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Volume 17 Number 6 Year 2014

22 articles in this issue 

Christa Rautenbach

EditorialThis voluminous issue consists of 13 articles and 8 notes dealing with various legal topics in South Africa and abroad. The articles commences with Ig Rautenbach’s discussion of the ever-elusive concept of proportionality in the light o... see more

Pags. 0 - 0  

IM Rautenbach

"Proportionality" is a contemporary heavy-weight concept which has been described as an element of a globalised international grammar and as a foundational element of global constitutionalism. The article firstly describes the elements of proportionality ... see more

Pags. 2229 - 2267  

MD Tuba

This article analyses the different approaches adopted for the regulation of payment systems in a variety of legislative instruments by the European Union (EU). It looks in particular at how the institutions that issue new electronic money products are re... see more

Pags. 2269 - 2312  

P Bolton

When government entities procure goods or services, they generally  consider and award contracts only to bidders who complied with the  specifications and conditions of tender as laid down in the tender invitation. Tenders received must in other... see more

Pags. 2314 - 2354  

M De Jong

For over half a century now, section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article it will be illustrated that this prohibition is clearly incompatible with present-day dem... see more

Pags. 2356 - 2410  

D Millard, B Kuschke

Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the r... see more

Pags. 2412 - 2450  

K Calitz

Could a church be held liable for the sexual assault of children by priests when the victims claim as adults only many years after the event?  Complainants can claim damages on the basis that the church is either directly or vicariously liable for th... see more

Pags. 2452 - 2486  

MC Marumoagae

It is important that married couples seek legal advice with regard to the assets falling within their joint estate, more particularly their retirement benefits. This article reflects on the entitlement (if any) of non-member spouses to their spouses' reti... see more

Pags. 2488 - 2524  

M Wiese

The South African law acknowledges two types of liens or rights of  retention, namely enrichment liens and contractual liens (also known as debtor and creditor liens). Enrichment liens are regarded as limited real  rights which are enforceable a... see more

Pags. 2526 - 2553  

F Viljoen, N Orago

The universality, indivisibility, interdependence and interrelatedness of all rights have been universally acclaimed since the drafting in 1948 of the Universal Declaration of Human Rights. However, despite the doctrine of indivisibility, civil and politi... see more

Pags. 2555 - 2599  

SB Gericke

This article investigates the interplay between labour law and international law in the context of the diplomatic employment relationship. The  overriding effect of the Constitution of the Republic of South Africa, 1996 as supreme law to protect the ... see more

Pags. 2601 - 2634  

CG Kilian, E Snyman-Van Deventer

Although probably oversimplified, calculating "earnings per share" or the "earnings-per-share ratio" entails the activity of dividing the net profit of a company by the number of its issued shares. The economic reality is that companies may use innovation... see more

Pags. 2636 - 2665  

A Laas, T Boezaart

Bullying in schools is a global phenomenon that has the potential to impact on children not only physically but also psychologically. In South Africa countless children fall victim to bullying, harassment and abuse at schools. A myriad of constitutional r... see more

Pags. 2667 - 2702  

M Mhango

In some democracies judiciaries have developed the political question doctrine to jurisprudentially resolve political questions and define their relationship with other branches of government. This doctrine is a function of the principle of the separation... see more

Pags. 2704 - 2744  

RG Evans, L Steyn

The question of the ownership of property which vests (by virtue of sections 20(1) and 21(1) respectively of the Insolvency Act 24 of 1936) in the Master and, upon appointment, in the trustee of the insolvent estate, has been the source of acade... see more

Pags. 2746 - 2777  

P Stevens

This contribution deals with the recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amen... see more

Pags. 2779 - 2803  

S Eiselen

Amongst the changes the Department of Trade and Industry is considering is an amendment of the definition of "electronic signature". Although the amendment seems to be in line with the provisions of the UNCITRAL Model Laws on eCommerce and the 2005 UN Con... see more

Pags. 2805 - 2820  

L Hawthorne

In the South African common law of contract there appears to be support for the open norm of public policy as a general clause to ameliorate the effects of unfair contracts and terms which are contrary to public policy. The courts have on several occasion... see more

Pags. 2822 - 2843  

A Roos, M Slabbert

Litigation involving social media is still very new in South Africa and only a few reported cases can be found. In this case discussion, a brief overview is given of the few cases already reported, but in the main the case of  Isparta v Richter ... see more

Pags. 2845 - 2868  

RB Bernard

Freedom of religion is a fundamental right enshrined in and protected by section 15 of the Constitution. This right allows for the practice of religion without interference from the state and individuals. A question which often arises relates to the exten... see more

Pags. 2870 - 2891  

N Buitendag, K Van Marle

The Afriforum v Malema 2011 6 SA 240 (EqC) case drew considerable attention in the media and in the public discourse. The purpose of this note is to reflect upon the judgment from a theoretical vantage point. More specifically, by reading the judgment thr... see more

Pags. 2893 - 2914  

JA Linscott

The majority judgment of Mogoeng CJ in F v Minister of Safety and Security 2012 1 SA 536 (CC) purports to be a straightforward application of the reasoning of the Constitutional Court in K v Minister of Safety and Security 2005 6 SA 41... see more

Pags. 2916 - 2949