South African Law Journal - Volume 131, Issue 3, 2014
Volume 131, Issue 3, 2014
Author Alistair PriceSource: South African Law Journal 131, pp 491 –500 (2014)More Less
In Lee v Minister of Correctional Services 2013 (2) SA 144 (CC), the Constitutional Court held the state liable in delict for a negligent failure to put in place a reasonable system to guard against the contagion of tuberculosis among prisoners at Pollsmoor Prison. The plaintiff had contracted tuberculosis while awaiting trial in prison. The key issue on appeal was whether the delictual requirement of factual causation was satisfied on the facts. A bare majority of five Justices held that it was, overturning the unanimous contrary decision of the Supreme Court of Appeal (Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA)). Understandably, some have welcomed the outcome of the case. After all, the evidence before the court revealed the hopeless inadequacy of Pollsmoor's healthcare system at the time. There can be little doubt that prisoners' rights to life, personal security, and dignified conditions of detention in terms of ss 11, 12 and 35 of the Constitution of the Republic of South Africa, 1996 were systematically violated. By imposing delictual liability, the courts held the state publicly accountable for these appalling failures.
Factual causation : which 'conditio' must be a 'sine qua non'? A critical discussion of the decision in Lee v Minister for Correctional Services : notesAuthor Andrew PaizesSource: South African Law Journal 131, pp 500 –509 (2014)More Less
The type of situation that arose in Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) ('Lee (CC)') presented the courts with a challenging problem concerning factual causation. Lee had been incarcerated at a maximum security prison in Pollsmoor between 1999 and 2004. After three years in prison, he was diagnosed with tuberculosis. He did not have the disease when he arrived at the prison. The conditions at Pollsmoor were described by the Constitutional Court as 'ideal ... for transmission' of TB, as the prison was 'notoriously congested and inmates [were] confined to close contact for as much as 23 hours every day', and TB is 'an airborne communicable disease which spreads easily, especially in confined, poorly ventilated and overcrowded environments' (para 8, per Nkabinde J for the majority). It was accepted, by both the Supreme Court of Appeal and the Constitutional Court, that the authorities at the prison had acted wrongfully by reason of their failure 'to have reasonably adequate precautions against contagion' (Lee (CC) para 37; see too Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA) para 35 ('Lee (SCA)')). It was accepted, too, that they had been negligent, as there was 'a negligent breach on the part of the responsible authorities for failing to maintain an adequate system for management of TB' (Lee (CC) ibid). All that remained was to determine 'whether the negligent omission caused the applicant harm - in becoming infected with TB' (ibid).
The implied revocation of a will : Pienaar v Master of the Free State High Court, Bloemfontein : notesAuthor Michael Cameron Wood-BodleySource: South African Law Journal 131, pp 509 –521 (2014)More Less
It is not often that the Supreme Court of Appeal ('SCA') is called upon to pronounce on the revocation of a will. One such case is Pienaar v Master of the Free State High Court, Bloemfontein 2011 (6) SA 338 (SCA) in which that court had to decide whether a later will made by a testator was intended to revoke an earlier will even though the later will contained no express statement of revocation.
In what follows the facts of Pienaar will be set out in so far as is necessary and the principles relating to revocation of wills, and in particular implied revocation, will be summarised, with factual illustrations from the cases. Thereafter, the facts of Pienaar will be analysed to determine the possible competing interpretations thereof. The conclusions by the Master of the High Court and court a quo (on the one hand) will be compared and contrasted with the different conclusion that was reached by the SCA, with a view to highlighting how the SCA differed from the Master and the court a quo in the application of the relevant principles. The Pienaar judgment will then be evaluated, particularly in light of the previous decisions on the issue. Thereafter, the treatment of implied revocation in similar circumstances in English law will be explored with a view to highlighting an important point of difference between English and South African law relating to implied revocation. This is relevant because our courts from time to time refer to English cases as persuasive authority in the context of wills, owing to the considerable overlap between the two systems. Sonnekus has referred to the influence of English wills legislation on our 'wills-formalities' as substantial or fundamental. (J C Sonnekus 'Vereistes vir testamentsherroeping' 1982 TSAR 110. The translation is mine. The term actually used by him in this context is 'wesenlik'.) Finally, some conclusions will be drawn on lessons to be learned from Pienaar.
PIE in the sky : where is the constitutional framework in high court eviction proceedings? Marlboro Crisis Committee & others v City of Johannesburg : notesSource: South African Law Journal 131, pp 521 –537 (2014)More Less
Magistrates and high court judges are often at the coalface of legal decisionmaking in a manner that appellate courts are not. On a day-to-day basis, they are tasked with applying the law to situations that address the harsh realities faced by many citizens. Nowhere is this more evident than in the case of eviction applications, where judicial officers are faced with the complex question of balancing the property rights of owners with the housing rights of occupiers.
The advent of constitutional democracy has led to significant legal changes in this area. Section 26(3) of the Constitution of the Republic of South Africa, 1996 expressly states: 'No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.'
To give concrete effect to this section of the Constitution, the legislature passed the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ('PIE'). This legislation created both procedural and substantive requirements that have to be met when the eviction of unlawful occupiers is being considered. A series of Constitutional Court judgments have elaborated upon the protections afforded by the Constitution and PIE.
