bluuebunny/crossref_metadata_2025 huggingface dataset:
WORKING AT THE CROSSROADS OF STRUCTURATIONIST AND DISCURSIVE APPROACHES: A METHODOLOGICAL TOOL FOR PRACTICE-BASED STUDIES
Authors: Pozzebon Marlei , Delgado Natalia Aguilar , Rodriguez Charo
Published: October 2021

ABSTRACT In this paper we propose a methodological tool that seeks to contribute to the empirical study of practices in organization studies. There is a need for innovating and improving analytical tactics for theorizing about practice, particularly for helping connect localized social interactions to broader contexts. We propose the “temporal bracketing of discourses” tool and provide a detailed example that empirically illustrates its application.
CONSELHO DE REPRESENTANTES DE CONSELHOS DE ESCOLA (CRECE) NA REDE MUNICIPAL DE SÃO PAULO (1990 – 2015) : REGISTRO DE SUA TRAJETÓRIA
Authors: Perrella Cileda dos Santos Sant'Anna
Published: October 2021

O texto apresenta resultado de pesquisa que teve como objeto de estudo o CRECE. Tem por objetivo evidenciar a trajetória do CRECE da sua concepção (1990) à sua institucionalização (2015). Privilegia seu recorte temporal e geográfico na relação com uma estrutura do sistema educacional até seu reconhecimento jurídico. Para a realização do estudo recorreu-se a uma pesquisa qualitativa, por meio de levantamento documental (CELLARD, 2008) e declarada (BOURDIEU, 2001). Teoricamente, os estudos de Genuíno Bordignon, Luiz Dourado, Rubens Camargo e Luciana Tatagiba, entre outros, trouxeram contribuições importantes. As múltiplas faces da descontinuidade da política educacional são evidenciadas nos recortes em tela que, ao mesmo tempo, revelação um CRECE pertinente e não anulado,
Benign spasms of infancy or benign myoclonus of early infancy: polygraph‐EEG recordings
Authors: Álvarez Nelly Álvarez , de la Vega Rafael Pardo , Trueba María Antonia Gutierrez , González Luis Santoveña , Acero Ana González , Blanco‐Lago Raquel , Hedrera‐Fernandez Antonio , Diéguez Ignacio Málaga
Published: October 2021

Content available: Video
Low‐grade tumour over the left temporal neocortex and ictal asystole: network and surgical implications
Authors: Russo Angelo , Francione Stefano , Martinoni Matteo , Zucchelli Mino , Guerra Angelo , Terrone Gaetano , Del Giudice Ennio , Gobbi Giuseppe
Published: October 2021

We describe a patient with focal epilepsy characterized by ictal asystole episodes and low‐grade tumour over the left temporal neocortex. Non‐invasive pre‐surgical evaluation showed an epileptogenic zone extended beyond the low‐grade tumour. This extension was confirmed by intraoperative electrocorticography. One‐stage surgery with anterior temporal lobe resection was performed. The patient was seizure‐free after one year of follow‐up. Detailed electroclinical and therapeutic reasoning with hypotheses defining epileptogenic and symptomatogenic networks are discussed.
DETERMINING THE BEST INTERESTS OF THE CHILD IN CUSTODY BATTLES: SHOULD A CHILD’S VOICE BE CONSIDERED?
Authors: Frans Mashilo Mahlobogwane
Published: October 2021

South African courts and other Commonwealth Courts have long emphasized the notion that “best interests” of a child plays a significant role in custody decisions. When the court decides any question with respect to a child’s upbringing, it is under the duty to have regard to the ascertainable wishes and feelings of the child concerned. The weight to be given to the wishes and feelings has to be ascertained according to the child’s age or understanding. However, courts still face a complex task when having to determine the best interests of a child, for there is no easy way of establishing what these rights are. Most of the children who find themselves at thecentre of custody battles suffer the long-term and short-term stresses of divided loyalty. This paper will look at the following challenging questions: whether children are entitled to be consulted in major decisions affecting their custody, are children given any means of making their views known to the court, to what extent should a child’s view be considered, should those views be the only decisive factor.
CONSUMER PROTECTION MEASURES FOR ERRONEOUS OR UNAUTHORIZED INTERNET PAYMENTS: SOME LESSONS FROM THE EUROPEAN UNION?
Authors: Vivienne A Lawack-Davids  , Frans E Marx
Published: October 2021

The increase in cyber malls or internet shops presents consumers with a magnitude of goods, including digitized goods and information to choose from. In purchasing these commodities, the internet, in particular, offers the consumer various payment possibilities, such as credit card and online fund transfers to third parties. However, these payment instruments are not flawless. Errors may occur whilst the consumer is making such payment, the system may malfunction or unauthorized payments may be made.The aim of this analysis is to ascertain whether the existing law has measures that would be wide enough to protect a consumer in these instances. The position in South Africa is evaluated against this background and compared with the position in the European Union.
ARE THERE LAWS AND POLICIES PROTECTING PEOPLE INFECTED AND AFFECTED BY HIV/AIDS IN SOUTHERN AFRICA? AN UPDATE OF A REVIEW OF THE EXTENT TO WHICH COUNTRIES WITHIN THE SOUTH AFRICAN DEVELOPMENT COMMUNITY HAVE IMPLEMENTED THE HIV/AIDS AND HUMAN RIGHTS INTERN
Authors: Ann Strode  , Brenda Grant  , Suhayfa Bhamjee
Published: October 2021

