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- Volume 20, Issue 3, 2009
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 20, Issue 3, 2009
Volume 20, Issue 3, 2009
Author Julie CassidySource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 373 –406 (2009)More Less
The Australian responses to corporate collapses in the modern commercial world have been implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors' duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors' duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.
Author K.B. CalitzSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 407 –425 (2009)More Less
Employees who suffer work-related harassment by non-employees in circumstances in which the employer does not protect them can neither institute action against their employer on the basis of vicarious liability, nor in terms of section 60 of the Employment Equity Act (EEA). Section 60 of the EEA renders the employer liable for certain acts of his employees. In Piliso v Old Mutual Life Assurance Co (2007) 28 ILJ 897 (LC) the Labour Court held such a (passive) employer liable on the basis of the infringement of the employee-victim's constitutional right to fair labour practices. In the light of criticism against direct reliance on constitutional rights where the right is embodied in other legislation, a more appropriate approach would be to hold the employer directly liable for discriminating against an employee in an employment practice in terms of section 6(1) of the EEA. An examination of foreign jurisdictions (the United States, the United Kingdom and Australia), reveals that employers who do not take action to protect victim-employees against work-related harassment by non-employees, are held directly liable in terms of anti-discrimination legislation. This article proposes that the same approach be adopted in the South African context.
Author Frank Peter SchusterSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 426 –453 (2009)More Less
With the liberation of world trade, the consumer is constantly confronted with goods that are not manufactured domestically. This gives rise to a cross-national discussion on product liability. This article describes the situation in Germany, a civil law country, which is not only the largest economy in the European Union, but which has also, since the late 19th century, been a "law-exporting nation" with great influence on the legal order of several other jurisdictions. It is first shown that in private law the ultimate consumer has no contractual or quasi-contractual rights to compensation against the manufacturer, because typically there is no direct contractual relationship. As a result, a solution for liability has to be found in the area of delict (tort). The article compares the traditional ''fault-based'' liability under paragraphs 823(1) and 831(1) of the German Civil Code, modified by the courts for product liability cases, and the ''strict'' liability of the EU-based Product Liability Act, and considers the new Rome II Regulation which was applicable from 11 January 2009. Since criminal proceedings can also play a role in cases of personal injury, this article also comments on the most important criminal law aspects of product liability.
Author Visser DanielSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 454 –467 (2009)More Less
In light of the fact that the Supreme Court of Appeal's "prospective recognition" of a general enrichment action in McCarthy Retail (Pty) Ltd v Shortdistance Carriers CC 2001 3 SA 482 (SCA) is likely to be confirmed only after this issue has been properly argued in an appropriate case, this article takes the opportunity again to make the case for such an action and to give some idea of what its scope might be.
It argues that a general action should be recognized because it amplifies the ability of our law of obligations to correct injustices that arise between individuals, which, at present, are tolerated because the reach of the specific enrichment actions is too restricted, and because the neither the law of contract nor the law of delict is adapted to respond appropriately to these injustices. It argues, on the one hand, that the action must be subsidiary to the existing enrichment actions in order that its scope will not be unnecessarily wide, but also argues, on the other hand, that its elements must to a certain extent be flexible to ensure that its scope is not unduly limited.
Author Graham GloverSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 468 –493 (2009)More Less
The condictiones present interesting and difficult challenges of classification for the modern South African jurist. Their casuistic development has made them difficult to work with, and for a long time it was argued that a single general enrichment action should take their place. But the Supreme Court of Appeal in McCarthy Retail Ltd v Shortdistance Carriers CC 2001 3 SA 482 (SCA) chose not to follow this path, and instead preferred the idea that a general enrichment action should be subsidiary to the traditional actions. This has breathed new life into debates on the future of the condictiones. This article first examines the current range of application of the condictiones. It then proceeds to show how the courts in the first decade of the 21st century seem to have eschewed the technicalities inherent in pleading the condictiones, and have preferred rather to resolve cases by applying the general requirements of enrichment liability, in contrast to the injunction in McCarthy. The difficulty with this approach is the lack of substance that is given to the sine causa requirement. The article proceeds to examine the various theories about how we in South Africa should understand and give content to the sine causa requirement. This provides a springboard for considering the possible futures of the condictiones. Broadly, it seems that two options are possible: either to collapse the condictiones into one action to deal with cases of enrichment by transfer; or largely to retain the status quo. The most recent decisions of the Supreme Court of Appeal indicate that the latter, more conservative option is likely to be chosen in the short-term. If this approach is to be adopted, it will require a further review of how each of the constituent condictiones fulfils a particular function. A revisionist view of the condictio indebiti is postulated by way of example.
Author Jacques Du PlessisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 494 –516 (2009)More Less
The question whether the plaintiff has been impoverished is of central importance in the South African law of unjustified enrichment. Proof of impoverishment is a general requirement for enrichment claims, and according to the ''double ceiling'' rule, the measure of the claim is limited to the lesser of the plaintiff's impoverishment and the defendant's enrichment. It is argued that the justifications for according impoverishment such a prominent position are not strong, and that the impoverishment requirement must be relaxed in certain circumstances - most notably where the defendant is enriched through ''taking'' or infringing on the plaintiff's rights. The impossibility of applying the ''double ceiling'' rule in these circumstances does not present any major difficulties. As the experiences of other jurisdictions show, there are alternative tests that can provide levels of relief which adequately balance the interests of the parties.
