Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd

Author: Anthea-lee September-Van Huffel

ISSN: 1996-2177
Affiliations: Lecturer, University of the Free State
Source: South African Law Journal, Volume 139 Issue 2, p. 286-299
https://doi.org/10.47348/SALJ/v139/i2a3

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. 

‘I beg to differ’: Are our courts too agreeable?

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

‘I beg to differ’: Are our courts too agreeable?

Author: Owen Rogers

ISSN: 1996-2177
Affiliations: Judge of the High Court of South Africa, Western Cape Division; Judge of the Competition Appeal Court of South Africa
Source: South African Law Journal, Volume 139 Issue 2, p. 300-339
https://doi.org/10.47348/SALJ/v139/i2a4

Abstract

If dissenting judgments perform a valuable function in the administration of justice,  too little dissent may indicate that the administration of justice is not reaping the  benefits of dissent. South Africa belongs to the common-law tradition, which has  always allowed dissenting judgments. The civil-law system traditionally did not,  and this is still the position in many countries. In the modern era, considerations of  transparency and accountability favour the disclosure and publication of dissenting  judgments. Although they can play a role in the development of the law, their most  valuable function is to improve the quality of judicial output by requiring majority  judgments to confront the dissenting judgments’ reasoning. Factors which may affect  the extent of dissent in appellate courts include case complexity and control over  rolls; panel sizes; judicial diversity, personality and turnover; court leadership;  research resources; modes of judicial interaction; and protocols on the timeliness of  judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court  of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia,  Canada and the United States, suggest that there is less dissent in our intermediate  appellate courts than might be expected. Changes in work procedures could yield a  healthier pattern. 

The rights of municipalities under section 118 of the Local Government: Municipal Systems Act in the case of land expropriation

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

The rights of municipalities under section 118 of the Local Government: Municipal Systems Act in the case of land expropriation

Author: Chantelle Gladwin-Wood & Reghard Brits

ISSN: 1996-2177
Affiliations: Partner, Schindlers Attorneys; LLD candidate, Department of Mercantile Law, University of Pretoria; Associate Professor, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 139 Issue 2, p. 340-364
https://doi.org/10.47348/SALJ/v139/i2a5

Abstract

This article analyses the impact of s 118 of the Local Government: Municipal Systems  Act 32 of 2000 on the rights of a municipality when land in its jurisdiction is expropriated.  First, the municipality’s right under s 118(1) to embargo the transfer of a  property, until it has been paid all amounts owing for the two years prior to transfer,  might be undermined by a literal interpretation of the provisions of the Expropriation  Act 63 of 1975 in so far as the Act provides that the expropriating authority ‘may’  (not must) pay the amounts due to the municipality concerned. We argue that a  broader and more purposeful interpretation of not only the Expropriation Act but also  the Expropriation Bill B23-2020 ought to be adopted, in order to assist municipalities  in collecting debts owed to them. Secondly, we argue that a municipality’s security  right under s 118(3) constitutes an unregistered right in land and, although the right is  not protected under the current Expropriation Act, it will be protected if the provisions  of the Expropriation Bill come into force, with the result that even if nil compensation  is payable to the expropriated owner, the expropriating authority ought to compensate  the municipality. 

Clearing the CRISPR patent landscape: Towards a solution for South Africa

Clearing the CRISPR patent landscape: Towards a solution for South Africa

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Clearing the CRISPR patent landscape: Towards a solution for South Africa

Authors: Meshandren Naidoo & Donrich W Thaldar

ISSN: 1996-2177
Affiliations: Doctoral Fellow, University of KwaZulu-Natal; Associate Professor, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 2, p. 365-406
https://doi.org/10.47348/SALJ/v139/i2a6

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Naidoo, M & Thaldar, DW
Clearing the CRISPR patent landscape: Towards a solution for South Africa
South African Law Journal, Volume 139 Issue 2, p. 365-406
https://doi.org/10.47348/SALJ/v139/i2a6

