South African Law Journal

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Latest documents

• Property and access: Inequality of land relations and the continued vulnerability of women

  This article foregrounds the interplay between property and access from the perspective of those on the margins of property law, focusing specifically on women. The aim is to identify several instances where women are still in vulnerable positions despite a constitutional and/or legislative framework that purports to be progressive regarding gender equality and advancing women's land rights. The article challenges the belief that individual wins in some court judgments are enough to proclaim the strengthening of women's land rights. In this respect, it is important to consider whether a picture emerges that moves women away from the periphery towards the centre of property law.

• Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze

  With the focus in the South African higher education landscape shifting towards research output, it is imperative that law schools equip postgraduate law students with proper legal research skills for them to carry out their legal research effectively. While the doctrinal legal research methodology has always been used in legal research and is well suited for the discipline of law, it has been subjected to serious criticism for some time, with some scholars labelling it as arrogant, non-objective and lacking in academic flair. Those who criticise the doctrinal legal research method tend to prescribe for the discipline of law research methodologies popular in other disciplines, such as the qualitative and quantitative methodologies that are popular in the social sciences. While a legal scholar doing interdisciplinary legal research is free to use such methodologies, these methodologies may not be suitable for classical legal research. The doctrinal legal research methodology remains the most appropriate methodology for legal research, as it is concerned with solving legal problems through the legal analysis of legal norms. The sources of legal norms are internally determined by the discipline itself and cannot be identified through qualitative and quantitative research.

• Wrongfulness in the South African law of defamation

  According to some South African delict scholars, the South African law of defamation makes the wrong fulness of a defamatory statement turn on two conditions: first, that the statement caused reputational damage; and, secondly, that the damage caused was not outweighed by the achievement of some greater good. This article proposes an alternative view. According to it, the wrong fulness of a defamatory statement turns on two very different conditions. The first is that the statement represented the defamed person (the plaintiff) as having a worth which is less than the worth which the person ought to be estimated to have. The second is that the person making the statement (the defendant) intended this. The article starts by raising two objections to the scholars' view. One is that it cannot explain the fact that a defamatory statement can be false yet lawful. The other is that it cannot explain the fact that a defamatory statement may be found to be wrongful even though it caused no reputational damage. After this, the article goes on to discuss and defend the alternative view's two conditions — that is, the 'representation condition' and the 'intent condition'. The latter is likely to be the more controversial, as it flies in the face of a scholarly dogma to the effect that wrong fulness does not in any way depend on fault. However, as the article demonstrates, it is impossible to make sense of the wrong fulness-negating defences of privileged occasion, fair comment, and reasonable publication, unless we accept the intent condition.

• The appealability of decisions to certify class actions: Where are we now? A proposed approach after Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd (WCC)

  Decisions refusing to certify class proceedings are appealable. The position regarding the appealability of decisions certifying class actions is, however, less clear. Regrettably, in Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd [2021] JOL 51475 (WCC), the court did not give a final ruling on whether a decision to certify a class action is appealable. Gamble J merely assumed, without deciding, that his decision in Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd 2022 (2) SA 237 (WCC) to certify the class action was appealable. This article aims to clarify the preferred approach when deciding whether to permit an appeal against a decision to certify a class action.

• Clarifying the constitutional status of the National Prosecuting Authority

  Chapter 8 of the Constitution aligns the status of the National Prosecuting Authority ('NPA') to the separation of powers typical for constitutional states where two principal organs developed in the third branch of state power during the mid-nineteenth century to refine Montesquieu's model of separation of powers. The organs for the 'administration of justice' consist of the judiciary (adjudication) and prosecutors (prosecuting crime). Therefore, the status of the NPA entails both structural and functional independence from the executive. The reasons for the NPA's failures are manifold and complex. The main reason is that the political elite continued to treat the NPA as a part of the executive branch, partly perpetuating the practice under the former Westminster constitutions and partly due to the ANC's policy of 'democratic centralism'. This has resulted in a chaotic state organisation of criminal justice where the powers allocated to prosecutors by s 179(2) are not clearly demarcated from policing powers under s 205(3) of the Constitution. For the proper functioning of the NPA to uphold the rule of law, it is important to delineate clearly the powers of the NPA from those of the judiciary, the executive — especially the Minister of Justice — the President, the police, and the watchdog functions of Chapter 9 institutions.

