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Commercial Mediation, A User's Guide by Brand, Steadman & Todd- Reviewed by FWB's Louis Rood

Many litigants can testify bitterly to the costs, complexity, risks, uncertainty and

unforeseen consequences of traditional litigation. Particularly in commercial

disputes where the parties often require swift finality and certainty, it is not

surprising that mediation has emerged in many jurisdictions as a valuable and

effective option to resolve disputes.

As the co-authors of the updated second edition of this practical handbook

point out, “…there is already a rich body of law and of practical and theoretical

literature to draw on from other jurisdictions.” The clear, concise and userfriendly

text draws on these resources and the personal experience of the coauthors,

all seasoned practitioners, authors and commentators on labour,

employment and alternative dispute resolution.

 

The processes that take place before and during commercial mediation are

explained. The different types of consensus-seeking approaches and the key

principles of mediation are analysed. Expert guidance, sensible advice and a

sure feel for defusing, constructively channelling and managing the emotions

which are often present in disputes are insightful and reflective of the potential

for achieving balance and voluntary agreement inherent in mediation.

The ten chapters logically take the reader through every stage of the mediation

process. Specimen agreements to mediate are provided as well as specimen

contract provisions for mediation and arbitration. Explanatory diagrams

illustrate the text, footnotes are sensibly kept to essentials, the index is

comprehensive, each chapter is separately summarised, 49 South African

statutes which provide for mediation are listed, the rules regulating the conduct

of proceedings related to mediation in the Magistrates’ Courts are appended,

and useful references to further reading on the subject are included.

The entire package is a mediation toolkit simply but subtly designed and

refined for effective use.

“This book should be accessible to business people, government officials,

community leaders and lawyers who are involved in mediation. I hope that

people in all these areas will embrace the opportunities that mediation has to

offer. When they do, they will find in this book an invaluable guide in that

process.”

-Deputy President Cyril Ramaphosa

 

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The Law of Landlord and Tenant by Sue-Mari Viljoen- Reviewed by FWB's Louis Rood

Despite its title, this book encompasses far more than the traditional common

law contractual relationship between landlord and tenant.

The provision of housing, shelter, and “a roof over your head” for the homeless

has become a critical political and socio-economic issue in South Africa’s new

constitutional dispensation. For close to a century there has been state

intervention in the housing market in various ways, such as rent control and

increased tenure security to respond to demand and political pressures. More

recently, government policies as a means to achieve the constitutional right of

access to adequate housing has had a major impact on the contract law and

property law principles relating to the private law relationship of landlord and

tenant.

 

This comprehensive overview of the law of lease lists more than 100 South

African acts, regulations, by-laws and proclamations that have shaped the local

rental landscape. Comparable foreign legislation is also tabled, as is relevant

domestic and foreign case law. An extensive bibliography and pertinent

footnotes underpin the authorities, precedents and resources upon which the

text relies.

The distinguished author, Sue-Mari Viljoen B Comm LLB LLD, Associate

Professor of the Department of Public, Constitutional and International Law at

the University of South Africa, has marshalled the extensive subject matter in

masterful style to create an invaluable source of reference for legal

practitioners, property owners and developers, financial institutions, local

authorities, provincial and national housing departments, and nongovernmental

organisations dealing with the drastic shortage and provision of

housing in urban and rural areas.

Separate, well-organised and lucid chapters place the nature of the landlordtenant

relationship in context, analyse the intricacies of that relationship, its

creation and termination and deal in detail with the respective obligations of the

parties.

The notes on relevant foreign law which are to be found in suitable places

throughout the text are instructive in illuminating the relevant aspects of South

African law. The manner and extent to which landlord-tenant law can be

regulated to reach specific socio-economic goals and political aims is

illustrated by the author’s observation:

“The tenant’s obligation to return the property upon termination of the

lease as well as the actual expiration of the relationship has undergone

radical change in the constitutional dispensation through both the

introduction of new laws and judicial developments to provide greater

tenure protection for private and public sector tenants. These

developments are constitutionally inspired to ensure a more welfareorientated

approach to the eviction of vulnerable groups.”

Accolades are also due to publishers Juta and volume editor, Distinguished

Professor André van der Walt, South African Research Chair in Property Law

at Stellenbosch University, who has himself made a significant contribution as

author to Juta’s Property Law Library, most recently Introduction to the Law of

Property (with GJ Pienaar), Law of Property Casebook for Students, and The

Law of Servitudes (2016).

 

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Indigenous Knowledge & Intellectual Property by C Ncube and E du Plessis- Reviewed by FWB's Louis Rood

The 2007 United Nations Declaration on the Rights of Indigenous Peoples has

brought to the fore the rights of indigenous peoples to the protection of their

knowledge and culture. Established legal intellectual property systems, which

view knowledge in terms of private individually-owned property rights that may

be commodified in a market economy, are however inadequate to protect

indigenous knowledge. It is easier to identify a specific inventor or author, and

to patent a single, bright idea than to do so for unique knowledge developed

over time by many people in an ever evolving community culture.