A review published in 2007 of the extent to which countries in the Southern African Development Community (SADC) region were implementing the HIV/AIDS and Human Rights International Guidelines was completed in 2006.  In summary the review found that almost all SADC countries were committed, in principle, to responding to HIV and AIDS as a human rights issue because most had begun to implement key legal and policy reforms based on human rights principles. However, at the same time the criminal law was being used to respond to HIV in a coercive manner, thus undermining human rights-based responses. Finally, there were a number of emerging human rights issues that needed to be addressed, including a lack of access to antiretroviral treatment and the undermining of civil and political rights by policy reforms aimed at enhancing access to HIV testing and treatment. This note is an update of the findings of the review published in 2007. It critically examines the progress, or lack of it, made in the last three years by comparing the legislative and policy steps taken by SADC countries in responding to the HIV epidemic.
UNLAWFUL ARREST AND UNLAWFUL DETENTION: SEPARATE GROUNDS OF ACTION AND PUNITIVE DAMAGES Mvu v Minister of Safety and Security 2009 6 SA 82 (GSJ)
Authors: J Neethling  , JM Potgieter
Published: October 2021

In Mvu v Minister of Safety and Security the plaintiff, an inspector in the South African Police Service was arrested without a warrant for malicious damage to property (his 15-year old daughters’ cellphones). It transpired that the plaintiff, while on police business in Gauteng, visited his daughters. He became enraged when he discovered that they had received cellphones by way of a “love relationship”, whereupon he took the cellphones and threw them to the ground, seriously damaging them. The daughters went to apolice station and laid a charge against the plaintiff for malicious damage to property. The police officer seized with the matter telephoned the plaintiff who immediately travelled to meet him. Upon arrival he arrested the plaintiff and imprisoned him overnight with six other men and set him free the following afternoon on warning. When the matter eventually came to court, the plaintiff was discharged at the end of the state’s case.
BRIDGING THE GAP: THE ROLE OF MICRO-INSURANCE IN A COMPREHENSIVE SOCIALPROTECTION SYSTEM IN SOUTH AFRICA
Authors: Letlhokwa George Mpedi  , Daleen Millard
Published: October 2021

Access to social protection interventions, such as social assistance, social insurance and private insurance, in South Africa is limited. For that reason, plugging the holes in the safety net is undoubtedly one of the most pressing challenges facing South Africa in its quest to design a comprehensive social protection system. The point is that vulnerable persons, just like any other persons, have to contend with social risks (for example, death, poor health, invalidity, etcetera). As a result, similarly to all other persons, they require protection against these risks. It is clear that the current social protection interventions (particularly social insurance, social assistance and privateinsurance) fail to protect every person in need of such protection adequately in South Africa. Thus, the contribution sets out to investigate the prospects of micro-insurance being used as an instrument to extend social protection coverage to the excluded and marginalized persons in South Africa.
THE PROPOSED LEGALIZATION OF PROSTITUTION IN SOUTH AFRICA – FRAMING THE DEBATE FROM A LIBERAL PERSPECTIVE
Authors: Stephen Peté
Published: October 2021

The debates surrounding the issue of whether or not prostitution or sex work ought to be legal or illegal have a long and convoluted history, both in South Africa and abroad. This article seeks to provide greater clarity and focus to current debates on this complex issue, in particular from a liberal perspective. By examining certain of the main issues at stake for those committed to the broad tenets of liberal ideology, the article hopes to bring at least some measure of clarity and focus to a contentious set of theoretical and empirical questions. It is argued that, from a liberal perspective, to interfere with the freedom of each South African to make his or her own moral choices is to interfere with the very foundation of South Africa’s hard-won constitutional democracy. In order to convince those committed to truly liberal principles of the need for the criminal law to prohibit sex work, it must be shown that it causes either “harm” or “offence” to others. Liberals will accept neither the principle of “legal moralism” nor that of “legal paternalism” as legitimate reasons to criminalize sex work.
THE USE OF STEM CELLS IN THERAPEUTIC TREATMENT PROCEDURES: LEGAL AND ETHICAL ASPECTS
Authors: Hennie Oosthuizen
Published: October 2021

The use of stem cells in therapeutic treatment procedures involves both legal and ethical aspects. The law and medical ethics walk hand-in-hand in this regard. The tremendous progress and advances in biomedical research, as well as developments in new treatment procedures, are contributing to more and more successes in the healing process. A consequence of these new biomedical techniques and treatments is that the law, and especially legislative requirements, cannot keep up with such techniques and treatments. At this stage there is no legislation in force in South Africa to regulate the use of stem cells in the therapeutic treatment of patients. The South African Parliament promulgated the National Health Act 61 of 2003 a few years ago, but, as at the time of writing, the sections dealing with stem cells are still not in force. These sections permit the therapeutic cloning of human stem cells and,if it eventually comes into force, it will allow the therapeutic cloning of human stem cells for use to the benefit of patients, and will also assist practitioners. The legal and ethical aspects regarding the usage of stem cells in the therapeutic treatment of patients and not for research on stem cells, form the basis of this article. The discussion will include aspects such as stem cells and where they are derived from, patients’ rights to choose to make use of stem-cell therapy, informed consent for stem cell treatment, the recognition of novel treatment procedures, the practitioner’s scope of practice as well as legislative control to indicate the need for such control.
ANYONE FOR A GAME OF MONOPOLY™?* A CRITICAL EVALUATION OF THE EVERINCREASING COMMERCIALIZATION OF MAJOR SPORTING EVENTS PART 3: EXAMINING THE LEGITIMACY OF THE CREATION AND MAINTENANCE OF COMMERCIALLY-DRIVEN MONOPOLIES IN SPORTS EVENTS
Authors: Andre M Louw
Published: October 2021

