South African Law Journal - Volume 129, Issue 2, 2012
Volume 129, Issue 2, 2012
Author Andrew HutchisonSource: South African Law Journal 129, pp 199 –209 (2012)More Less
Liability for consequential losses in the law of contract has traditionally been limited by a peculiar contractual view of legal causation, or remoteness. Hence while a particular breach of contract may be the factual ('but for') cause of a particular item of damage, that item may be deemed to be too remote to warrant a claim for compensation. The traditional test used in the remoteness inquiry was adopted by the Appellate Division in Lavery & Co Ltd v Jungheinrich 1931 AD 156 (see further the less expansive adoption of a contemplation principle with regard to damages in Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 at 22). In the main judgment given in Lavery, Curlewis JA imported the English law approach to remoteness, the so-called 'rule in Hadley v Baxendale' ((1854) 9 Exch 341. This rule was adopted in Lavery supra by Curlewis JA at 162-4 and by Wessels JA (for the majority) at 174).
'What does changing the world entail?' Law, critique and legal education in the time of post-apartheid : notesSource: South African Law Journal 129, pp 209 –219 (2012)More Less
This note is a joint venture between a student in his third year of studies at the University of Pretoria Faculty of Law and someone who has been teaching law in that Law Faculty since 1999. Several conversations about the need for critical thinking in law schools and our shared experience of the absence of it resulted in this note which is offered here as a tentative contemplation.
The general aim is to reflect on critical thinking in legal education. Of course the issue of critical thinking, critical theory and critique and how to relate this to law, legal education and legal practice is complex and multi-layered. Many questions arise: How does one encourage students to think in a critical manner? How does one teach them/illustrate to them what critical thinking entails? But beyond that, what does critical thinking about law or a critical approach to law mean? Of particular concern to us is what role critical theory plays in developing such a critical approach to law, and in teaching students a critical approach to law. Some might argue that even with all these questions we have missed the most crucial starting point: why is it necessary to include critical thinking in legal education in the first place?
Our argument unfolds as follows: with reference to the post-apartheid context and in light of the specific challenges faced by South African society in the 'new' legal and political order, we start by putting forward a tentative argument for the need for critical engagements with law. We then turn to two of the dominant critical legal theoretical traditions that have influenced critical approaches to law in South Africa during and in the aftermath of apartheid. Finally, we rely on some philosophical/theoretical reflections in support of thinking and theoretical engagement.
Source: South African Law Journal 129, pp 219 –235 (2012)More Less
The purpose of this note is to highlight an interesting point raised in the recent decision in Harvey v Umhlatuze Municipality & others 2011 (1) SA 601 (KZP) (Harvey). In Harvey, the applicant's property was expropriated for a valid public purpose, namely creating a recreational area for general use by the public. However, once the expropriation was completed, it appeared that the original public purpose could not be realised. As a result, the expropriating authority (the municipality) decided to change the intended use of the property. The changed purpose would involve selling the land on tender to a private developer. The applicant reclaimed his expropriated property on the basis that the public purpose for which the property was originally expropriated was abandoned. To substantiate his claim the applicant relied on s 25 of the Constitution of the Republic of South Africa, 1996 and on authority in German law.
The different permutations of CSARS v Brummeria : was it something other than an 'interest-free' loan? : notesAuthor Afton TitusSource: South African Law Journal 129, pp 236 –247 (2012)More Less
In Commissioner, South African Revenue Service v Brummeria Renaissance (Pty) Ltd 2007 (6) SA 601 (SCA) (Brummeria) the court held that the interest-free component of the loan between the parties was an amount which had accrued to the taxpayer, Brummeria Renaissance (Pty) Ltd (hereinafter referred to as Brummeria). Moreover, the court found that this amount was subject to tax. Brummeria has been the subject of some debate.
Through the debate, two distinct views on Brummeria have emerged. These views have in common that the loan in Brummeria was not interest-free at all. Instead, the first argument is that the agreement was a variation of a mortgage agreement called a pactum antichresis, in terms of which the creditor retained possession of the mortgaged property and interest was received by that creditor in the form of the taking of the fruits of the property (Arthur Schoeman 'Brummeria: much ado about nothing' (2008) 57 The Taxpayer 39). The alternative hypothesis is that the 'interest-free' component of the loan was in reality a concession on the part of the retiree in the nature of rent under a lease agreement (Steven Jones 'Brummeria: much ado about nothing' (2011) 307 Tax Breaks 1).
