bluuebunny/crossref_metadata_2025 huggingface dataset:
BELIEF IN WITCHCRAFT AS A MITIGATING FACTOR IN SENTENCING S v Latha 2012 (2) SACR 30 (ECG)
Authors: Shannon Hoctor
Published: October 2021

Supernatural belief does not sit easily with the law. Squaring such belief with legal concepts such as the reasonable person is a particularly vexing task. Nevertheless, it is necessary for the courts to take account of such belief as a fact of the South African society. Belief in witchcraft is an ongoing and widespread phenomenon, giving rise to the question whether such belief can play a role in exculpating, or mitigating the punishment of those who engage in criminal conduct as a consequence of such belief. A recurring problem for the courts is how to deal with the situation where a genuine belief in witchcraft provides the motivation for the killing of a suspected witch or wizard in order to protect or defend the interests of the accused or another person. Can such a belief mitigate punishment? This problem arose in the case of S v Latha (2012 (2) SACR 30 (ECG)).
SHOULD REFUSAL TO WORK FOLLOWING BREACH OF CONTRACT BY THE EMPLOYER REALLY BE A STRIKE? National Union of Mineworkers on behalf of Employees v Commission for Conciliation Mediation and Arbitration (2011) 32 ILJ 2104 (LAC)
Authors: Thanduxolo Qotoyi
Published: October 2021

The employment relationship is by its very nature premised on the foundation of inherent inequality between the employer and the employee. The employer by virtue of the resources at its disposal is in a stronger position than the employee. One of the strong criticisms levelled against the common law has always been its indifference to this unequal division of power. The common law tends to deal with a contract of employment on the basis that it is an agreement entered into voluntarily and on equal footing bythe employer and the employee. Unsurprisingly, the common law regards terms that regulate the employment relationship as being freely entered into by the contracting parties. This assumption overlooks the inherent inequality that characterizes the employment relationship. It is on account of this assumption that the common law can be mostly associated with unfairness when it comes to the employment relationship. Nowhere is this assumption clearer than in cases of dismissal. In relation to dismissal all that the common law demands is that the dismissal must be lawful. This requirement is easily met if the employer merely provides the employee with a notice of the dismissal. Under the common law there is no mention of fairness as a requirement for a dismissal. In order to address the deficiencies of the common law, the legislature has enacted labour legislation like the Labour Relations Act (66 of 1995, hereinafter “the LRA”) which seeks to bring in some equilibrium in the employment relationship. It must also be said that the LRA provides partiesinvolved in the employment relationship with a framework within which employment issues must be addressed. This has resulted in a situation where in some instances there is a collision between the common law and the LRA. The critical question that emerges is whether the rights and remedies of the employees in the event of a breach of contract must be exclusively determined within the framework of the LRA. If the answer is in the affirmative then it means that the common law has lost some of its relevance in employment issues. This case note seeks to analyse the tension between the common law and the LRA in the context of employees withholding their labour on account of a breach of contract by the employer. It also seeks to analyse the implications of the approach adopted by the Labour Appeal Court in National Union of Mine Workers on behalf of Employees v Commission for Conciliation Mediation and Arbitration ((2011) 32 ILJ 2104 (LAC)).
PAYING THE PIPER (IN ABSENTIA) SFF Association v Xstrata 2011 JDR 0407 (GSJ)
Authors: PJ Badenhorst
Published: October 2021

This decision focused on the impact of the Mineral and Petroleum Resources Development Act (28 of 2002, hereinafter “MPRDA”) on an old-order mining right (based upon a mineral lease) which had been converted into a mining right in terms of the transitional arrangements of Schedule II of the MPRDA. In particular, the court held that consideration in the form of a (contractual) royalty, as provided for in the mineral lease, remains payable upon conversion of an old-order mining right by its former holder (miner) to the grantor of the common-law mining right. The outcome of the decision, namely, continued liability for contractual royalties, has far-reaching consequences for such former holders of old-order mining rights. Continued liability would result in double payment of royalties by miners. This is because under the new dispensation, statutory royalties can be imposed by the state (s 3(1)(b) of the MPRDA) and were imposed and became payable upon commencement of the Mineral and Petroleum Resources Royalty Act (28 of 2008) on 1 March 2010. From the said date, in terms of this decision, double royalties would be payable by miners. If correct, it can be taken one step further. Owing to continued receipt of contractual royalties, former holders of common-law mineral rights would not have suffered an expropriation of property by virtue of the provisions of the MPRDA for purposes of item 12(1) of Schedule II of theMPRDA. Such expropriation would have taken place if the contractual duties to pay royalties had indeed been terminated upon cessation of old-order mining rights (as to such a possible claim, see further, Badenhorst and Mostert Mineral and Petroleum Law of South Africa 2004 (Revision service 7) 25–53). These consequences will be explained in more detail in this discussion as well as the correctness or not of the decision. I have written about the acquisition, nature, content, transfer and loss of old order rights before (see Badenhorst “The Make-up of Transitional Rights to Minerals: Something Old, Something New, Something Borrowed, SomethingBlue …? 2011 4 SALJ 763–784) to which the reader is referred. This decision sheds new light on this topic.
PROTECTING A WIFE FINANCIALLY AT THE TIME OF DIVORCE – A COMPARISON BETWEEN SOUTH AFRICAN WOMEN MARRIED IN TERMS OF SOUTH AFRICAN CIVIL LAW AND ISLAMIC LAW, WITH SPECIFIC REFERENCE TO THE MAHR
Authors: Marita Carnelley  , Suhayfa Bhamjee
Published: October 2021