This is the third and final part in a series of articles which examines the commercial monopoly in a major sports event such as the 2010 FIFA World Cup South Africa, and its protection against ambush marketing by means of (specifically) domestic legislation. This part will continue the evaluation of the role of relevant constitutional guarantees in terms of the South African Bill of Rights, will consider the justification for the protection of commercial rights to such events, will briefly examine recent developments elsewhere in respect of the development of a ‘sports event organiser’s right’, and includes a concluding section with some critical evaluation of the legitimacy of the current state of the law in this regard in South Africa (and elsewhere).
PRELIMINARY THOUGHTS ON WHETHER VICARIOUS LIABILITY SHOULD BE EXTENDED TO THE PARENT-CHILD RELATIONSHIP
Authors: JM Potgieter
Published: October 2021

The parent-child relationship does not provide a basis for vicarious liability in our law and before considering whether it should, it is necessary to give a brief background of the doctrine of vicarious liability and the policy factors underlying it.
RELIANCE, FORMALITIES AND THE MODE OF ACCEPTANCE OF AN OFFER Pillay v Shaik 2009 4 SA 74 (SCA)
Authors: C-J Pretorius  , R Ismail
Published: October 2021

In Pillay v Shaik (2009 4 SA 74 (SCA)), the Supreme Court of Appeal was confronted with a situation which tends to feature in the law reports more frequently than one would expect, and that is where a party to a transaction involving the sale of immovable property reneges on an apparent agreement by invoking some form of technicality (in casu the lack of a signature on a contractual document) as a bar to the proper conclusion of the contract. Usually, where immovable property is sold directly to a purchaser, section 2(1) of theAlienation of Land Act 68 of 1981 applies and provides that no alienation of land will be of any force or effect unless contained in a deed of alienation signed by the parties, or by their agents acting on their written authority. Failure to comply with this provision renders an alienation of land void. Where, however, immovable property is held in the name of a close corporation or private company merely the members’ interests or shares are transferred to the purchaser, but the purchaser still indirectly gains control over the property owned by the juridical entity. The present matter dealt with the latter type of situation and the legal question was whether the sellers had accepted a signed, written offer made by the purchasers despite the fact that the sellers had not in turn signed the contractual documents. The Natal Provincial Division (Shaik v Pillay 2008 3 SA 59 (N)) found that contractual liability did not lie for want of compliance with a party-imposed signature formality, whereas the Supreme Court of Appeal applied the reliance theory to reach the opposite conclusion in the circumstances. The respective approaches of these two courts are diametrically opposed giving rise to some interesting issues on doctrinal as well as policy levels.
SOME ADMINISTRATIVE LAW ASPECTS OF STATE REGULATION OF INSOLVENCY LAW REVISITED Musenwa v Master of the North Gauteng High Court (Unreported 54849/10) [2010] ZAGPPHC 190 (5 November 2010)
Authors: Juanitta Calitz
Published: October 2021

A general analysis of the global norms recognised by international institutions worldwide yields the conclusion that the essential proposition of insolvency practitioners in all systems is the same: that every effective insolvency system requires competent and ethical insolvency practitioners who should have the experience and expertise necessary to deal with the range of business and legal issues which arise in insolvency matters. In Standard Bank v The Master of the High Court (2010 4 SA 405 (SCA)) the Supreme Court of Appeal also held that liquidators occupy a position of trust towards creditors and companies in liquidation and that they are required to beindependent, to regard equally the interests of all creditors, and to carry out their duties without fear, favour or prejudice. This contribution is a discussion of the recent decision in Musenwa v Master of the North Gauteng High Court ((Unreported) 54849/10) [2010]ZAGPPHC 190 (5 November 2010)) in which the core issue was to decide on the competence and integrity of an insolvency practitioner in order to decide whether the Master of the High Court (Master) acted lawfully in removing the practitioner from its panel. The note will attempt to underline the importance of a fresh approach by policy and law makers to the concept of regulation of South African insolvency law.
OF IMPLICATION, INSINUATION AND INCITEMENT R v Jones [2010] 3 All ER 1186 (CA)
Authors: Shannon Hoctor  , Samantha Krause
Published: October 2021

Can the crime of incitement be committed by insinuation? Can a conversation about growing tomatoes by implication actually be aconversation about the crime of producing cannabis? These are the questions which arise from the recent English case of R v Jones ([2010] 3 All ER 1186 (CA)). Although the English law relating to the way in which encouraging crime is criminalised has recently changed, the similarities between the previous (common-law) position in England (which was the law to be applied in Jones) and the current South African law make for a useful comparison between these systems, and it is to this that we now turn.
BREACH OF A COLLECTIVE AGREEMENT: DOES THE LRA PROVIDE A REMEDY IN SECTION 24? Minister of Safety and Security v Safety and Security Sectoral Bargaining Council [2010] 6 BLLR 594 LAC
Authors: Adriaan van der Walt  , Glynis van der Walt
Published: October 2021

