2024-03-29T14:43:12Zhttps://repository.nwu.ac.za:443/oai/requestoai:repository.nwu.ac.za:10394/40502019-06-24T09:16:40Zcom_10394_1150com_10394_1149col_10394_4036
Bolton, Phoebe
2011-03-30T09:25:46Z
2011-03-30T09:25:46Z
2010
Bolton, P. 2010. Municipal tender awards and internal appeals by unsuccessful bidders. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):56-82 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4050
In recent years, bidders aggrieved by municipal tender awards are increasingly
resorting to Section 62 of the Local Government: Municipal Systems Act1 for relief.
The application of this provision to tender processes is however strictly confined, and
in most instances bidders find that they have no option but to approach the courts for
the judicial review of tender awards. In this article, the application of Section 62 to a
municipality’s tender processes and decisions is critically analysed in the light of
recent court judgments. Attention is also given to the relation between Section 62
and dispute resolution procedures in place under the Supply Chain Regulations,2
enacted under the Local Government: Municipal Finance Management Act.3 It is
argued that at present, internal appeal and dispute resolution processes do not
afford unsuccessful bidders adequate protection.
en
North-West University (Potchefstroom Campus), Faculty of Law
Appeals
Bid committee system
Competitive bidding
Constitution
Dispute resolution
Local Government
Municipal Systems Act
Procurement
South Africa
Tender
Municipal tender awards and internal appeals by unsuccessful bidders
Article
oai:repository.nwu.ac.za:10394/40482019-06-24T09:17:31Zcom_10394_1150com_10394_1149col_10394_4036
Krüger, Josef G A
2011-03-30T09:07:46Z
2011-03-30T09:07:46Z
2010
Krüger, J.G.A. 2010. Restructuring of insolvent corporations in Canada. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(1):2-28 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4048
Orations
en
North-West University (Potchefstroom Campus), Faculty of Law
Restructuring of insdolvent corporations in canada
Article
oai:repository.nwu.ac.za:10394/40592019-06-24T09:13:22Zcom_10394_1150com_10394_1149col_10394_4036
Tshoose, Clarence Itumeleng
2011-03-31T08:24:05Z
2011-03-31T08:24:05Z
2010
Tshoose, C.I. 2010. The impact of HIV/AIDS regarding informal social security: Issues and perspectives from a South African context. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):408-447 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4059
The purpose of the article is to examine the right to social assistance for households
living with HIV/AIDS in South Africa. In particular, the article focuses on the impact of
this pandemic on households' access to social assistance benefits in the wake of the
HIV/AIDS pandemic, which has wrought untold sorrow and suffering to the
overwhelming majority of households in South Africa.
The article analyses the consequences of HIV/AIDS in relation to households'
support systems, care and dependency burdens, and the extent to which the
household members either acknowledge the illness (enabling them to better engage
with treatment options) or alternatively, deny its existence. The article commences
by reviewing the literature concerning the effects and social impact of HIV/AIDS on
the livelihoods of households and their families. The social reciprocity that underpins
households' livelihoods is briefly recapitulated. The article concludes that, while
recent policy developments are to be welcomed, the current South African legal
system of social security does not provide adequate cover for both people living with
HIV/AIDS and their families. More remains to be done in order to provide a more
comprehensive social security system for the excluded and marginalised people who
are living with HIV/AIDS and their families.
