South African Law Journal

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
0258-2503

Description:

The South African Law Journal is South Africa’s premier law journal. It publishes articles, notes on cases and book reviews by prominent members of the legal profession and academics. Founded in 1884, it is the oldest law journal of its kind in the world. The South African Law Journal is the legal showcase for new ideas, changing attitudes and shifting emphases in South African law. Those who are interested in these changes and developments will find this journal stimulating reading.

Latest documents

  • The many shades of intolerability in the workplace

    The notion of intolerability traverses several workplace decisions. However, its meaning in the law is far from linear, and its significance varies, particularly when considering three primary dismissal-related scenarios: the meaning of dismissal; the general threshold for dismissal (also in the case of first offences); and the barriers to reinstatement in the case of unfair dismissal. This article restates established principles concerning labour dispute resolution, particularly those relating to onus and review standards and the role of breach of trust in employment relations. Drawing on recent jurisprudence, the article revisits the assumed role of intolerability and explores its nuanced impact on decision-making processes. In particular, the article demonstrates how the burden of proof and applicable review standards in the case of each of these dismissal-related scenarios can transform an ostensibly neutral term into a kaleidoscope of shades and meaning, with far-reaching implications in the workplace.

  • Common-law avoidance

    This article discusses an important trend in recent judgments of our appellate courts, which I call 'common-law avoidance'. Rather than applying established sets of common-law principles, the courts have chosen to substitute them with other sets of norms of their own invention, usually sourced in the Constitution. This marks a departure from the status quo ante, in which it was accepted that the impact of the Constitution on private-law disputes was to be felt through the common law, rather than by displacing it. I discuss three cases that evidence this new pattern, spanning the three branches of the law of obligations: AB v Pridwin Preparatory School, which implicated the law of contract; Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality, involving delict; and Greater Tzaneen Municipality v Bravospan 252 CC, which raised an issue in the law of unjustified enrichment. I critically assess the trend exhibited in these cases, arguing that it is the result of (among other factors) the courts' preference for the Constitution's more familiar and discretionary standards, and of their increasing difficulties in meeting the demands of the common-law method.

  • A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

    This article examines the relationship between the role of the superior courts as upper guardians of minors and the constitutionally enshrined right of South African children to have their best interests considered paramount in any matter concerning them. The powerful procedural role of the superior courts in this regard is not subject to review or appeal, enabling the courts to intervene of their own accord on behalf of and to protect all children in their jurisdiction. The article examines whether this upper guardianship role has become superfluous and outdated in light of the constitutional requirement that courts consider the paramountcy of the child's best interests as an independent right. The High Court's upper guardianship role provides a more flexible legal basis for judicial intervention, as the case law reviewed in this article indicates. It is also supported by s 173 of the Constitution, which refers to the inherent powers of courts to protect and regulate their own process and to develop the common law, and by s 45(4) of the Children's Act. Furthermore, the superior courts, as courts of record, enable the development of a system of precedent-based child law, providing judicial reasons for all decisions and justifying the retention of the common-law inherent jurisdiction of the High Court as the upper guardian of children. We conclude that there is a residual role for the continued existence of the powers of the superior courts to act as upper guardians of the children within their jurisdiction, the constitutional best-interests standard notwithstanding.

  • Procedural justice as a feature of transformative substantive equality: Critical notes on Social Justice Coalition v Minister of Police (CC)

    The case of Social Justice Coalition v Minister of Police 2022 (10) BCLR 1267 (CC) is concerning. The litigants and the Constitutional Court sidestepped the innovative and transformative role that is envisaged for access to courts and judicial proceedings and that is required by a substantive conception of equality underlying impoverished peoples' equality rights. This article argues that procedural justice was overlooked as a feature of transformative substantive equality to be applied in a claim relating to poverty-based discrimination. Procedural justice is vital, as impoverished people encounter pervasive economic, social, political and procedural barriers to accessing justice in various democratic forums, including courts. To introduce procedural justice as an indispensable feature of transformative substantive equality, I use the work of the global justice theorist, Nancy Fraser. Fraser's work provides formidable insights into developing the existing constitutional framework to overcome the bracketing of the pervasive material and social inequalities that are characteristic of liberal rights claims. By focusing on courts and the procedurally innovative demands of equality proceedings, I argue that the judgment is a worrying illustration of the deepening of impoverished people's democratic erasure. The judgment is procedurally formalistic, effectively absolving courts from their accountability function for redressing poverty and inequality.

  • The shareholder’s appraisal remedy under the Companies Act: How should the courts gauge ‘fair value’?

    The appraisal remedy is the right of minority shareholders to demand that the company buy out their shares in cash, at a price reflecting their 'fair value', when they are aggrieved by certain triggering transactions that the majority shareholders have approved. The appraisal right is an American concept that was introduced into South African law when the Companies Act 71 of 2008 came into force. The most formidable challenge concerning the appraisal right is the meaning and interpretation of the key phrase 'fair value' and, coupled with this, the appropriate valuation methodology that the court ought to adopt when valuing the shares of dissenting minority shareholders. Two recent judgments of the High Court have considered these thorny issues for the first time. This article critically analyses the findings of the High Court in BNS Nominees (RF) (Pty) Ltd v Zeder Investments Ltd and BNS Nominees (RF) (Pty) Ltd v Arrowhead Properties Ltd, with a particular focus on the divergent approaches that the two cases adopt in gauging the 'fair value' of the dissenters' shares and the judicial discretion to appoint an appraiser to value the shares. This is followed by a detailed discussion of the proper interpretation of the pivotal phrase 'fair value' in appraisal proceedings and of appraisal valuation methodology. This is done with reference to the legal position in comparable foreign jurisdictions such as the United States of America and Canada. Guidelines are also suggested for the South African courts to follow when gauging the 'fair value' of shares in appraisal cases.

