Stellenbosch Law Review最新文献

King NNO V De Jager 2021 4 SA 1 (CC): Three Perspectives 国王NNO V De Jager 2021 4 SA 1 (CC):三个视角

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i3a8

François du Toit, M. Harding, A. Humm

{"title":"King NNO V De Jager 2021 4 SA 1 (CC): Three Perspectives","authors":"François du Toit, M. Harding, A. Humm","doi":"10.47348/slr/2022/i3a8","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a8","url":null,"abstract":"In the King case, the South African Constitutional Court adjudicated on a gender-based disinheritance under a testamentary fideicommissum. The court, in three judgments, found that the disinheritance violated public policy and was, moreover, unconstitutional and thus invalid. King was the Constitutional Court’s first pronouncement on a gender-based disinheritance in a purely private bequest. It therefore stands in contrast to earlier High Court and Supreme Court of Appeal judgments regarding the exclusion of potential beneficiaries under testamentary charitable bequests. This contribution provides three perspectives by commentators from three jurisdictions on the Constitutional Court’s judgment in King. The first perspective argues against an objection that can be raised against a judgment such as King, namely that it constitutes an unjustified judicial violation of personal autonomy, freedom of disposition and private property in the law of gifts and trusts. The first perspective posits that discriminatory goals such as those pursued through explicit gender-exclusive disinheritances are inherently worthless and the judicial invalidation of such disinheritances therefore have a negligible impact on personal autonomy, freedom of disposition and private property. The second perspective cautions against the Constitutional Court’s express rejection of the public/private divide in the law of gifts and trusts. It argues that the divide plays an important role in striking a balance between personal autonomy, freedom of disposition and private property on the one hand, and policy as well as constitutional imperatives regarding equality and non-discrimination on the other hand. The second perspective thus advocates that the public/private divide must be retained in the law of gifts and trusts. The third perspective evaluates the King case from a German viewpoint and argues that the Constitutional Court’s reasoning in this case undervalued freedom of testation. The third perspective advances a solution that strives to balance the arguments that underpin the first and second perspectives.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116173158","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}

引用次数: 0

Transforming the Law on Psychiatric Lesions 改革精神疾患法

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2021/i2a4

E. Zitzke

{"title":"Transforming the Law on Psychiatric Lesions","authors":"E. Zitzke","doi":"10.47348/slr/2021/i2a4","DOIUrl":"https://doi.org/10.47348/slr/2021/i2a4","url":null,"abstract":"In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125458916","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}

引用次数: 0

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)] 南非水监管制度的变革[南非用水户协会协会与水和卫生部长的讨论[2020]ZAGPPHC 252(2020年6月19日)]

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i2a8

Germarie Viljoen

引用次数: 0

Deciding matters of general public importance: An analysis of the value-laden approach 决定具有普遍公共重要性的问题:价值取向方法的分析

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i2a2

Paul Nkoane

引用次数: 0

Homeowners’ Associations as Urban Property Management Entities 作为城市物业管理实体的业主协会

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i3a5

G. Pienaar, JG Horn

{"title":"Homeowners’ Associations as Urban Property Management Entities","authors":"G. Pienaar, JG Horn","doi":"10.47348/slr/2022/i3a5","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a5","url":null,"abstract":"The concept “homeowners’ association” falls within the description of fragmented property schemes. It is an entity that is the owner or manager of communal property and the land of an estate, consisting of individual properties owned by members of the association and communal areas used collectively by the individual owners. The individual properties and communal areas are managed in terms of conditions and rules, albeit with different purposes. A homeowners’ association is normally a juristic person incorporated as a non-profit company or by agreement between the individual owners as members to establish a common law juristic person. In terms of its management documents, it has the capacity to manage the estate and enforce the rules of the scheme. Therefore, the memorandum or constitution should contain specific management directions, which are discussed in this article. The rules of the scheme must be approved by the Ombud for Community Schemes before they may be enforced. The latter may also be approached to mediate disputes between members of the association or between members and the management. Initially the social-political need for urban fragmented property schemes is explained, followed by an analysis of the management of urban fragmented property. It is emphasised that ownership of immovable property is not only an individual right, but also fulfils an important community function. The legalities surrounding the establishment of a homeowners’ association is thereafter discussed. Essential matters to be included in the management documents are examined with specific reference to the enforceability and constitutionality of the rules of the association. Finally, the establishment of gated communities is reviewed with an emphasis on the constitutional viability of imposing limitations on the fundamental rights of owners, occupiers and third parties (like visitors and employees) who need access to the scheme or want to use communal areas in the scheme.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116278743","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}

