2024-03-28T23:51:40Zhttps://repository.nwu.ac.za:443/oai/requestoai:repository.nwu.ac.za:10394/40772019-06-24T09:13:21Zcom_10394_1150com_10394_1149col_10394_4032
'n Toekomstige perspektief op grondwetlike stabiliteit
De Klerk, Frederik Willem
Orationes
Toespraak tydens die agtste FW de Klerk lesing, Noordwes-Universiteit,
Potchefstroomkampus, op 12 Oktober 2009.
Frederik Willem de Klerk, voormalige Staatspresident van die Republiek van Suid-Afrika
2011-04-04T07:41:17Z
2011-04-04T07:41:17Z
2010
Article
De Klerk, F.W. 2010. 'n Toekomstige perspektief op grondwetlike stabiliteit. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(2):15-28 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4077
en
North-West University (Potchefstroom Campus), Faculty of Law
oai:repository.nwu.ac.za:10394/40762019-06-24T09:17:15Zcom_10394_1150com_10394_1149col_10394_4032
A future perspective on Constitutional stability
De Klerk, Frederik Willem
Orationes
Speech at the eighth FW de Klerk lecture, North-West University, Potchefstroom Campus, on 12
October 2009. Frederik Willem de Klerk, former State President of the Republic of South Africa.
2011-04-04T07:35:51Z
2011-04-04T07:35:51Z
2010
Article
De Klerk, F.W. 2010. A future perspective on Constitutional stability. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(2):2-13 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4076
en
North-West University (Potchefstroom Campus), Faculty of Law
oai:repository.nwu.ac.za:10394/40782016-04-28T21:49:23Zcom_10394_1150com_10394_1149col_10394_4032
An embarrassment of riches or a profusion of confusion? An evaluation of the continued existence of the Civil Union Act 17 of 2006 in the light of prospective domestic partnerships legislation in South Africa
Smith, Bradley Shaun
Robinson, J A
Domestic partnership
Life partnership
Domestic Partnerships Bill 2008
Marriage
Civil Union Act 17 of 2006
Civil union
Civil partnership
Marriage Act 25 of 1961
Civil marriage
As it stands, South African family law currently holds that the Marriage Act 25 of 1961
applies exclusively to the solemnisation of heterosexual civil marriages while samesex
couples have no choice but to formalise their relationships in terms of the Civil
Union Act 17 of 2006. In addition, the legal position is complicated by the fact that
the latter Act not only allows both heterosexual and homosexual couples to conclude
a civil union, but also provides that a civil union may take the form of either a
marriage or a civil partnership, both of which enjoy the same legal recognition as,
and give rise to the same legal consequences, as a civil marriage under the Marriage
Act.
In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential
enactment of which casts significant doubt as to whether the prevailing framework
should be retained. With this potential development in mind, this paper considers the
desirability of maintaining the "separate but equal" status quo by: (a) comparing the
South African Law Reform Commission's pre-Civil Union Act proposals with the
approach eventually adopted by the legislature; (b) comparing and contrasting the
post-Civil Union Act position in South Africa with that of an established and wellordered
jurisdiction such as the Netherlands and, in the light hereof, considering the
cases for and against repealing the Civil Union Act; and (c) by considering the
desirability and practicality of the civil partnership's potential co-existence with the
Domestic Partnerships Bill (as modified in accordance with a recent study). A
proposal is made that could provide a less complex and better streamlined family law
dispensation in South Africa.
2011-04-04T08:06:37Z
2011-04-04T08:06:37Z
2010
Article
Smith, B. & Robinson, J.A. 2010. An embarrassment of riches or a profusion of confusion? An evaluation of the continued existence of the Civil Union Act 17 of 2006 in the light of prospective domestic partnerships legislation in South Africa. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(2):30-75 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4078
en
North-West University (Potchefstroom Campus), Faculty of Law
oai:repository.nwu.ac.za:10394/40792019-06-24T09:13:25Zcom_10394_1150com_10394_1149col_10394_4032
Ethics, justice and the sale of kidneys for transplantation purposes
Slabbert, M
Kidney donors
Transplantations
Medical ethics
Bio-ethical
Judgments
Beneficence
Living kidney donor transplantations are complex; add to that financial compensation
to the donor and one enters an ethical maze. Debates on whether the buying and
selling of kidneys should be allowed are mainly between utilitarians, deontologists
and virtue ethicists as legal transplants are more common in the Western world. The
pros and cons of each theory in relation to the sale of human organs are analysed,
after which the foundational principles for all bio-ethical judgments; beneficence,
non-maleficence, autonomy and justice are also scrutinised in seeking to justify the
sale of human kidneys for transplantation purposes in a country with a human rights
culture.
