South African Law Journal - Volume 130, Issue 4, 2013
Volume 130, Issue 4, 2013
Author Alistair PriceSource: South African Law Journal 130, pp 649 –661 (2013)More Less
The judgment of the Constitutional Court in Democratic Alliance v President of the Republic of South Africa & others 2013 (1) SA 248 (CC) might bear some political significance given the identity of the litigants. Yet the decision is of wider legal importance. For in deciding the case, the court sought to clarify and further develop a foundational constitutional principle whose scope of application extends far beyond the context of this particular dispute. The principle in question is the baseline or safety-net constitutional requirement of rationality, according to which every exercise of public power must be rationally related to a legitimate government purpose. It is now accepted that rationality is required by the principle of legality, which in turn is a doctrine derived from of the constitutional value of the rule of law (see Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) paras 56-8 and Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of South Africa 2000 (2) SA 674 (CC) para 85).
The role of international law in constitutional adjudication : Glenister v President of the Republic of South Africa : notesAuthor Juha TuovinenSource: South African Law Journal 130, pp 661 –672 (2013)More Less
The judgment of the Constitutional Court in Glenister v President of the Republic of South Africa & others 2011 (3) SA 347 (CC) invites a fresh examination of the role played by international law in Bill-of-Rights cases. The case inter alia brings to the fore the role played in constitutional adjudication by s 39(1)(b) of the Constitution of the Republic of South Africa, 1996, and the meaning of the obligation in that section to 'consider international law' when interpreting the Bill of Rights. After a brief exposition of the facts of the case, this note will critically engage with the way in which the judgments of both the majority and the minority of the court conceived of the relationship between international law and the constitutional scheme. Based on this critical engagement, this note will offer a suggestion about the proper relationship between the two systems of law that resolves some of the basic conceptual problems that underlie both judgments.
The Constitutional Court consolidates its child-focused jurisprudence : the case of C v Department of Health and Social Development, Gauteng : notesAuthor Meda CouzensSource: South African Law Journal 130, pp 672 –688 (2013)More Less
The decision in C & others v Department of Health and Social Development, Gauteng & others 2012 (2) SA 208 (CC) is significant because of the child-focused approach adopted by the majority. This approach deviates from the majority decision in Le Roux & others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC), which ignored 'the inescapable and overarching fact' of that case: that '[it was] a case concerning children' (ibid para 207, per Skweyiya J). The child-centred approach of Yacoob and Skweyiya JJ, dissenting judges in Le Roux, was eventually to win the day in C v Department of Health and Social Development. In C, the majority of the Constitutional Court acknowledged the impact that the vulnerability of children (and their parents) can have on the exercising of their rights, and assessed the constitutional validity of the challenged statutory provisions from the perspective of their effectiveness in protecting the constitutional rights of children and their carers. Although legitimate criticism has been levelled at the manner in which the court applies the best interests of the child as an independent right (Elsje Bonthuys 'The best interests of children in the South African Constitution' (2006) 20 International Journal of Law, Policy and the Family 23), the majority judgment in this case shows the potential benefits arising from such approach, and contributes to clarifying the emerging content of this right. Finally, through their consideration of the right to parental care (s 28(1)(b) of the Constitution of the Republic of South Africa, 1996) and its relationship with other constitutional rights of children, both the separate concurring judgment and the dissenting judgment lay the foundation for further jurisprudential development of the right to parental care, especially with regard to the quality of parental care required in order for such care to become constitutionally protected.
'Whatever I acquire will be mine and mine alone' : marital agreements not to share in constitutional South Africa : notesAuthor Amanda BarrattSource: South African Law Journal 130, pp 688 –704 (2013)More Less
South African matrimonial property law recognises and permits enforcement of 'no-sharing' antenuptial contracts. Spouses can validly conclude antenuptial contracts which exclude the default in-community-of-property matrimonial property regime and which also exclude operation of the statutory accrual system (Matrimonial Property Act 88 of 1984, s 2).
