JJS 2010 Volume 35 Issue 1

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    A critical study of the recurring problem of repudiation in the context of professional rugby in South Africa with particular emphasis on transformative constitutionalism
    (Faculty of Law, University of the Free State, 2010-06) Mould, K.
    English: Since rugby became a professional sport in the aftermath of the Rugby World Cup of 1995, the repudiation of sports contracts has become a general and recurring problem in the South African legal context. The legal problem of repudiation of sports contracts today is more prevalent than ever before, regardless of certain decisions wherein courts were willing to order coaches and players to specific performance of their contracts. This article attempts to find reasons for the courts' seeming unwillingness to grant orders of specific performance of sports (especially rugby) contracts, and suggests certain possible solutions to the recurring problem of repudiation in this context.
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    The Financial Reporting Standards Council and its role in terms of the Companies Act 61 of 1973 and the Companies Act 71 of 2008
    (Faculty of Law, University of the Free State, 2010) Schmidt, R.; Van Schalkwyk, C. J.; Sutherland, P.; Lowe, T.
    English: Both the Companies Act 61 of 1973 (hereinafter “the Companies Act 1973”) and the Companies Act 71 of 2008 (hereinafter “the Companies Act 2008”) provide for the Financial Standards Reporting Council (hereinafter “the Council”). However, its composition, function and legal form is different under each Act. While the Council was established statutorily as a juristic person under the Companies Act 1973, it will only be established by the Minister of Trade and Industry under the Companies Act 2008. Furthermore, it seems that whether the Council will be granted the status of a juristic person or not is at the Minister’s discretion. In contrast with the Companies Act 1973, the Council is thus no longer as autonomous. The Council’s role in standard setting has been diminished. It is to be a mere advisory forum to the Minister with nothing but non-binding drafting powers. Both the Companies Act 1973 and the Companies Act 2008 contain provisions regarding Financial Reporting Standards (hereinafter “FRSs”). In contrast to the vague provision in the Companies Act 1973, the Companies Act 2008 clearly sets out the legal status of FRSs. They will be regulations (in the form of Government Notices) and will thus be law (delegated legislation). The Council is an organ of state, however in drafting FRSs it does not perform “administrative action” in terms of section 1 of the Promotion of Administrative Justice Act 3 of 2000. The wording of the Acts “in accordance with the International Financial Accounting Standards” (section 440S(2) of the Companies Act 1973) and “consistent with the International Financial Accounting Standards” (section 29(5)(b) of the Companies Act 2008) allows for some discretion to be exercised in the drafting of South African FRSs. The current practice of the Accounting Practices Board to precisely replicate IFRSs is clearly not required by law. It is thus submitted that this practice seems too timid. Contrary to the wording “may” in section 29(4) of the Companies Act 2008, the Minister has no discretion as to whether or not to issue FRSs at all. Nor will an overly long delay in issuing FRSs be acceptable. This emanates from a purposive interpretation of section 29(4), read with sections 5 and 7 of the Companies Act 2008.
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    The four-year undergraduate LLB: progress and pitfalls
    (Faculty of Law, University of the Free State, 2010) Greenbaum, L.
    English: In this paper, the historical and contextual factors that resulted in a change from a postgraduate LLB to an undergraduate LLB, as the single qualification for lawyers in South Africa in 1997 as part of a national transformation agenda, are reviewed. It is timely to consider whether the motivating reasons for introducing a four-year degree, to enhance representivity within the legal profession and to reduce the cost of obtaining a legal education, have been met. Systemic and structural features of post-apartheid South Africa, which reflect the legacy of unequal educational provision, a vast socio-economic divide, and a divided legal profession, continue to hamper attempts to redress past imbalances. A failing school system, ongoing poverty, and the underpreparedness of increasing numbers of students gaining access to higher education have produced data that reveals high university drop-out rates, particularly for African students, and distressingly low levels of student success at tertiary institutions. Dissatisfaction amongst stakeholders regarding the quality of law graduates has added to the current impasse as to how legal education can most effectively be improved. The establishment of a new Ministry of Higher Education and the undertaking of a research project on the effectiveness of the law curriculum by the Council on Higher Education both promise some possibility of flexibility and change in the future.
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    The nature of the purpose requirement of an impermissible tax avoidance arrangement
    (Faculty of Law, University of the Free State, 2010) Van Schalkwyk, L.; Geldenhuys, B.
    English: The nature of an inquiry into the purpose requirement of an impermissible tax avoidance arrangement can either be objective or subjective. In essence, an objective inquiry has regard to the ‘effect’ of an arrangement, as opposed to a subjective inquiry which has regard to the taxpayer’s ipse dixit. Although the purpose requirement under section 103(1) was a subjective inquiry, case law decided under section 103(1) revealed that a taxpayer’s ipse dixit was weighed and tested against the surrounding facts and circumstances. This introduced an element of objectivity into the interpretation of the purpose requirement. Tax scholars have various opinions regarding the nature of the test in the new purpose requirement in sections 80A and 80G. It seems that the amendments to the purpose requirement merely confirm the approach which was applied by our courts under the repealed section 103(1). The nature of the purpose requirement, therefore, in essence, seems to have stayed unaltered.
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    The unborn and A, B, & C v Ireland: chronicles
    (Faculty of Law, University of the Free State, 2010-06) De Freitas, S. A.; Myburgh, G. A.
    A, B, and C v Ireland (ABC-case) arose from an application lodged on 15 July 2005 to the European Court of Human Rights, which was directly referred to the Grand Chambers (thus indicating the importance of the case) for a hearing which commenced on 9 December 2009. The complaints were briefly the following: the third applicant complained that the restriction on abortion, and the lack of clear legal guidelines regarding the circumstances in which a woman may have an abortion to save her life, infringed upon her right to life under Article 2 of the European Convention on Human Rights.