Opposing cynical evictions: The possessory action

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Opposing cynical evictions: The possessory action

Authors: Jeremy Phillips & Arthur van Coller

ISSN: 1996-2177
Affiliations: Senior Associate, Cheadle Thompson & Haysom Inc; Associate Professor, Faculty of Law, University of Fort Hare
Source: South African Law Journal, Volume 141 Issue 1, p. 24-44
https://doi.org/10.47348/SALJ/v141/i1a3

Abstract

The possessory action is a relatively unknown common-law remedy. It has not featured in the law reports for the best part of the last one hundred years and is generally relegated to a cursory discussion in most property-law textbooks. Its basic formulation is that where one has been dispossessed of an item, one is to be restored in possession, paid compensation and/or paid damages if one has a stronger right to possess the item than the dispossessor. Although it has fallen out of fashion, there is growing interest in how the possessory action may be used to address contemporary issues. One such issue is persistent and recurring cynical evictions — unlawful evictions during which the home structure is demolished and destroyed. Whether the possessory action is at all available as a remedy for cynical evictions is unclear. This article explores the history, nature, and scope of the possessory action and asks whether it can be appropriately applied to oppose cynical evictions.

The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

Authors: Marno Swart & Pieter Carstens

ISSN: 1996-2177
Affiliations: PhD Candidate in Medical Ethics and Law, University of Cambridge; Emeritus Professor of Medical Law and Criminal Law; Former Director of the Centre for Law and Medicine, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 1, p. 45-83
https://doi.org/10.47348/SALJ/v141/i1a4

Abstract

The doctrine of informed consent is the foundation of the physician–patient relationship. This doctrine remains controversial despite its importance, and issues involving consent are frequently litigated. This article examines the application of the doctrine of informed consent in South African medical law as it has developed in South African case law. This examination first sets a normative background for consent as a ground of justification against a wrong ful act in either contract or delict (or both) that is significantly influenced by the Constitution of the Republic of South Africa, 1996. Against this normative background, a selected anthology of nine significant judgments by South African courts is analysed, with specific attention paid to the critical shift prompted by the promulgation of the Constitution. Finally, the analyses of the nine judgments are consolidated and collated to draw conclusions about the triumphs and failings of the South African courts, based on the normative background. This analysis reveals which aspects of the doctrine of informed consent have crystallised in South African medical law and which remain unclear.

Identification parades in South Africa — Time for a change?

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Identification parades in South Africa — Time for a change?

Authors: Colin G Tredoux, Ryan J Fitzgerald, Aldred Allan & Alicia Nortje

ISSN: 1996-2177
Affiliations: Professor, Department of Psychology, University of Cape Town; Assistant Professor, Department of Psychology, Simon Fraser University; Professor, Department of Psychology, Edith Cowan University; Post-doctoral Researcher, Department of Psychology, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 84-111
https://doi.org/10.47348/SALJ/v141/i1a5

Abstract

Identification parades are essential when obtaining evidence of identity from eyewitnesses. Eyewitnesses are shown a line of people containing the suspect(s) and innocent fillers, and witnesses are asked to point out the perpetrator(s) of the crime, noting that the perpetrator(s) might not be present. Corporeal (‘live’) parades are required in South Africa unless there is a good reason not to use them, in which case the police may use photograph parades. We review the rules for conducting parades in South Africa and compare these to those in several other countries, many of which no longer use corporeal parades. We consider evidence from empirical studies that have tested the ‘live superiority’ hypothesis and conclude that there is no clear evidence in its favour, notwithstanding that there are benefits to augmenting static views of faces with additional cues to identity. We then consider the logistical and financial cost of conducting live parades, which we find to be considerable. We conclude that it may well be time to reconsider the use of live identification parades in South Africa but caution that this should coincide with a review of the law regulating the use of alternative methods to ensure that accused persons receive fair trials.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Authors: Amy Gooden & Donrich Thaldar

ISSN: 1996-2177
Affiliations: Doctoral Fellow, School of Law, University of KwaZulu-Natal; Professor, School of Law, University of KwaZulu-Natal; Visiting Scholar, Petrie-Flom Center for Health Policy, Biotechnology, and Bioethics, Harvard Law School
Source: South African Law Journal, Volume 141 Issue 1, p. 112-142
https://doi.org/10.47348/SALJ/v141/i1a6

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Gooden, A & Thaldar, D
The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act
South African Law Journal, Volume 141 Issue 1, p. 112-142 https://doi.org/10.47348/SALJ/v141/i1a6

