Stellenbosch Law Review

Publisher:: Juta Journals
Publication date:: 2021-07-05

ISBN:: 1016-4359

Description:

The Stellenbosch Law Review is a forum for the discussion of topical legal issues in various fields. As a law review the emphasis is on providing insight rather than just an overview. It maintains a balance between a wide variety of specialist fields and legal subjects of general interest.

Issue Number

Latest documents

Hate speech and mass atrocities [Discussion of Prosecutor v Vojislav Šešelj (Trial Chamber III) IT-03-67-T (31 March 2016)]
Even though there is extensive legal literature on the culpability of authors of hate speech that results in mass atrocities, it remains indisputable that the prosecution of hate speech in international criminal tribunals is still riddled with legal complexities. The recent decision of the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v Vojislav \xc5\xa0ešelj (Trial Chamber III) IT-03-67-T (31 March 2016) ('\xc5\xa0ešelj') brings to life the view that we are not only getting deeper in the legal maze but far from laying this issue to eternal rest. The decision to acquit the accused because of the prosecution's failure to prove beyond reasonable doubt that his speeches had led to the atrocities for which he was charged, evoked the element of causation. In application, that view would resonate squarely with the 'but for' test which is one of the pillars of the element of causation in criminal law. Steering away from a doctrinal discussion of the merits of the 'but for test', this contribution critiques the Trial Chamber's judgment in the \xc5\xa0ešelj case: taking an evidence-based approach that examines the culpability for hate speech prior to the \xc5\xa0ešelj decision, the contribution explores the underlying theoretical and jurisprudential flaws in the \xc5\xa0ešelj judgment.
Re-thinking the “pillar paradigm” for sustainable development: An analysis of the Bo-Kaap case reveals a shift to simple proportionality ... and the fact that deference is not dead after all [Discussion of Bo-Kaap Civic & Ratepayers Association v The City of Cape Town 2020 2 All SA 330 (SCA)]
This article crystalises and critiques the reasoning of the Supreme Court of Appeal judgment in Bo-Kaap Civic & Ratepayers Association v The City of Cape Town 2020 2 All SA 330 (SCA) ('Bo-Kaap'). It does so against the backdrop of the environmental right in section 24 of the Constitution and its animating touchstone of 'sustainable development'. In particular, it is argued that Bo-Kaap reveals that the 'pillar paradigm' for elucidating and ensuring sustainability is outdated and doctrinally unhelpful. Instead, sustainability is best considered, and attained, through simple proportionality and thus the balancing of factors – including cultural concerns, such as heritage – in a context-responsive manner. Furthermore, the judgment is a significant, if somewhat flawed, one on the matter of deference in the context of reviewing the decisions of actors that exercise public powers. It cautions against judicial overzealousness where the separation of powers looms large and, as in the context of Bo-Kaap, where administrative efficiency and the developmental agenda is at stake. Furthermore, the judgment simultaneously reveals the power (and importance) of socio-economic-rights litigation (and internal appeal procedures) in enhancing participatory, responsive, and thus more accountable, governance. Bo-Kaap concerned a public-interest matter but was litigated – as per the court – to vindicate personal proprietary interests. The case is therefore also interesting insofar as the court refused to apply the principle in Biowatch Trust v Registrar, Genetic Resources 2009 6 SA 232 (CC) on cost-awards where constitutional litigation is concerned. While the judgment has laudable features, and ultimately shines a redeeming light on the (enhanced) actions of the state decision-makers in ensuring sustainable development, it may equally prove to have a chilling effect on public-interest litigation.
A limitation on limitation? The Julian [Discussion of MS “Bonanza” Schiffahrtgesellschaft Mbh & Co, KG v Durban Coal Terminal Company (Pty) Ltd t.a Bulk Connexions (A50/2017) 2018 ZAKZDHC 6 (29 March 2018)]
The article explores the topic of limitation of liability for maritime claims in terms of section 261 of the Merchant Shipping Act 57 of 1951 in the light of the decision in The Julian (MS 'Bonanza' Schiffahrtgesellschaft mbH & Co, KG v Durban Coal Terminal Company (Pty) Ltd t.a Bulk Connexions (A50/2017) 2018 ZAKZDHC 6 (29 March 2018)) and the subsequent decision of the Supreme Court of Appeal in The MSC Susanna (MV 'MSC Susanna': The Owners and Underwriters of the MV MSC Susanna v Transnet SOC Ltd 2022 2 SA 85 (SCA)). In particular, it addresses the conclusion in The Julian that the entitlement of a shipowner to limit its liability under section 261 is restricted to claims that have been instituted in South Africa and submits that this is incorrect and inconsistent with the decision in The MSC Susanna.
Common-law review, consensus and quantum leaps [Discussion of Trustees for the Time Being of the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd 2022 1 SA 424 (SCA)]
The judgment in Trustees for the Time Being of the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd 2022 1 SA 424 (SCA) explores aspects of judicial review of decisions made by private organisations in the exercise of private power. In particular, the judgment addresses the reviewability of such decisions for want of compliance with the rules of natural justice. At common law, courts will review disciplinary proceedings of private bodies to ensure compliance with natural justice. Whether or not the rules of natural justice find application in non-disciplinary proceedings of a private body depends on its internal contractual arrangements. The judgment under discussion fails to engage adequately with the relevant common-law principles, resulting in an unconvincing decision that obfuscates rather than clarifies the legal position in this regard.
The tax burden of being unmarried: Section 4(q) of the Estate Duty Act 45 of 1955
In the matter of Burden v United Kingdom (GC) no 13378/05 ECHR 2008, two unmarried, childless sisters approached the European Court of Human Rights on the basis that the inheritance tax concession, which only applied to married couples and civil partners, constituted discrimination in terms of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and violated the right to peaceful enjoyment of property in terms of Article 1 of Protocol 1 to the Convention. The Grand Chamber of the European Court of Human Rights ruled against the sisters on both counts. In this contribution, we ask: Would or should a South African court reach the same conclusion if the Burden matter were to be heard in South Africa today? These are important questions in the South African context as section 4(q) of the South African Estate Duty Act 45 of 1955 provides that property that accrues to the spouse of a deceased is exempt from estate duty. To address these questions, we consider the constitutional rights of equal protection and benefit of the law and the right not to be arbitrarily deprived of property. Whilst we conclude that an argument based on the right not to be arbitrarily deprived of property would be unsuccessful as there is no deprivation of property, we opine that section 4(q) is contrary to the right to equality. This is due to a misalignment between the government purpose of section 4(q), to support a family when the breadwinner dies, and the actual impact thereof. This, in turn, is due to the misalignment between the current family protection afforded to families and the actual realities of how families are constructed.