en
North-West University (Potchefstroom Campus), Faculty of Law
HIV/AIDS
Disability grant
Impact
Households
Access
Poverty
Safety net
Social security
Constitution
The impact of HIV/AIDS regarding informal social security: Issues and perspectives from a South African context
Article
oai:repository.nwu.ac.za:10394/40512019-06-24T09:13:24Zcom_10394_1150com_10394_1149col_10394_4036
Boraine, Andre
Van Heerden, Corlia
2011-03-30T09:51:21Z
2011-03-30T09:51:21Z
2010
Boraine, A. & Van Heerden, C. 2010. To sequestrate or not to sequestrate in view of the National Credit Act 34 of 2005: A tale of two judgements. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):84-124 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4051
The purpose of this article is to consider the impact of some of the provisions of the
National Credit Act1 (the NCA) on sequestration applications in the form of
applications for voluntary surrender, as well as compulsory sequestration. This
matter is of particular relevance in view of two recent cases: in Ex parte Ford2 the
court refused to grant a sequestration order following an application for voluntary
surrender since the applicant-debtors did not, according to the court, avail
themselves adequately of debt relief measures provided for by the NCA where the
bulk of the debt consisted of credit agreements regulated by the NCA; and in a more
recent judgment, Investec Bank Ltd v Mutemeri,3 the respondent-debtors, namely
the consumers, opposed an application for compulsory sequestration on the basis
that the application for debt restructuring pursuant to debt review in terms of the NCA
barred the applicant from proceeding with the application for compulsory
sequestration, since they argued that such an application amounted to debt
enforcement. This discussion therefore considers the impact of the debt relief
remedies and certain special provisions that apply to debt enforcement in terms of
the NCA on sequestration procedures provided for in the Insolvency Act4 in view of the above judgments.
en
North-West University (Potchefstroom Campus), Faculty of Law
Advantage of creditors
Civil suit
Compulsory sequestration
Concursus creditorum
Credit agreements
Debt counsellor
Debt nforcement
Debt relief measures
Debt restructuring
Debt review
Discretion of court; National Credit Act
NCA
Reckless credit
Section 129 notice
Sequestration
Sequestration applications
Sequestration proceedings
Voluntary surrender
To sequestrate or not to sequestrate in view of the National Credit Act 34 of 2005: A tale of two judgements
Article
oai:repository.nwu.ac.za:10394/40582019-06-24T09:13:19Zcom_10394_1150com_10394_1149col_10394_4036
Jacobs, Wenette
Stoop, Philip N
Van Niekerk, René
2011-03-31T08:11:48Z
2011-03-31T08:11:48Z
2010
Jacobs, W., Stoop, P.N. & Van Niekerk, R. 2010. Fundamental consumer rights under the Consumer Protection Act 68 of 2008: A critical overview and analysis. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):302-406 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4058
South Africa was in need of a comprehensive framework of legislation, policies and
government authorities to regulate consumer-supplier interaction. The Consumer
Protection Act 68 of 2008, which was signed by the President of the Republic of
South Africa on 29 April 2009 and published in the Government Gazette on 29 April
2009, now provides an extensive framework for consumer protection and aims to
develop, enhance and protect the rights of consumers and to eliminate unethical
suppliers and improper business practices. Certain areas of the common law
regarding consumer rights have been codified by the Act and certain unfair business
practices that were previously unregulated are now governed by the Act. The Act
has a wide field of application. It applies to every transaction occurring within South
Africa for the supply of goods or services or the promotion of goods or services and
the goods or services themselves, unless the transaction is exempted from the
application of the Act. The Act also specifically regulates aspects of franchise
agreements. In terms of the Act, consumers obtain several new rights and some
existing rights are broadened and reinforced. These rights are: the right to equality in
the consumer market; privacy; choice; disclosure and information; fair and
responsible marketing; fair and honest dealing; fair, just and reasonable terms and
conditions; and fair value, good quality and safety. The last right in terms of the Act
deals with a supplier's accountability to consumers. The authors critically analyse
and discuss these rights. It is clear that the Act is written in favour of the consumer.Various provisions of the Act make inroads into the common-law position to
strengthen the position of the consumer vis-à-vis the supplier and suppliers are
undoubtedly facing an onerous task to prepare to comply, and eventually attempt to
comply, with the Act. Although the Act has its own interpretation clause, which
provides that it must be interpreted in a manner that gives effect to the purposes of
the Act, the Act poses many uncertainties and interpretational and practical
challenges. Many questions are therefore raised, some of which remain
unanswered. These questions illustrate some of the uncertainties concerning the
scope and possible interpretation of the fundamental consumer rights.
