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Item Open Access Disposing of property upon death: contemplating the act of gestation performed with animus testandi versus a contractual disposition in terms of a valid 𝘱𝘢𝘤𝘵𝘶𝘮 𝘴𝘶𝘤𝘤𝘦𝘴𝘰𝘳𝘪𝘶𝘮(University of the Free State, 2022) Faber, J. T.While the fate of assets upon death is generally decided under the law of succession, it does not have to be. In addition to a valid will (testate succession), succession could also be governed by contract, in terms of a valid 𝘱𝘢𝘤𝘵𝘶𝘮 𝘴𝘶𝘤𝘤𝘦𝘴𝘴𝘰𝘳𝘪𝘶𝘮 (currently either a 𝘥𝘰𝘯𝘢𝘵𝘪𝘰 𝘮𝘰𝘳𝘵𝘪𝘴 𝘤𝘢𝘶𝘴𝘢 or an antenuptial contract containing succession clauses). (Intestate succession, although a third option, is put aside for present purposes.) Both testate and contractual succession require an expression of intention in the form of a legally recognised act. The dispositive act in these two instances shares certain features. In both, the act involves a disposition of property intended to apply upon death and is obligationary. The vesting of rights in both can also only occur upon death, while assets are transferred by the appointed executor who administers the estate. Yet the essence of the dispositive act renders these two forms of succession fundamentally different. Contractual succession, with an agreement as the dispositive act, operates under the law of contract. Since the disposition is contractual, it needs to comply with the requirements for a valid contract, with 𝘢𝘯𝘪𝘮𝘶𝘴 𝘤𝘰𝘯𝘵𝘳𝘢𝘩𝘦𝘯𝘥𝘪 as the defining form of intention. Testate succession is governed by the law of succession, with 𝘢𝘯𝘪𝘮𝘶𝘴 𝘵𝘦𝘴𝘵𝘢𝘯𝘥𝘪 being the required intention. 𝘈𝘯𝘪𝘮𝘶𝘴 𝘵𝘦𝘴𝘵𝘢𝘯𝘥𝘪 turns the dispositive act into an act of testation, which, in turn, renders the document in which it is embodied a will. Although this distinction seems straightforward enough, South African law is yet to reflect it. This shortcoming results in legal uncertainty, which creates new challenges in light of the court’s power of condonation. This article focuses on the different dispositive acts to shed light on the intention associated with each and, specifically, to clearly distinguish between 𝘢𝘯𝘪𝘮𝘶𝘴 𝘤𝘰𝘯𝘵𝘳𝘢𝘩𝘦𝘯𝘥𝘪 and 𝘢𝘯𝘪𝘮𝘶𝘴 𝘥𝘰𝘯𝘢𝘯𝘥𝘪 in a contractual disposition, and 𝘢𝘯𝘪𝘮𝘶𝘴 𝘵𝘦𝘴𝘵𝘢𝘯𝘥𝘪. Ultimately, a clear distinction between the intentions will enable a better understanding of the applicable act of disposition. Admittedly, the intention will probably remain central in the event of uncertainty, and the surrounding circumstances will still be decisive in determining it. However, it is suggested that an added focus on the act – assessing it in terms of its essence and associated form of intention – will make for a considerably easier investigation than a sole focus on intention.Item Open Access Die behoefte aan ’n wyer artikel 2(3) van die Wet op Testamente 7 van 1953 (soos gewysig): ’n Kritiese beskouing(University of the Free State, 2004) Faber, J. T.; Rabie, P. J.Die Hoogste Hof van Appél se uitspraak in 𝘉𝘦𝘬𝘬𝘦𝘳 𝘷 𝘕𝘢𝘶𝘥𝘦 𝘦𝘯 𝘈𝘯𝘥𝘦𝘳𝘦 2003(5) SA 173 (HHA) het die posisie aangaande die toepassing van artikel 2(3)van die 𝘞𝘦𝘵 𝘰𝘱 𝘛𝘦𝘴𝘵𝘢𝘮𝘦𝘯𝘵𝘦 7 van 1953 (soos gewysig)¹ duidelik uiteengesit enalle onsekerheid uit die weg geruim. Voor hierdie uitspraak het die interpretasie van artikel 2(3) totregsonsekerheid gelei.Die howe het twee benaderings ‘ontwikkel’, naamlikdie ‘eng’ en ‘liberale’ (‘soepel’) benaderings.² In die 𝘉𝘦𝘬𝘬𝘦𝘳-𝘴𝘢𝘢𝘬 het appélregterOlivier beslis dat slegs die kondonasie van testamente wat persoonlik deurdie oorledene³ opgestel, geskryf, getik, tot stand gebring of verly is, toegelaatsal word. Alhoewel daar saamgestem word met regter Oliver se interpretasievan artikel 2(3) sal daar in hierdie skrywe gepoog word om die deur vir ’n‘wyer’ of ‘liberale’ artikel 2(3) oop te maak.Item 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 TheunisOn 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.Item Open Access The (non-)recognition of same-sex marriage in the recognition of Customary Marriages Act 120 of 1998(University of the Free State, 2019) Müller-Van der Westhuizen, C.; Meyer, S. L.The Constitution of the Republic of South Africa, 1996 provides for all people to be equal, including people of all sexual orientations, and at the same time guarantees the right to participate in the cultural life of one’s choice. This contribution examines the issue of same-sex marriage in South Africa through the combined lens of the right to equality and the right to culture. More specifically, it assesses whether same-sex