This article compares the South African civil-law and Islamic-law positions with regard to the financial protective measures available to a wife at the time of marriage and divorce. In this regard, the respective matrimonial property systems are discussed, with special emphasis on civil antenuptial and Muslim marriage contracts. In addition, other protective measures inherent to the two systems to prevent prejudice both during the marriage and at the time of divorce, are discussed. It is submitted that, although the provisions of Islamic law do not provide the same financial protection for wives compared to the South African civil law, the Islamic concept of mahr could potentially be used in the Muslim marriage contract to enhance financial security of a Muslim wife at the time of divorce. The article also considers dual marriages where the same spouses marry each other in terms of both civil and Islamic law. In particular, the incorporation of the Islamic concept of mahr into civil antenuptial contracts is discussed with reference to the legal position in Canada to illustrate potential legal problems.
MUTUAL ACCOMMODATION OF RELIGIOUS DIFFERENCES IN THE WORKPLACE – A JOSTLING OF RIGHTS
Authors: Radley Henrico
Published: October 2021

In and of itself a constitutional democracy is meaningless. It is the extent to which our rights as individuals in a pluralistic society are given effect and respected that brings to life the constitutionally enshrined values and principles. Religious diversity in a secular society acts as a catalyst of ingredients for conflict in the workplace. Specific legislation has been enacted to give effect to the right against unfair discrimination. Our courts have implemented and interpreted such equality legislation as imposing a duty of accommodation on the employer with regards to the employee’s religion. Our labour-law jurisprudence on transfers of business has recognized a duty offairness that cuts both ways in favour of the employee and employer. In operational requirement exercises the co-operation of both parties is required. In Canada, a duty of mutual accommodation has been utilized in religious discrimination cases. The current duty of accommodation should be extended to include a duty of mutual accommodation given that religious pluralism is a phenomenon affecting both employee and employer, thus enjoining both parties to engage in realistic measures to embrace diversity.
HATE CRIMES AGAINST BLACK LESBIAN SOUTH AFRICANS: WHERE RACE, SEXUAL ORIENTATION AND GENDER COLLIDE (PART II)
Authors: Kamban Naidoo  , Michelle Karels
Published: October 2021

This article, which is the second of a two-part submission, examines the South African legal position pertaining to sexual offences and murder as a continuation of the theme introduced in Part One. The authors then examine the concept of motive before providing a brief overview of hate crime legislation and/or policy in the United States of America and Germany. The core of the article examines three possible routes for South Africa to curb hate crime. Firstly, the creation of substantive hate crime law in the form of legislation, secondly, the amendment of current legislation to incorporate protection against this form of crime and thirdly, the retention of thecurrent status quo coupled with the roll-out of civil society initiatives to curb hate-motivated crime. The conclusion of the article provides recommendations from a civil society and criminal justice perspective.
THE STATUS OF A POST-DATED CHEQUE PRIOR TO THE POST-DATE
Authors: Phillemon Makakaba
Published: October 2021

Electronic payment seems to be taking over but cheques are still used for valid reasons. Post-dated cheques are used for reasons such as making an advance payment, securing future payment at a future time, etcetera. However, the status of post-dated cheques prior to the post-date has been questionable since many years ago. The consumers who were affected by this situation were for decades placed in a quandary since the courts had been unable to resolve the uncertainty. This article is an analysis of the status of post-dated cheques prior to the post-date according to the South African law of negotiable instruments. A comparative study of English law is undertaken since the South African law of negotiable instruments is derived from the English law; hence the English law position is imperative and influential in regard to the South African law of negotiable instruments. Consideration is given to the South African and English legislation for the definitions of concepts such as a bill of exchange, cheque, payable on demand, etcetera. It will be shownthat post-dated cheques are regarded as demand instruments and thus valid cheques in both South African law and English law.
ARBEIDSREGTELIKE ONTWIKKELING VAN DIE GEMENEREG: QUO VADIS?
Authors: Fanie van Jaarsveld
Published: October 2021

