PER: 2009 Volume 12 No 3
http://hdl.handle.net/10394/3638
2024-03-28T08:22:24ZThe Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)
http://hdl.handle.net/10394/3643
The Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)
Mmusinyane, B
South African customary law is a body of law by which many South Africans regulate their lives in a multicultural society. South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996, including African customary law, and that all laws are limited only by the Constitution. Customary law existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country. It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities. This contribution investigates customary systems of succession that are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. The discussion focuses in particular on the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). This case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal substantially confirming a decision of the Pretoria High Court that prevented a woman from being a Hosi (traditional leader) of her own community.
2009-01-01T00:00:00ZKeuringspanele ("Screening Panels") as Gepaste Geskilbeslegtingsmetode ter Oplossing van Mediese Wanpraktyks-geskille.
http://hdl.handle.net/10394/3642
Keuringspanele ("Screening Panels") as Gepaste Geskilbeslegtingsmetode ter Oplossing van Mediese Wanpraktyks-geskille.
Crous, H
A right only has any value if there is a remedy providing for the acknowledgement and enforcement thereof. An increase in medical malpractice claims can be expected in South Africa in view of the fact that the public is becoming more and more aware of its rights in respect of health services and health care. The public opinion calls for development of dispute resolution proceedings. The fact that the law is not accessible to everyone in South Africa is a matter of concern. High litigation costs, coupled with the time consuming protracted, formal and complicated process, call for a transformation towards an alternative, non-judicial process that is suitable for a particular dispute and apposite to the parties involved. Selection panels, the medical ombudsperson and arbitration clauses incorporated in doctor/patient agreements, are ADR mechanisms that have been proved by American law as suitable for resolution of medical malpractice claims. In this particular article attention is paid to screening panels as pre-trial mechanism with the exclusive purpose to select malpractice disputes, discourage unfounded disputes and to encourage an early settlement in case of a prima facie case.
Several objections have been raised by critics in this regard, for instance, a screening panel infringes on: the right of equal protection/the right of access to the courts/the right to a jury trial/the right to a due process as well as on the trias politica doctrine. These so-called infringements are attended to and eventually a positive conclusion regarding screening panels is made: medical screening panels (consisting generally of a medical doctor, a lawyer and a member of public), based on the American experience, is indeed an appropriate dispute resolution method.
2009-01-01T00:00:00ZPolygynous Muslim Marriages in South Africa: Their Potential Impact on the Incidence of HIV/AIDS
http://hdl.handle.net/10394/3641
Polygynous Muslim Marriages in South Africa: Their Potential Impact on the Incidence of HIV/AIDS
Moosa, N
This article examines whether there is any relationship between the institution of polygynous marriages in Islam and the incidence or spread of the disease. It is suggested that, while polygyny may be a contributing factor, it is not the institution of marriage per se that relates to the disease (although the prospect of greater infection intra marriage must be present in polygynous marriages, if the husband is the infecting party), but the conduct of the parties to the marriage relationship, whatever its nature.
The focus and thrust lies with the institution of polygyny in Islam, the South African response to polygyny, the (potential) impact of polygyny on the incidence of AIDS, and the contribution that both an informed approach to HIV and an enlightened approach to the application of Islamic values could or would have on the limitation of the disease's spread.
2009-01-01T00:00:00ZThe Interaction between the Debt Relief Measures in the National Credit Act 24 of 2005 and Aspects of Insolvency Law
http://hdl.handle.net/10394/3640
The Interaction between the Debt Relief Measures in the National Credit Act 24 of 2005 and Aspects of Insolvency Law
Van Heerden, Corlia; Boraine, Andre
The National Credit Act 34 of 2005 (the 'NCA') aims at promoting responsibility in the credit market by encouraging responsible borrowing, avoidance of over-indebtedness and the fulfilment of financial obligations by consumers, and at discouraging reckless credit granting by credit providers and contractual default by consumers. Although a further aim is to address over-indebtedness by debt review, for instance, this mechanism is based on the principle of satisfaction of the consumer's responsible financial obligations in full. In a recent judgment, Ex parte Ford 2009 (3) SA 376 (WCC), the court has thus refused to grant a sequestration order following an application for voluntary surrender since the bulk of the debt was credit agreements regulated by the NCA. The fact that the debtor-applicant did not apply for debt review in terms of the NCA of 2005 before applying for voluntary surrender played a significant role in the court's decision not to grant the order. This article thus considers the impact of the debt relief remedies in the NCA on insolvency law. In particular it is an attempt to provide some answers to the question if the Insolvency Act 24 of 1936 (hereafter the 'Insolvency Act') is in conflict with the previously stated principle of the NCA, namely full satisfaction of all responsible financial obligations by an over-indebted consumer. It also considers the concepts of over-indebtedness and reckless credit and their related debt relief remedies when considering applications for voluntary surrender or compulsory sequestration in terms of the Insolvency Act.
2009-01-01T00:00:00Z