JJS 2010 Volume 35 Issue 2

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  • ItemOpen Access
    Israel attacks an ‘aid’ flotilla bound for Gaza: a dark day for international law
    (Faculty of Law, University of the Free State, 2010) Bosch, S.
    This paper examines the Israeli raid on six aid vessels bound for Gaza on 31 May 2010, in light of customary International Humanitarian Law (IHL). In exploring the international law implications of these events, the concepts of a legal maritime blockade and the use of force to impose such a blockade are unpacked. The article considers whether the use of force by the civilians on board the vessels amounted to ‘direct participation in hostilities’, and whether either side might have a legitimate claim to have acted in self-defence. Lastly, the obligations placed upon belligerents when they detain civilians are examined, in light of the fundamental guarantees of humane treatment enshrined in IHL.
  • ItemOpen Access
    Lessons from Bayh-Dole: reflections on the Intellectual Property Rights from Publicly Financed Research and Development Act
    (Faculty of Law, University of the Free State, 2010) Barratt, A.
    English: The Intellectual Property Rights from Publicly Financed Research and Development Act 51 of 2008 promotes patenting and commercialisation of state-funded science. The Act is similar in scope and objective to the American Bayh-Dole Act. This article explores some of the problems created or exacerbated by the Bayh-Dole Act. Traditionally, American innovation was based on a philosophy of open science. Universities conducted basic foundational research which was freely available to others who wanted to commercialise and build on it, or use it for further scientific research. The Bayh-Dole Act changed the model of science to a proprietary model. One of the problems this created was increased patenting of foundational research tools such as genes and cell-lines, which follow-on researchers require for their own research. Sometimes, research has been blocked or impeded by an inability to obtain research licences to patented research on reasonable terms. The Act has also had a negative effect on scientific collaboration and publishing. The article examines whether South Africa’s Intellectual Property Rights from Publicly Financed Research and Development Act has been able to avoid the most serious of the Bayh-Dole pitfalls.
  • ItemOpen Access
    Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & Another (Trustees of the Hoogekraal Highlands Trust & SAFAMCO Enterprises (Pty) Ltd (amicus curiae); Minister of Agriculture & Land Affairs (intervening)) [2008] JOL 22099 (CC)
    (Faculty of Law, University of the Free State, 2010) Olivier, N. J. J.; Williams, C.
    English: of Agriculture, Forestry and Fisheries has to authorise, in writing, every application for the subdivision of agricultural land. The following proviso was added to the definition of ‘agricultural land’ in the Act in 1995: “Provided that land situated in the area of jurisdiction of a transitional council as defined in section 1 of the Local Government Transition Act, 1993 (Act No. 209 of 1993), which immediately prior to the first election of the members of such transitional council was classified as agricultural land, shall remain classified as such.” The question that arose in this case was whether the proviso only existed during the lifetime of transitional councils. An affirmative answer to the above question would result in the de facto and de jure implicit termination (and disappearance) of agricultural land as a category in South African law and, consequently, of the Minister’s power to approve any subdivision of agricultural land. A negative answer would imply that agricultural land remains as a category, that the provisions of SALA need to be complied with, and that the Minister’s written approval needs to be obtained for each and every application for subdivision of agricultural land. This article contends that the Constitutional Court was correct in finding that the proviso (and the Act) is still applicable today.
  • ItemOpen Access
    Dying to starve: a comparative analysis of legal aspects relating to consent in force-feeding of both minor and adult anorexic patients
    (Faculty of Law, University of the Free State, 2010-12) Karels, M. G.; Oosthuizen, H.
    English: The authors explore the legal complexities surrounding the force-feeding of anorexic patients. Due to the myriad of difficulties relating to anorexia nervosa, treatment is intricate. The aim of this exposition is to clarify legal issues of consent and self-determination, with regard to both adult and minor patients. In addition, the distinction between 'irrational' and 'incompetent' refusal will be discussed, with the authors maintaining that the 'irrational' refusal of an adult patient should be respected by the law. To come to an informed conclusion, the authors will first analyse the medical and psychological aspects of anorexia nervosa. Secondly, the South African position as shaped by the Mental Health Care Act, the Children's Act and the National Health Act will be contrasted with the position in Great Britain in order to determine the international perspective and its contrast, or not, to South African law.