South African Law Journal - Volume 129, Issue 3, 2012
Volume 129, Issue 3, 2012
Author Geo QuinotSource: South African Law Journal 129, pp 411 –433 (2012)More Less
This article argues that significantly increased attention to theory (or theories) of legal education is not only imperative in order to improve the quality of legal education in South Africa, but is a crucial ingredient of constitutional transformation grounded in law in this country. The article puts forward a theoretical framework, called 'transformative legal education', in terms of which law could be taught at South African universities. In developing this framework the article draws upon insights from three basic dimensions of legal education, namely (1) the subject matter or discipline being taught (here law), (2) the teacher or the act of teaching, and (3) the student or learner. It is argued that these insights call for a fundamental shift from formalistic legal reasoning to substantive reasoning under a transformative constitution, for a shift towards a constructivist student-centred teaching model and for the recognition of a paradigm shift in knowledge from linear to non-linear, relational or complex. The article concludes by arguing that these different insights force law teachers to reassess critically their approach to legal education, and by explaining how these insights can contribute to a meaningful framework within which law can be taught responsibly in contemporary South Africa.
Language, power and the margin : Eliot's philosophy of language, Wittgenstein on following a rule, and statutory construction in Mankayi v Anglogold Ashanti LtdAuthor Stu WoolmanSource: South African Law Journal 129, pp 434 –460 (2012)More Less
The broad purpose of this article is to draw both the Constitutional Court and its commentators away from 'the margin' of beliefs and back toward the 99 per cent of truth propositions that we all share. Too often, both the court and its commentators write as if 'everything is up for grabs'. The article's specific purpose is to show that such a view of language is incoherent and has deleterious consequences for our jurisprudence. To that end, this article takes the recent Constitutional Court judgment of Mankayi as a paradigmatic example of what happens when eleven brethren get caught up in the excitement of making a splash and allow language to go on holiday. Their manifold errors begin with a misreading of a few lines from T S Eliot's Burnt Norton. The article sets about correcting the court's misconstrual of Eliot's words and the philosophy of language that underwrites them. It then identities the flaws in the 'community view' of language adopted by the court that leads to the unwarranted rule-scepticism on display in Mankayi. Following this correction of course, the article tackles vexed questions regarding the precision of words by explicating Wittgenstein's views on what it means 'to follow a rule'. The article then engages the linguistic, and consequently legal, errors that occur in Mankayi. The Mankayi court never denies the force of the Mankayi Supreme Court of Appeal's statutory analysis. It simply prefers its own reading. By adopting the rule-sceptic's view of language as a basis for reversing the SCA's judgment, the court radically undercuts its own authority. Finally, the Mankayi court never undertakes meaningful constitutional analysis. After acknowledging a number of compelling pragmatic explanations for the Constitutional Court's avoidance of constitutional analysis, the article spins out the reasoning that underlies Justice Froneman's subtle concurrence in order to show that (a) the Mankayi court might have arrived at the desired outcome without making unnecessary philosophical errors along the way; and (b) the court's political analysis in Mankayi easily fits within its extant body Bill of Rights jurisprudence.
Are South African administrative law procedures adequate for the evaluation of issues resting on scientific analyses?Source: South African Law Journal 129, pp 461 –477 (2012)More Less
This article traces, from a critical perspective, the way in which the various courts that were seized of the matter reviewed the scientific approaches to the allocation of fishing quotas for sardine and anchovy in Foodcorp (Pty) Ltd v Deputy Director General, Department of Environmental Affairs and Tourism: Branch Marine and Coastal Management & others. The article explains the scientific basis that underpinned the allocations (Total Allowable Catches) made by the Department of Environmental Affairs and Tourism in terms of the Marine Living Resources Act 18 of 1998 in the early 2000s. It then considers the approach adopted by both the Cape High Court and the Supreme Court of Appeal to these allocations. In all except the first of these cases, the courts found the allocations to have been irrational in terms of the requirements of administrative law. The authors argue that this occurred because of a failure on the part of the respective courts to understand the science behind the quota allocations. The authors argue that there is a need for courts to be more open to seeking guidance from experts in the scientific community to ensure that these issues are properly understood in the future.
