficiently in comparison to other countries. The dissertation finds that the current Copyright Act is outdated and needs to be amended to account for AI generated works as well as AI authorship. Furthermore, legislation to oversee AI technology in the country should also be considered.
Open Access
Die beskerming van kredietwaardigheid in die Suid-Afrikaanse reg
(University of the Free State, 1986-01) Klopper, Hendrik Balsazer; Claasen, J. Y.
Afrikaans: Die probleem wat in hierdie studie hanteer word, is of kredietwaardigheid werklik met die persoonlikheidsregtelike lama van 'n persoon gelykgeskakel kan word en of dit daarmee ooreenstem soos wat tans die siening van die geldende reg is. Leiding moet noodwendig by die kredietgewingspraktyk in die feitelike werklikheid gesoek word omdat dit die taak van die regswetenskap is om verskynsels in die feitelike werklikheid tot regulerende regsreëls te herlei. Die werklikheidsbeskouing van kredietwaardigheid toon merkbare afwyking van die regswerklikheid. Kredietwaardigheid in die feitelike werklikheid word omskryf as die vertroue wat die kredietontvanger (skuldenaar) by die kredietgewer (skuldeiser) verwek in die wil en vermoë om sy finansiële verpligtinge te kan nakom. Die beskouing van die reg van kredietwaardigheid moet dan aan die hand hiervan geskied. Sekere regstelsels verleen direkte erkenning aan kredietwaardigheid en is in pas met die werklikheidsbeskouing van kredietwaardigheid. (Die Duitse, Oostenrykse en tot 'n mate, die Nederlandse reg). Ander regstelsels plooi weer die beginsels van die lasterdelik om beskerming te bewerkstellig terwyl sommiges statutêre beskerming bied (Engeland, Amerika en Kanada). Hierdie wetgewing het ook 'n voorkomende uitwerking. Die Romeinse en Romeins-Hollandse reg erken nie kredietwaardigheid as 'n spesifieke belang nie en ook is daar besliste twyfel of hierdie regstelsels kredietwaardigheid as 'n faset van dié fama geken het. Tog word daar tekste in hierdie regstelsels aangetref wat verwys na die vertrouenselement wat in kredietwaardigheid te vinde is. Die Suid-Afrikaanse reg benader kredietwaardigheid as synde 'n faset van die persoonlikheidsregtelike lama of as sinoniem daarvan en wend die lasteraksie aan om beskerming daarvan te bewerkstellig. Omdat kredietwaardigheid in die werklikheid nie die lama van'rtpersoon is nie, word van die erkende beginsels van die lasteraksie afgewyk om beskerming te bewerkstellig. So word weinig aandag aan die onregmatigheids- en skuldelement gegee en in sommige gevalle word onregmatigheid en skuld (opset) selfs verontagsaam ten einde kredietwaardigheid te beskerm. Kredietwaardigheid verskil in wesensopsigte van fama en hierdie andersheid word beklemtoon deur die feit dat 'n regspersoon wat oor geen persoonlikheidsregtelike fama kan beskik nie, tog kredietwaardig kan wees. Kredietwaardigheid kan nie met die persoonlikheidsregtelike lama gelykgeskakel word nie. So 'n gelykskakeling beteken dat die verlies aan lama ook verlies aan kredietwaardigheid meebring wat nie noodwendig die geval is nie. Hierdie gelykskakeling misken ook een van die grondelemente van kredietwaardigheid, naamlik die vermoë om te kan betaal. Die aantasting van kredietwaardigheid gee in die meeste gevalle aanleiding tot vermoënskade wat 'n aanduiding is van die belang wat betrokke is, naamlik 'n vermoënsbelang. lndien 'n regswetenskaplike nis vir kredietwaardigheid gesoek word, resoneer dit as subjektiewe reg onder die immateriële goedereregte synde 'n geesteskepping van die mens op ekonomiese gebied. Daarby voldoen kredietwaardigheid aan al die vereistes vir 'n subjektiewe reg. Omdat kredietwaardigheid 'n vermoënsreg, te wete 'n immateriële goedereg is, is die beginsels van die actio legis Aquiliae daarop van toepassing wat beteken dat nalatigheid voldoende is om aanspreeklikheid te vestig. Skade weens kredietwaardigheidsaantasting is ook met 'n redelike mate van juistheid berekenbaar. Dit beteken egter nie dat die aantasting van kredietwaardigheid nie tot 'n aksie vir genoegdoening aanleiding kan gee wanneer die benadeelde kan aantoon dat die kredietbenadelende bewering ook sy fama of dignitas aangetas het nie. In so 'n geval moet die sekondêre betekenis van die bewering egter blyk omdat die klassieke inbreukmakingshandeling tegelyk regmatig en onregmatig kan wees. Uit die gelyktydige regmatigheid en onregmatigheid van die inbreukrnakingshandeling ontstaan 'n dilemma omdat die benadeelde nie weet waarom krediet hom geweier word nie. Hierdie verskynsel veroorsaak dat die gemeneregtelike aksies, alhoewel voldoende, nie prakties beskerming kan bied nie. Om hierdie gebrek te verwyder beteken dat wetgewing ter verpligting van die openbaarmaking van inligting met die behoud van die gemeneregtelike aksies en wat terselfdertyd die geldigheid en verspreiding van sulke inligting beheer, noodsaaklik is. Nie alleen sal dit inbreukmakings voorkom en beskerming verhoog nie, maar sal dit ook die geleentheid bied om inbreukmakings op privaatheid weens die versameling en verspreiding van kredietinligting te beheer.
