South African Law Journal

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Latest documents

• Off-Premises Cannabis Consumption and the Workplace: Striking a Balance Between Zero-Tolerance Policies and Employee Rights. An Analysis of Enever v Barloworld

  South African labour law recognises both employers' rights to discipline and employees' rights to fair labour practices. While the Labour Relations Act ('LRA'), the Constitution and the Employment Equity Act prohibit unfair discrimination and guarantee fair dismissals, employers may implement workplace safety rules, including zero-tolerance drug policies. Following Prince v Minister of Justice (2018), which decriminalised private cannabis use, disputes have arisen over employees' dismissal for positive tests. In Enever v Barloworld (2024), a category analyst was dismissed under her employer's zero-tolerance policy after repeatedly testing positive for cannabis used privately for health and religious reasons. The Labour Court upheld the dismissal, emphasising workplace safety. However, the Labour Appeal Court overturned it, finding the dismissal to be automatically unfair and discriminatory under s 187(1)(f) of the LRA, as it impaired the employee's dignity and failed to distinguish between workplace safety risks and private use. This article argues that employers must reassess zero-tolerance cannabis policies to account for job requirements, fairness and constitutional rights, to balance workplace discipline with employee rights in an appropriate way.

• An Analysis of Theoretical Perspectives on Executive Remuneration vis-à-vis Transformative Constitutionalism in South Africa

  This article critically examines dominant theoretical perspectives on executive remuneration in the context of South Africa's constitutional commitment to substantive equality, human dignity and social justice. Certain theories on executive remuneration are analysed to assess their explanatory power and normative adequacy in light of the country’s deeply entrenched socio-economic inequality. The article argues that while these theories have shaped remuneration practices in the corporate sector, they largely reinforce, rather than challenge, excessive pay disparities and fail to align with the transformative goals enshrined in the Constitution of the Republic of South Africa, 1996. Drawing on the concept of transformative constitutionalism, the article highlights the obligation of private actors, including companies, to respect and advance constitutional values. In response to the limitations of existing remuneration theories, the article proposes the Inclusive Redress Theory ('IRT'), a normative framework grounded in principles of substantive equality and social redress. The IRT advocates for mechanisms such as maximum pay ratios and redress-linked incentive structures to ensure fairness and accountability in executive remuneration. The article concludes that adopting such a framework could help to focus corporate practices on the constitutional imperative of social transformation in post-apartheid South Africa.

• Aspects of Cancellation Clauses for Breach of Contract: The Impact of Consumer Legislation, and Whether Cancellation Clauses Should Apply to Partial Repudiation or Very Minor Breaches

  Consumer legislation impacts upon suppliers' freedom to draft cancellation clauses. The view that it is not necessary in the case of repudiation to follow a procedure for cancellation prescribed in an agreed cancellation clause should apply where the breaching party repudiated the entire agreement or all outstanding obligations. By contrast, it should not generally apply where the breaching party repudiated only a part of the agreement, because the argument that the breaching party repudiated the whole of the agreement, including the cancellation clause, does not apply to partial repudiation. An exception would be where the breaching party persists in the partial repudiation despite repeated demands to retract the repudiation. A cancellation clause that allows the aggrieved party to cancel the contract immediately, without requiring the breaching party to issue an ultimatum, should not apply to an insignificant breach. Whether a breach is insignificant should depend on whether it is non-culpable and has little impact on the aggrieved party. If this rule is not regarded as acceptable for contracts generally, it should at least apply in the case of lease, as the tenant's possessory rights are affected, with serious consequences for the tenant. There is support for these rules in foreign law.

• Corporate Governance and Artificial Intelligence: The Emerging Legal Challenges in South Africa’s Boardrooms

  This article examines the emerging legal and governance challenges arising from the integration of artificial intelligence ('AI') into South African boardrooms. As AI technologies increasingly influence corporate decision-making, they raise complex questions about directors' fiduciary duties, accountability, and the adequacy of existing legal frameworks. Drawing on the Companies Act 71 of 2008 and the King V Code, this article examines how the adoption of AI intersects with directors’ duties of care and diligence, particularly as reliance on algorithmic tools becomes more prevalent. It critically assesses recent literature that distinguishes between assisted, augmented and autonomous AI, using this framework to analyse varying levels of AI integration and their implications for governance. The article identifies significant regulatory gaps in current soft-law approaches and argues that the King V provisions, while representing meaningful progress, require further refinement to address boardroom-specific risks and accountability concerns. To that end, the article proposes a hybrid regulatory model that combines enhanced principles-based guidance with targeted amendments to company law. This approach aims to balance innovation with legal certainty, ensuring that South Africa’s corporate governance standards evolve in tandem with AI capabilities while preserving the ethical leadership and human accountability central to sound governance.