couples are afforded the right to marry in accordance with their customary cultural beliefs and whether same-sex customary marriage is provided for in the Recognition of Customary Marriages Act 120 of 1998. Following an analysis of Constitutional Court jurisprudence on the right to equality and to culture, certain provisions of the Recognition Act are examined for their in-/exclusion of homosexual persons. It would appear that the only gender-neutrally phrased section in the Recognition Act dealing with customary marriages in particular is sec. 3, which lists the requirements for such marriages to be valid. Whether this was an oversight on the part of the legislature, or whether it was intentional, is uncertain. However, several other sections, notably also the definition of lobolo in sec. 1, are phrased from a distinctly heteronormative perspective. A subsequent discussion of homosexual practices in Africa serves a dual purpose. It not only debunks some prominent African leaders’ contention that homosexuality is “un-African”, but also reveals that homosexual marriage along with a number of ancillary same-sex forms of customary marriage are not catered for in the provisions of the Recognition Act. In light of these findings, the contribution concludes with recommendations for the improvement of the Recognition Act to be less exclusionary and discriminatory. It is further argued that, by adjusting the phrasing of the Act, the South African legislature stands to gain much more than affording same-sex couples recognition in customary law. It would also go a long way towards promoting a culture of tolerance towards all people, in line with what the Constitution demands.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 Vonnisbespreking: die onsekerhede aangaande die toepaslike huweliksgoederebedeling (s) in poligame gewoonteregtelike huwelike by nienakoming van artikel 7 (6) van die Wet op Erkenning van Gebruiklike Huwelike(LitNet, 2014-03) Müller-van der Westhuizen, CarolineThe uncertainties regarding the applicable matrimonial property system(s) in polygamous customary marriages upon non-compliance with section 7(6) of the Recognition of Customary Marriages Act This discussion assesses whether section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 should be interpreted as a requirement for a valid subsequent customary marriage, in light of recent judgments of the North Gauteng high court, the supreme court of appeal and the constitutional court, all in respect of Ngwenyama. The purpose of the discussion is to critically examine the uncertainties surrounding the matrimonial property system(s) that arise in polygamous customary marriages should section 7(6) not be complied with. The discussion is based primarily on the decision of the Supreme Court of Appeal in Ngwenyama that section 7(6) is not a requirement for a subsequent customary marriage to be valid, but also considers the judgments of the high court and constitutional court respectively. However, in analysing these three judgments, it becomes clear that the matter is all but clear-cut and that non-compliance with section 7(6) does have problematic consequences. The case law under discussion contemplates the following scenario: Where a husband marries his first wife without an antenuptial agreement the marriage will be a marriage in community of property. This is in terms of section 7(2) of the act. However, if he marries a second woman and complies with section 3 but not with section 7(6), it may be that the husband will be married simultaneously both in and out of community of property. The second marriage will be a marriage out of community of property, but with no written document to this effect. This may potentially cause great uncertainty pertaining to matrimonial property. It is proposed that registration of a contract which regulates the matrimonial property system of a polygamous customary marriage must be a requirement for a further customary marriage. This is to ensure legal certainty in such marriages. But section 7(6) needs to be amended to place an obligation on both the man and the prospective wife to register such a contract. However, if the prejudices that might be suffered in instances where there is non-compliance with such a section are taken into account, the answer the courts are looking for might be to declare the subsequent marriage to be a putative one.Item Open Access Is 'n prokureur geregtig op die koste van geregtelike