Legal systems generally accept that contracts may be concluded by way of hard bargaining. This could entail obtaining assent through threats of lawful acts, such as terminating a contract by notice, refusing to enter into a new contract, or instituting legal proceedings. However, in exceptional cases, a threat of a lawful act may be regarded as unlawful or contra bonos mores and give rise to duress. Unfortunately, the South African contract law on identifying these cases is undeveloped. Recent advances in English law may provide guidance on when a threat of a lawful act should be regarded as unlawful. Relevant considerations that could point to such a conclusion include whether the party making the threat created or increased a situation of vulnerability in an unacceptable manner, and what benefits such a party obtained from the threat. It is less clear why it should matter whether a demand was made in bad faith.
{"title":"Lawful act duress","authors":"Jacques du Plessis","doi":"10.47348/salj/v140/i4a3","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a3","url":null,"abstract":"Legal systems generally accept that contracts may be concluded by way of hard bargaining. This could entail obtaining assent through threats of lawful acts, such as terminating a contract by notice, refusing to enter into a new contract, or instituting legal proceedings. However, in exceptional cases, a threat of a lawful act may be regarded as unlawful or contra bonos mores and give rise to duress. Unfortunately, the South African contract law on identifying these cases is undeveloped. Recent advances in English law may provide guidance on when a threat of a lawful act should be regarded as unlawful. Relevant considerations that could point to such a conclusion include whether the party making the threat created or increased a situation of vulnerability in an unacceptable manner, and what benefits such a party obtained from the threat. It is less clear why it should matter whether a demand was made in bad faith.","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":"135447024","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 formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.
{"title":"Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action","authors":"Zeenat Emmamally","doi":"10.47348/salj/v139/i1a1","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a1","url":null,"abstract":"The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821910","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 formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.
{"title":"Problems relating to the formation of online contracts: A comparative perspective","authors":"Sanmarie van Deventer","doi":"10.47348/salj/v139/i1a2","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a2","url":null,"abstract":"The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821918","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}
Taxation of legal costs in the high courts of South Africa is a quasi-judicial proceeding during which a Taxing Master assesses the fairness of a bill of costs, quantifies the amount payable to a cost creditor, and issues an allocatur which certifies the sum payable by a cost debtor. It is argued that this legal process, which is regulated by Uniform Rule 70 read with Uniform Rule 69, implicates a cost debtor’s fundamental right, under s 34 of the Constitution of the Republic of South Africa, 1996, to fair dispute resolution at any independent forum. In terms of Uniform Rule 70(3B) (a), prior to the enrolment of a bill for taxation, a cost debtor is entitled ‘to inspect such documents or notes pertaining to any item on the bill’. This article argues that the inspection envisaged is a pre-taxation discovery procedure aimed at enabling a cost debtor to determine which items on a bill of costs are objectionable, and the grounds therefor. With reference to relevant judicial precedent and the established principles of interpretation, this article hypothesises that, having regard to the clear, unambiguous, peremptory language of Uniform Rule 70(3B)(a), as well as the purpose sought to be achieved by the right of inspection, the law has, in this context, excluded the operation of the cost creditor’s common-law right to assert legal professional privilege as regards documentation pertaining to any item claimed in the bill of costs. This is unlike the position prevailing at a pre-trial discovery procedure catered for in Uniform Rule 35. This article also argues that, in accordance with s 39(2) of the Constitution, the broad construction of the right of inspection under Uniform Rule 70(3B)(a) advanced here promotes both a cost debtor’s fundamental right in s 34 of the Constitution, and the values of justice and the rule of law which are deeply imbricated in the Bill of Rights.