2011-04-04T08:15:05Z
2011-04-04T08:15:05Z
2010
Article
Slabbert, M. 2010. Ethics, justice and the sale of kidneys for transplantation purposes. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13( 2):77-105 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4079
en
oai:repository.nwu.ac.za:10394/40812019-06-24T09:16:16Zcom_10394_1150com_10394_1149col_10394_4032
National credit regulator versus Nedbank Ltd and the practice of debt counselling in South Africa
De Villiers, Dawid W
National Credit Regulator
National Credit Act 34 of 2005
Magistrate’s Court Act 32 of 1944
Magistrate’s Court
Declaratory order
Judicial discretion
Jurisdiction
Service
In duplum rule
Emoluments
Attachment order
Debt review
Debt counsellor
Consumer
Credit provider
Application procedure
The National Credit Regulator approached the then Transvaal Provincial Division of
the High Court in 2008 by way of a notice of motion. In this application the Regulator
prayed in terms of section 16(1)(b) of the National Credit Act 34 of 2005 (the "NCA")
for the proper interpretation of mainly sections 86 and 87 of the same Act. Due to
uncertainty and confusion the Regulator lodged an application to obtain clarity on
some of the difficulties that debt counsellors experience in practice. The matter was
heard in the High Court (TPD) on 02/03/2009 and judgment was handed down by Du
Plessis J on 21/08/2009. This article discusses the fifteen prayers and the impact of the orders granted by the
Court under three logical headings, namely:
those that deal with the NCA and the Magistrate’s Court;
Order 1 (on section 86(7)(c)), order 2 (an obligation to conduct a hearing), order 3
(the judicial role of the Magistrate’s Court) and order 4 (the application procedure of
the Magistrate’s Court) defined the interaction between the NCA and the
Magistrate’s Court Act (the “MCA”) very clearly. Since there is no sui generis
procedure provided for in the NCA, it is submitted that the Court’s approach is
correct. However, the end result is that the over-indebted consumer is not supported
to the degree the NCA envisages. For example: a rule 55 procedure of the MCA can
be cumbersome and costly, while the NCA envisaged a fast and relatively
inexpensive process.
those that deal with the role of the debt counsellor in debt restructuring; Order 5 (costs), order 6 (statutory function) and order 8 (the unique role of the debt
counsellor), granted under this heading, are important. They define the role of the
debt counsellor to be different from the run-of-the-mill applicant in terms of rule 55.
He/she is even protected against some cost orders due to a statutory function.
Because of this special function a question arises: should this difference in treatment
not be even greater than custom presently permits or proposes? Since this function
brings great responsibility and much paper work, should it not affect the fees that a
debt counsellor may charge? those that deal with the court procedures.
Orders 7, 9, 10 and 11 in this section are welcomed, namely those that deal with the
service of documents, the geographical jurisdiction and monetary limit of the court,
reckless credit and the in duplum rule. However, the Court preferred to stay on the
safe side with respect to emoluments attachments orders and the application of
section 86(2) to section 129(1). The lack of direction on the question when formal
debt enforcement in fact begins, is regrettable.
However, the declarator is a milestone in the history of the NCA. The orders impact
significantly on the practice of debt review and will continue to shape the credit
industry. Despite some disappointments it can be concluded that the declarator on
the whole adds value to the practice of debt counselling in South Africa. It is now for
the industry, the NCR, the legislators and scholars to take matters further.
