2024-03-28T18:13:09Zhttps://repository.nwu.ac.za:443/oai/requestoai:repository.nwu.ac.za:10394/22802016-04-28T21:25:26Zcom_10394_1150com_10394_1149col_10394_2273
Harms, L T C
2009-10-08T09:38:45Z
2009-10-08T09:38:45Z
2004
Harms, L.T.C. 2004. Ontwikkeling van die gemenereg in die lig van artikel 39(2) en 173 van die Grondwet. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 7(2):186-204 [http://ajol.info/index.php/pelj/index]
1727-3781
http://hdl.handle.net/10394/2280
The point of departure in the Constitution is that the existing legal order should largely be kept intact, despite the fact that this is disliked by some. The common (or non-statutory) law has also retained its position, subject however to the superior courts' inherent power, or rather their obligation in terms of section 173 of the Constitution, to develop the common law taking into account the interests of justice. The courts have for a long time had the task of developing the common law with reference to especially the boni mores, moral standards and the common notion of what is right and fair. The Bill of Rights now is a source and summation of such notion.
At times there had been an exaggerated call for petere fontes. The Courts however still have the competence to adapt the law to serve commercial and other needs, even without reference to the Bill of Rights. The underlying principles of the common law are largely, though not in all respects, consistent with the Bill of Rights.
There is an essential distinction between the development of a rule of the common law in accordance with constitutional norms, and the invalidation of a rule which is inconsistent with the Constitution. Courts tend not to make this distinction and this leads to inconsistencies.
Some believe that the common law is perfect and unaffected by the Bill of Rights. Others consider the Bill of Rights to have granted the judiciary a hunting license on the common law, making the positive law a matter of judicial discretion and allowing the courts to infringe upon the domain of the legislature and to ignore precedents.
The common law consists of a miriad rules developed over many centuries involving great minds. It represents a fine web, the disturbance of which at one point may have
severe unexpected consequences elsewhere. The new era makes extraordinary demands on judicial officers. The ubiquitous Constitution sets the boundaries – boundaries neither of barbed wire, nor made of rubber. Free judicial discretion is not a value of the Constitution, nor is legal uncertainty. The Constitution illuminates the legal landscape, but it is not blinding; it does not provide a trench from which the common law may be attacked, but it entrenches rights. Sections 39(2) and 173 of the Constitution do not place a machete in the hands of the judge to decapitate or to castrate, but it provides modeling clay out of which art must be created capable of withstanding the heat of the oven.
http://ajol.info/index.php/pelj/article/viewFile/43466/27001
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Ontwikkeling van die gemenereg in die lig van artikel 39(2) en 173 van die Grondwet
Article
oai:repository.nwu.ac.za:10394/22772016-04-28T21:27:42Zcom_10394_1150com_10394_1149col_10394_2273
Rautenbach, Christa
2009-10-08T09:34:03Z
2009-10-08T09:34:03Z
2004
Rautenbach, C. 2004. Some comments on the current (and future) status of Muslim personal law in South Africa. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 7(2):96-129 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2277
The state law of South Africa consists of the common law and the customary law. However, in reality there exist various cultural and religious communities who lead their private lives outside of state law. For example, the Muslim community in South Africa is a close-knit community which lives according to their own customs and usages. Muslims are subject to informal religious tribunals whose decisions and orders are neither recognised nor reviewable by the South African courts. The non-recognition of certain aspects of Muslim personal law causes unnecessary hardships, especially for women. A Muslim woman is often in a "catch two" situation. For example, on the one hand her attempts to divorce her husband in terms of Muslim law may be foiled by the relevant religious tribunal and, on the other hand, the South African courts may not provide the necessary relief, because they might not recognise the validity of her Muslim marriage. Increasingly, South African courts are faced with complex issues regarding the Muslim community. The last few years there has been a definite change in the courts' attitude with regard to the recognition of certain aspects of Muslim personal law. Contrary to pre-1994 court cases, the recent court cases attempt to develop the common law to give recognition to certain aspects of Muslim personal law. This article attempts to give an overview of the recent case law that dealt with issues regarding the recognition of aspects of Muslim personal law.
