JJS 2011 Volume 36 Issue 2

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Now showing 1 - 5 of 5
  • ItemOpen Access
    Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?
    (Faculty of Law, University of the Free State, 2011) Okpaluba, C.; Juma, L.
    English: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.
  • ItemOpen Access
    Access to housing in South Africa: an overview of dimensions and mechanisms
    (Faculty of Law, University of the Free State, 2011) Pienaar, J. M.
    English: The historical background of influx control, group areas and the regulation of unlawful occupation of land (squatting), explain, to some extent, why unlawful occupation of land and informal settlements are still prevalent 18 years after the new Constitutional dispensation commenced. For many people in South Africa, access to land is still an ideal and not a reality. Not only have the “three pillars of apartheid” contributed to the dismal current state of affairs, but the multi-faceted and multi-dimensional nature of access to housing has also contributed to it being particularly complex. In this regard a human rights, a land reform and a property law dimension can be identified. The human rights dimension is imbedded in socio-economic rights and is founded on dignity; the land reform dimension is based on the premise that access to housing is interlinked with access to land, and the property law dimension involves the development of common law (Roman-Dutch) principles of property and ownership to provide for other (or alternative) forms of ownership. This article aims to provide an overview of the three-dimensional nature of access to housing and to highlight some of the mechanisms encapsulated within each dimension. An overview of statutory measures will be provided and, where relevant, certain aspects will be attended to in more detail. In light of its three-dimensional nature, it is clear that access to housing remains a major challenge for all role players involved.
  • ItemOpen Access
    The case for economic hardship in South Africa: lessons to be learnt from international practice and economic theory
    (Faculty of Law, University of the Free State, 2011) Coetzee, J.
    English: Although most leading legal systems provide for some form of legal relief in the case of economic hardship, South African law still does not address the issue of changed circumstances beyond that of objective impossibility or where the parties have provided for these instances contractually. Scholars have argued for an expansion of the doctrine of supervening impossibility in exceptional cases. However, the courts have to date not made any pronouncements in this regard. This article argues that a new default rule should be adopted that will reduce transaction costs and facilitate international trade. It is suggested that such a rule should build on the existing requirements set for the doctrine of supervening impossibility, but at the same time fuse international practice with the rules of economic theory.
  • ItemOpen Access
    Clinical legal education: planning a curriculum that can be assessed
    (Faculty of Law, University of the Free State, 2011) Du Plessis, M. A.
    English: Surveys conducted in a selection of jurisdictions are discussed to determine whether clinical legal education should be a core and mandatory course in the LLB curriculum. The focus of a university law clinic and the role of the clinician are examined. The pedagogy that must be used in clinical legal education is explored. The discussions specifically consider skills, values and expected outcomes for the course, as well as effective assessment programmes and common requirements for the design of a curriculum.
  • ItemOpen Access
    Legal architecture and design for Gulf Cooperation Council economic integration
    (Faculty of Law, University of the Free State, 2011) Malkawi, B. H.
    English: The Cooperation Council for the Arab States of the Gulf (GCC) is generally regarded as a success story for economic integration in Arab countries. The idea of regional integration gained ground when the GCC Charter was signed. The Charter envisioned a closer economic relationship between member states. Although economic integration among GCC member states is an ambitious step in the right direction, there are gaps and challenges ahead. The best way to address the gaps and challenges that exist in formulating integration processes in the GCC is to start with a clear set of rules and put the necessary mechanisms in place. Integration attempts must also exhibit a high level of commitment in order to deflect dynamics of disintegration that have all too often frustrated meaningful integration in Arab countries. At present the rules of GCC regarding governance structure, dispute resolution mechanism, relationship with the WTO, and accession of new members are not detailed. If the GCC can address these issues, it could become an economic powerhouse within Arab countries and even Asia.