Unauthorised use of images in memes: Revisiting the privacy and identity debate
Memes are part of our social and commercial activities. Memes can be amusing, relatable, and an excellent form of social media marketing. People's identities are the essence of memes as it involves photographs, videos and voice recordings. There has been a longstanding debate in South African law about whether the unauthorised use of a person's identity features primarily violates their right to privacy or identity or both. For more than 20 years, South African courts have not resolved this debate. The courts have ruled on a simultaneous violation of both the right to identity and privacy. In our law, the question remains whether using a person's image without their permission primarily infringes their right to identity or privacy. Memes cause us to revisit this question in the context of social media, where privacy has become diluted. This contribution discusses the application of the principles of delict, particularly the element of wrongfulness, to memes. It demonstrates that the right to identity provides more protection than the right to privacy against memes on social media.
Transformative social change and the role of the judge in post-apartheid South Africa
The Constitution of the Republic of South Africa, 1996 committed South Africa to a path of social transformation through its endorsement of the concept of transformative constitutionalism. Ultimately, this requires the transition of South African society from a state of deep inequality and injustice towards a more equal society characterised by social justice. Transformative constitutionalism has important consequences for the judiciary and the way in which judges discharge their judicial responsibilities. This lecture explores what transformative constitutionalism entails for the judiciary in fulfilling their adjudicative mandate under the Constitution. It assesses how well judges have fared in their attempts to ensure the transformation of South Africa's legal culture and methods of judicial decision-making. It further proposes how judges should approach their constitutional obligation to develop the common law and interpret legislation to give full effect to constitutional rights and values. The lecture concludes by reflecting on the role of the judiciary in light of the current socio-political context and debates in South Africa.
Signed, sealed and delivered (electronically): Embracing the digital takeover. A brief consideration of electronic signing and delivery in South African law
The advent and advancement of technology, in particular the digitalisation of commerce and traditional working methods, have introduced a new era of the 'digital age' into human history. Digitalisation has taken over many economic activities and industries and is slowly finding its way into the legal system. Internationally, many businesses are using technology to automate their processes and practices, making it much easier, quicker, and cheaper to finalise their products and services. From a legal perspective, several businesses are now concluding commercial transactions and contracts electronically. These new innovations have raised the question of the legal validly of these transactions, in particular the legitimacy of electronic signing and electronic delivery of these documents. In South Africa, the outbreak of the COVID-19 pandemic prompted many local companies to consider new ways of conducting business without compromising the legality and compliance aspect of operations. Electronic signatures and electronic delivery have consequently become essential tools for concluding legal agreements and conducting other daily business practices. The move to digital signing and delivery has thus become more prevalent across all business sectors and naturally this has given rise to questions on its legitimacy and security.
Supervening impossibility of performance – A conceptual conundrum and restatement of principles
In defining supervening impossibility of performance, the South African law of contract recognises a 'general rule', which entails that performance is excused if impossibility is brought about by vis major or casus fortuitus. This rule is then made subject to a vague and broad list of qualifications. It is argued here that this approach is unhelpful, and that the general principles on supervening impossibility of performance may be restated in more concrete terms. The general rule may simply maintain that absolute impossibility excuses a debtor. The rule should then be subject to clear and specific qualifications. These qualifications entail that liability may nonetheless be imposed if: (i) the debtor actually foresaw or reasonably should have foreseen the event giving rise to impossibility; (ii) the debtor could have taken reasonable steps to avoid such an event or overcome its consequences; (iii) the debtor created the impossibility; or (iv) the debtor was in mora at the time of impossibility. It is argued that it may be unhelpful to include fault on the side of the debtor in this list, inasmuch as fault could actually obscure other qualifications to the general rule, rather than act as a qualification in its own right.
The escalation of corporate corruption during the Covid-19 pandemic: Is the anti-corruption framework of the Companies Act 71 of 2008 adequate?
During the Covid-19 pandemic, corruption in South African companies, both state-owned and privately-owned, reached staggering proportions. This included bribery, procurement irregularities, overpricing and fraudulent deals between government officials and companies. This article identifies provisions of the Companies Act 71 of 2008 that may be used to address corporate corruption. This is done with a view to ascertaining whether the anti-corruption framework of the Companies Act is adequate to counteract corporate corruption. It concludes that the Act contains a fairly comprehensive framework to tackle corruption in companies registered under it. In spite of this framework the level of corporate corruption remains high, and increased substantially during the Covid-19 pandemic. The article makes recommendations to reduce these high levels of corporate corruption.