2024-03-29T08:33:46Zhttps://repository.nwu.ac.za:443/oai/requestoai:repository.nwu.ac.za:10394/46622016-04-28T20:54:17Zcom_10394_1150com_10394_1149col_10394_4656
"For the Sake of the Children": South African Family Relocation Disputes
Domingo, W
Family relocation
care
contact
best interests of the child
Children?s Act
Decisions by primary caregiving parents to relocate after divorce, thereby disrupting the
non–primary caregivers’ right of contact with children or, where both parents have joint
care, the denial of the other’s parental rights and responsibilities to care, give rise to
cases which deal with relocation disputes. My paper deals with the development of
South African family jurisprudence in this area. Since the Children’s Act does not
provide any criteria for cases dealing with relocation I examine the different
jurisprudential approaches/trends taken by our courts in dealing with relocation. I pave
the way forward by making the argument that we need a general consistency in
approach by our courts when dealing with relocation disputes. As our society becomes
increasingly mobile, our courts will be faced with more frequent applications for local
and international family relocations. I conclude by making the recommendation that
despite the Children’s Act, we still need “guidelines” or perhaps a “Relocation Act” which
works in tandem with the Children’s Act.
2011-09-06T10:39:32Z
2011-09-06T10:39:32Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4662
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oai:repository.nwu.ac.za:10394/46642016-04-28T20:54:20Zcom_10394_1150com_10394_1149col_10394_4656
Commercial Appropriation of a Person's Image: Wells V Atoll Media (Pty) Ltd (Unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009)
Cornelius, S J
Identity
Image rights
Publicity rights
Personality rights
Delict
Tort
Our modern society has become transfixed with celebrity. Business people and
marketers also endeavour to cash in on the popularity enjoyed by the stars and
realise the value of associating merchandise or trademarks with the rich and famous.
This leads to difficulties when the attributes of a person are apparently used without
consent, which poses new questions to the law: should the law protect the individual
against the unlawful use of his or her image? If so, to what extent should such
protection be granted? These were some of the questions which the court had to
answer in Wells v Atoll Media (Pty). The judgment in Wells has redefined the right to
identity and provided some clarity on what the infringement of that right would
amount to. When the attributes of a person are used without consent, the right to
identity can be violated in one of four ways. A person's right to identity can be
infringed upon if the attributes of that person are used without permission in a way
which cannot be reconciled with the true image of the individual concerned, if the use
amounts to the commercial exploitation of the individual, if it cannot be reconciled
with generally accepted norms of decency, or if it violates the privacy of that person.
2011-09-06T10:39:32Z
2011-09-06T10:39:32Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4664
application/pdf
oai:repository.nwu.ac.za:10394/46582016-04-28T20:54:26Zcom_10394_1150com_10394_1149col_10394_4656
Perspectives on the Termination of Debt Review in Terms of Section 86(10) of the National Credit Act 34 of 2005
Van Heerden, Corlia
Coetzee, H
Termination
debt review
debt re-structuring
debt counselling
debt enforcement
National Credit Act
The National Credit Act 34 of 2005 (the NCA) aims to address and prevent the overindebtedness
of consumers and to provide mechanisms for resolving over–indebtedness
based on the principle of satisfaction by the consumer of all his obligations. In this regard
it provides inter alia for the mechanism of debt review, during which a debt counsellor
reviews the debt situation of a consumer in order to determine if the consumer is
over–indebted and to attempt to assist the consumer in obtaining debt relief in the form
of a consensual debt re–arrangement agreement or court–ordered debt re–structuring. A
pending debt review has serious consequences. It bars a consumer from entering into
further credit agreements and creates a moratorium on debt enforcement by the credit
provider. However, a debt review in terms of section 86 does not end or lapse automatically
if a specific event fails to occur or upon the expiry of a specific time period. Before
a credit provider can enforce a credit agreement that is the subject of a pending debt
review, the debt review must be terminated in accordance with section 86(10) and certain
other requirements must be met.
If a debt review is incorrectly terminated in accordance with section 86(10), the enforcement
proceedings instituted thereafter will be unlawful and premature. In practice
the debt review process ? and specifically the termination thereof ? are problematic as
there appears to be uncertainty, as a result of the sparse provisions of section 86(10),
regarding exactly when a debt review can be terminated. Uncertainty exists regarding the scope of a debt review and whether it should be afforded a narrow or broad interpretation,
which will inevitably affect the cut–off date for termination. This article attempts to
address some of these issues.