Gedurende die afgelope paar jaar het interessante tendense in arbeidsregtelike verband neerslag gevind – tendense wat aan die een kant deur regspragmatisme gekenmerk word en te verwelkom is, maar aan die ander kant, ander wat deur 'n stremmende bekommernis oor onnodige dualisme gekenmerk word en voorgaande tendense neutraliseer. Die Suid-Afrikaanse arbeidsverhoudinge-dinamika is verteenwoordigend van die “regswoelinge” wat die afgelope aantal jare hierdie aktuele terrein vandie reg gekenmerk het. In die resente en nou reeds bekende uitspraak van Gcaba v Minister for Safety & Security (2009 30 ILJ 2623 (KH)) is die volgende insiggewende uitlating deur die Konstitusionele Hof gemaak wat van bogemelde gedagtes onderlê en realisties tipeer: “Yet the legislature, courts, legal representatives and academics often create complexity and confusion rather than clarity and guidance. In the case of fairly new legislation based on a young Constitution this is perhaps understandable”.Die ontwikkeling van die gemenereg en meer spesifiek die gemeenregtelike dienskontrak ingevolge die konstitusionele voorskrifte van artikels 8(3) en 39(2) van die Grondwet van 1996 ten einde dit in ooreenstemming met die Handves van Menseregte te bring, het 'n welkome dog effe omstrede verloop gehad totdat dit deur 'n vreemde “ommekeer” van sienswyse tot stilstand gebring is.Teen hierdie agtergrond sal die omstrede saak van SA Maritime Safety Authority v McKenzie (2010 31 ILJ 529 (HHA)) bespreek word waarin gemelde tendense, beslag ontvang het asook die verskillende sienswyses wat in reaksie daarop gevolg het.
SECTION 86(10) OF THE NATIONAL CREDIT ACT 34 OF 2005 Firstrand Bank v Raheman (5345/2010) [2012] ZAKZDHC 3 (10 February 2012)
Authors: Darren Subramanien
Published: October 2021

The purpose of the National Credit Act 34 of 2005 (hereinafter “the Act”) is not only to protect the interests of consumers but to regulate the interests of credit providers as well. There have been a number of views expressed by our courts in dealing with the debt-review process. The debt-review process is found in Part D of Chapter 4 of the Act. The Act makes provision for a consumer who is over-indebted or where he or she is experiencing financial strain to have his or her affairs rearranged by a debt counsellor. Thequestion as to when a creditor may interrupt these affairs is discussed in the case of Firstrand Bank v Raheman (supra).
COMMERCIAL-LAW REASONS (OTHER THAN TAX) FOR SETTING UP A HEADQUARTER COMPANY: A SOUTH AFRICAN OBSERVATION
Authors: Thabo Legwaila
Published: October 2021

A headquarter company is a company within a group of companies which supervises and co-ordinates the administrative activities of the group. Headquarter companies are formed for various tax- and non-tax-related reasons depending on the particular needs of the group in which the headquarter company is formed. In the setting up a headquarter-company consideration is given to various key determinants such as political and investment climate, corporate laws and treasury considerations. Tax reasons include deferring tax on income and capital gains, maximizing credit for foreign taxes and reducing withholding taxes. However, when the decision is taken to interpose a headquarter company between the investor country and the operating subsidiaries’ country, the real economic purposes and benefits are usually non-tax in nature. These include the ability to raise external finance, circumventing the application of exchange controls, protection of assets as well as group reorganization and structural consolidation.
THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS, ITS REGIONAL SYSTEM, AND THE ROLE OF CIVIL SOCIETY IN THE FIRST THREE DECADES: CALIBRATING THE “PAPER TIGER”
Authors: Dejo Olowu
Published: October 2021

Neither has any other human-rights treaty received as much vitriolic bashing as the African Charter on Human and Peoples’ Rights (African Charter), 1981, nor has there been a dearth of negativity about the treaty as a human-rights instrument. Such is the spate of pessimism about the African Charter and its system that it has repeatedly been referred to as “a paper tiger”, among other undignified labels. Beyond the endless lampooning of the treaty and its system as mere platitudes, have there been no opportunities for the civil society to strengthen the promise of this treaty and its system. To what extent has the civil society exploited such opportunities? Can there be a reconceptualization of the roles and attitudes of civil society that will galvanize the African regional human-rights system towards a veritable mechanism for more effective human rights protection? This article examines the contributions of civil society to the evolutionary processes, successes, and perceived weaknesses of the African regional human-rights system since 1981. Extrapolating from some landmark institutional, normative and jurisprudential developments within the African regional arrangement, this article identifies civil society as an inevitable, integral bearer of credit for the successes, and blame for the shortcomings of the aforementioned system. The overarching objective here is to canvass for a repositioning of civil society towards more effective praxis, and, to identify the trajectories for such engagement.
THE RIGHT TO PRIVACY AND DRUG-TESTING IN SPORT IN SOUTH AFRICA: COULD THE NEW ZEALAND CASE OF CROPP V JUDICIAL COMMITTEE PROVIDE SOME GUIDANCE?
Authors: Jean Wilké
Published: October 2021

This article examines the right to privacy of athletes who are required to submit to drug tests. In South Africa, the right to privacy of an athlete with regard to drugtesting has not been challenged in the courts. However, the courts in New Zealand have had an opportunity to examine the right to privacy of an athlete in terms of drugtesting in sport. Therefore, the article discusses whether the decision in the NewZealand case of Cropp v Judicial Committee may provide some guidance to South African courts in the adjudication of whether the infringement and the limitation on the right to privacy in the context of drug-testing in sport can be reasonable and justified and concludes that such infringement may be reasonable and justified if a court is to consider a limitation of the right to privacy in terms of section 36 of the Constitution of the Republic of South Africa, 1996 as well as consent and safety.
IDENTIFYING CRITICAL DATA AND DATABASES – A PROPOSAL FOR A RISK-BASED THEORY OF IMPLEMENTING CHAPTER IX OF THE ECT ACT
Authors: Mzukisi Niven Njotini
Published: October 2021

