Re(de)fining defamation

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Re(de)fining defamation

Author: Emile Zitzke

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 141 Issue 4, p. 635-651
https://doi.org/10.47348/SALJ/v141/i4a1

Abstract

This note is about the definition of common-law defamation. The authoritative definition of common-law defamation (the wrongful and intentional publication of a defamatory statement concerning the plaintiff) is weighed against the five general elements of the common law of delict (conduct, damage, fault, wrong fulness, and causation) to determine to what extent the general and specific elements cohere. It is argued that the time has come to alter the definition of common-law defamation (slightly) to give a more accurate account of what courts do in defamation cases, which would also ensure greater unity between general and specific elements for liability.

Minister of Water and Sanitation v Msukaligwa Local Municipality: Is financial incapacity a valid excuse?

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Minister of Water and Sanitation v Msukaligwa Local Municipality: Is financial incapacity a valid excuse?

Author: Johandri Wright

ISSN: 1996-2177
Affiliations: Post-Doctoral Fellow, SARChI Chair in Multilevel Government, Law and Development, Dullah Omar Institute, University of the Western Cape
Source: South African Law Journal, Volume 141 Issue 4, p. 652-665
https://doi.org/10.47348/SALJ/v141/i4a2

Abstract

South African local government is failing to provide basic services. These services are important to realize many socio-economic rights. Municipalities often refer to their financial incapacity as an excuse for not delivering basic services. Minister of Water and Sanitation v Msukaligwa Local Municipality is an example of a judgment where the Municipality relied on its financial incapacity as a defence for not delivering water and sanitation services in accordance with national standards. The court rejected this defence. In terms of a structural interdict, the court ordered the Municipality to bring its service delivery in line with national standards under the relevant Minister’s supervision. This judgment is important for many reasons. This case note explores the contribution of this judgment to the law relating to financial incapacity as a justifiable defence for not delivering services where this impacts on the realization of socio-economic rights.

Lost in the fundamental contradiction: Revisiting Beadica

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Lost in the fundamental contradiction: Revisiting Beadica

Author: Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: Professor of Jurisprudence, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 4, p. 666-684
https://doi.org/10.47348/SALJ/v141/i4a3

Abstract

In this note, I revisit the concept of the fundamental contradiction that Kennedy proposed in 1979 as the ‘essence of every legal problem’. I argue that the Constitutional Court post-Barkhuizen has not taken the fundamental contradiction seriously, and, as a result, the decision in Beadica exhibits the fundamental contradiction in a glaringly transparent manner. In the course of the discussion, I also consider the literature on ‘good faith’ that has emerged in the aftermath of Beadica and the attempts, it would be seem, to wrench some sort of coherence out of it. I suggest that it is only when the Constitutional Court becomes more sensitive to the actual progressive demands of transformation in the contractual realm, instead of being preoccupied with an elaboration of the continuation of a liberal status quo (as it is in Beadica), that it will be able to transcend forcefully out of the fundamental contradiction. For as long as courts hark back to the jurisprudence of yesteryear, they will remain caught in the fundamental contradiction to the point that they will render our jurisprudence devoid of meaning and coherence.

Seismic surveys in South Africa’s maritime domain: The Sustaining the Wild Coast cases

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Note

Seismic surveys in South Africa’s maritime domain: The Sustaining the Wild Coast cases

Authors: Vishal Surbun & Paul Swanepoel

ISSN: 1996-2177
Affiliations: Senior Lecturer in Law, University of KwaZulu-Natal; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 141 Issue 4, p. 685-702
https://doi.org/10.47348/SALJ/v141/i4a4

Abstract

The decision in Sustaining the Wild Coast & others v Minister of Mineral Resources and Energy & others represented a landmark victory for local communities in the Eastern Cape over prominent oil companies, notably Shell. The applicants sought an interim interdict in the High Court to prevent Shell from undertaking a seismic survey pursuant to an exploration right, pending the determination of an application for a final interdict. The High Court, in hearing the application for the final interdict, also considered various grounds of review under the Promotion of Access to Administrative Justice Act 3 of 2000, including procedural fairness and a failure to take into account relevant considerations. The High Court set aside the granting of the exploration right and its renewals. The Supreme Court of Appeal, however, despite dismissing an appeal by Shell, decided to suspend the setting aside of the exploration right and its two renewals pending the determination of a third renewal application. The note considers the judgments of the High Court and the Supreme Court of Appeal with a focused analysis of maritime intangible cultural heritage, concluding that this legal framework should be better integrated into the authorisation process for an exploration right.

Treaties apply in South African law — Now what? Analysing the courts’ interpretation of treaties over the last half-decade

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Article

Treaties apply in South African law — Now what? Analysing the courts’ interpretation of treaties over the last half-decade

Authors: Andreas Coutsoudis

ISSN: 1996-2177
Affiliations: Honorary Research Fellow, University of KwaZulu-Natal; Advocate, KwaZulu-Natal Bar
Source: South African Law Journal, Volume 141 Issue 4, p. 703-747
https://doi.org/10.47348/SALJ/v141/i4a5

Abstract

The application of treaties has become an ever more embedded feature of the South African courts’ jurisprudence. In light of that, this article offers a systematic descriptive assessment of the courts’ approach to the interpretation of treaties over the last halfdecade (2018–2023), so as to make critical proposals for charting the interpretative way forward. The article begins by considering how treaties ought to be interpreted, with particular regard to customary international law’s rules for interpretation, as codified in the Vienna Convention. The article then delineates the pertinent features of the courts’ approach to treaty interpretation by analysing the courts’ decisions over the last half-decade. This reveals that the courts’ approach to treaty interpretation has not generally been methodologically rigorous from an international-law perspective. Courts, with some notable exceptions, particularly in the most recent cases, tend to adopt a superficial approach that ignores international law’s interpretative rules and the materials they make applicable, notwithstanding the constitutional obligation to use these rules. Given these features or trends, the article makes recommendations to ensure that as South Africa starts its fourth decade of constitutionally enshrined integration of international law, treaty law’s interpretative neglect does not continue.

A statutory duty to provide financial information at an early stage in family-law matters

by | Dec 7, 2024 | SALJ, SALJ V141 I4 2024

Article

A statutory duty to provide financial information at an early stage in family-law matters

Authors: Madelene de Jong & Elsje Bonthuys

ISSN: 1996-2177
Affiliations: Research Associate, University of Limpopo; Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 141 Issue 4, p. 748-770
https://doi.org/10.47348/SALJ/v141/i4a6

Abstract

Many people lack current and accurate information about their spouse’s financial positions, or even of their marital estates, while they are married. This creates opportunities for spouses with exclusive access to financial information to secrete assets and hide information before and during divorce, resulting in increased animosity between divorcing spouses and even unfair orders for the division of marital assets or maintenance. This article investigates four recent initiatives to create duties to provide accurate financial information in divorce and maintenance litigation between spouses and former spouses. It also discusses similar disclosure mechanisms recently adopted in other jurisdictions. The article argues that there is a clear public policy basis for creating statutory duties of financial disclosure in litigation between spouses or former spouses.