JJS 2013 Volume 38 Issue 2

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Recent Submissions

Now showing 1 - 10 of 10
  • ItemOpen Access
    The need for recognition and regulation of paralegals: an analysis of the roles, training, remuneration and impact of community-based paralegals in South Africa
    (Faculty of Law, University of the Free State, 2013) Holness, D.
    English: This article seeks to critically analyse the role of community-based paralegals (CBPs), mainly within a South African context. Having defined CBPs, it focuses on the roles, functions and qualifications required of CBPs in South Africa. The current lack of statutory recognition and regulation of CBPs in the country and proposals for future recognition and regulation are considered. This article briefly refers to examples of paralegal work and regulation in other countries. Arguments for and against the statutory recognition and regulation of CBPs within the legal profession are discussed. The article warns against over-regulation of the paralegal profession, but nonetheless calls for legislative recognition and regulation to provide the impetus for further expansion and development of existing paralegal programmes. CBPs are found to play a pivotal role in improving access to justice, particularly within the poor and rural commun ities in which they operate.
  • ItemOpen Access
    Exclusion of liability in wills
    (Faculty of Law, University of the Free State, 2013) Jamneck, J.
    English: A high level of skill is required from will drafters when drafting wills. Our courts have recognised that will drafters who make mistakes may be liable towards disappointed beneficiaries for their negligence in the drafting or execution of wills. Applications in terms of section 2(3) of the Wills Act 7 of 1953 point to the possibility that this liability may be even wider and, consequently, drafters are trying to protect themselves by inserting so-called ‘disclaimers’ in wills. The purpose of this article is to discuss these disclaimers and to determine whether it is possible for a will drafter to exclude this liability. Wills are unilateral legal acts and it is, therefore, not possible for such documents to include provisions of a contractual nature that are adjudicated by the measure of consensus reached. A testator may, however, of his own free will, include wording in his will that exempts the drafter, but care has to be taken with the formulation of this wording. The attention of the testator has to be drawn to such wording when using a standard form will and it remains to be seen whether the informed testator will sign such a will.
  • ItemOpen Access
    Delay in delivering judgment or a case of “washing” judicial “dirty linen in public”? Reflections on Myaka v S
    (Faculty of Law, University of the Free State, 2013) Okpaluba, C.
    Abstract not available
  • ItemOpen Access
    The statutory remedy for unfair prejudice in South African company law
    (Faculty of Law, University of the Free State, 2013) Sibanda, A.
    English: The convergence of world economies as a result of globalisation calls for jurisprudential review relating to shareholder rights in various jurisdictions. Most countries, including South Africa, base the protection of minority shareholders on common law as well as “home-grown” legislation. Among its shareholder remedies, South African law provides the statutory remedy for unfair prejudice, also known as the “oppression remedy”. The remedy enables shareholders to seek judicial intervention when their corporate interests are jeopardized often by their majority counterparts. In the past, dissatisfied minority shareholders have utilised this remedy. This article considers whether the development of the remedy from its initial introduction in South African company law has been beneficial to shareholders. The author traces the history of the remedy to the Companies Act 46 of 1926 and its subsequent amendment in the Companies Act 61 of 1973 and Companies Act 71 of 2008, respectively. Recommendations on how the remedy can be further improved from its current form are also made.
  • ItemOpen Access
    Estate planning: the inclusion of the proceeds of a life policy when the accrual is calculated
    (Faculty of Law, University of the Free State, 2013) Lotter, M.
    English: Life policies play an important role in estate planning, and the correct application of the proceeds is necessary to determine the effect on the accrual calculations at the dissolution of a marriage (upon the death of the first-dying spouse) in order to determine the correct insured amount required. The accrual of either spouse is calculated at the dissolution of the marriage, which is at the moment of death. If the proceeds of a life policy form part of the net estate at the moment of death, then the proceeds are included in the net estate of the spouse when the accrual is calculated. Consequently, the right to payment should vest at the moment of death for the proceeds to be included. Taking into account the different ways of structuring a life policy (policyholder, insured and nominated beneficiary), the moment that the right to payment vests will depend on who is entitled to the proceeds: the policyholder or a nominated beneficiary.
  • ItemOpen Access
    Clinical legal education: the challenge of large student numbers
    (Faculty of Law, University of the Free State, 2013) Du Plessis, M. A.
    English: Clinician:student ratios in clinical courses at South African university law clinics were found to be, in some instances, more than three times the ratio recommended at other international jurisdictions. Whether clinical legal education should be a mandatory course in the LLB curriculum and whether the focus of the clinicians should be on student training will be probed. In considering the challenge of large student numbers, the solution of grouping students into student law firms for collaborative work will be proposed. The student firm sizes will be discussed and it will be suggested that students work in pairs within student firms. The firm set-up, its operations and the possibility of social loafing will be discussed. It will be shown that the advantages of collaboration far outweigh any disadvantages. Recommendations will be made and it will be shown that the grouping of students in firms will ensure less contact time with clinicians, which will address their workloads and time constraints.
  • ItemOpen Access
    Religion without God, Ronald Dworkin: book review
    (Faculty of Law, University of the Free State, 2013) De Freitas, Shaun
    Abstract not available
  • ItemOpen Access
    The unresolved search for the proper standard of review of affirmative action: Solidarity obo Barnard v SAPS
    (Faculty of Law, University of the Free State, 2013-12) Pretorius, J. L.