South Africa adopts meaningful measures to prevent and/or alleviate attacks to its critical data and databases. The measures are embodied in Chapter IX of the Electronic Communications and Transactions Act 25 of 2001.1 The Chapter IX measures encumber the Minister of Communications to perform innumerable functions, inter alia, to identify and classify critical data and databases. However, this article submits that the Chapter IX measures are founded and places (unlimited) reliance on a stagnant or inflexible approach. Such an approach assumes that a process to identify and classify critical data and databases is a product of guesswork. Put differently, the Chapter IX measures uses a common-knowledge or one-size-fits all approach as an aid to identify and classify critical data and databases. By so doing, Chapter IX of the ECT Act fails to recognize that a holistic and flexible approach or framework is indispensable in a process to identify and classify criticaldata and databases.
THE TRUST AS SPECIAL-PURPOSE INSTITUTION
Authors: Eben Nel  , Vivienne Lawack  , Adriaan van der Walt
Published: October 2021

The trust figure has undergone interesting developments in South African law during the last century. Due to its flexibility and multi-functionality it has developed as the legal institution of choice for many holistic business structures: from estate-planning and risk-protection, to financial-instrument entity. Particular financial innovations, such as securitization, required regulators to come up with fresh solutions within existing legal and regulatory systems. The traditional role of the inter vivos trust as a family wealth-transfer device became rather trivial as the importance of the financial and corporate roles of trusts increased. Trusts are not only prevalent in securitization and other investment roles, but also fulfil an increasingly important role in organizational law, which includes a variety of business-legal fields. The evolutionary process of the trust as collective investment-scheme vehicle to that of a legal entity in structured-finance programmes,such as a special purpose instrument, matured without any resistance in South Africa. It is submitted that, in the trust-development process, South Africa should not necessarily find its inspiration solely in developed nations, but should rather position itself in its real context of a developing Southern African democracy, with the potential of becoming an important financial innovator in a world of economic turmoil.It is submitted that a sound legal and regulatory framework for the application of trusts in the financial sphere is crucial. International best practice requires a definite and effective regulatory environment for economic expediency. It is submitted that a hybrid system, as found in South Africa, is better suited to adapt to the challenges of an ever-changing legal and economic reality. It is submitted that legislative interventions should be limited to the bare minimum and a holistic approach should be adopted, including the ratification of The HagueConvention on Trusts and some focused soft-law interventions.
FLAWED LAW: A CRITICAL ANALYSIS OF THE FAULTS AND SHORTCOMINGS OF CHAPTER 8 OF THE NATIONAL HEALTH ACT OF 2003
Authors: Larisse Prinsen
Published: October 2021

During 2011 health law grew by the addition of eight new Regulations dealing with stem cells and related matters. This added to the already existing six of Regulations which had been sporadically published since 2007. All these Regulations supplement the National Health Act of 2003. This legislative excess begs the question: Why has it been at all necessary to flood the legislative landscape surrounding the Act. The Act is a complex one and it entrenches various health policy principles. It is also framework-legislation meaning that only broad legal guidelines are provided and it must be “fleshed out” in Regulations. This however does not satisfy the question as to why this “fleshing out” has been done so overwhelmingly considering the period of time which the Act has been in force and keeping in mind these Regulations apply only to a single chapter of the Act. The aim of this article is thus an analysis of certain provisions in chapter 8 of the Act which will entail an explanation of its content, followed by a dissection thereof and suggestions. Ultimately, this article attempts to illustrate thatstem cell research, therapy and technology in general is not sufficiently regulated by chapter 8 which is so fatally flawed that it is almost dead legislation. It is recommended that new and comprehensive, updated and corresponding Regulations be drafted to supplement and correct the Act.
THE NEED FOR VIGILANCE IN BANKING TRANSACTIONS IN THE LIGHT OF PREVALENT FRAUD, MISREPRESENTATION AND PONZI SCHEMES IN THE BUSINESS WORLD The Trustees of the Insolvent Estate of Grahame Ernest John Whitehead v Dumas Case 323/12 [2013] ZASCA 19 Unreported
Authors: Musa Kika  , Michael Celumusa Buthelezi
Published: October 2021

