{"title":"Book Review: Confronting Apartheid. A Personal History of South Africa, Namibia and Palestine (2018)","authors":"H. Corder, D. Davis","doi":"10.47348/SALJ/V138/I2A9","DOIUrl":"https://doi.org/10.47348/SALJ/V138/I2A9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"138 1","pages":"469-478"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.47348/SALJ/V138/I1A10
D. Visser
None
没有一个
{"title":"Book Review: Research Handbook on Unjust Enrichment and Restitution (2020)","authors":"D. Visser","doi":"10.47348/SALJ/V138/I1A10","DOIUrl":"https://doi.org/10.47348/SALJ/V138/I1A10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"138 1","pages":"203-217"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820644","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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 totalitarian control of the scientific enterprise, to the detriment not only of scientists, but also of society in general. The right to freedom of scientific research should play a more central role in policy-making. This is not only because it is an enumerated constitutional right, but also because it is important in its own right, as it serves purposes that are at the core of our constitutional value-system: promoting individual autonomy, facilitating the search for truth, and supporting democracy. The right to freedom of scientific research is unique in protecting not only the exchange of scientific thoughts and information, but also in particular the physical activities entailed by scientific research, such as performing experiments. The notion that government should somehow seek to regulate every new scientific development is erroneous, as freedom should be the default position in science-related policy, and should only be limited by regulation if, and to the extent that, it is constitutionally justified.
{"title":"Time for Cinderella to go to the ball: Reflections on the right to freedom of scientific research","authors":"D. Thaldar, Michaela Steytler","doi":"10.47348/SALJ/V138/I2A2","DOIUrl":"https://doi.org/10.47348/SALJ/V138/I2A2","url":null,"abstract":"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 totalitarian control of the scientific enterprise, to the detriment not only of scientists, but also of society in general. The right to freedom of scientific research should play a more central role in policy-making. This is not only because it is an enumerated constitutional right, but also because it is important in its own right, as it serves purposes that are at the core of our constitutional value-system: promoting individual autonomy, facilitating the search for truth, and supporting democracy. The right to freedom of scientific research is unique in protecting not only the exchange of scientific thoughts and information, but also in particular the physical activities entailed by scientific research, such as performing experiments. The notion that government should somehow seek to regulate every new scientific development is erroneous, as freedom should be the default position in science-related policy, and should only be limited by regulation if, and to the extent that, it is constitutionally justified.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.
{"title":"Notes: ‘Observations’ on the State Capture judgment","authors":"M. Tsele","doi":"10.47348/salj/v138/i3a1","DOIUrl":"https://doi.org/10.47348/salj/v138/i3a1","url":null,"abstract":"This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.47348/salj/v138/i4a11
D. Davis
None
没有一个
{"title":"Book Review: Stuart Wilson Human Rights and the Transformation of Property (2021)","authors":"D. Davis","doi":"10.47348/salj/v138/i4a11","DOIUrl":"https://doi.org/10.47348/salj/v138/i4a11","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency Act provides for a clear order of distribution both in respect of the insolvent estates of natural persons and when an insolvent company is wound up, tax legislation in South Africa should not be used to deviate from this order of distribution.
{"title":"The intersection between taxation and insolvency — The South African Revenue Service’s preference","authors":"C. Fritz, T. Legwaila","doi":"10.47348/salj/v138/i4a6","DOIUrl":"https://doi.org/10.47348/salj/v138/i4a6","url":null,"abstract":"When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency Act provides for a clear order of distribution both in respect of the insolvent estates of natural persons and when an insolvent company is wound up, tax legislation in South Africa should not be used to deviate from this order of distribution.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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 case of traditional standard-form contracts. In general, it is simply not reasonable to expect of consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Furthermore, evidence shows that consumers do not perceive online contracts in the same manner as their paper-based equivalent. The article investigates whether contractual liability to online contracts can be established in terms of the reliance theory, and considers how and when notice of contractual terms should be given. It further argues that the unexpected terms doctrine potentially provides important protection to online consumers’ reasonable expectations, and may encourage suppliers to identify surprising terms and bring them to the attention of consumers. This approach requires of courts to recognise that it may be quite reasonable for consumers to decide not to read online contracts, and that consumers’ mistakes about surprising terms in online contracts must almost always be reasonable.