• Dolus eventualis: An endangered colonial species

  This article focuses on the feasibility of dolus eventualis in addressing the problem of intended endangerments — that is, the question as to how the secondary consequences flowing from an act of endangerment, as distinguishable from an attack, can be said to be 'intended' (dolus). This problem manifests typically in the form of the orthodox marketplace bomb-thrower who has one primary aim but whose actions result in several other secondary consequences, some of which may not have been aimed or foreseen in any primary sense. After discussing why the two historical solutions — strict liability and the versari doctrine — are not viable answers to this problem, the remainder of the article examines the feasiblity of dolus eventualis as a third contemporary solution. This examination focuses on both the historical contradictions as well as the prevailing doctrinal controversies that are associated with dolus eventualis. The fourth part of the article reflects on five uncontroverted problems that currently beset dolus eventualis. The article concludes on a sceptical note: that dolus eventualis may not survive the many difficulties discussed in this article, and that exploring the expansion of negligence or the creation of a separate and new third form of fault may not be a bad idea.

• 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 various negative consequences at household and macro-economic levels. These consequences are exacerbated when vulnerable debtors face unscrupulous debt collectors emboldened by a fragile legislative framework. Debtors depend on judicial intervention and effective access to courts to combat abusive lending and debt-collection practices. Courts are called on to protect vulnerable consumers by enforcing constitutional guarantees and values. Recently, the Supreme Court of Appeal was presented with the opportunity to demonstrate its commitment to transformative constitutionalism in consumer law and debt collection in the case of Bayport Securitisation Ltd v University of Stellenbosch Law Clinic. This judgment is significant as it attempted to address a serious and impactful concern with the interpretation of the National Credit Act. It will be demonstrated that the judgment is susceptible to serious criticism, particularly in its regrettable indifference to the constitutional values pertinent to the matter.

• The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

  The definition of 'maritime claim' in s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 is the gatekeeper to the exercise of admiralty jurisdiction. It is accordingly critical that the process of classifying a claim as a maritime claim is certain and predictable. However, the elasticity of the wording in the definition can create confusion for claimants in borderline cases. In Kuehne & Nagel (Pty) Ltd v Moncada Energy Group SRL 2016 JDR 0312 (GJ) the court formulated the 'legally relevant connection' test to assist it in classifying a claim to enforce a demand guarantee. The test was subsequently relied on in Twende Africa Group (Pty) Ltd v MFV Qavak 2018 JDR 0238 (ECP) in classifying a damages claim for unlawful contractual interference. This article examines the 'legally relevant connection' test in the context of both cases to assess whether it is consistent with the definition of 'maritime claim'. We show that the reasoning followed in Kuehne & Nagel is flawed in several respects, revealing certain fundamental weaknesses of the test. However, the decision in Twende demonstrates that the test is capable of yielding results that align with the policy justification for the exercise of admiralty jurisdiction.

• A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa

  Political donations and expenditure by companies raise serious concerns due to poor corporate governance practices, which include the lack of accountability of directors to shareholders. The shareholders' right to vote is one of the company-law mechanisms that may be used to control the directors' discretion regarding political donations and expenditure. However, the Companies Act 71 of 2008 does not give shareholders the right to approve a company's political donations or expenditure. Consequently, the directors enjoy a wide general discretion regarding a company's political donations and expenditure. The article examines certain key policy considerations concerning the introduction of prior shareholder approval of political donations and expenditure by companies in South Africa. It examines the legislative requirements regarding shareholder approval of political donations and expenditure in the UK under Part 14 of the Companies Act, 2006, the philosophical rationale underpinning these legislative requirements, and the extent to which the introduction of shareholder approval of political donations and expenditure in the UK has achieved the underlying objectives of promoting transparency and accountability. The article then advocates for the introduction of the requirement for prior shareholder approval of political donations and expenditure under the South African Companies Act, and provides detailed recommendations on how such requirements could be implemented.

