South African Law Journal - Volume 131, Issue 2, 2014
Volume 131, Issue 2, 2014
The constitutionality of section 89(5)(c) of the National Credit Act under the property clause : National Credit Regulator v Opperman & Others : notesAuthor E.J. MaraisSource: South African Law Journal 131, pp 215 –233 (2014)More Less
In National Credit Regulator v Opperman & others 2013 (2) SA 1 (CC) ('Opperman'), the Constitutional Court, confirming a finding by the Western Cape High Court, Cape Town, held that s 89(5)(c) of the National Credit Act 34 of 2005 ('NCA') results in an arbitrary deprivation of property that is contrary to s 25(1) of the Constitution of the Republic of South Africa, 1996. At issue in this case was whether it was constitutionally permissible to deny Opperman - the first respondent and an unregistered credit provider - his right to restitution of money lent to the second respondent under credit agreements that were unlawful under the NCA.
The (in)significance of the common law? Constitutional interpretation and the Mansingh judgments : notesAuthor Rosaan KrugerSource: South African Law Journal 131, pp 233 –244 (2014)More Less
The law reports abound with case law on the interpretation of the provisions in the Bill of Rights. Cases on the interpretation of constitutional provisions that fall outside of the Bill of Rights are, by contrast, few and far between. (A few prominent examples are S v Mhlungu 1995 (3) SA 867 (CC); President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) ('SARFU'); Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47 (CC); Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC); Merafong Demarcation Forum v President of the Republic of South Africa 2008 (5) SA171 (CC); Chonco v President of the Republic of South Africa 2010 (6) BCLR 511 (CC); Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC).) Mansingh's April 2011 application to the North Gauteng High Court was one of these unusual cases.
Source: South African Law Journal 131, pp 244 –253 (2014)More Less
In the course of a rugby match the hooker of one team (H, the plaintiff in the court below) suffered a serious neck injury during a scrum. H alleged that the injury was caused by an illegal and highly dangerous manoeuvre, apparently coded 'jack-knife', whereby his opposing hooker (R, the defendant in the court below) forcibly placed his head in the incorrect channel of the scrum, as a result of which R's head impacted directly and with force onto H's neck, thereby causing the fracture of his neck. H instituted an action for damages against R. R denied the allegations and also raised a ground of justification, namely that H, by participating in the rugby match as hooker, accepted the risk of injury involved in such participation. In the trial court (Hattingh v Roux NO & others 2011 (5) SA 135 (WCC)) Fourie J found for the plaintiff (for a discussion, see J Neethling & J M Potgieter 'Volenti non fit iniuria and rugby injuries' (2012) 75 THRHR 675; R Ahmed 'Voluntary assumption of risk as a defence, excluding delictual liability with regard to sports injuries' (2012) 33 Obiter 414; cf Raheel Ahmed Contributory Intent as a Defence Limiting or Excluding Delictual Liability (unpublished LLM dissertation, University of South Africa, 2011) 45-7).
Prosecuting international crimes in South Africa : interpreting the requirement of the accused's presence in South African territory under the implementation of the Rome Statute of the ICC Act : notesAuthor Hannah WoolaverSource: South African Law Journal 131, pp 253 –271 (2014)More Less
On 25 February 2013 AIDS-Free World, an AIDS and HIV advocacy non-governmental organisation, announced that the South African National Prosecuting Authority ('NPA') and the South African Police Service ('SAPS') had undertaken to investigate an alleged widespread campaign of politically-motivated rape carried out in Zimbabwe by members of the ruling Zimbabwean ZANU-PF party against opposition party supporters during the lead-up to the 2008 Zimbabwean Presidential elections. This decision was the result of legal submissions made by AIDS-Free World to the NPA requesting investigation and prosecution of these alleged Zimbabwean crimes against humanity in South African courts. As part of its submissions, the NGO handed over a large dossier of evidence documenting the allegations to the NPA, including testimony of more than 70 opposition-affiliated women who claim to have been raped by members of ZANU-PF.
