South African Law Journal - Volume 132, Issue 2, 2015
Volume 132, Issue 2, 2015
Author Cora HoexterSource: South African Law Journal 132, pp 207 –229 (2015)More Less
'How important is the legal label one attaches to a set of facts upon which a party relies for a remedy under the law?' Froneman J asked in KwaZulu-Natal Joint Liaison Committee v MEC, Department of Education, KwaZulu-Natal & others 2013 (4) SA 262 (CC) ('KZN Joint Liaison Committee'). The answers offered by Cameron J for a majority of the Constitutional Court, and by Froneman J himself in a separate opinion, might alarm sticklers for procedure, but will interest those who believe that substance is more important than form. The case is remarkable primarily because the majority was prepared to enforce an official promise on public-law principles even though the claim was apparently framed in contract. This note explores three aspects of the majority judgment of Cameron J in KZN Joint Liaison Committee. It is suggested, first, that it is remarkable for its 'anti-formalism' in the sense of its willingness to overcome procedural obstacles in the way of the applicant. A second and related feature is that the judgment countenances avoidance of the statute that governs administrative law review, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). It has become commonplace for litigants to sidestep the PAJA by invoking a general constitutional principle instead, and the majority judgment in KZN Joint Liaison Committee may be regarded as facilitating avoidance of the statute in a not dissimilar manner.
The balance between certainty and flexibility in horizontal and vertical stare decisis : Bosch v Commissioner for the South African Revenue Service : notesAuthor Stephen RyanSource: South African Law Journal 132, pp 230 –245 (2015)More Less
The case of Bosch & another v Commissioner for the South African Revenue Service 2013 (5) SA130 (WCC) ('Bosch') is interesting, not only from the perspective of the law relating to simulated transactions, but also from the perspective of stare decisis. The Western Cape High Court's treatment of the decision of the Supreme Court of Appeal ('SCA') in Commissioner for the South African Revenue Service v NWK Ltd 2011 (2) SA 67 (SCA) ('NWK') raises important questions about the use of precedent in South Africa. These questions are all the more relevant in light of the very recent clarification of NWK by the SCA in Roshcon (Pty) Ltd v Anchor Auto Body Builders CC  2 All SA 654 (SCA) ('Roshcon'). In analysing the Bosch decision, it will be contended that the manner in which both judges approached the binding precedent of NWK was inappropriate, notwithstanding the decision in Roshcon, because it was in conflict with the doctrine of stare decisis.
The overcomplicated interpretation of the word 'may' in sections 129 and 123 of the National Credit Act : notesAuthor Michelle Kelly-LouwSource: South African Law Journal 132, pp 245 –257 (2015)More Less
Plain language, avoidance of ambiguity, and correct grammar and punctuation are all crucial when it comes to drafting legislation properly. A good example of careless drafting that can create a completely different meaning is found in the following example taken from an old South African statute (as quoted in Andrew J Burger A Guide to Legislative Drafting in South Africa (2001) 24): 'No-one shall carry any dangerous weapon upon a public highway except for the purpose of killing a wild animal or a policeman in the execution of his duty.'
Author Lee SwalesSource: South African Law Journal 132, pp 257 –270 (2015)More Less
The Electronic Communications and Transactions Act 25 of 2002 ('the ECT Act') was signed into law on 31 July 2002, and created a regulatory platform to enable electronic commerce and electronic communications in South Africa. The Internet has indelibly altered communication. There is no going back. Future generations will conduct themselves in an ever-increasing digital manner and the electronic signature is a critical component of conduct when an individual is required by a law (or by agreement) to sign a document or to agree to a transaction digitally. According to 'Internet world stats: Usage and population statistics' (available at http://www.internetworldstats.com/africa.htm#za, accessed on 3 June 2014), there are approximately 8 500 000 Internet users in South Africa, roughly 17.4 per cent of the population. The growth of the Internet is often described in exaggerated ways (Wenette Jacobs 'The Electronic Communications and Transactions Act: Consumer Protection and Contracts' (2004) 16 SA Merc LJ 556), but this underlies the very real fact that the growth in usage is exponential and must be considered when formulating Internet-related legislation.
The abandonment-mismanagement rule : vicarious liability for an employee's simultaneous commission and omission : notesAuthor Stephen WagenerSource: South African Law Journal 132, pp 270 –284 (2015)More Less
The South African legal doctrine of vicarious liability has undergone striking expansion in recent years. In a series of decisions, mostly involving the state and its police and servicemen, the courts have imposed liability for intentional wrongs constituting flagrant breaches of the wrongdoers' employment duties. The most recent of these decisions is that of the Supreme Court of Appeal in Minister of Defence v Von Beneke 2013 (2) SA 361 (SCA) ('Von Beneke'), which concerned the theft by an employee of the South African Defence Force of R4 assault rifle components and ammunition that facilitated an assault subsequently carried out with an assembled rifle. The employee in question had been responsible for safeguarding these and various other infantry weapons.