'Can I have two medical aids at the same time? No, because the government says so' : shedding some light on the prohibition of concurrent membership of more than one medical schemeAuthor K.D. SunkelSource: South African Law Journal 129, pp 478 –503 (2012)More Less
In the insurance industry, an insured may have as many health or accident and health policies as is deemed fit to provide full indemnity. Double insurance in this manner is permissible due to the principle of indemnity, whereby an insured is only indemnified to the extent of his or her insurable interest which represents the amount of the loss suffered. In addition, the principle of contribution operates by requiring an insurer to pay only its rateable portion of the loss suffered by the insured. The principles of indemnity and contribution prevent the insured from fraudulently generating a profit from being doubly insured. Section 28 of the Medical Schemes Act 131 of 1998 prohibits a person from being a member of more than one medical scheme at the same time, even though there may be good reasons for this, which may range from necessity to convenience. The nature and form of medical insurance is considered in an attempt to uncover the reason for the prohibition. This article endeavours to show that medical insurance as provided by a medical scheme is sufficiently akin to a health or accident and health policy, as provided by a long or short term insurer, to allow for comparison and to permit concurrent membership of more than one medical scheme. In conclusion, no clear reason for the prohibition in s 28 can be found and possible policy considerations are doubtful at best.
Author Emma FergusSource: South African Law Journal 129, pp 504 –526 (2012)More Less
The grounds for review of CCMA arbitration awards were intentionally cast in narrow terms. These grounds have since been extended to incorporate the constitutional standard of reasonableness. Consistent with the limited nature of s 145 of the Labour Relations Act 66 of 1995, the reasonableness standard is a deferential one, precluding intrusive scrutiny; it is notably distinct from correctness review. Whereas substantive and procedural defects are generally reviewable for want of reasonableness, true questions of jurisdiction remain subject to the standard of correctness. As a result, by framing defects as questions of jurisdiction, the correctness standard may be applied, and reasonableness review avoided. The question whether a dismissal has occurred arises frequently during CCMA unfair dismissal proceedings and has been defined by the Labour Appeal Court as jurisdictional in nature. This article challenges the legitimacy of the Labour Appeal Court's approach, arguing that it is unconvincing for three reasons. First, it is premised upon a misunderstanding of the meaning of jurisdiction. Secondly, it relies on an incorrect interpretation of the Labour Relations Act. Thirdly, it has the potential to scupper the expeditiousness with which labour disputes were intended to be resolved. Given these difficulties, the author submits that the Labour Appeal Court's definition of dismissal determinations as jurisdictional issues requires urgent revision.
Author Helena H. StoopSource: South African Law Journal 129, pp 527 –553 (2012)More Less
A derivative action is one brought by an individual on a company's behalf. It aims to enforce the rights of the company and as such is an exception to the common law rule which dictates that the company is the proper plaintiff in any proceedings affecting it. Section 165 of the Companies Act 71 of 2008 abolishes the common law derivative action and introduces a new statutory version. The latest statutory derivative action introduces various novel concepts to South African company law and draws on the company laws of other jurisdictions, such as Australia and America, in order to facilitate the right of stakeholders to commence or pursue legal action in the name of the company. This article highlights these new concepts and considers how best to implement and interpret them by analysing the approaches taken by foreign courts in dealing with similar provisions. The article also debates the merits and potential shortcomings of the statutory derivative action, paying particular attention, amongst other things, to the possible impact that the newly introduced 'business judgement rule' might have on its application.
Source: South African Law Journal 129, pp 554 –590 (2012)More Less
This article argues that the s 29(1)(a) right to a basic education affords an unqualified right to adequate school facilities. This argument builds on the Constitutional Court's recent judgment in Governing Body of the Juma Musjid Primary School & others v Essay NO & others, which affirms that the right to a basic education is an unqualified right, distinct from the textually qualified socio-economic rights in the South African Constitution, and strongly suggests that 'a basic education' is a substantive standard of education. Drawing on recent litigation, we proceed to argue that must be understood to include a right to adequate school facilities: facilities that are conducive to effective teaching and learning and do not threaten the health, safety and dignity of learners and teachers. We then explore some of the possibilities and challenges involved in the judicial enforcement of this unqualified right to adequate facilities. We argue that the unqualified right affords litigants a number of advantages, and the challenges it presents can be overcome without stripping the right of its content or force.
Law, Order and Liberty: Essays in Honour of Tony Mathews, Marita Carnelley & Shannon Hoctor (Eds.) : book reviewSource: South African Law Journal 129, pp 591 –600 (2012)More Less
The publication of a tribute to the late Professor Tony Mathews, in the form of a collection of essays written by some of South Africa's most distinguished jurists, is overdue. The editors and publishers of, and the contributors to, this collection must therefore be commended.