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- Volume 26, Issue 1, 2015
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 26, Issue 1, 2015
Volume 26, Issue 1, 2015
Author Deeksha BhanaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 3 –28 (2015)More Less
In this article, I set out a "basic approach" for the constitutionalisation of our contract law (including the attending common-law methodology) in terms of the foundational constitutional values of freedom, dignity and equality. I then consider the application of this approach more carefully in relation to the narrower situation where one or more distinct substantive rights also find application in a particular case. In this respect, it must be appreciated that substantive rights are more concrete (at least, in their impact) than the values which underpin them. Moreover, the purposes served by the rights themselves may be different - they may for instance, be civil, social and/or economic. Finally, I apply my "basic approach", as outlined in this article, to the right to freedom of trade, occupation and profession (section 22 of the Constitution) in order to illustrate how it can facilitate the constitutionalisation of the relevant substance, form and methodology of our contract law without sacrificing the law's doctrinal coherence or certainty and in the end therefore, without sacrificing the integrity of the common law of contract.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 29 –62 (2015)More Less
Reform of legal education is currently a topic of debate in South Africa again. Reform in higher education can, however, be dangerous and counter-productive if it is driven purely by policy agendas and in the absence of sound pedagogical considerations. This contribution aims to add a pedagogical perspective to the debates about reform of legal education in South Africa. Drawing on our earlier work in this field, we sketch the broad contours of a legal pedagogy for South Africa. Although there has traditionally been reluctance by law teachers locally and in other countries to embark on engagement with educational theory, we would advocate that this is essential and inevitable if reforms are to be based on sound theoretical underpinnings and empirical evidence, instead of anecdotal views. We propose nothing more than a pedagogical framework and do not intend to present anything as prescriptive. Our approach is premised on transformative legal education (TLE) as developed by Quinot. Within the framework of TLE we argue for an integrated, coherent approach, which aims to integrate skills development with substantive law, various areas of law with each other and with broader contextual influences flowing from the South African reality within which legal education is grounded. This calls for a whole-of-curriculum approach with high levels of co-ordination and co-operation within a law programme. We emphasise the importance of authentic learning and focus especially on experiential learning and clinical legal education. Finally, we consider the major role for the use of information technologies in teaching law in South Africa. Our recommendations are not without challenges with the lack of resources and the articulation gap between secondary and higher education as major concerns. While being realistic about the limitations imposed by these challenges we argue that a re-conceptualisation of legal education in light of the imperatives of transformative constitutionalism has become inevitable in South Africa.
Bewoningsreg (habitatio) - aard van die regsobjek en die effek dáárvan op die registrasie van die regAuthor J.C. SonnekusSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 63 –84 (2015)More Less
The object of habitatio and the consequences for the registration of it
The object of the right to habitatio (right of free residence) is the land which is subject to the limited real right of habitatio. Therefore, it must be registered against the title deeds of the land and describe with notarial precision which part of the land or dwelling is subject to the habitatio.
Notwithstanding the fact that the right of habitatio entitles the holder of the personal servitude to the use of a particular part of the servient property and consequently restrains owners of the servient properties from exercising their entitlements to the fullest extent, the exclusive use by the holder of the personal servitude is limited to that which is necessary to serve the holder's residential needs. The holder is not entitled to lease the rooms he or she does not need for his or her own account.
The law need not create a new legal object consisting of the rooms on the first floor of a house for the purpose of burdening the rooms in question with a habitatio in a grandmother's favour. The expense of requiring a surveyor's diagram to create a separate new legal object against which a right of habitatio could be registered is simply too high and unnecessary. This is the position when a farm or other property is subdivided or a sectional title scheme is established. In such cases the money expended on the registration of subdivisions can later be recovered when the newly created legal objects are sold.
It is submitted that the current practice of registrars of deeds to decline the registration of a right of habitatio unless a surveyor's diagram indicating the part of the land subject to the habitatio is included, is counter-productive and will cause the expiry of this very useful and much needed limited real right that was part of our common law since Roman times.