Numerous persons are inclined to take a risk by making short-term investments that promise substantial profit returns within the shortestpossible time. In this respect people take a gamble and try their luck at whatever opportunity that presents itself. With this growing trend has also arisen fraudsters, whose business is to prey on possible investors by making investments in non-existent business ventures, and large numbers of “investors” have lost vast amounts of money in these get-rich quick schemes. One such example is found in the recent SCA decision of The Trustees of the Insolvent Estate of Grahame Ernest John Whitehead v Dumas (The Trustees of the Insolvent Estate of Grahame Ernest John Whitehead v Dumas GNP (unreported) 2013-03-20 Case no 323/12). The case involved a specialist medical practitioner, Dumas, who made an investment into a fraudulent scheme, having been misled through a misrepresentation by an agent of Whitehead, mastermind behind thefraudulent Ponzi scheme. As a result thereof, Dumas lost a couple of million Rands into the insolvent estate of Whitehead. As illustrated by this case note and the age-old adage that says “a fool and his money are soon parted”, unwary persons could easily lose their hard-earned money. Hence, this case note seeks to enlighten would-be investors of the pitfalls of Ponzi schemes, such as huge financial loss as was experienced by Dumas, and encourage vigilance in making financial transactions. This it does through a critical examination of the Dumas judgment. It especially concerns the legal principles pertaining to monies that are transferred from one bank account to another bank account owing to fraudulent misrepresentation. Primarily, the case note takes a critical view of the manner in which the court applied theselegal principles. While the court, in the authors’ view, properly set out the legal framework, which is sound and correct, it nevertheless went wrong in its application of the law. Therefore, the authors contend that, judged from these very legal principles that the court set out, it nevertheless came to an incorrect conclusion. If left unchallenged, the effect of the judgment will be to set a precedent inappropriately and wrongly that could amount to an unwarranted curtailment of legal protection afforded to persons who are induced by fraud and misrepresentation to transfer money into other people’s bank accounts. In this case note the authors examine the canards of the judges’ reasoning leading up to their decision. As a starting point we examine the factual background of the case, then we move on to the critique and we conclude with the advice.
THE ROLE PLAYED BY HUMAN DIGNITY IN RELIGIOUS DISCRIMINATION DISPUTES
Authors: Radley Henrico
Published: October 2021

Intrinsic to being human is the fact that we all have the right to human dignity – to self-worth, autonomy and the ability of self-determination. When dealing with religious discrimination, by default notions of inequality and more specifically unfair or disadvantaged discrimination come to the fore. In the assessment of such discrimination disputes it is interesting to note the extent to which the courts have viewed equality through the prism of human dignity. In this sense human dignity canbe said to take central stage so-to-speak in the arena of discrimination dispute resolution. The rationale for this must be premised on the fact that human dignity is far more than just a constitutional right; it is an imperative that jurisprudentiallyattaches itself to the fact that unfair discrimination on the ground of religion impacts adversely on what and who we are as individuals.
PROBLEMATIC ASPECTS OF THE CONSUMER PROTECTION ACT 28 OF 2008 IN RELATION TO PROPERTY TRANSACTIONS: LINKED TRANSACTIONS, FIXED-TERM CONTRACTS AND UNSIGNED SALE AGREEMENTS
Authors: Henk Delport
Published: October 2021

The article examines whether and to what extent sections 13(1), 14 and 50(2)(a) of the Consumer Protection Act 68 of 2008 apply to transactions relating to immovable property. Section 13(1) concerns linked agreements (also known as “tyingarrangements”), section 14 deals with fixed-term contracts while section 50(2)(a) relates to unsigned written agreements. It is submitted that section 13(1) applies to plot-and-plan transactions entered into by property developers, as well as leases of immovable property where the lessee is obligated to enter into agreements with third parties such as security companies or garden-maintenance services. There is considerable confusion in the property industry whether section 14 applies to estate agency sole mandates and leases of immovable property where one or both parties are a natural person. The author submits that on a purposive interpretation of section 14 neither of these agreements is governed by the provision. Section 50(2)(a) conveys that when a consumer agreement is in writing either by reason of the provisions of the Act or voluntarily, the agreement is binding and enforceable whether or not the consumer signed the agreement. It is submitted that the provision does not apply to agreements of sale governed by the Alienation of Land Act 68 of 1981, the Share Blocks Control Act 59 of 1980, the Property Time-sharing Control Act 75 of 1983 and the Housing Development Schemes for Retired Persons Act 65 of 1988.
AN INTERPRETIVE ACCOUNT OF UNCONSCIONABILITY IN TRUST LAW
Authors: Eben Nel
Published: October 2021

The principle of public policy and factors such as fairness, reasonableness and good faith have – since the introduction of constitutionalism in South African law – become the cornerstone of the law and of its impact on all relationships – even therelationships in contracts. One such development is the assimilation of the doctrine of unconscionability in contract law. In this article, this concept, within the context of a trust formed by way of contract, is investigated. While the doctrine ofunconscionability is not without controversy, the question arises as to whether it has any role to play in trust law. The two-pronged approach traditionally used to determine the presence of an unconscionable contract or term is evaluated in light of its potential application in the case of trust deeds. The author submits that the incorporation of the doctrine will be advantageous in the developmental process in respect of a new constitutional trust-law order that is in harmony with the spirit,purport and objects of the Constitution. The doctrine of unconscionability has become a reality in South African law of contract; it should therefore also be embraced in the establishment of the trust as a dynamic tool in the commercial environment.
ASSESSING THE INTERPRETATION OF THE ELEMENTS OF “DISPOSE” AND “CHILD” FOR PURPOSES OF ESTABLISHING THE OFFENCE OF CONCEALMENT OF BIRTH – S v Molefe 2012 (2) SACR 574 (GNP)
Authors: GP Stevens
Published: October 2021

