Browsing by Author "Quinot, G."
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- ItemAn administrative law perspective on “bad building” evictions in the Johannesburg inner city(ESR Review (Economic and Social Rights in South Africa), 2007-05) Quinot, G.The recent judgment of the Supreme Court of Appeal in Rand Properties provides an opportunity to assess the use of administrative law arguments in advancing the realisation of socio-economic rights. The judgment itself is disappointing in this respect by failing to grapple effectively with the potentially constructive interaction between section 33 of the Constitution and the various socio-economic rights provisions.
- ItemThe contours of a pedagogy of law in South Africa(Juta Law Publishing, 2015-03) Quinot, G.; Greenbaum, LesleyReform of legal education is currently a topic of debate in South Africa again. Reform in higher education can, however, be dangerous and counter-productive if it is driven purely by policy agendas and in the absence of sound pedagogical considerations. This contribution aims to add a pedagogical perspective to the debates about reform of legal education in South Africa. Drawing on our earlier work in this field, we sketch the broad contours of a legal pedagogy for South Africa. Although there has traditionally been reluctance by law teachers locally and in other countries to embark on engagement with educational theory, we would advocate that this is essential and inevitable if reforms are to be based on sound theoretical underpinnings and empirical evidence, instead of anecdotal views. We propose nothing more than a pedagogical framework and do not intend to present anything as prescriptive. Our approach is premised on transformative legal education (TLE) as developed by Quinot. Within the framework of TLE we argue for an integrated, coherent approach, which aims to integrate skills development with substantive law, various areas of law with each other and with broader contextual influences flowing from the South African reality within which legal education is grounded. This calls for a whole-of-curriculum approach with high levels of co-ordination and co-operation within a law programme. We emphasise the importance of authentic learning and focus especially on experiential learning and clinical legal education. Finally, we consider the major role for the use of information technologies in teaching law in South Africa. Our recommendations are not without challenges with the lack of resources and the articulation gap between secondary and higher education as major concerns. While being realistic about the limitations imposed by these challenges we argue that a re-conceptualisation of legal education in light of the imperatives of transformative constitutionalism has become inevitable in South Africa.
- ItemThe contours of a pedagogy of law in South Africa(Juta Law, 2015) Quinot, G.; Greenbaum, LesleyReform of legal education is currently a topic of debate in South Africa again. Reform in higher education can, however, be dangerous and counter-productive if it is driven purely by policy agendas and in the absence of sound pedagogical considerations. This contribution aims to add a pedagogical perspective to the debates about reform of legal education in South Africa. Drawing on our earlier work in this field, we sketch the broad contours of a legal pedagogy for South Africa. Although there has traditionally been reluctance by law teachers locally and in other countries to embark on engagement with educational theory, we would advocate that this is essential and inevitable if reforms are to be based on sound theoretical underpinnings and empirical evidence, instead of anecdotal views. We propose nothing more than a pedagogical framework and do not intend to present anything as prescriptive. Our approach is premised on transformative legal education (TLE) as developed by Quinot. Within the framework of TLE we argue for an integrated, coherent approach, which aims to integrate skills development with substantive law, various areas of law with each other and with broader contextual influences flowing from the South African reality within which legal education is grounded. This calls for a whole-of-curriculum approach with high levels of co-ordination and co-operation within a law programme. We emphasise the importance of authentic learning and focus especially on experiential learning and clinical legal education. Finally, we consider the major role for the use of information technologies in teaching law in South Africa. Our recommendations are not without challenges with the lack of resources and the articulation gap between secondary and higher education as major concerns. While being realistic about the limitations imposed by these challenges we argue that a re-conceptualisation of legal education in light of the imperatives of transformative constitutionalism has become inevitable in South Africa.
- ItemEnforcement of procurement law from a South African perspective(Sweet and Maxwell, 2011) Quinot, G.As is the case in many other countries, public procurement law in South Africa has emerged from the combined application of legal rules from many distinct fields of law to the phenomenon of state contracting. Since no single comprehensive statute or code has been enacted to cover this field, public procurement law in South Africa remains a hodge podge of rules from all the major branches of law. However, increased focus on this area, including increased regulation, significant increases in litigation as well as increased academic attention, has started to mould together the mixture of diverse legal rules into what is now emerging as a distinct law of public procurement.
