Potchefstroom Electronic Law Journal最新文献_第8页

Environmental Governance, Hollow Environmentalism, and Adjudication in South Africa 南非的环境治理、空心环境论和裁决

Potchefstroom Electronic Law Journal Pub Date : 2023-11-23 DOI: 10.17159/1727-3781/2023/v26i0a16884

C. Soyapi

{"title":"Environmental Governance, Hollow Environmentalism, and Adjudication in South Africa","authors":"C. Soyapi","doi":"10.17159/1727-3781/2023/v26i0a16884","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a16884","url":null,"abstract":"In this paper my thought experiment leads me to posit that South Africa's environmental governance often results in what I term \"hollow environmentalism\". This term describes the inevitable long-term outcome of promulgating laws and policies that are idealistic and seem symbolic and that at times fail to achieve their intended objectives or environmental promise. On a narrower scale, hollow environmentalism can also manifest when such symbolic environmental laws and policies lead to judicial decisions that lack substantive ecological justifications, perhaps even resembling symbolic judgments. I substantiate this argument through four key considerations. I commence with a reality check on environmental governance, emphasising that the state is not a neutral actor, necessitating closer scrutiny of state decisions. This leads me to the conclusion that governance stands at a critical juncture. I argue that the symbolic nature of our environmental laws, broadly speaking, often makes it challenging for the state to fully meet the lofty ideals it presents, thereby also complicating court decisions in these matters. Next, I align my thoughts with recent literature on adjudication in the context of the climate crisis. This literature stresses the need for courts to be bold and innovative in their judicial roles, given the precarious nature of stabilising environmental disputes. In the penultimate section I bring the discussion to a close by suggesting two interconnected possibilities to address hollowness in the face of climate change: \"sunsetting\" and \"substitution\".","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"41 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139243513","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

Deadly Air and the Misinterpretation of the Section 24 Environmental Right: The Groundwork Trust Case 致命的空气和对第 24 条环境权的曲解：基础工作信托案

Potchefstroom Electronic Law Journal Pub Date : 2023-11-23 DOI: 10.17159/1727-3781/2023/v26i0a15833

Michael Kidd

引用次数: 0

The Genesis of the Common Purpose Doctrine in South Africa 南非共同目的论的起源

Potchefstroom Electronic Law Journal Pub Date : 2023-11-23 DOI: 10.17159/1727-3781/2023/v26i0a16385

Shannon Hoctor

引用次数: 0

Comparative Notes on the use of Commercial Litigation Funding in Insolvency: Australia and South Africa 关于在破产中使用商业诉讼资金的比较说明：澳大利亚和南非

Potchefstroom Electronic Law Journal Pub Date : 2023-11-21 DOI: 10.17159/1727-3781/2023/v26i0a15975

Sulette Lombard, Andre Boraine

{"title":"Comparative Notes on the use of Commercial Litigation Funding in Insolvency: Australia and South Africa","authors":"Sulette Lombard, Andre Boraine","doi":"10.17159/1727-3781/2023/v26i0a15975","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15975","url":null,"abstract":"This article explores the application of third-party litigation funding (TPLF), also referred to as commercial litigation funding, in insolvency litigation by way of a comparison of the legal position in Australia and South Africa. It proposes that TPLF could offer significant benefits by enabling liquidators of insolvent estates to pursue and enforce claims through civil proceedings with the aim of swelling the assets of the insolvent estate, ultimately to the advantage of the creditors. Since both jurisdictions share elements of English law, both were confronted with the English law doctrines of champerty and maintenance initially being regarded as impediments to the development and/or use of TPLF. Currently, and mainly due to developments in terms of case law, the concept of TPLF has in principle been accepted in both jurisdictions. However, in Australia the development originally transpired in the field of insolvency litigation. In South Africa the context was more in the confines of general litigation. It is submitted that the South African system could benefit by considering various aspects of the Australian system regarding the use of TPLF in insolvency litigation. It remains a question whether or not the respective systems would benefit by adopting comprehensive regulatory measures to regulate TPLF.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"107 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139253489","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

Bigen Africa Services v City of Cape Town: Audit Culture and State Self-Review in the Water and Sanitation Sector 比根非洲服务诉开普敦市:水和卫生部门的审计文化和国家自我审查

Potchefstroom Electronic Law Journal Pub Date : 2023-11-10 DOI: 10.17159/1727-3781/2023/v26i0a14116

Tracy-Lynn Field, Nino Rodda

引用次数: 0

The Influence of Reasonableness in Determining Delictual or Tort Liability for Psychological or Psychiatric Harm in South African and English Law 南非和英国法律在确定心理或精神损害的侵权责任时的合理性影响

Potchefstroom Electronic Law Journal Pub Date : 2023-11-09 DOI: 10.17159/1727-3781/2023/v26i0a15262

