2024-03-29T01:32:24Zhttps://repository.nwu.ac.za:443/oai/requestoai:repository.nwu.ac.za:10394/129962016-04-28T22:15:16Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Quinot, Geo
author
2014
The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public procurement, particular attention should be given to the role of quality (also called functionality) in the adjudication of public tenders and the final award decision. In South African public procurement law, the role of functionality in public tender adjudication has been a fairly controversial issue that has resulted in a continuing interaction between courts and law-makers on how and when quality should be assessed and should impact on the final award decision within the framework for public procurement found in section 217 of the Constitution. This contribution tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. The analysis shows how the role of functionality has constantly changed since the enactment of the PPPFA and remains uncertain. This uncertainty relates to different interpretations of the constitutional requirements for public procurement primarily contained in section 217(1) of the Constitution. Whether functionality is used as a qualification criterion, an award criterion or both holds particular practical implications for both suppliers and contracting authorities. It is accordingly important to have certainty on this question. However, it cannot be said that the Constitution and section 217 in particular dictates one approach rather than another. The issue should thus be resolved with reference to the statutory scheme adopted under the PPPFA.
Quinot, G. 2014. The role of quality in the adjudication of public tenders. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):1110-1136 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12996
Public procurement regulation
Functionality
Quality
State tenders
Preferential Procurement Policy Framework Act
Qualification criteria
Award criteria
The role of quality in the adjudication of public tenders
oai:repository.nwu.ac.za:10394/129982016-04-28T22:15:41Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Mupangavanhu, Yeukai
author
2014
Exemption clauses are a rule rather than an exception particularly in standard-form contracts. Consumers are usually forced to accept such terms on a "take-it-or-leave-it" basis. This state of affairs shows that freedom of contract is theoretical and could lead to injustices. In Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) the Court refused to uphold the exemption clauses based on the fact that it would have been unfair and unjust to the plaintiff who had sustained serious bodily injuries during his stay at the hotel. The article discusses this court decision in the light of the provisions of the Consumer Protection Act 68 of 2008 (CPA) against the background of the previous jurisprudence regarding exemption clauses, including the position of exemption clauses in a new constitutional dispensation.
Mupangavanhu, Y. 2014. Exemption clauses and the Consumer Protection Act 68 of 2008: an assessment of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ). Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):1167-1194 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12998
Exemption clauses
Consumer protection
Fairness and reasonableness
Public policy
Constitutional values
Exemption clauses and the Consumer Protection Act 68 of 2008: an assessment of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ)
oai:repository.nwu.ac.za:10394/129892016-04-28T22:15:09Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
De Freitas, S A
author
2014
Jurisprudentially speaking, "proselytism" is a concept within the larger genus of the protection of religious rights and freedoms. The word lends itself to differing opinions. However, there is a popular school of thought that "proselytism" has to do only with influencing people to adopt a particular religion. Such an understanding relies on the view that only the "religious" can be insidious and bear the potential to improperly proselytise, and thus excludes the possibility of improper irreligious forms of influence. In referring to the example of public-school education, it is argued that as much as the religious has the potential for improper proselytising, irreligious teachings or expressions also run the risk of improper proselytising. Not only are irreligious beliefs in many instances diametrically opposed to religious beliefs; they are a belief in themselves and cannot be seen as necessarily harmless or without the potential to proselytise improperly. Consequently, this article introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other (something befitting to plural and democratic paradigms). This article therefore also cultivates further debate on improper irreligious proselytism in religious rights and freedoms jurisprudence, a scant topic in human rights jurisprudence.
De Freitas, S.A. 2014. Proselytism and the right to freedom from improper irreligious influence: the example of public school education. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):868-887 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12989
Proselytism
Religious rights
Religion and education
Religious freedom in schools
Church and state
Religion and the European Court of Human Rights
Proselytism and the right to freedom from improper irreligious influence: the example of public school education
oai:repository.nwu.ac.za:10394/129932016-04-28T22:15:13Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Bosch, Shannon
author
2014
The phrase "direct participation in hostilities" has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to "direct participation in hostilities" temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to "direct participation in hostilities", the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between "direct participation in hostilities" and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a "continuous combat function". Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless "nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice" in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed.
