Pub Date : 2014-02-04DOI: 10.1504/IJPL.2014.059074
M. B. Masuku
This article is inspired by the 2010 World Cup™ qualifying soccer match between Ireland and France. In that match, a hand was used to steer a ball which led to a goal being scored against Ireland in favour of France. That is something which could have happened in any other big soccer event. It is something which was once referred to as ‘The Hand of God’ by Diego Maradona, whereby England was knocked out of the World Cup in 1986.2 With all this happening in a field of soccer, many supporters and fans are involved in different forms of sport betting – in particular soccer. Further, soccer is prone to wrong on field decisions. Wrong decisions often lead to certain results which then influence the outcome of a bet. Eventually some of those wrong decisions are reversed, but such reversal is not implemented for gambling purposes either because it was way after the fact; or ignorance to develop rules and regulations is playing its part. Should football associations be liable to gamblers who lost their fortunes?
{"title":"Liability to gambling fans and supporters in favour of fair play in soccer1","authors":"M. B. Masuku","doi":"10.1504/IJPL.2014.059074","DOIUrl":"https://doi.org/10.1504/IJPL.2014.059074","url":null,"abstract":"This article is inspired by the 2010 World Cup™ qualifying soccer match between Ireland and France. In that match, a hand was used to steer a ball which led to a goal being scored against Ireland in favour of France. That is something which could have happened in any other big soccer event. It is something which was once referred to as ‘The Hand of God’ by Diego Maradona, whereby England was knocked out of the World Cup in 1986.2 With all this happening in a field of soccer, many supporters and fans are involved in different forms of sport betting – in particular soccer. Further, soccer is prone to wrong on field decisions. Wrong decisions often lead to certain results which then influence the outcome of a bet. Eventually some of those wrong decisions are reversed, but such reversal is not implemented for gambling purposes either because it was way after the fact; or ignorance to develop rules and regulations is playing its part. Should football associations be liable to gamblers who lost their fortunes?","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"20 1","pages":"69-81"},"PeriodicalIF":0.0,"publicationDate":"2014-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83364858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-02-04DOI: 10.1504/IJPL.2014.059069
Stellina Jolly
The blackout which left over 600 million people without power in India have correctly highlighted the pitfalls of depending on a carbon centric energy source. In fact, the entire South Asia has been experiencing the social, economic, and environmental effects of fossil fuel dependence including energy crisis, dramatic fluctuations in oil price, polluted atmosphere and finally the documented consequences of climate change. The climate concern has propelled renewable energy technologies into the mainstream to a greater extent than ever before, due to their ability to provide an alternative energy path. This paper contends that climate change is not merely an environmental issue but a social and human right issue of equity between generations. This paper critically looks at how far the concept of intergenerational equity has been made part of international climate law and policy. This paper discusses how dissemination of solar energy has the potential to advance intergenerational equity and mitigate the climate change affects in South Asia.
{"title":"Application of solar energy in South Asia: promoting intergenerational equity in climate law and policy","authors":"Stellina Jolly","doi":"10.1504/IJPL.2014.059069","DOIUrl":"https://doi.org/10.1504/IJPL.2014.059069","url":null,"abstract":"The blackout which left over 600 million people without power in India have correctly highlighted the pitfalls of depending on a carbon centric energy source. In fact, the entire South Asia has been experiencing the social, economic, and environmental effects of fossil fuel dependence including energy crisis, dramatic fluctuations in oil price, polluted atmosphere and finally the documented consequences of climate change. The climate concern has propelled renewable energy technologies into the mainstream to a greater extent than ever before, due to their ability to provide an alternative energy path. This paper contends that climate change is not merely an environmental issue but a social and human right issue of equity between generations. This paper critically looks at how far the concept of intergenerational equity has been made part of international climate law and policy. This paper discusses how dissemination of solar energy has the potential to advance intergenerational equity and mitigate the climate change affects in South Asia.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"10 1","pages":"20"},"PeriodicalIF":0.0,"publicationDate":"2014-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82058201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-02-04DOI: 10.1504/IJPL.2014.059073
Phillemon Makakaba
This paper highlights the danger which the online casino gambling players are likely to face in view of the nature of activity itself and the use of internet. The paper focuses on the foreseeable risk of online behavioural advertising (OBA) by way of cookies which is likely to infringe the online casino gambling players’ online right to privacy. The author argues that online casino gambling players are consumers whose rights to privacy must be protected by the Constitution of the Republic of South Africa Act 108 of 1996, the Electronic Communications and Transactions Act 25 of 2002, the Consumer Protection Act 68 of 2008 and the Protection of Personal Information Bill 9 of 2009 (the ‘PPI’). The paper further gives the latest development of OBA in Europe. Acknowledging the PPI as a welcome piece of a bill, the paper finally brings the regulatory consideration of OBA by way of cookies.
