Pub Date : 2022-01-01DOI: 10.47348/salj/v139/i3a11
C. Powell
None
没有一个
{"title":"Book Review: Jean D’Aspremont & Sahib Singh (eds) Concepts for International Law: Contributions to Disciplinary Thought (2019)","authors":"C. Powell","doi":"10.47348/salj/v139/i3a11","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a11","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822429","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}
Civil prospectus liability is the liability for a prospectus which is published in the context of issued securities on the primary market. Both the German and South African legal systems protect investors who are induced into investing by incorrect prospectuses. Chapter 4 of the Companies Act 71 of 2008 contains rules, in s 104 and s 105, which set out the prospectus liability of directors, experts, and others. German law provides comparable provisions. The differences between the two systems become apparent in the detail. South Africa’s statutory prospectus liability clearly sets out the liability of experts and focuses mainly on the personal liability of directors. The German law has traditionally referred to unwritten legal principles in respect of experts. What both legal systems have in common is that the mutual interests of potential plaintiffs and defendants are not exclusively regulated by statute law, and that both pursue a balanced form of investor protection. This article aims to contribute to the future harmonisation of both legal systems in order to facilitate cross-border investments.
{"title":"Civil prospectus liability under the laws of Germany and South Africa","authors":"Damian Schmidt","doi":"10.47348/salj/v139/i2a7","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a7","url":null,"abstract":"Civil prospectus liability is the liability for a prospectus which is published in the context of issued securities on the primary market. Both the German and South African legal systems protect investors who are induced into investing by incorrect prospectuses. Chapter 4 of the Companies Act 71 of 2008 contains rules, in s 104 and s 105, which set out the prospectus liability of directors, experts, and others. German law provides comparable provisions. The differences between the two systems become apparent in the detail. South Africa’s statutory prospectus liability clearly sets out the liability of experts and focuses mainly on the personal liability of directors. The German law has traditionally referred to unwritten legal principles in respect of experts. What both legal systems have in common is that the mutual interests of potential plaintiffs and defendants are not exclusively regulated by statute law, and that both pursue a balanced form of investor protection. This article aims to contribute to the future harmonisation of both legal systems in order to facilitate cross-border investments.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822682","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}
In European Union (‘EU’) law, the entrenched right to data protection is an independent fundamental right. EU case law has gradually disconnected the right to data protection from the right to a private life. South Africa’s first exclusive data protection legislation, the Protection of Personal Information Act 4 of 2013 (‘POPIA’), is redolent of EU data protection legislation. However, the stated purpose of the POPIA is to give effect to the right to privacy. This article examines whether the laws of data protection can be wholly encapsulated within s 14 of the Constitution. To this end, this article considers two main conceptions of privacy in our law. The first is Neethling’s informational privacy and the reasonable expectation of privacy. The second is Rautenbach’s theory of informational control over personal matters in relation to other rights. On either approach, I argue that the substantive provisions of the POPIA are irreducible to privacy protection alone. Ultimately, framing the POPIA exclusively within the domain of privacy will either (i) unduly restrict legislative interpretation; or (ii) the true meaning of privacy will be diluted, leading to legal uncertainty. To avoid this, I suggest distinguishing between the value of privacy in the POPIA and the actual loss of privacy.
{"title":"Compartmentalised data protection in South Africa: The right to privacy in the Protection of Personal Information Act","authors":"Gilad Katzav","doi":"10.47348/salj/v139/i2a8","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a8","url":null,"abstract":"In European Union (‘EU’) law, the entrenched right to data protection is an independent fundamental right. EU case law has gradually disconnected the right to data protection from the right to a private life. South Africa’s first exclusive data protection legislation, the Protection of Personal Information Act 4 of 2013 (‘POPIA’), is redolent of EU data protection legislation. However, the stated purpose of the POPIA is to give effect to the right to privacy. This article examines whether the laws of data protection can be wholly encapsulated within s 14 of the Constitution. To this end, this article considers two main conceptions of privacy in our law. The first is Neethling’s informational privacy and the reasonable expectation of privacy. The second is Rautenbach’s theory of informational control over personal matters in relation to other rights. On either approach, I argue that the substantive provisions of the POPIA are irreducible to privacy protection alone. Ultimately, framing the POPIA exclusively within the domain of privacy will either (i) unduly restrict legislative interpretation; or (ii) the true meaning of privacy will be diluted, leading to legal uncertainty. To avoid this, I suggest distinguishing between the value of privacy in the POPIA and the actual loss of privacy.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822707","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}
This article shows that it could be theoretically possible to create a positive praedial trading servitude in the context of the right to trade on another’s land if certain established requirements are complied with when the doctrinal framework of South African law and s 63(1) of the Deeds Registries Act 47 of 1937 are applied. In light of s 63(1) of the Deeds Registries Act and the intention and subtraction from the dominium tests, it is conceivable that a positive trading right has the ability to burden land and to subtract from the servient owner’s entitlement of use and enjoyment of the land even in a physical sense. Therefore, such a right may be real and registrable. Furthermore, it is possible that a positive trading right could comply with the commonlaw criteria for the establishment of a praedial trading servitude. The article also examines the possible nature and content of positive personal trading servitudes. If parties do not negotiate for a positive praedial trading servitude, a personal servitude can be negotiated in favour of the beneficiary in his or personal capacity.
