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

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ISSN 2415-0517 (Online), ISSN 0258-252X (Print)

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Now showing 1 - 20 of 183

Open Access
Access to housing in South Africa: an overview of dimensions and mechanisms
(Faculty of Law, University of the Free State, 2011) Pienaar, J. M.
English: The historical background of influx control, group areas and the regulation of unlawful occupation of land (squatting), explain, to some extent, why unlawful occupation of land and informal settlements are still prevalent 18 years after the new Constitutional dispensation commenced. For many people in South Africa, access to land is still an ideal and not a reality. Not only have the “three pillars of apartheid” contributed to the dismal current state of affairs, but the multi-faceted and multi-dimensional nature of access to housing has also contributed to it being particularly complex. In this regard a human rights, a land reform and a property law dimension can be identified. The human rights dimension is imbedded in socio-economic rights and is founded on dignity; the land reform dimension is based on the premise that access to housing is interlinked with access to land, and the property law dimension involves the development of common law (Roman-Dutch) principles of property and ownership to provide for other (or alternative) forms of ownership. This article aims to provide an overview of the three-dimensional nature of access to housing and to highlight some of the mechanisms encapsulated within each dimension. An overview of statutory measures will be provided and, where relevant, certain aspects will be attended to in more detail. In light of its three-dimensional nature, it is clear that access to housing remains a major challenge for all role players involved.
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
Advantages and disadvantages of partial codification of directors’ duties in the South African Companies Act 71 of 2008
(Faculty of Law, University of the Free State, 2016) Coetzee, L.; Van Tonder, J. L.
This article offers a critical examination of partial codification and its effect on the interpretation of the directors’ standard of conduct provision. Previously, the fiduciary duties and the duty of care and skill were regulated by the common law and case law. In May 2004, the Department of Trade and Industry released a policy document entitled South African company law for the 21st century: Guidelines for corporate law reform. The policy document acknowledged that South Africa had no extensive statutory dispensation that covered the duties of directors. The policy document recognised the need to bring South African company law in line with international trends and to reflect and accommodate the changing environment for businesses locally and internationally. For the first time in South Africa’s corporate law history, the Companies Act 71 of 2008 partially codifies the fiduciary duties of directors, the duty of care and skill, and introduces the business judgement rule (also referred to as the ‘safe-harbour provisions’) into South African company law. The Companies Act 71 of 2008 prescribes certain duties and its extent, but the content of those duties, such as bona fides, is still determined by the common law.
Open Access
Application of the international classification of functioning, disability and health with specific focus on disabling hearing impairment in legislation and policy in South Africa
(Faculty of Law, University of the Free State, 2012) Smith, M.
English: Disability legislation faces two potentially contradictory perceptions. Persons with disabling hearing impairment (DHI) are committed to eradicating discriminatory attitudes and practices, and removing barriers to communication and integration. Legislation should be aimed at breaking down these barriers, and be designed to assist persons with DHI to overcome stereotyped assumptions about their disability and ability. To achieve these goals, a common framework for describing functional status information is needed in order to make this information comparable and of value. The World Health Organization’s International Classification of Functioning, Disability and Health (ICF), which has been approved by all its member states, including South Africa, provides a common language and framework to be used in legislation. This article analyses disability legislation in South Africa, with specific focus on DHI, in order to determine the application and definition consistency. It finds that some legislation includes some elements of disability. This endeavour may have extensive implications for the development of law and public policy to supplement the ICF and the Constitution of South Africa.
Open Access
Are the restrictive provisions of sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 unconstitutional?
(Faculty of Law, University of the Free State, 2006) McQuoid-Mason, D. J.
English: Sections 2(1)(c) and 5(5)(b) of the Choice on Termination of Pregnancy Act 92 of 1996 only allow a termination after the 20th week of gestation on very limited grounds. No provision is made for terminations of pregnancies arising from rape or incest. Therefore women survivors of rape or incest who, for reasons beyond their control, postpone their decisions to terminate until the third trimester will not qualify for a legal abortion unless they fall under the existing grounds in the Choice Act. The provisions of the Choice Act regarding the third trimester are more restrictive than those in section 3(1) of the Abortion and Sterilization Act 2 of 1975. The latter did not adopt a trimester approach and allowed a termination on the grounds of rape or incest at any stage of the pregnancy — subject to certain conditions concerning the verification of the cause of the pregnancy. By excluding rape and incest as grounds for termination of pregnancy in the third trimester the Choice Act imposes an “undue burden” on women who are survivors of rape or incest and their exclusion is unconstitutional.
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
Assessment 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.
Open Access
An assessment of life sentence without parole for people convicted of killing police officers on duty in South Africa
(Faculty of Law, University of the Free State, 2017) Magobotiti, C. D.
Like many societies, South Africa seeks to respond to the increasing killing of police officers, by exploring possible tough sentences. This article shows that sentencing does not take place in a socio-historical vacuum. It is concerned about sentencing proportionality as a limiting principle against possible excessive penal measures. In this article, life sentence without parole is assessed in terms of its justification and appropriateness. The article views life sentences as measures that require necessary parameters. It demonstrates that judicial decision-making is informed, inter alia, by different sentencing theories, and remains complicated.
Open Access
Die bepaling van die ‘sentrum van hoofbelange’ by oorgrens insolvensies: is die Parmalat-benadering voldoende om die behoeftes van moderne handel te bevredig?
(Faculty of Law, University of the Free State, 2011) Botha, S. J.; Stander, A. L.