Curbing the constitutional development of contract law : a critical response to Maphango v Aengus Lifestyle Properties (Pty) Ltd : notesAuthor Michael DafelSource: South African Law Journal 131, pp 271 –287 (2014)More Less
Every so often a decision of our courts fails to gain the attention it deserves. The Constitutional Court's decision in Maphango & others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) ('Maphango'), as well as its predecessor in the Supreme Court of Appeal ('SCA') (2011 (5) SA 19 (SCA)), is an example of such a case. Perhaps the silence in academic discourse is due to the majority of the Constitutional Court avoiding the contentious issues, or perhaps it is due to the court merely remitting the matter back to the administrative housing tribunal from where it originated. However, regardless of the reasons, this decision, in time, may prove to be of great importance. What started out as the mere exercise of a right in terms of an agreed-upon contractual provision, transformed into a debate on the role of the Constitution in regulating and developing the common-law of contract.
Aquilian liability for negligently caused pure economic loss - its history and doctrinal accommodationAuthor Anton FaganSource: South African Law Journal 131, pp 288 –327 (2014)More Less
This article has two aims. The first is to provide an historical account of the extension of Aquilian liability to negligently caused pure economic loss in South African law. The second is to solve a doctrinal problem created by that extension. How are the core rules of Aquilian liability - which deal with positive acts causing physical harm to person or property - to be adapted so as to accommodate it? A key feature of the solution proposed by this article is that it retains the basic structure and fundamental moral character of the core rules. Specifically, the proposed solution maintains that, in so far as Aquilian liability has been extended to pure economic loss, the basis for that liability is still actual and foreseeable non-patrimonial harm: either non-physical harm in respect of property or harm in respect of autonomy.
Arbitrary deprivation of property : an argument for the payment of compensation by the state in certain cases of unlawful occupationAuthor Matthew KrugerSource: South African Law Journal 131, pp 328 –364 (2014)More Less
The Constitution radically altered the substantive norms that underpin the division, regulation and enforcement of property and housing rights in South Africa. Under the aegis of Constitutional Court, there has been a deliberate effort to bring into being a system of legally enforceable rights and duties which, when viewed as a whole, afford commensurate protection to the often conflicting interests of individuals. This process of reconstruction, however, is far from complete. One of the areas which requires further development is the law regulating evictions. As regards the rights of unlawful occupiers, it has been held that evictions that would result in homelessness may not be executed until alternative accommodation is provided by the state. Whilst this delay in the execution of an eviction order will often be commercially unbearable, landowners have been told to be patient. In this article it is argued that the existing legal scheme, without more, fails to strike a proper balance among the rights and interests of owners, occupiers and society. It is argued that this institutional failure arbitrarily deprives landowners of property and that to remedy this constitutional defect such owners must, as a rule, be afforded a compensatory remedy against the state.
Traversing South Africa's conservation and land reform objectives - lessons from the Dwesa-Cwebe Nature ReserveSource: South African Law Journal 131, pp 365 –407 (2014)More Less
South African policy-makers have in the past decade introduced a range of innovative laws and policies with a view to promoting the country's conservation and land reform objectives. While providing a first step in the right direction, these initiatives are beset by several problems that undermine their future utility and legitimacy. This article seeks to reflect critically on the practical manifestation of these problems in the Dwesa-Cwebe Nature Reserve ('DCNR') situated on the Eastern Coast of South Africa. This reserve provides a perfect microcosm for doing so as it contains some of South Africa's most pristine coastal landscapes and estuaries; is situated on the interface between the terrestrial and marine environments; has a novel governance regime including communal land tenure schemes and co-management arrangements; the resources situated within it are subject to significant access and use pressures given the endemic poverty in the adjacent area; and it is currently economically unviable and requires the introduction of novel financing schemes to ensure its sustainability. The article reflects critically on the successes and challenges relating to the theme in the context of the DCNR and, finally, draws lessons from these successes and challenges, which could potentially inform the resolution of both DCNR's challenges and those facing other communities and authorities seeking to fashion more nuanced, effective, equitable and legitimate solutions for traversing the apparent land reform and conservation divide.
Author Mtendeweka Owen MhangoSource: South African Law Journal 131, pp 408 –438 (2014)More Less
This article discusses pension reforms in Lesotho and the constitutional challenges faced by Lesotho in its implementation of these reforms. The article locates this discussion within the context of the pension funding policy shift in Lesotho from a defined benefit to a defined contribution fund and the legal challenge to this policy shift in Sechele v Public Officers' Defined Contribution Pension Fund. The article argues that the judicial decision to uphold the government's pension funding policy choice should be welcomed because the policy choice will benefit Lesotho. The decision in Sechele necessitates a discussion of the characteristics of a defined contribution fund and a defined benefit fund, and a consideration of the characteristics of a hybrid pension fund, including the implications of choosing any of these types of funds. The article examines the remedy granted by the Court of Appeal, and argues that the effect of this remedy is that Lesotho has not completely switched from a defined benefit to a defined contribution fund since the government remains under a constitutional obligation to pay promised pension benefits.