Another issue, which eventuates from the current situation, is whether the South African legal order should continue to have a dualistic legal order or whether we should opt for a unified legal order or even a pluralistic legal order. In order to address this issue, some comments on the current status of Muslim personal law will be made and, finally, in order to contribute to the debate regarding the recognition of Muslim personal law, optional models for the recognition of Muslim personal law will briefly be evaluated.
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Some comments on the current (and future) status of Muslim personal law in South Africa
Article
oai:repository.nwu.ac.za:10394/22752016-04-28T21:29:03Zcom_10394_1150com_10394_1149col_10394_2273
Gabru, N
2009-10-08T09:26:40Z
2009-10-08T09:26:40Z
2004
Gabru, N. 2004. Dilemma of Muslim women regarding divorce in South Africa. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 7(2):44-56 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2275
On a daily basis people enquire about the dissolution of Islamic marriages, in terms of South African law In South Africa. There exist no legal grounds for obtaining a divorce in a South African court, for persons married in terms of the Islamic law only. The reason for this is due to the fact that Muslim marriages are currently not recognised as valid marriages in terms of South African law. The courts have stated that the non-recognition of Islamic marriages is based on the fact that such marriages are potentially polygamous. In South Africa, marriages may be dissolved by the death of one of the spouses or by divorce. In terms of the Divorce Act, a decree of divorce will be granted by a court of law. Islam grants the husband the right of divorce and also grants the wife the right to request and apply to dissolve the marriage through what is known as Khula, the woman also has the right to a delegated divorce. If the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the gifts he has given her. Islam further makes provision for the "reasonable maintenance" of divorced women.
The non-recognition of Islamic marriages has the effect that a person married in terms of Shari'ah only, has no right to approach a court of law for a decree of divorce and, unless a husband divorces his wife in terms of the Shari'ah, the wife is trapped in a marriage, even if the marriage has broken down irretrievably. Thus a custom in South Africa has developed, whereby Muslim husbands refuse to divorce their wives in terms of Islamic law, so as to punish the wife. The wife in turn cannot make use of the South African
judiciary to obtain a divorce, because of the non-recognition of her marriage. This is a burden, which is in direct conflict with Islamic law. In 2000 a Bill was drafted by the South African Law Commission. This act will recognise Islamic family law within a constitutional framework. This article deals with the dilemma that a Muslim woman is faced with in South Africa with regards to divorce.
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Dilemma of Muslim women regarding divorce in South Africa
Article
oai:repository.nwu.ac.za:10394/22742016-04-28T21:29:00Zcom_10394_1150com_10394_1149col_10394_2273
Nwauche, E S
2009-10-08T09:24:10Z
2009-10-08T09:24:10Z
2004
Nwauche, E.S. 2004. A return to the manifest justice principle: a critical examination of the "reasonable suspicion/apprehension of bias" and "real possibility of bias" tests for judicial bias in South Africa and England. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 7(2):2-42 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2274
The impartiality of judges often expressed in the Latin maxim nemo iudex in propria causa interpreted to mean that no man should be a judge in his own cause together with the right of fair hearing make up the right to natural justice. This principle is recognized by a number of provisions of the Constitution of the Republic of South Africa, 1996. Section 165 (4) provides that the organs of state shall through legislative and other measures assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Furthermore, section 34 of the same Constitution provides that everyone has the right to have any dispute resolved by the application of law by a court or, where appropriate another independent and impartial tribunal or forum. Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms 1950 as incorporated in the Human Rights Act 1988, applicable in England since 2000 provides that: "In the determination of his civil rights and obligations … everyone is entitled to a fair hearing … by an independent and impartial tribunal established by law." The independence of courts and impartiality of judges are closely related in that they operate to sustain public confidence in the administration of justice.
This article advocates a return to the use of the manifest justice principle enshrined as the proper context for the application of the tests of "reasonable apprehension of bias" adopted by South African courts and "real possibility of bias" adopted by English courts in the consideration of allegation of apparent bias. This paper argues that the tests are different and that while the English test is a move of English courts from the real danger/likelihood
test in consonance with an overwhelming global jurisprudence the South African test is a move away from this global jurisprudence and arguably back to the real danger/likelihood test. This paper also argues that the reasonable apprehension test as applied by the minority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing) is a more acceptable interpretation of the reasonable apprehension test than the test laid down in President of the Republic of South Africa v South Africa Rugby Football Union (2) and its interpretation by the majority in SACCAWU v Irvin & Johnson Ltd (Seafoods Division Fish Processing). More importantly there is an examination of cases where the tests have been applied which hopefully shows that there are considerable problems and inconsistency in their application and argue that the manifest justice principle provides the proper context for the tests to be properly applied.