“The woman went to Tembisa Hospital on Tuesday as she was bleeding … a nurse questioned her about whether she had an illegal abortion, but she claimed that she did not … police searched her house and found the foetus wrapped up in a jersey in the bath … the woman was arrested and detained in Tembisa cells”.The abovementioned passage sets the stage for the decision under discussion dealing with the crime of concealment of birth. The crime of concealment of birth was unknown in our common law but has, however, been an offence since 1845 when it was criminalized in terms of section 1 of Ordinance 10 of 1845. Currently the offence of concealment of births is regulated in terms of section 113 of the General Law Amendment Act 46 of 1935 which provides that “(1) Any person who, without a lawful burial order, disposes of the body of any newly born child with the intent to conceal the fact of its birth, whether the child died before, during or after birth, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years”. In order to incur criminal liability in terms of this offence, it is essential for the prosecution to prove all the elements of the offence which are that the accused had the intention to “dispose” of the dead body of the newly born “child” with the intention of concealing the fact of its birth. The problematic aspect in terms of the essential elements of the offence, relates to the fact that “dispose” and “body of a child”, are not defined in the Act. The case under discussion elucidates the meaning of these concepts and provides guidance as to the interpretation of these two elements.
“UNCONSCIONABLE ABUSE” – SECTION 20(9) OF THE COMPANIES ACT 71 OF 2008 Ex Parte Gore NNO 2013 (3) SA 382 (WCC)
Authors: Darren Subramanien
Published: October 2021

The remedy provided for in company law of “piercing of the corporate veil” was a remedy that only existed in the common law but has now been expressly incorporated into legislation under the Companies Act 71 of 2008. The “piercing of the corporate veil” statutory provision is contained in section 20 (9) of the Act. This provision does raise an important question as to how the courts will interpret the term “unconscionable abuse”. The term “unconscionable abuse” is not defined in the Act and the section fails to provide any guidance on the facts or circumstances that would constitute an “unconscionable abuse” of the separate juristic personality of the company. This paper discusses the interpretation of the term “unconscionable abuse” in light of the judgment in Ex parte Gore NNO (2013 (3) SA 382 (WCC)) and seeks to provide clarity with regard to the implication of section 20(9) of the Act on the common-law grounds of piercing the corporate veil.
FINANCIAL ASSISTANCE FOR THE SUBSCRIPTION OF SECURITIES: A COMPARISON OF SECTION 38 OF THE COMPANIES ACT 61 OF 1973 AND SECTION 4 OF THE COMPANIES ACT 71 OF 2008
Authors: Tshegofatso Kgarabjang
Published: October 2021

Section 38 of the Companies Act 61 of 1973 prohibited a company to provide financial assistance for the acquisition of shares not only in the company itself or its holding company but also subsidiary. The legislature, when amending section 38, through the Companies Amendment Act 37 of 1999 failed to remove the prohibition in section 38, only incorporating solvency and liquidity test. Section 44 of the new Companies Act 71 of 2008 permits a company to provide financial assistance for the acquisition of or subscription of company’s securities, not only in the holding company but also in the subsidiary (or related company). The aim of this article is to compare section 38 of the old Act and section 44 of the new Act and highlight changes made by the section 44.
A CRITICAL REFLECTION ON THE SOUTH AFRICAN LAW OF THE CHILD
Authors: RB Bernard  , MC Buthelezi
Published: October 2021

Children are considered to be vulnerable, and therefore need to be protected against parents, strangers and even themselves. As a consequence, the State’s quest for the protection of children in South Africa is expressed in the implementation of legislation designed to offer greater care and protection. For instance, section 28 of the Constitution of the Republic of South Africa, 1996, offers a wide range of rights which are designed to offer greater protection to children. The rights of children can, in effect, be categorized into two themes. The first relates to the protection of children – as the child is dependent on those around him or her due to a lack of capacity, and is therefore vulnerable. The second theme relates to the autonomy of children. Section 28(2) of the Constitution provides that in any matter concerning a child, the best interests of the child are of paramount importance. However, most South African legislative provisions that deal with minor children seem to miss this principle, and are riddled with inconsistencies. In many statutes, where the principle is recognized, there is either limited appreciation of the significance of the principle and its overall impact on issues concerning children, or there is no coherence with the manner the courts have interpreted and applied the principle. For example, the recent judgment of  the Teddy Bear Clinic case declared sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The judgment has been heavily criticized by different segments of society for encouraging teens to engage in wanton sexual intercourse, but illustrates some of the flaws in legislation aimed at protecting the welfare of minor children in South Africa. Furthermore, the common law and other legislation such as the Choice on Termination of Pregnancy Act, the Marriage Act, and provisions of the Children’s Act regulating contraceptives and condoms, all contain such inconsistencies. For instance, the common law and section 24 (together with s 26) of the Marriage Act allow a minor from the age of puberty to enter into a valid marriage; section 129 of the Children’s Act requires that a minor aged twelve be assisted by a guardian to undergo a surgical operation; whereassections of the Choice Act do not require parental consent for terminating a minor’s pregnancy. This note reviews the above and other inconsistences currently prevalent in the law of the child in South Africa. A brief overview of the Teddy Bear Clinic case will be considered. Thereafter, it outlines and examines various gender-based contradictions in the law, and examines the possible rationale for justifying the particular legislative measure concerned. The note concludes by proposing possible solutions to the discrepancies that have been identified.
SARS LIABLE FOR CHEQUES LOST OR STOLEN IN THE POST Stabilpave v SARS (615/12) [2013] ZASCA 128
Authors: Darren Subramanien
Published: October 2021