Bosch, S. 2014. The International Humanitarian Law notion of direct participation in hostilities – a review of the ICRC interpretive guide and subsequent debate. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):999-1046 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12993
Direct participation in hostilities
International humanitarian law
Revolving door of protection
Continuous combative function
The International Humanitarian Law notion of direct participation in hostilities – a review of the ICRC interpretive guide and subsequent debate
oai:repository.nwu.ac.za:10394/129922016-04-28T22:15:12Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Jamneck, Juanita
author
2014
In recent years many developments have taken place in the field of the law of succession. Du Toit aptly states that "despite the static image that the law of succession often projects, it is a vibrant area of the law that has undergone dramatic changes in recent times and will continue to do so in future". This is indeed the case, as has been illustrated numerous times by the decisions in our courts as to the meaning of the word "spouse" and the recognition of the family as an important social institution. Although the family as an institution is not per se protected in the Constitution, our courts have recognised it as a vital social institution that comes in many different shapes and sizes and it has stressed that one form of family cannot be entrenched at the expense of other forms. As a result of various decisions on the meaning of the word "spouse" under a new dispensation, a Discussion Paper, in the form of Discussion Paper 129 (Project 25) Statutory law revision: Legislation administered by the Department of Justice and Constitutional Development (2011), has seen the light in order to suggest amendments to certain legislative provisions. Unfortunately certain issues covered in this Discussion Paper have not been clearly set out and need further investigation.
Jamneck, J. 2014. The problematic practical application of Section 1(6) and 1(7) of the Intestate Succession Act under a new dispensation. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):973-997 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12992
Intestate succession
Succession
Family
Law of succession
Meaning of spouse
The problematic practical application of Section 1(6) and 1(7) of the Intestate Succession Act under a new dispensation
oai:repository.nwu.ac.za:10394/129912016-04-28T22:15:11Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Chitimira, Howard
author
2014
In an early attempt to combat market abuse in the South African financial markets, legislation such as the Companies Act, the Financial Markets Control Act and the Stock Exchanges Control Act were enacted. However, these Acts failed to effectively curb market abuse activities that were allegedly rife in the financial markets. Consequently, the Insider Trading Act was enacted and came into effect on 17 January 1999. While the introduction of the Insider Trading Act brought some confidence in the financial markets, market abuse activities were still not extinguished. The provisions of the Insider Trading Act were to some extent inadequate and ineffectively implemented. Eventually, the Securities Services Act was enacted to repeal all the flawed provisions of the Insider Trading Act. Notwithstanding these efforts on the part of the legislature, more may still need to be done to increase the number of convictions and settlements in cases involving market abuse in South Africa. It is against this background that a historical overview analysis of the regulation of market abuse is carried out in this article to expose the flaws that were previously embedded in the South African market abuse laws prior to 2004. This is done to raise awareness of the situation on the part of the relevant stakeholders, as they consider whether such flaws were adequately resolved or subsequently re-introduced under the Securities Services Act and the Financial Markets Act. To this end, the article firstly discusses the historical development and regulation of market manipulation prior to 2004. Secondly, the regulation and enforcement of insider trading legislation prior to 2004 are examined. Moreover, where possible, certain flaws of the previous market abuse laws that were re-incorporated into the current South African market abuse legislation are isolated and recommendations are made in that regard.
Chitimira, H. 2014. A historical overview of the regulation of market abuse in South Africa. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):937-971 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12991
Insider trading
Market abuse
Regulation
Financial markets
Market manipulation
A historical overview of the regulation of market abuse in South Africa
oai:repository.nwu.ac.za:10394/129942016-04-28T22:15:14Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Basdeo, Vinesh
author
2014
The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals. The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications?