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A return to the manifest justice principle: a critical examination of the "reasonable suspicion/apprehension of bias" and "real possibility of bias" tests for judicial bias in South Africa and England
Article
oai:repository.nwu.ac.za:10394/22782019-06-24T09:27:54Zcom_10394_1150com_10394_1149col_10394_2273
Scholtz, W
2009-10-08T09:35:18Z
2009-10-08T09:35:18Z
2004
Scholtz, W. 2004. The changing rules of jus ad bellum: conflicts in Kosovo, Iraq and Afghanistan. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 7(2):131-163 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2278
This article focuses on three instances of the use of armed force in international relations. The three instances that are explored are the intervention by NATO in Kosovo, the armed attack by mainly the USA and the UK against Afghanistan and the war against Iraq in 2003. The purpose of this investigation is to examine the legality of the coercive measures in order to ascertain the effects that these actions had in relation to article 2(4) of the UN Charter. The proposed justifications for the attacks differ and these are carefully scrutinized against the jus ad bellum as to determine the legality of the attacks. The notion of humanitarian intervention was used as a ground for justification by various international scholars to explain the use of force in Kosovo, but this concept is not recognized in terms of international law. The attack on Afghanistan was based on article 51 of the UN Charter. The attacks were directed at Afghanistan as this state harboured the terrorists responsible for the attacks on the USA. The mere harbouring of terrorists does not give rise to the use of armed force on the basis of article 51 and as such the use of coercive measures against Afghanistan was illegal. The use of force in Iraq was mainly based on the doctrine of pre-emptive force which is alien to international law. The USA and its coalition partners also acted in contravention with the jus ad bellum in this regard. The author poses certain proposals in relation to the jus ad bellum and stresses the importance of article 2(4) which must ensure that international relations are not once more regulated by the use of armed force.
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The changing rules of jus ad bellum: conflicts in Kosovo, Iraq and Afghanistan
Article
oai:repository.nwu.ac.za:10394/22792019-06-24T09:33:48Zcom_10394_1150com_10394_1149col_10394_2273
Slabbert, M N
2009-10-08T09:36:33Z
2009-10-08T09:36:33Z
2007
Slabbert, M.N. 2004. Parental access to minors' health records in the South African health care context: concerns and recommendations. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 7(2):165-184 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2279
Privacy and confidentiality have long been recognized as essential elements of the doctor-patient relationship. Patients should feel free to disclose the most intimate and private medical facts about themselves to their physicians in order to facilitate optimal patient care. Medical records, whether hand-written or electronic, also play an important role in other contexts, such as medical research, health care management and financial audit. In South Africa there is little consistency in approaches to patient confidentiality. There are also no national standards or policies on patient confidentiality, apart from specific ethical rules, some ad hoc statutory provisions and general constitutional provisions not directly related to the intricacies of the doctor-patient relationship. A closer look at the relevant statutory provisions reveal the existence of conflicting standards, most notably in respect of parental access to a minors' health records. The purpose of this paper is to examine the discrepancies and contradictory provisions relating to the access to and disclosure of health information, in particular parental access to health records of minors. In the final instance, some recommendations will be suggested.
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Parental access to minors' health records in the South African health care context: concerns and recommendations
Article
oai:repository.nwu.ac.za:10394/22762019-06-24T09:20:21Zcom_10394_1150com_10394_1149col_10394_2273
Kotzé, Louis J
2009-10-08T09:32:33Z
2009-10-08T09:32:33Z
2004
Kotzé, L.J. 2004. The application of just administrative action in the South African environmental governance sphere: an analysis of some contemporary thoughts and recent jurisprudence. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 7(2):58-94 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/2276
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The application of just administrative action in the South African environmental governance sphere: an analysis of some contemporary thoughts and recent jurisprudence
Article