Workplace bullying in the legal profession

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Workplace bullying in the legal profession

Authors: Michele van Eck & Marthinus van Staden

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Private Law, University of Johannesburg; Associate Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 3, p. 647-677
https://doi.org/10.47348/SALJ/v140/i3a9

Abstract

The International Bar Association (‘IBA’) highlighted a disturbing trend of bullying within the legal profession in its 2019 report on bullying and sexual harassment in the legal profession, both internationally and in South Africa. The substantive forms of bullying (often described as victimisation, discrimination, or harassment) may overlap in the manner, mode or way in which bullying is perpetrated, and how bullying occurs may be grouped into several distinct categories: overt (or direct) forms, covert (or indirect) forms and, finally, so-called ‘mobbing’. This article investigates the current South African legislative framework addressing workplace bullying, including the indirect remedies available to victims in terms of (i) a claim of harassment as a form of unfair discrimination under s 6(3) of the Employment Equity Act; (ii) a claim for constructive dismissal under s 193 of the Labour Relations Act; and (iii) unfair labour practices as a remedy for workplace bullying or a claim of harassment in terms of the Compensation for Occupational Injuries and Diseases Act. After finding that these indirect remedies are inadequate to address workplace bullying in the legal profession, the article explores the conduct rules of the legal profession to establish how bullying is addressed in the legal sector and conducts a comparative analysis of the way in which bullying is addressed in the Australian and New Zealand jurisdictions to identify possible solutions to curb the scourge of workplace bullying in the South African legal profession.

Dolus eventualis: An endangered colonial species

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Dolus eventualis: An endangered colonial species

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 239-262
https://doi.org/10.47348/SALJ/v140/i2a1

Abstract

This article focuses on the feasibility of dolus eventualis in addressing the problem of intended endangerments — that is, the question as to how the secondary consequences flowing from an act of endangerment, as distinguishable from an attack, can be said to be ‘intended’ (dolus). This problem manifests typically in the form of the orthodox marketplace bomb-thrower who has one primary aim but whose actions result in several other secondary consequences, some of which may not have been aimed or foreseen in any primary sense. After discussing why the two historical solutions — strict liability and the versari doctrine — are not viable answers to this problem, the remainder of the article examines the feasiblity of dolus eventualis as a third contemporary solution. This examination focuses on both the historical contradictions as well as the prevailing doctrinal controversies that are associated with dolus eventualis. The fourth part of the article reflects on five uncontroverted problems that currently beset dolus eventualis. The article concludes on a sceptical note: that dolus eventualis may not survive the many difficulties discussed in this article, and that exploring the expansion of negligence or the creation of a separate and new third form of fault may not be a bad idea.

The appealability of decisions to certify class actions: Where are we now? A proposed approach after Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd (WCC)

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

The appealability of decisions to certify class actions: Where are we now? A proposed approach after Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd (WCC)

Author: Theo Broodryk

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Stellenbosch University
Source: South African Law Journal, Volume 140 Issue 2, p. 263-284
https://doi.org/10.47348/SALJ/v140/i2a2

Abstract

Decisions refusing to certify class proceedings are appealable. The position regarding the appealability of decisions certifying class actions is, however, less clear. Regrettably, in Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd [2021] JOL 51475 (WCC), the court did not give a final ruling on whether a decision to certify a class action is appealable. Gamble J merely assumed, without deciding, that his decision in Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd 2022 (2) SA 237 (WCC) to certify the class action was appealable. This article aims to clarify the preferred approach when deciding whether to permit an appeal against a decision to certify a class action.

Wrongfulness in the South African law of defamation

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Wrongfulness in the South African law of defamation

Author: Anton Fagan

ISSN: 1996-2177
Affiliations: WP Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 285-327
https://doi.org/10.47348/SALJ/v140/i2a3

Abstract

According to some South African delict scholars, the South African law of defamation makes the wrong fulness of a defamatory statement turn on two conditions: first, that the statement caused reputational damage; and, secondly, that the damage caused was not outweighed by the achievement of some greater good. This article proposes an alternative view. According to it, the wrong fulness of a defamatory statement turns on two very different conditions. The first is that the statement represented the defamed person (the plaintiff) as having a worth which is less than the worth which the person ought to be estimated to have. The second is that the person making the statement (the defendant) intended this. The article starts by raising two objections to the scholars’ view. One is that it cannot explain the fact that a defamatory statement can be false yet lawful. The other is that it cannot explain the fact that a defamatory statement may be found to be wrong ful even though it caused no reputational damage. After this, the article goes on to discuss and defend the alternative view’s two conditions — that is, the ‘representation condition’ and the ‘intent condition’. The latter is likely to be the more controversial, as it flies in the face of a scholarly dogma to the effect that wrong fulness does not in any way depend on fault. However, as the article demonstrates, it is impossible to make sense of the wrong fulness-negating defences of privileged occasion, fair comment, and reasonable publication, unless we accept the intent condition.