A helping hand for disadvantaged divorce litigants : an analysis of the implications of MG v RG : notesSource: South African Law Journal 131, pp 538 –547 (2014)More Less
In this note, we evaluate the implications of the directives issued on two crucial questions in MG v RG 2012 (2) SA 461 (KZP) ('MG'). These questions are (i) the extent to which magistrates should insist on technically correct procedures in divorce hearings, and (ii) whether they should remain relatively passive during such hearings, as is traditionally required by the adversarial approach. We suggest that magistrates have the potential to improve divorce adjudication services significantly in the lower courts. However, further steps are required if this is to be achieved. We therefore offer some recommendations for improving divorce adjudication services in South Africa, based also on an analysis of developments in other jurisdictions - particularly in England.
Author Louis J. KotzeSource: South African Law Journal 131, pp 548 –582 (2014)More Less
This article argues that because of environmental law's usual focus on the fragmentation of international environmental law and international environmental governance, we have been missing out on an opportunity to consider fragmentation as a much broader globalised phenomenon in the context of global environmental regulation. The result is that we have been seeing half-truths about fragmentation which have desensitised us to appreciating the disaggregated characteristics of global environmental law and governance as the most recent contemporary forms of environmental regulation. The hypothesis is that international environmental law and governance is only a part of the global regulatory response and that the fragmentation of environmental law and governance must be viewed through the global lens in order to allow a more nuanced and ultimately more realistic reappraisal of fragmentation and its consequences for global environmental regulation. The article suggests that once the parochial blindfold of 'the international' is removed, it would be possible to explore the new world of 'the global,' where the consequences of fragmentation in the context of global environmental regulation are arguably less severe than many fear.
Author Donrich JordaanSource: South African Law Journal 131, pp 583 –603 (2014)More Less
Justice is served both by openness and by access, but these two values may in some cases be in need of careful balancing. Such cases would be, for instance, where the personal psychological harm to a prospective plaintiff of having her identity as plaintiff disclosed to the public would effectively bar her from launching the civil action in court. In appropriate cases, the solution would be to grant an anonymity order to the prospective plaintiff. However, there is no direct authority in South African law on the granting of anonymity orders in civil cases in general, which causes uncertainty that is not in the interest of justice. As such, I analyse the comprehensive test for the granting of confidentiality orders (which include anonymity orders) in civil cases that has been developed in Canadian law, namely the Sierra Club test. In brief, this test entails that an anonymity order should only be granted if such anonymity order is (a) necessary, and (b) proportional to its purpose. I conclude that the Sierra Club test could fruitfully be applied in our law.
Author Constantine TheophilopoulosSource: South African Law Journal 131, pp 604 –630 (2014)More Less
There is a wealth of South African case law describing the privilege against self-incrimination as a shield against the compulsion of oral incriminating testimony, but there is a paucity of case law about the relationship between the privilege and incriminating documents. There is also a lacuna about the relationship between the privilege and regulatory statutes which make it compulsory to keep and produce required records. The modern state manages a vast amount of information in order to function efficiently. A cost-effective manner of collecting data is to use compulsory self-reporting mechanisms in regulatory statutes to force citizens to hand over potentially incriminating written records to the state on pain of criminal sanction. Some of the more important statutory provisions are in the Tax Administration Act 28 of 2011, the Financial Intelligence Centre Act 38 of 2001, the Prevention of Organised Crime Act 121 of 1998, and various banking and exchange control regulations. In this article, the stop-and-report provision in the National Road Traffic Act 93 of 1996 is used as the primary illustration of a reporting mechanism which may attract a claim of privilege. Anglo-American jurisdictions have developed a number of technical tests and doctrines to explain the relationship between the privilege and the required records demanded by regulatory statutes, but a claim of privilege in this context has never come before our superior courts - hence the lacuna. The Canadian courts rely on a predominant-purpose test based on the principles of a co-operative-partnership doctrine, and the United States courts make use of an adapted act-of-production doctrine and a required-records doctrine to explain the relationship. This article critically evaluates relevant decisions mainly by the Supreme Courts of the United States and Canada, and in parts the United Kingdom and the European Union in this area, in order to provide guidance to a future South African court in developing our domestic jurisprudence.
Problems and challenges of the judicial office : matters arising from Bula v Minister of Home AffairsAuthor Chuks OkpalubaSource: South African Law Journal 131, pp 631 –655 (2014)More Less
The recent case of Bula v Minister of Home Affairs 2012 (4) SA 560 (SCA) calls for a reflection on the office of judge and the problems attendant to judging. The nature of the judicial office requires not only a proper grounding in the discipline of law, but also professional experience and personal qualities of the occupant. The parties in court expect the judge to be open-minded and impartial, while the public demands that justice be dispensed according to law and the letter of the Constitution, not according to personal whims, nor for personal aggrandisement. A high degree of candour, decorum and accountability are the hallmarks of a successful judge. This article sets out the constraints of the judicial office; restates the importance to adjudication of public confidence in the judiciary; and underscores the requirement of judicial impartiality in the adjudicative process. It argues that the trial judge in Bula broke many rules of fair adjudication, failed to apply well-known judicial restraints, and literally descended into the arena in the strict sense of that expression.
