Potchefstroom Electronic Law Journal最新文献

{"title":"Funding Climate Change Initiatives: Utilising the Law for Enhancing Financial Management in Cities","authors":"Johandri Wright","doi":"10.17159/1727-3781/2024/v27i0a15809","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a15809","url":null,"abstract":"Climate change affects cities disproportionately, and some cities have limited fiscal capacity to address climate change. It is therefore necessary to ensure that the climate funds cities do have at their disposal are used in a way that maximises their impact. However, financial mismanagement and corruption have led to significant money losses in climate funds. Although measures against general public sector corruption can be used to improve climate finance management, the climate finance market poses some unique challenges. Traditional anti-corruption measures can be rethought to maintain their effectiveness against corruption in climate finance. Against this background, the article explores how international and regional law can be used by cities to improve the management of climate funds. Eight financial controls are identified and critically discussed to show how they can be effective in the specific case of climate finance. The article also shows some examples of where these financial controls have been implemented in cities","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"23 15","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140450641","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":"Including Children's Views in Divorce Mediation: A Comparative Analysis and Recommendations or Kenya","authors":"Vivian Nyaata, F. Zaal, Stephen Allister Peté","doi":"10.17159/1727-3781/2024/v27i0a14416","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a14416","url":null,"abstract":"It is important that the views of children be considered during the process of their parents' divorce. Parental divorce mediation informed by the needs of children is more likely to produce better outcomes. The ways in which divorce mediators in South Africa, Australia and Kenya consider views of the children of marriages in the process of dissolution are compared. The extent to which these three countries have domesticated and implemented relevant international law and policies is compared. Recommendations are provided for Kenya, where empirical research was undertaken to establish the practices and attitudes of Kenyan divorce mediators. The outcome of this empirical research indicates that – prior to mediating between their parents – most of Kenya's divorce mediators fail to elicit the views and wishes of the children who will be affected by the divorce. Proposals are put forward on how this may be rectified. In formulating these proposals, practices in South Africa and Australia are examined for the purposes of comparative analysis. The recommendations for Kenya include the formulation of appropriate laws and policies; the establishment of cost-effective mechanisms for hearing the voices of children prior to their parents' divorce mediation; and the education of the general public on the importance of considering the views and wishes of children when their parents are divorcing.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"55 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139686267","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":"Non-Educator Stakeholders and Public-School Principals' Views on the Proposed Amendments to the South African Schools Act 84 of 1996","authors":"Johan Kruger, Johan Beckmann, Andre Du Plessis","doi":"10.17159/1727-3781/2024/v27i0a14463","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a14463","url":null,"abstract":"On 13 October 2017, the Department of Basic Education (DBE) published Government Gazette No 41178 pertaining to the Basic Education Laws Amendment Bill (hereinafter BELA). The draft bill proposes to amend certain sections of the South African Schools Act 84 of 1996. The DBE gave education stakeholders a window period to make inputs on the proposed Bill. Over 5000 submissions were received. \u0000On 27 and 28 January 2020, Ms Angie Motshekga (Minister of Basic Education) invited the educator unions and governing body federations to further consultations on the Bill. The Bill was again circulated to the public in 2021 in Government Gazette number 45601 after further amendments. \u0000In this article, the authors discuss school principals’ (as education stakeholders) opinions on the proposed amendments with a specific focus on school admission and language policies. \u0000The research on which this article is based was located within the framework of government and management terms like the decentralisation and recentralisation of the powers of principals and school governing bodies (SGBs) and the recent phenomenon of political realism. \u0000The research took the form of a qualitative case study using triangulation (semi-structured interviews, literature review and document analysis) to gather data. \u0000The data produced mixed results. Some education stakeholders were very critical of the proposed amendments to the South African Schools Act while other groups welcomed the proposed changes. Some principals felt that the government was employing political realism in rescinding (recentralising) some of the powers that had been devolved to them in 1996 after the dawn of democracy in South Africa. They believed that the recentralisation would impede their autonomy when they carry out their professional and governance duties (the duties the school governing body delegated to the principal) in partnership with their SGBs. They believed it represented a regression to apartheid education. Other principals welcomed a more centralised governance approach where school leadership was dysfunctional and where SGBs provided no meaningful assistance to school principals.