PER: 2015 Volume 18 No 1
Contents
13 April 2015
Articles
- Domestic Partners and "The Choice Argument": Quo Vadis? / Bester, BC & Louw, A
- When does State Interference with Property (now) Amount to Expropriation? An Analysis of the Agri SA Court's State Acquisition Requirement (Part I) / Marais, EJ
- When does State Interference with Property (now) Amount to Expropriation? An Analysis of the Agri SA Court's State Acquisition Requirement (Part II) / Marais, EJ
- Leveraging Traditional Knowledge on the Medicinal Uses of Plants within the Patent System: The Digitisation and Disclosure of Knowledge in South Africa / Amechi, EP
- The South African Companies Act and the Realisation of Corporate Human Rights Responsibilities / Gwanyanya, MG
- A Future for the Doctrine of Substantive Legitimate Expectation? The Implications of Kwazulu-Natal Joint Liaison Committee v Mec for Education, Kwazulu Natal / Murcott, M
- Inclusive Basic Education in South Africa: Issues in its Conceptualisation and Implementation / Murungi, LN
- "Just Piles of Rocks to Developers but Places of Worship to Native Americans" - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities / Ratiba, MM
Notes
- Legal Aspects with Regard to Mentally Ill Offenders in South Africa / Swanepoel, M
- Huidige Regsontwikkeling ten aansien van Uitwinbaarverklaring van 'n Verband oor 'n Onroerende Saak / Fuchs, MMM
Case note
Editorial
The first edition of 2015 boasts 13 contributions dealing with a variety of topics. The first article, by Ben Coetzee Bester and Anne Louw, discusses the persistence of the "choice argument", which is based on the rationale that domestic partners who choose not to marry cannot claim spousal benefits, and arrives at the conclusion that legislation should differentiate between registered and unregistered domestic partnerships for the purpose of spousal benefits. Ernst Marais has written two articles on expropriation. In the first he examines the meaning and role of state acquisition in South African law and in the second he deals with the distinction between deprivation and expropriation in the light of Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC), where the Constitutional Court recently revisited the distinction between the two concepts and held that the distinguishing feature of expropriation is that it entails state acquisition of property, whilst deprivation takes place where there is no such acquisition. The fourth article, by Emeka Amechi, explores the measures taken by the National Recordal System and Disclosure of Origins in leveraging traditional knowledge within the structure, content and conceptual framework of the patent system in South Africa. The South African Companies Act and the realization of corporate human rights responsibilities is the focus of Manson Gwanyanya's article. He comes to the conclusion that the wording of the Act is such that it prevent human rights abuses by companies. In her contribution Melanie Murcott discusses the development of the doctrine of legitimate expectations in South African law and the failure of the Constitutional Court to develop the doctrine even further in the recent case of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal. The second last article, which is by Lucyline Murungi, considers the implementation of the UN Convention on the Rights of Persons with Disabilities (2006) to provide for inclusive basic education in South Africa, and the last article, which is by Matome Ratiba, examines the significance of places of worship for Native Americans and demonstrates the valuable lessons South Africa could learn from the earth jurisprudence that has developed in the USA and elsewhere.
The first note, authored by Magdaleen Swanepoel, discusses legal issues with regard to mentally ill offenders with specific reference to the cases where mental illness is raised as a defence in criminal cases. The second note, by Michelle Fuchs, deals with recent legal developments relating to the formalities involved when a mortgagee wants to declare immovable property executable to satisfy outstanding debt. The last contribution in this edition is a case note by Elmarie Fourie. She considers the question of what constitutes a benefit in terms of section 186(2) of the Labour Relations Act 66 of 1995, which was examined in Apollo Tyres South Africa (Pty)Ltd v CCMA 2013 5 BLLR 434 (LAC).
Editor: Professor Christa Rautenbach / Edition Editor: Professor Anél du Plessis
Recent Submissions
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What Constitutes a Benefit by Virtue of Section 186(2) of the Labour Relations Act 66 of 1995? Apollo Tyres South Africa (Pty) Ltd v CCMA 2013 5 BLLR 434 (LAC)
(2015)The uncertainty surrounding the concept benefit as provided for in section 186(2) of the Labour Relations Act 66 of 1995 was created not by the courts but rather by the legislature. The concept is not defined and clearly ... -
Huidige Regsontwikkeling ten aansien van Uitwinbaarverklaring van ʼn Verband oor ʼn Onroerende Saak
(2015)There are strict formalities involved when a mortgagee (as holder of a real security right) wants to declare immovable property executable to satisfy outstanding debt. There are various stages in this foreclosure process ... -
Legal Aspects with Regard to Mentally Ill Offenders in South Africa
(2015)The purpose of this note is to discuss legal aspects with regard to mentally ill offenders with specific reference to the defence raised as a result of mental illness. In order to fully understand this defence it is important ... -
"Just Piles of Rocks to Developers but Places of Worship to Native Americans" - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities
(2015)Throughout the years cultural communities across the world have borne witness to many unending attempts at the destruction of their places of worship. This endemic problem has arisen in a number of places, such as in the ... -
Inclusive Basic Education in South Africa: Issues in its Conceptualisation and Implementation
(2015)Education is one of the most topical issues in South Africa. In recent years, particularly in the period after the adoption of the UN Convention on the Rights of Persons with Disabilities (2006) (hereinafter CRPD), the ... -
A Future for the Doctrine of Substantive Legitimate Expectation? The Implications of Kwazulu-Natal Joint Liaison Committee v Mec for Education, Kwazulu Natal
(2015)In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which had left the way open for the Constitutional Court to develop a doctrine of substantive legitimate ... -
The South African Companies Act and the Realisation of Corporate Human Rights Responsibilities
(2015)The Companies Act 71 of 2008 (the Companies Act) was promulgated in April 2009 and came into effect on 1 April. The purpose of this Act is, among other things, to promote compliance with the Bill of Rights as provided for ... -
Leveraging Traditional Knowledge on the Medicinal Uses of Plants within the Patent System: The Digitisation and Disclosure of Knowledge in South Africa
(2015)Traditional knowledge (TK) plays an important role in the global economy and is valuable not only to those who traditionally depend on it in their daily lives, but also to modern industry, especially the global biotechnology, ... -
When does State Interference with Property (now) Amount to Expropriation? An Analysis of the Agri SA Court's State Acquisition Requirement (Part II)
(2015)Section 25 of the Constitution provides two ways in which the state may interfere with property rights, namely deprivation (section 25(1)) and expropriation (section 25(2)). As only the latter requires compensation, there ... -
When does State Interference with Property (now) Amount to Expropriation? An Analysis of the Agri SA Court's State Acquisition Requirement (Part I)
(2015)Section 25 of the Constitution provides two ways in which the state may interfere with property rights, namely deprivation (section 25(1)) and expropriation (section 25(2)). As only the latter requires compensation, there ... -
Domestic Partners and "The Choice Argument": Quo Vadis?
(2015)In the absence of formal legal recognition, domestic partners are required to regulate the consequences of their relationship by utilising alternative regulatory measures and remedies which are, for the most part, inadequate. ...