Journal for Juridical Science最新文献

{"title":"Police officers’ discretion and its (in)adequacy as a safety valve against unnecessary arrest","authors":"B. Tshehla","doi":"10.18820/24150517/jjs46.i2.4","DOIUrl":"https://doi.org/10.18820/24150517/jjs46.i2.4","url":null,"abstract":"The Supreme Court of Appeal has ended the recent uncertainty on whether there is a need for the fifth jurisdictional fact in the process of arrest. The result is that South African law is back at the well-known four jurisdictional facts that must be present before a lawful warrantless arrest may take place. This article assesses whether, after the demise of the fifth jurisdictional fact, police discretion can adequately protect the right to liberty. The discussion starts with a contextual background outlining the role of the jurisdictional facts and the emergence and demise of the fifth jurisdictional fact. This is followed by an outline of the legislative framework applicable to arrest, pointing out that the law bestows wide discretion on police officers in the exercise of their duties, including securing the court attendance of accused persons. Relying on relevant decided cases, it is submitted that the courts focus on the police discretion exercised at the point of arrest, not in the process preceding that stage (for example, the choice of method). The central submission is that, given that the only viable pre-court appearance protective mechanism against unnecessary arrests is the proper exercise of police discretion, focus on the exercise of discretion at the point of arrest is not the most prudent and/or effective approach in the quest to protect the right to liberty.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130642231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An assessment of sentencing approaches to persons convicted of white-collar crime in South Africa","authors":"CD Magobotiti","doi":"10.18820/24150517/jjs46.i2.5","DOIUrl":"https://doi.org/10.18820/24150517/jjs46.i2.5","url":null,"abstract":"Assessing court sentencing approaches to persons convicted of white-collar crime is a complex task. For the purposes of this article, this research task involved assessing the appropriateness of sentences imposed within the proportionality principle during the period 2016 to 2021 in South Africa. This further involved the empirical use of both qualitative and quantitative methodologies, in order to determine how commercial courts – in this case, the Bellville Commercial (Regional) Court – impose a sentence on white-collar criminals. The article establishes that, in South Africa, categories of white-collar crime such as corruption, racketeering, fraud and money laundering are increasingly reported by the media, independent institutions and government. There is a public perception that courts are generally lenient in sentencing white-collar offenders. This article aims to determine the appropriateness of a sentence, within the principle of proportionality, for white-collar criminals, in order to deter this type of crime.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115550810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria","authors":"E. Muller, CL Nel","doi":"10.18820/24150517/jjs46.i2.2","DOIUrl":"https://doi.org/10.18820/24150517/jjs46.i2.2","url":null,"abstract":"As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132728989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial probity and ethical standards: The Judicial Conduct Tribunal’s decision on Judge President John Hlope","authors":"C. Swanepoel","doi":"10.18820/24150517/jjs46.i2.6","DOIUrl":"https://doi.org/10.18820/24150517/jjs46.i2.6","url":null,"abstract":"This case note on the Judicial Conduct Tribunal’s (hereinafter, “the tribunal”) decision regarding Judge President John Hlophe (hereinafter, “Hlophe” for the sake of brevity) in April 2021 is prompted not only by the increasing attacks on the South African judiciary, but also by the moral force which underlies the rule of law and the independence of the judiciary as constitutional guarantees.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126628670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Warrantless search and seizure by SARS: a constitutional invasion of taxpayers’ privacy? – Part One","authors":"F. Moosa","doi":"10.18820/24150517/jjs46.i1.4","DOIUrl":"https://doi.org/10.18820/24150517/jjs46.i1.4","url":null,"abstract":"Sec. 63 of the Tax Administration Act 28 of 2011 (TAA) grants officials of the South African Revenue Service (SARS) access to taxpayers’ private and confidential information by, first, searching a taxpayer’s person and premises without a warrant and, secondly, permitting the seizure of taxpayers’ possessions and communications. Part One of this article (see Journal for Juridical Science 2021(1)) argued that the TAA is a “law of general application” as envisaged by the so-called “limitation clause” contained in sec. 36(1) of the Constitution, 1996 and that, in terms of the threshold stage of analysis prescribed by this provision, the exercise of the powers conferred by sec. 63(1) and (4) limits a taxpayer’s constitutional right to privacy as entrenched in sec. 14 of the Constitution. In this Part Two of the article, it will be hypothesised that, although the search and seizure powers in sec. 63(1) and (4) of the TAA are not models of drafting with absolute clarity, they ought, in terms of the second stage of enquiry that is triggered by the findings in Part One, nevertheless to pass muster under sec. 36(1) of the Constitution, because of the justifiability of the limitation imposed on the right to privacy by these provisions.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127614842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Executing a debt against residential property: The potential application of Rule 46A of the Uniform Rules of Court beyond a literal reading of “property of a judgment debtor”","authors":"","doi":"10.18820/24150517/jjs45.i2.3","DOIUrl":"https://doi.org/10.18820/24150517/jjs45.i2.3","url":null,"abstract":"This article examines the field of application of rule 46A of the Uniform Rules of Court, which regulates the procedure for creditors seeking to execute a judgment debt against residential property. The central question concerns the categories of home occupiers covered by rule 46A. The literal wording of the rule appears to limit its application to situations where the property is the home of, and owned by, a “judgment debtor”. However, it is necessary to consider the possible application of the rule to at least two other scenarios. First, does rule 46A apply if the property is owned by a company, close corporation or trust, but is occupied for residential purposes by a natural person who is a shareholder, member or beneficiary of the respective company, close corporation or trust (described, for the purposes of this article, as a “beneficial owner”)? Secondly, must the rule be followed if the property is occupied as a home, not by the judgment debtor, but by a tenant in terms of a lease agreement?","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114114694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional matters and arguable points of law: Reflections on the General Council of the Bar, Jiba and Mrwebi jurisprudence","authors":"","doi":"10.18820/24150517/jjs45.i2.1","DOIUrl":"https://doi.org/10.18820/24150517/jjs45.i2.1","url":null,"abstract":"it, because it offered the Constitutional Court the opportunity to develop the common-law “fit-and-proper standard” for legal practitioners, particularly those in high-ranking public judicial office. Unfortunately, this is now an opportunity missed.