South African Law Journal - Volume 124, Issue 3, 2007
Volume 124, Issue 3, 2007
Source: South African Law Journal 124, pp 1 –23 (2007)More Less
Bloemfontein; Brakpan; Bulawayo, Zimbabwe; Butterworth; Cape Town; Durban; East London; Germiston; Grahamstown; Greytown; Harare, Zimbabwe; Johannesburg; Kuruman; Middelburg, Eastern Cape Province; Midrand; Nelspruit; Pietermaritzburg; Port Elizabeth; Pretoria; Randburg; Sandton; Umtata; Windhoek, Namibia; UK - London.
Author Graham GloverSource: South African Law Journal 124, pp 449 –459 (2007)More Less
A landmark moment in the history of South African contract law was the emphatic interment of the exceptio doli generalis by Joubert JA in Bank of Lisbon and South Africa v De Ornelas 1988 (3) SA580 (A). Throughout most of the twentieth century, the exceptio doli generalis had been viewed as an equitable defence that allowed a defendant to resist a claim for performance under a contract when there was something unconscionable about the plaintiff's seeking to enforce the contract (or a clause thereof) in the specific circumstances of that case (see A J Kerr Principles of the Law of Contract 6 ed (2002) 637ff; P J Aronstam 'Unconscionable contracts: The South African solution?' (1979) 42 THRHR 21; P van Warmelo 'Exceptio doli' 1981 De Jure 202).
The passing-off action : requirements and protected interests - a conceptual and critical analysis : noteAuthor J. NeethlingSource: South African Law Journal 124, pp 459 –469 (2007)More Less
Author Rochelle Le RouxSource: South African Law Journal 124, pp 469 –479 (2007)More Less
This note explores the borderline between employees and other workers against the background of recent judgments here and elsewhere which suggest, first, that there is an almost universal acceptance that the traditional understanding of the statutory definition of an 'employee' is now obsolete; and, secondly, that the courts are equally uncertain where to draw the new boundaries of protective labour legislation. The aim of this note is to establish to what extent current labour legislation and, more importantly, the Constitution of the Republic of South Africa, 1996 offer an alternative port of entry to protective labour laws.
Comments on the South African Law Reform Commission's draft Interpretation of Legislation Bill : noteAuthor Julien HofmanSource: South African Law Journal 124, pp 479 –490 (2007)More Less
The Interpretation Act 33 of 1957 was not new legislation. It was a re-enactment of the Interpretation Act 5 of 1910 in order to replace the original Dutch version of the Act with an Afrikaans version. This makes it one of the oldest pieces of legislation in force in South Africa and, in the opinion of some, seriously outdated. The Law Reform Commission's Discussion Paper, for example, says: 'The Interpretation Act is so outdated that it has not been taken into account in the drafting of recent Acts.' (South African Law Reform Commission Statutory Revision: Review of the Interpretation Act 33 of 1957 (Project 25) Discussion Paper 112 (2006) para 1.4.) It would be unfortunate if this were indeed the case, because the courts are still using the Interpretation Act. Since 1994, for example, the Interpretation Act has been referred to in more than seventy cases reported in the South African Law Reports, including ten Constitutional Court cases and twenty-two Supreme Court of Appeal cases.
Author Patrick Lynn RiversSource: South African Law Journal 124, pp 491 –499 (2007)More Less
Apartheid survives in post-apartheid media regulation. Remnants remain even as a post-apartheid agency like the Film and Publication Board (FPB) deploys a regulatory method grounded in the 'classification' and 'certification' of media, as opposed to the outright 'censorship' wielded by the apartheid state.
'Yes, . . . But does it have personality?' The International Committee of the Red Cross and sovereign immunity : noteAuthor Garth AbrahamSource: South African Law Journal 124, pp 499 –513 (2007)More Less
Reported in the SALR of February 2007 was a decision of the Zimbabwean Supreme Court handed down by Sandura JA (Malaba and Gwaunza JJA concurring) on 13 January 2004. Quite why the decision has only been reported in 2007 is uncertain. Be that as it may, the case raises a number of issues of interest to students of public international law.
