PER: 2011 Volume 14 No 2
30 May 2011
- "Fair" Mathematics in Assessing Delictual Damages / Steynberg, L
- Perspectives on the Termination of Debt Review in Terms of Section 86(10) of the National Credit Act 34 of 2005 / Van Heerden, C & Coetzee, H
- The National Credit Act Regarding Suretyships and Reckless Lending / Stoop, NP & Kelly-Louw, M
- Korporatiewe Identiteit as die Basis van Strafregtelike Aanspreeklikheid van Regspersone (1): Teoretiese Grondbeginsels / Du Toit, P & Pienaar, G
- Alignment of Student Discipline Design and Administration to Constitutional and National Law Imperatives in South Africa / Mupangavanhu, BM & Mupangavanhu, Y
- "For the Sake of the Children": South African Family Relocation Disputes / Domingo, W
- 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
- Commercial Appropriation of a Person's Image: Wells V Atoll Media (Pty) Ltd (Unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009) / Cornelius, SJ
- The Enforceability of Illegal Employment Contracts according to the Labour Appeal Court Comments on Kylie v CCMA 2011 4 SA 383 (LAC) / Selala, KJ
This edition opens with a discussion by Loma Steynberg of UNISA of the challenges attending judicial decision-making in the award of delictual damages based on actuarial calculations. Fair assessments need to take both subjective and objective factors into consideration.
The interpretation of the South African National Credit Act keeps drawing the contentious attention of commercial lawyers and the courts. Corlia van Heerden and Hermie Coetzee of the University of Pretoria analyse the effects of the suspension of both a debtor's position when being reviewed by a debt counsellor to incur further debt and of a credit provider's ability to enforce debt claims against the debtor thus presumed to be in trouble. The question when and how such a debt review can properly be terminated, is generating difficulties.
The vagueness of the same piece of legislation draws the attention of Philip Stoop and Michelle Kelly-Louw of UNISA in their attempt to identify what meaning the concept of a "credit guarantee" should be given in terms of the Act, and particularly whether the common law contract of suretyship must be deemed to fall under this definition for the purposes of addressing reckless lending.
In the second instalment of their exploration of the possibilities for juristic persons to incur criminal liability, Pieter du Toit and Gerrit Pienaar of the North-West University in Potchefstroom investigate legislation of Australia and the United Kingdom in which recognition is given to true corporate or organisational fault based not on the fault of individuals but rather on the manner in which the corporation is structured.
Brighton and Yeukai Mupangavanhu of the University of the Western Cape seek to demonstrate that the design and administration of student discipline at institutions of higher education qualifies to be administrative action, requiring it to be aligned to the imperatives of just administrative action.
Next Wesahl Domingo of the University of the Witwatersrand highlights the difficulties attending divorced parents' rights and obligations regarding the children where the other divorced parent moves away. She points out that the increased mobility of society is causing more frequent applications concerning local and international family relocations to be brought before the courts.
In his note Ngwaru Maghembe of the University of Pretoria again brings to the fore the difficulties emanating from the National Credit Act as it emerges from a decision of the Supreme Court of Appeal in which it was found that instituting sequestration proceedings against a debtor should not be seen as proceedings to enforce a credit agreement.
In another case note Steve Cornelius of the University of Pretoria sets out the degree of clarity provided by the judiciary regarding limitations on the exploitation of the identity of celebrities for commercial gain and, in the last note, Kebolo Selala of the North-West University in Mafikeng critically discusses the decision of the South African Labour Appeal Court regarding jurisdiction to resolve a dispute of unfair dismissal involving a sex worker.
Editor: Professor Francois Venter
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) (2011)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) ...
Korporatiewe Identiteit as die Basis van Strafregtelike Aanspreeklikheid van Regspersone (1): Teoretiese Grondbeginsels (2011)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 ...
Commercial Appropriation of a Person's Image: Wells V Atoll Media (Pty) Ltd (Unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009) (2011)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 ...
Alignment of Student Discipline Design and Administration to Constitutional and National Law Imperatives in South Africa (2011)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 ...
(2011)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 ...
The Enforceability of Illegal Employment Contracts according to the Labour Appeal Court Comments on Kylie v CCMA 2011 4 SA 383 (LAC) (2011)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 ...
Perspectives on the Termination of Debt Review in Terms of Section 86(10) of the National Credit Act 34 of 2005 (2011)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 ...
(2011)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 ...
(2011)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 ...