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"61 23","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139381616","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":"Mapping the Common Law Development of Physician- Administered Euthanasia and Physician-Assisted Suicide against the Background of the Application of the Bill of Rights","authors":"Ntokozo Mnyandu","doi":"10.17159/1727-3781/2023/v26i0a14300","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14300","url":null,"abstract":"The Pretoria High Court is considering whether to recognise a right to physician-assisted death. This is a right to request a physician to administer a lethal prescription which a terminally ill patient can use to end their lives or to be allowed to obtain a lethal prescription which they will self-administer. In deciding the matter, the court will have to determine whether it should remove the common law prohibition on both ways of bringing about a quick and painless death. The question that will have to be answered is whether the common law prohibition is consistent with the Constitution. If it is not, the court will either develop the common law or leave it to Parliament to remove the inconsistency. However, before the court can begin this work it would have to decide on the correct approach to the application of the Bill of Rights to the common law principles of murder and culpable homicide. In effect it would have to decide how sections 8(1), 8(3) and or section 39(2) of the Constitution apply to the dispute.\u0000This research explores how these operational provisions should apply when assessing the constitutionality of the right to physician-assisted death. In effect it argues that during this process the court must always have regard to section 39(2), irrespective of whether there is a direct application or an indirect application of the Bill of Rights to the common law. Its application arises under section 8(1), where the court is asked to declare the common law invalid on the basis of being in direct violation of a constitutional right. It also applies in situations where the court is asked to develop the common law under section 8(3). Lastly, it is applicable where the common law is challenged for being in indirect conflict with the spirit, purport and object of the Constitution. Having established the role of section 39(2) in both the direct and indirect application of the Bill of Rights, the paper concludes by critically analysing the remedies that attend each of the operational provisions in relation to the common law prohibition on physician-assisted death.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"174 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139010173","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":"The Right to Freedom of Association and the Protection of Employees against Victimisation in the Workplace","authors":"E. Manamela","doi":"10.17159/1727-3781/2023/v26i0a14154","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14154","url":null,"abstract":"This article deals with employees' right to freedom of association and their protection against victimisation when exercising this right in the workplace. First it explains the concepts of \"freedom of association\" and \"victimisation\". It then considers the protection of employees against victimisation for exercising the right to freedom of association internationally and domestically, however, only in the employment context. It considers the protection of the right to freedom of association in South Africa in terms of the Constitution and its regulation under various sections of the LRA. It also looks at limitations on the right to freedom of association and the remedies available to employees who experience victimisation because of exercising this right. It further considers the regulation of the right to freedom of association in the UK. It argues that although this right is well protected internationally and domestically, employees still experience victimisation as a result of exercising it. It further argues that the protection of this right and its exercise by employees is necessary to bring a balance to an uneven relationship between employers and employees in the workplace. It concludes that trade unions together with employers have a responsibility to ensure that employees exercise their constitutional right to freedom of association with no fear of victimisation.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"37 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138979784","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":"Is the Stick Real? Trends from Concluded Prosecutions of Industrial Environmental Crimes in South Africa","authors":"Melissa Strydom, Tracy-Lynn Field","doi":"10.17159/1727-3781/2023/v26i0a14940","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14940","url":null,"abstract":"South Africa’s suite of environmental laws contains many criminal sanctions and penalty provisions. Whether the criminal sanction is an effective tool that realises the constitutionally protected environmental right depends on how it is practically enforced and whether potential offenders become aware of such enforcement measures. This article reports on research aimed at collecting and analysing prosecutions for industry-related transgressions (conducted mainly in Magistrate’s Courts) and involving offences under the National Environmental Management Act (NEMA), the Waste Act, the Air Quality Act and the National Water Act. An analysis of 53 prosecutions shows that most cases resulted in convictions, half were concluded through plea and sentence  agreements, half involved the conviction of individuals, no direct imprisonment penalties were imposed, and low fines  were imposed in most cases. The findings include that there is some inconsistency in how different listed activities or water uses are treated as separate or consolidated criminal charges, and the exact number, outcome or trends arising from such cases are difficult to determine as there is no central, readily accessible database of concluded prosecutions. Increased access to such information would improve knowledge, implementation and the effective use of the criminal sanction through prosecutions. In turn, this would contribute to the improved realisation of the constitutionally protected environmental right.