Potchefstroom Electronic Law Journal最新文献

{"title":"Tribute to Professor Willemien du Plessis: A Legacy of Excellence and Compassion","authors":"Elmarie Van der Schyff","doi":"10.17159/1727-3781/2022/v25i0a16982","DOIUrl":"https://doi.org/10.17159/1727-3781/2022/v25i0a16982","url":null,"abstract":"A personal tribute to professor Willemien du Plessis.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244124","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":"Editorial: Celebrating the Legacy of Professor Willemien du Plessis in Customary Law and Land Issues","authors":"Christa Rautenbach, J. Pienaar","doi":"10.17159/1727-3781/2023/v26i0a17114","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a17114","url":null,"abstract":"In the world of academia, there are individuals who stand as beacons of inspiration, mentorship, and unwavering commitment to the pursuit of knowledge. Professor Willemien du Plessis, a stalwart in the field of law and an esteemed academic for over three decades at the North-West University, is unequivocally one such luminary. Her journey through the realms of land and customary law issues in South Africa has not only left an indelible mark on her students and colleagues but has also had a profound impact on the broader legal community. As she prepares to embark on a well-deserved retirement, we, the colleagues and peers whose lives she has touched, take it upon ourselves to celebrate her exceptional contributions with this special edition.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"7 51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139242338","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":"Editorial: Environmental and Energy Law – Willemien du Plessis","authors":"Anél du Plessis, Louis Kotze","doi":"10.17159/1727-3781/2010.17159/1727-3781/2023/v26i0a1725823/v26i0a17259","DOIUrl":"https://doi.org/10.17159/1727-3781/2010.17159/1727-3781/2023/v26i0a1725823/v26i0a17259","url":null,"abstract":"Not applicable","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"17 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245323","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 Appraisal of the Requirements for the Validity of a Customary Marriage in South Africa, Before and After the Recognition of Customary Marriages Act 120 of 1998","authors":"Matthews Eddie Nkuna-Mavutane, J. Jamneck","doi":"10.17159/1727-3781/2023/v26i0a15298","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15298","url":null,"abstract":"This article appraises the requirements for the validity of a customary marriage. It peruses two eras separated by a statute called the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Prior to delving into what the requirements for validity before the RCMA were, the article differentiates between peremptory and directory provisions. These terms are usually applied in interpreting statutes. They also find application in determining the requirements of the validity of customary law. The era before the RCMA lists essential requirements for a valid customary marriage. The gist of these requirements is as follows: consent of the bride and bridegroom (spouses), consent of the bride’s father or guardian (parents), payment of lobolo, the handing over of the bride and the absence of a civil marriage by either spouse. If any of these requirements were not met, there was no valid customary union. The RCMA added more requirements which seem to address formal and customary law requirements. Both prospective spouses need to be 18 years or older, with certain exceptions, and must consent to getting married in terms of customary law. These requirements are peremptory. The customary law requirements relate to the negotiation and celebration of such a marriage. These requirements remain essential. Unlike formal requirements, these requirements allow indigenous African people a certain latitude. As a result, they are directory. This article further deliberates on certain issues regarding the requirements of customary marriages that became contentious. This includes the delivery of lobolo, the handing over of the bride, polygamous and dual marriages, and the registration of customary marriages. In conclusion, it is shown that customary law is a rapidly growing independent source of law. The requirements for validity must be comprehended with this flexibility in mind and should not unnecessarily be held as being static.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"13 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139246285","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":"Smart City Regulation and Environmental Sustainability in the Context of Land Use Planning in Mauritius: A Critical Review","authors":"O. L. Lim Tung","doi":"10.17159/1727-3781/2023/v26i0a17151","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a17151","url":null,"abstract":"A \"smart city\" involves planned urbanisation, a system which has been adopted in many countries involving tailor-made solutions to suit local challenges while making the most of local opportunities. Smart city initiatives started in Mauritius in 2015 after the \"Smart City Scheme\" (SCS) Regulations were issued the same year under the Investment Promotion Act (IPA). By 2021 there were twelve approved smart cities in the main island of Mauritius in different phases of completion, while other such projects are seeking approval. While the smart city concept encourages the development of land into coordinated urban planning, it is mostly agricultural land in Mauritius which is being targeted for such real estate investment. The conversion of some lands belonging to large sugar companies for development into hotels and leisure facilities was part of the Mauritian government strategy to diversify the sugar industry after the dismantling of the African Caribbean Pacific-European Union (ACP-EU) Sugar Protocol. Since 2002 the IPA has enabled the development of luxury residential property in the Integrated