{"title":"Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?","authors":"F. Moosa","doi":"10.47348/salj/v139/i3a6","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a6","url":null,"abstract":"Taxation of legal costs in the high courts of South Africa is a quasi-judicial proceeding during which a Taxing Master assesses the fairness of a bill of costs, quantifies the amount payable to a cost creditor, and issues an allocatur which certifies the sum payable by a cost debtor. It is argued that this legal process, which is regulated by Uniform Rule 70 read with Uniform Rule 69, implicates a cost debtor’s fundamental right, under s 34 of the Constitution of the Republic of South Africa, 1996, to fair dispute resolution at any independent forum. In terms of Uniform Rule 70(3B) (a), prior to the enrolment of a bill for taxation, a cost debtor is entitled ‘to inspect such documents or notes pertaining to any item on the bill’. This article argues that the inspection envisaged is a pre-taxation discovery procedure aimed at enabling a cost debtor to determine which items on a bill of costs are objectionable, and the grounds therefor. With reference to relevant judicial precedent and the established principles of interpretation, this article hypothesises that, having regard to the clear, unambiguous, peremptory language of Uniform Rule 70(3B)(a), as well as the purpose sought to be achieved by the right of inspection, the law has, in this context, excluded the operation of the cost creditor’s common-law right to assert legal professional privilege as regards documentation pertaining to any item claimed in the bill of costs. This is unlike the position prevailing at a pre-trial discovery procedure catered for in Uniform Rule 35. This article also argues that, in accordance with s 39(2) of the Constitution, the broad construction of the right of inspection under Uniform Rule 70(3B)(a) advanced here promotes both a cost debtor’s fundamental right in s 34 of the Constitution, and the values of justice and the rule of law which are deeply imbricated in the Bill of Rights.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822956","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 need for public participation in environmental decisions is accepted in both international and South African law. In the run up to, and just after, the transition to democracy, South Africa was exemplary in many instances in ensuring that participation occurred in a meaningful and broad-based way. In recent years, however, some may question whether the underlying rationale for public participation is still as valued by government, or whether it is being diluted to a mechanistic procedural requirement reminiscent of the past. Disputes about the way in which requirements to give effect to public participation are being implemented have recently surfaced in the courts in respect of several environmental issues. There has been strong public opposition to municipal service delivery regarding waste and water, seismic testing off the South African coast, and law-making activities regarding trout. This article considers the court’s oversight of public participation processes in respect of one of those issues — recent decisions on the introduction of executive regulations. It does so by tracing the particular dynamics regarding the need for public participation in South Africa and assessing the way in which the court has adjudicated public participation disputes in the law-making context. It finds that the court appears to be willing to play its oversight role in a way which is true to the underlying ethos of democratic decision-making in the environmental context, albeit that further opportunities for the court to consider the full range of matters involving participation should be welcomed.
{"title":"Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs","authors":"Jenny Hall","doi":"10.47348/salj/v139/i4a6","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a6","url":null,"abstract":"The need for public participation in environmental decisions is accepted in both international and South African law. In the run up to, and just after, the transition to democracy, South Africa was exemplary in many instances in ensuring that participation occurred in a meaningful and broad-based way. In recent years, however, some may question whether the underlying rationale for public participation is still as valued by government, or whether it is being diluted to a mechanistic procedural requirement reminiscent of the past. Disputes about the way in which requirements to give effect to public participation are being implemented have recently surfaced in the courts in respect of several environmental issues. There has been strong public opposition to municipal service delivery regarding waste and water, seismic testing off the South African coast, and law-making activities regarding trout. This article considers the court’s oversight of public participation processes in respect of one of those issues — recent decisions on the introduction of executive regulations. It does so by tracing the particular dynamics regarding the need for public participation in South Africa and assessing the way in which the court has adjudicated public participation disputes in the law-making context. It finds that the court appears to be willing to play its oversight role in a way which is true to the underlying ethos of democratic decision-making in the environmental context, albeit that further opportunities for the court to consider the full range of matters involving participation should be welcomed.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823096","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 probes one aspect of spatial (in)justice and slow spatial transformation in South Africa’s cities. The focus is not so much on case studies or an analysis of persisting spatial injustices. Instead, the article focuses on the legal premises and the apparently colliding legal pathways for sound municipal finance management and spatial justice. It specifically questions, through a mixed research method, the extent to which the co-existence of the Spatial Planning and Land Use Management Act 16 of 2013 (‘SPLUMA’) and the Local Government: Municipal Finance Management Act 56 of 2003 (‘MFMA’), as two Acts in the suite of post-apartheid South African local government legislation, runs the risk of thwarting local government efforts to transform social and physical space in the country’s cities. This question is considered through an exploratory review of the Acts, empirical findings, and a consideration of the limited theory on the interoperability of laws.
