JJS 2016 Volume 41 Issue 1
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Item Open Access Customs searches: past, present and future(Faculty of Law, University of the Free State, 2016) Fritz, C.English: The South African Revenue Service is afforded the power to conduct customs searches in order to verify compliance. This article deals with the development of this power, taking into consideration a taxpayer’s constitutional rights. It discusses the customs search provisions prior to the Tax Administration Law Amendment Act, and thereafter, as well as the customs search provisions in terms of the Customs Control Act. The article addresses whether these developments can be considered constitutionally sound. In order to evaluate constitutionality, a constitutional search framework is developed within which searches should be conducted to pass constitutional muster. Comparing this framework with the present customs search provisions leads to the conclusion that the present customs search provisions are a substantial improvement on the previous provisions and that the provisions are constitutional. The same conclusion can, however, not be reached with regard to future customs search provisions in terms of the Customs Control Act.Item Open Access Die interpretasiereël in die Suid-Afrikaanse kontraktereg (Deel 1)(Faculty of Law, University of the Free State, 2016) Bekker, T.English: The parol evidence rule in the South African law of contract consists of two different subrules. The one subrule deals with the extent to which a written contract may be regarded as the sole memorial of its terms and will be referred to as the “integration rule” in this article. Closely related to the integration rule is the socalled “interpretation rule”. The narrow definition of this rule entails that no evidence may be adduced to alter the clear and unambigious meaning of a written or verbal agreement. There is, however, also a wider definition that may be attributed to the interpretation rule, namely that it entails when and to what extent extrinsic evidence may be adduced to explain or alter the wording of a contract. In the past decades, there has been a development in the application of the interpretation rule in the South African law of contract from a strict formalistic textual approach to a more liberal contextual approach in terms of which more extrinsic evidence is allowed in order to interpret the written contract between the parties. In the first part of this article, the subjective and objective approaches to interpretation will be contrasted and the historical background of the interpretation rule will be briefly discussed. There will also be a critical analysis of the development and current application of the interpretation rule in the South African law of contract.Item Open Access Engagement of prosecutors not in the employ of the National Prosecuting Authority(Faculty of Law, University of the Free State, 2016) Tshehla, B.English: This article focuses on the engagement of prosecutors not in the employ of the National Prosecuting Authority (NPA) to prosecute certain cases. Such prosecutors are appointed in terms of section 38 of the National Prosecuting Authority Act 32 of 1998. The article starts by presenting a number of recent court decisions that dealt with the application of this section and contextualises the decision of the Supreme Court of Appeal (SCA) in Moussa v S. Given that it was in Moussa that the constitutionality of the section was challenged, the approach of the SCA and the reasons for its decision are discussed. It is submitted that the SCA’s decision is a welcome step, in that the court has pronounced itself definitively on the constitutionality of the section and also outlined the approach to be used in determining which appointments of prosecutors, in terms of the section, are acceptable and which are not. In particular, the article explains the test to be used in making that decision.Item Open Access Practical challenges relating to the supervision of small estates(Faculty of Law, University of the Free State, 2016) Muller-Van der Westhuizen, C.; Nhlapo, Z.Previously, the supervision of the administration of deceased estates was divided along racial lines. Law reform has, however, seen the establishment of a single system that is fair to all South Africans – or is it? Following a brief contextualisation of the legal position on the supervision of deceased estates prior to, and following the definitive Moseneke judgement of 6 December 2000, this article sets out to examine whether the equality envisaged by that judgement and recent legislation pertaining to the supervision of small estates is actually being achieved. The research reveals some practical challenges, including poor service delivery at service points; banks renouncing their nomination as executor of small estates for a lack of sufficient financial benefit; the non-registration of customary marriages; the poor protection currently afforded to vulnerable minor beneficiaries of deceased estates, and the lack of a more affordable, accessible way than lengthy and costly court procedures to challenge a decision of the Master of the High Court. To address these challenges, it is recommended that service point infrastructure be strengthened; that banks be required to communicate more openly with their clients; that extensive awareness campaigns be launched on the urgent need for all customary marriages to be registered; that the agreement between government and Legal Aid South Africa, which is supposed to serve minor beneficiaries of deceased estates, be revisited, and that the possibility of an estate ombudsman be explored.Item Open Access Prosecuting "hate": an overview of problem areas relating to hate crimes and challenges to criminal litigation(Faculty of Law, University of the Free State, 2016) Naidoo, K.; Karels, M. G.English: Several calls, from a wide spectrum of sectors for the enactment of hate-crime legislation in South Africa, suggest that there is limited knowledge about the theoretical underpinnings of this area of criminal law and of the practical problems associated with the implementation of hate-crime laws. This submission briefly examines the origins of hate-crime laws and attempts, by using existing American sources, to provide a conceptual framework for hate crimes. The different models of hate-crime laws, definitional issues and the controversies associated with hatecrime laws are considered. These controversies include disagreements about the use of the term ‘hate’, the inclusion of victim categories, and the consideration of motive as a requirement of hate crimes. The article also considers practical problems associated with the implementation of hate-crime laws. These problems could commence at the complaint stage when evidence of bias has to be established by law-enforcement officers, and extend to the trial stage, when the role of victims must be considered, when plea bargaining is a possibility and when bias has to be proved in court.Item Open Access Review: Perspectives on the law of partnerships in South Africa(Faculty of Law, University of the Free State, 2016) Rider, BarryAbstract not availableItem Open Access Die strafregtelike aanspreeklikheid van regspersone: lesse uit Kanada(Faculty of Law, University of the Free State, 2016) Du Toit, P. G.English: This contribution investigates the basis for the criminal liability of juristic persons in Canada in an attempt to gain lessons for South Africa. The Canadian position acknowledges both the fragmented nature of corporate decision-making and the reality that the collective efforts of a number of corporate role players may cause criminal conduct. Furthermore, the conduct and fault elements of corporate criminal misconduct do not have to be found in one individual. The conduct of a representative of the corporate entity may be regarded as the conduct of the corporation, whilst the fault requirement may be found to be the level of management. This approach, although not entirely ‘realistic’, takes into account the nature of modern corporate entities much better than traditional individualistic approaches to corporate criminal liability.