Factors relevant to the assessment of the unfairness or unreasonableness of contract terms : some guidance from the German law on standard contract termsAuthor Tjakie NaudeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 85 –109 (2015)More Less
Section 52(2) of the Consumer Protection Act, 68 of 2008 ("CPA") lists factors that courts "must" consider when applying section 48, the prohibition of unfair contract terms. Section 52(2) could be improved, inter alia as it does not contain sufficient guidance about the substantive fairness of contract terms. Several other factors, not currently listed in section 52(2), have crystallised in German case law and academic commentaries on § 307(1) of the German Civil Code, which essentially provides that "provisions in standard business terms are ineffective if contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user." Although the scope of application of § 307(1) is different from that of section 48, the German case law and academic commentary are useful as most terms in consumer contracts are not negotiated anyway. German courts identify and weigh the interests of both parties in the light of the principles of proportionality and necessity. The degree to which the term differs from what the law would be in its absence is an important factor. In relation to contract terms governing risk allocation, the main questions asked are in whose sphere the risk is likely to arise and which party is in a better position to avoid the risk and to insure against it. Conformity with established standards in the sector is also a relevant factor, although its application is qualified. The other terms of the contract or of another contract on which it is dependent are also relevant. Principles that are more specific have developed in German law in respect of the possibility that other terms may increase or decrease the suspicion against a clause. Material inequality between the parties is also a relevant factor, which the South African Law Commission has formulated as whether there is a lack of reciprocity in an otherwise reciprocal contract. The article also lists further factors set out in the EC Directive.
Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnershipsAuthor Amanda BarrattSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 110 –131 (2015)More Less
This article discusses the legal protection available to unmarried couples who live in monogamous marriage-like partnerships. At present, South African law provides very little automatic protection to unmarried life-partners. Instead, the law expects couples to regulate their own affairs through private contract. The South African Law Reform Commission has expressed concern about the status quo: very few life-partners conclude such contracts. The Commission has proposed that upon termination of a life-partnership, the court should have automatic discretion to redistribute partnership property or order ongoing maintenance, where this is just and equitable. The Commission's draft Bill empowers the court to redistribute partnership assets or order maintenance upon application by financially vulnerable partners, even if the partners have not previously contracted for reciprocal support or asset sharing. Parliament has been slow to pass this legislation. Recently, the Supreme Court of Appeal has awarded benefits to life-partners based on new interpretations of the common law. The court has described the relief as contract-based and has required evidence that the partners had contracted for reciprocal support or sharing of assets. The court inferred tacit contracts by examining the conduct of the parties. The article argues that the court appears to have been very willing to infer tacit partnership contracts that protected the economically vulnerable partner. Indeed, it appears that the court might be developing a new default rule that where partners have cohabitated in a long term life-partnership they will be presumed to have agreed to provide mutual support or share partnership property. In effect, the court has moved from regulation based on private contract to regulation based on 'quasi-status' giving rise to automatic court discretion. In practice, the Supreme Court of Appeal decisions have brought legal regulation of life-partnerships very close to the Draft Bill's provisions.
Reinstatement of a home mortgage bond by paying the arrears : the need for appropriate legislative reformAuthor Lienne SteynSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 132 –155 (2015)More Less
The recent case of Nkata v Firstrand Bank Limited 2014 2 SA 412 (WCC) illustrates the failure of the applicable South African statutory provisions to deal satisfactorily with the situation in which a homeowner, having fallen into arrears in respect of home mortgage obligations, thereafter remedies his default by paying the arrears to the mortgagee. The judgment exposes the lack of clarity regarding the application of subsections 129(3) and (4) of the National Credit Act 34 of 2005 ("NCA") and the mortgagor's entitlement to reinstatement of the mortgage agreement in such circumstances. It brings to the forefront the need for uniform and consistent application in all high courts of clearly articulated substantive and procedural requirements, including steps with which creditors and debtors should comply, before the sale in execution, or "forced sale", of a person's mortgaged home (sometimes loosely referred to as "home mortgage foreclosure") may proceed.
This article discusses Nkata v Firstrand Bank and some of the unsatisfactory aspects of the decision, including the retrospective impact of the judgment upon the positions of the homeowner and the lender and also resultant adverse implications for the purchaser in execution as well as the subsequent purchaser in a private sale of the property. It also discusses the shortcomings of subsections 129(3) and (4), as well as their recent amendment by the National Credit Amendment Act 19 of 2014 ("NCAA"). Comparative observations reflect how some foreign jurisdictions' legislation regulates forced sale of a debtor's mortgaged home and reinstatement after the homeowner pays the arrears. This article emphasises the need for more appropriate legislative amendment that will give effect to the objectives of the NCA and afford the debtor's home the respect and legal recognition which it deserves while nevertheless positively affecting lenders' interests.