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"46 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125881383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Using peer tutors to improve the legal writing skills of first-year law students at University of KwaZulu-Natal, Howard College School of Law","authors":"","doi":"10.18820/24150517/jjs45.i2.5","DOIUrl":"https://doi.org/10.18820/24150517/jjs45.i2.5","url":null,"abstract":"SUMMARY Over the past few decades, the University of KwaZulu-Natal’s Howard College School of Law (UKZN School of Law) has paid considerable attention to improving the legal writing skills of its first-year law (LLB) students. In its quest to improve these skills, the School of Law has implemented a number of writing interventions, which have focussed on finding a creative solution to the problem of balancing the need for time-intensive student support and the lack of staff capacity to provide it. This article argues that one such solution could be to use senior Law School students acting in the capacity of peer writing tutors. The article begins by discussing the concept of using peer tutors to teach persuasive legal writing to first-year LLB students within the context of a collaborative and social constructivist teaching and learning paradigm. It proceeds to discuss the substantial benefits of using senior law students as peer tutors and the training that must be provided to them. This tutor training is essential, since many of the peer tutors, despite being senior law students, lack experience in teaching persuasive writing and therefore must still develop these skills. Thus, the article explores the significance of the training aspect of using senior law students to tutor persuasive writing to first-year law students, including the theoretical underpinnings of this training as well as its practical application. In this discussion, two models of peer tutor development are examined – “participatory peer-tutor development” and “peer-tutor development sequencing” – before discussing the practical (and necessary) application of both of these models in the module Teaching Legal Skills (“TLS”) at the UKZN School of Law. Finally, the article makes recommendations that could inform the design of a viable, cost-effective, energy-efficient future legal writing programme, and suggests possible ways of overcoming or avoiding the challenges identified. Constructivism tells us that we learn by assimilating new experiences into our existing knowledge framework. The statement perhaps best captures the core of constructivism: “knowledge is not found, but made”. This implies that one cannot transmit discrete bits of information to another person, which that person can simply absorb, amounting to ostensible “learning”. 18","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"191 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114982662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A consideration of the binding effect of section 15(6) of the Companies Act 71/2008","authors":"S. Phiri","doi":"10.18820/24150517/jjs45.i2.chronicle","DOIUrl":"https://doi.org/10.18820/24150517/jjs45.i2.chronicle","url":null,"abstract":"It is trite law that a company is an artificial being, existing only in contemplation of law and, being a creature of law, it possesses those properties which the constitution of its incorporation confers on it. It follows that the company’s existence is endorsed by the contractual binding force its constitution has over its incorporators, members (shareholders) and third parties. The Companies Act 71/2008 (hereinafter, the Act) introduced the Memorandum of Incorporation (hereinafter, MOI) as the company’s most important founding document and scholars considers it as the company’s constitution.1 This new development makes the company’s MOI the only document governing the affairs of the company.2 Yet, this does not mean that the new Act has removed the possibility of a shareholders’ agreement. Rather, the shareholders’ agreement must be in line with both the MOI and the Act.3 Thus, the shareholders’ agreement, though a private contract,","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123549265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A clash of rights in the legal and spatial planning contexts: The case of the Philippi Horticultural Area","authors":"T. Govender","doi":"10.18820/24150517/jjs45.i2.4","DOIUrl":"https://doi.org/10.18820/24150517/jjs45.i2.4","url":null,"abstract":"seeks to determine whether a balancing of these rights can be achieved within the PHA, and whether portions of the PHA can be developed in a manner that protects and enhances the cultural and environmental integrity of the area, while also allowing urban development to accommodate new and existing communities. We argue that issues related to food security, environmental well-being, and access to land and development are inextricably linked and cannot be dealt with in isolation. Instead, a more holistic approach is needed, which takes a balanced view of these issues and embraces the spirit of the Bill of Rights (as contained in Chapter 2 of the Constitution ) in an all-encompassing manner. Given that the PHA faces enormous challenges such as rampant crime, illegal occupation of land, a symbiotic relationship must be cultivated between urban and agricultural land uses, through appropriate urban development articulated in a spatial framework that provides clarity as to how urban development can assist in protecting productive agricultural activity. In this way, the role of the PHA as Cape Town’s ‘food basket’ can be better conserved for current and future generations. Clash: To come into conflict; to be incompatible; a hostile encounter; a sharp conflict; an argument or disagreement between people.","PeriodicalId":292409,"journal":{"name":"Journal for Juridical Science","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123798932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}