• The Shareholders' Agreement and the Memorandum of Incorporation: Inconsistencies, Efficiencies and the Missing Nuance in Section 15(7) of the Companies Act

  Section 15(7) of the Companies Act 71 of 2008 radically altered the way in which the constitutional documents of a company — the memorandum of incorporation (‘MOI’) and the shareholders’ agreement — interact. Section 15(7) provides inter alia that any provision in the shareholders’ agreement that is inconsistent with a company's MOI is void to the extent of the inconsistency. This article examines the interplay between the shareholders’ agreement and the MOI and offers recommendations for resolving any conflicts between the two. This article critically evaluates how the courts have interpreted s 15(7). The analysis reveals that our courts do not always interpret s 15(7) consistently or correctly. Where s 15(7) is applied correctly, it can lead to efficiencies in corporate governance, reaffirming the majority-rule doctrine that our corporate law embraces. Even when s 15(7) is not applied correctly, it can lead to absurd outcomes in which the provisions of a shareholders’ agreement are ignored despite all the shareholders consenting to them. Section 15(7) should ideally recognise unanimous shareholders’ agreements over the MOI in certain contexts. Given that legislative reform is not always realistic, I make practical recommendations to legal practitioners about navigating s 15(7).

• Navigating Intestate Inheritance Rights: The Case for Platonic Partners in South Africa's Intestate Succession Act

  South Africa's Intestate Succession Act 81 of 1987 privileges the nuclear family and, in particular, marriage and marriage-like relationships in intestate inheritance. This article examines the exclusion of platonic relationships from intestate inheritance, situating the problem within South Africa's evolving family structures and jurisprudence. The article discusses how legal reform (through jurisprudence and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009) has kept intestate inheritance tethered to a narrow marriage-centric model. It draws on comparative law to demonstrate both the possibilities and limitations of extending benefits usually reserved for marriage to other relationships. The article argues for an amendment to the Intestate Succession Act that would empower the Master of the High Court to consider the totality of the circumstances and relationships of dependency in making an order for the devolution of an intestate estate. This discretionary remedy may provide relief to vulnerable dependants pending broader legislative reform. By decentring marriage in intestate inheritance, the article contributes to the broader project of aligning family law with social reality and fostering inclusive protections for diverse South African households.

• Enforcing Living Wills in South Africa

  This article examines some theoretical and practical issues concerning the implementation of living wills, also known as advance directives, on the assumption that legislation on the general issue of physician-assisted dying in South Africa is unlikely to be enacted soon. Pending the adoption of legislation, living wills provide an avenue for people to exercise meaningful choices about medical treatment near the end of life. Yet, medical practitioners and even courts often overlook the existence of living wills, despite the requirement of informed consent for any medical treatment. Four main factors impede the enforcement of these documents: first, the argument that the appointment of a person as a proxy decision-maker lapses when the maker of the living will becomes incompetent to express their views; secondly, ambiguity and contradictions in the law relating to assisted dying which are exacerbated by the medical professional guidelines; thirdly, the focus on criminal liability in the case law impedes the full development of the jurisprudence on this topic; and, fourthly, the practical difficulties in making the existence of living wills known to medical personnel at the time when they should be implemented. The article concludes by suggesting some ways to overcome these difficulties.

• The Enforceability of and Contractual Remedies for Breach of Extended Notice Periods in Employment

  This article examines two key remedies available to employers — specific performance and damages — when employees breach agreed notice requirements. While the common-law position on termination by notice is largely settled, enforcing extended notice clauses remains a legally complex matter. Drawing on recent case law, the article explores the evidentiary and doctrinal thresholds for relief and traces a shift in judicial reasoning towards fact-sensitive adjudication. This evolution signals a deeper commitment to balancing enforceability, fairness and the realities of the modern workplace.

