JJS 2011 Volume 36 Issue 1

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http://hdl.handle.net/11660/2399

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    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.
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    Incorporating Africanness into the legal curricula: the case for criminal and procedural law
    (Faculty of Law, University of the Free State, 2011) Mollema, N.; Naidoo, K.
    English: Criminal and procedural law has recently come under scrutiny and been criticised as being the ‘white-man’s law’. The claim is that this academic discipline of law, as conceptualised and studied thus far, has remained too Eurocentric and lego-centric, incorporating only Western legal concepts and not embodying African values and cultures. Criminal and procedural law studies are described as Western concepts created from the viewpoint of a dominant Western culture which does not take sufficient cognisance of other cultural traditions and therefore lacks certain elements of legitimacy. There has been increasing pressure on these subjects to Africanise the law and to make it relevant to the greater South African population. Combining indigenous legal concepts and general legal theory, this article examines the current situation and endeavours to develop methods to account for the effect of African law on criminal and procedural law. The article concludes that recognition should be given to the Africanisation (or South Africanisation) of law. Law students need to be better equipped to understand the manifold pluralities within and between legal systems in order to produce lawyers and judges who are “thoroughly grounded in the cultural milieu of the society in which the courts are based”.
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    The juridification of sport: a comparative analysis of children’s rugby and cricket in England and South Africa
    (Faculty of Law, University of the Free State, 2011) Greenfield, S.; Osborn, G.; Rossouw, J. P.
    English: This article takes as its point of departure the notion of juridification in sport and, in particular, the perspective that the term has previously often been used in sport and law literature in a too narrow and limiting sense. Using the work of Ken Foster as a platform, the article examines a more nuanced notion of juridification. It does this by first unpacking two levels of juridification – the more well-known notion of increased legal intervention is considered before moving on to a more sophisticated application of the idea in terms of its impact upon rules and practices in sport. Foster termed this juridification as domestication. The article then applies these ideas in a practical context by examining two applications of the two children’s sports (rugby and cricket) in England and South Africa. The article concludes as to the future developments that are likely to occur. Despite the economic and cultural differences it seems likely that South Africa will continue to follow England, as is the case with the first level of juridification, and that the rules and their enforcement will themselves become more domesticated. It is likely that coaches and educators will find themselves under increased pressure to conform from both a general fear of litigation and a changing internal regulatory regime of sport codes.
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    The Jurisdiction of the Regional Courts Amendment Act, 2008: some implications for child law and divorce jurisdiction
    (Faculty of Law, University of the Free State, 2011) Sloth-Nielsen, J.
    English: The promulgation of the Jurisdiction of the Regional Courts Amendment Act, 31 of 2008 (hereafter the JRCAA) in 62 large urban magisterial districts on 9 August 2010 (Women’s Day) heralds a potentially drastic transformation of the practice of civil procedure in South Africa. This article focuses on its implications for family law and, especially, child law proceedings. The various dimensions of jurisdictional reform are first explained with reference to the Children’s Act 38 of 2005 and the JRCAA, whereafter their import is analysed. It will be questioned whether the provisions of the JRCAA were drafted with sufficient care, and why no reference was made to the provisions of the Children’s Act 38 of 2005. The potential difficulties occasioned by the new jurisdictional rules will be described. In conclusion, comments are made about the positive and less positive aspects of the JRCAA, and suggestions for reform are provided.
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    Noodtoestand en die aksie van afhanklikes: Maimela v Makhado Municipality 2011-5-20 Saaknr 269/10 (HHA)
    (Faculty of Law, University of the Free State, 2011-06) Neethling, J.; Potgieter, J. M.
    Afrikaans: Die eerste eiser (M) en ene D, die oorlede man van die tweede eiser (P), is deur skote getref wat afgevuur is deur die tweede verweerder (N), 'n werknemer van die eerste verweerder, 'n munisipaliteit. M het die skoot oorleef terwyl D gesterf het weens die wond wat hy opgedoen het. Die eisers stel 'n skadevergoedingseis teen die verweerders in, M weens die beserings wat hy opgedoen het, en P weens die verlies van onderhoud namens haar en haar vier kinders weens die dood van D met wie sy ingevolge 'n gewoonteregtelike huwelik getroud was. Die munisipaliteit word middellik aangespreek omdat N na bewering in die loop van sy diensbetrekking opgetree het, en N in persoonlike hoedanigheid. Die verweerders beroep hulle op noodweer en noodtoestand as verweersgronde.