2011-09-06T10:39:31Z
2011-09-06T10:39:31Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4658
application/pdf
oai:repository.nwu.ac.za:10394/46652016-04-28T20:54:18Zcom_10394_1150com_10394_1149col_10394_4656
The Enforceability of Illegal Employment Contracts according to the Labour Appeal Court Comments on Kylie v CCMA 2011 4 SA 383 (LAC)
Selala, KJ
Employee
jurisdiction
sex workers
dismissal
sex industry
fair labour practice
The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or
not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex
worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to
resolve the dispute on the basis that the employee’s contract of employment was invalid
and therefore unenforceable in law. The Labour Appeal Court, on the other hand,
overturned the Labour Court’s decision and held that the CCMA has jurisdiction to
resolve the dispute, regardless of the fact that sex work is still illegal under the South
African law. For this decision, the Labour Appeal Court relied on section 23(1) of the
Constitution, which provides that everyone has the right to fair labour practices.
According to the Labour Appeal Court the crucial question for determination by the court
was if a person in the position of a sex worker enjoyed the full range of constitutional
rights including the right to fair labour practices. In the court’s reasoning the word
everyone in section 23(1) of the Constitution is a term of general import and conveys
precisely what it means. In other words everyone, including a sex worker, has the right
to fair labour practices as guaranteed in the Constitution. A critical analysis of the
judgment is made in this case note. The correctness of the court’s judgment, particularly
insofar as it relates to the approach to and the determination of the issue of jurisdiction,
is questioned. It is argued that the Court lost focus on the main issue in the appeal,
namely jurisdiction, and instead proceeded to place heavy emphasis on the employee’s
constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and
the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect – hence its
decision. Given the critical importance of the matter, and the attendant implications of
the judgment for labour litigation in South Africa, it is hoped that a similar case will soon
come to the attention of a superior court and that a definitive pronouncement will be
made.
2011-09-06T10:39:32Z
2011-09-06T10:39:32Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4665
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oai:repository.nwu.ac.za:10394/46602016-04-28T20:54:21Zcom_10394_1150com_10394_1149col_10394_4656
Korporatiewe Identiteit as die Basis van Strafregtelike Aanspreeklikheid van Regspersone (1): Teoretiese Grondbeginsels
Du Toit, P
Pienaar, Gerrit
Criminal liability
doctrine of identification
vicarious liability
juristic persons
organisational theory
corporate identity
corporate culture
The different models for the criminal liability of juristic persons reveal a tension
between individualist and realistic approaches. For individualists a corporation is the
product of a union of individuals. This means that a juristic person can only be held
criminally responsible if the conduct and fault of an individual involved in the entity
are attributed to the juristic person. For realists a corporate entity has an existence
independent of its individual members. The juristic person is blameworthy because
its corporate identity or corporate ethos encouraged the criminal conduct. A study of
organisational theory reveals that corporate crime may not necessarily be traced to
the fault of specific individuals. Corporate criminality often is the result of complex
decisions on different levels of the corporate hierarchy and furthermore is
encouraged by the manner in which the organisation is structured. Prominent
scholars such as the American philosopher Peter A French and the Australian Brent
Fisse rejected an individualist approach and attempted to develop models of
corporate fault based on the corporate identity idea. The failure of a corporation to
take preventative or corrective measures in reaction to corporate criminal conduct is
regarded as the basis for corporate fault by these authors. French calls this the
"principle of responsive adjustment" whilst Fisse names it the concept of "reactive
fault." A more sophisticated model (the "corporate ethos" model), which is also more
reconcilable with the basic notions of criminal law, was developed by the American
legal scholar Pamela Bucy. A corporation will be held criminally responsible if its corporate ethos has
encouraged the criminal conduct. The corporate ethos can be established with
reference to numerous factors such as the corporate hierarchy, corporate goals, the
existing monitoring and compliance systems and the question whether employees
are rewarded or indemnified for inappropriate behavior.
2011-09-06T10:39:32Z
2011-09-06T10:39:32Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4660
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oai:repository.nwu.ac.za:10394/46592016-04-28T20:54:22Zcom_10394_1150com_10394_1149col_10394_4656
The National Credit Act Regarding Suretyships and Reckless Lending
Stoop, Philip N
Kelly-Louw, M
National Credit Act
credit guarantees
suretyship
guarantees
reckless credit
In terms of the National Credit Act a credit provider may conclude a credit agreement
with a consumer only after he has made a proper financial assessment and concludes
that the consumer will be able to satisfy all of his obligations under all his credit
agreements. However, a practice of not conducting this affordability assessment has
evolved amongst certain credit providers where the credit agreement involved is a
suretyship agreement. This article investigates whether or not a suretyship agreement is
indeed a credit agreement in terms of the National Credit Act, and if a financial
assessment should be conducted in the case of a suretyship agreement. The main aim
of the article is to try to identify what the concept of a “credit guarantee”, as defined in
the Act, encompasses and ultimately if the common–law contract of suretyship falls
under this definition. Our conclusion is that “credit guarantee” is as vague and
problematic as many of the other definitions in the Act. If one reads the Act in its entirety
(including the regulations to the Act), it seems unlikely that the legislature intended not
to regulate common–law suretyships also.
