Multi-tiered dispute resolution clauses in agreements in South Africa are prevalent. In many instances these clauses provide for a sequence of dispute resolution processes, often commencing with negotiation, followed by mediation, and then, finally, arbitration. Arbitrators and parties to these clauses need to consider whether the preconditions to arbitration are sufficiently certain to be enforceable and whether they have been fulfilled. The issue has received little attention in South Africa but there is a considerable body of foreign case law on the topic. According to foreign precedent, it must be determined whether the interim steps preceding arbitration are conditions precedent to arbitration, and, if so, whether they are enforceable. This entails, in part, assessing whether the clause in the agreement is of sufficient certainty for a court to ascertain whether it has been complied with. This note presents an exposition of the foreign case law and demonstrates how the position in foreign jurisdictions is consistent with the law in South Africa. It also aims to set out the minimum requirements for an interim negotiation or mediation clause to be enforceable as a precondition to arbitration.
{"title":"Notes: Multi-tiered dispute resolution clauses — Peremptory steps or too vague to matter?","authors":"Brendan Lyall Studti","doi":"10.47348/salj/v139/i3a2","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a2","url":null,"abstract":"Multi-tiered dispute resolution clauses in agreements in South Africa are prevalent. In many instances these clauses provide for a sequence of dispute resolution processes, often commencing with negotiation, followed by mediation, and then, finally, arbitration. Arbitrators and parties to these clauses need to consider whether the preconditions to arbitration are sufficiently certain to be enforceable and whether they have been fulfilled. The issue has received little attention in South Africa but there is a considerable body of foreign case law on the topic. According to foreign precedent, it must be determined whether the interim steps preceding arbitration are conditions precedent to arbitration, and, if so, whether they are enforceable. This entails, in part, assessing whether the clause in the agreement is of sufficient certainty for a court to ascertain whether it has been complied with. This note presents an exposition of the foreign case law and demonstrates how the position in foreign jurisdictions is consistent with the law in South Africa. It also aims to set out the minimum requirements for an interim negotiation or mediation clause to be enforceable as a precondition to arbitration.","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":"70823341","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}
Ferdinand Heinrich Hermann Kehrhahn, Jani Charlese de Lange
This article considers the case of Kruse v S, where the right to a fair trial of a deaf accused was infringed owing to the poor communication and translation of the trial proceedings. This article considers the methods available to translate court proceedings to a deaf or hard-of-hearing accused, and demonstrates an appreciation that the deaf community is not homogeneous and that a single interpreting method cannot accommodate every deaf person. In raising the question as to which method is best suited to a specific accused, the article indicates that the culture and history of the deaf accused should be indispensable factors to consider. The article explores the rights of deaf accused in the South African criminal justice system by considering the Constitution, national legislation, and judicial norms and standards which relate to the interpreting of trial proceedings to the deaf accused. The existing laws and safeguards that protect these rights are poorly implemented at a grass-roots level, which calls for better training of stakeholders and more effective policy implementation. A concerted effort on the part of the government is required to ensure that the rights of the deaf accused are protected.