Open Access
The best interests of the child in school discipline in South Africa
(Tilburg University, 2013-06-28) Reyneke, Jacomina Margaretha; de Groof, J.; Pretorius, J. L.; van Genugten, W. J. M.
No abstract available.
Open Access
Black spaces: the Group Areas Act, the material boundaries of life and grievability
(University of the Free State, 2023) Goba, Nosipho Salazi; Van Marle, K.
My aim in this thesis is to unpack the ways in which the Group Areas Act of 1950 and apartheid spatial planning more broadly was not only concerned with who had access to socio-economic rights but also with deciding which lives were valuable and thus grievable. The spatial expression of (post)apartheid South African life is undoubtedly racialised, gendered and classed. The central theme of this research project is to critically engage apartheid geography through the lens of Judith Butler’s notion of “grievability” as put forward in 𝘗𝘳𝘦𝘤𝘢𝘳𝘪𝘰𝘶𝘴 𝘓𝘪𝘧𝘦: 𝘛𝘩𝘦 𝘗𝘰𝘸𝘦𝘳𝘴 𝘰𝘧 𝘔𝘰𝘶𝘳𝘯𝘪𝘯𝘨 𝘢𝘯𝘥 𝘝𝘪𝘰𝘭𝘦𝘯𝘤𝘦 𝘢𝘯𝘥 𝘍𝘳𝘢𝘮𝘦𝘴 𝘰𝘧 𝘞𝘢𝘳: 𝘞𝘩𝘦𝘯 𝘪𝘴 𝘓𝘪𝘧𝘦 𝘎𝘳𝘪𝘦𝘷𝘢𝘣𝘭𝘦? as well as Giorgio Agamben’s “bare life” as put forward in 𝘏𝘰𝘮𝘰 𝘚𝘢𝘤𝘦𝘳: 𝘚𝘰𝘷𝘦𝘳𝘦𝘪𝘨𝘯 𝘗𝘰𝘸𝘦𝘳 𝘢𝘯𝘥 𝘉𝘢𝘳𝘦 𝘓𝘪𝘧𝘦 to explore an understanding of spatial injustice that is informed by the (re)production of exclusionary conceptions of a normative human those falling outside of which cannot be mourned publicly. One of the main arguments in this project is that spatial justice extends beyond the geographic arrangements of the material realm into the recognition and restoration of humanity and dignity. This thesis examines how social markers impact the ways in which certain people can navigate space and the results of not belonging in certain spaces. As a research project grounded in critical race theory, feminist theory, queer theory, class analysis and disability rights, this thesis pushes me to think about space and how we inhabit space as marginalised people in (post)apartheid South Africa. I turn to black feminist geographic thought for a grounded exploration of pathways to achieving spatial justice and conducting a critical race spatial analysis of the endurance of apartheid geography.
Open Access
Die Britse veroweringsaanspraak op die Oranje-Vrystaat, 1900
(Faculty of the Humanities, University of the Free State, 2011-09) De Bruin, Jaco; Wessels, Andre; Henning, Johan
On 28 May 1900, Lord Roberts issued a proclamation (back-dated to 24 May 1900) stating that the Orange Free State (OFS) Boer republic was annexed as the Orange River Colony (ORC). This article deals with the British allegations that they had conquered the OFS, as early as the end of May 1900. It deals especially with the legality of these averments in the context of the law of nations. The opinions of a number of legal authorities are evaluated and applied to the situation prevailing in the OFS. Several other proclamations and opinions are also taken into consideration, as well as the events in the Brandwater Basin in July and August 1900, when a very significant number of the OFS forces in the field surrendered. The positions of and comments by General CR de Wet and President MT Steyn are evaluated, and the decisions handed down in a number of post-war court cases are considered. New light is shed on the legal status of the Boer representatives taking part in the negotiations leading up to the signing of the Peace of Vereeniging on 31 May 1902.
