JJS 2003 Volume 28 Issue 1

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  • ItemOpen Access
    Groepsgedingvoering - die voorstel van die Suid-Afrikaanse Regskommissie vir die sertifisering van 'n groepsgeding
    (Faculty of Law, University of the Free State, 2003) De Bruin, J.
    English: In this contribution the proposals of the South African Law Commission for the certification of a class action are discussed. These proposals are the products of a working paper and a report published in 1995 and 1998 respectively. In both these documents the Commission proposed the promulgation of legislation to provide the necessary framework to govern class actions. The proposals are discussed with reference to the Class Proceedings Act (Ontario) and the Federal Rules of Civil Procedure (United States of America).
  • ItemOpen 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 returned
  • ItemOpen Access
    Conscientious objection and legal abortion in South Africa: delineating the parameters
    (Faculty of Law, University of the Free State, 2003) Ngwena, C.
    English: The purpose of this article is to delineate the scope and limitations of the exercise of the right to conscientious objection in respect of participation in abortion procedures under theChoice on Termination of Pregnancy Act. The Act is silent about the right to conscientious objection. However, section 15 of the South African Constitution in particular, implicitly accommodates conscientious objection to abortion. It is submitted that whilst the Choice on Termination of Pregnancy Act fails to provide the principles for determining the limits of the right to conscientious objection, guidance can be derived from section 36 of the Constitution. It is submitted that section 36 supports the limitation of the right to conscientious objection where maternal life or health is in serious danger or there is a medical emergency. Furthermore, it is argued that in the particular circumstances of South Africa, section 36 is also capable of supporting the imposition of a duty to at least provide the pregnant woman with information about where she might be able to obtain an abortion. It is noted that determining the parties that are entitled to conscientious objection beyond health care professionals that are immediately involved with abortion procedures can raise difficult issues. However, section 36 of the Constitution is, once again, a useful tool for resolving any difficulties in this regard.
  • ItemOpen Access
    Die vennootskap: goeie huweliksmaat met huwelik of konkubinaat?
    (Faculty of Law, University of the Free State, 2003-06) Snyman-Van Deventer, E.; Henning, J. J.
    English: In this article the legal position of people in a concubinate relationship after the breakup or dissolution of the relationship in the American, Dutch and South African law is compared. Various attempts in the American law failed to solve the problems that originate with the dissolution of marriages and concubinates or to establish a just and equitable system. In the Netherlands attempts were made to solve problems with living-together relationships, especially between members of the same sex. The South African courts have solved these problems by application of the partnership principles on these relationships through recognition of the universal partnership and its use as a just and equitable remedy.