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.

Problems relating to the formation of online contracts: A South African perspective

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Problems relating to the formation of online contracts: A South African perspective

Author: Sanmarie van Deventer

ISSN: 1996-2177
Affiliations: BCom LLB LLM LLD (Stellenbosch)
Source: South African Law Journal, Volume 138 Issue 2, p. 221-259
https://doi.org/10.47348/SALJ/v138/i2a1

Abstract

This article analyses the formation of online contracts, or standard-form contracts appearing in electronic form, in the South African context. The unique characteristics of online contracts — such as their length and ubiquity — render it more difficult to establish assent to these contracts than in the case of traditional standard-form contracts. In general, it is simply not reasonable to expect of consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Furthermore, evidence shows that consumers do not perceive online contracts in the same manner as their paper-based equivalent. The article investigates whether contractual liability to online contracts can be established in terms of the reliance theory, and considers how and when notice of contractual terms should be given. It further argues that the unexpected terms doctrine potentially provides important protection to online consumers’ reasonable expectations, and may encourage suppliers to identify surprising terms and bring them to the attention of consumers. This approach requires of courts to recognise that it may be quite reasonable for consumers to decide not to read online contracts, and that consumers’ mistakes about surprising terms in online contracts must almost always be reasonable.