PER: 2000 Volume 3 No 2
http://hdl.handle.net/10394/1982
2024-03-28T13:01:28ZVrijheid van meningsuiting en godsdienst versus het non-discriminatiebeginsel
http://hdl.handle.net/10394/1985
Vrijheid van meningsuiting en godsdienst versus het non-discriminatiebeginsel
Van Schaik, F
A certain tension between freedom of expression and the proscription of discrimination is present in post World War II international law. This tension is dealt with differently in different jurisdictions. This contribution addresses the manner in which the lawgiver and courts of the Netherlands have approached the matter.
With reference to the relevant legal sources, the manner in which the law dealt with insult (especially of Jews and Roman Catholics) in the first half of the twentieth century is described, followed by a description of the reaction of some countries to the Convention on the Eradication of All Forms of Racial Discrimination (CERD). The Netherlands government chose to build its implementation of CERD on the existing law of insult, making insult on grounds of race, religion, life view, gender or sexual orientation punishable. This has created a specific tension regarding the freedom of expression in insult cases.
The relevant jurisprudence is discussed under three headings: * suspected anti-semitism * extreme rightist politics * history writing on World War II and nazism
The wish of the Netherlands government has been to deal with the combating of racial discrimination in a manner which would not lead to undue limitations on the freedom of expression. Partly due to the nature of CERD, which was ratified by the Netherlands without reservation, the implementing legislation has however made strong inroads into freedom of expression. In the jurisprudence race was given a wide meaning while the courts held on to the doctrine on insult not requiring animus iniuriandi and accepting dolus eventualis as sufficient. Thus racial insult is easily established, limiting freedom of expression to a larger extent than in countries such as the USA and UK.
2000-01-01T00:00:00ZDie aard van wetgewende diskresies by die Suid-Afrikaanse uitvoerende gesag
http://hdl.handle.net/10394/1984
Die aard van wetgewende diskresies by die Suid-Afrikaanse uitvoerende gesag
Van Rensburg, L J
This article focuses on the nature of legislative discretions in the hands of the executive authority of the state.
Relevant concepts are analysed, followed by an exposition of the position regarding delegation of legislative authority to the executive under the previous constitutional dispensation when the country had a sovereign Parliament. This is followed by a discussion of the legal position in Germany, which shows similarities to the situation in South Africa. It appears that differences in approach to the problem exist worldwide, but one similarity is to be found in all, namely that a complete parliamentary abdication of legislative authority is always disallowed. What follows from this is that South African law seems to follow the German example regarding the delegation of legislative powers. It seems that the South African Constitutional Court considers the delegation of essential legislative authority as undesirable. Limits have to be placed on the extent of Parliament's competencies pertaining to legislative delegation. Furthermore the manner and form requirements in the Constitution must be met when legislation is adopted. This however does not occur in all instances of legislative delegation to the executive authority. When legislative delegation takes place, it is consistently done by granting the executive the authority to adopt subordinate legislation, which in any event has the same legal effect as legislation of Parliament itself.
Next the Transitional Constitution of 1993 is considered against the background of relevant case law. It appears that the legal position was not changed by the promulgation of the ("final") Constitution of 1996. Empowering legislation that delegates any legislative authority must lay down guidelines providing direction regarding the exercise of the delegated authority. Delegated legislation may of course not contain substantive norms.
Like the German Bundesverfassungsgericht, the South African Constitutional Court seems to require empowering legislation to lay down the content, extent and purpose of the empowering provisions before it will enjoy legal effect. This content, extent and purpose will not primarily be evident from the delegated legislation, but must be contained in the empowering legislation itself. If this is not the case, the delegation of authority will have exceeded constitutional limits. Therefore, a wide delegation of legislative authority without limitations regarding its exercise, at least as far as content, extent and purpose are concerned, will without doubt be unconstitutional.
2000-01-01T00:00:00ZOordrag van eiendomsreg en die vulgêre reg in die Wes-Romeinse ryk
http://hdl.handle.net/10394/1983
Oordrag van eiendomsreg en die vulgêre reg in die Wes-Romeinse ryk
Schutte, P J W
It is generally accepted that an abstract system is applied in South Africa with regard to the transfer of ownership. It is a characteristic of the abstract system that the different legal acts which form part of the process, namely the obligatory agreement, delivery of the thing concerned or registration, and the real agreement are separated from each other and that each has its own requirements. However, there is no certainty about the question as to whether or not this distinction stems from Roman law. The purpose of this article is to ascertain whether the distinction between the different legal acts existed in the vulgar law.
It appears that the legal position in the vulgar law differs from South African law in that no distinction between the obligatory agreement and delivery of the thing existed. The conclusion of the sale, payment of the purchase price and the delivery of the merx took place simultaneously. It was considered to be one single act which also transferred ownership from one person to another. It furthermore appears that the intention of the parties to transfer ownership played a very important role. Yet, it was only the intention that existed at the time when the obligatory agreement was entered into, that mattered. Ownership did not pass by virtue of a separate meeting of the minds which could be abstracted from the obligatory agreement.
Although certain formal requirements, the purpose of which were to enable the state to collect taxes, had been introduced in the vulgar law, writing and registration had not been regarded as formal requirements for the transfer of ownership in immovable property. Yet, the practice had been to draw written documents relating to the contract of sale, and to register them in municipal registers. This form of registration, however, is not tantamount to registration in the Deeds Registry.
The conclusion is that an independent real agreement, which could be abstracted from the obligatory agreement was unknown to the vulgar law. There was no clear-cut distinction between the different legal acts such as that existing in South African law at present.
2000-01-01T00:00:00Z