South African Law Journal - Volume 124, Issue 4, 2007
Volume 124, Issue 4, 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
Overseas law list : UK - London
Author C.T. HowieSource: South African Law Journal 124, pp 657 –662 (2007)More Less
Author Gustav HoexterSource: South African Law Journal 124, pp 663 –666 (2007)More Less
In 1995 a Festschrift entitled The Quest for Justice was published in honour of Michael McGregor ('Mick') Corbett. It was edited by the indefatigable Professor Emeritus Ellison Kahn. He also wrote the first two chapters, which are splendid biographies, the products of painstaking research, devoted respectively to Mick and his maternal grandfather, Mr Justice Alexander John McGregor. From these chapters it emerges how thickly Mick's lineage is encrusted with the history of South Africa.
Author Jeremy GauntlettSource: South African Law Journal 124, pp 670 –676 (2007)More Less
Author C.R. SnymanSource: South African Law Journal 124, pp 677 –687 (2007)More Less
In the recent decision of the Constitutional Court in Masiya v Director of Public Prosecutions, Pretoria & another (Centre for Applied Legal Studies & another, Amici Curiae) 2007 (5) SA 30 (CC); 2007 (2) SACR 435 (hereafter Masiya) the court extended the scope of the common-law crime of rape to include, in addition to penile non-consensual penetration of the complainant's vagina, such penetration of her anus. The court held (para 18) that this was necessary in order duly to recognize a woman's right to dignity (s 10 of the Constitution of the Republic of South Africa, 1996), equality (s 9(1)) and freedom and security of her person (s 12).
Author Michael Cameron Wood-BodleySource: South African Law Journal 124, pp 687 –702 (2007)More Less
Minister of Education & another v Syfrets Trust Ltd NO & another 2006 (4) SA 205 (C) is the first reported decision in which the age-old principle of freedom of testation has been challenged by relying on the protected freedoms and rights in the South African Bill of Rights. In what follows I examine and evaluate the judgment and consider some of the implications for trustees whose trusts include possibly discriminatory provisions.
Author Wim AlbertsSource: South African Law Journal 124, pp 702 –709 (2007)More Less
In the case of Die Bergkelder Bpk v Vredendal Koöp Wynmakery 2006 (4) SA 275 (SCA) the Supreme Court of Appeal (SCA) questioned, by way of an obiter dictum, whether non-trade mark use can amount to infringement (for a discussion of this decision, see Wim Alberts 'Origin of the Species : Trade mark infringement after the Bergkelder case' (2007) 124 SALJ 237). In Verimark (Pty) Ltd v BMW AG  SCA 53 (RSA) (hereafter Verimark) the SCA, per Harms ADP, has now provided the answer. The facts of the case were that Verimark produced television advertisements for its car care products, showing them to be effective even against fire, and in the process used BMW vehicles to illustrate the product's qualities in that regard. The BMW mark was also used on the products themselves, in the form of a photo of the vehicle on the packaging. BMW instituted trade mark infringement proceedings on two bases.
Author Richard JoosteSource: South African Law Journal 124, pp 710 –733 (2007)More Less
The Companies Amendment Act 37 of 1999 brought about a significant mind-shift in relation to the concept of the maintenance of capital of a company. Prior to this Act, in an attempt to protect shareholders and minority shareholders, an extremely tight rein was kept on the ability of a company to part with its capital other than in the course of its business operations. Before the Amendment Act came into force this meant that, generally, a company could not acquire its own shares, a subsidiary could not acquire shares in its holding company, and dividends could not be paid out of capital. As a result of the 1999 Amendment Act all these transactions are now allowed subject to the basic requirement that the solvency and liability of the company must not be affected (see ss 85, 89 and 90 of the Companies Act 61 of 1973).