In a recent judgment of the Labour Appeal Court the application of section 24 of the Labour Relations Act (66 of 1995, hereinafter “the LRA”) was considered, and curtailed. In this case note the judgment of Minister of Safety and Security v Safety and Security Sectoral Bargaining Council ([2010] 6 BLLR 594 LAC, hereinafter “Minister of Safety and Security”) is evaluated. In addition, an amendment to section 24 is proposed with a view to clarifying the ambit of the dispute-resolution procedure contained in that section of the LRA.
MISATTRIBUTED PATERNITY Nel v Jonker (WCHC) unreported case number A653/2009 dated 2001-02-17
Authors: Marita Carnelley  , Shannon Hoctor
Published: October 2021

The purpose of this note is to set out the problem of misattributed paternity and to determine the rights of the parties to such a dispute in South Africa, in the light of the current legal view of paternity. Although the case touched on these questions, the court was unable to consider all the issues and make specific findings as a result of the poorly drafted pleadings and the lack of evidence before it. This note therefore seeks to provide an introductory overview of the concept of misattributed paternity, in particular focusing onthe financial aspects of this problem and, specifically, the possibility of reclaiming any maintenance amounts already paid towards the upkeep of the child. The question will further be addressed: If there is a claim, from whom can be claimed and what would the basis of such a claim be? Although this note does not engage in a detailed survey of relevant comparative authority, references to selected arguments used in foreign cases are included to assess the possible applicability of these arguments in similar disputes in South Africa.
HATE CRIMES AGAINST BLACK LESBIAN SOUTH AFRICANS: WHERE RACE, SEXUAL ORIENTATION AND GENDER COLLIDE (PART I)
Authors: Kamban Naidoo  , Michelle Karels
Published: October 2021

This article, which is the first of a two-part submission, examines the phenomenon of gender-based violence against black lesbian South Africans. The course and incidence of gender-based violence against black lesbians are tracked from both media articles and academic contributions. The various forms of criminal conduct which characterize the phenomenon (including “corrective rape” and murder) are also examined. The article concludes with a limited causal explanation for what has emerged as a serious social problem in present-day South Africa necessitating government intervention in the form of a recently announced Task Team.
ONE FOR THE ASYLUM SEEKER Bula v Minister of Home Affairs (589/11) [2011] ZASCA 209
Authors: Darren Subramanien
Published: October 2021

South Africa has a large refugee population. In its 2010 report the United Nations High Commissioner for Refugees stated that South Africa received more than 222,000 new asylum requests. This made South Africa the number-one asylum destination in the world, ahead of the United States, Sweden, France, and Germany. People across the African continent go to South Africa to escapeviolence and poverty because it is a beacon of stability and economic growth on the continent. They arrive by bus and by foot after journeys that last for weeks from countries such as Ethiopia, Uganda, Burundi, Rwanda, Sudan, Somalia and Tanzania. Whenthey get close to the border, those without legal papers walk through the bush and swim across rivers to avoid being sent back. In a strongly-worded judgment, the Supreme Court of Appeal has affirmed the principles governing legal protection for asylum seekers in South Africa (SA) and censured a High Court acting judge for flouting the “fundamental rules of litigation”. Navsa JA went on to set out the approach that ought to have been followed. He said the laws governing asylum specifically required that a person who wanted to apply for asylum status should be allowed to apply, even if he had been arrested prior.
A CRITICAL ANALYSIS OF THE DECISION OF THE CONSTITUTIONAL COURT* Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC)
Authors: Moses Retselisitsoe Phooko
Published: October 2021

The pursuit of access to better economic opportunities such as decent jobs has resulted in an astronomic influx of people into the inner city of Johannesburg, South Africa. As a result there is a high demand for rental housing. This presents an opportunity to make profit for those who leasepremises in order to generate an income. The demand for rental housing has arguably caused the escalation of rental prices, thereby causing a shortage of affordable rental housing in the city centre. The Rental Housing Act 50 of 1999 was enacted to resolve disputes that may arise from any unfair practice or matters affecting the relationship between the landlord and his tenants in respect of the lease contract. In particular, the Rental Housing Act seeks inter alia to “create mechanisms to promote the provision of rental-housing property; promote access to adequate housing through creating mechanisms to ensure the proper functioning of the rental-housing market [and] to lay down general principles governing conflict resolution in the rental-housing sector” (Preamble to the Rental Housing Act). In terms of the Rental Housing Act, the landlord or a tenant may approach the RentalHousing Tribunal and complain about an unfair practice (s 13 of the Rental Housing Act). The Rental Housing Act defines an unfair practice as “a practice unreasonably prejudicing the rights or interests of a tenant or a landlord” (s 1 of the Rental Housing Act). Where the Tribunal, at the conclusion of the hearing, is of the view that an unfair practice exists, it may rule that the exploitative rental be discontinued. The Tribunal may also make a determination about the amount of rental that must be paid by a tenant taking into account inter alia “the need for a realistic return on investment for investors in rental housing”. The argument presented in this case is that the applicants ought to have made up their case in the court of first instance and not at the appellate stage. The paper isdivided into nine sections. Section 2 provides an overview of the facts of the case, section 3 discusses the case before the High Court, section 4 discusses the case before the Supreme Court of Appeal (SCA), section 5 discusses the case in the Constitutional Court, the issues, arguments, before the court, the findings and conclusions of the court. Section 6 evaluates the parties’ submissions in light of the Rental Housing Act, the Constitution, the Gauteng Unfair Practices Regulations, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIEA) (19 of 1998). Section 7 discusses the majority judgment. Section 8 discusses the minority judgment. Section 9 is a critique of both the minority and majority judgments. The conclusion made is that the applicants should stand or fall by the arguments contained in the founding documents.
AN ANALYSIS OF THE GENERAL ENFORCEMENT APPROACHES TO COMBAT MARKET ABUSE (PART 2)
Authors: Howard Chitimira  , Vivienne A Lawack
Published: October 2021