{"title":"When the legal pathways for sound financial management and spatial justice collide: The case of South African cities","authors":"Anel Du Plessis","doi":"10.47348/salj/v139/i3a7","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a7","url":null,"abstract":"This article probes one aspect of spatial (in)justice and slow spatial transformation in South Africa’s cities. The focus is not so much on case studies or an analysis of persisting spatial injustices. Instead, the article focuses on the legal premises and the apparently colliding legal pathways for sound municipal finance management and spatial justice. It specifically questions, through a mixed research method, the extent to which the co-existence of the Spatial Planning and Land Use Management Act 16 of 2013 (‘SPLUMA’) and the Local Government: Municipal Finance Management Act 56 of 2003 (‘MFMA’), as two Acts in the suite of post-apartheid South African local government legislation, runs the risk of thwarting local government efforts to transform social and physical space in the country’s cities. This question is considered through an exploratory review of the Acts, empirical findings, and a consideration of the limited theory on the interoperability of laws.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823166","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}
{"title":"Book Review: Petrus T Damaseb The Supreme Court of Namibia (2021)","authors":"M. Paleker","doi":"10.47348/salj/v139/i3a9","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823308","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}
Is a claim falling within the definition of a ‘maritime claim’ in terms of s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 and also within s 29(1) of the Magistrates’ Courts Act 32 of 1944 capable of being pursued in the magistrates’ courts? In World Net Logistics (Pty) Ltd v Donsantel 133 CC & another 2020 (3) SA 542 (KZP) the full court in KwaZulu-Natal held that such claims must be pursued within the exclusive admiralty jurisdiction of the high court. The article submits that this is incorrect and disregards the history of the Admiralty Jurisdiction Regulation Act, amounts pro tanto to an implied repeal of the relevant section of the Magistrates’ Courts Act, and is inconsistent with the principles of statutory interpretation applied by our courts. It urges the Maritime Law Association urgently to seek an opportunity to challenge the decision, which is prejudicial to claimants with small claims arising out of ship-related contracts or delicts.
根据1983年第105号《海事管辖权管理法》第1条和1944年第32号《裁判法院法》第29(1)条的规定，属于“海事索赔”定义的索赔是否能够在裁判法院进行追究?在World Net Logistics (Pty) Ltd诉Donsantel 133 CC和另一项2020 (3)SA 542 (KZP)案中，夸祖鲁-纳塔尔省的合议庭认为，此类索赔必须在高等法院的专属海事管辖权范围内进行。该条认为，这是不正确的，而且无视《海事管辖权管理法》的历史，相当于暗示废除《地方法院法》的有关章节，而且不符合我国法院适用的法定解释原则。它敦促海商法协会紧急寻求机会对这一决定提出质疑，因为这一决定不利于因与船舶有关的合同或不法行为而提出小额索赔的索赔人。
{"title":"Where do we belong? The plight of plaintiffs with small maritime claims","authors":"M. Wallis","doi":"10.47348/salj/v139/i1a7","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a7","url":null,"abstract":"Is a claim falling within the definition of a ‘maritime claim’ in terms of s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 and also within s 29(1) of the Magistrates’ Courts Act 32 of 1944 capable of being pursued in the magistrates’ courts? In World Net Logistics (Pty) Ltd v Donsantel 133 CC & another 2020 (3) SA 542 (KZP) the full court in KwaZulu-Natal held that such claims must be pursued within the exclusive admiralty jurisdiction of the high court. The article submits that this is incorrect and disregards the history of the Admiralty Jurisdiction Regulation Act, amounts pro tanto to an implied repeal of the relevant section of the Magistrates’ Courts Act, and is inconsistent with the principles of statutory interpretation applied by our courts. It urges the Maritime Law Association urgently to seek an opportunity to challenge the decision, which is prejudicial to claimants with small claims arising out of ship-related contracts or delicts.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822032","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 : 2022-01-01DOI: 10.47348/salj/v139/i3a10
D. Klatzow
None
没有一个
{"title":"Book Review: Brandon L Garrett Autopsy of a Crime Lab: Exposing the Flaw in Forensics (2022)","authors":"D. Klatzow","doi":"10.47348/salj/v139/i3a10","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a10","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822816","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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