{"title":"Guilty of being deaf. Kruse v S — paying lip service to the fair-trial rights of hearing-impaired accused persons","authors":"Ferdinand Heinrich Hermann Kehrhahn, Jani Charlese de Lange","doi":"10.47348/salj/v139/i1a5","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a5","url":null,"abstract":"This article considers the case of Kruse v S, where the right to a fair trial of a deaf accused was infringed owing to the poor communication and translation of the trial proceedings. This article considers the methods available to translate court proceedings to a deaf or hard-of-hearing accused, and demonstrates an appreciation that the deaf community is not homogeneous and that a single interpreting method cannot accommodate every deaf person. In raising the question as to which method is best suited to a specific accused, the article indicates that the culture and history of the deaf accused should be indispensable factors to consider. The article explores the rights of deaf accused in the South African criminal justice system by considering the Constitution, national legislation, and judicial norms and standards which relate to the interpreting of trial proceedings to the deaf accused. The existing laws and safeguards that protect these rights are poorly implemented at a grass-roots level, which calls for better training of stakeholders and more effective policy implementation. A concerted effort on the part of the government is required to ensure that the rights of the deaf accused are protected.","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":"70821980","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}
Alternative dispute resolution is one of the mechanisms envisaged by the Consumer Protection Act 68 of 2008 to provide consumers with access to cost-effective and speedy redress of consumer disputes. Accredited industry ombuds are one of the fora that give effect to this purpose. However, industry participants are not always willing participants, and may wish to challenge the legitimacy of such fora, particularly where the relevant forum is funded by these industry participants. This makes it challenging to give effect to the provisions of any applicable codes of conduct, and also frustrates the consumer’s pursuit for redress. These issues came to the fore in Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd [2021] ZAGPPHC 309. In this matter, the Consumer Goods and Services Ombud sought a declaratory order from the court, confirming that its code of conduct was legitimate. The judgment is significant as it has an impact on the enforcement of consumer rights by this ombud, and has wider implications for other current and future accredited industry ombuds.
{"title":"Notes: The legitimacy of the South African Consumer Goods and Services Ombud’s Code of Conduct: An analysis of Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd","authors":"T. Scott, Obakeng van Dyk","doi":"10.47348/salj/v139/i2a1","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a1","url":null,"abstract":"Alternative dispute resolution is one of the mechanisms envisaged by the Consumer Protection Act 68 of 2008 to provide consumers with access to cost-effective and speedy redress of consumer disputes. Accredited industry ombuds are one of the fora that give effect to this purpose. However, industry participants are not always willing participants, and may wish to challenge the legitimacy of such fora, particularly where the relevant forum is funded by these industry participants. This makes it challenging to give effect to the provisions of any applicable codes of conduct, and also frustrates the consumer’s pursuit for redress. These issues came to the fore in Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd [2021] ZAGPPHC 309. In this matter, the Consumer Goods and Services Ombud sought a declaratory order from the court, confirming that its code of conduct was legitimate. The judgment is significant as it has an impact on the enforcement of consumer rights by this ombud, and has wider implications for other current and future accredited industry ombuds.","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":"70822203","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 engages and extends the proposition that the debate on constitutionalism in the postcolony should restore the sovereignty of the demos to a central position. The notion of a unified South African demos is contested, but the arguments against working with the presently constituted unified demos are not overwhelming. With democratic sovereignty as the key focus, the question is how the demos’ lifeblood of present consent can be injected into the current South African constitutional order. Drawing on Grewal & Purdy’s development of Tuck’s reconstruction of original constitutionalism, the article presents six variables for understanding democratic self-rule over time: unified and splintered sovereignty; univocal and multitudinous constitution-making; popular authorship; and present consent. Taking into account Arato’s post-sovereign model of constitution-making, the article argues that South Africa’s constitutional order may be leaning too far in the direction of splintered sovereignty, multitudinous constitution-making and a preoccupation with the act of founding. Instead, the unified sovereign, univocal constitution-making and the imperative of present consent need to be firmly placed on the agenda. The article concludes by considering four ways in which the unified sovereign could be brought back into the realm of constitution-making in South Africa.