en
North-West University (Potchefstroom Campus), Faculty of Law
Contract law
Consumer protection
Consumer rights
Equality
Privacy
Choice
Disclosure and information
Fair and responsible marketing;
Fair and honest dealing
Fair or unfair contract terms
Fair value
Quality and safety
Product liability
Fundamental consumer rights under the Consumer Protection Act 68 of 2008: A critical overview and analysis
Article
oai:repository.nwu.ac.za:10394/40472019-06-24T09:17:06Zcom_10394_1150com_10394_1149col_10394_4036
Krüger, Rósaan
2011-03-30T08:33:22Z
2011-03-30T08:33:22Z
2010
Krüger, R. 2010. The South African constitutional court and the rule of law: The masethla judgement, a cause for concre? Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER). 13(1):468-492 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4047
Orationes
The rule of law as a foundational constitutional value constrains the exercise of
public power but the precise limits of the constraints it sets are not well defined. In
Masethla v President of the Republic of South Africa,1 the majority of the
Constitutional Court opted for an interpretation of this value that frees the President
from adherence to the demands of procedural fairness when exercising certain
constitutional powers. This note will investigate the soundness of that interpretation
against the background of theoretical expositions of the rule of law and earlier
Constitutional Court judgments.
en
North-West University (Potchefstroom Campus), Faculty of Law
Rule of law
Founding values
Executive power
Procedural fairness
Legality
Rationality
Non-arbitrariness
Masethla
Pharmaceutical manufacturers
The South African constitutional court and the rule of law: The masethla judgement, a cause for concre?
Article
oai:repository.nwu.ac.za:10394/40562019-06-24T09:19:39Zcom_10394_1150com_10394_1149col_10394_4036
Oluduro, Olubayo
2011-03-31T07:42:32Z
2011-03-31T07:42:32Z
2010
Oluduro, O. 2010. The role of religious leaders in curbing the spread of HIV/AIDS in Nigeria. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):208-236 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4056
Notes
The tragic impact of the HIV/AIDS pandemic in Nigeria and its rate of escalation
despite increasing access to health services have been alarming and terrifying.
Nigerian people are very religious, yet the impact of the pandemic leaves nothing
untouched. The article examines the response of the Nigerian religious leaders to
the challenges of the HIV/AIDS pandemic. It discusses some of the challenges
facing religious leaders as they grapple with the consequences of this pandemic and
explores ways in which they can make a real difference in halting its spread.
en
North-West University (Potchefstroom Campus), Faculty of Law
Role of religious leaders
Faith-based organisations
HIV/AIDS pandemic
Nigeria
Culture
Discrimination
Stigmatisation
The role of religious leaders in curbing the spread of HIV/AIDS in Nigeria
Article
oai:repository.nwu.ac.za:10394/40542019-06-24T09:34:34Zcom_10394_1150com_10394_1149col_10394_4036
Louw, A
2011-03-30T10:36:13Z
2011-03-30T10:36:13Z
2010
Louw, A. 2010. The constitutionality of biological father's recognition as a parent. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):156-206 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4054
Despite the increased recognition afforded to biological fathers as legal parents, the
Children's Act1 still does not treat fathers on the same basis as mothers as far as the
automatic allocation of parental responsibilities and rights is concerned. This article
investigates the constitutionality of the differential treatment of fathers in this respect,
given South Africa's international obligations, especially in terms of the United
Nations Convention on the Rights of the Child, to ensure that both parents have
common responsibilities for the upbringing of their child. After a brief consideration of
the constitutionality of the mother's position as parent, the constitutionality of the
father's position is investigated, firstly, with reference to Section 9 of the Constitution
and the question of whether the differentiation between mothers and fathers as far
as the allocation of parental responsibilities and rights is concerned, amounts to
unfair discrimination. The inquiry also considers whether the differentiation between
committed fathers (that is, those who have shown the necessary commitment in
terms of Sections 20 and 21 of the Children's Act to acquire parental responsibilities
and rights) and uncommitted fathers may amount to discrimination on an unspecified
ground. Since the limitation of the father's rights to equality may be justifiable, the
outcomes of both inquiries are shown to be inconclusive. Finally, the legal position of
the father is considered in relation to the child's constitutional rights – the rights to
parental care and the right of the child to the paramountcy of its interests embodied
in Section 28 of the Constitution. While there appears to be some justification for the
limitation of the child's right to committed paternal care, it is submitted that an
equalisation of the legal position of mothers and fathers as far as the automatic
acquisition of parental responsibilities and rights is concerned, is not only justified but imperative if the constitutional rights of children are to be advanced and protected.
