PER: 2019 Volume 22
Contents
January 2019
Articles
- Re-Categorising public procurement in South Africa: Construction works as a special case / Allison, Anthony
- Proselytising the regulation of religious bodies in South Africa: Suppressing religious freedom? / Henrico, Radley
- Alternatives to bankruptcy in South Africa that provides for a discharge of debts: Lessons from Kenya / Mabe, Zingapi
- Municipal law making under SPLUMA: A survey of fifteen "First Generation" municipal planning by-laws / de Visser, Jaap; Poswa, Xavia
- Promoting public participation in the energy transition: The case of France's national debate / Mauger, Romain
- A legal perspective on social media use and employment: Lessons for South African educators / Coetzee, Susan A
- Judicial mandate in safeguarding environmental rights from the adverse effects of mining activities in Zambia / Mulenga, Chipasha
- Analysing and comparing warrantless Tax inspections and searches / Moosa, Fareed
- The Right to Strike under the labour relations Act 66 of 1995 (LRA) and possible factors for consideration that would promote the objectives of the LRA / Subramanien, Darren C; Joseph, Judell L
- The value of the persistent objector doctrine in international human rights law / Rudman, Annika
- "Innovative Orders" under the South African consumer protection Act 68 of 2008 / Naude, Tjakie; de Stadler, Elizabeth
- Challenges surrounding the adjudication of women's rights in relation to customary law and practices in Tanzania / Msuya, Norah H
- The Search and Seizure of Digital Evidence by Forensic Investigators in South Africa / Nortjé, Jacobus GJ; Myburgh, Daniel C
- Gender inequality and land rights: The situation of indigenous women in Cameroon / Njieassam, Ester E
- The million rand question: Does a civil marriage automatically dissolve the parties' customary marriage? / Osman, Fatima
- Beyond the contours of normally acceptable political violence: Is Cameroon a conflict/transitional society in the offing? / Agbor, Avitus A; Njieassam, Esther Effundem
- The ratification of inadequate surrogate motherhood agreements and the best interest of the child / Baase, Mathabo
- The constitutional protection afforded to child victims and child witnesses while testifying in criminal proceedings in South Africa / Bekink, Mildred
- The Constitutional Rules of Succession to the Institution of Monarch in Lesotho / ′Nyane, Hoolo
- An Analysis of the Public Protector's Investigatory and Decision-Making Procedural Powers / Theophilopoulos, Constantine ; De Matos Ala, Charles
- Damages Arising from Contraventions of Competition Act 89 of 1998 / Ratz, Malcom
- The Application of International Human Rights Instruments in Outer Space Settlements: Today's Science Fiction, Tomorrow's Reality / Ferreira-Snyman, Anél ; Ferreira, Gerrit
- Tagging and Tracking of Persons with Albinism: A Reflection of Some Critical Human Rights and Ethical Issues Arising from the Use of the Global Positioning System (GPS) as Part of a Solution to Cracking Down on Violent Crimes Against Persons withAlbinism / Mswela, Mphoeng Maureen
- Mediese Sertifikate ingevolge die Traditional Health Practitioners Act: Die Kwessie van Geldigheid en Betroubaarheid / van Niekerk, Juani
- Property and "Human Flourishing": A Reassessment in the Housing Framework / Viljoen, Sue-Mari
- Director's Duty to Act for a Proper Purpose in the Context of Distribution under the Companies Act71 of 2008 / Bidie, Simphiwe S
- The protection of conscientious objection against euthanasia in health care / Knoetze, Adriaan ; De Freitas, Shaun
- The influence of "reasonableness" on the element of conduct in delictual or tort liability - comparative conclusions / Ahmed, Raheel
- The Prevention of Organised Crime Act 1998: the need for extraterritorial jurisdiction to prosecute the higher echelons of those involved in rhino poaching / Nanima, Robert D.
- An Overview of fixed-term contracts of employment as a form of A-typical Employment in South Africa / Huysamen, Elsabé
- Deciphering dangerousness: a critical analysis of section 286A and B of the Criminal Procedure Act 51 of 1977 / Hamman, Abraham ; Albertus, Chesne ; Nortje, Windell
- Judicial review of the legislative process in Lesotho : lessons from South Africa / Nyane, Hoolo
- Legal Pluralism, uBuntu and the use of open norms in the South African Common Law of Contract / Du Plessis, Hanri
- Harmonising legal values and uBuntu : the quest for social justice in the South African Common Law of Contract / Du Plessis, Hanri
- Judicial defence of constitutionalism in the assessment of South Africa's international obligations / Venter, Francois
- Progressive realisation of Muslim family law : the case of Tunisia / Booley, Ashraf
- Prêt-à-Porter Procreation : contemplating the ban on preimplantation sex selection / Soni, Sheetal
- The effectiveness of plea and sentence agreements in environmental enforcement in South Africa / Murombo, Tumai ; Munyuki, Isaac
- The price of sadness : comparison between the Netherlands and South Africa / Mukheibir, André ; Mitchell, Gregory
- The suspension and setting aside of delinquency and probation orders under the Companies Act 71 of 2008 / Cassim, Rehana
- Curriculum decolonisation and Revisionist Pedagogy of African Customary Law / Diala, Anthony C.