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"278 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139242670","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":"Realising the Right to Electricity Through Off-Grid Power Solutions in South Africa","authors":"Germarie Viljoen, Felix Dube","doi":"10.17159/1727-3781/2023/v26i0a15637","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15637","url":null,"abstract":"The South African government is navigating many basic municipal service delivery challenges, including a growing electricity supply deficit. Eskom Holdings SOC Limited, the state-owned power utility, is struggling to generate and supply a stable and uninterrupted flow of electricity through its grid system. The inadequate generation capacity results in rotating power outages, known as loadshedding, which occur when demand surpasses generating capability. This fundamental service delivery challenge, in conjunction with South Africa's climate change responses, including the decision to work towards energy efficiency, renewable energy and cleaner energy or a \"just transition\" from coal to clean energy, encourages many South Africans who have the necessary means to invest in off-grid energy solutions that operate alongside and at times independently of Eskom's grid. This paper considers from a legal perspective how and to what extent legislation on electricity supply and municipal by-laws empower household consumers to fulfil their right to electricity by going off-grid. The paper ultimately considers the import of this on South Africa's energy governance framework for electricity provision in the country.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"33 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244264","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":"The First Magistrates of Potchefstroom","authors":"Liesl Wildenboer","doi":"10.17159/1727-3781/2023/v26i0a15593","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15593","url":null,"abstract":"Although the history of Potchefstroom has been studied extensively already, not much is known about the early judicial officials appointed there. This contribution in honour of Professor Willemien du Plessis upon her retirement attempts to remedy this by taking a closer look at the various individuals appointed as the magistrates for Potchefstroom in chronological order from 1839 to 1862. The scope of this contribution does not allow for an in-depth discussion of each magistrate. Instead, the focus of this study is to determine who the first appointees were and to establish the starting and ending dates of each magistrate's term in office. Where possible, the discussion also includes some personal information and anecdotes about each individual magistrate in order to distinguish them from their predecessors and successors to give the reader a better idea of the personality behind the name. Important judicial (or political) events that took place during each individual's term in office are also highlighted.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"97 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139242927","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":"Laudatio for Prof Willemien du Plessis","authors":"R. Steenkamp","doi":"10.17159/1727-3781/2023/v26i0a16837","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16837","url":null,"abstract":"Tribute to Professor Willemien du Plessis.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245736","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":"Traditional Authorities and State Functions in South Africa: A Complex Relationship of Private Participation?","authors":"Christa Rautenbach, Gerrit Ferreira","doi":"10.17159/1727-3781/2023/v26i0a16229","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16229","url":null,"abstract":"This contribution explores the relationship between traditional authorities and state functions in South Africa. The authors argue that traditional leaders, while not organs of the state, have functions similar to state functions, especially on a local government level. The authors suggest that this relationship can be characterised as a form of private participation in exercising state functions, although it does not amount to full privatisation. The recognition of traditional law systems in the Constitution and relevant legislation provides a legal basis for this relationship. The authors also examine the role of public-private agreements in enhancing legal certainty and clarity. Finally, the authors consider the potential benefits of transforming traditional authorities into state organs, aiming to promote the development of traditional communities and enhance the delivery of essential services.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"95 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243273","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}