Raheel Ahmed

{"title":"The Influence of Reasonableness in Determining Delictual or Tort Liability for Psychological or Psychiatric Harm in South African and English Law","authors":"Raheel Ahmed","doi":"10.17159/1727-3781/2023/v26i0a15262","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15262","url":null,"abstract":"Due to a lack of authority in Roman-Dutch law in respect of claims for psychological harm, our courts in South Africa relied on English law for guidance, in particular the tort of negligence where emphasis is placed on reasonable foreseeability of harm. The courts in both jurisdictions generally face challenges with who exactly is entitled to claim, the quantification of the damages that should be awarded and how to limit delictual or tort liability emanating from these types of claims. South African law also followed English law in making the distinction between primary and secondary victims and as will be shown in this contribution, limiting liability in respect of secondary victims is problematic. The courts generally tread with caution in awarding damages for pure psychological or psychiatric harm and several policy considerations are taken into account when deciding to award damages or not. Nevertheless, as will be shown in this contribution, the courts in South Africa and the United Kingdom acknowledge these claims and have been developing the law around the cases that have come before them. What is rather interesting and prevalent though with regard to primary and secondary victim claims for psychological or psychiatric harm in these jurisdictions, is the implicit and explicit influence of \"reasonableness\" in determining delictual or tort liability for these types of claims. This will be explored further in this contribution.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135242893","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

Emergency Powers and Human Rights Derogations under the Constitutions of Lesotho 《莱索托宪法》规定的紧急权力和克减人权

Potchefstroom Electronic Law Journal Pub Date : 2023-11-09 DOI: 10.17159/1727-3781/2023/v26i0a15732

Hoolo 'Nyane

{"title":"Emergency Powers and Human Rights Derogations under the Constitutions of Lesotho","authors":"Hoolo 'Nyane","doi":"10.17159/1727-3781/2023/v26i0a15732","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15732","url":null,"abstract":"Constitutions worldwide occasionally reach moments of public emergency when deviation from the ordinary normative framework is inevitable. To regulate the exercise of public power even during such moments, constitutions have provisions for emergencies and derogation from the normative frameworks. The Constitution of Lesotho is no exception. Section 21, read with section 23, provides both procedural and substantive requirements for the use of emergency powers and derogation from human rights. This constitutional framework exists alongside other pieces of legislation, such as the Public Health Order of 1970, the Emergency Powers Order of 1988 and the Disaster Management Act of 1997. These pieces of legislation, except the Disaster Management Act, predate the Constitution. Hence, they are not in harmony with the Constitution. The two recent incidences of using emergency powers – the 2020 coronavirus-induced state of emergency and the 2022 recall of parliament state of emergency. These two incidences laid bare two problems relating to the emergency powers regime in Lesotho. Firstly, there is no harmony between the Constitution and pieces of legislation relevant to the use of emergency powers. Secondly, the jurisprudence of the superior courts on the subject is still underdeveloped. The purpose of this article is to critically analyse the constitutional and legislative framework for exercising emergency powers and human rights derogation in Lesotho.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"100 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135242823","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

South African Controlled Foreign Companies' Rules and the Digital Economy 南非控股外国公司的规则与数字经济

Potchefstroom Electronic Law Journal Pub Date : 2023-11-09 DOI: 10.17159/1727-3781/2023/v26i0a15563

Khodani Sengwane

{"title":"South African Controlled Foreign Companies' Rules and the Digital Economy","authors":"Khodani Sengwane","doi":"10.17159/1727-3781/2023/v26i0a15563","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a15563","url":null,"abstract":"South Africa's controlled foreign company (\"CFC\") rules were enacted more than two decades ago before most of today's business models existed. These are anti-avoidance rules that ensure the South African taxation of profits diverted offshore by South African residents. In terms of the CFC rules, the profits of a non-resident company may also be subject to tax in South Africa at the hands of its South African resident shareholder if such non-resident company is considered to be a CFC. Advances in technology developments and the use of information communication and technology (\"ICT\") have given rise to what is referred to as the digital economy. The term refers to economic activities hinged on the use of ICT and the internet. Digitalisation has made it possible for a business to carry on economic activity without the need for a multitude of offices, staff, equipment, and other resources. As a result, new business models like Uber and Shien have emerged. This paper argues that the current South African CFC rules have not kept pace with these new business models and do not effectively regulate the new business models and the digital economy. This paper recommends that the CFC rules be updated to address the digital economy and new business models by amending the rules, incorporating the provisions of Electronic Communications and Transactions Act 25 of 2002 into the rules, using country-by-country reporting, and even considering implementing a regime alternative to CFC rules.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":" 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135242804","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 Brief Analysis of the Judgment in Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC) 浅析妇女法律中心信托诉南非共和国总统案判决2022 5 SA 323 (CC)

Potchefstroom Electronic Law Journal Pub Date : 2023-10-31 DOI: 10.17159/1727-3781/2023/v26i0a14595

Muneer Abduroaf, Najma Moosa

{"title":"A Brief Analysis of the Judgment in Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)","authors":"Muneer Abduroaf, Najma Moosa","doi":"10.17159/1727-3781/2023/v26i0a14595","DOIUrl":"https://doi.org/10.17159/1727-3781/2023/v26i0a14595","url":null,"abstract":"On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is \"no\". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135869861","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

Tacit Choice of Law in International Commercial Contracts. An Analysis of Future Instruments of Developmental Organisations 国际商事合同中的隐性法律选择。发展组织的未来工具分析

Potchefstroom Electronic Law Journal Pub Date : 2023-10-25 DOI: 10.17159/1727-3781/2023/v26i0a14301

Garth J Bouwers

引用次数: 0