stappe teen 'n voormalige kliënt?: kronieke(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.Abstract not availableItem Open Access The nature and essence of right and duty as the moral-ethical foundation of Rosmini's jural principles fundamental to human rights(Faculty of Law, University of the Free State, 2008) Swartz, N. P.English: According to Rosmini duty precedes right. Without duty preceding right it would be impossible to form a concept or idea of right. As stated by Rosmini, the concept of right is encapsulated within the idea of duty. Each right thus has a duty that counters it. If a human being loves his fellow man, he will fulfill his obligations towards that person. By carrying out the command of love, a person will not be able to wrong his fellow man. On the grounds hereof the decree of love and social beneficence underwrite, in the context of Rosmini all rights and duties, that of the State and of the individual. With regard to Thomas Aquinas, the rights and duties of the individual would be neglected, while that of the State, under the guise of Salus reipublicae supreme lex, would be stressed. The latter pave the way for human rights infringements, that is in contradistinction with the South African (Bill of Rights) Constitution and the Eighth and Fourteenth Amendments of the American Constitution.Item Open Access Calvyn die juris: kroniek(Faculty of Law, University of the Free State, 2001) Wessels, H. A.; De Bruin, J. H.Abstract not availableItem Open Access Wat is die betekenis van boerdery vir inkomstebelastingdoeleindes?(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.English: The question is frequently asked whether certain activities by a taxpayer may be regarded as farming for income tax purposes. If so, certain farming expenses will be allowed as deductions in terms of the First Schedule to the Act which otherwise would not have been the case. Having indicated how the taxable income of a taxpayer is calculated, the definition of a trade is referred to. The meaning of farming is not defined, but in s 26 reference is made to pastoral, agricultural and other farming operations. There are certain sections in the Act, paragraphs in the First Schedule to the Act and practice notes which refer to certain types of farming activities. Reference is also made to the interpretation of farming by our courts (High and Special Courts) and the findings of the Special Boards. The viewpoints of several authors are also discussed. Additional examples of farming activities are given and the standard bona fide farming questionnaire by the SAIS is examined. The exigency of a feasibility study is emphasised to determine the viability of a proposed farming project. The following two-pronged test is advocated (i) did the taxpayer genuinely intend to farm and (ii) did he have a reasonable prospect of making a profit from the farming activities in the foreseeable future?Item Open Access Thomas Aquinas oor die aborsie-debat en die Kerk magesterium(Faculty of Law, University of the Free State, 2007) Swartz, N. P.English: Thomas of Aquino’s exchange of ideas and the church magesterium present an ex h a ustive overv i ew for the implementation of the dignity of human life.The result of such an exchange of ideas causes the church magesterium to oppose every threat to human life from the moment of conception. The threat to human life is most intense at the point where life begins — at that stage where it is at its most defenceless. It is, for example, pre-natal. It is at this moment when humans are totally dependent on the goodwill and care of others. The church magesterium attempts to have an awareness of a “culture of life” take hold in civil society. By having created the human soul, God clothed humans in godliness. Human life, therefore, has a sacred and inviolable quality. The inviolate quality of human life is guaranteed by the Constitution of South Africa. It guarantees the equality of all in law, also that of the fo e t u s.Should there be any violation of this right, it would have farreaching implications for political civil society. Humankind is obliged to respect life. It expresses humankind’s relationship to fellow-man: and it is valid from the first moment of conception through to adulthood. The foetus also is a fe l l ow human being and his or her rights should be respected just as the case would be with every other human being.Item Open Access Die verhouding tussen 'n klient, sy regsverteenwoordigers