Faculty of Law

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The Faculty of Law is situated in the Old Main Building, the centre of Stellenbosch. Initially the Faculty concentrated on LLB degrees, training and equipping students, not merely as legal practitioners, but also as jurists. Graduates of the Faculty include judges, advocates, attorneys, business people, politicians and academics.

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Browsing Faculty of Law by browse.metadata.advisor "Butler, D. W."

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    The quest for effective arbitration : new developments in South Africa and Germany
    (Stellenbosch : Stellenbosch University, 2002-03) Afflerbach, Kai; Butler, D. W.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Arbitration is widely regarded as an important alternative to litigation, particularly for international commercial disputes. However, concern currently exists that arbitration is becoming too slow and too expensive, partly through using procedures too similar to those in the courts. Effective arbitration requires suitable legislation, the support of the parties and their lawyers and appropriate initiatives from the arbitral tribunal. The UNCITRAL Model Law on International Commercial Arbitration of 1985 is the internationally accepted standard against which the quality of a nation's legislation for international commercial arbitration must be measured. A crucial aspect regarding suitable legislation is the role of the courts. This thesis is essentially concerned with steps which have been taken or need to be taken in Germany and South Africa to achieve effective arbitration. It commences with a brief overview of the sort of delaying tactics which are often encountered in international arbitration practice, including abuse of the court's powers of supervision and intervention. The reception in Germany and South Africa of the UNCITRAL Model Law is then discussed. In Germany it has been adopted for both domestic and international arbitration. The South African Law Commission has recommended its adoption in South Africa for international arbitration. The Law Commission has however recommended a new separate statute for domestic arbitration because of the perceived need for remedial measures to ensure improved arbitration procedures. The thesis then examines the effect of the court's powers on effective arbitration, particularly prior to the award. The current South African law is discussed as well as the changes proposed by the Law Commission in the context of domestic and international arbitration. The South African position is compared with that in Germany, both before and since the introduction of the UNCITRAL Model Law in 1998. After a general discussion of the powers of the court in the context of arbitration, two aspects are identified for special attention. The first is the power of the tribunal to rule on its own jurisdiction and the interaction between the powers of the court with those of the tribunal in this regard. The second concerns the granting of interim measures in the context of arbitration proceedings, with particular attention to security for costs. In certain circumstances, and depending on the applicable rules and legislation, it may be more appropriate for a party to seek such relief from the tribunal, whereas in slightly different circumstances it may be preferable to seek such relief from the court. Finally, steps are considered, which can usefully be taken by the arbitral tribunal itself to promote effective arbitration by using the flexibility of the process. The extent to which the tribunal is "master of its procedure" and thereby able to counter delaying tactics effectively is subject to the doctrine of party autonomy. Specific techniques for more effective arbitral procedures are suggested, namely a more interventionist approach, the use of preliminary meetings, imposing timetables, improving the hearing, the effective use of documentary evidence and discovery and finally the possibility of documents-only arbitration.
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    'n Regsvergelykende studie van sakedeeleiendom ingevolge die Wet op Deeltitels 95 van 1986
    (Stellenbosch : Stellenbosch University, 1992) Blignaut, Elizabeth Margaretha; Butler, D. W.; Van der Merwe, C. G.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Although commercial sectional title schemes occur in practice, the provisions of the South African Sectional Titles Act are primarily aimed at residential schemes. Many of its provisions are therefore unsuitable for commercial schemes. The aims of this dissertation are to identify those provisions which create problems for commercial owners and to suggest improvements to the South African statute in the light of comparable legislation elsewhere. "Common property" is defined in the Act to include the building's external shell, which commercial owners wish to use for advertising purposes. The insertion of a statutory provision, which will permit portions of the external shells of buildings in commercial schemes to he made exclusive use areas, will cater for the needs of commercial owners, while ensuring sufficient control by the body corporate. The Act of 1986 gives a discretion to the developer of a commercial scheme to determine the basis of the participation quota, hut doubt exists as to the exact extent thereof. The South African statute should provide expressly for the choice of even three different bases for the three different interests, as well as for different bases for the allocation of different rights or duties which each interest represents. Regarding physical changes, improvements and alterations to the common property or to a section's interior pose few problems. Those that do occur can be dealt with by express regulatory provisions in the Act, supplemented by rules. Commercial owners with space problems may utilise the effective provisions on subdivision and consolidation. The omission of a provision for resubdivision from the 1986 Act imposes unnecessary constraints on commercial owners. A provision for resubdivision shouId be re-inserted in the statute, containing sufficient detail to ensure its smooth operation. The lacuna in the Act regarding the complete reorganisation of a scheme should be dealt with in the same way. The Act requires a unanimous resolution to extend a section to incorporate part of the common property. This strict requirement is justified because the interests of other owners are affected. Its effect is mitigated by the possibility of the commercial owner expanding his business activities in the scheme without extending his section. The statutory provisions regarding a development in phases should however be amplified to provide for the expanding needs of commercial owners. The complicated statutory provisions for the termination of a scheme pose serious problems for commercial owners. The circumstances justifying termination should be defined more clearly. Stricter requirements for the intervention of the court should be set. Disparate aspects should moreover be regulated in separate sections. Several model rules and the underlying statutory provisions can seriously hamper the business activities of commercial owners. The wording of section 35 regarding the power to make rules has however been improved in the Amendment Act of 1991. The model rules do not meet the needs of commercial owners and suggestions are made for improving the conduct rules in particular. Additional sanctions, namely fines and the suspension of an owner's right to use the common property, are suggested.