Resort Scheme (IRS). As from 2007 the Real Estate Development Scheme (REDS) included not only the IRS but also the Real Estate Scheme (RES) and the Invest Hotel Scheme (IHS), which are smaller in size and more affordable. In 2015 Mauritian decision-makers came up with the \"smart city\" concept as a blueprint for coordinated urban planning with large-scale mixed-use developments involving smart technology and pioneering innovation. Regulatory approval for a \"smart city\" project includes a SCS certificate, a Land Conversion Permit where necessary, an environment impact assessment (EIA), a licence and a Building and Land Use Permit, all of which are issued via a fast-track procedure. As a small island developing State (SIDS) Mauritius has limited land resources and it is important that the setting up of smart cities should be limited and environmentally sustainable. Setting up a smart city involves more than mere urbanisation and property development, and the plan must be carefully evaluated. This paper critically reviews the regulation of smart cities and smart city initiatives in the context of land use planning in Mauritius to consider the extent to which they are environmentally sustainable, and makes recommendations to improve their environmental sustainability.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"604 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243670","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 Analysis of the Significance of Integration of the Bride in Customary Marriages and its Potential Constitutionality","authors":"T. Manthwa","doi":"10.17159/1727-3781/2023/v26i0a15492","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15492","url":null,"abstract":"Firstly, this contribution opts for the words \"integration of the bride\" rather than \"handing over of the bride\" during customary marriages. It is argued that the term \"handing over of the bride\" is problematic because it creates the impression that a woman is being treated as property or that she is being sold to the groom's family. The integration of the bride is a significant step in the conclusion of a customary marriage. However, this does not mean that the process carries the same importance and weight for all traditional groups in South Africa. Some groups may regard a ritual performed during the integration of the bride so important that a customary marriage cannot be concluded without it. It is therefore important for courts to focus on cultural nuances and differences between various groups when determining if certain rituals can be waived. Courts recognise an intimate relationship as a valid customary marriage even when it has not complied with an important ritual regarded as significant for the conclusion of a customary marriage. The courts should rather focus on other available avenues to protect vulnerable partners from the consequences of an intimate relationship’s not being recognised as a valid customary marriage. The courts must recognise the fact that the consent of the bride-to-be is important when determining whether a marriage was concluded. This refers to the consent of the bride to perform a ritual which is part of the ceremony of the integration of the bride. So, a marriage must not be recognised as valid if the bride did not consent to it or did not consent to a ritual performed as part of concluding a customary marriage. While the constitutionality of the integration of the bride was raised in an obiter dictum in the 2019 case of Sengadi v Tsambo, the primary consideration should be the consent of the bride. Integration should not be a problem where the bride has consented to it.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243871","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":"Transformative Legal History and the (Re)Classification of the South African Law of Delict","authors":"E. Zitzke","doi":"10.17159/1727-3781/2023/v26i0a15636","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15636","url":null,"abstract":"The South African law of delict is traditionally classified as a private-law discipline. This classification is usually made with reference to the actor, power and interest theories. According to the actor theory, private law regulates disputes between non-state actors inter se while public law regulates disputes involving the state. The power theory maintains that private law regulates disputes between equals while public law brings equality where inequality exists. The interest theory dictates that there are some interests that are individualistic (where private law steps in) while other interests belong to the public at large (the playing field of public law). In this article honouring Prof Willemien du Plessis's contribution to legal history it is argued that none of the above traditional theories of classification can be used effectively to classify the South African law of delict as a purely private-law discipline. Instead, our law of delict fulfils a hybrid role, straddling public and private law, with much transformative potential. Actor theorists fail to account for the fact that the South African law of delict today regulates disputes between non-state actors inter see as well as the law on state liability. The power theory crumbles in the South African law of delict's private-law classification because oftentimes one of the strong reasons invoked to impose liability on a wrongdoer is that wrongdoer's position of relative power over the victim. The interest theory sheds doubtful light on the classification of the South African law of delict because it is difficult to justify how individual-rights infringements are either purely private or public. In the end, relaxing the absoluteness of the claim that the South African law of delict exclusively falls in the domain of private law could assist us in recognising the role that delict could play in transforming South African society in line with constitutional aspirations, fostering the responsible use of power, and working towards the collective wellbeing of our society.