Relevance and importance of the amicus curiae participation in Mayelane v Ngwenyama
[Discussion of Mayelane v Ngwenyama 2013 4 SA 415 (CC)]Author Amanda SpiesSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 156 –167 (2015)More Less
Amici curiae have for many years assisted courts to reach decisions with the Constitutional Court being the first court to acknowledge this contribution by implementing specific rules to administer amici curiae participation. Recently the participating amici curiae in Mayelane v Ngwenyama were able to establish a unique role and identity for this form of participation in litigation by assisting the Constitutional Court to determine the content of living customary law. This contribution explores the amici curiae participation in the Mayelane matter and analyses the Constitutional Court's reliance on the amici to inform it on the content of Tsonga custom to establish if a wife's consent is a requirement in entering into a subsequent marriage. The analysis is called for to confirm the impact amici curiae participation has in assisting courts to reach decisions conscious of the impact it has on the community it serves.
The rationale for the imposition of non-financial obligations on apartment owners in a sectional title schemeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 168 –189 (2015)More Less
The principal aims of sectional title schemes are to preserve the physical integrity and the pleasant appearance of the sectional title building and to strive for harmony in an intensified community where the individual units are physically interdependent and the residents are seldom completely homogeneous. Therefore, sectional owners are burdened with numerous financial and non-financial obligations in terms of the Sectional Titles Act 95 of 1986, the prescribed management and conduct rules and the common law concept of nuisance. This contribution examines the various non-financial obligations imposed on sectional owners relating to their sections, exclusive use areas and the common property. The examination of the content and rationale of each of these obligations indicates that the imposition of non-financial obligations on sectional owners are essential for preserving the physical integrity of the sectional title building and social harmony in an intensified sectional title community. Consequently, the surrender of freedoms inherent in the non-financial obligations imposed on sectional owners is a fair price to be paid for a well-preserved building and a contented and harmonious sectional title community.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 190 –219 (2015)More Less
The precautionary principle has gained general acceptance in international, regional and a number of domestic jurisdictions. In South Africa the principle has found a tentative foothold in legislation and case law but generally has had limited practical application. Much needed economic development in the country has seen, amongst other things the enactment of the Infrastructure Development Act 23 of 2014 to promote large infrastructural developments. This article outlines the development and importance of the precautionary principle in international law, its incorporation into in some regional and domestic jurisdictions, such as the EU, Canada, and Australia and motivates for it to be given serious consideration in South Africa's development agenda. It points out that the principle is fundamental to furthering the global ideal of long term sustainable development, a constitutionally mandated goal in South Africa. The principle is therefore a vital constituent in the decision-making process of all proposed future large scale infrastructural developments such as nuclear power stations and hydraulic fracturing ("fracking") undertakings. In short, it is argued that the time is ripe for the more robust application of the principle, particularly where administrative decision-making entails large-scale developments having a potentially significant bearing on sustainable development.
Author Mzukisi N. NjotiniSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 220 –239 (2015)More Less
Recent technologies, for example the internet and the world-wide-web continue to have a major influence on society (i.e. information society). These ICTs are vital in doing business online and facilitate the exchange of information or data. In more perverse cases, they modify the traditional legal meaning of certain concepts that are known to conventional societies. The most important within the context of this article is the notion of property. Accordingly, it is inquired whether information or data, being the new forms of incorporeals, is property for purposes of the law. In other words, do users of modern technologies, that is, computer users, have a legally recognised and valid claim to information which they store in their computer databases?
Author Tuuli KarjalaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 240 –245 (2015)More Less
Refugee Law in South Africa outlines domestic South African refugee law and explores its relationship with international refugee legislation. The book gives an overview of the increasing body of refugee case law in South Africa and critically examines the recent policy changes relating to refugees by the South African government and the impact of these changes on practice.
Author Jeannie Van WykSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 26, pp 246 –249 (2015)More Less
Land reform has been a part of the South African government's strategy since the late 1980s when the first tentative steps were made to address the extreme inequities and segregation in relation to land. The 1991 White Paper on Land Reform initiated some important policy proposals around land reform and called for the repeal of some of the most notorious discriminatory legislation. The issues around property that were thrashed out during the Codesa negotiations led to the incorporation of land restitution provisions in the interim Constitution of 1993 and resulted in a carefully crafted property clause in the 1996 Constitution. The second part of this property clause authorises state action to promote land and related reforms. Given its scope, land reform has developed into a distinct area of the law, with its own unique, comprehensive, and at times confusing set of policies and legislation. Professor Juanita Pienaar has now systematised this very extensive material in a seminal publication. Land Reform is the fifth title in Juta's Property Law Library Series. As such, its point of departure is a property law one, but it links all the relevant constitutional and human rights considerations.