Author C.J. MaxwellSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 517 –532 (2009)More Less
Under South African law, someone who manages another's affairs (the gestor) is apparently awarded an enrichment action against such a person the (dominus) where the former has acted against the express wishes of the latter (domino prohibente). It is questionable though, whether sufficient support exists for this claim in the case law, and whether it is desirable when judged from the perspective of the policies underlying negotiorum gestio. However, comparison with German law suggests that the prevention of unjustified enrichment would, on its own, provide sufficient justification for the provision of such a remedy in the context of performance of another's obligation. It is suggested that, assuming that South African law does allow a gestor an enrichment action where he has performed the obligation of another domino prohibente, this system should follow the German example and provide more concrete protection to the dominus by borrowing protective rules from the law of cession and the general principles of unjustified enrichment.
Gypsies and Travellers in the United Kingdom : planning, housing and human rights in a changing legal regulatory frameworkAuthor Robert HomeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 533 –550 (2009)More Less
Gypsies and Travellers comprise a tiny proportion of the population of the United Kingdom, but considerable public resources have been expended on controlling, regulating and accommodating them, with limited success. The issues that have arisen involve a wide array of specialist legal areas, which include land use planning, housing and homelessness, caravans and mobile homes, crime, antisocial behaviour and policing, and health, education and welfare. This article offers an overview of that body of law and regulation, from the Caravan Sites Act 1968 to the recent major review of law and policy. It then surveys the wealth of relevant case law that has emerged, particularly the introduction of human rights arguments over the last decade. The early effects of the review of law and policy since 2004 are focused mainly upon the issue of accommodation needs in the context of land use planning. Finally, some points of comparison are offered with the treatment of excluded social groups in other jurisdictions, particularly Israel / Palestine and apartheid-period South Africa.
Tracking down consent and dissent in arbitration law and practice [a discussion of Daljosaphat Restorations (Pty) Ltd v Kasteelhof CC 2006 6 SA 91 (C)]Author Edward TorgborSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 551 –561 (2009)More Less
It is common perception that arbitration is consensual. This is because parties normally engage in arbitration by their mutual consent and agreement. However, controversy often arises when a dispute actually occurs, and one party seeks to enforce the arbitration agreement but the other party denies, or dissents from, the arbitration agreement. Disputed issues of consent and dissent require early investigation and determination. Otherwise they may transform to other challenges, such as the appointment of the arbitrators and the arbitral jurisdiction, that may consequently put the eventual arbitral award at the risk of being set aside by the court. Two agreements emerged in the Daljosaphat case: a settlement agreement and an arbitration agreement. The court found the former to be tainted by dissent (dissensus) but not the latter, from which the disputed arbitral award emanated. The route to these findings illustrates the elusiveness of consent in arbitration practice, and the principles applied by the court in the investigation and determination of such issues towards the final disposal of the dispute on merits.
Author Clive PlasketSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 562 –565 (2009)More Less
For much of the 20th century, in South Africa and elsewhere, administrative law was something of a Cinderella subject: its serious study was patchy and it tended to be regarded as a part of constitutional law that did not merit much attention. This underdevelopment of administrative law as a discipline is evident in the scholarship in the field in South Africa. By the late 1980s and early 1990s, however, a growing number of academic lawyers were writing on administrative law, perhaps spurred on by its centrality in the social engineering of the apartheid system and its security apparatus.
Commentary on the Mine Health and Safety Act and Regulations, P. Masilo and G. Rautenbach : book reviewSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 565 –567 (2009)More Less
Any book involving a discussion on the Mine Health and Safety Act 29 of 1996 (MHSA) is fraught with difficulty - it is a cumbersome and complicated piece of legislation, especially for a practitioner who is just starting a practice in mining health and safety issues. Arguably, the most widely used publication on the MHSA to date was that of LexisNexis. This publication contains the MHSA, the MHSA regulations and the Mine and Works Act 27 of 1956 in three separate volumes, with other legislation. These volumes comprise just an anthology of documents with no commentary at all.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 567 –570 (2009)More Less
This book positions itself as a guide to the practical application of the Prevention of Organised Crime Act 121 of 1998 (POCA). It is the first book of its kind covering this field - itself a relative novelty in the South African legal milieu; the fact that this area of legal practice is complicated and potentially confusing for the practitioner surely does not warrant much debate. The introductory pages of the book are curiously silent on the credentials of the author. However, an Internet search indicates that the author has impressive academic qualifications and practice-related credentials which make him eminently qualified to assess the needs of the legal fraternity - both from a theoretical and a practical point of view.
Author Pieter CarstensSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 570 –572 (2009)More Less
The political and legal landscapes in South Africa have changed significantly and irreversibly since the advent of the Constitution of the Republic of South Africa, 1996. This reality of constitutional supremacy obviously had an indelible impact on the understanding, nature, scope and application of South African health care law and its regulatory systems.