- ItemThe judicial regulation of state commercial activity(Stellenbosch : University of Stellenbsoch, 2007-12) Quinot, G.; Van der Walt, A. J.; Lubbe, G. F.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The state participates in the market place in a large number of ways, spending millions annually. It buys and sells goods and services; it employs a massive workforce; it acquires, develops and disposes of land; it engages in all kinds of financial transactions; it sets up companies, holds shares and enters into partnerships. Yet, the legal treatment of the state as commercial player remains an enigma. In South African law there is no shortage of legal rules that apply or can potentially apply to state commercial activity, but there is nevertheless no coherent view of the conceptualisation of state commercial activity and as a result no clarity on how such conduct should be legally regulated. A voluminous, but extremely fragmented collection of statutory mechanisms aims to regulate a large variety of matters connected to state commercial activity. The courts have shown an almost schizophrenic attitude towards the application of the common law to these state actions, alternating between opting to apply general contract law and general administrative law rules. Constitutional transformation in South Africa necessitates a critical reevaluation of the legal approach to the regulation of state commercial activity. This necessity flows from a number of factors that converge in the judicial regulation of state commercial activity. These factors include a shift in the nature and function of the state, including the judiciary under the new constitutional dispensation; the use of commercial conduct to advance important transformation goals; the proper relationship between courts in protecting fundamental societal values captured in the Constitution and the executive as the key driver of social change; and the role of law in this changing environment. An analysis of the judicial regulation of state commercial activity creates an opportunity to probe basic questions about legal methodology, particularly in a transformative context such as South Africa. A central theme in this reassessment is the role of dichotomous reasoning in legal methodology, based on sharp distinctions between monolithic concepts such as public/private, state/private enterprise, rule/standard, contract/administrative action, delict/contract that no longer seem to adequately relate to experience in the real world. An analysis of South African case law on state commercial activity reveals the underlying judicial premise that all such state action can be classified as either administrative or contractual in nature. Once this conceptual classification is done the rules that apply follow automatically. State commercial activity is consequently subjected to either administrative law or private law rules in a manner that denies or obfuscates the choice on the part of the individual judge. The criteria used to classify the nature of the action under the classification approach have varied over time. The most prominent criteria are the source of the power exercised and the presence of superior power, with the courts currently alternating between these two. However, these criteria cannot be formulated with certainty and they do not provide consistent guidelines. While the criteria identify important aspects of state commercial activity that merit increased judicial control, the relationships between the criteria and the ensuing substantive regulation and particularly the relationships between them remain nebulous. Ultimately, the classification approach is characterised by excessive conceptualism and formalism. The reality that judges choose what regulation to apply to particular instances of state commercial activity is hidden. The application of specific substantive rules is made to seem natural, inevitable and selfevident. This closes off dialogue about that choice. Two alternatives to the classification methodology exist in South African law, namely an exclusively private law approach and a comprehensive public law approach. The exclusively private law approach highlights the commercial nature of the state action to the effect that state contracting is treated on par with all other forms of (private) commercial activity. However, it is questionable whether private law regulation can adequately address the regulatory concerns specific to the public context of state conduct. An analysis of this alternative approach identifies promising private law doctrines that can inspire such regulation, but significant further development is required before the desired level of regulation will be feasible on private law grounds. The comprehensive public law approach insists on the consistent application of public law rules to all state conduct, irrespective of the commercial nature of that conduct. Although this option may seem highly desirable, especially because it ensures public scrutiny of all state conduct, it is not ideal either. Particularly problematic is the high cost of such regulation and resultant inefficiency that may not be realistic given the current demands on South African public administration. The German and French legal systems provide examples of a third alternative approach in the form of distinct legal figures that exist between contract and administrative law. Recognition of such a distinct figure provides the prospect of developing a separate set of regulation tailored to the specific needs of that figure. A separate branch of government contract or government commercial law can thus be created. In South African law it may be possible to stimulate such development by recognising state contracts as a separate class of contract. However, it is doubtful whether the development of a third regulatory category will encourage the integration of public and private law rules to overcome the conceptualism of the current approach; it could also reinforce conceptualism by adding a third conceptual category. The most promising alternative methodology is premised on a more complex view of the interacting factors that inform judicial regulation and, by extension, legal treatment of state commercial activity. Such an approach perceives the distinctions between the various relevant concepts and factors not as sharp dichotomies, but as continuous and fluid relationships. It recognises that the legal treatment of a specific instance of state commercial activity is a function of the relationship between the various concepts and factors. Such an approach calls for more open and direct engagement with all the factors informing the regulation of state commercial activity. Ultimately, it requires individual judges to take responsibility for the choices they make in their involvement in state commercial activity by means of the regulatory control they exercise. It accordingly fosters dialogue and public debate about the role of law in social phenomena such as state commercial activity. This approach is in line with a culture of justification and transformative constitutionalism that ground the democratic enterprise in South Africa.