{"title":"The Supreme Court of Appeal’s judgement on online casino gambling: a means to an end","authors":"Phillemon Makakaba","doi":"10.1504/IJPL.2014.059073","DOIUrl":"https://doi.org/10.1504/IJPL.2014.059073","url":null,"abstract":"This paper highlights the danger which the online casino gambling players are likely to face in view of the nature of activity itself and the use of internet. The paper focuses on the foreseeable risk of online behavioural advertising (OBA) by way of cookies which is likely to infringe the online casino gambling players’ online right to privacy. The author argues that online casino gambling players are consumers whose rights to privacy must be protected by the Constitution of the Republic of South Africa Act 108 of 1996, the Electronic Communications and Transactions Act 25 of 2002, the Consumer Protection Act 68 of 2008 and the Protection of Personal Information Bill 9 of 2009 (the ‘PPI’). The paper further gives the latest development of OBA in Europe. Acknowledging the PPI as a welcome piece of a bill, the paper finally brings the regulatory consideration of OBA by way of cookies.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"77 1","pages":"53-68"},"PeriodicalIF":0.0,"publicationDate":"2014-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84961302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-02-04DOI: 10.1504/IJPL.2014.059075
Edith Mbiriri
The Companies Act 71 of 2008 introduced a new business rescue regime into South African corporate law. Business rescue is a procedure that facilitates the rehabilitation of a financially distressed company. The business rescue regime is debtor-friendly and replaced the judicial management which was creditor-friendly and which proved to have been inadequate and ineffective in rescuing companies experiencing financial difficulties. The case of Swart v Beagles Run Investments 25 (Pty) Ltd is significant as it was the first case dealing with the business rescue provisions. The court had to consider the requirements for commencing business rescue and looked to the judicial management provisions for assistance. The study focuses on the decision of the court and its reliance on judicial management despite the two regimes having different emphasis in terms of the interests of the stakeholders and the requirements for commencing the business rescue procedure as set out in the Companies Act.
2008年颁布的第71号公司法在南非公司法中引入了一项新的商业救助制度。企业救助是一种帮助陷入财务困境的公司恢复元气的程序。企业救助制度是对债务人友好的，取代了对债权人友好的司法管理制度，而司法管理制度在救助遇到财务困难的公司方面证明是不充分和无效的。Swart v Beagles Run Investments 25 (Pty) Ltd的案例意义重大，因为它是处理商业救助条款的第一个案例。法院必须考虑开始企业救助的要求，并寻求司法管理规定的协助。该研究侧重于法院的决定及其对司法管理的依赖，尽管两种制度在利益相关者的利益和《公司法》中规定的启动商业救助程序的要求方面有不同的重点。
{"title":"Creditors’ interests still carry the day in business rescue: Swart v Beagles Run Investments 25 (Pty) Ltd 2011(5) SA 422 (GNP)","authors":"Edith Mbiriri","doi":"10.1504/IJPL.2014.059075","DOIUrl":"https://doi.org/10.1504/IJPL.2014.059075","url":null,"abstract":"The Companies Act 71 of 2008 introduced a new business rescue regime into South African corporate law. Business rescue is a procedure that facilitates the rehabilitation of a financially distressed company. The business rescue regime is debtor-friendly and replaced the judicial management which was creditor-friendly and which proved to have been inadequate and ineffective in rescuing companies experiencing financial difficulties. The case of Swart v Beagles Run Investments 25 (Pty) Ltd is significant as it was the first case dealing with the business rescue provisions. The court had to consider the requirements for commencing business rescue and looked to the judicial management provisions for assistance. The study focuses on the decision of the court and its reliance on judicial management despite the two regimes having different emphasis in terms of the interests of the stakeholders and the requirements for commencing the business rescue procedure as set out in the Companies Act.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"33 1","pages":"82"},"PeriodicalIF":0.0,"publicationDate":"2014-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87934220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-02-04DOI: 10.1504/IJPL.2014.059068
B. Mmusinyane
Section 26(1) of the Constitution of the Republic of South Africa, 1996 grants everyone the right to have access to adequate housing. In terms of Section 26(2), it is the government’s duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. This paper critically evaluates the extent to which housing to the poor, the unemployed and the homeless contributes to the government’s poverty alleviation strategy and also how the provision of housing to these categories of people will help the government in meeting its MDGs targets. The paper also engages the challenges which the country is facing since 1994 in delivering housing to the poor.