Author David DyzenhausSource: South African Law Journal 124, pp 734 –761 (2007)More Less
The 1996 Constitution lists among the founding values of the Republic the 'supremacy of the constitution and the rule of law' and, while it entrenches standard liberal rights and freedoms, it also goes well beyond this. It might thus be thought that the topic of the rule of law need not occupy the attention of South African lawyers, at least in contrast to the apartheid era, where the few judges and lawyers minded to uphold the rule of law had to rely on the fragile common-law constitutional principle of legality. However, the rule of law remains a contentious topic in South African jurisprudence, in part because it forms a focus for the politics of transformation and race. This essay examines the contest, largely through a focus on the litigation in New Clicks. It argues that the prospects for the rule of law in South Africa cannot properly be evaluated without attention to the different pasts of the rule of law during apartheid.
Author Stu WoolmanSource: South African Law Journal 124, pp 762 –794 (2007)More Less
The author contends that the Constitutional Court's predilection for undertaking fundamental rights analysis in terms of the vague 'values' found in s 39(2) of the Constitution has had the deleterious consequence of denuding many of the specific substantive provisions of the Bill of Rights of their 'expected' content. The court's long-standing emphasis on minimalism does not only undermine the Bill of Rights : an approach to constitutional adjudication that makes it difficult for other judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied in any future matter, constitutes a paradigmatic violation of the rule of law. Such an approach to the interpretation of the constitutional text - and to the rule of law - cannot possibly be what the drafters of the Constitution intended.
Same-sex marriage, civil unions and domestic partnerships in South Africa : critical reflections on an ongoing sagaSource: South African Law Journal 124, pp 795 –826 (2007)More Less
This article reflects critically on the various stages in the legal recognition of same-sex marriage in South Africa. The authors devote particular attention to a connection between the apartheid order's use of the 'separate but equal' slogan and the operationalization of this slogan (and its political history) by activists to counter the legislative attempt to enact a second-class civil partnership regime for same-sex life partnerships in South Africa. The authors argue that the Constitutional Court's decision in the Fourie matter left Parliament with a carefully delineated mandate fully to recognize same-sex life partnerships by way of marriage. They critically evaluate the proceedings of the Home Affairs portfolio committee during the public participation hearings. In conclusion the authors consider the legal consequences (and paradoxes) of the enactment of the Civil Union Act 17 of 2006, which they read as a concession to colonialism in the broadest sense of that word.
The requirement of excusable mistake in the context of the condictio indebiti : Scottish and South African law comparedAuthor Helen ScottSource: South African Law Journal 124, pp 827 –866 (2007)More Less
Both Scotland and South Africa recognize a requirement of excusable mistake in the context of the condictio indebiti, the action for the recovery of mistaken payments. Since the law of unjustified enrichment in both jurisdictions is essentially civilian in origin, this resemblance is unsurprising. However, the requirement has in fact evolved very differently in each of these jurisdictions. While Scottish law demonstrates the relatively orderly and linear development of the excusability requirement from its origins in Roman law, the influence of the ius commune remedy of restitutio in integrum on the South African condictio indebiti has been a decisive factor in the progressive strengthening of this requirement in South African law. Drawing on Scottish and South African case law, this article identifies three distinct ways in which the concept of 'excusable mistake' can be understood, dubbed careless mistake, blameless mistake and justifiable mistake. Each of these versions of the requirement is evaluated, first, according to whether it is compatible with the principles underlying the condictio indebiti and, secondly, according to whether it is supported by any compelling argument of policy or equity. It is concluded that whereas the version of the requirement dominant in modern Scottish law is defensible as a matter of principle, any role which it might play as a mechanism for protecting the security of receipts is largely obviated by the defence of change of position or loss of enrichment. The second and third versions of the requirement, however, are found to be wholly incompatible with the principles underlying the condictio: whereas the second rests on an inappropriate analogy between mistake as a reason for restitution and mistake as an excuse for wrongful conduct, the third rests on a conception of the condictio indebiti - as a form of equitable intervention based on of the unconscionable conduct of the recipient - which is entirely alien to the principled basis of the action.
