The legal nature of performance reconsidered

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

The legal nature of performance reconsidered

Author Ferdinand Botha

ISSN: 1996-2177
Affiliations: Researcher, Max Planck Institute for Comparative and International Private Law
Source: South African Law Journal, Volume 137 Issue 2, p. 246-268

Abstract

South African law regards the performance of a legal obligation as a bilateral act which requires the co-operation and agreement of the debtor and the creditor. In addition to the actual act of performance, the debtor must therefore also enter into a so-called debt extinguishing agreement with the creditor before the debtor will be released from the obligation. It is argued that this approach is outdated from a comparative perspective and that it tends to hinder, rather than assist, the courts in resolving disputes. The suggestion is made that South Africa should adopt the so-called real performance theory from German law instead. This theory asks only whether a particular act of performance can be assigned to a certain obligation and does not require a debt extinguishing agreement for a debtor to be released from the obligation.

A legal fallacy? Testing the ordinariness of ‘ordinary meaning’

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

A legal fallacy? Testing the ordinariness of ‘ordinary meaning’

Author Terrence R Carney

ISSN: 1996-2177
Affiliations: Senior Lecturer in Afrikaans Linguistics, University of South Africa
Source: South African Law Journal, Volume 137 Issue 2, p. 269-304

Abstract

The canon that dictates that words be interpreted according to their ordinary meaning has been widely debated. Many studies have either highlighted the shortcomings of the ordinary meaning principle or have tried to debunk its existence altogether. Despite efforts to introduce a new approach to the interpretation of statutes in South Africa (through Endumeni), the application of the ordinary-meaning rule persists and remains a contested issue. Weighing in on the debate by scholars such as Cowen and Labuschagne, this contribution tests if the phenomenon of ordinary meaning actually exists. Rooted in the argument that ordinary meaning is representative of a so-called reasonable speaker’s understanding, data was collected through a survey approach. The survey tested ten words taken from South African case law that were interpreted according to the ordinary meaning principle. The results were then compared with the meanings assigned by the respective courts and those appearing in the iWeb corpus. Interpreted against the demographic information of 151 participants, the preliminary results indicate correspondence between the courts’ understanding of the selected words and that of the respondents. Therefore, the findings cautiously confirm the existence of the ordinary meaning principle as a phenomenon within a specific spectrum of society.

The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo American case law

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo American case law

Author Constantine Theophilopoulos

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 137 Issue 2, p. 305-334

Abstract

The right to silence is difficult to analyse in theory and practice as it has different applications at different stages of a criminal prosecution. The accused’s right to silence is also a manifestly modern right which has often been confused with its traditional English common-law ancestor, the witness privilege against self-incrimination. In order to explain the right to silence, this article begins by briefly setting out its libertarian jurisprudential foundations as a Hohfeldian immunity against compulsion and self-incrimination. The analysis is sourced from American and Canadian case law, as there is no South African case law on point. Thereafter, the evidentiary value of a right to silence is explained in utilitarian terms by critically examining the adverse inferences which may be drawn from silence as an item of circumstantial evidence at the pre-trial and trial stages of criminal proceedings. The evidentiary probative value of silence is analysed in its traditional common-law context as a bare rule of evidence, as well as in its modern constitutional context as an entrenched constitutional right. This critical evaluation is based on a rich vein of English, South African and other common-law and constitutional case precedent. Finally, this article suggests a possible five-legged model which may provide a consistent and coherent formula for determining the probative value of an accused’s invocation of silence in all factual circumstances.

‘Why can’t I discipline my child properly?’ Banning corporal punishment and its consequences

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

Why can’t I discipline my child Properly?’ banning corporal punishment and its consequences

Author Brigitte Clark

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of KwaZulu-Natal; Honorary Research Associate, Oxford Brookes University
Source: South African Law Journal, Volume 137 Issue 2, p. 335-359

Abstract

Corporal punishment in the home is powerfully entrenched as a disciplinary tool in South African society. There is evidence indicating that for many children, particularly those who grow up in poorer urban homes in South Africa, corporal punishment is an everyday experience. This article aims to examine corporal punishment in the home in the light of comparative and international law, the wealth of research, and the Constitutional Court jurisprudence on this topic. The definition and concept of corporal punishment in the home is discussed, as well as the current legal position of parents in South Africa who administer such punishment to their children. The arguments in favour of, and against, corporal punishment are canvassed. It is argued that, when the legislature and/or the executive deals with the removal of the ban, the public should be educated about the harmful effects of such punishment, including reference to the research linking such a practice with a cycle of violence, and even with gender-based violence. South African legislative and executive bodies need to incorporate other means of educating parents as to alternate methods of discipline, and legislating for different methods of control of parents who breach such a ban.

Rereading Botha v Rich

by | Mar 12, 2020 | SALJ, SALJ V137 I1 2020

Rereading Botha v Rich

Author L Boonzaier

ISSN: 1996-2177
Affiliations: DPhil candidate, Faculty of Law, University of Oxford
Source: South African Law Journal, Volume 137 Issue 1, p. 1-12

Abstract

In this note I reconsider the Constitutional Court’s judgment in Botha v Rich NO 2014 (4) SA 124 (CC), which has attracted much criticism for its apparent willingness to subject all exercises of contractual rights to an overarching test of ‘fairness’. I argue for a narrower reading which emphasises the case’s statutory setting. I conclude by considering the implications of this narrower reading for the pending appeal decision of the Constitutional Court in Beadica 321 CC & others v The Trustees for the time being of the Oregon Trust & another 2019 (4) SA 517 (SCA).

Informed consent in medical malpractice suits: An analysis of Beukes v Smith

by | Mar 12, 2020 | SALJ, SALJ V137 I1 2020

Informed consent in medical malpractice suits: An analysis of Beukes v Smith

Author B Townsend & D Thaldar

ISSN: 1996-2177
Affiliations: Postdoctoral Research Fellow, School of Law, University of KwaZulu-Natal; Associate Professor, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 1, p. 13-25
https://doi.org/10.47348/SALJ/v137/i1a2

Abstract

In this case note we make two salient observations regarding the recent Supreme Court of Appeal judgment in Beukes v Smith. First, the judgment shows that when assessing alleged wrong fulness, the court is concerned with whether the health-care user did in fact provide informed consent, and not with formalities such as making notes of consultations. Secondly, the SCA assumed that the health-care user was using pain medication, and further assumed that she was not attentive during the consultation; hence her version of events was rejected. This line of assumption-based reasoning introduces a new anti-patient prejudice in our law, which is clearly unconstitutional, and should be rectified by the SCA at the earliest opportunity.