The rule that a spouse cannot forfeit at divorce what he or she has contributed to the marriage : an argument for changeAuthor Elsje BonthuysSource: South African Law Journal 131, pp 439 –460 (2014)More Less
Section 9 of the Divorce Act 70 of 1979 allows for an order that one of the spouses may forfeit some or all of the financial benefits of the marriage at the time of divorce. South African courts have interpreted this remedy so as to limit forfeiture to the spouse who contributed least to the joint estate or whose separate estate shows the smaller accrual, while the spouse who had made the larger financial contribution to the marriage is protected from forfeiture. This article provides three sets of arguments questioning this interpretation. First, it shows the existence of Roman and Roman-Dutch authorities to the effect that a spouse could forfeit assets which he or she had contributed to the marriage. It also highlights early South African case law holding that both financial and non-financial contributions should be taken into account when making a forfeiture order at divorce. The article also analyses case law to illustrate how the courts' treatment of marital misconduct and contribution operate to favour the kinds of behaviour typically engaged in by men, while devaluing the behaviour of typical wives. This may amount to discrimination on the basis of gender and may therefore be vulnerable to constitutional challenge. The article concludes by looking forward to a long overdue overhaul of South African family law legislation, specifically the Divorce Act. It examines the role which a general redistributive discretion should play in ameliorating the consequences of the chosen matrimonial property regime at the end of marriage, but cautions that, in sexist societies, judicial discretions are often exercised in ways which benefit men at the expense of women.
Author Kate O'ReganSource: South African Law Journal 131, pp 461 –473 (2014)More Less
Arthur Chaskalson, the first President of the Constitutional Court of South Africa, and Chief Justice, died in November 2012 just after his 81st birthday. His death came as a great shock, for Justice Chaskalson was always physically, morally and intellectually formidable. As one of his Constitutional Court colleagues said on learning of his unexpected passing, 'Arthur seemed indomitable'.
A Man of Principle. The Life and Legacy of J C de Wet / 'n Man van Beginsel. Die Lewe en Nalatenskap van J C de Wet, Jacques du Plessis & Gerhard Lubbe (Eds.) : book reviewAuthor Johan FronemanSource: South African Law Journal 131, pp 474 –480 (2014)More Less
For many of those who studied law at the University of Stellenbosch the name of J C de Wet is almost synonymous with the legal tradition, heritage and prestige of that great law faculty. His influence, however, extended far beyond Stellenbosch. He was the co-author of two legal textbooks, Kontraktereg en Handelsreg, first published in 1947, and Strafreg, in 1949. The publication of those two books changed the legal landscape in this country. They were not the first legal textbooks published in Afrikaans, but they were certainly the most influential. It was the intellectual force of the systemisation and exposition of general principles of contract and criminal law by De Wet in those books that explains their influence at the time. They announced both that Afrikaans had arrived as a legal language and that there was a powerful intellectual counter to the then dominance of English tradition in legal practice and literature.
Author Gerhard LubbeSource: South African Law Journal 131, pp 481 –482 (2014)More Less
This is the second edition of a publication which first saw the light in 1997 (for a review of the first edition by the writer of this notice see (1998) 9 Stellenbosch Law Review 230). As was the case with the first edition, the author seeks to provide not only a textbook, but also a workbook and a casebook in a single volume of relatively modest size (see the preface at v). It is not the intention to provide a comprehensive treatise on the law of cession: although the author trusts that the book will also be useful to practitioners, it is intended as an introductory textbook for students and more particularly postgraduate students (ibid).
Author Geoff BudlenderSource: South African Law Journal 131, pp 483 –484 (2014)More Less
In 1994 we entered upon a fundamentally new and different constitutional order. It was different from the old order in theory, in substance and in process. The new order had to be implemented by politicians, by an executive, by judges and by lawyers who for the most part had absolutely no training or experience in working with a Constitution of the kind that was introduced at that point. Even now, for the most part it is only lawyers who are under 40 years of age who have had any systematic training in this field. Given those circumstances, it is one of the under-recognised miracles of the new Constitution that it worked at all, let alone that it has worked so well.