South African law journal最新文献_第8页

Notes: Multi-tiered dispute resolution clauses — Peremptory steps or too vague to matter? 注:多层争议解决条款-强制性步骤还是过于模糊而无关紧要?

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a2

Brendan Lyall Studti

{"title":"Notes: Multi-tiered dispute resolution clauses — Peremptory steps or too vague to matter?","authors":"Brendan Lyall Studti","doi":"10.47348/salj/v139/i3a2","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a2","url":null,"abstract":"Multi-tiered dispute resolution clauses in agreements in South Africa are prevalent. In many instances these clauses provide for a sequence of dispute resolution processes, often commencing with negotiation, followed by mediation, and then, finally, arbitration. Arbitrators and parties to these clauses need to consider whether the preconditions to arbitration are sufficiently certain to be enforceable and whether they have been fulfilled. The issue has received little attention in South Africa but there is a considerable body of foreign case law on the topic. According to foreign precedent, it must be determined whether the interim steps preceding arbitration are conditions precedent to arbitration, and, if so, whether they are enforceable. This entails, in part, assessing whether the clause in the agreement is of sufficient certainty for a court to ascertain whether it has been complied with. This note presents an exposition of the foreign case law and demonstrates how the position in foreign jurisdictions is consistent with the law in South Africa. It also aims to set out the minimum requirements for an interim negotiation or mediation clause to be enforceable as a precondition to arbitration.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823341","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}

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Guilty of being deaf. Kruse v S — paying lip service to the fair-trial rights of hearing-impaired accused persons 为自己耳聋而内疚。克鲁斯诉S案——口头上支持听障被告的公平审判权

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i1a5

Ferdinand Heinrich Hermann Kehrhahn, Jani Charlese de Lange

{"title":"Guilty of being deaf. Kruse v S — paying lip service to the fair-trial rights of hearing-impaired accused persons","authors":"Ferdinand Heinrich Hermann Kehrhahn, Jani Charlese de Lange","doi":"10.47348/salj/v139/i1a5","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a5","url":null,"abstract":"This article considers the case of Kruse v S, where the right to a fair trial of a deaf accused was infringed owing to the poor communication and translation of the trial proceedings. This article considers the methods available to translate court proceedings to a deaf or hard-of-hearing accused, and demonstrates an appreciation that the deaf community is not homogeneous and that a single interpreting method cannot accommodate every deaf person. In raising the question as to which method is best suited to a specific accused, the article indicates that the culture and history of the deaf accused should be indispensable factors to consider. The article explores the rights of deaf accused in the South African criminal justice system by considering the Constitution, national legislation, and judicial norms and standards which relate to the interpreting of trial proceedings to the deaf accused. The existing laws and safeguards that protect these rights are poorly implemented at a grass-roots level, which calls for better training of stakeholders and more effective policy implementation. A concerted effort on the part of the government is required to ensure that the rights of the deaf accused are protected.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821980","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}

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Notes: The legitimacy of the South African Consumer Goods and Services Ombud’s Code of Conduct: An analysis of Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd 注:南非消费品和服务监察机构行为准则的合法性:消费品和服务监察机构NPC诉Voltex (Pty) Ltd的分析

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i2a1

T. Scott, Obakeng van Dyk

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Constitutional futures and the South African demos: Time for some univocal sovereignty? 宪法的未来和南非的民众:是时候建立某种明确的主权了?

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a8

Tracy-Lynn Field

{"title":"Constitutional futures and the South African demos: Time for some univocal sovereignty?","authors":"Tracy-Lynn Field","doi":"10.47348/salj/v139/i3a8","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a8","url":null,"abstract":"This article engages and extends the proposition that the debate on constitutionalism in the postcolony should restore the sovereignty of the demos to a central position. The notion of a unified South African demos is contested, but the arguments against working with the presently constituted unified demos are not overwhelming. With democratic sovereignty as the key focus, the question is how the demos’ lifeblood of present consent can be injected into the current South African constitutional order. Drawing on Grewal & Purdy’s development of Tuck’s reconstruction of original constitutionalism, the article presents six variables for understanding democratic self-rule over time: unified and splintered sovereignty; univocal and multitudinous constitution-making; popular authorship; and present consent. Taking into account Arato’s post-sovereign model of constitution-making, the article argues that South Africa’s constitutional order may be leaning too far in the direction of splintered sovereignty, multitudinous constitution-making and a preoccupation with the act of founding. Instead, the unified sovereign, univocal constitution-making and the imperative of present consent need to be firmly placed on the agenda. The article concludes by considering four ways in which the unified sovereign could be brought back into the realm of constitution-making in South Africa.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823368","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

