In order to provide the missing link in the constitutional damages formulation by Lord Diplock in Maharaj v Attorney General of Trinidad and Tobago (No 2) 1979 AC 385 and its attendant practical difficulties of quantifying what the plaintiff will receive in money terms, the Privy Council recently came up with the vindicatory approach in Attorney General of Trinidad and Tobago v Ramanoop 2005 2 WLR 1324. The background to the development of this approach is unarguably traceable to the earlier 'right-centred/value-laden' approach of New Zealand Court of Appeal in the interpretation and application of the New Zealand Bill of Rights Act and the criticisms of the Diplock formula by the Court of Appeal of Trinidad and Tobago. Although the vindicatory approach informs the award of constitutional damages by the Supreme Court of Canada and the Constitutional Court of South Africa in the interpretation of the Canadian Charter and the South African Bill of Rights respectively, the Supreme Court of the United Kingdom has denied its applicability in English law in the case of Lumba v Secretary of State for the Home Department 2011 2 WLR 671 (UKSC). This article maintains that the attitude of the UK Supreme Court smacks of its predecessor's approach to the award of public law damages in the English jurisdiction generally, contrary to the developments elsewhere in the Commonwealth.
This article is a comparative study on the issue of frustration of contracts with a closer look at supervening illegality of international contracts as a frustrating event. The first part of this research mainly discusses how different legal regimes deal with this issue. When a frustrating event occurs, some legal systems apply pacta sunt servanda with very little flexibility in terminating (the only caveat being cases of force majeure, physical and legal impossibility), or at least adapting, the contract based on new circumstances. Some other legal regimes rule for obligor's relief and subsequent termination of the contract. There are also moderate legal systems that do stand somewhere between these extremes, which frequently adapt the contract to what the parties had intended when concluding the contract. The latter seems to be more appropriate and suitable. The first part of the article will deal with frustration, while the latter part will focus on the prerequisites and consequences of supervening illegality. A subsequent change in the law, no self-induced non-performance and unforeseeability are the prerequisites in all legal systems. The major consequence is absolute and total discharge of the contract for permanent illegality, while for temporary illegality performance shall merely be suspended.
During the twentieth century the development of social justice led to the promulgation of legislation to address social issues. This body of law rules alongside classic contract law and not only overlaps, but on occasion conflicts with the latter. In 1950 the Austrian jurist Walter Wilburg proposed the 'flexible system' to deal with the problem of overlapping and conflicting principles. According to the 'flexible system', Wilburg recognised the existence of a plurality of principles which need to be graded or weighted and applied concomitantly in order to establish delictual or contractual liability. This paper deals with the application of Wilburg's approach to contract law. His flexible system is reflected to an extent in both the theory and principles of the European Draft Common Frame of Reference. This paper first analyses Wilburg's flexible approach. Secondly, this flexible system is projected on to the law of contract to establish contractual liability. The foundational principles of freedom, security, and justice identified by the DCFR, are used as the graded principles to be applied in this flexible system. Each individual principle has different aspects, which provide content to the individual principle. The South African principles which echo those of the DCFR are discussed and integrated into this analysis. Finally, a flexible model to establish whether a contract is enforceable or not, is developed. The format of this model is borrowed from 'decision tree analysis'. A minimum total weight of 75 is suggested for enforceability of a contract. The principles are allocated maximum weights of: freedom=40, security=30 and justice=30. Whether a contract is enforceable or not will depend on the weight realised by the sum of the principles in a particular case. The different aspects of each principle act as chance events which may compromise the principle and cause its weight to be decreased.
Impermissible tax avoidance transactions cross the dividing line between legal tax avoidance and illegal tax evasion. In response, governments across the globe have adopted legislative, judicial and administrative measures to combat this type of tax avoidance. This article reviews the use of the administrative techniques employed by the Canada Revenue Agency (CRA). These include awareness resources, monitoring tools, audits and administrative penalties. Through the evaluation of Canada's regime, the article seeks to make recommendations in an attempt to improve the South African administrative approach. It is proposed that the South African Revenue Service (SARS) continues to develop a cogent compliance programme in order to improve tax compliance.
In this article the value of taking a less traditional approach to mixed legal systems, legal comparison, and a global perspective is be explored. The use of value-pluralism in comparative research to enhance harmonisation of laws is explained and its relevance to the South African context established. The article first deals with the theoretical basis for the views expressed. This introduction is followed by a brief overview of the South African legal system as a mixed legal system and an exploration of the approaches to the classification of legal systems. The article concludes with comments on the objectives of globalisation, value-pluralism, and harmonisation of laws.
Although consumer welfare is one of the main objectives of the South African Competition Act, the current administrative penalties for which it provides do not deal with consumer redress. Consumers who are disadvantaged by the anti-competitive conduct of firms receive no compensation or other assistance. The administrative penalties paid by firms that contravene the Act do not aid consumers; in fact, firms often increase the price of their goods or services to finance these penalties. So the Act does not meet its objective as it does not provide adequately for consumer redress. I suggest that the Act be revised to clarify the powers of the competition authorities and to enable them to impose penalties that will directly benefit affected consumers. I also suggest that the Act provide for private means of redress through the implementation of class actions specifically relating to anti-competitive conduct.