en derde partye(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.English: The development of the contract of mandate (mandatum) between a client and his attorney as well as his advocate is discussed. Reference is also made to representation. The core of the client’s privity of contract with other parties consists of mandate and representation. Customs and usages are not referred to in this article. Other key concepts are also discussed. Delegation of authority is however the focus point and is based on consensual relations. There are two agreements which must show the intention to create privity of contract (a) the mandate between client and attorney and (b) the mandate between the attorney and other parties. A case study is given the facts of which are used to analyse the legal relationship between the following parties: the client, his country and city attorneys, his advocate and also a third party who is a debtor of the client.Item Open Access Multiple marriages, burial rights and the role of lobolo at the dissolution of the marriage(Faculty of Law, University of the Free State, 2003) Jansen, R-M.English: This paper highlights three aspects which have an impact on both customary and common law that came to the fore in the Thembisile case. An evaluation of the way in which the court dealt with the different aspects is made. Regarding multiple marriages, where a civil marriage is also involved, it is suggested that the courts should be hesitant to simply declare either the civil or the customary marriage a nullity and should consider the different options available first. Where a funeral is marred by feuds about burial rights, it is suggested that a flexible approach should be followed. Strict adherence to common law principles could lead to unreasonable and inequitable results, especially in traditional communities. Lastly, there seems to be conflict between the official customary law and the living law regarding the return of the lobolo at the dissolution of a customary marriage. Empirical research should be undertaken to determine whether lobolo is in fact still returnedItem Open Access Seksuele teistering in die werkplek: 'n Suid-Afrikaanse perspektief(Faculty of Law, University of the Free State, 2004) Snyman-Van Deventer, E.; Du Plessis, J. V.; De Bruin, J. H.English: Sexual harassment in the workplace is a grave problem and it significantly impedes on a person's entrance into many sectors of the wage labour market. The number of sexual harassment complaints increases dramatically every year, although researchers estimate that 80 to 90% of sexual harassment cases go unreported. Despite the high figures, few South African court cases and legal literature deal with sexual harassment. The reason for this is that few persons who are harassed report a case for fear that they will lose their jobs or that they will become sources of ridicule. Sexual harassment is an infringement upon a person's personality and thus an iniurandi. The South African Constitution determines that there shall not be discriminated against any person and that includes a person's right to work without harassment and discrimination. It is therefore necessary that all employers ensure a safe environment without discrimination for all employees. Employers must adopt a policy on sexual harassment, communicate it to all employees and ensure that the policy be adhered to. If harassment does take place, the procedure and disciplinary process prescribed in the policy must be enforced.Item Open Access A note on the history of the Faculty of Law of the University of the Free State(Faculty of Law, University of the Free State, 2004) Henning, J. J.; De Bruin, J. H.; Wessels, H. A.Abstract not availableItem Open Access Hospital disclaimers: Afrox Health Care v Strydom: chronicle(Faculty of Law, University of the Free State, 2003) Jansen, R-M.; Smith, B. S.Abstract not availableItem Open Access Wapenbeheer: die posisie van die wapeneienaar in Suid-Afrika(Faculty of Law, University of the Free State, 2005) De Klerk, H. M.; Jansen, R-M.English: The position of the gun-owner was changed drastically when the Firearms Control Act60 of 2000 took effect on 1 July 2004. This Act repealed the Arms and Ammunition Act75 of 1969; the latter Act had regulated the possession of arms and ammunition since 1972. The Firearms Control Actis strict and detailed, and was amended a number of times by ministerial regulations before it came into force. It is obvious