- The application and interpretation by South African courts of General Renvoi Clauses in South African double taxation agreements / Jansen van Rensburg, Enelia
- Examining the Land Use Act of 1978 and its effects on tenure security in Nigeria : a case study of Ekiti State, Nigeria / Babalola, Kehinde H. ; Hull, Simon A.
- Unintentionally trapped by debt review : procedural Inadequacies in the National Credit Act34 of 2005 relating to withdrawal from the debt review process / Van Heerden, Corlia ; Coetzee, Hermie
- Prescription of debt in the Consumer-Credit Industry / Kelly-Louw, Michelle ; Stoop, Philip
Special Edition: Legal Interpretation after Endumeni
- EDITORIAL: Legal Interpretation after Endumeni: Clarification, contestation, application / Le Roux, Wessel
- The life and times of textualism in South Africa / Perumalsamy, Kessler
- Impact of the Constitution's Normative Framework on the interpretation of provisions of the Companies Act 71 of 2008 / Mupangavanhu, Brighton M.
- Interpretation before and after Natal joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) / Wallis, Malcolm
Special Edition: Determining the Content of Indegenous Law
- Determining the content of indigenous law with special reference to recording of the law - continental views / Himonga, C.N.
- Orocowewin Notcimik Itatcihowin : the Atikamekw Nehirowisiw Code of practice and the issues involved in its writing / Christian Coocoo, Benoit Éthier ; Ottawa, Gérald
- The consequences of the statutory regulation of customary law: an examination of the South African customary law of succession and marriage / Osman, Fatima
- Case Law as an authoritative source of customary law: piecemeal recording of (living) customary law? / Rautenbach, Christa
- The conundrum of judicial notice as a means of ascertaining customary law in Nigerian and South african courts amid the convergence of positivism and legal pluralism / Badejogbin, Rebecca
- Did i break it? recording indigenous (Customary) Law / Napoleon, Val
- The resonance of colonial era customary codes in contemporary Uganda / Dennison, David
Notes
- The South African class Action mechanism: Comparing the opt-in regime to the opt-out regime / Broodryk, Theo
- Notes on the proposed amendment of section 21 of the Children's Act38 of 2005 / Heaton, Jacqueline
- The question is "should insurers continuously update policyholder records"? insurance law requires the principles of administrative law to settle disputes between the policyholder and the insurer / Kilian, N.
Case note
- The appointment of a proxy "At any time" in terms of section 58 of the companies Act 71 of 2008: Richard Du Plessis Barry v Clearwater estates NPC [2017] ZASCA 11 / Madlela, Vela
- Sexual harassment: Why do victims so often resign? E v Ikwezi Municipality 2016 37 ILJ 1799 (ECG) / Calitz, Karin
- Are close of pleadings now irrelevant? An evaluation of the impact the Nkala judgment has on Litis Contestatio / Khan, Muhammed Siraaj
- Standing on unsteady ground: AREVA NP incorporated in France v Eskom SOC LTD / van Eetveldt, Henri-Willem
- Introducing a serpent into the garden of collective bargaining: A case analysis of Numsa obo members v Elements six productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017) / Rwodzi, Night T; Lubisi, Nombulelo
- The right to be granted access over the property of others in order to enter prospecting or mining areas : revisiting Joubert v Maranda Mining Company (Pty) Ltd 2009 4 All SA 127 (SCA) / Van der Schyff, Elmarie
- The "Necessity Test" as expressed by the Enigmatic Article XX(j) of the general agreement on Tariffs and Trade (1994) : appellate body report, India - certain measures relating to solar cells and solar modules / Vinti, Clive
- Gongqose v Minister of Agriculture, Forestry and Fisheries–a tale of customary rituals and practices in Marine Protected Areas / Monyamane, Lesetja ; Bapela, Mpho P.
