PER: 2013 Volume 16 No 5
http://hdl.handle.net/10394/10229
2024-03-29T09:40:58ZRace as/and the trace of the ghost: jurisprudential escapism, horizontal anxiety and the right to be racist in BoE trust limited
http://hdl.handle.net/10394/10243
Race as/and the trace of the ghost: jurisprudential escapism, horizontal anxiety and the right to be racist in BoE trust limited
Modiri, Joel M
This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: first, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law. It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for postapartheid
South Africa.
2013-01-01T00:00:00ZA customary right to fish when fish are sparse: managing conflicting claims between customary rights and environmental rights
http://hdl.handle.net/10394/10242
A customary right to fish when fish are sparse: managing conflicting claims between customary rights and environmental rights
Feris, Loretta
This contribution considers the potential conflicts that may arise between customary rights and environmental rights in the face of dwindling marine resources. It sets the scene by reflecting on some of the common themes present in indigenous claims to marine resource by communities who were subjected to colonisation. In doing so it analyses the South African judgment, S v Gongqose Case No. E382/10 (unreported), which alluded to the existence of a customary right to fishing, a concept that has until now remained unexplored in South African law. This discussion is followed by a brief overview of the rapidly declining state of marine resources, worldwide and in South Africa. The note then considers the relationship between customary law and marine resources and some of the challenges in meeting rights-based customary claims to marine resources against the need to conserve a dwindling resource. It concludes by offering possibilities for reconciliation.
2013-01-01T00:00:00ZUnpacking the right to plain and understandable language in the consumer protection act 68 of 2008
http://hdl.handle.net/10394/10241
Unpacking the right to plain and understandable language in the consumer protection act 68 of 2008
Stoop, Philip N; Chürr, Chrizell
The Consumer Protection Act 68 of 2008 came into effect on 1 April 2011. The purpose of this Act is, among other things, to promote fairness, openness and respectable business practice between the suppliers of goods or services and the consumers of such good and services. In consumer protection legislation fairness is usually approached from two directions, namely substantive and procedural fairness. Measures aimed at procedural fairness address conduct during the bargaining process and generally aim at ensuring transparency. Transparency in relation to the terms of a contract relates to whether the terms of the contract terms accessible, in clear language, well-structured, and cross-referenced, with prominence being given to terms that are detrimental to the consumer or because they grant important rights. One measure in the Act aimed at addressing procedural fairness is the right to plain and understandable language. The consumer’s right to being given information in plain and understandable language, as it is expressed in section 22, is embedded under the umbrella right of information and disclosure in the Act. Section 22 requires that notices, documents or visual representations that are required in terms of the Act or other law are to be provided in plain and understandable language as well as in the prescribed form, where such a prescription exists. In the analysis of the concept “plain and understandable language” the following aspects are considered in this article: the development of plain language measures in Australia and the United Kingdom; the structure and purpose of section 22; the documents that must be in plain language; the definition of plain language; the use of official languages in consumer contracts; and plain language guidelines (based on the law of the states of Pennsylvania and Connecticut in the United States of America).
2013-01-01T00:00:00Z"Originality" and "reproduction" in copyright law with special reference to photographs
http://hdl.handle.net/10394/10240
"Originality" and "reproduction" in copyright law with special reference to photographs
Harms, Louis T C
Turning to lessons from foreign jurisdictions, this note explores from a copyright perspective the fact that photographs are produced mechanically and more often than not without any effort or mental input. A minute number are taken for anything but personal use and in the digital age photographs tend to have a high degree of mobility and are also ephemeral and without any commercial value. It is accordingly difficult to justify in general terms copyright protection for photographs. Two of the main legal issues in this context are the criteria for originality and the meaning of the reproduction of a photograph. These two issues form the central point of discussion in this contribution.
2013-01-01T00:00:00Z