Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.
{"title":"Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position","authors":"B. Clark, Belinda van Heerden","doi":"10.47348/salj/v140/i3a8","DOIUrl":"https://doi.org/10.47348/salj/v140/i3a8","url":null,"abstract":"Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824610","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}
Electronic signatures have become a core feature of digital transformation. Organisations can now transact with greater ease, regardless of physical distance or national borders. The Electronic Communications and Transactions Act 25 of 2002 facilitates electronic communications and transactions using electronic documents and signatures in South Africa. Electronic contracts and signatures are legally binding and constitute valid and admissible evidence in legal proceedings, although there are a few exceptions. One of the exclusions concerns agreements for the sale of immovable property. The Alienation of Land Act 68 of 1981, which regulates the sale of land, seeks to promote legal certainty as to the authenticity and contents of these contracts to limit instances of fraud and litigation. This article examines the risk associated with fraud and the case of Borcherds v Duxbury 2021 (1) SA 410 (ECP). In this case, contrary to legislation, the court accepted an electronic signature in a contract for the sale of immovable property. I recommend that the relevant legislation be amended to validate the use of advanced electronic signatures for the sale of immovable property. A holistic approach to electronic signatures is the only way to embrace an inevitable and complete digital transformation.
电子签名已成为数字化转型的核心特征。组织现在可以更轻松地进行交易，而不受物理距离或国界的限制。2002年第25号电子通信和交易法促进了南非使用电子文件和签名的电子通信和交易。电子合同和签名具有法律约束力，在法律诉讼中构成有效和可接受的证据，但也有少数例外。其中一项排除条款涉及不动产买卖协议。1981年第68号《土地转让法》规定了土地的出售，旨在提高对这些合同的真实性和内容的法律确定性，以限制欺诈和诉讼的情况。本文探讨了与欺诈相关的风险以及Borcherds诉Duxbury 2021 (1) SA 410 (ECP)一案。在本案中，法院违反法律规定，接受了不动产买卖合同中的电子签名。我建议修订有关法例，以验证在出售不动产时使用先进的电子签署。电子签名的整体方法是拥抱不可避免的和完整的数字转换的唯一途径。
{"title":"Should the Electronic Communications and Transactions Act be amended to include electronic signatures for the sale of immovable property in South Africa?","authors":"Nirissa Reddy","doi":"10.47348/salj/v140/i4a5","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a5","url":null,"abstract":"Electronic signatures have become a core feature of digital transformation. Organisations can now transact with greater ease, regardless of physical distance or national borders. The Electronic Communications and Transactions Act 25 of 2002 facilitates electronic communications and transactions using electronic documents and signatures in South Africa. Electronic contracts and signatures are legally binding and constitute valid and admissible evidence in legal proceedings, although there are a few exceptions. One of the exclusions concerns agreements for the sale of immovable property. The Alienation of Land Act 68 of 1981, which regulates the sale of land, seeks to promote legal certainty as to the authenticity and contents of these contracts to limit instances of fraud and litigation. This article examines the risk associated with fraud and the case of Borcherds v Duxbury 2021 (1) SA 410 (ECP). In this case, contrary to legislation, the court accepted an electronic signature in a contract for the sale of immovable property. I recommend that the relevant legislation be amended to validate the use of advanced electronic signatures for the sale of immovable property. A holistic approach to electronic signatures is the only way to embrace an inevitable and complete digital transformation.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447023","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}
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.
{"title":"A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa","authors":"Vela Madlela","doi":"10.47348/salj/v140/i1a6","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a6","url":null,"abstract":"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.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823411","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}
Section 56A of the Local Government: Municipal Systems Act 32 of 2000 provided for the limitation of the political rights of municipal managers and managers directly accountable to municipal managers. The South African Municipal Workers Union (SAMWU) challenged the constitutionality of s 56A on both procedural and substantive grounds in the High Court. The substantive ground related to whether s 56A was a justifiable limitation of the s 19(1) right to make free political choices. Having found for SAMWU on procedural grounds the High Court did not decide the substantive ground. The Constitutional Court confirmed the High Court’s order. The nett result is that there has not been a judicial pronouncement on whether s 56A is a justifiable limitation of political rights. The successor provision to s 56A is s 71B, which was inserted into the Act by s 9 of the Local Government: Municipal Systems Amendment Act 3 of 2022. This provision provides for the limitation of the political rights of municipal staff members. In the absence of a judicial pronouncement on this issue, this note applies a justification analysis in terms of s 36 of the Constitution and finds that s 71B is a justifiable limitation of the right to make free political choices.