Abstract

Patenting activity regarding new CRISPR (Clustered Regularly Interspaced Short  Palindromic Repeats) genome editing technology has mushroomed to create a vast  and complex patent landscape. However, because of South Africa’s current depository  patent system, the South African CRISPR patent landscape contains foundational  patents with overlapping claims, as highlighted by the ongoing litigation in the United  States between the Broad Institute and the University of California. Both these  parties were granted four patents in South Africa. Also, the South African landscape  may contain multiple low-quality patents that have the potential to obstruct scientific  research in South Africa. The solution in the South African context is threefold, but  requires that the Intellectual Property Policy of South Africa: Phase I must first be  operationalised to: (a) prioritise CRISPR patent applications for formal examination  and substantive search and examination; (b) provide sufficient resources for extracurial  patent opposition proceedings regarding all CRISPR patent applications and  granted patents; and (c) create certainty by developing an obviousness standard with  well-defined parameters. Although CRISPR is not yet advanced enough to fall  within the class of life-saving technologies in the short-term, CRISPR may become  critical in the treatment and eradication of priority diseases such as HIV/AIDS and  tuberculosis. Accordingly, prioritising CRISPR-related patent applications serves the  public interest in access to healthcare. By using (a), (b) and (c) in tandem, a triple  layer of mechanisms will counter the problems of overlapping claims and of lowquality  patents, and hence remove these potential obstructions to CRISPR research  in South Africa. 

Civil prospectus liability under the laws of Germany and South Africa

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Civil prospectus liability under the laws of Germany and South Africa

Author: Damian Schmidt

ISSN: 1996-2177
Affiliations: Attorney, Oppenländer Rechtsanwälte, Stuttgart, Germany
Source: South African Law Journal, Volume 139 Issue 2, p. 407-431
https://doi.org/10.47348/SALJ/v139/i2a7

Abstract

Civil prospectus liability is the liability for a prospectus which is published in the  context of issued securities on the primary market. Both the German and South  African legal systems protect investors who are induced into investing by incorrect  prospectuses. Chapter 4 of the Companies Act 71 of 2008 contains rules, in  s 104 and s 105, which set out the prospectus liability of directors, experts, and  others. German law provides comparable provisions. The differences between the two  systems become apparent in the detail. South Africa’s statutory prospectus liability  clearly sets out the liability of experts and focuses mainly on the personal liability of  directors. The German law has traditionally referred to unwritten legal principles  in respect of experts. What both legal systems have in common is that the mutual  interests of potential plaintiffs and defendants are not exclusively regulated by statute  law, and that both pursue a balanced form of investor protection. This article aims  to contribute to the future harmonisation of both legal systems in order to facilitate  cross-border investments. 

Compartmentalised data protection in South Africa: The right to privacy in the Protection of Personal Information Act

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Compartmentalised data protection in South Africa: The right to privacy in the Protection of Personal Information Act

Author: Gilad Katzav

ISSN: 1996-2177
Affiliations: BCom LLB LLM (Wits)
Source: South African Law Journal, Volume 139 Issue 2, p. 432-470
https://doi.org/10.47348/SALJ/v139/i2a8

Abstract

In European Union (‘EU’) law, the entrenched right to data protection is an  independent fundamental right. EU case law has gradually disconnected the right  to data protection from the right to a private life. South Africa’s first exclusive  data protection legislation, the Protection of Personal Information Act 4 of 2013  (‘POPIA’), is redolent of EU data protection legislation. However, the stated purpose  of the POPIA is to give effect to the right to privacy. This article examines whether  the laws of data protection can be wholly encapsulated within s 14 of the Constitution.  To this end, this article considers two main conceptions of privacy in our law.  The first is Neethling’s informational privacy and the reasonable expectation of privacy.  The second is Rautenbach’s theory of informational control over personal matters in  relation to other rights. On either approach, I argue that the substantive provisions  of the POPIA are irreducible to privacy protection alone. Ultimately, framing  the POPIA exclusively within the domain of privacy will either (i) unduly restrict  legislative interpretation; or (ii) the true meaning of privacy will be diluted, leading to  legal uncertainty. To avoid this, I suggest distinguishing between the value of privacy  in the POPIA and the actual loss of privacy.