{"title":"Constitutional futures and the South African demos: Time for some univocal sovereignty?","authors":"Tracy-Lynn Field","doi":"10.47348/salj/v139/i3a8","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a8","url":null,"abstract":"This article engages and extends the proposition that the debate on constitutionalism in the postcolony should restore the sovereignty of the demos to a central position. The notion of a unified South African demos is contested, but the arguments against working with the presently constituted unified demos are not overwhelming. With democratic sovereignty as the key focus, the question is how the demos’ lifeblood of present consent can be injected into the current South African constitutional order. Drawing on Grewal & Purdy’s development of Tuck’s reconstruction of original constitutionalism, the article presents six variables for understanding democratic self-rule over time: unified and splintered sovereignty; univocal and multitudinous constitution-making; popular authorship; and present consent. Taking into account Arato’s post-sovereign model of constitution-making, the article argues that South Africa’s constitutional order may be leaning too far in the direction of splintered sovereignty, multitudinous constitution-making and a preoccupation with the act of founding. Instead, the unified sovereign, univocal constitution-making and the imperative of present consent need to be firmly placed on the agenda. The article concludes by considering four ways in which the unified sovereign could be brought back into the realm of constitution-making in South Africa.","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":"70823368","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 examines the recent adoption of the Twin Peaks model by the United Kingdom and South Africa. An international and comparative analysis is provided. It observes that there is a gradual paradigm shift across the world towards the Twin Peaks model of financial regulation. There are slight variations in the design of the two countries’ Twin Peaks models. The variations in regulatory design indicate the flexibility of the Twin Peaks model and its adaptability to suit local conditions, regulatory culture, and the country’s specific needs. Therefore, while the South African model has drawn significantly from the experiences of other Twin Peaks jurisdictions, particularly the UK, South Africa has adopted the model to accommodate its own needs and unique characteristics. It is imperative for the success of the Twin Peaks model that it clearly delineates the objectives and functions of each regulator, and achieves effective co-ordination between them. This article warns that, given the potential overlaps and high levels of co-operation required between the different regulatory bodies in South Africa, there could be detrimental consequences if this complicated financial regulation regime is not properly managed.
{"title":"A comparative analysis of the Twin Peaks model of financial regulation in South Africa and the United Kingdom","authors":"Mmiselo Freedom Qumba","doi":"10.47348/salj/v139/i1a3","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a3","url":null,"abstract":"This article examines the recent adoption of the Twin Peaks model by the United Kingdom and South Africa. An international and comparative analysis is provided. It observes that there is a gradual paradigm shift across the world towards the Twin Peaks model of financial regulation. There are slight variations in the design of the two countries’ Twin Peaks models. The variations in regulatory design indicate the flexibility of the Twin Peaks model and its adaptability to suit local conditions, regulatory culture, and the country’s specific needs. Therefore, while the South African model has drawn significantly from the experiences of other Twin Peaks jurisdictions, particularly the UK, South Africa has adopted the model to accommodate its own needs and unique characteristics. It is imperative for the success of the Twin Peaks model that it clearly delineates the objectives and functions of each regulator, and achieves effective co-ordination between them. This article warns that, given the potential overlaps and high levels of co-operation required between the different regulatory bodies in South Africa, there could be detrimental consequences if this complicated financial regulation regime is not properly managed.","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":"70821928","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: Andrew Stewart, Rosemary Owens, Niall O’Higgins & Anne Hewitt (eds) Internships, Employability and the Search for Decent Work Experience (2021)","authors":"J. Maree","doi":"10.47348/salj/v139/i1a9","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a9","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":"70822137","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/i3a12
D. Visser
None
没有一个
{"title":"BOOK NOTICES: Andreas van Wyk & Gerhard Lubbe Stellenbosch Law Faculty 100 Years/Stellenbosse Regsfakulteit 100 Jaar (2021)","authors":"D. Visser","doi":"10.47348/salj/v139/i3a12","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a12","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":"70822479","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/i3a13
M. Forere
None
没有一个
{"title":"BOOK NOTICES: Desmond Osaretin Oriakhogba Copyright: Collective Management and Competition in Africa (2021)","authors":"M. Forere","doi":"10.47348/salj/v139/i3a13","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a13","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":"70822562","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 case note compares the judgments of the Western Cape High Court, the Supreme Court of Appeal and the Constitutional Court in BE on behalf of JE v MEC for Social Development, Western Cape. It suggests that the conclusion reached by the Western Cape High Court was not only the better decision in terms of a just outcome, but also the right decision when weighing the facts against the applicable statutory framework and case law, including the relevant international law. Furthermore, the case note submits that the approaches of the two higher courts to the wrong fulness inquiry were not in line with a children’s-rights approach and did not consider the state’s duty under international law to protect children’s rights, including the child’s right to play in a safe environment and to education, inclusive of the period from early childhood to birth.