Author Firoz CachaliaSource: South African Law Journal 132, pp 285 –312 (2015)More Less
The 1996 South African Constitution envisages a significantly expanded role for the judiciary. A change in legal culture, following South Africa's constitutional transition, which is receptive to post-formalist styles of legal reasoning, also tends to expand the reach of the law. This change has implications for the relationship between the judiciary and the elected branches of government, and therefore for separation of powers. This article considers the principle of separation of powers in this context, as a source of both judicial authority and judicial self-restraint. Taking its cue from National Treasury & others v Opposition to Urban Tolling Alliance & others, it argues that the normativity of the principle of separation of powers and the democratic principles that inform the Constitution should frame the court's consideration of the limits of judicial intervention in cases concerning the allocation of public resources, at least in macro-political cases that do not involve specific spending decisions affecting identifiable individuals. In the E-Tolling case - which came before the Constitutional Court by way of an appeal against the grant of injunctive relief against an organ of state (the South African Roads Agency) - the majority of the court relied on the polycentricity of resource allocation in upholding the appeal. In a separate judgment, Froneman J offered a different separation of powers justification for this outcome, saying simply: '[T]he courts of this country do not determine what kind of funding should be used for infrastructural spending on roads and who should bear the brunt of the cost. The remedy in that regard lies in the political process.' Froneman J's political process argument seems to suggest a broader normative consideration, which is that such issues should as a matter of political morality and legal principle be resolved by the elected branches of government, because they are elected. This article seeks to develop this line of argument by drawing on Breyer J's suggestion that when interpreting the United States Constitution, its democratic objectives should be taken into account. The principle of active liberty, or self-government, is also one of the fundamental principles of the South African Constitution which should, along with other related principles (independence of the judiciary, the rule of law, and individual rights), be taken into account in developing and applying the separation of powers as a flexible constitutional principle relied upon by the judiciary to regulate its relationship with the representative branches and in appropriate cases to justify judicial restraint.
Source: South African Law Journal 132, pp 313 –339 (2015)More Less
On 30 August 2003, the World Trade Organization decided that eligible countries without manufacturing capacities would be allowed to import generic drugs once they had been issued with a compulsory licence from an exporter country. Canada was the first country to implement this decision in its patent law and subsequently to apply it. Considering the fact that improving drug accessibility is a priority in sub-Saharan Africa, it is relevant for countries with manufacturing capacities, like South Africa, to consider implementing the August 30th decision into their legislation. This mechanism represents an opportunity for South Africa to develop its pharmaceutical industry and to increase drug accessibility in Africa. In exploring this option, the Canadian drug exportation mechanism could serve as a model for legislation in South Africa. In this article we review the Canadian experience, including the weaknesses of the Canadian platform. Based on lessons from this review, we suggest that South Africa should consider implementing a new drug exportation mechanism in its national patent law in order to rebuild its pharmaceutical manufacturing capacities and to improve access to drugs in Africa. In essence, by supplying sub-Saharan African countries, and thus using the compulsory licensing mechanism created following the Pretoria lawsuits, South Africa would close the loop.
Covering bonds, the accessorial principle and remedies founded in equity - not self-evident bedfellowsSource: South African Law Journal 132, pp 340 –371 (2015)More Less
Covering bonds provide security for the fulfilment of future obligations, provided explicit reference is made to the intention to secure a future debt up to a maximum amount. The accessorial principle, in terms of which the vesting of the right of real security is dependent on the existence of a principal debt, also entails the automatic demise of the security right if no debt any longer exists. A covering mortgage bond ostensibly registered on the mistaken belief that the underlying loan agreement is valid, is ab initio void because it lacks the necessary accessory nexus. The perceived registered bond in reality never existed and the Deeds Registries must be corrected by cancelling the meaningless registration. Even if the creditor afterwards acquires another claim, it does not ex post ratify the void bond. A potential enrichment claim that may follow as a result of the advance of funds founded on an invalid loan agreement (presuming enrichment sine causa can be proven and no blame attaches to the conduct of the claimant condemned under the clean-hands principle) cannot be secured by a non-existing bond ostensibly registered as a 'covering bond' for the void loan. There was no consensus to secure this conditional debt founded on the condictio indebiti, and no real agreement as required for the abstract system existed. No judgment convinces merely because it ostensibly provides an equitable remedy to retrieve taxpayers' money that was incompetently squandered.
The role of the commercial mediator in the mediation process : a critical analysis of the legal and regulatory issuesSource: South African Law Journal 132, pp 372 –410 (2015)More Less
As commercial mediation makes its advance into the dispute resolution arena in South Africa, the article analyses the role of the mediator in the process from a legal and regulatory perspective. After discussing the qualities, skills and role of the mediator, the piece analyses the models of mediation most appropriate to the resolution of commercial disputes. The article proceeds to deal with education, training, accreditation and standards with particular reference to best practice experience from the EU and USA as a guide for the developing commercial mediation industry in South Africa. The possibility that legal proceedings might be brought against mediators is a significant form of accountability. Experience from other jurisdictions suggests that proceedings are likely to be taken against mediators by aggrieved disputants or third parties in South Africa. A number of situations are identified and analysed in light of existing jurisprudence where parties could seek to hold commercial mediators liable, as well as the steps that can be followed in order to limit exposure. The article also discusses mediator immunity before concluding with a discussion on the relationship between mediation and the practice of law in order to avoid confusion between the two roles of mediator and lawyer.
