PER: 2011 Volume 14 No 7http://hdl.handle.net/10394/71682024-03-28T11:51:32Z2024-03-28T11:51:32ZJustice delayed is justice denied: protecting miners against occupational injuries and diseases: comments on Manyaki v Anglogold Ashanti LTD 2011 32 ILJ 545 (CC)Tshoose, Clarence Itumelenghttp://hdl.handle.net/10394/71982016-04-28T21:45:43Z2011-01-01T00:00:00ZJustice delayed is justice denied: protecting miners against occupational injuries and diseases: comments on Manyaki v Anglogold Ashanti LTD 2011 32 ILJ 545 (CC)
Tshoose, Clarence Itumeleng
In the Mankayai v Anglogold Ashant Ltd 2011 32 ILJ 545 (CC) the Constitutional Court was called upon to give meaning and content by interpreting the provision of section 35 of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and section 100(2) of the Occupational Diseases in Mines and Works Act 78 of 1973. The Court had to determine if the employee common-law right of recourse against his employer in cases where he sustained occupational diseases is extinguished by virtue of section 35(1) of COIDA. The purpose of this case note is twofold: firstly, it analyses the decision of the Constitutional Court in the Mankayi case; secondly, the case note looks at the significance of the Mankayi case for the system of occupational health and safety in South Africa. In conclusion, the contribution explores the need for the introduction of a unified system which will address issues of occupational health and safety in a coordinated and unified manner.
2011-01-01T00:00:00ZUnauthorised adaptation of computer programmes - is criminalisation a solution? - Haupt T/A Softcopy v Brewers Marketing Intelligence (PTY) LTD 2006 4 SA 458 (SCA)Muswaka, Lhttp://hdl.handle.net/10394/71972016-04-28T21:46:43Z2011-01-01T00:00:00ZUnauthorised adaptation of computer programmes - is criminalisation a solution? - Haupt T/A Softcopy v Brewers Marketing Intelligence (PTY) LTD 2006 4 SA 458 (SCA)
Muswaka, L
In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA) Haupt sought to enforce a copyright claim in the Data Explorer computer programme against Brewers Marketing Intelligence (Pty) Ltd. His claim was dismissed in the High Court and he appealed to the Supreme Court of Appeal. The Court held that copyright in the Data Explorer programme vested in Haupt. Haupt acquired copyright in the Data Explorer programme regardless of the fact that the programme was as a result of an unauthorised adaptation of the Project AMPS programme which belonged to Brewers Marketing Intelligence (Pty) Ltd.
This case note inter alia analyses the possibility of an author being sued for infringement even though he has acquired copyright in a work that he created by making unauthorised adaptations to another's copyright material. Furthermore, it examines whether or not the law adequately protects copyright owners in situations where infringement takes the form of unauthorised adaptations of computer programmes. It is argued that the protection afforded by the Copyright Act 98 of 1978 (Copyright Act) in terms of section 27(1) to copyright owners of computer programmes is narrowly defined. It excludes from its ambit of criminal liability the act of making unauthorised adaptation of computer programmes. The issue that is considered is therefore whether or not the unauthorised adaptation of computer programmes should attract a criminal sanction. In addressing this issue and with the aim of making recommendations, the legal position in the United Kingdom (UK) is analysed. From the analysis it is recommended that the Copyright Act be amended by the insertion of a new section, section 27(1)(A), which will make the act of making an unauthorised adaptation of a computer programme an offence. This recommended section will close the gap that currently exists in our law with regard to unauthorised adaptations of computer programmes.
2011-01-01T00:00:00ZThird party fraud inducing material mistake - Slip Knot Investments 777 (PTY) LTD v Du Toit 2001 4 SA 72 (SCA)Pretorius, C-Jhttp://hdl.handle.net/10394/71962016-04-28T21:46:36Z2011-01-01T00:00:00ZThird party fraud inducing material mistake - Slip Knot Investments 777 (PTY) LTD v Du Toit 2001 4 SA 72 (SCA)
Pretorius, C-J
In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of iustus error raised by the mistaken party. The position prior to this decision was uncertain and characterised by inconsistency, mostly occasioned by the application of the iustus error doctrine together with fault. The Supreme Court of Appeal found that in the circumstances the mistaken party was liable, despite the fraud of the third party, on the basis of the reliance theory. The decision is commendable for bringing a measure of certainty to the law of mistake on this point and indicating that the reliance theory (as opposed to the iustus error doctrine) is the appropriate means to resolving such cases. Nevertheless, it is suggested that although the general rule implied by the court's approach is entirely apposite, there may well be exceptional instances where on the basis of relevant policy considerations the reliance theory should not prevail and the mistaken party should be absolved from contractual liability. In this manner reliance, which at first seems reasonable for being induced by the conduct of the contract denier, may upon further reflection be regarded as unreasonable based on the consideration of risk creation at the hand of the contract assertor, for instance. Admitting exceptions in appropriate circumstances would also provide a degree of consonance with earlier case law, where, even if the court's approach was open to theoretical criticism, a court has intuitively felt that liability should not lie.
2011-01-01T00:00:00ZThe devil is in the definition - definitions and their limited use in legal problem solvingBrimer, DBrimer, Ahttp://hdl.handle.net/10394/71952016-04-28T21:46:17Z2011-01-01T00:00:00ZThe devil is in the definition - definitions and their limited use in legal problem solving
Brimer, D; Brimer, A
The lawyer’s usual attempt to catch the meaning of a thing by entangling it in a net of words is based on a common misapprehension of the way words work. The great minds of the ages have since time immemorial reminded us that words do not contain essences, that meanings are social constructs, and that the relation between words and meanings is slippery at best. Definitions presuppose that words have simple meanings attached to them in something like a one-to-one relationship, which is why the law can sometimes be so obtuse. It is the use of the law in a tribunal that provides the eventual understanding of how the law works. Decisions handed down in courts are embedded in a particular time and a particular set of circumstances and are the products of minds informed by a set of social experiences which other lawyers accept as qualifying those particular persons to pronounce on the law. Our legislature would do well when framing legislation to imitate those who drafted the Constitution of the Republic of South Africa, 1996 which is sufficiently specific, without the support of pages of definitions, to lead to very precise argument in the Constitutional Court, and yet sufficiently general to allow the law to develop with the flux of time.
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