{"title":"Problems relating to the formation of online contracts: A South African perspective","authors":"S. V. Deventer","doi":"10.47348/SALJ/V138/I2A1","DOIUrl":"https://doi.org/10.47348/SALJ/V138/I2A1","url":null,"abstract":"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 case of traditional standard-form contracts. In general, it is simply not reasonable to expect of consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Furthermore, evidence shows that consumers do not perceive online contracts in the same manner as their paper-based equivalent. The article investigates whether contractual liability to online contracts can be established in terms of the reliance theory, and considers how and when notice of contractual terms should be given. It further argues that the unexpected terms doctrine potentially provides important protection to online consumers’ reasonable expectations, and may encourage suppliers to identify surprising terms and bring them to the attention of consumers. This approach requires of courts to recognise that it may be quite reasonable for consumers to decide not to read online contracts, and that consumers’ mistakes about surprising terms in online contracts must almost always be reasonable.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"138 1","pages":"221-259"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Can the oath, affirmation, or admonishment really be selectively administered on some witnesses but not on others? Sworn testimony is one of the most important features of the law of evidence. It is central not only to the continental system of law but also the common-law system on which our South African law of evidence is based. Witnesses testifying in formal court proceedings are required by statute law to swear an oath or make an affirmation or be admonished as to the truth of their testimony. But why is the same requirement not obligatory in statutory labour tribunals, where presiding officers have the prerogative to decide if they require witnesses to be sworn in prior to testifying? In this article, I criticise this prerogative for being ill-conceived, and advocate for its amendment.
{"title":"The oath in labour arbitrations: Critiquing an arbitrator’s prerogative to swear in witnesses","authors":"Dennis Matlou","doi":"10.47348/salj/v138/i4a8","DOIUrl":"https://doi.org/10.47348/salj/v138/i4a8","url":null,"abstract":"Can the oath, affirmation, or admonishment really be selectively administered on some witnesses but not on others? Sworn testimony is one of the most important features of the law of evidence. It is central not only to the continental system of law but also the common-law system on which our South African law of evidence is based. Witnesses testifying in formal court proceedings are required by statute law to swear an oath or make an affirmation or be admonished as to the truth of their testimony. But why is the same requirement not obligatory in statutory labour tribunals, where presiding officers have the prerogative to decide if they require witnesses to be sworn in prior to testifying? In this article, I criticise this prerogative for being ill-conceived, and advocate for its amendment.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Two recent decisions by English courts have established that the man who gave birth to his child should be registered as the ‘mother’ of that child. The courts found that, despite the fact that the Gender Recognition Act provides that a person who had changed sex and received ‘a full gender recognition certificate’ is considered ‘for all purposes’ to be a person of ‘the acquired gender’, this person still has to be registered on his child’s birth certificate as belonging to the opposite sex. This article describes and evaluates the reasons for these decisions, and compares the English position to those of a number of jurisdictions, including that of South Africa. It argues that the legal context in this country provides for a more pragmatic and equitable approach to the rights of both trans parents and their children.
{"title":"Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales","authors":"L. Mills","doi":"10.47348/SALJ/V138/I2A6","DOIUrl":"https://doi.org/10.47348/SALJ/V138/I2A6","url":null,"abstract":"Two recent decisions by English courts have established that the man who gave birth to his child should be registered as the ‘mother’ of that child. The courts found that, despite the fact that the Gender Recognition Act provides that a person who had changed sex and received ‘a full gender recognition certificate’ is considered ‘for all purposes’ to be a person of ‘the acquired gender’, this person still has to be registered on his child’s birth certificate as belonging to the opposite sex. This article describes and evaluates the reasons for these decisions, and compares the English position to those of a number of jurisdictions, including that of South Africa. It argues that the legal context in this country provides for a more pragmatic and equitable approach to the rights of both trans parents and their children.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":"138 1","pages":"399-424"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821365","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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