en
North-West University (Potchefstroom Campus), Faculty of Law
Biological father
Constitutional rights of child
Parents or father
Legal parentage
Parental responsibilities and rights
Paternity
The constitutionality of biological father's recognition as a parent
Article
oai:repository.nwu.ac.za:10394/40572019-06-24T09:13:31Zcom_10394_1150com_10394_1149col_10394_4036
Smith, Bradley Shaun
2011-03-31T07:58:17Z
2011-03-31T07:58:17Z
2010
Smith,. B. 2010. Rethinking Volks v Robinson: The implications of appliying a "contextualised choice model" to prospective South African domestic partnership legislation. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):238-300 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4057
The article considers certain critical failings of the so-called "choice argument" (that
is the view that, by opting to cohabit in a life partnership rather than marry or enter
into a civil partnership, a life partner is not entitled to the legal benefits provided by
matrimonial [property] law) as it was applied to opposite-sex life partnerships by the
majority of the Constitutional Court in Volks v Robinson.1 On the basis of Canadian
jurisprudence, a "contextualised choice model" is developed that distinguishes
between need-based claims and those involving property disputes, and holds that
the "choice argument" could at best be relevant regarding the latter category of
claims, while the existence of a reciprocal duty of support is sine qua non for any
need-based claim to succeed. These findings are applied to registered and
unregistered domestic partnerships under the draft Domestic Partnerships Bill, 2008,
with the aim of suggesting certain amendments to the Bill in the hope of ensuring a more consistent and principled legal position once the Bill is enacted.
en
North-West University (Potchefstroom Campus), Faculty of Law
Life partnership
Domestic partnership
Domestic Partnerships Bill
Choice argument
Contextualised choice model
Reciprocal duty of support
Rethinking Volks v Robinson: The implications of appliying a "contextualised choice model" to prospective South African domestic partnership legislation
Article
oai:repository.nwu.ac.za:10394/40602019-06-24T09:16:14Zcom_10394_1150com_10394_1149col_10394_4036
Barnard, J
Nagel, C
2011-03-31T09:10:11Z
2011-03-31T09:10:11Z
2010
Barnard, J. & Nagel, C. 2010. Jordan v Farber (1352/90) [2009] ZANCHC 81 (15/12/2009). Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):449-466 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4060
Notes
This case note deals with several aspects of the law of contract, such as public
policy and validity, error, cancellation, repudiation, undue influence and damages. It
concerns the case of an elderly couple who had to stop their farming operations
because of ill health. The attorney whom they approached for assistance offered to
lease the farm, equipment and animals from them in his personal capacity, although
in his professional capacity he also drafted the contracts of lease. It later transpired
that the attorney used his position to mislead the couple as regards the contracts in
question and that he was guilty of unethical and unprofessional conduct. The couple
applied to court to have the leases declared void, alternatively cancelled, and to
have the attorney evicted from the farm. The order was granted; however, the
discussion seeks to demonstrate that the couple were afforded only minimal justice
in that they did not claim, nor were they granted, any damages. The various
possibilities open to them in the circumstances are examined and the conclusion is that ventilating the matter by way of application was probably not the best manner in which to have sought assistance.
