Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

Author: Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: Professor of Jurisprudence, Department of Private Law, University of Cape Town, BCom LLB LLD (Pretoria) MA (Cape Town).
Source: South African Law Journal, Volume 138 Issue 3, p. 569-598
https://doi.org/10.47348/SALJ/v138/i3a6

Abstract

This article enquires into commitments of substance and form in contract law after apartheid. The argument begins with an overview of the substance and form argument as presented by Duncan Kennedy in 1976 and applied to the South African law of contract by Alfred Cockrell in 1992. Kennedy and Cockrell’s argument that commitments of form follow commitments of substance in private-law adjudication generally, and in contract-law adjudication specifically, is mapped onto Karl Klare’s 1998 argument that transformative constitutionalism necessitates a commitment to the ‘postliberal’ in both formal and substantive terms. The argument then proceeds to a reading of the majority judgment in the Constitutional Court in Beadica 231 CC & others v Trustees for the time being of the Oregon Trust & others. The discussion illustrates how form still follows substance in the South African law of contract in a constitutional era, and how the privileged policy position remains that of rule-based formal commitments and individualist substantive commitments. The article concludes with the assertion that the dominance of the individualism/rules position is inconsistent with transformative constitutionalism’s commitment to a postliberal legal order.

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

Author: Pieter Badenhorst

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Honorary Professor of Law, Nelson Mandela University
Source: South African Law Journal, Volume 138 Issue 3, p. 599-616
https://doi.org/10.47348/SALJ/v138/i3a7

Abstract

This article examines the nature and features of ‘unused old order rights’ (‘UOORs’) under item 8 of Schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 in light of the recent decision by the Constitutional Court in Magnificent Mile Trading 30 (Pty) Ltd v Celliers 2020 (4) SA 375 (CC). At issue was: (a) whether an UOOR was transmissible to heirs upon the death of its holder; and (b) the applicability of the Oudekraal principle to the award of an unlawful prospecting right to an applicant, contrary to the rights enjoyed by the holder of an UOOR. The article analyses the constituent elements of an UOOR, rights ancillary to the UOOR’s and the nature and features of UOORs and ancillary rights. The article also considers the possible loss of an UOOR by application of the Oudekraal principle due to the unlawful grant of a prospecting right by the state, as custodian of mineral resources. The article illustrates that the CC ensured in Magnificent Mile that the Oudekraal principle does not undermine the security of tenure and statutory priority afforded to holders of UOORs by ultra vires grants of inconsistent rights to opportunistic applicants. Concern is also expressed about the poor administration of mineral resources by the Department of Mineral Resources and Energy.

A critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

A critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

Author: Melissa Strydom

ISSN: 1996-2177
Affiliations: LLB (UJ) LLM (Wits), PhD candidate, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 3, p. 617-648
https://doi.org/10.47348/SALJ/v138/i3a8

Abstract

There has been much debate about ‘after the fact’ environmental authorisations and the ability to privately prosecute environmental-law offences in South Africa. These two issues came to a head in Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd. This case is the first known private prosecution of environmental-law contraventions in South Africa. BP Southern Africa (Pty) Ltd (‘BPSA’) was privately prosecuted for constructing filling stations without environmental authorisations, allegedly between 1998 and 2005. BPSA submitted ‘rectification’ applications in 2005, paid administrative fines, and was issued with ‘after the fact’ environmental authorisations. Nevertheless, in 2019 BPSA was convicted for contravening the related environmental-law requirement. This article discusses the applicable legislative context, the complex and frequently changing environmental laws, and their interpretation and application in a criminal context. Criticisms of the Uzani judgment include that the court did not sufficiently deliberate or determine the applicable law at the time of the offences for which BPSA was indicted; the public or environmental interest served by the private prosecution; strict liability in relation to the offence; policy and other considerations for not prosecuting these offences; constitutionality and admissibility of the evidence; and the potentially far-reaching consequences of such prosecutions. These issues all act as reminders of the importance of clear and precise legislative drafting, and contextual interpretation.

On equating ‘mays’ with ‘musts’: When can a discretionary power be interpreted as a mandatory one?

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

On equating ‘mays’ with ‘musts’: When can a discretionary power be interpreted as a mandatory one?

Author: Lisa Draga

ISSN: 1996-2177
Affiliations: Lecturer, School of Law, University of the Western Cape, LLB (Western Cape) LLM (University of Missouri, Columbia)
Source: South African Law Journal, Volume 138 Issue 3, p. 649-681
https://doi.org/10.47348/SALJ/v138/i3a9

Abstract

In this article I investigate when the otherwise permissive term ‘may’ in an empowering provision can be interpreted as imposing a duty on the recipient of that power to act. In the first part, I examine our courts’ pre-democratic approach to answering this question through an analysis of pre-democratic judgments. In particular, I scrutinise certain factors that the courts have traditionally relied on in this regard. Thereafter, I consider the present-day rules of statutory interpretation and its application to the may/must question. Next, I analyse the Constitutional Court’s approach to determining when the use of ‘may’ to confer a power through statute can be interpreted as requiring the power be exercised. I undertake an analysis of a dissection of relevant Constitutional Court judgments. These judgments are dissected for purposes of illustrating the continued relevance of the traditional factors that were employed before democracy. Finally, I focus on the may/must question in the typical public-law context of this interpretative exercise. I examine potential grounds of review where the holder of the power has failed or refused to execute a duty attached to permissive language. I also consider separation-of-powers concerns that may likely arise.