Semi-Public Entities and the Public/Private-Law Divide in South African and Dutch Law

by | Oct 20, 2019 | SALJ, SALJ V133 I1 2016

Semi-Public Entities and the Public/Private-Law Divide in South African and Dutch Law

Authors Niels Jak, Frank van Ommeren

ISSN: 1996-2177
Affiliations: Assistant Professor, Vrije Universiteit Amsterdam; Professor of Constitutional and Administrative Law, Vrije Universiteit Amsterdam
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 102 – 132

Abstract

The central aim of this article is to compare the legal position of semi-public entities in the Netherlands with those in South Africa. The performance of the public function in South Africa and the Netherlands is not restricted to the government. Both states are moving towards privatising services. This trend of privatisation means that public functions are increasingly being performed by private entities. This has resulted in the establishment of a special category of private bodies, which the authors refer to as semi-public entities. This article focuses on the question of the extent to which substantive public-law standards apply to semi-public entities and whether their conduct is susceptible to administrative judicial procedures. Furthermore, this article briefly considers the question to what extent mechanisms of public control and public accountability should be applicable to semi-public entities. The answers to these questions depend on how the public/private-law divide generally is understood. In this piece this fundamental distinction is approached as a multifunctional and context-dependent divide. The legal position of semi-public entities is considered as part of this framework. An important finding of this article is that in Dutch law the label ‘public law’ is used in fewer kinds of cases than in South African law, which is particularly expressed with regard to semi-public entities.

Constitutionalism, Good Faith and the Doctrine of Specific Performance: Rights, Duties and Equitable Discretion

by | Oct 20, 2019 | SALJ, SALJ V133 I1 2016

Constitutionalism, Good Faith and the Doctrine of Specific Performance: Rights, Duties and Equitable Discretion

Authors Luca Siliquini-Cinelli, Andrew Hutchison

ISSN: 1996-2177
Affiliations: Lecturer in the School of Law, Deakin University; Associate Professor in the Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 73 – 101

Abstract

This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.

Copyright Protection of Computer Programs

by | Oct 20, 2019 | SALJ, SALJ V133 I1 2016

Copyright Protection of Computer Programs

Authors Sadulla Karjiker

ISSN: 1996-2177
Affiliations: Associate Professor in Mercantile Law, Stellenbosch University
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 51 – 72

Abstract

This article seeks to address a misconception concerning the scope of copyright protection of computer programs. It has been suggested that unlike the US courts, the UK and South African courts have not drawn a proper distinction between functional works — such as computer programs—and other copyright works, with the result that they are more likely to protect ideas, rather than their particular expression. While this may have been true at some stage, it is certainly not the current position in the UK. The decision of the court in Navitaire Inc v easyJet Airline Company & another, and subsequent decisions, represented a sea-change in UK copyright law relating to computer programs, resulting in comparatively thin copyright protection for computer programs, which corresponds to the legal position in the US. It was the recognition of the functional nature of computer programs that led to this change in how programs should be assessed in terms of copyright doctrine. This more limited protection is considered to strike an appropriate balance between providing the necessary incentives for the production of computer programs, while allowing for a sufficiently large public domain.

Notes: Lapsed Prospecting Rights: ‘The Custodian Giveth and the Custodian Taketh Away’? Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy

by | Oct 20, 2019 | SALJ, SALJ V133 I1 2016

Notes: Lapsed Prospecting Rights: ‘The Custodian Giveth and the Custodian Taketh Away’? Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy

Authors P J Badenhorst

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor of Law, Nelson Mandela Metropolitan University
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 37 – 50

Abstract

None

Notes: The Traditional Health Practitioners Act and its Remedies: Reflections After the Operationalisation of the Majority of the Act’s Provisions

by | Oct 20, 2019 | SALJ, SALJ V133 I1 2016

Notes: The Traditional Health Practitioners Act and its Remedies: Reflections After the Operationalisation of the Majority of the Act’s Provisions

Authors Boyane Tshehla

ISSN: 1996-2177
Affiliations: Lecturer, North-West University (Mafikeng Campus)
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 28 – 37

Abstract

None

Notes: The Pedigree of the Common Law and the ‘Unnecessary’ Constitution: A Discussion of the Supreme Court of Appeal’s Decision in RH v DE

by | Oct 20, 2019 | SALJ, SALJ V133 I1 2016

Notes: The Pedigree of the Common Law and the ‘Unnecessary’ Constitution: A Discussion of the Supreme Court of Appeal’s Decision in RH v DE

Authors Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: Professor of Private Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 16 – 28

Abstract

None