Basdeo, V. 2014. The law and practice of criminal asset forfeiture in South African criminal procedure: a constitutional dilemma. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):1048-1069 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12994
Criminal asset forfeiture
Criminal procedure
Confiscation
Evidence
Restraint stage
Confiscation and realisation stage
Constitutional
Assets
The law and practice of criminal asset forfeiture in South African criminal procedure: a constitutional dilemma
oai:repository.nwu.ac.za:10394/129952016-04-28T22:15:15Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Hurter, Eddie
author
Pistorius, Tana
author
2014
The new gTLD programme of the Internet Corporation for Assigned Names and Numbers (ICANN) is the single most important development since the privatisation of the DNS in 1998. The management of the Domain Name System (DNS) has developed from a modest undertaking to its current explosive expansion through the new gTLD programme. Africa has boldly entered the arena through the delegation of the .Africa gTLD.
This new development heralds an innovative era in the management of the DNS, especially for Africa. The dotAfrica gTLD launch strategy offers several advantages to African governments and traders alike. One of the innovative features of the management of dotAfrica is the fact that a broader set of rights including commercial, cultural, linguistic, religious and personal rights will be protected. Furthermore, African trade mark proprietors and other rights holders are protected, initially at least, by various innovative rights-protection mechanisms. This development is important for African governments and it should form an integral part of right holders' intellectual property management strategy.
Hurter, E. & Pistorius, T. 2014. The new .Africa top level domain: an African initiative in ensuring Africa's rightful place on the global network. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):1071-1108 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12995
dotAfrica
New gTLD programme
Trade mark rights
Sunrise period
Priority rights
Dispute resolution
ICANN
ZACR
Mark validation system
Rights protection mechanisms
Land rush phase
Reserve names list
Trademark clearing house
African Union Commission
The new .Africa top level domain: an African initiative in ensuring Africa's rightful place on the global network
oai:repository.nwu.ac.za:10394/129902016-04-28T22:15:10Zcom_10394_1150com_10394_1149col_10394_12988
00925njm 22002777a 4500
dc
Joubert, Yvette
author
Calitz, Juanitta
author
2014
This article analyses the role of the so-called private examinations in our South African insolvency law and deals with the question of whether or not section 417 of the Insolvency Act (Act 24 of 1936) is adequately and effectively framed in order to fulfil its intended purpose in South African law. The contribution also points out that although the scrutiny of private examinations is not novel; it is argued that further exploration of the subject is justified by virtue of the fact that robust and innovative legislative changes have been experienced in the South African corporate landscape. Although the section has already passed the test of lawfulness and constitutionality, the aim is to ascertain whether the section serves a legitimate purpose and is essential and relevant in a democratic society. This is done by considering the South African law relating to South African private examinations and includes academic texts and judicial interpretation. Both section 417 of the Companies Act (Act 61 of 1973) and the matter of Kebble v Gainsford in particular are discussed. A brief comparative analysis of a similar provision in the Insolvency Act of the United Kingdom (UK), namely section 236 of the Insolvency Act 1986 is also included.
Finally recommendations are made on aspects where the section may be enhanced by reform which in part relies on the premise that South African insolvency law in toto is desperately in need of an overhaul. The article concludes that it is vital that section 417 be retained in a new insolvency regime as there is a greater awareness of the interdependence between companies and the society in which they function, and it is submitted that there should be an increased responsibility in the insolvency process on the reasons why companies have failed. The accessibility of the section to practitioners, the inquisitorial nature of the proceedings, the wide scope of the section and the effective sanctions should examinees not comply together combine to make a formula that has over the years proved impervious to circumvention and it therefore fulfils its function with prudent efficiency.
Joubert, Y. & Calitz, J. 2014. To be or not to be? The role of private enquiries in the South African insolvency law. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 17(3):889-935 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/12990
Insolvency law
Liquidation
Section 417 of Companies Act 61 of 1973
Private examinations
Constitutional
Constitutional court cases
Balance of rights
Abuse of process
Concursus creditorum
Oral or written interrogatories
Insolvency Act 1986
Official receiver
To be or not to be? The role of private enquiries in the South African insolvency law