Author Adem Kassie AbebeSource: South African Law Journal 131, pp 656 –694 (2014)More Less
The South African Constitution establishes procedures for amending any of its provisions and empowers the Constitutional Court to decide on the constitutionality of these amendments. Whether or not the Constitution imposes judicially enforceable substantive limits on the powers of Parliament to amend the Constitution is not clear. This article argues that the Constitution does not impose substantive limits on the power of constitutional amendment. However, the fact that the Constitution establishes different procedures for the amendment of different sections creates an implied hierarchy within the Constitution. This implied hierarchy enables the Constitutional Court to scrutinise the substance of constitutional amendments to determine compliance with the proper procedure for each amendment. Nevertheless, once the court ascertains that an amendment has been enacted by following the appropriate procedure, the amendment cannot be attacked on substantive grounds. Contrary to the views of some scholars, the Constitution does not recognise the 'basic structure' doctrine. It does not recognise extra-constitutional limits on the power of constitutional amendment. The principal purpose of the explicit authorisation of the Constitutional Court to decide on the constitutionality of amendments is to affirm its exclusive jurisdiction in relation to these amendments.
Author David FriedmanSource: South African Law Journal 131, pp 695 –703 (2014)More Less
Although it is over twenty five years since I last saw Douglas Shaw, the news of his death came as a great shock. Somehow or another those of us who knew and were fortunate enough to have been one of his colleagues, regarded him as monolithic and indestructible. To say of him that he was a legend in his own time sounds like the expression of yet another well-worn cliché; yet it is true. He, however, would have hated such a description of himself. When I first came to the bar in Durban, most newcomers were regaled by the more senior members with stories and anecdotes about the great Graham Mackeurtan, whose apparent influence on the Natal legal profession had assumed legendary proportions. Douglas disapproved of this hero worship, not that he had any reason to doubt the once pre-eminent position of Mackeurtan, but because he was not prone to any form of adulation.
The Politics of Principle: The First South African Constitutional Court, 1995-2005, Theunis Roux : book reviewAuthor Jeremy GauntlettSource: South African Law Journal 131, pp 704 –707 (2014)More Less
Molière had a character, Monsieur Jourdain, much impressed by the discovery that he had been speaking prose all his life. So might it be with judges and politics. The vote for prisoners, the adequacy of public health or education and e-tolling are all issues that stir the polis. In an obvious sense they may be labeled 'political'. But then, as Richard Posner says, that is 'an equivocal term that must be carefully parsed before it can usefully be applied to judicial behavior' (Richard A Posner How Judges Think (2008) 9; see too now his Reflections on Judging (2013) 105-13). The range of meaning, after all, is from the ideological to party adherence to 'decisions based on purely technical policy judgments' (ibid).
The Politics of Principle: The First South African Constitutional Court, 1995-2005, Theunis Roux : book reviewAuthor Stephen EllmanSource: South African Law Journal 131, pp 707 –711 (2014)More Less
Theunis Roux's important book, The Politics of Principle: The First South African Constitutional Court, 1995-2005, is a tightly reasoned and wide-ranging assessment of the Constitutional Court's first decade. It sets out to explain what we must mean when we speak of our admiration for the court in these years (the 'Chaskalson Court', as Roux appropriately calls it), and then to trace the elements of the court's decisions that earned that admiration.
The Development of Competition Law and Economics in South Africa, Kasturi Moodaliyar & Simon Roberts (Eds.) : book reviewAuthor D.M. DavisSource: South African Law Journal 131, pp 712 –716 (2014)More Less
The Competition Act of 89 of 1998 introduced a new regime of competition law into South Africa. As David Lewis Thieves at the Dinner Table: Enforcing the Competition Act (2012) 5, has noted, the Act is deeply rooted in a history of concentration of ownership and private wealth held in a small number of conglomerates that were controlled by an even smaller group of families. Lewis notes further (ibid) that 'the perceived counterpart of this concentration of private wealth and economic power was precisely the dispossession, the poverty, and the unequal and unfair treatment of the majority of the black population'.
Author Geoff EveringhamSource: South African Law Journal 131, pp 717 –719 (2014)More Less
This slender volume is clearly directed at legal practitioners or their bookkeepers with a view to clarifying the financial record-keeping of South African legal practices. The authors are a lecturer at the University of Kwazulu-Natal and an experienced Durban attorney, both of whom have lectured legal accounting for a number of years.
Author Jeremy PickeringSource: South African Law Journal 131, pp 720 –724 (2014)More Less
I was surprised to see that another volume of learned essays in honour of the late Professor J C de Wet has recently been published, and which was reviewed in (2014) 131 SALJ 474. Surprised because I did not know that such a volume was being prepared and realised that I must have missed the plethora of letters and e-mails which had surely been sent to me, imploring me to contribute an intellectual article on one of the arcane areas of law in which I specialise, especially that relating to dogs. In an attempt to remedy that omission I offer the following.