2011-09-06T10:39:31Z
2011-09-06T10:39:31Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4659
application/pdf
oai:repository.nwu.ac.za:10394/46572016-04-28T20:53:44Zcom_10394_1150com_10394_1149col_10394_4656
"Fair" Mathematics in Assessing Delictual Damages
Steynberg, L
Delictual damages
actuary
expert witness
evidence
burden of proof
judicial discretion
contingencies
probability
In assessing delictual damages the plaintiff is burdened with the duty to prove loss with
a preponderance of probability, including uncertain future loss. In quantifying such a
claim an actuary is often used to make actuarial calculations based on proven facts and
realistic assumptions regarding the future. The role of the actuary is to guide the court in
the calculations to be made. Relying on its wide judicial discretion the court will have the
final say regarding the correctness of the assumptions on which these calculations are
based. The court should give detailed reasons if any assumptions or parts of the
calculations made by the actuary are rejected. It should preferably refrain from making
its own calculations if an actuary is involved and should rather instruct the actuary to do
recalculations if necessary. It does, however, fall within the wide discretion of the court
to make a general contingency adjustment after the basic calculations have been
accepted. In assessing delictual damages it is the duty of the court to ensure that both
objective and subjective factors are considered in such a manner that the assessment
may be regarded as an application of "fair" mathematics.
2011-09-06T10:34:46Z
2011-09-06T10:34:46Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4657
application/pdf
oai:repository.nwu.ac.za:10394/46612016-04-28T20:54:23Zcom_10394_1150com_10394_1149col_10394_4656
Alignment of Student Discipline Design and Administration to Constitutional and National Law Imperatives in South Africa
Mupangavanhu, B M
Mupangavanhu, Y
Higher learning institutions
student discipline
just administrative action
procedural fairness
Higher Learning Institutions (HEIs) have an important role to play in the promotion of
respect for fundamental human rights and other constitutional imperatives. This article
will demonstrate that the design and administration of student discipline at HEIs
qualifies to be administrative action. As such, the article will identify the constitutional
and other legislative principles which can help student discipline to be aligned to the
requirements of just administrative action, which are lawfulness, procedural fairness and
reasonableness. The article will explore challenges faced by student discipline and
proffer recommendations and suggestions for improved regulation and practice.
2011-09-06T10:39:32Z
2011-09-06T10:39:32Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4661
application/pdf
oai:repository.nwu.ac.za:10394/46632016-04-28T20:54:19Zcom_10394_1150com_10394_1149col_10394_4656
The Appellate Division has spoken - Sequestration Proceedings do not Qualify as Proceedings to Enforce a Credit Agreement under The National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 4 SA 597 (SCA)
Maghembe, N
Credit agreement
credit provider
consumer
National Credit Act
sequestration
This case note aims to analyse the decision of the Supreme Court of Appeal in
Naidoo v ABSA Bank 2010 4 SA 597 (SCA) and to spark some debate as to whether
being under debt review in terms of the National Credit Act (NCA) should bar
sequestration proceedings in the form of an application for the compulsory
sequestration of a consumer’s estate. This decision held that a credit provider does
not need to comply with the procedure provided for in section 129(1) of the NCA
before instituting sequestration proceedings against a debtor, as such proceedings
are not proceedings to enforce a credit agreement. The main issues discussed in
this article are whether the court was correct in its interpretation of the relevant
provisions of the NCA and whether this decision that allows a creditor to sequestrate
a debtor who is attempting to meet his/her obligations under debt review, without
informing him/her, is consistent with the principle urging consumers to satisfy all of
their financial obligations under the NCA.
It is submitted by the author that the court was correct in its interpretation of the
relevant provisions of the NCA, but may have overlooked how this decision may
impact the principle of satisfaction by the consumer of all of his/her financial
obligations. It is suggested by the author that amendments be made to force the
creditor to give a section 129 notice to the debtor before seeking sequestration of
his/her estate. The author also suggests that once debt restructuring has been granted, credit providers should not be allowed to proceed with sequestration
proceedings against the debtor.
2011-09-06T10:39:32Z
2011-09-06T10:39:32Z
2011
Article
1727-3781
http://hdl.handle.net/10394/4663
application/pdf