  • When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

    In this article, I examine the dignity-based test for unfair discrimination developed by the Constitutional Court of South Africa. First, I argue that the point of anti-discrimination rights is to protect equality. They seek to prevent a comparative wrong — wrongful disparities in treatment. Violating dignity appears, however, to be a non-comparative wrong — one that is independent of the treatment extended to others. Tying unfair discrimination to dignity violations therefore seems to miss the comparative concerns that underlie anti-discrimination rights. Adding that everyone is 'equally' entitled to be treated with dignity does not solve the problem. I respond to this apparent difficulty with the court's approach by suggesting that the court is best understood as concerned with a distinctive kind of dignity — status dignity. I also argue that there is an attractive conception of equality — relational equality — that explains why violations of status dignity are violations of equality. This interpretation provides the requisite egalitarian foundation for the court's approach. Secondly, I address the criticism that a dignity-based understanding of substantive equality is too limited to address systemic inequalities. I suggest that an understanding based in status dignity is suitably robust and requires far-reaching reforms and restructuring of social practices.

  • Identification parades in South Africa — Time for a change?

    Identification parades are essential when obtaining evidence of identity from eyewitnesses. Eyewitnesses are shown a line of people containing the suspect(s) and innocent fillers, and witnesses are asked to point out the perpetrator(s) of the crime, noting that the perpetrator(s) might not be present. Corporeal ('live') parades are required in South Africa unless there is a good reason not to use them, in which case the police may use photograph parades. We review the rules for conducting parades in South Africa and compare these to those in several other countries, many of which no longer use corporeal parades. We consider evidence from empirical studies that have tested the 'live superiority' hypothesis and conclude that there is no clear evidence in its favour, notwithstanding that there are benefits to augmenting static views of faces with additional cues to identity. We then consider the logistical and financial cost of conducting live parades, which we find to be considerable. We conclude that it may well be time to reconsider the use of live identification parades in South Africa but caution that this should coincide with a review of the law regulating the use of alternative methods to ensure that accused persons receive fair trials.

  • Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

    Arbitration has a noble lineage that stretches back into time. It has evolved from a simple attempt to resolve disputes in the presence of a local authority to a more technical presentation before an independent arbiter. In South Africa, arbitrations have statutory recognition. This article focuses on an arbitration clause that is embedded in a substantive agreement where the agreement was induced by fraudulent misrepresentation by a party to the agreement. The general principles of the law of contract would dictate that fraud makes the contract voidable at the instance of the innocent party. But our courts have equivocated in deciding whether the tainted contract also besmirches the arbitration clause. While earlier decisions confirmed the autonomy of the arbitration clause, two judgments of the Supreme Court of Appeal ('SCA') in particular held that the arbitration clause foundered with the main agreement. The article argues that the SCA's findings were misconceived and suggests that the SCA's reluctance to allow arbitrators to decide on the validity of an arbitration clause in a contract instigated by fraud is incorrect. It is argued that consonant with international practice, an arbitration clause should be considered a clause separate from the main agreement that will not be affected by the invalidity of the main agreement. A subsequent SCA decision recognised the primacy of an arbitration clause incorporated into an agreement. The article also proffers the possibility of reading into a contract a tacit term that all disputes arising from the main agreement will be arbitrated.

  • The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

    The doctrine of informed consent is the foundation of the physician–patient relationship. This doctrine remains controversial despite its importance, and issues involving consent are frequently litigated. This article examines the application of the doctrine of informed consent in South African medical law as it has developed in South African case law. This examination first sets a normative background for consent as a ground of justification against a wrongful act in either contract or delict (or both) that is significantly influenced by the Constitution of the Republic of South Africa, 1996. Against this normative background, a selected anthology of nine significant judgments by South African courts is analysed, with specific attention paid to the critical shift prompted by the promulgation of the Constitution. Finally, the analyses of the nine judgments are consolidated and collated to draw conclusions about the triumphs and failings of the South African courts, based on the normative background. This analysis reveals which aspects of the doctrine of informed consent have crystallised in South African medical law and which remain unclear.

  • Footing the (wage) bill: Reasoning, remedies, and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

    In NEHAWU & others v Minister of Public Service and Administration & others 2022 (6) BCLR 673 (CC), the Constitutional Court declared invalid and unenforceable a clause regulating the third payment period in a collective agreement regulating periodic wage increases for public service employees. We do not take issue with the court's findings concerning the validity of the impugned collective agreement. However, we question the reasoning provided for the 'just and equitable' remedy ordered. We find the court's reasoning insufficient in so far as it overlooked applicable principles of corrective justice, the significance of the state being unjustifiably enriched by labour peace by curtailing public servants' right to strike, and the consequences of its decision on the effectiveness of the delay-bar in preventing ill-motivated state self-review. We propose the bifurcated approach that the court adopted in the AllPay saga as a tool to adjudicate polycentric cases such as the impugned case, as it enhances the judiciary's proper place in the separation of powers and maximises remedial possibilities for innocent third parties to state contracts. We conclude with what has happened on the ground since this decision was reached.

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