Judicial reliance on documents not established into evidence: Dispensing justice or injudicious overreach?

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

Note

Judicial reliance on documents not established into evidence: Dispensing justice or injudicious overreach?

Author: Ferdinand Heinrich Hermann Kehrhahn

ISSN: 1996-2177
Affiliations: Lecturer, Department of Procedural Law, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 3, p. 483-495
https://doi.org/10.47348/SALJ/v141/i3a4

Abstract

Documents make their way to the court file via numerous avenues. Courts sometimes rely on the contents of such documents, which are not established into evidence, to draw inferences and adjudicate disputes. The main reason for this practice is to buttress fraud committed against parties such as state organs because of their lackadaisical approach to litigation, knowing that the taxpayer foots the bill. Some courts go so far as to suggest that the court should employ an inquisitorial approach in matters involving state organs or even take a partisan approach. Noble as the court’s intentions hopefully may be, several policy decisions point to the undesirability of this practice. This note considers, first, the general rule that a document in the court file is inadmissible hearsay evidence until it is established into evidence; secondly, the reasons why a court would have regard to such non-evidence; thirdly, the policy reasons justifying the general rule; and, fourthly, the recent misplaced suggestion that documents may more readily be admitted into evidence under the common-law exception to the rule against hearsay evidence or under s 34(2) of the Civil Proceedings Evidence Act. Recommendations to remedy this objectionable practice conclude the note.

The treatment of facts in administrative-law review

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

The treatment of facts in administrative-law review

Authors: Glenn Penfold & Cora Hoexter

ISSN: 1996-2177
Affiliations: Partner, Webber Wentzel; Visiting Adjunct Professor, School of Law, University of the Witwatersrand, Johannesburg; Part-time Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 141 Issue 3, p. 496-525
https://doi.org/10.47348/SALJ/v141/i3a5

Abstract

Despite the practical importance of facts and evidence to judicial review, scant attention has been given to these themes in South African administrative law. This accords with a tendency to neglect factual questions in public-law scholarship more generally. With reference to the two main pathways to judicial review, the Promotion of Administrative Justice Act 3 of 2000 and the constitutional principle of legality, this article explores the South African courts’ treatment of facts in administrative-law review and offers suggestions as to how some factual questions might best be approached in future. First, the article considers two grounds of review that relate to facts in an explicit way and that illustrate the courts’ supervision of facts relied upon by administrators in the course of their decision-making. Secondly, courts sometimes scrutinise the expected impact of an administrative act or the administrator’s consideration of its benefits and costs, especially when the review challenge is based on the substantive grounds of rationality or reasonableness. Thirdly, in relation to remedy the article examines the relevance of facts and information when a court is deciding whether to set aside administrative action and whether an order of substitution is justified.

Realizing South Africa’s contribution to the global biodiversity framework’s area-based targets — The potential impact of new screening trends linked to strategic infrastructure projects, corridors and zones

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

Realizing South Africa’s contribution to the global biodiversity framework’s area-based targets — The potential impact of new screening trends linked to strategic infrastructure projects, corridors and zones

Author: Alexander Paterson

ISSN: 1996-2177
Affiliations: Professor, Institute of Marine and Environmental Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 3, p. 526-553
https://doi.org/10.47348/SALJ/v141/i3a6

Abstract

South Africa supported the adoption of the Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework in December 2022. Area-based conservation measures form the focus of its Target 3, which calls on countries to ensure that at least 30 per cent of their territory of high biodiversity value is effectively conserved and managed in protected areas and other effective area-based conservation measures by 2030. South Africa will need to more than triple its current land coverage within these areas in the next six years to achieve this target, and it has mapped priority focus areas for expansion to enable it to do so. The government is concurrently seeking to facilitate the roll-out of certain strategic infrastructure projects (‘SIPs’) linked to renewable energy, electricity grid and gas pipeline infrastructure within certain identified strategic infrastructure corridors and zones. Heavy reliance is placed on environmental impact assessment (‘EIA’) screening processes to subject activities linked to these SIPs undertaken in these corridors and zones to fast-track EIA approval processes or exclusions. Overlaying the maps depicting land of high biodiversity value, which is vital for achieving Target 3, with those outlining the strategic infrastructure corridors and zones, highlights potential conflict. This article critically analyses whether the new screening processes and associated tweaks to the general EIA and approval process linked to the SIPs have the potential to manage and mitigate these potential conflicts. The analysis highlights several challenges linked both to their foundation (including reliance on strategic environmental assessments and screening tools) and the array of procedural safeguards embedded within them. Cumulatively, these challenges hold the potential to undermine South Africa’s efforts to realize Target 3.

A critical appraisal of the parole system and its compliance with section 165 of the Constitution

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

A critical appraisal of the parole system and its compliance with section 165 of the Constitution

Author: Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Associate, UFS Centre for Human Rights, University of the Free State
Source: South African Law Journal, Volume 141 Issue 3, p. 554-588
https://doi.org/10.47348/SALJ/v141/i3a7

Abstract

In terms of state organisation under the Constitution of the Republic of South Africa, 1996, the administration of justice, which encompasses the powers of the judiciary and the prosecuting authority, is clearly demarcated from the executive. Section 165(5) of the Constitution explicitly states that an order or decision of a court ‘binds all persons to whom and organs of state to which it applies’. Sentencing is a judicial power, and the discretion to grant parole is also a judicial power. The legislature attempted to reform the 1959 parole system, which conferred parole powers upon executive state organs, with the Correctional Services Act 111 of 1998 but failed to align the granting of parole with the constitutional norms of ss 165 and 35(2) of the Constitution. Instead, the legislature conferred these powers upon executive state organs in contravention of s 165(4). In practice, the executive is therefore usurping judicial power, although s 165(3) proscribes any organ of state from interfering with the functioning of the courts. The granting of parole cannot be transformed into some kind of ‘administrative action’ of the executive taken under s 85(2) of the Constitution. The rights of detained sentenced offenders are protected by s 35(2) of the Constitution, which offers relief for unlawful detention. Section 33 upholds just administrative action and does not apply to criminal justice.

Propping up the crumbling city: Sectional title law, residential building governance and local government

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

Propping up the crumbling city: Sectional title law, residential building governance and local government

Author: Marius Pieterse

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 141 Issue 3, p. 589-621
https://doi.org/10.47348/SALJ/v141/i3a8

Abstract

This article considers the interface between urban local government and sectional title, focusing specifically on the governance of residential apartment blocks in urban areas. It argues that the governance of sectional title schemes is currently wrongly depicted in South African law as being predominantly ‘private’ and contractual in nature. Based on a historical overview and qualitative case study of apartment building governance in centrally located suburbs in the city of Johannesburg, the article argues that building governance ought to be reconceptualised as being located primarily within a public-law paradigm, more specifically as forming part of the ‘special cluster of relationships’ that govern service delivery in South African cities and that give rise to public-law rights and responsibilities, ultimately sourced in the Constitution, for all the relevant parties. This would imply that the relationship between cities and sectional title schemes ought to be viewed as one between local government and rights-bearing stakeholders (rather than customers or residential subjects). Moreover, it would require that sectional title schemes’ governing agents be both adequately empowered and adequately held accountable, under administrative and constitutional law, for exercising their governance functions.