{"title":"Notes: State liability in respect of a child negligently injured at an early childhood development centre: A critical assessment of BE obo JE v MEC for Social Development, Western Cape","authors":"B. Clark, W. Holness","doi":"10.47348/salj/v139/i3a1","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a1","url":null,"abstract":"This case note compares the judgments of the Western Cape High Court, the Supreme Court of Appeal and the Constitutional Court in BE on behalf of JE v MEC for Social Development, Western Cape. It suggests that the conclusion reached by the Western Cape High Court was not only the better decision in terms of a just outcome, but also the right decision when weighing the facts against the applicable statutory framework and case law, including the relevant international law. Furthermore, the case note submits that the approaches of the two higher courts to the wrong fulness inquiry were not in line with a children’s-rights approach and did not consider the state’s duty under international law to protect children’s rights, including the child’s right to play in a safe environment and to education, inclusive of the period from early childhood to birth.","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":"70822744","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 Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) the Constitutional Court found that the personal right of exclusive trade in the lease contract was contrary to public policy and not worthy of protection. To do so, the court relied on the ‘competition principle’ — that the competitor who delivers the best or fairest (most reasonable) performance must achieve victory, while the one rendering the weakest (worst) performance must suffer defeat. The court was of the view that, as a general proposition, third parties have no legal duty not to infringe contractually derived exclusive rights to trade. According to the majority, exclusive trading rights make the competitive field uneven. The court emphasised that the boni mores must be understood in terms of the values of the Constitution, and that the values contained in the Bill of Rights are a crucial tool in the development of the common law. Although the majority judgment focused on the delict of unlawful third-party interference in a contractual relationship and the nature of interdicts, the judgment relates also to the question of the personal right to commodus usus in a lease contract, and the remedies available to vindicate this right. The intersection of these issues is investigated in this note.
在Masstores (Pty) Ltd诉Pick ' n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC)一案中，宪法法院认定租赁合同中的个人独家贸易权违反了公共政策，不值得保护。为此，法院依据“竞争原则”——提供最好或最公平(最合理)表现的竞争者必须取得胜利，而提供最弱(最差)表现的竞争者必须遭受失败。法院认为，作为一项一般主张，第三方没有法律义务不侵犯合同产生的贸易专有权。多数人认为，专有权使竞争环境不公平。法院强调，必须根据《宪法》的价值来理解善意的习俗，而《权利法案》所载的价值是发展普通法的重要工具。虽然多数判决侧重于非法第三方干涉合同关系的违法行为和禁令的性质，但判决也涉及租赁合同中对既得物的个人权利问题，以及可用于维护这一权利的救济办法。本文将研究这些问题的交集。
{"title":"Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd","authors":"Anthea-lee September-Van Huffel","doi":"10.47348/salj/v139/i2a3","DOIUrl":"https://doi.org/10.47348/salj/v139/i2a3","url":null,"abstract":"In Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) the Constitutional Court found that the personal right of exclusive trade in the lease contract was contrary to public policy and not worthy of protection. To do so, the court relied on the ‘competition principle’ — that the competitor who delivers the best or fairest (most reasonable) performance must achieve victory, while the one rendering the weakest (worst) performance must suffer defeat. The court was of the view that, as a general proposition, third parties have no legal duty not to infringe contractually derived exclusive rights to trade. According to the majority, exclusive trading rights make the competitive field uneven. The court emphasised that the boni mores must be understood in terms of the values of the Constitution, and that the values contained in the Bill of Rights are a crucial tool in the development of the common law. Although the majority judgment focused on the delict of unlawful third-party interference in a contractual relationship and the nature of interdicts, the judgment relates also to the question of the personal right to commodus usus in a lease contract, and the remedies available to vindicate this right. The intersection of these issues is investigated in this note.","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":"70822772","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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