    In Solidarity obo Barnard v SAPS, the Supreme Court of Appeal (SCA) set aside the order of the Labour Appeal Court (LAC), which upheld the decision of the National Commissioner of Police not to appoint a white female (Barnard) to the position of superintendent in the National Evaluation Services Division of the South African Police Service (SAPS). The most important issue raised by the judgments is the proper standard of review of affirmative action measures in terms of section 9(2) of the Constitution and section 6(2)(a) of the Employment Equity Act (EEA). The Labour Court (LC), the LAC and the SCA all subscribed to different versions of what the standard of review ought to be. In so doing, they also applied different interpretations of the leading judgment of the Constitutional Court on affirmative action, Minister of Finance v Van Heerden. In this note, the different interpretations will be identified and analysed.
  • ItemOpen Access
    Die bekostigbaarheid van 'n aktiewe verdedigingsreg in die Suid-Afrikaanse strafregstelsel
    (Faculty of Law, University of the Free State, 2014) Bezuidenhout, Inez; Karels, Michelle
    English: Oscar Pistorius' bail application highlighted equality concerns within criminal justice. In essence, it demonstrated an imbalance of the right to equality before the law, and its associated right to equal protection and benefit of the law, within adjectival procedure and, more specifically, pre-trial release. Whether section 9(1) rights are equally applied to bail applicants of little or no notoriety is the concern of this research. This submission is a theoretical evaluation of an accused person's constitutional right to equality before the law in the South African criminal justice system and queries whether bail applicants, who do not have the infamy or financial resources of Pistorius, are reliant solely on the machinery of the state and therein the evidential capability of the prosecution service? The focus is on opposed applications where the burden of proof shifts to the applicant. Against this background, constitutional rights are approached in two lines of inquiry, namely: does the bail applicant enjoy equality of arms with the state where the applicant carries the onus of proof, and do economic differences between bail applicants influence constitutional equality rights? The authors conclude that economic differences have the potential to infringe constitutional guarantees in the bail process, and therein influence both equality of arms and active defence rights. The authors posit that legal aid should be extended to prevent rights infringement and that the inquisitorial nature of the South African bail process provides the ideal avenue to bridge equality concerns in criminal justice.
  • ItemOpen Access
    The phenomenon of weight-based discrimination in South African employment
    (Faculty of Law, University of the Free State, 2014) Smit, D.; Viviers, D.
    English: South African labour law is forever evolving to address new issues in the modern workplace. One such new consideration is weight-based discrimination. With obesity increasing worldwide, it permeates every aspect of life, not least of which the workplace. A range of preconceived notions about the overweight and the obese often cause employers' appearance prejudices to influence their employment decisions and practices, as is evident from the numerous court decisions worldwide dealing with weight-based discrimination in employment. This article first deconstructs the concept of 'weight discrimination', and then investigates the possible status of weight as a ground of unfair discrimination in South Africa. Even though South Africa is among the three most overweight nations in the world, and the country's judicial forums have already had to deal with a number of cases involving elements of weight-related bias in the workplace, no specific legislation or other measure exists to address this phenomenon. The right to dignity and equality is vehemently protected in the South African Constitution; yet, the legislature chose not to include weight in the specific prohibited grounds of discrimination. Thus, the article explores the possibility of bringing claims of weight-based discrimination under section 6(1) of the amended Employment Equity Act, as well as that of obesity being protected as a disability. Following a comparative overview of the legal positions in the United States of America, Australia, the European Union and the United Kingdom, the article concludes by suggesting possible solutions and recommendations to fill the void in South African labour law to effectively deal with weight-based discrimination in the workplace. Afrikaans: Die Suid-Afrikaanse arbeidsreg ontwikkel voortdurend om nuwe kwessies in die moderne werkplek te hanteer. Een so 'n nuwe oorweging is gewigsgebaseerde diskriminasie. Met vetsug wêreldwyd aan die toeneem, dring dit deur tot elke aspek van die lewe, veral ook die werkplek. Verskeie vooropgestelde idees oor oorgewig persone en vetsug beteken dikwels dat werkgewers se voorkomsvooroordele hul indiensnemingsbesluite en -praktyke beïnvloed, soos duidelik blyk uit al die hofuitsprake wêreldwyd wat met gewigsgebaseerde diskriminasie in die werkplek verband hou. Hierdie artikel ontleed eerstens die konsep van 'gewigsdiskriminasie' en ondersoek dan die moontlike status van gewig as 'n grond vir onbillike diskriminasie in Suid-Afrika. Al is Suid-Afrika onder die drie mees oorgewig nasies ter wêreld en moes die land se regsforums reeds 'n aantal sake rakende elemente van gewigsverwante vooroordeel in die werkplek aanhoor, bestaan daar geen spesifieke wetgewing of ander maatreël om die verskynsel te hanteer nie. Die reg op waardigheid en gelykheid word vurig beskerm in die Suid-Afrikaanse Grondwet; tog het die wetgewer gekies om nie gewig by die spesifieke verbode gronde vir diskriminasie in te sluit nie. Die artikel ondersoek dus die moontlikheid om eise van gewigsgebaseerde diskriminasie ingevolge artikel 6(1) van die gewysigde Diensbillikheidswet in te stel, sowel as om vetsug as 'n gestremdheid te beskerm. Na 'n vergelykende oorsig van die regstandpunt in die Verenigde State van Amerika, Australië, die Europese Unie en die Verenigde Koninkryk, sluit die artikel af deur moontlike oplossings en aanbevelings voor te stel om die leemte in die Suid-Afrikaanse arbeidsreg te vul om gewigsgebaseerde diskriminasie in die werkplek doeltreffend te hanteer.