This article is the second part in a two-part series on general enforcement approaches to combat market abuse. Part 2 analyses the role and use of selected general anti-market abuse approaches in order to increase awareness and enforcement on the part of the relevant stakeholders. To this end, the article provides an evaluation of selected general anti-market abuse-enforcement approaches as wellas the significant advantages and disadvantages of such approaches. This is done by discussing anti-market abuse measures that primarily deal with surveillance, detection and investigation, whereas Part 1 examined the anti-market abuse measures that primarily deal with enforcement.
NOWHERE TO HIDE FOR EXECUTIVES Fourie v FirstRand Bank Ltd (578/2012) [2012] ZASCA 19 (18 September 2012)
Authors: Darren Subramanien
Published: October 2021

The personal liability of managers and executives for damages arising out of fraudulent and reckless conduct of their employees is an emotive and important issue. The prestige that was once associated with holding a position in top management in a company is now overshadowed by the potential of increased personal vulnerability. The case of Fourie v FirstRand Bank Ltd ((578/2012) [2012] ZASCA 119 (18 September 2012)) sends out a strong message to those who occupy management positions and who conduct the affairs of a company in a fraudulent or reckless manner that such conduct will not be tolerated and that should they produce false and misleading financial statements regarding the affairs of their company they run the risk of being held personally liable for any damages that may be incurred. The Supreme Court of Appeal (SCA) stated that any damages that arise from such managers’ fraud or recklessness under section 424 of theCompanies Act 61 of 1973 will be paid by the perpetrators in their personal capacity.
REWARDING A LIVING KIDNEY DONOR: A COMPARISON BETWEEN SOUTH AFRICA, SINGAPORE AND IRAN
Authors: B Venter  , M Slabbert
Published: October 2021

There are thousands of desperate people globally who need a kidney for transplantation. The number of people who require a kidney transplant continues to escalate faster than the number of kidneys available for a transplant. If South Africa wants to improve its current kidney-donation rate it should seek guidance from abroad. This article will compare South African transplant legislation with currentlegislation in Singapore and Iran. These two countries are of significance to the transplant debate as Singapore has recently legalized the reimbursement of costs of the organ donor while Iran goes a step further and pays the kidney donor. In conclusion it is argued that South Africa could learn from these two countries in order to try and address the shortage of transplantable organs locally.
OVERVIEW OF THE ROLE-PLAYERS IN THE INVESTIGATION, PREVENTION AND ENFORCEMENT OF MARKET-ABUSE PROVISIONS IN SOUTH AFRICA
Authors: Howard Chitimira  , Vivienne A Lawack
Published: October 2021

This article analyses the role and effectiveness of selected key role-players primarily dealing with the investigation, prevention and enforcement of the market abuse prohibition in South Africa in order to increase awareness on the part of the general public, policy-makers and other relevant stakeholders. To this end, the article provides an overview analysis of selected role-players as well as their distinct functions in the investigation, prevention and combating of market-abuse practices in South Africa. This is done by discussing the roles of the Financial Services Board, the Directorate of Market Abuse and the Enforcement Committee.
PROPERTY-SYNDICATION INVESTMENT V PROPERTY SCAM: WHO DECIDES? A CRITICAL EXAMINATION OF THE REGULATION OF PUBLIC-PROPERTY SYNDICATION SCHEMES IN SOUTH AFRICA
Authors: Tanya Woker
Published: October 2021

Building an investment portfolio is an important part of saving for retirement. This not only benefits the individual concerned but it also has benefits for the economy as a whole. Investment in property is regarded as an essential element of an investment portfolio and many investors have over the years invested in public-property syndications. Unfortunately such investments have proved to be very risky and there have been some spectacular failures with severe consequences especially for elderly, vulnerable consumers. There is a need to ensure that all investment opportunities are properly regulated and different aspects of property syndications are regulated by different regulators including the Reserve Bank, the Department of Trade and Industry, the newly established Consumer Commission and the Financial Services Board. There seems to be some confusion amongst regulators over which entity is ultimately responsible for ensuring that such investments are sound and reliable and that consumers can have faith that they are not investing in a scam. The fact that no one regulator is responsible for overseeing the full picture is problematic because it enables the unscrupulous to slip under the radar and avoid detection. This paperseeks to consider the question of which regulator is or should be responsible for regulating public-property syndications and to make some suggestions for reform going forward.
THE RIGHT TO MOTHER-TONGUE EDUCATION: PRACTICABLE OR NOT?
Authors: Chrizell Chürr
Published: October 2021