{"title":"Notes: Municipal crisis: A justifiable limitation of political rights","authors":"M. Williams","doi":"10.47348/salj/v140/i1a3","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a3","url":null,"abstract":"Section 56A of the Local Government: Municipal Systems Act 32 of 2000 provided for the limitation of the political rights of municipal managers and managers directly accountable to municipal managers. The South African Municipal Workers Union (SAMWU) challenged the constitutionality of s 56A on both procedural and substantive grounds in the High Court. The substantive ground related to whether s 56A was a justifiable limitation of the s 19(1) right to make free political choices. Having found for SAMWU on procedural grounds the High Court did not decide the substantive ground. The Constitutional Court confirmed the High Court’s order. The nett result is that there has not been a judicial pronouncement on whether s 56A is a justifiable limitation of political rights. The successor provision to s 56A is s 71B, which was inserted into the Act by s 9 of the Local Government: Municipal Systems Amendment Act 3 of 2022. This provision provides for the limitation of the political rights of municipal staff members. In the absence of a judicial pronouncement on this issue, this note applies a justification analysis in terms of s 36 of the Constitution and finds that s 71B is a justifiable limitation of the right to make free political choices.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823831","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}
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.
{"title":"Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze","authors":"Mkhululi Nyathi","doi":"10.47348/salj/v140/i2a5","DOIUrl":"https://doi.org/10.47348/salj/v140/i2a5","url":null,"abstract":"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.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824028","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}
In South African Human Rights Commission v Standard Bank of South Africa Ltd 2023 (3) SA 36 (CC), the Constitutional Court held that a bank is not obliged to take a foreclosure matter to the magistrate’s court, even if the magistrate’s court has jurisdiction over the matter. The apex court confirmed that a court is not entitled to decline to hear a matter properly brought before it because another court has concurrent jurisdiction. Before this decision, the Gauteng and Eastern Cape Divisions of the High Court both found that the High Court was entitled to decline to hear a matter if the matter fell within the jurisdiction of a magistrate’s court. These decisions were taken on appeal to the Supreme Court of Appeal, which upheld the appeal and found that the High Court has no power to refuse to hear a matter falling within its jurisdiction on the ground that another court has concurrent jurisdiction. The Constitutional Court has now confirmed the decision by the Supreme Court of Appeal, finding that complex matters such as foreclosure applications deserve more judicial scrutiny, and ought to be heard by the High Court.
{"title":"Notes: A call for specialised foreclosure courts and a separate foreclosure roll — An analysis of South African Human Rights Commission v Standard Bank of South Africa Ltd (CC)","authors":"Ciresh Singh","doi":"10.47348/salj/v140/i3a2","DOIUrl":"https://doi.org/10.47348/salj/v140/i3a2","url":null,"abstract":"In South African Human Rights Commission v Standard Bank of South Africa Ltd 2023 (3) SA 36 (CC), the Constitutional Court held that a bank is not obliged to take a foreclosure matter to the magistrate’s court, even if the magistrate’s court has jurisdiction over the matter. The apex court confirmed that a court is not entitled to decline to hear a matter properly brought before it because another court has concurrent jurisdiction. Before this decision, the Gauteng and Eastern Cape Divisions of the High Court both found that the High Court was entitled to decline to hear a matter if the matter fell within the jurisdiction of a magistrate’s court. These decisions were taken on appeal to the Supreme Court of Appeal, which upheld the appeal and found that the High Court has no power to refuse to hear a matter falling within its jurisdiction on the ground that another court has concurrent jurisdiction. The Constitutional Court has now confirmed the decision by the Supreme Court of Appeal, finding that complex matters such as foreclosure applications deserve more judicial scrutiny, and ought to be heard by the High Court.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824523","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 acts as a reply to the critique levelled at the Pretoria Crits by Willem Gravett in two articles published in 2018. The note begins by summarising Gravett’s objections to the Pretoria Crits’ views about the South African legal system and the teaching of law in South African universities. Thereafter, errors of argument are identified that undermine, or are even destructive of, Gravett’s critique. In the course of his five-part rebuttal, the author remedies certain misconceptions about the Pretoria Crits’ views and beliefs. He also identifies how the Pretoria Crits have made important critical contributions to a broader understanding of the nature of South Africa’s legal system and the challenges of teaching law in a transforming society.
{"title":"Notes: In defence of the Pretoria Crits","authors":"E. Zitzke","doi":"10.47348/salj/v140/i3a4","DOIUrl":"https://doi.org/10.47348/salj/v140/i3a4","url":null,"abstract":"This note acts as a reply to the critique levelled at the Pretoria Crits by Willem Gravett in two articles published in 2018. The note begins by summarising Gravett’s objections to the Pretoria Crits’ views about the South African legal system and the teaching of law in South African universities. Thereafter, errors of argument are identified that undermine, or are even destructive of, Gravett’s critique. In the course of his five-part rebuttal, the author remedies certain misconceptions about the Pretoria Crits’ views and beliefs. He also identifies how the Pretoria Crits have made important critical contributions to a broader understanding of the nature of South Africa’s legal system and the challenges of teaching law in a transforming society.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70824817","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}
The judgment in S v SN [2022] ZAECGHC 35 is dichotomous as it is both progressive and problematic. The judgment is progressive as, for the first time, a South African criminal court imposed a therapy order for a victim of rape. The minor victim in this case was raped multiple times by her uncle in a familial home. The court was further enjoined to impose a minimum life sentence under the Criminal Law Amendment Act 105 of 1997, as the victim was under the age of 16 and had been raped on multiple occasions. However, the court in SN was entitled to deviate from the minimum sentence when ‘substantial and compelling circumstances exist’ to do so. In considering the mitigating and aggravating factors present in the case, the court deviated from the minimum life sentence based on the remorse of the accused and the lack of force used during the rape. The judgment is problematic because considering these factors unearthed problematic narratives surrounding the nature of rape. This note critically analyses the judgment in SN and submits that although the therapy order is a welcome development, the court erred in considering a lack of force employed during the rape as a mitigating factor.