Open Access
Bullying in the workplace : towards a uniform approach in South African labour law
(University of the Free State, 2014-01) Smit, Dina Maria; Du Plessis, J. V.
Bullying in the workplace is a kind of aggression that occurs where an individual or group intimidates, excludes, harasses, insults, mistreats or demeans another individual or group at work, either directly or indirectly. A complex power imbalance presents itself, in that the perpetrator uses formal or informal power over his or her victim to such an extent that the victim is almost powerless to defend him or herself. Bullying can occur from the top to the bottom, from the bottom to the top, or horizontally. Not all kinds of bullying give rise to illegal acts, but even if menial bullying continues over time, it can give rise to severe negative effects. Due to new digital developments in employment, the management of cyberbullying, as a form of workplace bullying, complicates the legal dilemma even further. Not only do bullied victims have to continue in a working relationship where the bullying took place, but depression, stress, anxiety, post-traumatic stress disorder and a plethora of physical illnesses also take their toll, as reflected in abnormally high turnover and absenteeism figures. If no timeous intervention occurs early during the bullying, severe psychological problems have been reported by bullied victims, which render them incapable to continue with work, or lead to summary resignations accompanied by claims for constructive dismissal. Low morale and negativity have been shown to be linked to workplace bullying and impact negatively on the organisation as a whole, and vicarious liability for the employer may follow. Due to the fact that there is no universally accepted definition for bullying and different jurisdictions place bullying on different continuums, it adds to the problem of regulating and preventing workplace bullying. The question has been asked whether there is a need to legislate employees into being “nice” to one another, but that merely shows the lack of knowledge about the notion and effects of workplace bullying. Sexual harassment is a form of human behaviour and is regulated extensively. With bullying four times more prevalent than sexual harassment, there is no reason why bullying should not be regulated also. Many countries, such as Sweden, Germany and France, have legislated bullying and there is a strong drive in the USA to have the Healthy Workplace Bill passed. Many states have introduced different versions thereof, but none have been passed. The USA treats bullying as a form of harassment, and no protection exists for employees who fall outside the scope of certain “classes”, unless, of course, the bullying amounts to criminal actions or tort action. The UK treats workplace bullying as a dignity violation and extensively uses antistalking law, in the form of the Protection from Harassment Act of 1997, to curb bullying. Australia views bullying from a health and safety perspective and, in South Australia, it is currently dealt with by means of Codes. There is a drive to eradicate bullying from the workplace on a national level through a new Code (dealing with workplace bullying), for which public commentary has recently closed. Little has however been done in South Africa to create awareness of, or deal with, this peril. The country is in dire need of a uniform approach to workplace bullying. It is not clear on which continuum bullying should be placed, but as our discrimination laws are not limited to certain “classes”, it is not suggested that separate legislation should be passed. The new Protection from Harassment Act could be used, as in the UK. Employers should embark on the creation and implementation of zero-tolerance policies in the workplace to deal with this pervasive problem. For too long the victims of workplace bullying have suffered silently at the hands of bullies.
Open Access
A business rescue model for unincorporated business entities in South Africa
(University of the Free State, 2022) Mpofu, Kudzai; Moolman, H. J.; Snyman-Van Deventer, E.
The significance of small and medium enterprises in promoting economic growth has received sufficient academic and legislative attention. However, little attention has been paid towards promoting and promulgating legislation that oversees the recovery of small enterprises in financial distress. The study compares business rescue schemes applicable to sole proprietorships and partnerships to draw lessons for the legislature and policymakers in South Africa. The current legislation on business rescue and debt review intentionally exclude sole proprietorships and partnerships mainly because of their legal personality. The Companies Act of 2008 only admits incorporated companies to business rescue. Furthermore, the National Credit Act 2005 excludes partnerships from debt review because the legislature classified them as juristic persons. For this reason, sole proprietorships and partnerships in financial distress cannot depend on the current legislation to facilitate restructuring proceedings. Therefore, the study identifies the key elements of an effective business rescue