Author Marius PieterseSource: South African Law Journal 124, pp 514 –536 (2007)More Less
This article considers the impact of justiciable, health-related constitutional rights on the manner in which South African courts respond to the 'dilemmas' occasioned by the rationing of resources available for medical treatment. In an attempt to stimulate debate over the manner and extent to which constitutional rights impact on resource-related decision-making, the article challenges both the discourse of 'inevitable tragedy' that typically permeates discussions over rationing and the concomitant assumption that courts are inappropriate for a for the deliberation of rationing decisions and processes. It then considers the extent to which the health-related rights contained in the 1996 South African Constitution may function as substantive rationing directives, before discussing institutional issues relating to the judicial review of rationing decisions and tentatively suggesting what it believes to be appropriate standards of scrutiny for such decisions. In conclusion, the article argues that, institutional tensions notwithstanding, courts may valuably function as catalysts and public arenas for broader public deliberation over vexed rationing issues.
Encroachment or accession? The importance of the extent of encroachment in light of South African constitutional principlesAuthor Anne PopeSource: South African Law Journal 124, pp 537 –556 (2007)More Less
South African courts seemingly regard every instance of building partly on a neighbour's land as an encroachment. Strangely, the principles of accession, usually dominant in determining the ownership of buildings, are never discussed in this context. The decision in Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C) provides a clear example of this mode of reasoning and its severe consequences for the encroached-upon neighbour. This approach seems to focus only on the interests of the builder and does not give due consideration to the rights of the neighbour - and arguably results in an arbitrary deprivation of the neighbour's property in terms of s 25(1) of the Constitution, particularly where the encroachment is very extensive. This article contends that, in order to comply with the constitutional obligation to develop the common law in light of the values enshrined in the Bill of Rights, the courts must adopt a nuanced approach to situations involving building on another's land, so as to give proper attention to the rights of both parties and thus to prevent the possibility of unfair deprivation. In particular, it is argued that the extent of encroachment must guide the court in its decision whether to regard the interference with possession as an encroachment rather than an instance of accession, and in determining the appropriate remedy.
Interdicts seeking to preserve constitutional rights - of losing litigants, interim interdicts pending appeal, and lessons from CanadaSource: South African Law Journal 124, pp 557 –578 (2007)More Less
The authors confront the vexed question whether there is any way for a litigant who has been unsuccessful in challenging government legislation in the court below to argue that, pending the outcome of an appeal against such decision, the impugned law (which thus far remains affirmed as constitutional by the court a quo) ought to be suspended to avoid prejudice and damage to the litigant in the interim. The authors suggest that the traditional position in South African law (which suggests that no suspension is possible) is inconsistent with the fundamental tenets of the Constitution. Their reasons for saying so are based on an analysis of South African cases, as well as on the important Canadian decision in RJR-MacDonald Inc v Canada (Attorney General)  1 SCR 311, a judgment which the authors suggest ought to be utilized by a South African court confronted with such an issue in future.
Author J.C. KnobelSource: South African Law Journal 124, pp 579 –599 (2007)More Less
A 'concrete' or 'relative' concept of negligence has been said to render legal causation superfluous. However, while a survey of South African literature and case law reveals some support for concrete negligence, it simultaneously shows vigorous support for legal causation as an independent requirement for liability in delict. This contribution argues in favour of the adoption of a consistently concrete approach to negligence. It is more sensible in application than its alternative, the abstract approach to negligence. It is furthermore the only approach that gives effect to the notion that a wrongdoer's liability must in principle not exceed the ambit of his fault. Negligence must be concretely established in respect of every harmful result of the wrongdoer's act. Foreseeability and preventability of harm in general are not sufficient. Nor is it sufficient to establish negligence only in respect of the first harmful result of a wrongful act and to deal with more remote harmful results only under the banner of legal causation. Concrete negligence is compatible with the essence of legal causation as applied by the courts. However, it is submitted that foreseeability is best employed as a criterion of negligence only. Other policy considerations should be employed to establish legal causation.
