ISSN: 1996-2177
Affiliations: Advocate of the Cape and Johannesburg Bars; Bencher of the Middle Temple, London
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 181 – 186
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ISSN: 1996-2177
Affiliations: Judge (retired) of the Western Cape High Court
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 174 – 181
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ISSN: 1996-2177
Affiliations: Former Judge President of the Cape High Court
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 170 – 173
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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
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.
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
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.
ISSN: 1996-2177
Affiliations: Lecturer, North West University, Potchefstroom Campus
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 100 – 121
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.