- ItemNarrowing the band : reasonableness review in administrative justice and socio-economic rights jurisprudence in South Africa(Juta Law, 2011) Quinot, G.; Liebenberg, SandraThis contribution explores the standard of reasonableness review applied in both administrative justice and socio-economic rights jurisprudence in South Africa. The first part traces the development of reasonableness as a standard of review in administrative law, and the significant shift towards a more substantive conception of review. The implications of this shift for cases involving review of administrative action impacting on socio-economic rights (what we term, "overlap cases") are examined. The second part of the contribution examines reasonableness review in socio-economic rights cases where the cause of action is not formulated in terms of administrative law (what we term, "non-overlap cases"). This typically concerns cases where it is alleged that the legislature or executive branches of government have failed to fulfil the obligations imposed by socio-economic rights. In this section we highlight the failure of existing constitutional jurisprudence on socio-economic rights to develop a substantive account of the normative purposes and values promoted by these rights. We argue that it remains possible for such an account to be developed within the existing framework of reasonableness review applied to positive socio-economic rights claims. The paper concludes with an argument in favour of the development of a single model of reasonableness review across socio-economic rights and administrative justice cases. While the reasonableness standards under the different sections overlap, they should not result in duplication, but fulfil different functions in the review. Taken together, reasonableness offers a model of review of socio-economic rights that promotes a number of key constitutional objectives. These include transparency, the justification of all forms of public action, proper consideration of the factual and normative context, and the development of the substantive dimensions of the socio-economic rights in the Constitution.
- ItemOffer, Acceptance, and the Moment of Contract Formation(2006) Quinot, G.
- ItemThe potential of capstone learning experiences in addressing perceived shortcomings in LLB training in South Africa(North-West University, Faculty of Law, 2014) Quinot, G.; Van Tonder, S. P.Current debates about legal education in South Africa have revealed the perception that the LLB curriculum does not adequately integrate various outcomes, in particular outcomes relating to the development of skills in communication, problem solving, ethics, and in general a holistic view of the law in practice. One mechanism that has been mooted as a potential remedy to this situation is capstone courses, which will consolidate and integrate the four years of study in the final year and build a bridge to the world of practice. A literature review on capstone courses and learning experiences (collectively referred to as capstones) indicates that these curriculum devices as modes of instruction offer particular pedagogical advantages. These include inculcating a strong perception of coherence across the curriculum and hence discipline in students, providing the opportunity for students to reflect on their learning during the course of the entire programme, creating an opportunity to engage with the complexity of law and legal practice, and guiding students through the transition from university to professional identity. An empirical analysis of the modes of instruction used in LLB curricula at 13 South African law faculties/schools indicates that there are six categories of existing modules or learning experiences that already exhibit elements of capstone-course design. These are clinics, internships, moots, research projects, topical capstones and capstone assessment. A further comparative study into foreign law curricula in especially Australia and the United States of America reveals four further noteworthy approaches to capstone-course design, namely problem-based learning, the virtual office, conferences and remedies courses. The empirical study suggests that capstones indeed hold the potential as learning experiences to address some of the challenges facing legal education in South Africa but that further development of this curriculum-design element is required.
- ItemPublic procurement and corruption : the South African response(JUTA Law, 2007) Williams, Sope; Quinot, G.The purpose of this article is to examine corruption within public procurement and the measures that may be used to address it, in particular, the South African response to procurement corruption in the Prevention and Combating of Corrupt Activities Act 2004. The first part of the article briefly defines corruption and then considers the kinds of corrupt activity occurring in public procurement and the range of measures that may be adopted against this kind of corruption. Finally, the article critically examines an important legislative response to procurement corruption, namely the requirement in the Corruption Act for excluding persons who have been convicted of corruption from obtaining public contracts, and concludes with an assessment of the utility of this requirement.