{"title":"Reimagining the right to engage in commercial activity on another’s land as a positive trading servitude","authors":"Leigh-Ann Kiewitz","doi":"10.47348/salj/v139/i4a7","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a7","url":null,"abstract":"This article shows that it could be theoretically possible to create a positive praedial trading servitude in the context of the right to trade on another’s land if certain established requirements are complied with when the doctrinal framework of South African law and s 63(1) of the Deeds Registries Act 47 of 1937 are applied. In light of s 63(1) of the Deeds Registries Act and the intention and subtraction from the dominium tests, it is conceivable that a positive trading right has the ability to burden land and to subtract from the servient owner’s entitlement of use and enjoyment of the land even in a physical sense. Therefore, such a right may be real and registrable. Furthermore, it is possible that a positive trading right could comply with the commonlaw criteria for the establishment of a praedial trading servitude. The article also examines the possible nature and content of positive personal trading servitudes. If parties do not negotiate for a positive praedial trading servitude, a personal servitude can be negotiated in favour of the beneficiary in his or personal capacity.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823138","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Cora Hoexter & Glenn Penfold Administrative Law in South Africa 3 ed (2021)","authors":"M. Wallis","doi":"10.47348/salj/v139/i4a9","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823435","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}
This article analyses the impact of s 118 of the Local Government: Municipal Systems Act 32 of 2000 on the rights of a municipality when land in its jurisdiction is expropriated. First, the municipality’s right under s 118(1) to embargo the transfer of a property, until it has been paid all amounts owing for the two years prior to transfer, might be undermined by a literal interpretation of the provisions of the Expropriation Act 63 of 1975 in so far as the Act provides that the expropriating authority ‘may’ (not must) pay the amounts due to the municipality concerned. We argue that a broader and more purposeful interpretation of not only the Expropriation Act but also the Expropriation Bill B23-2020 ought to be adopted, in order to assist municipalities in collecting debts owed to them. Secondly, we argue that a municipality’s security right under s 118(3) constitutes an unregistered right in land and, although the right is not protected under the current Expropriation Act, it will be protected if the provisions of the Expropriation Bill come into force, with the result that even if nil compensation is payable to the expropriated owner, the expropriating authority ought to compensate the municipality.
{"title":"The rights of municipalities under section 118 of the Local Government: Municipal Systems Act in the case of land expropriation","authors":"Chantelle Gladwin-Wood, R. Brits","doi":"10.47348/salj/v139/i2a5","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a5","url":null,"abstract":"This article analyses the impact of s 118 of the Local Government: Municipal Systems Act 32 of 2000 on the rights of a municipality when land in its jurisdiction is expropriated. First, the municipality’s right under s 118(1) to embargo the transfer of a property, until it has been paid all amounts owing for the two years prior to transfer, might be undermined by a literal interpretation of the provisions of the Expropriation Act 63 of 1975 in so far as the Act provides that the expropriating authority ‘may’ (not must) pay the amounts due to the municipality concerned. We argue that a broader and more purposeful interpretation of not only the Expropriation Act but also the Expropriation Bill B23-2020 ought to be adopted, in order to assist municipalities in collecting debts owed to them. Secondly, we argue that a municipality’s security right under s 118(3) constitutes an unregistered right in land and, although the right is not protected under the current Expropriation Act, it will be protected if the provisions of the Expropriation Bill come into force, with the result that even if nil compensation is payable to the expropriated owner, the expropriating authority ought to compensate the municipality.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822500","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 : 2022-01-01DOI: 10.47348/salj/v139/i2a11
Joel Krige
None
没有一个
{"title":"CORRESPONDENCE: Cricket pitches on the Rondebosch Common","authors":"Joel Krige","doi":"10.47348/salj/v139/i2a11","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a11","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822828","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 : 2022-01-01DOI: 10.47348/salj/v139/i4a10
T. Chigwata
None
没有一个
{"title":"Book Notice: Anél du Plessis (ed) Environmental Law and Local Government in South Africa 2 ed (2021)","authors":"T. Chigwata","doi":"10.47348/salj/v139/i4a10","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822917","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}
Despite extensive protection for employees against sexual harassment in the workplace, South African workplaces are still riddled with this harmful conduct. The severe consequences for victims and workplaces necessitate an analysis of the development of South African law to establish its successes, but also the shortcomings that continue to exist. Although there is a matrix of laws protecting employees against sexual harassment, the Employment Equity Act 55 of 1998, which regards harassment as a form of discrimination, is still the primary statute. In this article I argue that the tendency to focus on sexual harassment as a dignity and equality issue does not take sufficient cognisance of sexual harassment as a multifaceted issue involving criminal conduct, which threatens employees’ employment security and impacts on employees’ health and safety. An analysis of case law indicates that many employers have not adopted a policy on sexual harassment, and that some employers and the Commission for Conciliation, Mediation and Arbitration commissioners do not deal with sexual harassment in a gender-sensitive way, which is an approach endorsed by the International Labour Organization’s Violence and Harassment Convention 190 of 2019. This Convention emphasises the need for an inclusive, integrated approach to combat harassment. To align the protection of victims of harassment with the Convention, South Africa adopted a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in 2022. This Code, dealing with different kinds of harassment, including sexual harassment, replaced the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. By comparing the 2005 Code and related jurisprudence to the 2022 Code, the article considers whether sexual harassment is likely to be addressed more effectively under the 2022 Code. The 2022 Code has made certain improvements to the 2005 Code, but the altered definition of sexual harassment indicates the difficulties created by adopting one code to cover both misconduct and discrimination. In addition, aspects of the Convention, such as protecting the health and safety of employees, are not dealt with effectively in the 2022 Code. A separate code should be issued in terms of the Occupational Health and Safety Act to address the psychosocial safety of employees and the compensation of victims in terms of the Compensation for Injuries and Diseases Act 130 of 1993.