S v SN [2022] ZAECGHC 35的判决是二分的，因为它既是进步的又是问题的。这一判决是进步的，因为南非刑事法院首次对强奸受害者下达了治疗令。本案中的未成年受害者在家里被她的叔叔强奸了多次。法院还被要求根据1997年第105号《刑法修正案》判处最低无期徒刑，因为受害人未满16岁，并多次遭到强奸。然而，当“存在实质性和令人信服的情况”时，法院有权偏离最低刑罚。在考虑案件中存在的减轻和加重因素时，法院偏离了根据被告的忏悔和强奸期间没有使用武力而判处的最低无期徒刑。这个判决是有问题的，因为考虑到这些因素，就会发现围绕强奸本质的有问题的叙述。本说明批判性地分析了SN案的判决，并提出，尽管治疗令是一个受欢迎的发展，但法院错误地认为强奸期间没有使用武力作为减轻因素。
{"title":"Notes: Progressive, yet problematic: Unpacking the therapy order and sentence in S v SN","authors":"Delano Cole van der Linde","doi":"10.47348/salj/v140/i4a2","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a2","url":null,"abstract":"The judgment in S v SN [2022] ZAECGHC 35 is dichotomous as it is both progressive and problematic. The judgment is progressive as, for the first time, a South African criminal court imposed a therapy order for a victim of rape. The minor victim in this case was raped multiple times by her uncle in a familial home. The court was further enjoined to impose a minimum life sentence under the Criminal Law Amendment Act 105 of 1997, as the victim was under the age of 16 and had been raped on multiple occasions. However, the court in SN was entitled to deviate from the minimum sentence when ‘substantial and compelling circumstances exist’ to do so. In considering the mitigating and aggravating factors present in the case, the court deviated from the minimum life sentence based on the remorse of the accused and the lack of force used during the rape. The judgment is problematic because considering these factors unearthed problematic narratives surrounding the nature of rape. This note critically analyses the judgment in SN and submits that although the therapy order is a welcome development, the court erred in considering a lack of force employed during the rape as a mitigating factor.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447022","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 adjudicative approaches adopted by the main judgment of Madlanga J and the concurring majority judgment of Moseneke DCJ in Paulsen & another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC). The point of divergence between the judgments concerns the discordant relationship between the doctrine of separation of powers and the powers of the courts to develop the common law under s 39(2) of the Constitution. The argument developed in this article is that the developmental powers of the courts should not be curtailed on the basis of a broadly and vaguely conceptualised doctrine of separation of powers, but on a clear and circumscribed doctrine that is congruent with the transformative objectives of s 39(2) of the Constitution. The article endeavours to set out the limited circumstances under which the developmental powers of the courts should be limited in terms of the doctrine of separation of powers.
本文分析了Madlanga J的主审判决和Moseneke DCJ在Paulsen & another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC)中的多数同意判决所采用的裁决方法。两项判决之间的分歧点涉及三权分立原则与法院根据《宪法》第39(2)条发展普通法的权力之间的不协调关系。本文提出的论点是，法院的发展性权力不应在宽泛而模糊的三权分立原则的基础上受到限制，而应基于与宪法第39(2)条的变革目标一致的明确而受限制的原则。该条力图阐明在有限的情况下，法院的发展权力应根据三权分立原则加以限制。
{"title":"Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd","authors":"Ndivhuwo Ishmel Moleya","doi":"10.47348/salj/v140/i1a7","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a7","url":null,"abstract":"This article analyses the adjudicative approaches adopted by the main judgment of Madlanga J and the concurring majority judgment of Moseneke DCJ in Paulsen & another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC). The point of divergence between the judgments concerns the discordant relationship between the doctrine of separation of powers and the powers of the courts to develop the common law under s 39(2) of the Constitution. The argument developed in this article is that the developmental powers of the courts should not be curtailed on the basis of a broadly and vaguely conceptualised doctrine of separation of powers, but on a clear and circumscribed doctrine that is congruent with the transformative objectives of s 39(2) of the Constitution. The article endeavours to set out the limited circumstances under which the developmental powers of the courts should be limited in terms of the doctrine of separation of powers.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823480","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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