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"49 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139242793","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":"Getting Ahead of the 'Game': The Reclassification of Wild Animals Contained in Protected Areas as Res Publicae\"","authors":"Inge Snyman, Frank Philip Bothma","doi":"10.17159/1727-3781/2023/v26i0a15848","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15848","url":null,"abstract":"The common law \"escape rule\" determines that if a wild animal escapes from its controlled environment and reverts to its natural state of freedom, it is res nullius and may be acquired by another party by occupatio. To place the owners of game in a more favourable position when their game escapes from its enclosure, the aforementioned common law rule was amended by the Game Theft Act 105 of 1991 (GTA). Sections of the Game Theft Act 105 of 1991 came under discussion in Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (Wildlife Ranching South Africa amicus curiae) 2016 4 SA 457 (ECG) and later in Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari 2018 4 SA 206 (SCA). Two separate issues came before the courts. First, whether a certificate in terms of section 2(2)(a) of the GTA is a prerequisite for the operation of section (2)(1)(a) of the GTA; and second, whether the common law must be developed to provide that wild animals that are sufficiently contained in a protected area managed by an organ of state charged with the management thereof in terms of relevant nature conservation legislation in order to promote conservation, are res publicae owned by such organ of state. Neither one of the cases thoroughly considered the second issue before the court. Therefore, the purpose of this contribution is to investigate the possibility of developing the common law to provide that wild animals that are sufficiently contained in a protected area managed by an organ of state charged with the management thereof in terms of relevant nature conservation legislation in order to promote conservation are res publicae owned by such organ of state. In Roman Law res publicae were classified as public things that were out of commerce and intended for public use. They are often referred to as state property, but they belong to the entire civil community and their common interests in these things are safeguarded by the state. This proposed development bears some resemblance to the international environmental law principle known as the public trust doctrine. The public trust doctrine determines that a country's sovereign acts as the guardian of the public interest in natural resources by holding them in trust for the benefit of the nation as a whole. The article provides a theoretical analysis of the proposed development of the common law by exploring (a) the significance of biodiversity conservation and protected areas in South Africa; (b) the application of the GTA in the context of protected areas; (c) the concepts of res nullius, res publicae and the public trust doctrine and (d) the development of the common law in South Africa.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"93 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139242591","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":"Lessons for Nigeria from the Experience of South Africa in Managing the Challenges of Transfer of Title and Administration of Fragmented Property Schemes","authors":"K. Omidire","doi":"10.17159/1727-3781/2023/v26i0a15638","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15638","url":null,"abstract":"A \"fragmented property\" or \"multiple unit\" property is one in which several persons have ownership or title interest in sections or parts of a single property scheme. The title interest could be in a block of flats/apartments or maisonettes in a building, and a building in a group of buildings, or townhouse(s), and fully detached houses in a complex or estate. Without clear rules regulating the nature and scope of title, the use of individual units in the scheme, and the conduct and inter-personal relations of the parties involved, incessant litigation or self-help remediation is likely to be common. In Nigeria the first fragmented property scheme was established by the government in 1959 to provide accommodation for senior  public servants. Several others have followed, and the establishment of housing estates is no longer restricted to the government. However, the intractable problem with schemes in Nigeria is that there is a lack of a specific legal framework to address the provision of an unimpeachable title to buyers, and for the administration of schemes for the benefit of all parties. There is therefore a need to address the problems associated with the transfer of title and the administration of fragmented property schemes. Doing so is the objective of this article. To achieve that objective, the legal framework applicable to fragmented property schemes in South Africa is critically considered with a view to learn from the experience of the country's robust legislation developed by caselaw, in addition to academic opinions over a period exceeding half a century. Recommendations to deal with the challenges in Nigeria regarding the issues of transfer of title and management of fragmented property schemes are proposed.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"32 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139244101","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 letter to my colleague and friend: Willemien du Plessis","authors":"Anél du Plessis","doi":"10.17159/1727-3781/2023/v26i0a17259","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a17259","url":null,"abstract":"Not applicable","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"81 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245393","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}