Source: South African Law Journal 124, pp 867 –881 (2007)More Less
Illegible prescriptions issued by medical practitioners are an age-old, worldwide problem. The prescription is both a professional and a legal instrument authorizing the pharmacist or nurse to compound, dispense or administer a therapeutic agent. The precision and legibility of the prescription determine how effectively the prescriber's instructions will be carried out. Research indicates that illegible prescriptions constitute one of the main causes of medication errors. This contribution examines the problem in comparative perspective, and examples of bad handwriting leading to serious consequences and even death are discussed. The article suggests that the easy solution of holding liable only the last practitioner in the causal chain is not appropriate, and that the various role-players should rather be regarded as joint wrongdoers, with the court taking into account whether gross negligence or even dolus eventualis existed on the part of the prescriber. It is clear that the standard of prescription-writing ought to be improved and the law should ensure compliance with and the enforcement of this duty.
Poverty and Fundamental Rights : The Justification and Enforcement of Socio-Economic Rights, David Bilchitz : book reviewAuthor Sandra LiebenbergSource: South African Law Journal 124, pp 882 –889 (2007)More Less
This elegantly structured and lucidly written book combines rigorous philosophical research and reasoning with a thorough exploration of the practical implications for South Africa's jurisprudence on socio-economic rights.
Its major contribution is that it compels engagement with the ethical justifications for socio-economic rights. Too much of the burgeoning legal scholarship on socio-economic rights is focused on an analysis and critique of the relevant jurisprudence without seeking to develop a theoretical understanding of the values and purposes underpinning the rights. This is particularly unfortunate given that the Constitution (Constitution of the Republic of South Africa, 1996) expressly endorses a value-based approachto the interpretation of the Bill of Rights (s 39(1)(a)). This book offers a number of important theoretical and practical insights to the challenges posed by the judicial enforcement of socio-economic rights, both in South Africa and in other jurisdictions.
In this review I will briefly sketch the contours of the argument developed by Bilchitz's book before proceeding to consider certain questions and critiques which his argument raises.
Health & Democracy : A Guide to Human Rights, Health Law and Policy in Post-apartheid South Africa, Adila Hassim, Mark Heywood, Jonathan Berger (Eds.) : book reviewAuthor Charles NgwenaSource: South African Law Journal 124, pp 889 –896 (2007)More Less
The cardinal importance of health to our existence and quality of life is self-evident. Health is what gives sustenance to life. It is no exaggeration to say that the rights that we so much cherish as part of democratic citizenship, and which are inscribed in United Nations human rights instruments, regional instruments and in so many domestic constitutions, would be meaningless if we were constantly overburdened with ill health and were unable to count on our governments to assume some of the responsibility for providing health care. Equally, we count on our governments to assume their fair share of responsibility in taking positive steps to secure an environment in which we can live healthily. In this sense, realization of health is an integral part of democratic citizenship. If ever there was any doubt about the pride of place that health occupies in the democratic universe, the relentless ravages of HIV / AIDS in sub-Saharan Africa and elsewhere in the last two decades, and the attendant misery they have visited upon individuals and families, especially, are sufficient testimony. They are poignant reminders that democracy without health is an incomplete promise.
Author Angus StewartSource: South African Law Journal 124, pp 896 –899 (2007)More Less
Gys Hofmeyr's book is a welcome, timely and important addition to the reference texts available to those practising and teaching, and thinking about, admiralty jurisdiction in South Africa. There are four texts to which such practitioners and scholars might turn since the new era of admiralty jurisdiction dawned with the commencement of the Admiralty Jurisdiction Regulation Act 105 of 1983 on 1 November 1983.
Author David BilchitzSource: South African Law Journal 124, pp 900 –908 (2007)More Less
The arrival on our shelves of a lucid, thoughtful introduction to jurisprudence provides an important opportunity for some reflection on the teaching of the subject in South African universities. As a teacher of Jurisprudence, I am privy to a number of related objections often expressed by students concerning the subject: some charge that the subject has no practical benefit for those who wish to be practitioners, the vast majority of the students we teach. Secondly, others contend it is too abstract and conceptual and removed from day-to-day policy issues and concerns of the law. Finally, there are those who moan that it is too difficult. With the constraints of the four-year LLB, should we listen to these voices and discard jurisprudence as a compulsory LLB subject? If we decide to retain it, how should it be taught?