The Draft Lower Courts Bill — A serious attempt to transform the civil justice system, or another window-dressing exercise?

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

Note

The Draft Lower Courts Bill — A serious attempt to transform the civil justice system, or another window-dressing exercise?

Author: Mohamed Paleker

ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 3, p. 437-454
https://doi.org/10.47348/SALJ/v141/i3a1

Abstract

The magistrates’ courts are often the first point of access to the civil justice system and are therefore crucial for ensuring access to justice. The Magistrates’ Courts Act 32 of 1944 (‘the MCA’) regulates their powers, functions, and procedures. While the legislation has been amended several times, there is a growing consensus that it needs to be replaced. This note examines some aspects of the draft Lower Courts Bill, which the Department of Justice has proposed as a replacement for the MCA. It discusses some of its positive features, identifies gaps in the proposed legislation, and provides suggestions for improving it.

Investors beware — Public-interest considerations in merger review are significant: The Burger King matter

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

Note

Investors beware — Public-interest considerations in merger review are significant: The Burger King matter

Author: Jacqueline Church

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 3, p. 454-466
https://doi.org/10.47348/SALJ/v141/i3a2

Abstract

In South Africa, statutory competition law serves as a vehicle to address both traditional economic goals and broader social and political concerns. This is particularly apparent in the field of merger regulation, where public interests must be considered in the merger analysis. This note focuses on the so-called Burger King merger, which was notified to the Competition Commission and initially prohibited. Notably, this marks the first time since the inception of the Competition Act 89 of 1998 that an intermediate merger has been prohibited solely on public-interest grounds. However, the Tribunal subsequently cleared the merger, but only after the merging parties agreed to accept the onerous conditions imposed upon them.

Recent South African marriage reform proposals: Confused and conflicted?

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

Note

Recent South African marriage reform proposals: Confused and conflicted?

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Retired Judge of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 141 Issue 3, p. 467-482
https://doi.org/10.47348/SALJ/v141/i3a3

Abstract

This note examines recent marriage reform proposals from the Department of Home Affairs, namely the Draft Marriage Bill of 2022. Prior to this Bill, in January 2021, the South African Law Reform Commission (‘SALRC’) proposed a single marriage statute to reconcile the several enactments regulating marriage in South Africa. In March 2022, the Cabinet approved the White Paper on Marriages in South Africa, drafted by the Department of Home Affairs. The White Paper recognised that the legislation that regulates marriages in South Africa is not informed by an overarching policy based on constitutional values and the understanding of modern society dynamics. In this note, we argue that the Draft Marriage Bill, the publication of which was approved by the Cabinet in June 2023, is not only unconstitutional in some ways but is also, in certain respects, divergent from the White Paper preceding it and the earlier marriage reform proposals of the SALRC.

Judicial reliance on documents not established into evidence: Dispensing justice or injudicious overreach?

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

Note

Judicial reliance on documents not established into evidence: Dispensing justice or injudicious overreach?

Author: Ferdinand Heinrich Hermann Kehrhahn

ISSN: 1996-2177
Affiliations: Lecturer, Department of Procedural Law, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 3, p. 483-495
https://doi.org/10.47348/SALJ/v141/i3a4

Abstract

Documents make their way to the court file via numerous avenues. Courts sometimes rely on the contents of such documents, which are not established into evidence, to draw inferences and adjudicate disputes. The main reason for this practice is to buttress fraud committed against parties such as state organs because of their lackadaisical approach to litigation, knowing that the taxpayer foots the bill. Some courts go so far as to suggest that the court should employ an inquisitorial approach in matters involving state organs or even take a partisan approach. Noble as the court’s intentions hopefully may be, several policy decisions point to the undesirability of this practice. This note considers, first, the general rule that a document in the court file is inadmissible hearsay evidence until it is established into evidence; secondly, the reasons why a court would have regard to such non-evidence; thirdly, the policy reasons justifying the general rule; and, fourthly, the recent misplaced suggestion that documents may more readily be admitted into evidence under the common-law exception to the rule against hearsay evidence or under s 34(2) of the Civil Proceedings Evidence Act. Recommendations to remedy this objectionable practice conclude the note.

The treatment of facts in administrative-law review

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

The treatment of facts in administrative-law review

Authors: Glenn Penfold & Cora Hoexter

ISSN: 1996-2177
Affiliations: Partner, Webber Wentzel; Visiting Adjunct Professor, School of Law, University of the Witwatersrand, Johannesburg; Part-time Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 141 Issue 3, p. 496-525
https://doi.org/10.47348/SALJ/v141/i3a5

Abstract

Despite the practical importance of facts and evidence to judicial review, scant attention has been given to these themes in South African administrative law. This accords with a tendency to neglect factual questions in public-law scholarship more generally. With reference to the two main pathways to judicial review, the Promotion of Administrative Justice Act 3 of 2000 and the constitutional principle of legality, this article explores the South African courts’ treatment of facts in administrative-law review and offers suggestions as to how some factual questions might best be approached in future. First, the article considers two grounds of review that relate to facts in an explicit way and that illustrate the courts’ supervision of facts relied upon by administrators in the course of their decision-making. Secondly, courts sometimes scrutinise the expected impact of an administrative act or the administrator’s consideration of its benefits and costs, especially when the review challenge is based on the substantive grounds of rationality or reasonableness. Thirdly, in relation to remedy the article examines the relevance of facts and information when a court is deciding whether to set aside administrative action and whether an order of substitution is justified.

Realizing South Africa’s contribution to the global biodiversity framework’s area-based targets — The potential impact of new screening trends linked to strategic infrastructure projects, corridors and zones

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

Realizing South Africa’s contribution to the global biodiversity framework’s area-based targets — The potential impact of new screening trends linked to strategic infrastructure projects, corridors and zones

Author: Alexander Paterson

ISSN: 1996-2177
Affiliations: Professor, Institute of Marine and Environmental Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 3, p. 526-553
https://doi.org/10.47348/SALJ/v141/i3a6

Abstract

South Africa supported the adoption of the Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework in December 2022. Area-based conservation measures form the focus of its Target 3, which calls on countries to ensure that at least 30 per cent of their territory of high biodiversity value is effectively conserved and managed in protected areas and other effective area-based conservation measures by 2030. South Africa will need to more than triple its current land coverage within these areas in the next six years to achieve this target, and it has mapped priority focus areas for expansion to enable it to do so. The government is concurrently seeking to facilitate the roll-out of certain strategic infrastructure projects (‘SIPs’) linked to renewable energy, electricity grid and gas pipeline infrastructure within certain identified strategic infrastructure corridors and zones. Heavy reliance is placed on environmental impact assessment (‘EIA’) screening processes to subject activities linked to these SIPs undertaken in these corridors and zones to fast-track EIA approval processes or exclusions. Overlaying the maps depicting land of high biodiversity value, which is vital for achieving Target 3, with those outlining the strategic infrastructure corridors and zones, highlights potential conflict. This article critically analyses whether the new screening processes and associated tweaks to the general EIA and approval process linked to the SIPs have the potential to manage and mitigate these potential conflicts. The analysis highlights several challenges linked both to their foundation (including reliance on strategic environmental assessments and screening tools) and the array of procedural safeguards embedded within them. Cumulatively, these challenges hold the potential to undermine South Africa’s efforts to realize Target 3.