Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

Author: Tjakie Naude

ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 748-760
https://doi.org/10.47348/SALJ/v138/i4a4

Abstract

South African case law has long held that standard terms may be incorporated into a contract by mere reference, and that it is unnecessary for the user of the terms to make the text of the terms available to the other party. The so-called railway ‘ticket cases’ from the early twentieth century started this approach. More recent case law involving contracts concluded by fax has confirmed the possibility of incorporation of standard terms by mere reference, without the text of the terms having been made available. This contribution argues that times have changed with increased access to the internet, and that the user of standard terms can reasonably be expected to make their text available to the other party, for example by making them available on a website. It draws on comparative study of the UN Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts. It also shows that legislation requires standard terms to be made available anyway in the consumer context, as well as in the case of electronic contracts. Writers of books on the law of contract should discuss the relevant rules.

A decolonial legal method

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

A decolonial legal method

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 761-798
https://doi.org/10.47348/SALJ/v138/i4a5

Abstract

A survey of the burgeoning body of scholarship on decolonising education in South Africa leaves one with the impression that this is an area of scholarship that is yet to mature, particularly due to the rarity with which its scholars engage in self-conscious reflections on their methods. The article addresses this in two ways. The second part of the article theorises generally about an appropriate method of decolonising the discipline of law. The proposed method rests on four conditions: (1) standpoint (with whom is one in conversation in broader debates about decolonial education?); (2) historicity (what particular aspects of a specified branch of law were inherited from colonial Europe and with which other African countries does South Africa have this in common?); (3) evaluative/critical (what is problematic about the identified colonial inheritances for the present epoch?); (4) remedial (what changes are proposed towards the development of the branch of law concerned, and the discipline as a whole?). The third part then proceeds to illustrate how to apply this method towards decolonising evidence scholarship in Africa. Ultimately, it is argued that the political legitimacy of African criminal process remains endangered by the colonial inheritances that currently are embedded in the law of evidence.

The intersection between taxation and insolvency — The South African Revenue Service’s preference

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

The intersection between taxation and insolvency — The South African Revenue Service’s preference

Authors: Carika Fritz & Thabo Legwaila

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand; Professor of Law, University of Johannesburg
Source: South African Law Journal, Volume 138 Issue 4, p. 799-817
https://doi.org/10.47348/SALJ/v138/i4a6

Abstract

When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency Act provides for a clear order of distribution both in respect of the insolvent estates of natural persons and when an insolvent company is wound up, tax legislation in South Africa should not be used to deviate from this order of distribution.

What are the duties (if any) of retirement funds boards which are requested by employers to withhold members’ retirement benefits?

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

What are the duties (if any) of retirement funds boards which are requested by employers to withhold members’ retirement benefits?

Author: Clement Marumoagae

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg; Visiting Associate Professor, National University of Lesotho
Source: South African Law Journal, Volume 138 Issue 4, p. 818-843
https://doi.org/10.47348/SALJ/v138/i4a7

Abstract

This article evaluates an extraordinary remedy created by the legislature in s 37D(1)(b)(ii) of the Pension Funds Act 24 of 1956. This provision enables employers, who are able to satisfy retirement funds boards that they have suffered economic harm at the hands of their employees’ who are members of such retirement funds, to be compensated from liable members’ retirement benefits. It is demonstrated in this article that, by and large, the practical application of this section has been driven by the courts and the adjudicator, both of whom have interpreted this provision to include aspects that are not explicitly included in it, such as the retirement fund’s power to withhold benefits at the request of employers. It further demonstrates that there are several critical duties that are not explicitly described in any of the provisions of the Pension Funds Act which courts (and other tribunals) have held must be observed by boards when considering withholding members’ retirement benefits. In this article, these duties are critically evaluated with a view to recommending necessary amendments to s 37D(1)(b)(ii) of the Pension Funds Act.

The oath in labour arbitrations: Critiquing an arbitrator’s prerogative to swear in witnesses

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

The oath in labour arbitrations: Critiquing an arbitrator’s prerogative to swear in witnesses

Author: Dennis Matlou

ISSN: 1996-2177
Affiliations: Advocate, Limpopo Bar
Source: South African Law Journal, Volume 138 Issue 4, p. 844-880
https://doi.org/10.47348/SALJ/v138/i4a8

Abstract

Can the oath, affirmation, or admonishment really be selectively administered on some witnesses but not on others? Sworn testimony is one of the most important features of the law of evidence. It is central not only to the continental system of law but also the common-law system on which our South African law of evidence is based. Witnesses testifying in formal court proceedings are required by statute law to swear an oath or make an affirmation or be admonished as to the truth of their testimony. But why is the same requirement not obligatory in statutory labour tribunals, where presiding officers have the prerogative to decide if they require witnesses to be sworn in prior to testifying? In this article, I criticise this prerogative for being ill-conceived, and advocate for its amendment.

The legal status of human biological material used for research

The legal status of human biological material used for research

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

The legal status of human biological material used for research

Authors: Donrich W Thaldar & Bonginkosi Shozi

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Postdoctoral Scholar, University of California San Diego; Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Law Journal, Volume 138 Issue 4, p. 881-907
https://doi.org/10.47348/SALJ/v138/i4a9

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Thaldar, DW & Shozi, B
The legal status of human biological material used for research
South African Law Journal, Volume 138 Issue 4, p. 881-907
https://doi.org/10.47348/SALJ/v138/i4a9

Abstract

Whether human biological material (‘HBM’) in the research context is susceptible of ownership is contested, yet under-investigated. This situation leads to legal uncertainty for local scientists and their international collaborators. This article presents a comprehensive analysis of the topic — investigating both common law and statutory law — and concludes that HBM in the research context is indeed susceptible of ownership. First, since the common law is dynamic, it should recognise the reality that HBM has become useful in the research context and should therefore treat HBM in this context as susceptible of being owned. This aligns with the general trend in comparative foreign case law. Secondly, since relevant statutes consistently use the legal-technical term ‘donation’ to denote a situation where HBM is provided by a research participant to a research institution for the purposes of research, the transfer of ownership in the donated HBM from the research participant to the research institution is a statutory requirement. This necessarily implies that HBM in the research context is indeed susceptible of ownership and, moreover, that HBM in the research context is owned by research institutions and not research participants.