Abstract

This article examines the regulation of health-related direct-to-consumer genetic tests (‘HDGTs’) in South Africa by the Medicines and Related Substances Act 101 of 1965 and its related regulations, namely the Regulations Relating to Medical Devices and In Vitro Diagnostic Medical Devices and the draft Regulations Relating to Medical Devices, as well as the South African Health Products Regulatory Authority guidelines. Such regulation includes the classification, licensing, registration, marketing, labelling and importing of HDGTs. At a basic classification level, the manufacturer’s intention determines whether HDGTs are medical devices and/or in vitro diagnostic devices (‘IVDs’). Those HDGTs that are medical devices are also likely to be IVDs and are likely to be classified as Class B IVD medical devices, meaning that they pose low to medium risk. This is because the intended use of an HDGT is generally not as a diagnostic tool but as an informational tool, where the results are not definitive and additional testing is required. Accordingly, a licence is required to manufacture, import, export, sell or distribute HDGTs in South Africa. The classification of HDGTs also impacts the rules relating to labelling, advertising and importation.

Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

Author: Saleem Seedat

ISSN: 1996-2177
Affiliations: Extraordinary Research Fellow, Faculty of Law, North-West University
Source: South African Law Journal, Volume 141 Issue 1, p. 143-168
https://doi.org/10.47348/SALJ/v141/i1a7

Abstract

Arbitration has a noble lineage that stretches back into time. It has evolved from a simple attempt to resolve disputes in the presence of a local authority to a more technical presentation before an independent arbiter. In South Africa, arbitrations have statutory recognition. This article focuses on an arbitration clause that is embedded in a substantive agreement where the agreement was induced by fraudulent misrepresentation by a party to the agreement. The general principles of the law of contract would dictate that fraud makes the contract voidable at the instance of the innocent party. But our courts have equivocated in deciding whether the tainted contract also besmirches the arbitration clause. While earlier decisions confirmed the autonomy of the arbitration clause, two judgments of the Supreme Court of Appeal (‘SCA’) in particular held that the arbitration clause foundered with the main agreement. The article argues that the SCA’s findings were misconceived and suggests that the SCA’s reluctance to allow arbitrators to decide on the validity of an arbitration clause in a contract instigated by fraud is incorrect. It is argued that consonant with international practice, an arbitration clause should be considered a clause separate from the main agreement that will not be affected by the invalidity of the main agreement. A subsequent SCA decision recognised the primacy of an arbitration clause incorporated into an agreement. The article also proffers the possibility of reading into a contract a tacit term that all disputes arising from the main agreement will be arbitrated.

Footing the (wage) bill: Reasoning, remedies and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Footing the (wage) bill: Reasoning, remedies and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

Authors: Justin Winchester & Catherine Willis-Smith

ISSN: 1996-2177
Affiliations: Bachelor of Civil Law candidate, Faculty of Law, University of Oxford; Teaching Assistant, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 169-200
https://doi.org/10.47348/SALJ/v141/i1a8

Abstract

In NEHAWU & others v Minister of Public Service and Administration & others 2022 (6) BCLR 673 (CC), the Constitutional Court declared invalid and unenforceable a clause regulating the third payment period in a collective agreement regulating periodic wage increases for public service employees. We do not take issue with the court’s findings concerning the validity of the impugned collective agreement. However, we question the reasoning provided for the ‘just and equitable’ remedy ordered. We find the court’s reasoning insufficient in so far as it overlooked applicable principles of corrective justice, the significance of the state being unjustifiably enriched by labour peace by curtailing public servants’ right to strike, and the consequences of its decision on the effectiveness of the delay-bar in preventing ill-motivated state self-review. We propose the bifurcated approach that the court adopted in the AllPay saga as a tool to adjudicate polycentric cases such as the impugned case, as it enhances the judiciary’s proper place in the separation of powers and maximises remedial possibilities for innocent third parties to state contracts. We conclude with what has happened on the ground since this decision was reached.

Ogochukwu Monye Digital Financial Inclusion and Regulation (2023); Oyeniyi Abe Implementing Business and Human Rights Norms in Africa — Law and Policy Interventions (2022); Victor T Amadi Trade, Migration and Law — Free Movement of Persons in the Southern African Development Community (2024)

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

BOOK REVIEW

Ogochukwu Monye Digital Financial Inclusion and Regulation (2023); Oyeniyi Abe Implementing Business and Human Rights Norms in Africa — Law and Policy Interventions (2022); Victor T Amadi Trade, Migration and Law — Free Movement of Persons in the Southern African Development Community (2024)

Authors: Raisa Nyirongo, Yakubu Nagu & Ada Ordor

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 205-211
https://doi.org/10.47348/SALJ/v141/i1a10

Abstract

None

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Lack of small business participation (small fishing companies SIC Code 13100) in the Transport Education Training Authority-Supported Schemes

by | Jan 17, 2024 | SAJMET, SAJMET V2

Lack of small business participation (small fishing companies SIC Code 13100) in the Transport Education Training Authority-Supported Schemes

