The dignity and justice of common purpose in criminal law

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

Article

The dignity and justice of common purpose in criminal law

Authors: Khomotso Moshikaro & Catherine Willis-Smith

ISSN: 1996-2177
Affiliations: Senior Lecturer in Private Law, University of Cape Town; Fellow in Criminal Law & Evidence, Edinburgh; Visiting Professor in the Common Law, Bochum; Lecturer in Private Law, Stellenbosch University
Source: South African Law Journal, Volume 141 Issue 4, p. 771-803
https://doi.org/10.47348/SALJ/v141/i4a7

Abstract

Although the doctrine of common purpose is accepted and repeatedly applied by South African courts, it has acquired a certain infamy in South Africa’s academy. Some of that infamy is due to the doctrine being abused in the apartheid era. Most of the controversy, however, is because the Constitutional Court has defended the doctrine on consequentialist grounds of crime control. This has led some scholars to assume erroneously that there cannot be a non-consequentialist normative justification for the common purpose doctrine. This article aims to correct what has become an uncritical academic orthodoxy and to provide a non-consequentialist justification for the doctrine. We argue that common purpose is a necessary doctrine if the criminal law is to take the individual agency and dignity of an offender seriously. Much of the criticism of common purpose is anchored in a thin conception of collective agency, which fails to appreciate what the criminal theorist John Gardner terms an agent’s individual teamwork reason. This means that all sorts of ill-conceived objections are thrown at common purpose. Our Constitution rightly vindicates the dignity and justice of common purpose in criminal law.

Non-variation clauses

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

Article

Non-variation clauses

Author: Jacques du Plessis

ISSN: 1996-2177
Affiliations: Distinguished Professor, Faculty of Law, Stellenbosch University
Source: South African Law Journal, Volume 141 Issue 4, p. 804-838
https://doi.org/10.47348/SALJ/v141/i4a8

Abstract

The traditional approach in South African law is to give effect to non-variation clauses, subject to limited exceptions. While recent developments in local and foreign law suggest that there is no clear justification for deviating from this approach, they also indicate that the exceptions may benefit from further refinement. First, it is too readily assumed that estoppel has no role, or an exceedingly limited role, to play in protecting the reliance of a party on the binding nature of an oral modification. It is argued that there is room for a more nuanced approach towards applying the requirements of estoppel, thereby making it a more effective tool to counteract egregious cases of contradictory behaviour. Secondly, greater clarity is required on the application of the rule that a term or its enforcement may not be against public policy. It is argued, taking the lead from Beadica 231 CC v Trustees, Oregon Trust, that certain factors may guide courts when applying the public policy rule to non-variation clauses. Ultimately, the bar that has to be crossed for not enforcing these clauses will remain high, but hopefully it can be lowered sufficiently to ensure more just outcomes.

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.