scheme which may apply to unincorporated business entities. Through a comparative assessment of different rescue regimes, it was concluded that an efficient rescue scheme must consist of an eligibility criterion, a procedural framework consisting of a step-by-step rescue process and an institutional framework with already pre-determined role players. The main conclusions from the study are that the eligibility criterion must only admit business debtors to the business rescue process. On that note, it was observed that it would be necessary to regulate the liability of sole proprietorships and partnerships during the rescue process. This may be achieved by recognising them (sole proprietorships and partnerships) as legal persons for purposes of business rescue. The study shows that the step-by-step procedure should include a commencement procedure that allows owners of sole proprietorships and partners in a partnership to apply for business rescue. As soon as the procedure commences, a moratorium on creditors' rights must be automatically activated. The stay should protect the business, the owners, and the codebtors. While the moratorium is the operation, the business rescue practitioner must prepare a business rescue plan that includes the treatment of secured and unsecured creditors. More so, consideration must be made on the possibility of selling parts of the business, merging the business with other successful businesses or incorporating the business. The study revealed that it may be necessary for the legislature to allow the debtor to continue borrowing during the business rescue process. However, the rescue process is terminated if the business rescue plan is fully implemented or the debtor faces unforeseen economic hardships. The effect of termination is that the debtor is discharged. The study indicates that the institutional structure should include the debtor, the business rescue practitioner and a specialised judge. The success of business rescue depends on the honesty and cooperation of the debtor. It was concluded that to reduce the cost of business, rescue the debtor may remain in control of its business but must be monitored regularly by appointing a state-sponsored business rescue practitioner who reports to the creditors. In the event that the creditors have reason to mistrust the debtor's honesty, they may choose to appoint and pay for a private business rescue practitioner jointly. In that case, the debtor must cooperate with the business rescue practitioner who oversees or monitors the rescue process. The business rescue practitioner must regularly report to the creditors and the court about the success or failures of the debtor. Since business rescue involves different areas of study, including business, law and financing, it was concluded that South Africa might need a specialised court system. Establishing an administrative institution akin to the Office of the official receiver would also be necessary to oversee the rescue process. Such an institution may be subsidised by the state to reduce the cost of business rescue. Generally, most of the observations made during the study were included in the recommendation to the legislature.
Open Access
Calvyn die juris: kroniek
(Faculty of Law, University of the Free State, 2001) Wessels, H. A.; De Bruin, J. H.
Abstract not available
Open Access
Celebrating 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.
Open Access
Change to the age of majority: general impact and some consequences for the interpretation of wills
(University of the Free State, 2009) Faber, James Thomas; Janse van Vuren, Louis Theunis
On 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,¹ which defines a child as a person under the age of 18 years.² The department of social development motivated this change as follows: 𝘉𝘦𝘵𝘸𝘦𝘦𝘯 18 𝘢𝘯𝘥 21 𝘺𝘰𝘶’𝘳𝘦 𝘯𝘦𝘪𝘵𝘩𝘦𝘳 𝘢 𝘤𝘩𝘪𝘭𝘥 𝘯𝘰𝘳 𝘢𝘯 𝘢𝘥𝘶𝘭𝘵. 𝘛𝘩𝘦 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 𝘰𝘧 2005 𝘤𝘭𝘢𝘳𝘪𝘧𝘪𝘦𝘴 𝘵𝘩𝘢𝘵 𝘨𝘳𝘦𝘺 𝘢𝘳𝘦𝘢 𝘢𝘯𝘥 𝘣𝘳𝘪𝘯𝘨𝘴 [𝘪𝘵] 𝘪𝘯 𝘭𝘪𝘯𝘦 𝘸𝘪𝘵𝘩 𝘴𝘦𝘤𝘵𝘪𝘰𝘯 28(3) 𝘰𝘧 𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯. 𝘕𝘰𝘸 𝘢𝘯𝘺 𝘱𝘦𝘳𝘴𝘰𝘯 𝘶𝘯𝘥𝘦𝘳 18, 𝘶𝘯𝘭𝘦𝘴𝘴 𝘮𝘢𝘳𝘳𝘪𝘦𝘥 𝘰𝘳 𝘦𝘮𝘢𝘯𝘤𝘪𝘱𝘢𝘵𝘦𝘥 𝘣𝘺 𝘰𝘳𝘥𝘦𝘳 𝘰𝘧 𝘤𝘰𝘶𝘳𝘵, 𝘪𝘴 𝘢 𝘤𝘩𝘪𝘭𝘥 𝘢𝘯𝘥 𝘢𝘯𝘺 𝘱𝘦𝘳𝘴𝘰𝘯 𝘰𝘷𝘦𝘳 18 𝘪𝘴 𝘢𝘯 𝘢𝘥𝘶𝘭𝘵.³ The obvious consequence of this change is that 18-year-olds will now be able to enter into contracts, get married, vote and/or even emigrate without their parents’ permission. However, this change is not without shortcomings. Young adolescents between 18 and 21 years of age are thereby deprived of the protection afforded to them by law,‏⁴ while there are still limitations based on age excluding them from certain juristic acts.⁵ This change also created discrepancies in the South African legal system regarding age as a factor influencing a person’s status. In terms of a “special trust”, an 18-year-old is afforded protection because of his age, but in terms of a “bewind trust”, that same 18-year-old has the capacity to terminate the “protection” created for him, on the basis of his newly acquired majority status.⁶ Such contradictions affect legislation and cause legal uncertainty. Some of the consequences relevant to the law of succession and the administration of estates will be discussed in this article.