Author: Malcolm Alexander

ISSN: 2790-783X
Affiliations: ETD Practitioner (Maritime), Transport Education Training Authority
Source: South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 1-24
https://doi.org/10.47348/SAJMET/2023/i1a1

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Alexander, M
Lack of small business participation (small fishing companies SIC Code 13100) in the Transport Education Training Authority-Supported Schemes
South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 1-24 https://doi.org/10.47348/SAJMET/2023/i1a1

Abstract

The study focusses on the transport sector, where company participation level is measured at approximately 20% of levy paying enterprises, and this level is mostly based on relatively high levels of participation from large and medium-sized companies. The study explores the relationship between Sector Education and Training Authorities (SETAs) and the companies within the sectors they are mandated to serve by researching the Transport Education Training Authority (TETA) maritime subsector. The research focus is on small companies and the focus is specifically on the low rate of participation of smaller entities in the skills development landscape. The consequences of the lack of participation are investigated and the study concludes that the SETA’s ability to effectively research its sector skills, as well as the SETAs ability to provide effective skills planning in support of the national agenda, are both negatively affected by current levels of poor participation. The research was conducted on small fishing companies registered with TETA, in order to determine the reasons for low participation in the government’s mandatory grant scheme. The research is survey-based across participating and non-participating small companies. In addition, it is proposed that the elements contained herein are transferable to other subsectors of the transport economy (e.g. air, road and rail), and to the multitude of other SETAs that have small companies registered with them. Succinctly, there is no financial incentive to a small company to participate, the SETAs should consider incentives schemes to increase participation that is project-based and allows for subsidised training. The value of an improved Sector Skills Plan (SSP) that matches the skills needs of the sector increases the likelihood of projects having a meaningful impact on the sector and reduces fruitless and wasteful expenditure in the sector. The small business environment has huge potential to assist in skills development, a skilled workforce, improved productivity and reducing unemployment. The findings and solutions are important tools for taking the maritime development agenda forward.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Modern shipping needs to be cybersecure: A South African perspective

by | Jan 17, 2024 | SAJMET, SAJMET V2

Modern shipping needs to be cybersecure: A South African perspective

Authors: Rossouw von Solms and Suné von Solms

ISSN: 2790-783X
Affiliations: Emeritus Professor, Centre for Research in Information and Cyber Security (CRICS), School of Information Technology, Nelson Mandela University; South African International Maritime Institute; Head of Department, School of Electrical and Electronic Engineering Science, University of Johannesburg; South African international Maritime Institute; Head of Department, School of Electrical and Electronic Engineering Science, University of Johannesburg; South African international Maritime Institute
Source: South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 25-34
https://doi.org/10.47348/SAJMET/2023/i1a2

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von Solms, R and von Solms, S
Modern shipping needs to be cybersecure: A South African perspective
South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 25-34 https://doi.org/10.47348/SAJMET/2023/i1a2

Abstract

The traditional standalone operational technology systems that control multiple mechanical systems on board a ship get increasingly integrated with modern information and communications technology (ICT)-related systems. These ICT systems that continuously become interconnected with operational technologies and systems include the Internet-of-Things (IoT), autonomous technologies and the internet with adequate bandwidth etc. The IoT typically employs numerous sensors and captures vast amounts of data, which is processed, transmitted and turned into trusted intelligence to the advantage of all parties involved. Furthermore, modern navigational systems utilise global positioning systems (GPS), radar, sonar and computerised maps. These are used in conjunction with modern communication systems to communicate related data used for accurate navigation. In addition, autonomous technologies are highly dependent on accurate data communicated to them. Thus, it is clear that data is rightly termed ‘the new gold’ in the shipping industry. On the other hand, the maritime industry, like most other industries, is highly vulnerable to cybersecurity attack. As more data is captured, processed and communicated for the more critical shipping activities, the more vulnerable the industry will become to modern cybersecurity threats. Therefore, the interfaces between sensors, devices and different technologies, and the communication of captured data need to be properly secured. Furthermore, many of the shipping industry staff working with technologies where data are captured and communicated need to be educated on how to assist in securing this data. This paper will emphasise the continued use of ICTrelated systems in the shipping industry, and how this digitalisation and smart use of ICT solutions will benefit the maritime industry. In light of this, the purpose of this paper is to highlight the continued vulnerabilities to modern cybersecurity threats, and to discuss some solutions to securing these technologies towards securing the industry as a whole. The paper will also address aspects of educating maritime staff in technology-related areas ranging from the ICT- and cybersecurity-related topics that need to be included in maritime curricula, on the more formal side, to making all staff members more cybersecurity aware, on the more informal side.