A comparative analysis of the Twin Peaks model of financial regulation in South Africa and the United Kingdom 南非和英国金融监管双峰模型的比较分析

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i1a3

Mmiselo Freedom Qumba

{"title":"A comparative analysis of the Twin Peaks model of financial regulation in South Africa and the United Kingdom","authors":"Mmiselo Freedom Qumba","doi":"10.47348/salj/v139/i1a3","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a3","url":null,"abstract":"This article examines the recent adoption of the Twin Peaks model by the United Kingdom and South Africa. An international and comparative analysis is provided. It observes that there is a gradual paradigm shift across the world towards the Twin Peaks model of financial regulation. There are slight variations in the design of the two countries’ Twin Peaks models. The variations in regulatory design indicate the flexibility of the Twin Peaks model and its adaptability to suit local conditions, regulatory culture, and the country’s specific needs. Therefore, while the South African model has drawn significantly from the experiences of other Twin Peaks jurisdictions, particularly the UK, South Africa has adopted the model to accommodate its own needs and unique characteristics. It is imperative for the success of the Twin Peaks model that it clearly delineates the objectives and functions of each regulator, and achieves effective co-ordination between them. This article warns that, given the potential overlaps and high levels of co-operation required between the different regulatory bodies in South Africa, there could be detrimental consequences if this complicated financial regulation regime is not properly managed.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821928","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}

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Book Review: Andrew Stewart, Rosemary Owens, Niall O’Higgins & Anne Hewitt (eds) Internships, Employability and the Search for Decent Work Experience (2021) 书评:安德鲁·斯图尔特，罗斯玛丽·欧文斯，尼尔·奥希金斯和安妮·休伊特(编)实习，就业能力和寻找体面的工作经验(2021)

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i1a9

J. Maree

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BOOK NOTICES: Andreas van Wyk & Gerhard Lubbe Stellenbosch Law Faculty 100 Years/Stellenbosse Regsfakulteit 100 Jaar (2021) 书籍通知：Andreas van Wyk&Gerhard Lubbe Stellenbosch法学院100年/Stellenbosse Regsfakulteit 100 Jaar（2021）

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a12

D. Visser

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BOOK NOTICES: Desmond Osaretin Oriakhogba Copyright: Collective Management and Competition in Africa (2021) 版权:集体管理和竞争在非洲(2021)

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a13

M. Forere

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Notes: State liability in respect of a child negligently injured at an early childhood development centre: A critical assessment of BE obo JE v MEC for Social Development, Western Cape 注:关于儿童在儿童早期发展中心疏忽受伤的国家责任:对西开普省JE诉MEC社会发展的重要评估

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a1

B. Clark, W. Holness

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Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 注:商品使用权，独家贸易权和租赁公共政策:Masstores (Pty) Ltd诉Pick ' n Pay Retailers (Pty) Ltd

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i2a3

Anthea-lee September-Van Huffel

{"title":"Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd","authors":"Anthea-lee September-Van Huffel","doi":"10.47348/salj/v139/i2a3","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a3","url":null,"abstract":"In Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) the Constitutional Court found that the personal right of exclusive trade in the lease contract was contrary to public policy and not worthy of protection. To do so, the court relied on the ‘competition principle’ — that the competitor who delivers the best or fairest (most reasonable) performance must achieve victory, while the one rendering the weakest (worst) performance must suffer defeat. The court was of the view that, as a general proposition, third parties have no legal duty not to infringe contractually derived exclusive rights to trade. According to the majority, exclusive trading rights make the competitive field uneven. The court emphasised that the boni mores must be understood in terms of the values of the Constitution, and that the values contained in the Bill of Rights are a crucial tool in the development of the common law. Although the majority judgment focused on the delict of unlawful third-party interference in a contractual relationship and the nature of interdicts, the judgment relates also to the question of the personal right to commodus usus in a lease contract, and the remedies available to vindicate this right. The intersection of these issues is investigated in this note.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822772","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