The Supreme Court of Appeal (SCA) in Stabilpave v SARS (615/12) [2013] ZASCA 128 was asked to decide on the assumption of risk where a cheque issued by the South African Revenue Services was intercepted through the post and subsequently misappropriated by thieves. The judgment of the court is significant as it stated clearly that any agreement “about the particular mode of performance” or “as to the manner of payment” will only be reached if the creditor stipulates (or requests orauthorizes) a particular mode of payment and the debtor accedes to the request. According to the court, due to the fact that the appellant had not requested the refund by cheque, SARS carried the risk of theft or loss of the cheque.
LEGAL REPRESENTATION AT THE CCMA Law Society of the Northern Provinces v Minister of Labour 2013 (1) BLLR 105 (GNP) and CCMA v Law Society, Northern Provinces 2013 (11) BLLR 1057 (SCA)
Authors: Theo Broodryk
Published: October 2021

In Law Society of the Northern Provinces v Minister of Labour (2013 (1) BLLR 105 (GNP); 2013 (1) All SA 688 (GNP)) the Law Society of the Northern Provinces applied to the North Gauteng High Court for an order declaring rule 25(1)(c) of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (GG 25515 of 10 October 2003) (Rules) unconstitutional. The application was opposed by the Minister of Labour, the Minister of Justice and Constitutional Development, the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Director of the CCMA.
HOLDING UP A MIRROR TO APARTHEID SOUTH AFRICA: PUBLIC DISCOURSE ON THE ISSUE OF OVERCROWDING IN SOUTH AFRICAN PRISONS 1980 TO 1984 – PART 2
Authors: Stephen Allister Peté
Published: October 2021

During the first half of the 1980s, the issue of chronic overcrowding within the South African penal system formed part of an intense ideological struggle between those who supported and those who opposed the apartheid regime. Public debate around this issue acted as a mirror, reflecting early cracks which were beginning to appear in the edifice of apartheid. Since the prisons were the ultimate instrument of social control within the apartheid system, the ongoing crises caused by chronic overcrowding within these institutions served as a kind of “canary in the mine” for the apartheid system as a whole. The debates which took place during the early 1980s around overcrowding are also important because they form part of a common theme running through South African penal discourse as a whole. This article seeks to show how the debates on prison overcrowding which took place in the first half of the 1980s fit into a long-term pattern of recurring ideological crises surrounding this issue. The article is divided into two parts. In Part One, the above themes were explored through the public discourse surrounding the Steyn Commission of Enquiry into the public media, as well as the Hoexter Commission of Enquiry into the structure and functioning of South Africa’s courts. Whereas Part One deals only with certain early debates arising out of the Hoexter Commission – up to February 1981 – Part Two takes this as a starting point and traces a number of further themes which arose in the debates surrounding the Hoexter Commission between February 1981 and April 1984, when the Commission delivered its report.
MALFEASANCE, ADMINISTRATIVE JUSTICE AND THE RIGHT OF ACCESS TO HEALTH-CARE SERVICES: AN ASSESSMENT OF MEC for Health v Kirkland Investment (Pty) Ltd 2014 (5) BCLR 547 (CC)
Authors: Karthy Govender
Published: October 2021

This case will reflect on some of the decisions made by senior civil servants in the discharge of important statutory powers, and will argue that improper decisions retard our growth as a democracy. The Kirkland case demonstrates that the failure to act in a just administrative manner will also hinder the progressive realization of socio-economic rights, such as the right of access to health care. We appear to be faring poorly on two of the three factors on Mureinik’s watch list and this must give cause for concern.
FACTORS JUSTIFYING FORFEITURE OF PATRIMONIAL BENEFITS ORDERS Molapo v Molapo (2013) ZAFSHC 29 14 Mar 2013
Authors: Clement Marumoagae
Published: October 2021