{"title":"South Africa’s poverty alleviation strategy through housing: chasing the 2015 millennium development goal’s pragmatic?","authors":"B. Mmusinyane","doi":"10.1504/IJPL.2014.059068","DOIUrl":"https://doi.org/10.1504/IJPL.2014.059068","url":null,"abstract":"Section 26(1) of the Constitution of the Republic of South Africa, 1996 grants everyone the right to have access to adequate housing. In terms of Section 26(2), it is the government’s duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. This paper critically evaluates the extent to which housing to the poor, the unemployed and the homeless contributes to the government’s poverty alleviation strategy and also how the provision of housing to these categories of people will help the government in meeting its MDGs targets. The paper also engages the challenges which the country is facing since 1994 in delivering housing to the poor.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"32 1","pages":"40"},"PeriodicalIF":0.0,"publicationDate":"2014-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75621048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-10-01DOI: 10.1504/IJPL.2013.056805
C. Tshoose
This paper explores the debates about National Health Insurance. In addressing this issue the paper explores the constitutional obligation of South African Government regarding the provision of healthcare. The paper also analyses the pros and cons of the NHI in light of the millennium development goals. In its conclusion, the paper provides lessons that South Africa would have to consider as it proceeds with the implementation of the National Health Insurance.
{"title":"The pros and cons of National Health Insurance in South Africa","authors":"C. Tshoose","doi":"10.1504/IJPL.2013.056805","DOIUrl":"https://doi.org/10.1504/IJPL.2013.056805","url":null,"abstract":"This paper explores the debates about National Health Insurance. In addressing this issue the paper explores the constitutional obligation of South African Government regarding the provision of healthcare. The paper also analyses the pros and cons of the NHI in light of the millennium development goals. In its conclusion, the paper provides lessons that South Africa would have to consider as it proceeds with the implementation of the National Health Insurance.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"18 1","pages":"355-368"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73380660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-10-01DOI: 10.1504/IJPL.2013.056811
T. Boezaart
This paper will focus on the rights of the family, parental responsibilities and rights and children’s rights in the context of African customary law. South Africa has gone a long way in safeguarding various rights of children in the Constitution and the principle of the paramountcy of the best interests of the child is firmly established. The main objective of this paper is to consider the impact of customary family law and practices on children’s rights, and vice versa. This paper will furthermore embark on developing guidelines to balance fundamental rights while protecting the rights of children in Africa.
{"title":"Building bridges: African customary family law and children’s rights","authors":"T. Boezaart","doi":"10.1504/IJPL.2013.056811","DOIUrl":"https://doi.org/10.1504/IJPL.2013.056811","url":null,"abstract":"This paper will focus on the rights of the family, parental responsibilities and rights and children’s rights in the context of African customary law. South Africa has gone a long way in safeguarding various rights of children in the Constitution and the principle of the paramountcy of the best interests of the child is firmly established. The main objective of this paper is to consider the impact of customary family law and practices on children’s rights, and vice versa. This paper will furthermore embark on developing guidelines to balance fundamental rights while protecting the rights of children in Africa.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"7 1","pages":"395"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77334323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-10-01DOI: 10.1504/IJPL.2013.056803
P. Stoop
The South African law of lease, in particular the landlord-tenant regime, is currently under constitutional scrutiny. In several cases, the position of socioeconomically vulnerable tenants had to be considered. On the one hand, Section 26 of the 1996 Constitution of the Republic of South Africa provides that the state must afford access to adequate housing. On the other hand, landlords should be protected as rental housing forms a large portion of the South African housing market. To illustrate the two sides of the coin, two cases are discussed: the first case illustrates that unscrupulous landlords may, in respect of the common law duties of a landlord, be able to hide behind the constitutional duties of the state. The second case illustrates that the right of access to adequate housing should be incorporated into the relationship between a landlord and tenant. The concern is that if a landlord’s right to dispose of his property as he wishes is continuously eroded by a tenant’s right to access to adequate housing, the sustainability of the rental market will be affected.