• Public Interest Standing Under Section 157(1)(d) of the Companies Act: A Sharp Arrow in the Quiver of Public Interest Guardians

  This article examines the evolution of the notion of public interest in South African law, from the historical requirement for litigants to demonstrate a direct interest in the relief to its current endorsement by the Constitution of the Republic of South Africa, 1996. Traditionally, South African courts rejected the doctrine of the actio popularis, concerned that allowing open-access standing would open the floodgates of litigation and overwhelm the judicial system. However, the Constitution marked a paradigm shift, permitting any individual 'acting in the public interest' — an 'ideological plaintiff' — to protect constitutional rights through public interest actions. This constitutional pivot was further reflected in s 157(1)(d) of the Companies Act 71 of 2008, which introduced public interest standing into South African company law. Despite this significant shift, the application of public interest standing in company law remains largely unexplored until recent judicial developments. Notable cases, such as Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs, Organisation Undoing Tax Abuse NPC v Myeni (Special Plea Judgment) and Vantage Mezzanine Fund II Partnership v Hopeson have shed light on the potential and limitations of this mechanism in company law. This article critically examines these developments, clarifying the contours of public interest standing, evaluating its effectiveness, and speculating on its future trajectory, informed by insights from pioneering cases.

• Protection Down the Road: Car Shapes and Intellectual Property Law

  The automotive industry is of growing importance in South Africa. To maintain the country's appeal as an international business hub for foreign automakers, the law should provide sufficient protection for automakers with regard to the shape of their vehicles. This article considers the extent to which South African intellectual property law provides protection for the shape of a motor vehicle. The law is examined comparatively, with the approaches in the European Union and the United Kingdom investigated to determine whether South African intellectual property law meets international standards in this context. It is argued that the law of registered designs remains the primary method of protection for car shapes, but that trade mark law and copyright law can be developed to offer supplementary avenues to enhance protection in this area.

Featured documents

• Judicial intervention and the call to transformative constitutionalism in the context of consumer law, debt collection and the National Credit Act: Bayport Securitisation Ltd v University of Stellenbosch Law Clinic

  As a result of various socio-economic factors, South Africans are some of the most indebted consumers in the world. Bad debt collection has escalated to a significant industry, with billions of rands at stake. The effects of private over-indebtedness and resulting collections are profound and have...

• Can a trust be regarded as a person for purposes of a double-taxation agreement to which South Africa is a party?

  Like so many other entities, trusts often do not function only in one jurisdiction. They may be employed in international transactions, and therefore the trust runs the risk of international double taxation, as do the parties to the trust. South Africa has developed a law of trusts that is unique...

• Which transactions trigger a right of first refusal or preferential right to contract?

  This contribution considers the delineation of the transactions that breach or 'trigger' a right of first refusal, thereby giving its holder the right to exercise his right and to enforce the main contract. Examples of questions on which there is either scant, conflicting or unpersuasive South...

• Blind justice? Forensic science and the use of Closed Circuit Television images as identification evidence in South Africa

  This article reviews the standard legal responses to forensic science and medicine evidence in South Africa. Using the example of the interpretation of closed circuit television ('CCTV') images of an armed robbery to identify the alleged offenders, we explore the deficiencies in contemporary...

• Evicting Unlawful Occupiers for Health and Safety Reasons in Post-Apartheid South Africa

  In two recent judgments, the Constitutional Court failed to provide local authorities with guidance as to the precise nature of the relationship between police-power legislation to evict unlawful occupiers for health and safety reasons, and the Prevention of Illegal Eviction from and Unlawful...

• Notes: State privilege, protection of information and legal proceedings

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• Trial by ambush: Litigation in the tax court
• Breaking the tie: Evictions from private land, homelessness and a new normality

  It's time to face facts. Section 26 of the Constitution and section 4(7) of the PIE Act limit common-law rights of ownership. A court will not normally order an eviction that will lead to homelessness unless it is satisfied that alternative accommodation has been or can be made available - usually...

• The role of public policy in the law of contract, revisited

  There is little doubt that public policy, as a means of judicial control over the enforcement of contractual terms, is, and forever will be, somewhat of an unruly horse that is beyond absolute judicial control. As a standard-orientated concept, which is always context-dependent and subject to...

• Contesting the Removal of a Director by The Board of Directors Under the Companies Act

  Section 71(3) of the Companies Act 71 of 2008 has introduced a novel power into our company law, which permits the board of directors of a company under certain circumstances to remove a director from office. While there may be merits in vesting a company's board of directors with this power,...