- ItemDie reg se oenskynlike onvermoe om korrupsie in staatskontraktering in Suid-Afrika hok te slaan(LitNet, 2013) Quinot, G.Ten spyte van ’n aansienlike aantal afdwingbare regsreëls wat staatsverkryging in Suid-Afrika reguleer, word hierdie aspek van staatsadministrasie gekenmerk deur hoë vlakke van ongerymdhede. Veral korrupsie blyk hoogty te vier as dit kom by staatskontrakte. Die vraag ontstaan dus hoekom die toepaslike reg oënskynlik nie daarin slaag om korrupsie in staatskontraktering effektief teen te werk nie. Die doel met hierdie artikel is om te fokus op die regsreëls wat spesifiek gemik is daarop om korrupsie in staatskontraktering te beveg en deur ’n ontleding van daardie reëls probleme te identifiseer wat sodanige oogmerk ondermyn. Vyf hoofprobleme in die regulering van staatsverkryging word geïdentifiseer wat bepaald die stryd teen korrupsie ondermyn, te wete die gefragmenteerde aard van die regulatoriese raamwerk, die steun op verkrygingsbeleid as die voertuig vir individuele verkrygingsreëls, die desentralisering van beide die verkrygingsfunksie en die skep van verkrygingsreëls, die inkonsekwente toepassing van gemeenregtelike reëls deur howe in verkrygingsdispute en die onsamehangende stelsel van remedies van toepassing op verkrygingstransaksies. Drie stappe word gevolglik voorgestel wat hierdie probleme kan help aanspreek. Dit is die sentralisering en konsolidering van die regulatoriese raamwerk, die skep van ’n sterk, sentrale oorsigstruktuur, en ’n herbesinning van die howe se rol in die regulering van staatsverkryging.
- ItemThe regulation of in-flight films(JUTA Law, 2005) Quinot, G.In South Africa, as in many other jurisdictions, the showing of films in public is legally regulated through a system of classification. This system entails that a film must first be classified by the Film and Publication Board in terms of the Film and Publication Act 65 of 1996 before it may be screened in public and then only subject to the restrictions imposed under the classification. Non-compliance with such restrictions is a crime. One of the main aims of this regulatory system is the protection of children against harmful materials. The screening of films on aeroplanes is today an integral part of any long-haul flight, especially internationally. Since (young) children are often passengers on such flights, the question emerges whether the regulatory approach to film classification also applies to in-flight films. In this article the interaction between film regulation and aviation regulation is assessed where they intersect at the regulation of in-flight films. The conclusion is that there is a regulatory gap where these two sets of regulations meet, with a resultant unregulated activity within otherwise highly regulated contexts, i.e. film and aviation. A number of policy considerations in favour of greater regulation of in-flight film are assessed and potential ways in which such regulation can be implemented proposed.
- ItemThe role of quality in the adjudication of public tenders(North-West University, Faculty of Law, 2014) Quinot, G.The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public procurement, particular attention should be given to the role of quality (also called functionality) in the adjudication of public tenders and the final award decision. In South African public procurement law, the role of functionality in public tender adjudication has been a fairly controversial issue that has resulted in a continuing interaction between courts and law-makers on how and when quality should be assessed and should impact on the final award decision within the framework for public procurement found in section 217 of the Constitution. This contribution tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. The analysis shows how the role of functionality has constantly changed since the enactment of the PPPFA and remains uncertain. This uncertainty relates to different interpretations of the constitutional requirements for public procurement primarily contained in section 217(1) of the Constitution. Whether functionality is used as a qualification criterion, an award criterion or both holds particular practical implications for both suppliers and contracting authorities. It is accordingly important to have certainty on this question. However, it cannot be said that the Constitution and section 217 in particular dictates one approach rather than another. The issue should thus be resolved with reference to the statutory scheme adopted under the PPPFA.
- ItemSocial Policies in Procurement and the Agreement on Government Procurement: A Perspective from South Africa(2011) Bolton P; Quinot, G.
- ItemSubstantive legitimate expectations in South African and European administrative law(German law journal, 2004-01) Quinot, G.The doctrine of substantive legitimate expectation is only starting to find its way into South African law at present. The courts have suggested that a careful analysis of the development of the doctrine in English law is required before it can be accepted in South African law. While this is certainly important seeing that the doctrine of legitimate expectation was originally taken from English law into South African law, the comparative analysis should not be restricted to English law. In English law the substantive legitimate expectation doctrine is all but settled and while the development of the doctrine in that jurisdiction has preceded South African law for a considerable period of time, many uncertainties regarding the doctrine still remain in English law. In contrast, substantive protection of legitimate expectations is well established in EU law. It will therefore be foolish not to pay close attention to EU law in this regard. Any comparative analysis clearly shows that EU law holds some very important lessons for the development of substantive legitimate expectations in South African law.
- ItemSubstantive reasoning in administrative-law adjudication(Constitutional Court Review, 2010) Quinot, G.One of the main characteristics of constitutional transformation in South Africa is what Etienne Mureinik calls the shift towards a culture of justification in which 'every exercise of power is expected to be justified'.1 He argues that within such a culture, constitutional rights 'are standards of justification - standards against which to measure the justification of the decisions challenged under them'.