{"title":"Protection of employees against sexual harassment: The development, successes and shortcomings of the South African legal system","authors":"Karin Calitz","doi":"10.47348/salj/v139/i4a8","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a8","url":null,"abstract":"Despite extensive protection for employees against sexual harassment in the workplace, South African workplaces are still riddled with this harmful conduct. The severe consequences for victims and workplaces necessitate an analysis of the development of South African law to establish its successes, but also the shortcomings that continue to exist. Although there is a matrix of laws protecting employees against sexual harassment, the Employment Equity Act 55 of 1998, which regards harassment as a form of discrimination, is still the primary statute. In this article I argue that the tendency to focus on sexual harassment as a dignity and equality issue does not take sufficient cognisance of sexual harassment as a multifaceted issue involving criminal conduct, which threatens employees’ employment security and impacts on employees’ health and safety. An analysis of case law indicates that many employers have not adopted a policy on sexual harassment, and that some employers and the Commission for Conciliation, Mediation and Arbitration commissioners do not deal with sexual harassment in a gender-sensitive way, which is an approach endorsed by the International Labour Organization’s Violence and Harassment Convention 190 of 2019. This Convention emphasises the need for an inclusive, integrated approach to combat harassment. To align the protection of victims of harassment with the Convention, South Africa adopted a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in 2022. This Code, dealing with different kinds of harassment, including sexual harassment, replaced the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. By comparing the 2005 Code and related jurisprudence to the 2022 Code, the article considers whether sexual harassment is likely to be addressed more effectively under the 2022 Code. The 2022 Code has made certain improvements to the 2005 Code, but the altered definition of sexual harassment indicates the difficulties created by adopting one code to cover both misconduct and discrimination. In addition, aspects of the Convention, such as protecting the health and safety of employees, are not dealt with effectively in the 2022 Code. A separate code should be issued in terms of the Occupational Health and Safety Act to address the psychosocial safety of employees and the compensation of victims in terms of the Compensation for Injuries and Diseases Act 130 of 1993.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823385","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}
In S v Tshabalala, the Constitutional Court considered an appeal about whether accused persons who were present at a rape scene, but who did not participate in the crime and who neither aided nor abetted the perpetrators, could be found guilty of rape. The court decided this question in the affirmative by developing the commonlaw doctrine of common purpose and extending its application to rape cases. The court said that it did so to remove obstacles caused by patriarchal elements of the common law found in criminal law. The most interesting aspect of the judgment is that the court used feminism as a starting point for understanding the plight of women in rape cases. It affirmed its solidarity with women facing sexual violence and introduced feminist legal theory as a viable jurisprudential consideration in the adjudication of sexual crimes. This note considers the judgment and its implications for South Africa.
{"title":"Notes: Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala","authors":"Rorisang Matlala","doi":"10.47348/salj/v139/i2a2","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a2","url":null,"abstract":"In S v Tshabalala, the Constitutional Court considered an appeal about whether accused persons who were present at a rape scene, but who did not participate in the crime and who neither aided nor abetted the perpetrators, could be found guilty of rape. The court decided this question in the affirmative by developing the commonlaw doctrine of common purpose and extending its application to rape cases. The court said that it did so to remove obstacles caused by patriarchal elements of the common law found in criminal law. The most interesting aspect of the judgment is that the court used feminism as a starting point for understanding the plight of women in rape cases. It affirmed its solidarity with women facing sexual violence and introduced feminist legal theory as a viable jurisprudential consideration in the adjudication of sexual crimes. This note considers the judgment and its implications for South Africa.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822850","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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