PER: 2009 Volume 12 No 4
Contents
30 December 2009
Oratio
- The Bench and Academia / Harms, LTC
Articles
- Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law / Du Plessis, L
- Formulating specialised Legislation to address the Growing Spectre of Cybercrime: A Comparative Study / Cassim, F
- Traditional Leadership and Independent Bantustans of South Africa: Some Milestones of Transformative Constitutionalism beyond Apartheid / Khunou, SF
- The Development of the Interface between Law, Medicine and Psychiatry: Medico-Legal Perspectives in History / Swanepoel, M
- Cultural Practices and HIV in South Africa: A Legal Perspective / Mswela, M
- Die Mishandelde Vrou in die Strafreg: 'n Regsvergelykende ondersoek / Matthee, J
- The Debt Couselling Process-Closing the Loopholes in the National Credit Act 34 of 2005 / Roestoff, M; Haupt, F; Coetzee, H & Erasmus, M
- The Constitutional Validity of Search and Seizure Powers in South African Criminal Procedure / Basdeo, V
Note
- Marimuthu Munien V BMW Financial Services (SA) (PTY) LTD Unreported Case No 16103/08 (KZD) / Van Heerden, C & Coetzee, H
Editorial
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"I have learnt that although the study of law is sublime its practice is not all that vulgar; and that there is a symbiotic relationship between study and practice" said Justice Louis Harms of the South African Supreme Court of Appeal on 15 July 2009 in Pietermaritzburg, South Africa, delivering the keynote address on the occasion of the Congress of the Society of Law Teachers of Southern Africa. We are pleased to publish the full address here as an oratio on the Bench and Academia.
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With his focus on the landmark decision of the South African Constitutional Court in the Pillay case decided in 2007, Lourens du Plessis of the University of Stellenbosch discusses the Court's "jurisprudence of difference" and highlights the dependence of the constitutional right to freedom of religion on the constitutional prohibition of unfair discrimination.
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In a comparative overview of the legislation in the USA, the UK, Australia, India, the Gulf States and South Africa dealing with cyber crime, Fawzia Cassim of UNISA argues that there is need for legislation to extend criminal procedure to allow for the acceptance of intangible evidence associated with cybercrime and also for enhanced international cooperation to combat this growing phenomenon.
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Following an historical exposition of the manner in which traditional authorities were used under apartheid, Freddie Khunou of the Mafikeng campus of the North-West University describes the changes brought about by the new constitutional dispensation, which he describes as promoting the transformation of traditional leadership in order to align it with the foundational values and principles of the South African Constitution.
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Magdaleen Swanepoel of UNISA argues from an historical perspective both of law and psychiatry, including prehistoric times, the Arabian countries, the Nile Valley as well as Greece and Rome, that an understanding of the past helps mental health and legal practitioners to see things in a different perspective.
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Maureen Mswela of UNISA investigates the intersection between HIV/AIDS, gender inequality and gender violence in South Africa, pointing out that certain cultural practices and customs contribute to the subordination of women, thereby increasing their exposure to the dangers of HIV infection.
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Jacques Matthee of the Potchefstroom campus of the North-West University searches for means of improving legislative regulation of the situation of battered women who kill their abusers after having suffered through years of physical abuse. This is done by means of comparative surveys of the relevant dispensations in South Africa, Australia, England and Wales.
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Melanie Roestoff, Franciscus Haupt, Hermie Coetzee and Mareesa Erasmus of the Faculty of Law and Law Clinic of the University of Pretoria demonstrate that the process of debt counselling in terms of the South African National Credit Act 2005 is not functioning effectively by pointing out the loopholes in the Act causing the deficiencies of the system.
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Vinesh Basdeo of UNISA submits in an analysis of the relevant South African legislation that the search and seizure provisions contained therein are inconsistent with the spirit, purport and object of the Constitution.
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Corlia van Heerden and Hermie Coetzee of the University Pretoria analyse, with reference to a recent (unreported) case, the difficulties surrounding the provisions of the National Credit Act 2005 on the need for proper notice to be given to a defaulting creditor by a credit provider in order to activate the mechanisms of the Act for the resolution of a dispute.
Editor: Professor Francois Venter / Edition editor: Christa Rautenbach
Recent Submissions
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Marimuthu Munien V BMW Financial Services (SA) (PTY) LTD Unreported Case No 16103/08 (KZD)
(2009)Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the NCA) provides that, as a required procedure before debt enforcement, a credit provider must draw the default to the consumer's ... -
The Constitutional Validity of Search and Seizure Powers in South African Criminal Procedure
(2009)An important part of crime investigation is the obtaining of evidence through the search and seizure of persons and things. The South African Constitution Summary 1 At the outset it should be pointed out that this article ... -
The Debt Couselling Process-Closing the Loopholes in the National Credit Act 34 of 2005
(2009)Statistics showing that only 3.8% of consumers who have applied for debt review in terms of the National Credit Act 34 of 2005 (NCA) have succeeded to have their cases adjudicated by the court, indicate that the process ... -
Die Mishandelde Vrou in die Strafreg: 'n Regsvergelykende ondersoek
(2009)This article seeks to critically examine recent criminal law developments in Australia, England and Wales that specifically address the situation in which battered women find themselves. This article specifically focuses ... -
Cultural Practices and HIV in South Africa: A Legal Perspective
(2009)South Africa has not escaped the rising prevalence and severe impact of HIV/AIDS in relation to women. From an economic and social vantage point, the HIV/AIDS epidemic effects women the hardest, with underprivileged black ... -
The Development of the Interface between Law, Medicine and Psychiatry: Medico-Legal Perspectives in History
(2009)Medicine and law were related from early times. This relation resulted as a necessity of protecting communities from the irresponsible acts of impostors. Various legal codes dealing with medical malpractice existed in ... -
Traditional Leadership and Independent Bantustans of South Africa: Some Milestones of Transformative Constitutionalism beyond Apartheid
(2009)The institution of traditional leadership represents the early form of societal organisation. It embodies the preservation of culture, traditions, customs and values. This paper gives a brief exposition of the impact that ... -
Formulating specialised Legislation to address the Growing Spectre of Cybercrime: A Comparative Study
(2009)The article looks at cyber legislation formulated to address cybercrime in the United States of America, the United Kingdom, Australia, India, the Gulf States and South Africa. The study reveals that the inability of ... -
The Bench and Academia
(2009) -
Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law
(2009)This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly) eccentric claims of (assumedly) idiosyncratic 'religious Others'. Developments in this ...