• Intervention in South African municipalities: Dangers and remedies

  South Africa's Constitution guarantees municipal autonomy; at the same time it enjoins the different elements of the state to co-ordinate their efforts through 'co-operative government' and, in conjunction with legislation, it under some circumstances permits (or even requires) provincial and national government to intervene in local government affairs to secure effective government and oversight. These powers of intervention, justified by reference to s 139 of the Constitution, range from disciplining errant councillors to the forced dissolution of non-performing municipalities. Some welcome such intervention as a counterweight to local-level corruption and inefficiency, but in a partisan environment, especially where different spheres are controlled by different parties or coalitions accountable to distinctive electorates, these powers of intervention are, we argue, open to political abuse. This abuse is likely to become more prevalent as unstable local coalition governments become more common, providing more pretexts for intervention and opportunities for councillors in political minorities to subvert their own councils in the hope of inviting intervention by higher-tier actors associated with their own party. In line with the 2021 Constitutional Court case censuring the dissolution of Tshwane Municipality by the Gauteng government, we argue for restricting grounds for intervention, especially more radical forms of intervention. As far as possible, the task of removing corrupt and inefficient local councils and councillors should be left to local voters.

Featured documents

• The South African Constitution and the human-rights obligations of juristic persons

  The South African Bill of Rights binds both state actors and, in certain cases, natural and juristic persons. Horizontality extends the ambit of the Constitution beyond the regulation of the state, to include private persons. This article proposes that in certain circumstances horizontality may...

• Time for Cinderella to go to the ball: Reflections on the right to freedom of scientific research

  Despite the fact that the Constitution explicitly protects the right to freedom of scientific research, this right features neither in the preamble to any legislation, nor in any reported case law. If the right to freedom of scientific research remains in obscurity, South Africa could slip into...

• Problems relating to the formation of online contracts: A South African perspective

  This article analyses the formation of online contracts, or standard-form contracts appearing in electronic form, in the South African context. The unique characteristics of online contracts such as their length and ubiquity render it more difficult to establish assent to these contracts than in...

• Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action

  A pernicious strand of legal proceedings, instituted by affluent parties to cow their critics into silence, is sweeping through the world, discouraging engagement on issues of public interest. These proceedings, termed strategic litigation against public participation (SLAPP) suits, have had...

• The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases

  Flowing from the constitutional imprimatur in s 172(1) to further 'justice and equity' ('J&E'), the courts have made important strides in developing a framework for remedying irregular public procurement. They have not, however, done so clearly and coherently; nor in a way that encourages...

• A legal fallacy? Testing the ordinariness of ‘ordinary meaning’

  The canon that dictates that words be interpreted according to their ordinary meaning has been widely debated. Many studies have either highlighted the shortcomings of the ordinary meaning principle or have tried to debunk its existence altogether. Despite efforts to introduce a new approach to the ...

• Empowering rural women crafters in KwaZulu-Natal: The dynamics of intellectual property, traditional cultural expressions, innovation and social entrepreneurship

  This article, based on qualitative and desk research, explores the intellectual property, traditional cultural expression, empowerment, innovation, and entrepreneurship dynamics at play in the work of a group of women crafters (bead-makers) participating in the Woza Moya project of the Hillcrest...

• Intervention in South African municipalities: Dangers and remedies

  South Africa's Constitution guarantees municipal autonomy; at the same time it enjoins the different elements of the state to co-ordinate their efforts through 'co-operative government' and, in conjunction with legislation, it under some circumstances permits (or even requires) provincial and...

• Forfeiting proceeds: Civil forfeiture, the right to property and the Constitution

  Civil forfeiture powers are a useful tool in the fight against crime particularly the organised kind. They deter such crime by removing the proceeds from wrongdoers, thereby diminishing the incentives for offending. However, as the courts in South Africa have long recognised, the forfeiture powers...

• The importance of a legislative framework for co-operation and collaboration in the Twin Peaks model of financial regulation

  The enactment of the Financial Sector Regulation Act 9 of 2017 ('the FSR Act') on 21 August 2017 marks the first stage of South Africa's transition from a sectoral to a Twin Peaks model of financial regulation. On 1 April 2018 the commencement date of the FSR Act two regulators, the Prudential...