Mother-tongue and mother-tongue education are recognized worldwide as one of the most efficient ways to function cognitively and socially. This article addresses the role of proper mother-tongue education with an emphasis on the importance of “language” since language is vital to a child’s right to a basic education in all its dimensions. Without mother-tongue education, every child’s right to learn and to become a skilful adult, able to participate independently in society, is at risk. The cumulative effect of the South African Constitution, the National Education Policy Act, the South African Schools Act, several international instruments and a number of ground-breaking cases, as well as the interaction between them on mother-tongue education will be examined. The implementation of certain education models will also be proposed.
THE OFFENCE OF BEING FOUND IN DISGUISE IN SUSPICIOUS CIRCUMSTANCES
Authors: Shannon Hoctor
Published: October 2021

The statutory criminal prohibition on the use of disguises in suspicious circumstances has a venerable history in South African law. A form of this offence can be found in the pre-Union legislation (as well as in s 9(2) of Proclamation 27 of 1920 and s 3(2) of Proclamation 5 of 1937 of the former South West Africa). It is noteworthy that there are very few reported cases dealing with the various forms of this offence. Nevertheless it is evident that the offence serves an important function. In its review of various statutes relating to justice, the South African Law Reform Commission comments, in respect of the current formulation of this offence found in section 1 of the Prohibition of Disguises Act (16 of 1969), that “it enables police officers to approach persons in suspicious circumstances, which could prevent crime occurring, for example, masked persons outside a bank”, and consequently it is recommended by the SALRC that the offence should therefore be retained.
“HEARING THE PEOPLE ON THE STREET” TESTING THE EXTENT OF PUBLIC PARTICIPATION IN DURBAN’S STREETRENAMING PROCESS Democratic Alliance v eThekwini Municipality [2012] 1 All SA 412 (SCA); 2012 (2) SA 151 (SCA)
Authors: Vishal Surbun
Published: October 2021

Section 152(1)(e) of the Constitution of the Republic of South Africa, 1996, provides that one of the objectives of local government is “to encourage the involvement of communities and community organizations in local government”. This objective is further entrenched in section 16 of the Municipal Systems Act 32 of 2000, which requires that municipalities must develop a culture of participation by the community, and create mechanisms, processes and procedures accordingly. These obligations gave rise to a number of interesting questions. One of these is whether the local sphere of government is obliged to facilitate public participation in its legislative andexecutive functions. This issue was considered by the Supreme Court of Appeal (SCA) in Democratic Alliance v eThekwini Municipality (2012 (2) SA 151 (SCA)). In this case, the SCA had to decide whether two decisions taken by the eThekwini Municipality to rename certain streets in Durban were, first, lawful and second, rational. Before turning to consider the facts of this case, however, it is important to note that the renaming of streets figures prominently in periods of regime change and revolutionary transformations.The process of street renaming in Durban prompted a large public response locally. The local newspaper, The Mercury, published a series of media reports and letters from the public on the renaming process. A researcher who interviewed its journalists, established that the changing of street names resulted in the biggest audience response ever experienced in the more than 150-year history of the newspaper.
A CRITICAL ANALYSIS OF SELECTED ASPECTS OF THE SOUTH AFRICAN LEGAL FRAMEWORK PERTAINING TO CHILDREN LIVING IN PRISON WITH THEIR MOTHERS – WITH BRIEF COMPARATIVE COMMENTS
Authors: Meda Couzens  , Nicole Mazoue
Published: October 2021

This article contains a critical analysis of the South African legal framework applicable to children living in prison with their mothers. It focuses on aspects which the authors believe to be problematic in the legal framework, namely the procedure for the admission of children in prison with their mothers, the separation of children from their incarcerated mothers and the gender implications of the legal framework.Recommendations for improving the current legal framework are made based on a comparative assessment of the South African framework against the relevant policies in England and Western Australia.
THE BUCK STOPS … WHERE, EXACTLY? ON OUTSOURCING AND LIABILITY TOWARDS THIRD PARTIES
Authors: Daleen Millard  , Monray Marsellus Botha
Published: October 2021

Modern-day commerce forces services providers to make use of outsourcing. Regardless of whether outsourcing is used for bona fide reasons such as to provide a better product at a better price or whether the outsourcer needs to dispose of troublesome employees or to limit his liabilities towards third parties, it is suggested that outsourcers should consider a number of issues when outsourcing. Conversely,in considering a liability issue, a court may also measure the conduct of a particular outsourcer in order to evaluate whether such outsourcer has acted bona fide and responsibly. Little research is available on outsourcing and the affect thereof on third-party liability. Although the LRA and CPA contains provisions on certain general aspects, it may be that industry-specific legislation regulates specific outsourcingagreements. This article attempts to reconcile these seemingly disjointed topics. The authors conclude that sound legal advice should be sought before outsourcing is considered in order to avoid possible problems associated with it as well as liability-related pitfalls.
A NOTE ON “TACIT UNIVERSAL PARTNERSHIPS”: CLARITY AT LAST: EX-PARTNER CAN GET SLICE OF THE PIE
Authors: Darren Subramanien
Published: October 2021