Misrepresentation in consumer insurance : the United Kingdom legislature opts for a 'reasonable consumer' standard : notesSource: South African Law Journal 130, pp 705 –721 (2013)More Less
The development of a parallel branch of contract law dealing specifically with consumers has achieved further impetus in the United Kingdom with the passing of the Consumer Insurance (Disclosure and Representations) Act, 2012 ('the UK Consumer Insurance Act'). This important legislative development brings a change to the accepted standard of care in non-disclosure/misrepresentation cases involving insurance claims. The former standard of the 'reasonable insurer', used for determining the materiality of a misrepresentation, has been lowered in this context to that of a 'reasonable consumer'. In South Africa, the law of insurance has not yet been brought into line with the Consumer Protection Act 68 of 2008 ('the CPA'). The question therefore needs to be asked whether the recent development in the UK jurisdiction is not a desirable change for our legislature to consider.
Author A.J. Van Der WaltSource: South African Law Journal 130, pp 722 –756 (2013)More Less
This article explores the implications of the Constitution for the development of the common law of servitude. Following from an analysis of two recent servitude cases in which the courts might have developed the law of servitude for doctrinal or policy reasons (the court controversially decided in both cases that development was unnecessary because the desired result could be reached on the basis of the law as it stands), it will be argued that the question whether the common law should apply to a particular dispute at all and whether it should be developed (because its outcome is for some reason unacceptable) are constitutional issues and not purely common-law ones. Both questions have to be answered in view of fundamental constitutional principles such as the supremacy of the Constitution, the single-system-of-law principle enunciated by the Constitutional Court, and the subsidiarity principles developed by that court. Having argued that this holds even in instances where no legislation applies to the dispute, the article distinguishes between situations where the decision to develop the common law follows from direct constitutional obligations and situations where that decision is taken purely on policy or doctrinal grounds. The final section of the article identifies section 25 issues possibly resulting from a decision to develop the common law of servitude and indicates how those issues can be approached in view of the FNB methodology for the analysis of section 25 disputes.
To override, and when? A comparative evaluation of the doctrine of mandatory rules in South African private international lawAuthor Jason MitchellSource: South African Law Journal 130, pp 757 –777 (2013)More Less
The focus of this article is on the relationship between the mandatory rules of the forumand an express choice of (foreign) law in a contract. The approach suggested by this articlewould be to cater for mandatory rules at the exclusionary stage of the conflict process. This would require the forum notionally to accept the choice of foreign law for the purposes of the proper law inquiry. The effect of application thereof on the forum's public policy, given the circumstances of the case, would then be tested. In order to justify an override of party autonomy, peremptory municipal (or domestic) laws of the forum should only be applied to override an express choice of law when application of the foreign law would demonstrably prejudice a fundamental tenet of the forum's public policy. This inquiry would involve consideration of factors such as the extent to which the foreign law does, or does not, give effect to the same broad policy considerations as the domestic statute in question, the proximity of the contractual relationship to the forum, and any other relevant considerations unique to the parties.
Author Maleka Femida CassimSource: South African Law Journal 130, pp 778 –809 (2013)More Less
The judicial discretion to grant leave for a derivative action, in terms of s 165(5)(b) of the Companies Act 71 of 2008, involves a tension between two equally important policy objectives. On the one hand is the benefit of a right of redress, where a stakeholder may seek redress on the company's behalf; on the other hand is the indisputable need to protect companies and their directors from nuisance actions by stakeholders. The guiding criteria for the granting of leave attempt to draw a proper balance between these two objectives. They serve as checks and balances to curtail the abuse of the derivative action, by weeding out claims that are frivolous, vexatious or meritless. Much depends on the application by the courts of the open-textured criteria for leave to institute derivative proceedings. The legislature has left it to the courts to flesh out the interpretation, application and contours of the guiding criteria and, thereby, to determine effectively the success or failure of this remedy in South African law. This article focuses on two leading criteria, namely that the proposed action must involve the 'trial of a serious question of material consequence to the company', and that it must be 'in the best interests of the company'. Guidelines are suggested for the proper judicial approach to these preconditions for a derivative action, based on the jurisprudence developed in Australia, Canada, New Zealand and the United Kingdom, all of which have influenced the relevant provisions of the Companies Act.