Toward an equality-promoting interpretation of socio-economic rights in South Africa : insights from the egalitarian liberal traditionAuthor Sandra LiebenbergSource: South African Law Journal 132, pp 411 –437 (2015)More Less
Theorists within the egalitarian liberal tradition have grappled with the question of how to achieve an alignment between the attribution of equal worth and citizenship to each person and the distribution of material resources in democratic societies. Their insights are relevant to devising constitutionally grounded strategies for redressing the intertwined challenges of poverty and inequality in post-apartheid South Africa. This article examines the implications of these theories for integrating the value of equality in the interpretation of socio-economic rights by the courts. It concludes that Nancy Fraser's principle of parity of participation offers rich possibilities for rendering both reasonableness review and the application of socio-economic rights to contractual relations more responsive to systemic social and economic inequalities.
Source: South African Law Journal 132, pp 438 –449 (2015)More Less
The Eastern Cape Division of the High Court officially celebrated its sesquicentennial on 26 July 2014, 150 years to the day after the promulgation of the Administration of Justice Act 21 of 1864 (C), which established a superior court for the Eastern Districts of the then Cape Colony, with the status of a local division, to be based in Grahamstown. The 150th Jubilee was commemorated on 28 November 2014 at a special full-bench sitting of the court in Grahamstown. This was followed by a procession down the High Street to the Cathedral of St Michael and St George, where a service of thanksgiving was held. The speeches delivered at the special sitting of this court by representatives of the judiciary, the Eastern Cape Society of Advocates, the Directorate of Public Prosecutions and the Grahamstown Attorneys' Association appear below. (For the speeches commemorating the centenary of the establishment of this division see (1964) 81 SALJ 438.)
Author Christopher GeversSource: South African Law Journal 132, pp 450 –462 (2015)More Less
Writing a textbook is a generally difficult undertaking. Writing an international law textbook is particularly challenging, in at least two respects. Conceptually, there is no 'simple' introduction to international law, particularly when one's point of reference is domestic law. Complications related to international law's unique juridical nature, which Megret aptly describes as being 'a law "in between"', manifest themselves in 'international law's subjects, its ethical tenor, its organising social principle, its epistemological outlook, its normative structure, its relationship to domestic law, and its functional modus operandi' (Frederic Megret 'International law as law' in James Crawford & Martti Koskenniemi (eds) The Cambridge Companion to International Law (2012) 64). From a practical perspective, as the subject is international, as it were, the marketplace is far larger than that of domestic legal texts, and so is the competition. As a result, one either has to compete with well-established, general treatises of the like of Brownlie's Principles of Public International Law 8 ed (2012) by James Crawford, or specialise the text by pitching it at a certain level or a particular audience. Examples of 'level-specific' texts are Complete International Law 2 ed (2014) by Ademola Abbas or Textbook in International Law 7 ed (2013) by Martin Dixon. Examples of 'audience-specific' texts are Public International Law: An Australian Perspective 2 ed (2005) by Sam Blay, Ryszard Piotrowicz & B Martin Tsamenyi and, closer to home, International Law: A South African Perspective 4 ed (2011) by John Dugard.
Author George DevenishSource: South African Law Journal 132, pp 462 –469 (2015)More Less
This is the third volume in the trilogy by Peter Raina on the history of the House of Lords. I have reviewed Volumes 1 and 2 in (2012) 129 SALJ 175 and (2013) 130 SALJ 884 respectively. Volume 3 is aptly designated: 'Reforms Attempted'. It covers a fascinating period of recent history, the Macmillan-Wilson era. Like the two previous volumes, this volume is a tome, running to 956 pages, and draws on newly released documents, some of which provide an insight into the politics and constitutional history of the period. Some notable incidents are the 'Winds of Change' speech, the notorious Profumo scandal of the Macmillan administration, and Rhodesian UDI in the period of Harold Wilson's Prime Ministership.
Socio-Economic Rights in South Africa: Symbols or Substance?, Malcolm Langford, Ben Cousins, Jackie Dugard & Tshepo Madlingozi (Eds.) : book reviewAuthor Mart SusiSource: South African Law Journal 132, pp 469 –477 (2015)More Less
This important collection is edited by world-known scholars in the field of sociological jurisprudence, civil society and social justice. The twenty contributors are drawn from various universities and research centres, mainly in South Africa. After the introductory chapter, which identifies the main empirical research question behind the book as being a critical assessment of the structural compliance failure hypothesis in reference to socio-economic rights in South Africa and globally, the book is divided into two parts. The first part, 'Context and contestation', sets out the context for the development of civil society strategies on a national scale in law, politics and the economy. The second part, 'Thematic areas', contains an analysis of eight specific socio-economic rights, which are recognised by South Africa's legal order through constitutional level norms and/or the jurisprudence of the Constitutional Court, and which establish the basis for characterising the country as the cradle of contemporary socio-economic rights.