Display of Goods for Sale, Advertisements and the Consumer Protection Act

by | Oct 22, 2019 | SALJ, SALJ V132 I1 2015

Display of Goods for Sale, Advertisements and the Consumer Protection Act

Authors Hanri du Plessis

ISSN: 1996-2177
Affiliations: Lecturer, School of Law, University of South Africa
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 150 – 169

Abstract

The article investigates the influence of the Consumer Protection Act 68 of 2008 (‘the CPA’) on the general rule that the advertising or display of goods for sale at a certain price is an invitation to do business and not an offer to sell. The article critically discusses the common-law position and argues that although a general rule exists in favour of advertisements being regarded as invitations to do business, no such general rule exists in respect of the physical display of goods at a certain price. Furthermore, although it remains a factual question whether an offer exists, the underlying policy considerations must also be taken into account. Thereafter, the article investigates the meaning and influence of the CPA on the common-law position. It is argued that the relevant provisions in the CPA (ss 23, 29 and 30) require that the display of goods at a certain price generally would be viewed as an offer. Furthermore, it is argued that while the CPA has not amended the common-law rule in respect of advertisements, it has improved the consumer’s position by prohibiting misleading advertisements and by placing certain obligations on a supplier if it cannot fulfil the promises in its advertisements.

The Role of Judicial Method in Contract Law Revisited

by | Oct 22, 2019 | SALJ, SALJ V132 I1 2015

The Role of Judicial Method in Contract Law Revisited

Authors Deeksha Bhana

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 122 – 149

Abstract

In this article, I revisit the role of judicial method in contract law. I show how the legal method employed in our common law of contract as a whole (as opposed to that employed in relation to the doctrine of legality specifically) continues to be informed by pre-constitutional legal culture and classical liberal ideology. Accordingly, I argue here that just as the legal culture and underlying ideology must be fully constitutionalised, so too must the legal method finding application in all spheres of contract law (as exemplified by the ‘contract law machine’) be re-aligned with the substantively progressive and transformative goals of the Constitution. At the very least, legal method operating in the constitutional context must reflect the weight that ought to be attached to the foundational constitutional values of freedom, dignity and equality as well as relevant constitutional right(s) and normative considerations that may be applicable in a particular case. Importantly, when constitutionalising legal method, courts need to appreciate the distinction between what I term the internal (content) and external (reach) dimensions of contractual autonomy. In particular, they must be clear as to the legal function of each dimension and how the methodologies pertaining to each influence the legal outcomes of cases.

A Comparative Study on the Regulation of Labour Brokers in South Africa and Namibia in Light of Recent Legislative Developments

by | Oct 22, 2019 | SALJ, SALJ V132 I1 2015

A Comparative Study on the Regulation of Labour Brokers in South Africa and Namibia in Light of Recent Legislative Developments

Authors A Botes

ISSN: 1996-2177
Affiliations: Lecturer, North West University, Potchefstroom Campus
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 100 – 121

Abstract

In an attempt to remedy the lack of proper regulation of labour brokers, the South African government has amended the Labour Relation Act 66 of 1995, especially s 198. The amendments have now reached a point where they have the potential to provide better protection for the parties involved, and to provide a higher degree of legal certainty. Meanwhile the Namibian Labour Amendment Act of 2012 introduced provisions for the regulation of labour brokers in a redrafted s 128. This is a drastic change from the total ban of labour broking in the previous version of s 128 of the Namibian Labour Act of 2007. This article undertakes a comparison between the amendments to the South African legal position on labour brokers and the regulations currently contained in the new Namibian Labour Amendment Act of 2012. It investigates to what extent these respective instruments differ from each other, and how the provisions in the Namibian Labour Amendment Act could have influenced the regulation of labour brokers in South Africa.

Developing the common law of breach of promise and universal partnerships: Rights to property sharing for all cohabitants?

by | Oct 22, 2019 | SALJ, SALJ V132 I1 2015

Developing the common law of breach of promise and universal partnerships: Rights to property sharing for all cohabitants?

Authors Elsje Bonthuys

ISSN: 1996-2177
Affiliations: School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 76 – 99

Abstract

In recent years the Supreme Court of Appeal has embarked on a rapid and far-reaching set of developments of the common law relating to engagements and universal partnerships between cohabitants, culminating in Butters v Mncora. This series of cases is groundbreaking in four respects: first, in holding that engaged and cohabiting partners can enter into universal partnerships encompassing both commercial and non-commercial undertakings; secondly, that the partnership agreement does not have to be express, but can be inferred from the partners’ conduct during the relationship; thirdly, that the test for the existence of such a partnership is ‘whether it is more probable than not that a tacit agreement had been reached’, and, finally, that non-financial contributions to the partnership, such as childcare and homemaking, should be taken into account. These cases have created an avenue by which cohabitants can circumvent the narrow approach adopted by the Constitutional Court in Volks v Robinson NO to lay claim to some of the financial assets which were accumulated during the existence of the partnership. This article traces the development of the law, and evaluates the law relating to engagements and universal partnerships respectively. It argues that the extension of property rights to cohabitants is accompanied by a simultaneous restriction on the rights traditionally available for breach of promise. These two areas of law remain marked by contradictory assertions that, on the one hand, breach of promise should not be treated like a commercial contract while, on the other hand, contractual principles are applied to limit the claims which had hitherto been available for breach of promise. Nevertheless, both in the case of breach of promise and universal partnerships the principles of contract law are not correctly applied, but instead are slightly altered to the detriment of claims by female cohabitants.

Housing the Ghost-Writers: The Appropriate Institutional Location of Legislative Drafting Expertise

by | Oct 22, 2019 | SALJ, SALJ V132 I1 2015

Housing the Ghost-Writers: The Appropriate Institutional Location of Legislative Drafting Expertise

Authors Lisa Chamberlain

ISSN: 1996-2177
Affiliations: Deputy Director, Centre for Applied Legal Studies, University of the Witwatersrand
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 55 – 75

Abstract

In light of the growing dominance of legislation as a means of regulation and reform, there is surprisingly little debate as to the most desirable institutional model for legislative drafting. For the most part, developed countries have deeply-entrenched legislative drafting systems and seem unlikely to change their established systems. Developing countries with more recently established legislative drafting apparatus thus enjoy an exciting opportunity to give careful thought to which institutional model is most appropriate for their context. Various models from which to choose exist worldwide. These include a centralised drafting office housed within the parliamentary structure, and a decentralised model where drafting is done either by a ministry official in addition to his or her usual duties, or by a particular drafting expert located within a specific government department. Some countries, including South Africa, choose to outsource some drafting of legislation to private sector consultants. Each of these models has strengths and weaknesses. This article explores those in the hopes of stimulating conscious decision-making around these questions of institutional design.

Notes: The place of effective management criterion for determining the tax residence of persons other than natural persons: Oceanic Trust Co Ltd NO v Commissioner for South African Revenue Service

by | Oct 22, 2019 | SALJ, SALJ V132 I1 2015

Notes: The place of effective management criterion for determining the tax residence of persons other than natural persons: Oceanic Trust Co Ltd NO v Commissioner for South African Revenue Service

Authors Charles de Matos Ala

ISSN: 1996-2177
Affiliations: Lecturer, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 41 – 54

Abstract

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