en_US
North-West University (Potchefstroom Campus), Faculty of Law
Attorney
Breach of contract
Cancellation of contract
Conflict of interests
Damages
Enrichment
Fraudulent misrepresentation
Letting and hiring
Matrimonial property
Public policy
Undue influence
Jordan v Farber (1352/90) [2009] ZANCHC 81 (15/12/2009)
Article
oai:repository.nwu.ac.za:10394/40522019-06-24T09:16:13Zcom_10394_1150com_10394_1149col_10394_4036
Coetzee, Enid
2011-03-30T10:01:02Z
2011-03-30T10:01:02Z
2010
Coetzee, E. 2010. Can the application of the human rights of the child in a criminal case result in a therapeutic outcome? Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):126-154 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4052
Prior to the change brought about by S v M,1 the interests of children were only
considered as a circumstance or mitigating factor of the offender during the
sentencing process. The article will discuss case law in order to determine the
impact that the inclusion of the human rights of the child had on the sentencing
process if the offender was the primary caregiver of the child. Specific reference is
made to Sections 28(2) and 28(1)(b) of the Constitution of the Republic of South
Africa, 1996. The article will then consider whether this inclusion might improve
therapeutic outcomes without the apprehension that the interests of justice would be
forfeited. A therapeutic outcome is brought about when the attention is placed on the
human, emotional and psychological side of the law. It is concluded that the Zinn
triad remains the basic measure to be used by sentencing courts to determine an
appropriate sentence. Should the sentence be direct imprisonment, the court has to
ensure that the children receive appropriate care as prescribed by Section 28(1)(b).
Should a range of sentences be considered, even though the court has a wide
discretion to decide which factors should be allowed to influence the measure of
punishment, when the offender is a primary caregiver, Section 28(2) must be
included as an independent factor. It is also concluded from the case law discussion
that the inclusion of the human rights of the child in the sentencing process did not
automatically give rise to a therapeutic outcome, although in some judgments it did
result in a therapeutic outcome. Thus, the consideration of the human rights of the
children during the sentencing process creates the opportunity for a therapeutic
outcome.
en
North-West University (Potchefstroom Campus), Faculty of Law
Sentencing
Primary caregiver
Minor children
Interests of minor children
Therapeutic jurisprudence
Therapeutic opportunity
Can the application of the human rights of the child in a criminal case result in a therapeutic outcome?
Article
oai:repository.nwu.ac.za:10394/40492019-06-24T09:16:22Zcom_10394_1150com_10394_1149col_10394_4036
Menski, Werner
2011-03-30T09:13:45Z
2011-03-30T09:13:45Z
2010
Menski, W. 2010. Fuzzy law and the boundaries of secularism. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):30-54 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4049
Orationes
en
North-West University (Potchefstroom Campus), Faculty of Law
Fuzzy law and the boundaries of secularism
Article
oai:repository.nwu.ac.za:10394/40612019-06-24T09:25:19Zcom_10394_1150com_10394_1149col_10394_4036
Lehobye, Nafta Mokate
2011-03-31T09:21:58Z
2011-03-31T09:21:58Z
2010
Lehobye, N.M. 2010. Plagiarism: Misconduct awareness on novice research within the cyberworld. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 13(3):494-508 [http://www.nwu.ac.za/p-per/index.html]
1727-3781
http://hdl.handle.net/10394/4061
Notes
More often than not, there exists some form of infringement relating to the use of
other authors' work. This is particularly so in instances in which novice authors make
use of the information available within the cyber-digital environment. The article
explains the meaning of plagiarism and describes the many manifestations thereof,
with the primary aim of providing guidance to novice authors.
en
North-West University (Potchefstroom Campus), Faculty of Law
Copyright
Novice authorship
Plagiarism
Cyber-digital environment
Fair-use doctrine
Legal protectionism
Legal certainty
Plagiarism: Misconduct awareness on novice research within the cyberworld
Article