2011-04-04T09:29:18Z
2011-04-04T09:29:18Z
2010
Article
De Villiers, D.W. 2010. National credit regulator versus Nedbank Ltd and the practice of debt counselling in South Africa. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(2):128-160 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4081
North-West University (Potchefstroom Campus), Faculty of Law
oai:repository.nwu.ac.za:10394/40802019-06-24T09:16:15Zcom_10394_1150com_10394_1149col_10394_4032
Temporary employment service (Labour Brokers) in South Africa and Namibia
Van Eck, B P Stefan
Africa Personnel Services
ILO Convention 181 of 1997
Labour broker
Labour hire
Right to choose trade
Occupation or profession freely
Temporary employment service
South Africa currently allows labour broking although this area of commerce is
problematic. The trade union movement, government and organised business are
presently debating the future regulation of this industry. Namibia has experimented
with, and failed, to place a legislative ban on labour broking. The Supreme Court of
Appeal of Namibia considered International Labour Organisation conventions and
provisions of their Constitution before concluding that labour broking should be
regulated but not prohibited. In this article it is argued that South African policy
makers can gain valuable insights from the Namibian experience. It is submitted that
it would be appropriate for Parliament to take cognisance of international and foreign
principles and to accept amendments that would provide for stricter regulation for
labour broking, rather than placing an outright ban on this economic activity.
Keywords: Africa
2011-04-04T09:18:19Z
2011-04-04T09:18:19Z
2010
Article
Van Eck. B.P.S. 2010. Temporary employment service (Labour Brokers) in South Africa and Namibia. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(2): 107-126 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4080
en
North-West University (Potchefstroom Campus), Faculty of Law
oai:repository.nwu.ac.za:10394/40822019-06-24T09:16:41Zcom_10394_1150com_10394_1149col_10394_4032
How could the pension funds adjudicator get so wrong? A critique of Smith versus Eskom Pensiion and Provident fund
Dyani, Ntombizozuko
Mhango, Mtendeweka Owen
Pension Funds Act
Pension Funds Adjudicator
Cohabitation
Marriage
Spouse
Dependants
Mutual dependency
Spouse’s benefit
Pension fund rules
Women’s rights
Notes
In this case note the judgment in the Smith case is criticized for being inconsistent with
the landmark ruling in Volks. It is argued that the Adjudicator ought to have remanded
the matter in Smith to the Board and ought to have ordered it to re-examine its
discretion with a focus on a set of factors. Some of the negative effects of Smith on the
pension funds industry are also outlined. While the authors express their understanding
that the Adjudicator's decision in Smith was made with the rights of women in mind, they
believe that her reasoning was wrong. She may have arrived at the same decision on
different reasoning. In order to prevent the negative effects of Smith on the pension
funds industry, it is recommended that the Adjudicator, when given an opportunity,
should overrule the precedent set in Smith. Failure to do so would create the risk of the
inconsistent application of the term "spouse" under South African law, or at the very
least in relation to acts of Parliament administered by the National Treasury, which may
potentially violate the equality provisions of the Constitution.
2011-04-04T09:57:28Z
2011-04-04T09:57:28Z
2010
Article
Dyani, N. & Mhango, M.O. 2010. How could the pension funds adjudicator get so wrong? A critique of Smith versus Eskom Pensiion and provident fund. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(2):16-181 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4082
en
North-West University (Potchefstroom Campus), Faculty of Law
oai:repository.nwu.ac.za:10394/40832019-06-24T09:17:05Zcom_10394_1150com_10394_1149col_10394_4032
What should the board of management of a persion fund consider when dealing with death claims involving surviving cohabitants?
Mhango, Mtendeweka Owen
Dyani, Ntombizozuko
Pension Funds Act
Pension fund member
Death claims
Factual cohabitants
Spouse
Dominant-servient test
Factual dependency test
Notes
This note argues that the Adjudicator’s determination Hlathi should be welcomed by the
pension funds industry because it clarifies the uncertain legal position that emerged in
the wake of the judgment in Volks. It comments on the requirements in and implications
of Hlathi for the pension funds industry and pension beneficiaries, and criticises the
Adjudicator's determination as failing to expressly incorporate the emotional and
intimate or sexual bond requirement in the new factual dependency test. It argues that
while Hlathi appears to have reverted to the legal position that prevailed prior to Van der
Merwe, the new test does not expressly incorporate the relevant requirement that a
relationship of mutual dependence involves an emotional and intimate or sexual bond.
As a result, the note is critical of this omission because it creates a potentially new
uncertainty in the law, and calls on the current Adjudicator to clarify this matter.
2011-04-04T10:06:39Z
2011-04-04T10:06:39Z
2010
Article
Mhango, M.O & Dyani, N. 2010. What should the board of management of a persion fund consider when dealing with death claims involving surviving cohabitants? Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(2):183-204 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4083
en
North-West University (Potchefstroom Campus), Faculty of Law