South African Law Journal

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• 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.

• 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.

• The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

  This article examines the regulation of health-related direct-to-consumer genetic tests ('HDGTs') in South Africa by the Medicines and Related Substances Act 101 of 1965 and its related regulations, namely the Regulations Relating to Medical Devices and In Vitro Diagnostic Medical Devices and the draft Regulations Relating to Medical Devices, as well as the South African Health Products Regulatory Authority guidelines. Such regulation includes the classification, licensing, registration, marketing, labelling and importing of HDGTs. At a basic classification level, the manufacturer's intention determines whether HDGTs are medical devices and/or in vitro diagnostic devices ('IVDs'). Those HDGTs that are medical devices are also likely to be IVDs and are likely to be classified as Class B IVD medical devices, meaning that they pose low to medium risk. This is because the intended use of an HDGT is generally not as a diagnostic tool but as an informational tool, where the results are not definitive and additional testing is required. Accordingly, a licence is required to manufacture, import, export, sell or distribute HDGTs in South Africa. The classification of HDGTs also impacts the rules relating to labelling, advertising and importation.

• 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.

• Opposing cynical evictions: The possessory action

  The possessory action is a relatively unknown common-law remedy. It has not featured in the law reports for the best part of the last one hundred years and is generally relegated to a cursory discussion in most property-law textbooks. Its basic formulation is that where one has been dispossessed of an item, one is to be restored in possession, paid compensation and/or paid damages if one has a stronger right to possess the item than the dispossessor. Although it has fallen out of fashion, there is growing interest in how the possessory action may be used to address contemporary issues. One such issue is persistent and recurring cynical evictions — unlawful evictions during which the home structure is demolished and destroyed. Whether the possessory action is at all available as a remedy for cynical evictions is unclear. This article explores the history, nature, and scope of the possessory action and asks whether it can be appropriately applied to oppose cynical evictions.

• 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.

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...

• A critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

  There has been much debate about 'after the fact' environmental authorisations and the ability to privately prosecute environmental-law offences in South Africa. These two issues came to a head in Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd. This case is the first known private...

• Sources of legal indeterminacy

  Traditional analyses characterise or identify vagueness and ambiguity as the sole or primary sources of legal indeterminacy. In this article, I identify and characterise various other sources of legal indeterminacy. In addition to the semantic indeterminacy of vagueness and ambiguity, philosophers...

• On equating ‘mays’ with ‘musts’: When can a discretionary power be interpreted as a mandatory one?

  In this article I investigate when the otherwise permissive term 'may' in an empowering provision can be interpreted as imposing a duty on the recipient of that power to act. In the first part, I examine our courts' pre-democratic approach to answering this question through an analysis of pre-democr...

• Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

  This article enquires into commitments of substance and form in contract law after apartheid. The argument begins with an overview of the substance and form argument as presented by Duncan Kennedy in 1976 and applied to the South African law of contract by Alfred Cockrell in 1992. Kennedy and...

• 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...

• 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...

• 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...

• Disclosure of corporate political donations and expenditure to shareholders: Why South Africa should follow the United Kingdom’s legislative approach

  Whilst corporate political donations and expenditure is legally permissible in South Africa, and whilst some companies may be making such donations and incurring such expenditure for valid reasons, corporate political donations and expenditure is frequently associated with secrecy and poor...

• 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 ...