Author Lynette OlivierSource: South African Law Journal 124, pp 600 –617 (2007)More Less
From a tax perspective, it is especially important to pay attention to the way in which the sale of a business is structured. This article explores the tax implications of various arrangements that may be entered into when a business is sold. It argues that the business should not be sold for a global sum, but instead a specific value must be attached to each component. The taxes payable when immovable property is sold as part of a business are outlined. The taxation of any recoupment of expenses claimed against an asset by the seller of fixed assets is also discussed, as are the tax positions of the buyer and the seller respectively regarding the sale of trading stock. Attention is also paid to the situation where a buyer takes over outstanding book debts and some of the debts cannot be collected during the course of the next year of assessment. The contribution also deals with the difficulties associated with taking over liabilities, such as delivery of previously ordered goods, fulfilling warranties, and payment of employees' leave and bonuses. Lastly, it is shown that where a business is sold, rather than shares in a company or an interest in a close corporation, an assessed loss of the seller cannot be used by the buyer.
Author Donrich W. JordaanSource: South African Law Journal 124, pp 618 –634 (2007)More Less
The central thesis of this article is that the constitutional right to freedom of scientific research in South Africa is trampled on by traditional notions about the moral status of the pre-embryo. The discussion commences with a background sketch of how bioethics was propelled onto the public policy agenda in the late seventies, and of the groundbreaking work of the Warnock Committee in the UK. This is followed by an analysis of the relevant international legal and policy instruments, which concludes that there currently is no international legal position on the permissibility of embryo research. The focus then shifts to the South African legal position : the Medical Research Council's ethics guidelines, which complement the Human Health Act, are attacked as lacking scientific substance and as based on prejudice and superstition. The ban imposed by these guidelines on creating embryos for research purposes is exposed as informed by irrational values and as violating the right to freedom of scientific research. In response to arguments put forward by other writers, it is demonstrated that pre-embryos do not have legal personality and have no valid legal claim to human dignity. On the other hand, it is pointed out, freedom of scientific research is intimately connected to human dignity. The article concludes that the current legal position regarding pre-embryo research infringes the right to freedom of scientific research, that there is no justification for such limitation of the right, and that this situation necessitates urgent and comprehensive review.
The Practice of Integrity. Reflections on Ronald Dworkin and South African Law, François du Bois : book reviewAuthor Frank SnyckersSource: South African Law Journal 124, pp 635 –640 (2007)More Less
This selection of essays is the product of a conference attended by Ronald Dworkin at the University of Cape Town in February 2002. Dworkin's own 'Keynote address' is edited to include responses to some of the papers presented at the conference (although one such response addresses a paper not included in the selection).
Any South African student, academic or legal practitioner who knows and likes, or at least finds interesting, the work of Ronald Dworkin, will profit from reading this selection. A familiarity with the subject is not essential to enjoyment of the selection, but is certainly assumed by the authors, and helps with a frame of reference given the very different aspects of Dworkin's work the essays (or papers) discuss.
Law and Sacrifice : Towards a Post-Apartheid Theory of Law, Johan Willem Gous van der Walt : book reviewAuthor Stuart WoolmanSource: South African Law Journal 124, pp 640 –650 (2007)More Less
Johan van der Walt has bestowed upon the South African legal academy an immense gift. In Law and Sacrifice he has demonstrated that more can be expected from South African legal academics than mere restatements of the law, the all too common 'they-do, we-do' piece of comparative jurisprudence, or even the rare article that sheds new light on well-trodden terrain. He has demonstrated that we are - or some of us are - capable of erudite and extended engagement with a complex body of theory. For that gift, we owe Professor Van der Walt our gratitude.
Source: South African Law Journal 124 (2007)More Less
Administration of Estates and Drafting of Wills, L A Kernick
Inside and Outside Canadian Administrative Law : Essays in Honour of David Mullan, (Ed) Grant Huscroft and Michael Taggart
Collective Labour Law, John Grogan
The Role of National Human Rights Institutions at the International and Regional Levels : The Experience of Africa, Rachel Murray