Electronic Documents, Encryption, Cloud Storage and the Privilege Against Self-Incrimination

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Electronic Documents, Encryption, Cloud Storage and the Privilege Against Self-Incrimination

Authors Constantine Theophilopoulos

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 596 – 615

Abstract

The techno-savvy cybercriminal’s easy internet access to encryption software and anonymous cloud servers, and the legal protection offered to such individuals by the privilege against self-incrimination, make it difficult for a state agency tasked with combatting cybercrime to monitor, intercept, or compel the disclosure of electronic documents containing incriminating content. The principal Act in this field, the Electronic Communications and Transactions Act 25 of 2002, is flawed in that it makes no reference to the relationship between general disclosure orders (in the form of Anton Piller orders or search and seizure warrants), the privilege against selfincrimination, and the compulsion of electronic documents stored on a computer hard drive or in the cloud. The purpose of this article is to suggest a number of substantive and procedural remedies which may assist in expunging the lacuna in the Act.

Protection for Homes During Mortgage Enforcement: Human-Rights Approaches in South African and English Law

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Protection for Homes During Mortgage Enforcement: Human-Rights Approaches in South African and English Law

Authors Reghard Brits

ISSN: 1996-2177
Affiliations: Postdoctoral Fellow at the South African Research Chair in Property Law, Stellenbosch University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 566 – 595

Abstract

This article investigates the enforcement of mortgages in South Africa and England. It specifically focuses on the influence of human-rights housing principles in so far as they may require courts to conduct a proportionality enquiry whenever a legal process leads to the loss of a home. It appears that art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms — essentially the United Kingdom’s housing clause — is conceptually similar to s 26(1) of the South African Constitution. The underlying idea is that, when a home is violated, justification must be provided as regards the proportionate relationship between the purpose of the violation and the impact of the violation on the occupier. English law already accepts that this principle applies when local authorities seek to evict unlawful occupiers, but this approach has not yet been extended to mortgage repossessions. Conversely, South African law already acknowledges that the housing clause must be applied in mortgage cases. After investigating developments in both jurisdictions, the article concludes that a proportionality test is workable in mortgage cases. Furthermore, the traditional assumption that ‘creditors must win’, although still relatively strong, is in the process of being replaced by a more contextual approach.

The Cycle of Harmonisation – From Domestic Laws to the CISG and Back?

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

The Cycle of Harmonisation – From Domestic Laws to the CISG and Back?

Authors Karl Marxen

ISSN: 1996-2177
Affiliations: Research Assistant, Centre for Banking Law, University of Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 547 – 565

Abstract

This article analyses the influence of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) on domestic, regional and supra-national legislative activity. Despite not being drafted as a ‘model law’, the CISG has assumed an interesting new role in this regard. With its balanced, fair and clearly structured provisions, the CISG must be viewed not only as a final product of legal harmonisation within an international context, but also as a catalyst for further harmonisation and modernisation. Such harmonisation and modernisation can occur at regional, supra-national, and even domestic, level. In this article, evidence which supports this view is presented in relation to the German Schuldrechtsreform, a European Union directive relating to consumer goods, and the Uniform Act on General Commercial Law drafted by the Organization for the Harmonization of Business Law in Africa. Further, benefits and risks pursuant to the new role of the CISG are investigated, and political implications and concerns relating to legal harmonisation and globalisation — especially in the context of developing countries — are set out.

Extending The Lessor’s Tacit Hypothec to Third Parties’ Property

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Extending The Lessor’s Tacit Hypothec to Third Parties’ Property

Authors AJ van der Walt, Nzumbululo Silas Siphuma

ISSN: 1996-2177
Affiliations: Distinguished Professor and South African Research Chair in Property Law, Stellenbosch University; Mellon Early Research Career Researcher, Department of Public Law, and Doctoral Candidate, South African Research Chair in Property Law, Stellenbosch University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 518 – 546

Abstract

In case law the lessor’s tacit hypothec has been extended to cover movable property belonging to a third party. This extension of the hypothec is reasonably well established, but there is some uncertainty about the reasons or justifications for it. Two seemingly contradictory explanations for the extension have been raised in the literature, namely implied consent and estoppel. Upon closer scrutiny the former reason appears in fact to refer to (judicially) imputed rather than implied consent. Provided that the consent is judicially attributed to the third-party owner of the movables on the ground that she should have been aware of the whereabouts of her property and should have taken the necessary and reasonable steps to protect it against the landlord’s hypothec (for example by informing the landlord of her right in the property), this seems to be an acceptable explanation for the extension of the hypothec. The same can be said for estoppel in cases where the requirements for estoppel are actually proved, particularly if fault (negligence) is required and if it is proven that the owner of the movables could have disabused the landlord of the false impression that the movables belonged to the tenant, but failed to do so. From a policy perspective, it can therefore be said that the extension of the hypothec to movables that belong to a third party is justified, provided that the reasons for the extension (either imputed consent or estoppel) are understood correctly, and the accompanying requirements are applied correctly and strictly. From a constitutional property perspective, the deprivation of property that extension of the hypothec brings about when a third party’s property is affected by the landlord’s right to attach and sell the movables would be constitutionally unassailable (not arbitrary in terms of s 25(1) of the Constitution) if there is sufficient reason for the deprivation. Provided the requirements are applied correctly and strictly, in line with the policy explanations (imputed consent or estoppel) that explain the extension satisfactorily, the deprivation of a third party’s property that results from extension of the hypothec should generally speaking not be arbitrary, and thus should be constitutionally uncontroversial. This conclusion contradicts views to the contrary that have been expressed in the academic literature.

Notes: The Impact of the Constitution on the Common Law of Contract: Botha v Rich NO (CC)

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Notes: The Impact of the Constitution on the Common Law of Contract: Botha v Rich NO (CC)

Authors Deeksha Bhana, Anmari Meerkotter

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand; Research and Teaching Associate, University of the Witwatersrand
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 494 – 509

Abstract

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