JJS 2017 Volume 42 Issue 1

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Recent Submissions

Now showing 1 - 8 of 8
  • ItemOpen Access
    Book Review: Religion and the exercise of public authority
    (Faculty of Law, University of the Free State, 2017) Du Plessis, Georgia
  • ItemOpen Access
    Constructive dismissal arising from work-related stress: National Health Laboratory Service v Yona & Others
    (Faculty of Law, University of the Free State, 2017) Tshoose, C.
    Abstract not available
  • ItemOpen Access
    Condonation confusion
    (Faculty of Law, University of the Free State, 2017) Schoeman-Malan, L.
    Some problems have arisen with the interpretation of the formalities for the execution of wills in sec. 2(1) of the Wills Act 7 of 1953. The courts were given the power of condonation in sec. 2(3) of the Act to prevent wills from being declared invalid when some of the formalities had not been complied with. The provisions in sec. 2(3) appear to be controversial. The basic principles have become the subject of continuing debate through case law. The High Courts constantly disagree when they have to interpret the basic principles for the condonation of non-compliance with formalities. The reform envisaged by the legislator at the outset has not resulted in a satisfactory solution. Sec. 2(3) has been deliberated from every possible perspective. Despite Supreme Court of Appeal judgements on the interpretation of concepts such as ‘document’, ‘drafted or executed’ and ‘intention’, sec. 2(3), in its current form, can never provide for all possibilities. The more one analyses and discusses sec. 2(3), the more indistinguishable the interaction between the applicable principles becomes. This article discusses recent cases that have come before the Gauteng High Court in Pretoria, in which two vastly different sets of facts resulted in identical judgements on sec. 2(3). This inquiry reveals that practical challenges remain for the courts and it is concluded that urgent intervention by the legislature has become a necessity.
  • ItemOpen 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.
  • ItemOpen Access
    Compulsory HIV testing of child sex offenders in the South African criminal justice system
    (Faculty of Law, University of the Free State, 2017) Pienaar, L.; Karels, M. G.
    The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 established unique procedural mechanisms for the processing of sexual offence cases and for the protection of victims. One such procedure relates to compulsory HIV testing of an alleged offender on application by the victim or a police official. This article is a theoretical exploration of Chapter 5 of the Sexual Offences Act, and the Children’s Act 38 of 2005 as they pertain to HIV testing of children, juxtaposed against the Child Justice Act 75 of 2008. The submission concedes that Chapter 5 of the Sexual Offences Act is applicable to child offenders. The authors, however, argue that child offenders are procedurally sui generis in the criminal justice process and resultantly the prescripts of Chapter 5 of the Sexual Offences Act are at odds with the position of a child offender within the protections of the Child Justice Act, insofar as effective protection of the best interest standard is concerned.
  • ItemOpen Access
    The use of electronic discovery and cloud computing technology by lawyers in practice: lessons from abroad
    (Faculty of Law, University of the Free State, 2017) Cassim, F.
    In the present electronically driven world, it is vitally important for lawyers to understand advancing or new technology and to have adequate computer literacy in order to best represent their clients. The so-called “e-information explosion” requires lawyers to request, produce and manage electronic documents in order to protect their clients’ interests and to obtain a strategic advantage over their opponents. Lawyers or legal practitioners should adapt to technological changes, develop an awareness of the unique challenges posed by the advances in technology, and embrace technology’s role in both their practices and the legal system. This article examines issues pertaining to electronic discovery and cloud-computing technology in civil practice in South Africa, the United States of America and the United Kingdom. The article also examines current electronic discovery (e-discovery) practices and the use of cloud-computing technology in the United States of America and the United Kingdom to ascertain whether useful lessons can be gleaned from these jurisdictions for possible incorporation into South African law. The study notes that, while South African law has taken great strides to address advancing technology, useful lessons from abroad can be adopted such as, inter alia, the need for greater preservation of electronic evidence; the use of a wider definition of the term ‘document’ to include all types of electronic information and future technological developments; the amendment of the rules to include the discovery of electronically stored information; the use of the proportionality principle in trials, and the incorporation of the cost-shifting regime. The article concludes that lawyers need to learn more about relevant law such as the ECT Act and POPI, and embrace advancing technology more enthusiastically, yet responsibly, in order to succeed in their new competitive and changing legal environments and to provide the best service for their clients.
  • ItemOpen Access
    Statutory discretion or common law power? Some reflections on “veil piercing” and the consideration of (the value of) trust assets in dividing matrimonial property at divorce – Part Two
    (Faculty of Law, University of the Free State, 2017) Smith, B. S.
    Although it is an entrenched principle of company law that the abuse of corporate personality may require the “corporate veil” of a company to be “pierced”, this possibility has only recently become a feature of South African trust law. While this is a salutary development in theory, the application and practical usefulness of this remedy remain shrouded in uncertainty. A particularly acute manifestation hereof arises where it is argued that (the value of) trust property should be considered for the purposes of dividing matrimonial property at divorce. By drawing on the established principles of “piercing” in the company context and analysing relevant case law, Part One of this article (that appeared in the December 2016 issue of this journal) concluded that the prevailing position in respect of trusts neither accords with the principles of proper trust administration nor gives effect to the legal obligations imposed on divorcing spouses by matrimonial property law. More specifically, it was argued that, while piercing the trust veil is a power that is derived from common law (as opposed to legislation), the actual exercising of this power in a divorce context is dependent on a nexus provided by the matrimonial property regime in question. From this platform, Part Two of the article provides perspectives on how the property of an abused trust should be dealt with in divorces involving the three major matrimonial property regimes that are recognised by South African family law. Potential litigation based on these contentions should contribute towards rectifying the unsatisfactory legal position that prevails.