Author Bob HeppleSource: South African Law Journal 129, pp 248 –273 (2012)More Less
Two models of democratic participation in the enforcement of socio-economic rights and the right to equality have emerged in South Africa. The first is that of 'meaningful engagement', which has been developed by the Constitutional Court in a series of cases mainly concerning housing evictions. The second model is the statutory duty of employers under the Employment Equity Act 55 of 1998 to take reasonable steps to 'consult and reach agreement' with trade union representatives on employment equity plans. This proceduralisation of rights is due to several causes: the institutional incompetence of courts to determine the substance of indeterminate socio-economic rights; the conflict in a market economy with the protection of private property; and the limits of law as an instrument of social change. The article examines the emerging principles of court-directed 'meaningful engagement' and assesses their strengths and weaknesses. The failure of the 'command and control' model of administrative enforcement under the Employment Equity Act is discussed in the light of the modern theory and practice of 'reflexive regulation'. The article concludes with a comparison of the two models and an assessment of their implications for transformative obligations, deliberative democracy and the regulatory state.
Feasibility constraints and the South African Bill of Rights : fulfilling the Constitution's promise in conditions of scarce resourcesAuthor Nick FerreiraSource: South African Law Journal 129, pp 274 –302 (2012)More Less
South African organs of state often respond to litigation by pleading infeasibility. A plea of infeasibility is the claim that the relief sought is either impossible to provide or too costly. Despite the increasing frequency of such pleas, our courts have not yet developed a principled basis for addressing the problem of infeasibility. The first part of this article analyses the most important judgments addressing the question of infeasibility. It draws attention to nine principles that have been affirmed by the South African courts. These principles provide a jurisprudential framework for approaching the problem of infeasibility. The second part of the article argues that that there is increasing reason for courts to interrogate pleas of infeasibility and resource allocations by organs of state rigorously, and in appropriate cases, to reject such pleas and consider setting aside budgetary allocations. In the light of lavish expenditure of public resources on luxuries for state officials and underspending of budgetary allocations, it is essential for courts closely to scrutinise claims of infeasibility by the state.
Author Patrick LentaSource: South African Law Journal 129, pp 303 –329 (2012)More Less
This article enquires whether religious claimants are ever entitled as a matter of right to exemptions from laws of general application. The author considers various responses to the objection that religious exemptions are unfair and shows that arguments purporting to demonstrate that religion is distinctive in a way that marks it as meriting special constitutional solicitude in the form of exemptions fail. This essay then surveys and assesses the plausibility of four prominent kinds of argument in support of recognising a right to religious exemptions, with reference to arguments offered by the Constitutional Court in putative justification of this right. The four kinds of arguments are as follows: arguments grounded on respect for conscience (understood as perceived moral duties); arguments relating to equality of opportunity; egalitarian arguments; and arguments grounded on respect for conscience (understood as the faculty with which individuals search for ultimate meaning).
Source: South African Law Journal 129, pp 330 –374 (2012)More Less
This article presents a theoretical and comparative analysis of the influence of human rights on the private common law. First, it analyses the different ways in which human rights could, in principle, affect the adjudication of private law claims, distinguishing six forms of influence, giving examples. It then contrasts South African law against English law, explaining that, while we require constitutional rights to influence judicial development of the common law, comparable influence is merely permitted in England under the Human Rights Act. The argument is then made that, from a theoretical perspective, the content of such influence is highly contingent, turning on several features of a legal and political system, and so could vary among systems and within one system over time. Nevertheless, permitting or obliging this influence is of some value, because it has the potential to endow the normative judgements underpinning the common law's development by judges with a measure of legitimacy that they might otherwise lack. Finally, significant differences in South African and English constitutional arrangements, human-rights provisions, and socio-economic and political contexts suggest that the influence of human rights will be greater in South Africa. The clearer understanding yielded by this article's theoretical and comparative analysis places us in a better position to engage in more concrete debates about how particular constitutional rights and values should influence particular areas of private law in South Africa in the future.
Author Anneliese RoosSource: South African Law Journal 129, pp 375 –402 (2012)More Less
Technological developments have always influenced the development of the right to privacy. In the late nineteenth century, the invention of hand-held cameras in conjunction with the growth in newspaper circulation figures and the development of sensationalist journalism resulted in the development of the right to privacy as a legal concept in the United States of America. In time, the right to privacy was also recognised in other countries, including South Africa. Further technological developments, such as the invention of the computer and the Internet, influenced the nature and scope of the right to privacy. This article explores the impact of a recent technological development, namely social networking services (SNSs), on the right to privacy. The aim of the article is to determine whether South African privacy law meets the challenges posed by this new technology, or whether it needs to be developed in some way. The article describes and analyses a particular SNS, namely Facebook, and identifies the potential privacy risks inherent in the use of Facebook. The right to privacy is also explored and proposals are profferred about how privacy law will need to develop in order to meet the challenges posed by SNSs.
Author Thabo LegwailaSource: South African Law Journal 129, pp 403 –406 (2012)More Less
The first edition of this book was published in 2003. At the time it was lauded as a single credible reference to all aspects of international tax laws relevant to the South African tax system. Since 2003 this publication has undergone five updates. These updates were necessitated by eight legislative amendments to the Income Tax Act 58 of 1963 (the Act) that affected various aspects of international tax, and two updates by the Organisation for Economic Co-operation and Development (OECD) to the Model Tax Treaty, which provides a guideline to the design and interpretation of international tax treaties.