Book reviews
- Lewyn M Government intervention and suburban sprawl: The case for market urbanism (Palgrave MacMillan 2017) / Soni, Urmila
- Jacobsohn G and Schor M (eds) Comparative constitutional theory (Edward Elgar Publishing Cheltenham, UK 2018) ISBN 978 1 78471 912 8 (cased); 978 1 78471 913 5 (eBook) / Venter, Francois
- Public participation in African constitutionalism (Routledge Abingdon and New York 2018) / Menski, Werner
Editor-in-Chief: Professor Christa Rautenbach
Recent Submissions
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The "Necessity Test" as expressed by the Enigmatic Article XX(j) of the general agreement on Tariffs and Trade (1994) : appellate body report, India - certain measures relating to solar cells and solar modules
(PER/PELJ, 2019)The General Agreement on Tariffs and Trade (1994) (GATT) is premised on the elimination of all barriers to trade in goods. Contrary to this approach, Article XX of the GATT authorises the circumvention of this imperative. ... -
The right to be granted access over the property of others in order to enter prospecting or mining areas : revisiting Joubert v Maranda Mining Company (Pty) Ltd 2009 4 All SA 127 (SCA)
(PER/PELJ, 2019)A new mineral law regime was introduced when the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) commenced. Common law mineral rights were abolished and replaced by statutorily created rights to minerals. ... -
Gongqose v Minister of Agriculture, Forestry and Fisheries–a tale of customary rituals and practices in Marine Protected Areas
(PER/PELJ, 2019)The correct application of customary law post constitutionalism continues to be the subject of much judicial and academic deliberation. This is especially true where the existence and/or scope of customary rights and ... -
The question is "should insurers continuously update policyholder records"? insurance law requires the principles of administrative law to settle disputes between the policyholder and the insurer
(PER/PELJ, 2019)It is possible to argue that the Financial Advisory Intermediary Services Ombud (hereafter FAIS Ombud) has jurisdiction to consider insurer's decisions not to update their internal administrative systems. The FAIS Ombud ... -
Notes on the proposed amendment of section 21 of the Children's Act38 of 2005
(PER/PELJ, 2019)In terms of section 21 of the Children's Act 38 of 2005, an unmarried father acquires full parental responsibilities and rights in respect of his child if he lives with the child's mother in a permanent life-partnership ... -
The resonance of colonial era customary codes in contemporary Uganda
(PER/PELJ, 2019)Colonial era codifications of customary law – especially those codified in indigenous first languages – have a resilient capacity to form and inform living customary law. In the context of Mukono District, Uganda, modern ... -
Did i break it? recording indigenous (Customary) Law
(PER/PELJ, 2019)In this paper, I explore several issues emerging in the discourse about the recording of indigenous law by drawing on several examples of my research and work with indigenous law in Canada. This is an important inquiry ... -
The conundrum of judicial notice as a means of ascertaining customary law in Nigerian and South african courts amid the convergence of positivism and legal pluralism
(PER/PELJ, 2019)The roles of the courts have become an inevitable social reality in adjudicating customary law disputes in Nigeria and South Africa. Because these courts are established and validated along positivist practice, they ... -
Case Law as an authoritative source of customary law: piecemeal recording of (living) customary law?
(PER/PELJ, 2019)This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court ... -
The consequences of the statutory regulation of customary law: an examination of the South African customary law of succession and marriage
(PER/PELJ, 2019)In pluralistic legal systems, the regulation of non-state law through statute carries the risks associated with codification; namely the ossification and distortion of law. This article examines the effects of statutory ... -
Orocowewin Notcimik Itatcihowin : the Atikamekw Nehirowisiw Code of practice and the issues involved in its writing
(PER/PELJ, 2019)The Atikamekw Nehirowisiw Nation has for several years been developing a code of practice (orocowewin notcimik itatcihowin) to regulate hunting, fishing and plant harvesting activities in Nitaskinan, its ancestral territory. ... -
Determining the content of indigenous law with special reference to recording of the law - continental views
(PER/PELJ, 2019)This special edition comprises a selection of contributions delivered at a conference hosted by the Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town in collaboration with its research ... -
Interpretation before and after Natal joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA)
(PER/PELJ, 2019)This article explores the background to the decision in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA), some of its conceptual content and its broader implications for future jurisprudence ... -
Impact of the Constitution's Normative Framework on the interpretation of provisions of the Companies Act 71 of 2008
(PER/PELJ, 2019)Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to ... -
The life and times of textualism in South Africa
(PER/PELJ, 2019)This paper analyses the dominant approaches to statutory interpretation through a historical lens. It argues that for most of South Africa's history the methods of interpretation were twisted in order to give effect to the ... -
EDITORIAL: Legal Interpretation after Endumeni: Clarification, contestation, application
(PER/PELJ, 2019)This special edition consists of a selection of contributions delivered during a conference "Towards an integrated approach to the interpretation of legal documents: contracts, wills and statutes", hosted by the University ... -
Prescription of debt in the Consumer-Credit Industry
(PER/PELJ, 2019)A person may acquire rights or be released from obligations through the passage of time. This is known as prescription. The objective of prescription is to achieve legal certainty and finality in the relationship between ... -
Unintentionally trapped by debt review : procedural Inadequacies in the National Credit Act34 of 2005 relating to withdrawal from the debt review process
(PER/PELJ, 2019)The debt review procedure in terms of the National Credit Act 34 of 2005 is functioning relatively well and benefits both consumers and credit providers. This is despite its somewhat scarce procedural prescriptions, which ... -
Examining the Land Use Act of 1978 and its effects on tenure security in Nigeria : a case study of Ekiti State, Nigeria
(PER/PELJ, 2019)The Land Use Act of 1978 (LUA) has failed to achieve some of its objectives. The rural poor and the vulnerable are those most affected. The failure is ascribed to problems inherent in the Act and poor implementation. This ... -
The application and interpretation by South African courts of General Renvoi Clauses in South African double taxation agreements
(PER/PELJ, 2019)General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context ...
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