ISSN: 1996-2177
Affiliations: Senior Lecturer, Commercial Law Department, University of Cape Town
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 699 – 702
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ISSN: 1996-2177
Affiliations: Professor of International Law, University of Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 694 – 698
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ISSN: 1996-2177
Affiliations: Emeritus Professor, Law School, University of Birmingham, United Kingdom
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 689 – 693
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ISSN: 1996-2177
Affiliations: Professor of Private Law, Stellenbosch University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 664 – 688
South African law, in line with a number of prominent jurisdictions, recognises the general rule that when the legality of a contractual term is in dispute, the party who alleges illegality bears the burden of proof. Possible justifications for the general rule are explored and it is concluded that the rule is supported by established principles of the law of evidence, as well as by the pacta servanda sunt principle, which requires that freely concluded agreements should be enforced. It further is concluded that in disputes over the legality of restraint of trade clauses there appears to be no compelling reason why the law should deviate from the general rule by exceptionally placing the burden of proof on the party seeking enforcement. The mere fact that parties sometimes agree to these terms in situations of inequality does not suffice. However, those who advocate greater sensitivity for the position that contracting parties find themselves in when they supposedly exercise their contractual autonomy express a legitimate concern. A solution supported here is that South African law should address this problem directly by extending the existing categories of cases of improperly obtained consent to include cases of exploitation of certain specific situations of weakness. Such a development would reinforce, rather than subvert, the pacta servanda sunt principle.
ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 639 – 663
‘Municipal planning’ is a functional area that appears in Part B of Schedule 4 of the Constitution. Schedule 4 areas are areas of concurrent national and provincial legislative competence. Section 156(1)(a) of the Constitution provides that ‘a municipality has executive authority in respect of, and has the right to administer the local government matters listed in Part B of Schedule 4’. Local government’s right to exercise executive and administrative authority over municipal planning was recently enforced in the Supreme Court of Appeal and Constitutional Court decisions in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others. It is important to determine the distinction between legislative power over municipal planning on the one hand and executive/administrative power on the other. I argue in this article that town planning schemes, zoning schemes, and land use planning schemes are legislative in character. This is despite the fact that it has been authoritatively established that rezoning applications which result in amendments to spatial schemes are executive/administrative and hence the prerogative of local government. I refer to a line of authority which has had traction in some states in the United States in order to illustrate my arguments. Ultimately I argue that the Durban Metropolitan Open Space (D’Moss) amendments to the town planning schemes in Durban are legislative amendments. The article aims to examine these issues in order to add to the debate on the parameters of municipal powers in South Africa and their impact on the other spheres of government.
ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 616 – 638
In two recent judgments, the Constitutional Court failed to provide local authorities with guidance as to the precise nature of the relationship between police-power legislation to evict unlawful occupiers for health and safety reasons, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. I set out to provide such guidance by contextualising South Africa as a constitutional democracy with a supreme Constitution (the principle of a single system of law) that delineates a point of departure for establishing which source of law should regulate litigation about the alleged infringement of a right in the Bill of Rights (the subsidiarity principles). I then overlay the principle of a single system of law and the subsidiarity principles with characteristics of a property system that promotes s 39(2) of the Constitution. Taken together, these principles and the characteristics are used to evaluate the National Building Regulations and Building Standards Act, the Disaster Management Act, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act with a view to establishing which of them is the most appropriate source of law for evicting unlawful occupiers for health and safety reasons.