The burgeoning constitutional requirement of rationality and the separation of powers : has rationality review gone too far?Author Lauren KohnSource: South African Law Journal 130, pp 810 –836 (2013)More Less
This article analyses three recent judgments of our apex courts. Collectively, they illustrate a maximising of the 'minimum threshold requirement' of rationality through the seemingly inexhaustible principle of legality. The question sought to be addressed is whether the courts are going too far in extending this baseline requirement to cover procedural fairness, reason-giving and something akin to proportionality, in the context of non-administrative action and in the absence of any meaningful engagement with the doctrine of separation of powers. In addressing this question, the article examines the tenets of the doctrine of separation of powers, and juxtaposes these theoretical tenets with the usefulness of the doctrine in practice. The role of the judiciary, notably through judicial review, is highlighted as the crucial 'check' against abuses of state power which gives this doctrine its lasting relevance. In examining how the courts ought to strike the 'delicate balance' in exercising their power, the article explores the paradoxes inherent in judicial review and its defensible limits. Against this backdrop, the rationality requirement is elucidated and compared with the more searching requirement of reasonableness. Finally, the analysis of the case law reveals that although the conclusions reached in the judgments are to be hailed, their failure to engage meaningfully with the prescripts of the separation of powers in expanding the frontiers of rationality review is indicative of a worrying trend that may ultimately compromise our judiciary's crucial institutional integrity.
Author Henk BothaSource: South African Law Journal 130, pp 837 –869 (2013)More Less
This article examines the rights of foreign nationals in view of Hannah Arendt's thesis that human rights amount to little when severed from the rights of members of a concrete political community. It considers three different theoretical attempts to come to terms with Arendt's challenge and to make sense of her reference to a 'right to have rights'. Drawing upon these theoretical perspectives, the article analyses the judicial reliance on the constitutional value of human dignity to mediate the tension between the rights of foreigners and the sovereign power of a political community to engage in exclusionary practices. In particular, it explores critically the possibilities and limits of the courts' dignity-based jurisprudence with reference to the central but unstable distinction between the dignity of man and the dignity of the citizen.
The Protection of Human Rights in South Africa: A Legal and Practical Guide, John C. Mubangizi : book reviewAuthor Danwood M. ChirwaSource: South African Law Journal 130, pp 870 –877 (2013)More Less
Does this book succeed in providing a legal and practical guide to the protection of human rights in South Africa? In order to answer this question, it is necessary to reflect on the meaning of the phrase 'a legal and practical guide', to identify who could need such a guide and for what ends, to think about the subject of the book - the protection of human rights in South Africa - and to consider all these factors against the backdrop of other works on the topic.
Author D.M. DavisSource: South African Law Journal 130, pp 878 –884 (2013)More Less
That dignity may have been put to a variety of uses in philosophy and theology should not obscure the fact that it has been inextricably connected with the idea of rights in general and constitutionalism in particular. It appears in the opening provisions of the German Basic Law, and it finds expression immediately in s 1 of the Constitution of the Republic of South Africa, 1996 as well as in the International Covenant on Civil and Political Rights, to name but a few critical constitutional instruments.
Author George DevenishSource: South African Law Journal 130, pp 884 –888 (2013)More Less
This is the second volume of Peter Raina's magnum opus on the history of the British upper House, which encapsulates documents and commentary on the period 1943 to 1958. The first volume recorded the genesis of the House of Lords, which is a unique second chamber, from its inception until 1937, and was reviewed by me in the (2012) 129 SALJ 175. The second volume commences in 1943, when the end of the Second World War and its victorious outcome for the Allies could be contemplated with greater certainty. This volume contains documents that relate to the continuation of a quest to preserve and make the House of Lords more relevant for the post-war era, with its emphasis on democracy and egalitarianism. Some of the documentation is published for the first time. In this regard Raina (at xvii) states that '[t]hese papers, so carefully assembled in the National Archives, have only recently been made accessible to researchers'.