Marriage in community of property carries major implications for ownership of the parties’ assets, liability for their debts as well as their capacity to enter into legal transactions. To some extent, the same may be true for marriages out of community of property with the application of the accrual system, more particularly at the dissolution of such a marriage. Community of property entails the pooling of all assets and liabilities of the spouses immediately on marriage, automatically and by operation of law. The same regime applies to assets and liabilities which either spouse acquires or incurs after entering into the marriage. The joint estate created by marriage in community of property is held by the spouses in co-ownership, in equal and undivided shares. The natural consequence of holding the parties to their marriage agreement is that on divorce the joint estate will be divided equally between them unless a forfeiture of patrimonial benefits order is made. Where it has been established, forfeiture of patrimonial benefits is a financial patrimonial consequence of marriages in community of property and marriages out of community of property were the accrual system is applicable.Section 9(1) of the Divorce Act (DA) is the basis upon which the court can decide to grant forfeiture of patrimonial benefits. The principles relating to forfeiture of patrimonial benefits in respect of marriages in community of property remain probably the most misunderstood aspects of South African matrimonial law, more especially in practice. This section lists three factors which courts should take into account when granting an order for forfeiture of patrimonial benefits. First, this paper seeks to discuss the case of Molapo v Molapo, with a view to critically analyse the approach adopted therein with regard to forfeiture of patrimonial benefits. The author shall be arguing that the court, when ordering partial forfeiture of benefits, in this case was influenced partly by what it regarded to be fair in the context of this case, notwithstanding the fact that the principle of fairness has been rejected by the Supreme Court of Appeal. Secondly, the author shall also demonstrate that in Molapo v Molapo the court failed to provide a basis upon which it apportioned the proceeds of the main asset in the joint estate to the parties. Finally, in order for a court to be able reach a decision regarding forfeiture of patrimonial benefits it is important for a party claiming forfeiture to adequately make out a case for forfeiture of patrimonial benefits. The author shall argue that the party in whose favour forfeiture of patrimonial benefits was awarded in Molapo v Molapo failed to properly make out a case thereto in her pleadings.
A csázmai társaskáptalan 1232. évi alapítólevelének arengája
Authors: Juhász Csaba
Published: October 2021

Le chapitre collégial de Csázma fut fondé en 1232, par Étienne II, évêque de Zagreb. D’entre lesdocuments émis par l’évêque, le plus remarquable est sans doute la charte de fondation du chapitrecollégial. L’harangue de la charte en question est riche en réflexions bibliques et théologiques. Letexte, puisant dans les explications homéliques de Grégoire le Grand, invite les fidèles à imiter leChrist. Certes, le monde est parsemé d’obstacles qui ne facilitent nullement l’adoption du cheminproposé par le Christ, mais à force d’adopter une attitude d’humilité qui doit caractériser tous lesfidèles, nous participerons sans doute au bonheur dans l’Au-delà. Le rédacteur de cette harangue– une personne extrêmement cultivée et sage – nous a légué l’un des ouvrages les plus remarquablede la période árpádienne. L’importance de la mise en écrit de nos pensée est mise en valeur dans lapartie oblivio-memoria qui clôt l’harengue. On ne peut pas déterminer avec certitude la paternité dutexte. Aux années en question, le chancelier de Zagreb fut magister Andreas, responsable des documentsémis. Il n’est donc pas illégitime de lui attribuer le texte. Nous devons également mentionnerl’évêque, qui pouvait jouer un rôle indirect dans la confection de l’harangue : avoir choisi commechancelier une personne aussi érudite que Andreas témoigne du caractère savant de l’évêque.
Bangha Béla jelentése a budapesti nunciusnak a Központi Sajtóvállalat helyzetéről
Authors: Klestenitz Tibor
Published: October 2021

Die Zentrale Presseunternehmung (ZUP), die vom September 1919 an politische Tageszeitungen veröffentlichte, galt als der wichtigste katholische Zeitungsverlag der Horthy-ära. Die Geschichte des Unternehmens ist bis heute wenig erforscht, wofür vor allem der Quellenmangel verantwortlich ist. Das Unternehmensarchiv ist nicht erhalten und der Nachlass des Jesuitenpaters Béla Bangha, der in der Gründung der ZUP eine wichtige Rolle spielte, ist lückenhaft. Obwohl Bangha zahlreiche Artikel, Studien und Pamphlete publizierte, sind diese propagandistischen Dokumente nur mit Vorsicht und kritischer Sichtung der Quellen zu benutzten. Erhaltene Archivmaterialien haben deshalb eine große Bedeutung. Der hier publizierte, im Vatikanischen Geheimarchiv aufbewahrte Bericht aus dem Jahr 1920 bietet einen unmittelbaren Einblick in die Argumentation des Jesuitenpaters, und zeigt, wie er die Lage der von ihm ins Leben gerufene „christlichen Presse” für den Nuntius Lorenzo Schioppa aufzeichnete.Der Bericht bestreitet Absichten, nach denen die ZUP nicht eine ausgesprochen katholische, sondern eine „christliche” Linie vertreten habe. Bangha argumentiert damit, dass die Öffentlichkeit nach dem Untergang der ungarischen Räterepublik den Zusammenschluss der christlichen Kräfte gegen den Bolschewismus verlangt hatte. Nicht einmal die Katholiken hätten „rein katholische” Zeitungen von der ZPU akzeptiert; das Unternehmen solle ihre Funktion als „christlicher” Zeitungsverlag erfüllen, meinte er.Wie der Bericht zeigt, nutzte der Verlag die politische Konjunktur geschickt aus und hatteeine wichtige Position auf dem Pressemarkt inne. Aber der Gründer wußte, dass die ZUP alles der Hilfe des Staates zu verdanken hatte. Er war der Meinung, dass katholische Zeitungen nur dann publiziert werden können, wenn eine breite Leserschaft für die konfessionelle Presse – dank einer intensiven seelsorgerischen Arbeit – entsteht.