Conduct Constituting Anticipatory Breach of Contract

by | Oct 21, 2019 | SALJ, SALJ V133 I4 2016

Conduct Constituting Anticipatory Breach of Contract

Authors Martin Fischer

ISSN: 1996-2177
Affiliations: Teaching Assistant, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 820 – 852

Abstract

This contribution considers the development of the doctrine of anticipatory breach of contract in South African law culminating in the case of Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd. Although the decision has authoritatively acknowledged important developments in the South African law on anticipatory breach, its implications have not yet been fully recognised, and certain developments proposed in Datacolor are potentially open to criticism. This article argues that the confirmation in Datacolor that repudiation is an immediate breach assessed using an objective test creates an entirely objective unified basis for anticipatory breach in South African law that is to be welcomed. However, it is also argued that the further developments suggested in Datacolor — that any predicted non- or malperformance should amount to an anticipatory breach and that a claim for damages should arise immediately upon the breach — are not desirable developments, and that these obiter comments should not be followed.

Specificity of Expropriation Statutes as a Safeguard Against Third-Party Transfers for Economic Development: Lessons from German Law for New Expropriation Legislation in South Africa?

by | Oct 21, 2019 | SALJ, SALJ V133 I4 2016

Specificity of Expropriation Statutes as a Safeguard Against Third-Party Transfers for Economic Development: Lessons from German Law for New Expropriation Legislation in South Africa?

Authors Björn Hoops

ISSN: 1996-2177
Affiliations: Faculty of Law, University of Groningen
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 788 – 819

Abstract

Neither the German Basic Law nor the South African Constitution prohibits an expropriation of property rights in land for the benefit of a private party if the private party uses the land to enhance economic growth and to create jobs. Such third-party transfers, however, pose the danger of abuse of power, corruption, and unfulfilled expectations, particularly when effected at local level. The specificity of the statutory basis of an expropriation determines how much freedom the expropriation authority has in determining the project and purposes for which property is expropriated. More specific statutes are therefore a means to contain those dangers. South African law, however, does not make use of this instrument. On the contrary, expropriation statutes generally contain highly abstract purposes, thereby granting the expropriation authority a lot of scope for manoeuvring. German constitutional law, by contrast, compels the legislature to define narrowly the projects and purposes for which property can be expropriated. Indeed, German law is so strict that there are only project-specific statutes that permit a third-party transfer for economic development. It is submitted that the South African legislature should follow the German model when drafting new expropriation legislation.

Considering Corruption Through the AllPay Lens: On the Limits of Judicial Review, Strengthening Accountability, and the Long Arm of the Law

by | Oct 21, 2019 | SALJ, SALJ V133 I4 2016

Considering Corruption Through the AllPay Lens: On the Limits of Judicial Review, Strengthening Accountability, and the Long Arm of the Law

Authors Max du Plessis, Andreas Coutsoudis

ISSN: 1996-2177
Affiliations: Associate Professor, University of KwaZulu-Natal; Advocate, KwaZulu-Natal Bar
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 755 – 787

Abstract

Although not necessarily or even generally as a consequence of corruption, tenders have become the site of much legal contestation in the democratic South Africa — representing as they do the uneasy confluence of public and private interests and money. This is true of the AllPay case, which involved a tender dealing with the payment of social grants across South Africa worth some R10 billion to the winning bidder. Using the AllPay case as a lens and as a basis for reflection, we consider the judgments of the SCA and the Constitutional Court and the manner in which both courts dealt with serious allegations of corruption and malfeasance in the bidding process. The Constitutional Court’s AllPay judgments bring into sharp focus a variety of questions that implicate the judiciary, its relationship with the fight against corruption in South Africa, and the extent to which the efforts to hold corrupt individuals accountable might extend beyond South Africa to countries with legislation that creates extra-territorial jurisdiction (and duties) in respect of corruption. We discuss how AllPay also highlights the limits of administrative review to deal effectively with allegations of corruption. The case thus raises questions about what other methods there are to tackle these matters if we are to avoid — in the words of the Constitutional Court in Glenister —corruption destroying virtually everything we hold dear in our hard-won constitutional order.