引用次数: 0

The Legal Combatting of B-BBEE Fronting Practices in South Africa – Past and Present 南非对B-BBEE对抗行为的法律斗争——过去与现在

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i3a3

Adri Du Plessis

{"title":"The Legal Combatting of B-BBEE Fronting Practices in South Africa – Past and Present","authors":"Adri Du Plessis","doi":"10.47348/slr/2022/i3a3","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a3","url":null,"abstract":"Broad-Based Black Economic Empowerment is critical in establishing an inclusive South African economy based on social and economic justice. However, since its inception in 2003 with the promulgation of the Broad-Based Black Economic Empowerment Act 53 of 2003, misrepresentations intended to improve an enterprise’s compliance status – fronting – have been ever-present. From 2003 to 2013, there was no clear approach to dealing with fronting, which, at least in part, led to increases in the incidence and complexity of this practice. In an attempt to deal more decisively with the issue, the 2013 amendment to the Broad-Based Black Economic Empowerment Act introduced two specific measures to combat this problem. The first was criminalising fronting practices, and the second was establishing a monitoring body, the Broad-Based Black Economic Empowerment Commission. This article briefly sketches the policy and legislative framework for implementing the Broad-Based Black Economic initiative and past practices of combatting fronting practices. This is followed by a discussion of the two measures introduced by the amendment to the Act, with a specific focus on the Commission’s role since its inception to monitor and combat fronting practices. There will also be a discussion of the various activities that the Commission reports on concerning its dealing with fronting. The article concludes with suggestions for changes to the regulatory environment that could improve the efficacy of the fight against fronting.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116066241","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}

引用次数: 1

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)] 面对COVID-19旅行限制，儿童的最大利益:分析儿童和父母的权利[裁谈会与社会发展部(5570/2020)[2020]ZAWCHC 25(2020年4月14日)的讨论]

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i2a10

Angelo Dube

引用次数: 0

The Right to Deletion: Identity, Memory, and Surveillance Capitalism 删除权:身份、记忆和监视资本主义

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i3a6

Y. Jooste

引用次数: 0

Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe 警察在津巴布韦针对不同妇女的性暴力和基于性别的暴力诉诸司法方面的作用

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i1a6

Munatsi Shoko, K. Vermaak, Annika Rudman

引用次数: 0

Local Government and the Conundrum of Constitutional Competencies in South Africa: The Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services 南非地方政府和宪法权限的难题:茨瓦内市和豪登省卫生部门之间关于救护车服务的争执

Stellenbosch Law Review Pub Date : 1900-01-01 DOI: 10.47348/slr/2022/i3a7

Oliver Fuo

{"title":"Local Government and the Conundrum of Constitutional Competencies in South Africa: The Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services","authors":"Oliver Fuo","doi":"10.47348/slr/2022/i3a7","DOIUrl":"https://doi.org/10.47348/slr/2022/i3a7","url":null,"abstract":"Local government’s autonomy in post-apartheid South Africa is constitutionally guaranteed. A reading of the Constitution of the Republic of South Africa, 1996 shows that local government, made up of 257 municipalities, has a wide range of powers and functions. However, confusion over the scope of constitutional distribution of powers and functions vis-à-vis other spheres of government often constrains the ability of municipalities to take action over a function not expressly assigned to local government in Schedules 4B and 5B of the Constitution. The squabbles between the City of Tshwane and the Gauteng Health Department over the power to provide ambulance services in March 2021 show how some municipalities may be hamstrung from taking action that seeks to operationalise and deliver a function that is not expressly conferred on local government in terms of Schedules 4 and 5 of the Constitution. This article discusses why and how municipalities with the requisite capacity should be able to provide ambulance services, although this is listed in Schedule 5A of the Constitution as a functional area of exclusive provincial legislative competence. I argue that three features in the Constitution give the power to provide ambulance services to municipalities that have the requisite capacity: the framing of health rights and concomitant obligations; the incidental powers of municipalities; and the principle of allocative subsidiarity. It is argued that, given the mandatory wording of the principle of allocative subsidiarity in sections 156(4) of the Constitution and 32(2) of the National Health Act 61 of 2003, where a provincial health department is averse to assigning the provision of ambulance services to a municipality that has the requisite capacity, such a municipality can approach the High Court for an order compelling the department to assign this function.","PeriodicalId":325707,"journal":{"name":"Stellenbosch Law Review","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124367675","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}

引用次数: 0