that an arms license is not easily obtainable, and gun-owners are concerned about these strict provisions. This article deals, first, with the position of the gun-owner in terms of the Arms and Ammunition Actand possible reasons for repealing this Act are indicated; secondly, the position of the gun-owner under the Firearms Control Actis scrutinised. Both the benefits and disadvantages of the new legislation are examined and recommendations are made.Item Open Access The need for legislative reform regarding the authorisation of trustees in the South African law of trusts(Faculty of Law, University of the Free State, 2007) Smith, B. S.; Van der Westhuizen, W. M.English: According to section 6(1) of the Trust Property Control Act 57 of 1988, all trustees to whom the Act applies 'shall act in that capacity only if authorized thereto in writing by the Master' of the High Court. The requirement of written authorisation has, however, not been interpreted and applied by the South African judiciary in a consistent fashion, leading to uncertainty regarding the precise ambit of the section and the consequences of non-compliance therewith. This contribution analyses these inconsistencies and concludes that legislative intervention along the lines of pre-formation contracts as provided for in both company law and the law of close corporations may provide an adequate solution to the problems faced by both the parties to the trust and the outsiders who deal with them.Item Open Access Professionele aanspreeklikheid van ouditeure teenoor derdes op grond van nalatigheid(Faculty of Law, University of the Free State, 2004) Strauss, P. M. S.; Jansen, R-M.; Lubbe, D. S.English: People in the professional occupations such as auditors, lawyers, architects and engineers have a duty to treat their clients with solicitude. This duty arises from the nature of their calling and from the professional service that they offer their clients. This has led to the situation where members of the professions have increasingly been held responsible for damage suffered by third parties as a result of the neglect of their professionally inherent obligation of solicitude. Fraud scandals, such as those of Enron in the USA and Masterbond, PSC Guaranteed Growth and Tigon locally, have once again caused the focus to fall upon the professional responsibility of auditors.The question that is increasingly being asked is: when and under what circumstances will an auditor be held responsible towards a third party in his professional capacity for the negligent performance of his duties? For the purposes of this article, the focus will only be placed on the responsibility of the auditor on the grounds of his duty to report in terms of section 300 of the Companies Act. The distinctive rules and also the specific application of the general principles of delict in such cases are discussed in this article.Item Open Access The recognition of Customary Marriages Act: many women still left out in the cold(Faculty of Law, University of the Free State, 2002-12) Jansen, R-M.English: This paper focuses on the position of women in monogamous customary marriages concluded before the commencement of The Recognition of Customary Marriages Act, 120 of 1998. This Act alleviated (on appearances) the subordination and inferior status of women in cutomary law. Sec 6 specifically stipulates that a wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial system governing the marriage, full status and capacity. According to sec 7 the proprietary consequences of marriages entered into before the commencement of the Act continue to be governed by customary law. However, the question arises - what is the point of sec 6 granting a wife equality with her husband and the capacity to acquire assets, but still subject to the customary law which places the marital property under the control and almost complete discretion of her husband? Many of the sections of the Divorce Act and the Matrimonial Property Act (which was introduced mainly to improve the postion of women) are also only applicable to customary marriages entered into after the commencement of the Act. It is submitted that arguments which supported a retrospective change to proprietary regimes, should have been adopted in the legislation. Sec 7(1) of the Act should be amended to provide that a monogamous customary marriage entered into before the commencement of the Act, is a marriage in community of property and of profit and loss.