PER: 2011 Volume 14 No 7
Contents
14 December 2011
Oratio
Articles
- The problems of proving actual or apparent bias: an analysis of contemporary developments in South Africa / Okpaluba, C & Juma, L
- African indigenous land rights in a private ownership paradigm / Du Plessis, WJ
- South African private security contractors active in armed conflicts: citizenship, prosecution and the right to work / Bosch, S & Maritz, M
- Human rights that influence the mentally ill patient in South African medical law: a discussion of sections 9; 27; 30 and 31 of the constitution / Swanepoel, M
- Analysing the onus issue in dismissals emanating from the enforcement of unilateral changes to conditions of employment / Ismail, R & Tshoose, I
Note
- The devil is in the definition - definitions and their limited use in legal problem solving / Brimer, D & Brimer, A
Case notes
- Third party fraud inducing material mistake - Slip Knot Investments 777 (PTY) LTD v Du Toit 2001 4 SA 72 (SCA) / Pretorius, C-J
- Unauthorised adaptation of computer programmes - is criminalisation a solution? - Haupt T/A Softcopy v Brewers Marketing Intelligence (PTY) LTD 2006 4 SA 458 (SCA) / Muswaka, L
- Justice delayed is justice denied: protecting miners against occupational injuries and diseases: comments on Manyaki v Anglogold Ashanti LTD 2011 32 ILJ 545 (CC) / Tshoose, CI
Editorial
On 13 August 2011 Deputy Chief Justice Dikgang Moseneke delivered the keynote address at the Annual General Conference of the South African Chapter of the International Association of Women Judges held on the Potchefstroom Campus of the North-West University. We are pleased to open this edition with this address in which he concluded: "We need judges who are needs driven and who are determined to vindicate rights of aggrieved litigants impartially and without fear or favour. That deep instinct of fairness which seems to abound in women would be a great asset to our judiciary."
In this edition we furthermore publish five articles, one note and three case notes.
Articles
In their article Chuks Okpaluba of the University of Fort Hare and Lawrence Juma of Rhodes University endeavour to isolate the emerging approaches to the determination of actual or apparent bias in adjudication by analysing topical South African case law.
Against the background of the reconceptualisation of indigenous land rights Elmien du Plessis of the University of Johannesburg addresses the questions whether it would be possible to classify the indigenous land rights system as a commons, and if it would provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa.
Shannon Bosch and Marelie Maritz of the University of Kwazulu-Natal consider the role private security contractors (PSCs) play in armed conflicts and their status in international humanitarian law before weighing the effectiveness and constitutionality of South African legislation in terms of which PSCs are regulated and mercenarism is outlawed.Against the background of the often-unseen social and challenges faced by mentally ill patients, Magdaleen Swanepoel of the University of South Africa considers the human rights that influence the mentally ill patient in South African medical law.
The overall onus that faces employers and employees when determining whether a dismissal from employment was acceptable or not is the focus of an analysis of South African labour legislation by Riaz Ismail and Itumeleng Tshoose of the University of South Africa.
Note
David Brimer , Partner, Schindlers Attorneys in Johannesburg and Alan Brimer , Professor Emeritus of the University of KwaZulu-Natal (father and son) critically comment (with some almost irreverent examples from Scripture as addendum) on positivistic lawyers' "usual attempt to catch the meaning of a thing by entangling it in a net of words."
Case notes
Chris-James Pretorius of the University of South Africa discusses the question whether the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of iustus error raised by the mistaken party as dealt with by the South African Supreme Court of Appeal in 2011.
Linda Muswaka of the North-West University (Mafikeng Campus) discusses the possibility of an author being sued for infringement even though he has acquired copyright in a work that he created by making unauthorised adaptations to another's copyright material with reference to a judgment of the South African Supreme Court of Appeal of 2006 with comparative reference to the position in the UK.
With reference to a judgment of the South African Constitutional Court of 2011 dealing with occupational health and safety, Itumeleng Tshoose of the University of South Africa advocates the introduction of a unified system of occupational health and safety.
Recent Submissions
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Justice delayed is justice denied: protecting miners against occupational injuries and diseases: comments on Manyaki v Anglogold Ashanti LTD 2011 32 ILJ 545 (CC)
(2011)In the Mankayai v Anglogold Ashant Ltd 2011 32 ILJ 545 (CC) the Constitutional Court was called upon to give meaning and content by interpreting the provision of section 35 of Compensation for Occupational Injuries and ... -
Unauthorised adaptation of computer programmes - is criminalisation a solution? - Haupt T/A Softcopy v Brewers Marketing Intelligence (PTY) LTD 2006 4 SA 458 (SCA)
(2011)In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA) Haupt sought to enforce a copyright claim in the Data Explorer computer programme against Brewers Marketing Intelligence (Pty) Ltd. His ... -
Third party fraud inducing material mistake - Slip Knot Investments 777 (PTY) LTD v Du Toit 2001 4 SA 72 (SCA)
(2011)In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of ... -
The devil is in the definition - definitions and their limited use in legal problem solving
(2011)The lawyer’s usual attempt to catch the meaning of a thing by entangling it in a net of words is based on a common misapprehension of the way words work. The great minds of the ages have since time immemorial reminded us ... -
Analysing the onus issue in dismissals emanating from the enforcement of unilateral changes to conditions of employment
(2011)The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court ... -
Human rights that influence the mentally ill patient in South African medical law: a discussion of sections 9; 27; 30 and 31 of the constitution
(2011)The personalised nature of mental illness obscures from general view the intolerable burden of private and public distress that people with serious mental illness carry. Invariably the mentally ill person encounters rejection ... -
South African private security contractors active in armed conflicts: citizenship, prosecution and the right to work
(2011)South Africa has adopted two pieces of legislation since 1998 aimed at restricting one of the fastest growing sectors of the global economy: the private security industry. Not only is this legislation completely unique, ... -
African indigenous land rights in a private ownership paradigm
(2011)It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indige-nous land rights systems are necessarily "communal" in nature, ... -
The problems of proving actual or apparent bias: an analysis of contemporary developments in South Africa
(2011)This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator ...