Beadica 231 CC: An end to the trilogy?

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Beadica 231 CC: An end to the trilogy?

Author Simon Thompson

ISSN: 1996-2177
Affiliations: Teaching Assistant, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 4, p. 641-658

Abstract

In this note, I consider the path of the Beadica case through the South African court  system. After traversing the relevant law and facts, I focus on the Constitutional  Court’s judgment in Beadica 231 CC v Trustees for the time being of the  Oregon Trust 2020 (5) SA 247 (CC). I conclude that the majority judgment  deserves praise for its pronouncements on several pertinent issues in the law of contract,  namely: the ambit of the Constitutional Court’s judgment in Botha v Rich NO  2014 (4) SA 124 (CC), the importance of the doctrine of precedent, the role of  concepts such as good faith, reasonableness, fairness and ubuntu in the public policy  enquiry, the perceived divergence in approach between the SCA and CC on this  issue, and the court’s application of the law to the facts. 

The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases

Authors Raisa Cachalia & Lauren Kohn

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, University of Johannesburg; Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 4, p. 659-697

Abstract

Flowing from the constitutional imprimatur in s 172(1) to further ‘justice and equity’  (‘J&E’), the courts have made important strides in developing a framework for remedying  irregular public procurement. They have not, however, done so clearly and coherently;  nor in a way that encourages predictability in remedial outcomes. In response, we have  sought to leverage an argument for ‘reasonable certainty’ as a rule-of-law justification  for refining the framework in a comprehensive and helpful way that does not pit  form against ‘individualised justice’. We have done so against the backdrop of two  hypothetical tender scenarios — a review by a private contractor and a state self-review  — based upon a pattern emerging from the jurisprudence. Through our analysis, we  illustrate that ultimately the J&E enquiry is a kind of proportionality assessment that  has, at its heart, an appreciation of the overall ‘impact’ of setting a tender aside, from  both a practical and principled perspective. We posit a two-step approach to addressing  this overarching ‘impact question’: a big-picture assessment of the various interests to  be weighed in the balance, followed by the particularised balancing of these affected  interests with reference to several open-list factors. Ultimately, we seek to provide a  principled and pragmatic guide for the exercise of the courts’ remedial discretion and so  draw the analysis together by applying this framework to the scenarios sketched. 

Procedural fairness, executive decision-making and the rule of law

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Procedural fairness, executive decision-making and the rule of law

Author Clive Plasket

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal; Honorary Visiting Professor, Rhodes University
Source: South African Law Journal, Volume 137 Issue 4, p. 698-712

Abstract

The connection between procedural fairness and the rule of law was assumed to be  trite until the majority judgment in Masetlha v President of the Republic of  South Africa & another 2008 (1) SA 566 (CC). It held that procedural fairness  was not part of the rule of law, being a doctrine that only applied in administrative  decision-making, and that it was inappropriate to ‘constrain executive power to  requirements of procedural fairness’. In Albutt v Centre for the Study of Violence  and Reconciliation & others 2010 (3) SA 293 (CC) an attempt was made to  undo some of the damage that had been caused by Masetlha (short of overruling it)  by holding that in some cases, in order to take a rational decision, the decision-maker  was required to hear affected parties. In terms of Albutt, however, the right to a  hearing was the exception, rather than the default position. This article argues that  the majority decision in Masetlha is wrong and should be overruled, and that the  Albutt exception is very much a second-best alternative to a proper right to procedural  fairness — to a recognition that procedural fairness is part of the rule of law and  that executive decision-makers, as is the case with everyone else who has to decide  anything, are required to act fairly. 

The right of ‘interested parties’ to be heard during an anti-dumping investigation conducted by the National Treasury on behalf of the Minister of Finance

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

The right of ‘interested parties’ to be heard during an anti-dumping investigation conducted by the National Treasury on behalf of the Minister of Finance

Author Clive Vinti

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, University of the Free State
Source: South African Law Journal, Volume 137 Issue 4, p. 713-732

Abstract

The purpose of this article is to advocate for the right of ‘interested parties’ to be  heard during the National Treasury anti-dumping investigation conducted on behalf  of the Minister of Finance when the Minister of Trade, Industry and Competition  makes a ‘request’ to impose or vary an anti-dumping duty in terms of ss 55 and 56  of the Customs and Excise Act 91 of 1964. This inquiry was prompted by recent  jurisprudence from the High Court of South Africa which asserted that the Minister  of Finance has a discretion when the Minister of Trade, Industry and Competition  requests that an anti-dumping duty must be imposed or varied on a particular product.  In this regard, the National Treasury of South Africa investigates the desirability  of the imposition or variation of an anti-dumping duty on behalf of the Minister of  Finance. However, interested parties are never heard by the Minister of Finance or the  National Treasury. This poses the question whether interested parties must be heard  during the National Treasury’s investigation on whether anti-dumping duties must  be imposed or varied. 

Opposing cynical evictions: A framework of appropriate remedies

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Opposing cynical evictions: A framework of appropriate remedies

Author Jeremy Phillips

ISSN: 1996-2177
Affiliations: LLM Student, University of Fort Hare
Source: South African Law Journal, Volume 137 Issue 4, p. 733-762

Abstract

The South African political landscape has been darkly coloured by inhumane  evictions, exacted to design the social and geographic landscape of the country along  discriminatory lines. A notorious brand of eviction, often resorted to by the apartheid  state, is the ‘cynical eviction’ — an unlawful eviction where the evictee’s home is  demolished and destroyed. Shamefully, cynical evictions have persisted post-1994.  The cynicality of such an eviction lies in the fact that, by destroying the materials of the  home, the defence of impossibility precludes the evictee relying on the mandament van  spolie. While there is consensus that evictees are entitled to relief, there is disagreement  on which remedy should deliver that relief. Developing the mandament van spolie  to bypass the defence of impossibility has been touted as the ideal remedy, whereas  the court in Tswelopele, and subsequent academic commentators, have preferred an  extraordinary remedy based directly on s 26(3) of the Constitution. This article argues  that the debate is a false dichotomy. There are subtle, but critical, differences which  distinguish both remedies. Furthermore, the possessory action should be revived as a  third alternative remedy. With three available remedies, all offering different forms of  relief, evictees have a comprehensive arsenal with which to combat cynical evictions. 

Geographical indications: The cuckoo in the IP nest

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Geographical indications: The cuckoo in the IP nest

Author Sadulla Karjiker

ISSN: 1996-2177
Affiliations: Anton Mostert Chair of Intellectual Property Law, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 4, p. 763-791

Abstract

This article critically considers the recognition of Geographical Indications (‘GIs’)  as a form of intellectual property (‘IP’), and submits that it is unsuited to protection  as a distinct form of IP. It is submitted that GI protection does not accord with  established principles of IP law (most notably trade-mark law and the common law  of delict), and that its recognition has, in fact, been principally motivated by selfserving  protectionism on the part of the EU. There are no sound reasons to justify  GI protection as a distinct form of intellectual property, and its recognition says  more about the politics of IP law, rather than the merits of this form of protection.  That which is proffered as justifications for its recognition tends to be rhetoric and  unsubstantiated claims, and relies on a revisionist history of the part played by Europe  in the course of the past 400 years. This article seeks to expose the true basis on which  developing countries, former colonies of European nations, are being forced to concede  to demands to provide greater protection for European GIs, which demands harm the  ability of their producers to compete with European producers.