{"title":"The South African law of lease and socioeconomic rights","authors":"P. Stoop","doi":"10.1504/IJPL.2013.056803","DOIUrl":"https://doi.org/10.1504/IJPL.2013.056803","url":null,"abstract":"The South African law of lease, in particular the landlord-tenant regime, is currently under constitutional scrutiny. In several cases, the position of socioeconomically vulnerable tenants had to be considered. On the one hand, Section 26 of the 1996 Constitution of the Republic of South Africa provides that the state must afford access to adequate housing. On the other hand, landlords should be protected as rental housing forms a large portion of the South African housing market. To illustrate the two sides of the coin, two cases are discussed: the first case illustrates that unscrupulous landlords may, in respect of the common law duties of a landlord, be able to hide behind the constitutional duties of the state. The second case illustrates that the right of access to adequate housing should be incorporated into the relationship between a landlord and tenant. The concern is that if a landlord’s right to dispose of his property as he wishes is continuously eroded by a tenant’s right to access to adequate housing, the sustainability of the rental market will be affected.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"1 1","pages":"329-340"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82325151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-10-01DOI: 10.1504/IJPL.2013.056806
A. Chandrawulan
The liberalisation of economy is the existing phenomenon affecting developed and developing countries. They have, to a greater extent, affected the international trade regulation and foreign investment. As a sovereign state, with its own economic system based on Article 33 of the 1945 Constitution and Pancasila, Indonesia must have to adopt itself to the era of globalisation and liberalisation in such a way that it may be able to partake in the global economy through the international trade and foreign investment. The research seeks to demonstrates, firstly, the globalisation and liberalisation of economy have increased the economic dependence through international trade and direct foreign investment. In addition, the economic liberalisation embodied in the WTO has substantial impact upon the investment regulation in Indonesia. The research also demonstrated that the economic globalisation and liberalisation are actually against the principle of economic democracy as contained in the 1945 Constitution of the Republic of Indonesia.
{"title":"Liberalisation of Foreign Investment Law in Indonesia","authors":"A. Chandrawulan","doi":"10.1504/IJPL.2013.056806","DOIUrl":"https://doi.org/10.1504/IJPL.2013.056806","url":null,"abstract":"The liberalisation of economy is the existing phenomenon affecting developed and developing countries. They have, to a greater extent, affected the international trade regulation and foreign investment. As a sovereign state, with its own economic system based on Article 33 of the 1945 Constitution and Pancasila, Indonesia must have to adopt itself to the era of globalisation and liberalisation in such a way that it may be able to partake in the global economy through the international trade and foreign investment. The research seeks to demonstrates, firstly, the globalisation and liberalisation of economy have increased the economic dependence through international trade and direct foreign investment. In addition, the economic liberalisation embodied in the WTO has substantial impact upon the investment regulation in Indonesia. The research also demonstrated that the economic globalisation and liberalisation are actually against the principle of economic democracy as contained in the 1945 Constitution of the Republic of Indonesia.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"48 1","pages":"369"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76047734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-10-01DOI: 10.1504/IJPL.2013.056817
H. Staniland
The enforcement of maritime claims in English admiralty law and jurisdiction is based on the action in rem and the action in personam. The nature of, and relationship between, these actions is traditionally explained on the basis of competing fictions and theories, in particular, the personification theory and the procedural theory, which lead to widely different results in the enforcement of maritime claims. In this respect, many Commonwealth jurisdictions have departed from English law. It is argued that the admiralty jurisdiction and law of Namibia is the same as English law as of 1890; and, in drafting new legislation to repeal and replace the law of 1890, the author contends that the legislation should reflect clear policy objectives and that the competing and unreliable fictions and theories should not serve as a basis for legislative reform. The draft legislation is then subjected to detailed analysis to determine that the policy objectives (serving the interests of both national and international litigants), are achieved.
{"title":"Theory versus policy in the reform of admiralty jurisdiction","authors":"H. Staniland","doi":"10.1504/IJPL.2013.056817","DOIUrl":"https://doi.org/10.1504/IJPL.2013.056817","url":null,"abstract":"The enforcement of maritime claims in English admiralty law and jurisdiction is based on the action in rem and the action in personam. The nature of, and relationship between, these actions is traditionally explained on the basis of competing fictions and theories, in particular, the personification theory and the procedural theory, which lead to widely different results in the enforcement of maritime claims. In this respect, many Commonwealth jurisdictions have departed from English law. It is argued that the admiralty jurisdiction and law of Namibia is the same as English law as of 1890; and, in drafting new legislation to repeal and replace the law of 1890, the author contends that the legislation should reflect clear policy objectives and that the competing and unreliable fictions and theories should not serve as a basis for legislative reform. The draft legislation is then subjected to detailed analysis to determine that the policy objectives (serving the interests of both national and international litigants), are achieved.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"19 1","pages":"418"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82924464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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