There is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship. Our law does not give automatic rights to partners in a cohabitation relationship. If one of the parties dies without leaving a will for instance, the domestic partner is not legally entitled to inherit or to claim maintenance from the deceased’s estate. An aggrieved party would have to go to court to show that the parties were partners in a “universal partnership” and that the one party owes something to the other. The question that often arises is whether any mechanisms exist for the division of assets accumulated in a cohabitation situation on separation of the parties. If parties have cohabited and they can prove that a tacit universal partnership exists between them, all property of such apartnership is deemed to be jointly owned by the parties and debts are the joint liability of the parties. The issue as to whether a tacit universal partnership extends beyond commercial undertakings and whether the contribution by each party must be confined to profit-making has been the subject of much debate by our courts but has finally been decided by the court in the cases of Ponelat v Schrepfer (2012 (1) SA 206 (SCA)) and Butters v Mncora (181/2011) [2012] ZASCA 29 (28 March 2012)).
ACCESS TO SAFE WATER AND THE HUMAN DEVELOPMENT QUANDARY IN AFRICA: IMPLICATIONS OF A RIGHTS-BASED APPROACH
Authors: Dejo Olowu
Published: October 2021

Despite formal and concerted commitments by African governments to achieve universal access to clean water through various initiatives since 2000, access to clean drinking water remains a continuous challenge for human development in Sub-Saharan Africa. While some states have achieved some progress, achieving largescale availability of safe water remains a humanitarian crisis in much of Africa. The underpinning premise of this article is that a comprehensive and integrated approach can ensure the sustainability of expanding access to drinking water and sanitation while facilitating economic growth and human development. This article thus investigates the institutional, political, economic, and communal constraints in achieving expanded access to clean water among vast African populations. What are the roles and responsibilities that the civil society and local government agencies have to assume (a) to ensure that local water users and their organizations can assume their responsibilities for sustainable water resource management; and (b) to make sure that water is indeed considered a human right, and not in the least for those who have little or no access to power and influence: women and other underprivileged groups in local societies? Beyond the question of funding, what will be the role and place of a rights-based approach to the underlying structural challenges of participatory planning; ownership of the distribution processes as well as local accountability, all of which determine the sustainability of development programming pertaining to water? This article proffers a series of trajectories within a right-based approaches framework and accentuates how pragmatic responses to the foregoing questions could contribute to the policy responses necessary to ensure the realization of a well-managed regime of water access, distribution, and management in Africa.
THE FIDUCIARY RELATIONSHIP BETWEEN A COMPANY AND ITS DIRECTORS
Authors: Lindi Coetzee  , Jan-Louis van Tonder
Published: October 2021

The fiduciary relationship that exists between a company and its directors is a universal concept. Section 5(2) of the Companies Act 71 of 2008 provides that, to the extent appropriate, a court interpreting or applying the provisions of the 2008 Act may consider foreign company law. This article examines the meaning of the word “fiduciary”, when a fiduciary relationship comes into existence, the characteristics of a fiduciary relationship, the meaning of the term “director”, different “types” of directors and discusses to whom the duties are owed. The nature of the fiduciary relationship in Australia and the State of Delaware in the United States of America is briefly compared with that of South Africa to identify similarities and differences. The research proposes a set of characteristics that can be considered when deciding whether a fiduciary relationship exists. The article does not propose that the set of characteristics identified must constitute a numerus clausus.
FRACKING: AN ENERGY DREAM COME TRUE OR AN ENVIRONMENTAL NIGHTMARE?
Authors: Henry Lerm
Published: October 2021

This article investigates the judicial approach the courts are likely to take when they are asked to decide whether hydraulic fracturing, otherwise known as “fracking”, is an acceptable technique or not. The main focus of this article is to investigate whether the legislation put in place is consistent with the constitutional provisions aimed at protecting, on the one hand, the right to a healthy environment, health and life, and on the other hand, the right to promoting justifiable economic and social development. What will be considered is where these rights are likely to come into conflict with each other and how the courts are likely to deal with the issue. Prefacing this discussion is a brief investigation into the nature of fracking; the legislation that will govern the process and the constitutional rights likely to be effected by the technique.
AFRICAN CHILDREN AND SEXUALITY: A PERSPECTIVE ON TRADITIONAL AND CONTEMPORARY APPROACHES
Authors: Gugulethu Nkosi
Published: October 2021

For many years in South Africa, sexual acts with, and between children under the age of sixteen, were regarded as a sexual offence, even if consensual. A twist to this legal position was brought about by the case of Teddy Bear Clinic for abused Children v Minister of Justice and Constitutional Development (2013 (12) BCLR 1429 (CC)), where the Constitutional Court decriminalized consensual sexual activity between children of certain age-ranges, starting from the age of twelve. Prior to serving before the Constitutional Court, this case was heard by the North Gauteng High Court. The application brought before the High Court challenged the constitutional validity of sections 15 and 16 of the Sexual Offences and Related Matters Act (32 of 2007) in as far as the said provisions criminalize a range of consensual sexual activities between children of a certain age. Sections 15 and 16 respectively criminalize acts of consensual sexual penetration and sexual violation between children.The court’s decision of decriminalizing consensual sexual acts of children of certain ages has created a space for a discourse on children and their decision-making on sexual matters. The court’s decision further paved way for a reflective discussion of traditional and contemporary approaches used in conscientizing children about their sexuality. As discussed below, the said approaches immensely influence the decisions that children make in sexual matters that affect them.It is asserted in this article that, while legal developments in the contemporary society emphasize the individualistic nature of a child when dealing with matters of his sexuality, it is argued that this approach cannot be the sole basis in dealing with sexuality of children. This is because the Constitution which serves as a bedrock of our legal system recognizes customary law as a distinct component of the South African legal system. It further recognizes the multi-cultural nature of the society within which children are raised. It provides that everyone has the right to participate in the cultural life of their choice, guided by the dictates of the Bill of Rights.