 

Indigenous knowledge is usually committed to the memories of people in a

particular geographic location and expressed in folklore, stories, songs, rituals,

dances, and other cultural ways, shared orally through traditional processes

within a specific community. This is transmitted from generation to generation

and is embedded in the history and culture of the community. It forms an

integral part of the social, economic, and technological identity of that

community, and its application and adaptation by cohesive traditional societies

ensures its long-term persistence, sanctity and progress within the natural,

social and economic environment of those societies.

Achille Mbembe, Research Professor in history and politics at the Wits Institute

for Social and Economic Research, has observed with regard to Africa: “…the

existence of deep histories and entrenched cultures of curiosity, invention and

innovation, long underestimated, neglected or misunderstood….In their

extraordinary liveliness and frugality, these cultures of retrieval, repair and

remaking of things are the repositories of tacit knowledge and skills that have

not been the object of proper documentation and even less so of archiving”.

(Mail & Guardian, 2017 January 6 to 12).

This collection of essays by distinguished authors and editors forms a valuable

and timely examination of the complex and daunting challenges of giving

substance to the rights inherent in and flowing from indigenous knowledge.

Various approaches to the protection of indigenous knowledge are assessed

as well as the tension between the desire to exploit traditional knowledge for

financial gain, and the desire to protect and preserve traditional knowledge.

These differing approaches are reflected in draft legislation that has been

formulated in South Africa, but this is a subject that is far from being resolved.

The contributions that this perceptive book offers, drawing as they do from

policy and legislative developments in various foreign jurisdictions facing

similar difficulties, provide significant insights and critical perspectives to what

lies at the heart of transformation and decolonisation.

Congratulations are due to the learnered editors Professors Caroline B Ncube

LLB, LLM, PhD and Elmien du Plessis BA, LLB, LLD, as well as the

contributing authors Professors Pamela Andanda LLB, LLM, PhD, and Sue

Farran BA, LLB, LLM, PhD, and Hojjat Khademi LLB, LLM, as well as

publishers Juta and Professor Hanri Mostert, series editor of Juta’s

Contemporary Legal and Applied Research Series. Recognition of the wider

importance and deep potential benefits of our rich and diverse indigenous

knowledge has been invigorated by this insightful and studious publication.

 

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Real Security Law by R Brits- Reviewed by FWB's Louis Rood

It has been said that although South Africans achieved freedom under the

Constitution of 1996, they nevertheless remain in bondage. Progress, for

example through investment in property development, housing and

infrastructure, inevitably requires credit, and creditors require their rights to be

secured in the event of default. This may be achieved in a number of ways

including mortgage bonds, notarial bonds, pledges and liens.

Real security law is where property law and credit law meet to regulate the

rights that creditors have to property belonging to their debtors, either as

agreed upon between the parties or by operation of law. Such rights secured

by creditors facilitate affordable borrowing, investment in property and industry,

and thus the promise of economic prosperity.

In South Africa’s ever-changing socio-economic context, a sophisticated

system of both common law and legislation has evolved to maintain a fine

balance between the rights of debtors, creditors, other parties and the general

public. Financial uncertainty, unemployment, rising consumer overindebtedness

and homelessness are some of the critical factors which impact

on this fundamental area of our law. Without insecurity there would presumably

be no need for real security law.

The distinguished author of this key volume in Juta’s Property Law Library

series, Reghard Brits BComm LLB LLD, Senior Lecturer in the Department of

Mercantile Law at the University of Pretoria, describes and analyses the

current state of real security law in South Africa. Published author of numerous

journal articles on the law of property, he expertly draws together legal theory,

constitutional imperatives, commercial realities and the requirements of legal

practice.

In addition to all the conventional forms of real security, such as the mortgage

of land, the pledge of movables, general and special notarial bonds, cessions

in security of debt, the landlord’s tacit hypothec and rights of retention, other

security mechanisms imposed by statue are also fully dealt with, for example

municipal charges, embargo powers and the instalment-agreement.

Readers will be well served by the extensive biography of further sources, the

tables of cases and legislation, both domestic and foreign, the comprehensive

index and pertinent footnotes.

The author expresses the hope that “…the foundation laid in this book will also

serve as a platform for future modernisation – not only to keep up with global

trends and ever-expanding technological possibilities, but to develop a system

that is suitable for our particular socioeconomic and political context.”

This meticulously researched yet expansive forward-looking overview of real

security law will be welcomed by a broad spectrum of practitioners, property

owners, financial institutions and business people, straddling as it does

contract law, insolvency, corporate law, banking and finance, consumer

protection and conveyancing practice, all in the wider context of our economic,

social and political systems.

 

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