English: Despite various viewpoints on the determination of the centre of main interest (COMI), the legal question in this investigation is whether, and to what extent, the approach in In re Eurofood IFSC Ltd (the Parmalat case) brings about an effective solution for the determination of the location of the COMI of individual companies, either unattached or as part of a group (in contrast with companies forming a so called economic unit). There exists a presumption that the COMI is situated there where the company’s registered office is. This is the physical factor in determining the COMI. There is also a mental or psychological factor. The COMI must correspond with the place which third parties (including foreigners) regard as the place where the debtor ordinarily manages its business and most prominent interests on a regular basis. If the registered office is situated at one place and the judgment of third parties with regard to the COMI is elsewhere, the presumption will not come into operation and the ordinary onus of proof will rest on the party concerned. If the subsidiary’s registered office and the opinion of third parties point to the same location (in order for the presumption to come into operation) the holding company should lead more substantial evidence so as to rebut the presumption. The presumption shall not be rebutted easily. An essential and delicate process of weighing up relevant factors should take place. The COMI must be identified with reference to criteria which are objectively foreseeable by all parties involved.
Open Access
Book Review: Religion and the exercise of public authority
(Faculty of Law, University of the Free State, 2017) Du Plessis, Georgia
Open Access
Breach of confidentiality and the duty to warn in medical law: examples from clinical psychiatry
(Faculty of Law, University of the Free State, 2006) Steyn, C. R.
English: This article addresses various factors involved in the tension that may arise between breach of confidentiality on the one hand, and dereliction of the duty to warn, on the other, in the context of medical law. Per illustration, examples from clinical psychiatric practice, in which the sharing of personal information is especially relevant, are featured. In sum, a practitioner must be reasonable in negotiating the proverbial tightrope: if he or she reveals too much, liability can arise, and, if he or she reveals too little, liability can arise. In medical law, the standard of reasonableness is measured with reference to “the reasonable practitioner”. Weighing up various factors (discussed herein), the reasonable practitioner takes confidentiality as the point of departure; only if there is a compelling reason to override confidentiality, will it afford legal justification to the practitioner.
Open Access
'But, where is the halaal food?' An appraisal of diversity teaching in clinical law programmes in South African clinics
(Faculty of Law, University of the Free State, 2008) Vawda, Y.
English: South Africa is renowned for its racial, cultural, linguistic and ethnic diversity. Our new democratic dispensation further aims to affirm this diversity, both in terms of the values underlying the Constitution as well as in the various programmes, policies and practices found in the public domain. In the tertiary education context and in particular within the law degree, much of the responsibility of teaching diversity issues falls on law clinics because of their access to the broader community through client service and other outreach activities. To what extent are they succeeding? This article explores the extent to which issues of diversity have been integrated into our clinical education programmes; the types of issues which arise in the course of our clinical work, and the measures that are in place in order to meet the challenges. It is based on an empirical study of South African law clinics, conducted between April and June 2007. It provides statistics, highlights some key problems and concerns, and concludes with recommendations for the further and structured integration of diversity issues in clinical curricula.
Open 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.
Open Access
Cautioning the careless writer: the importance of accurate and ethical legal writing
(Faculty of Law, University of the Free State, 2014) Van der Merwe, S.
English: Legal professionals are required to write ethically, skilfully and accurately. Growing concerns over the quality of graduated students entering the profession has led to an increased sensitivity about the teaching of writing skills. This article will not consider the how to, but instead focus on the issue of why legal writers should be vigilant in guarding against the proclivity to write in a careless manner. It will be argued that the results of careless legal writing could have devastating consequences for the legal professional’s career as well as his client’s wallet. Legal writing has to be professional and ethical and reflect the writer’s respect for his or her own workmanship as well as for the intended recipient. Careful legal writing aims to avoid misunderstandings and litigation and aids in developing and clarifying legal analysis. It recognises the permanent nature of what is being written and the persuasive potential innate to legal drafting. Responsible legal writers are mindful of the specific legal consequences of their writing and recognise that they have, in their writing, the ability to appeal to the aesthetic sensibilities of the reader.
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
Die Civil Union Act, Draft Domestic Partnership Bill en moontlike deregulering van die huwelik
(Faculty of Law, University of the Free State, 2009) Bakker, P.
English: The Civil Union Act 17/2006 is compared to the Marriage Act 25/1961 to determine whether similar life partnerships should be regulated by more than one act. Thereafter the Draft Domestic Partnership Bill is investigated to determine the intended future marriage law system of South Africa. It is clear from the discussion that a hierarchy of personal relationships exist. Such a hierarchy does not promote diversity and a meassure of deregulation of marriage is proposed as a more suitable solution.
Open Access
Clinical legal education: Identifying required pedagogical components
(Faculty of Law, University of the Free State, 2015) Du Plessis, M. A.
English: Clinical legal education is mainly a practical course, although it includes training in the substantive law. University law clinics generally have to satisfy two main objectives, namely teaching of students and service to the community. Clinical teaching methods can make distinctive contributions to student learning. Clinical pedagogy consists of three main categories, namely the clinic experience, classroom instruction and tutorial sessions. These, as well as specialised clinical units, are discussed. Clinic duties expose students to real consultations with live clients posing with real problems, ensuring a sustainable platform for teaching and learning. Classroom instructions are required for substantive law review and teaching in fields such as professionalism and ethics. Tutorials are the most focused form of instruction, where the clinical experiences and classroom instructions are transferred into legal practice.
Open 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.

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