This article seeks to explore the extent to which the Constitution, in as far as it recognizes the pluralist nature of our society, is assimilated in legislation and case law when dealing with the sexuality of children.
NARROWING OF THE “OWN NAME” DEFENCE Hotel Cipriani SRL v Cipriani (Grosvenor Street) Limited [2008] EWHC 3032 (Ch); [2010] EWCA Civ 110; [2013] EWHC 70 (Ch)
Authors: Darren Subramanien
Published: October 2021

In Hotel Cipriani SRL v Cipriani (Grosvenor Street) Limited ([2008] EWHC 3032 (Ch)) the High Court granted an injunction prohibiting the use of the name “Cipriani” for a restaurant in London. This decision was later upheld by the Court of Appeal ([2010] EWCA Civ 110). The parties then returned to Court to address claims for breach of that injunction ([2013] EWHC 70 (Ch)). This judgment is important as it provides South African courts with valuable insight as to the interpretation of the “own name” defence.
Az Officium Rákóczianum Szent Imre-himnuszai, avagy megjegyzések a szerzőség kérdéséhez
Authors: Takács László
Published: October 2021

Le livre de prières – ou, plus précisément, le bréviaire laïc – composé au dernier tiers du 17e siècle,le très populaire Officium Rákócziánum renferme un hymne dont le destinataire est Saint Éméric– c’est un texte liturgique et en même temps un poème latin de grande valeur littéraire. Son auteur,qui peut se vanter d’une large culture classique, manie avec une licence extrême l’arsenal poétiqueà sa disposition. C’est exactement cette licence qui fait l’intérêt de ce texte, digne de l’attentiondes chercheurs. En identifiant avec certitude son auteur, nous espérons contribuer à la question trèsdiscutée de la paternité de l’Officium Rákóczianum également.
Hajdú István törcsvári porkoláb kéziratos kötete : Két ismeretlen magyar vers Báthori Gábor fejedelem korából
Authors: Bándi András , Szabó András Péter
Published: October 2021

Im Jahre 2001 wurde aus dem Bestand des Schenker-Kapitels eine bisher unbekannte Handschrift des 18. Jahrhunderts in das Zentralarchiv der Evangelischen Kirche A. B. in Rumänien (Hermannstadt) überführt. Der Band wurde hauptsächlich von István Hajdú (1687–1748), Törzburger Kastellan und dessen Schwiegersohn József Szeli (1741–1815), ungarischer Pfarrer in Kronstadt und Langendorf, zusammengestellt und enthält Texte gemischte Gattung, die einerseits zur Erledigung praktischer Aufgaben dienten, andererseits bezeugen sie vom aktiven Interesse der ungarisch-burzenländischen Intellektuellen an der regionalen Geschichte. István Hajdú ist vor allem als Besitzer der ältesten handschriftlichen Gedichtsammlung in ungarischer Sprache bekannt.Im kürzlich entdeckten Band hat Hajdú eine Familienchronik, die zum Teil auf die Ereignisse innerhalb der ungarisch-evangelischen Kirchengemeinde Kronstadts Bezug nimmt, aufgenommen sowie andere Texte juristischen, historischen und medizinischen Inhalts, von denen der interessanteste eine 1723 angefertigte ungarische Fassung vom Landrecht ist (Übersetzer unbekannt). József Szeli fügt dem Band die Leichenrede für seinen Schwiegervater bei und ergänzt ihn mit mehreren historischen Quellen, wie z. B. mit dem Enchiridion (1659) des Martin Harnung, eine Sammlung von historischen und juristischen Notizen zu den Kirchengemeinden des Burzenlandes, oder die lateinische Fassung der Approbatae Constitutiones (1653) des Wurmlocher Pfarrers David Hermann. Der eigentliche Schatz des Bandes sind allerdings zwei bisher unbekannte ungarische Gedichte des 17. Jahrhunderts in der Handschrift des István Hajdú. Handlungsträger und zugleich Erzähler der beiden prosopopöischen Gedichte ist die 1593 durch Fürst Zsigmond Báthori gegossene „Wolf-Kanone“, eine Zierwaffe, die 1612 von Fürsten Gábor Báthori zur Einschüchterung der Sachsen nach Hermannstadt gebracht worden war.Im zweiten Teil dieses Beitrags werden diese Gedichte aus der Perspektive der Propagandaarbeit der Báthori-Anhängerschaft untersucht. In diesem Zusammenhang sollen einige weniger bekannte Aspekte der Geschichte dieser einzigartigen siebenbürgischen Waffe beleuchtet werden.