Befriending the bogeyman: Direct horizontal application in AB v Pridwin

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Befriending the bogeyman: Direct horizontal application in AB v Pridwin

Author Meghan Finn

ISSN: 1996-2177
Affiliations: Lecturer in Public Law, University of Johannesburg
Source: South African Law Journal, Volume 137 Issue 4, p. 591-607

Abstract

In AB v Pridwin Preparatory School 2020 (5) SA 327 (CC), the Constitutional  Court held (in four judgments) that independent schools are subject to constitutional  scrutiny and bear duties to the learners enrolled in them. For this reason, the court  declared invalid a school’s decision to terminate a contract without affording any  opportunity to make representations. By rejecting the idea that the independent  schooling sector is insulated from constitutional duties, the Constitutional Court’s  judgment achieves a vital outcome. However, while the court’s outcome is welcome,  its reasoning rests on shaky foundations. The court’s majority, which favoured direct  horizontal application, inadvertently perpetuates the idea that there are parallel  systems of law. Further, the court has a great appetite for making sweeping legal  pronouncements, and then purportedly limiting their precedential effects by claiming  that judgments turn on context-specific inquiries. This cuts against the court’s stated  commitment that horizontal application must progressively transform the law. 

‘When legality and certainty collide’: Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

‘When legality and certainty collide’: Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others

Author D M Pretorius

ISSN: 1996-2177
Affiliations: Bowmans, Johannesburg
Source: South African Law Journal, Volume 137 Issue 4, p. 608-624

Abstract

Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others 2020 (4)  SA 375 (CC) is the latest in a line of cases in which the Constitutional Court has  had to consider the effect of the decision in Oudekraal Estates (Pty) Ltd v City of  Cape Town 2004 (6) SA 222 (SCA). The Oudekraal case has been construed,  and is frequently invoked, as authority for a broad proposition that defective and  apparently unlawful administrative acts remain effective unless and until set aside on  judicial review. In several matters, the Constitutional Court bench has been split on  the impact of Oudekraal, and has expressed itself in abstruse terms. The resultant  confusion has created uncertainty. The Magnificent Mile decision provides a degree  of clarification. However, aspects of Oudekraal and its implications remain shrouded  in uncertainty. Cases decided in the Oudekraal context would benefit from closer  scrutiny of the enabling legislation of the administrative actors concerned. 

Caveat subscriptor, the consumer-friendly approach: An analysis of Van Wyk v UPS SCS South Africa (Pty) Ltd

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Caveat subscriptor, the consumer-friendly approach: An analysis of Van Wyk v UPS SCS South Africa (Pty) Ltd

Author Tshepiso Scott

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 137 Issue 4, p. 625-640

Abstract

Prior to the Consumer Protection Act 68 of 2008 (‘CPA’), the consumer in South  Africa was without substantive protection when concluding contracts with suppliers.  This case note explores how the CPA has changed this position by the introduction  of information-disclosure requirements in terms of s 49 of the Act (‘notice required  for certain terms and conditions’) and the important link to s 22 of the Act, which  affords the consumer the right to information in plain and understandable language.  The recent judgment in Van Wyk v UPS SCS (Pty) Ltd [2020] 1 All SA 857  (WCC) is a long-awaited decision that provides clarity on aspects of the disclosure  requirements that have been prescribed by the Act. 

Beadica 231 CC: An end to the trilogy?

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Beadica 231 CC: An end to the trilogy?

Author Simon Thompson

ISSN: 1996-2177
Affiliations: Teaching Assistant, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 4, p. 641-658

Abstract

In this note, I consider the path of the Beadica case through the South African court  system. After traversing the relevant law and facts, I focus on the Constitutional  Court’s judgment in Beadica 231 CC v Trustees for the time being of the  Oregon Trust 2020 (5) SA 247 (CC). I conclude that the majority judgment  deserves praise for its pronouncements on several pertinent issues in the law of contract,  namely: the ambit of the Constitutional Court’s judgment in Botha v Rich NO  2014 (4) SA 124 (CC), the importance of the doctrine of precedent, the role of  concepts such as good faith, reasonableness, fairness and ubuntu in the public policy  enquiry, the perceived divergence in approach between the SCA and CC on this  issue, and the court’s application of the law to the facts. 

The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases

Authors Raisa Cachalia & Lauren Kohn

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, University of Johannesburg; Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 4, p. 659-697

Abstract

Flowing from the constitutional imprimatur in s 172(1) to further ‘justice and equity’  (‘J&E’), the courts have made important strides in developing a framework for remedying  irregular public procurement. They have not, however, done so clearly and coherently;  nor in a way that encourages predictability in remedial outcomes. In response, we have  sought to leverage an argument for ‘reasonable certainty’ as a rule-of-law justification  for refining the framework in a comprehensive and helpful way that does not pit  form against ‘individualised justice’. We have done so against the backdrop of two  hypothetical tender scenarios — a review by a private contractor and a state self-review  — based upon a pattern emerging from the jurisprudence. Through our analysis, we  illustrate that ultimately the J&E enquiry is a kind of proportionality assessment that  has, at its heart, an appreciation of the overall ‘impact’ of setting a tender aside, from  both a practical and principled perspective. We posit a two-step approach to addressing  this overarching ‘impact question’: a big-picture assessment of the various interests to  be weighed in the balance, followed by the particularised balancing of these affected  interests with reference to several open-list factors. Ultimately, we seek to provide a  principled and pragmatic guide for the exercise of the courts’ remedial discretion and so  draw the analysis together by applying this framework to the scenarios sketched. 

Procedural fairness, executive decision-making and the rule of law

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Procedural fairness, executive decision-making and the rule of law

Author Clive Plasket

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal; Honorary Visiting Professor, Rhodes University
Source: South African Law Journal, Volume 137 Issue 4, p. 698-712

Abstract

The connection between procedural fairness and the rule of law was assumed to be  trite until the majority judgment in Masetlha v President of the Republic of  South Africa & another 2008 (1) SA 566 (CC). It held that procedural fairness  was not part of the rule of law, being a doctrine that only applied in administrative  decision-making, and that it was inappropriate to ‘constrain executive power to  requirements of procedural fairness’. In Albutt v Centre for the Study of Violence  and Reconciliation & others 2010 (3) SA 293 (CC) an attempt was made to  undo some of the damage that had been caused by Masetlha (short of overruling it)  by holding that in some cases, in order to take a rational decision, the decision-maker  was required to hear affected parties. In terms of Albutt, however, the right to a  hearing was the exception, rather than the default position. This article argues that  the majority decision in Masetlha is wrong and should be overruled, and that the  Albutt exception is very much a second-best alternative to a proper right to procedural  fairness — to a recognition that procedural fairness is part of the rule of law and  that executive decision-makers, as is the case with everyone else who has to decide  anything, are required to act fairly.