Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

Author: Thomas Coggin

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 4, p. 697-715
https://doi.org/10.47348/SALJ/v138/i4a1

Abstract

In the Western Cape High Court decision of Adonisi, Gamble J framed the prevalence of well-located land scarcity in Cape Town with the phrase, ‘they’re not making land anymore’. In this case note, I present the court’s findings and reasoning in ruling against the Western Cape Provincial Government, and I argue we can read the judgment as an expression of the social function of property through two lenses: first, the manner in which the court situated the dispute within the spatial and historical geography of Cape Town; and, secondly, the way in which it prefaced the use value of property through its emphasis on meaningful participation and on custodianship. Both lenses indicated the duty incumbent on the province as landowner and in service of its obligations under s 25(5) of the Constitution, which are important when resolving similar disputes given the scarred ownership landscape characterising the South African urban and spatial environment.

Notes: Social media firestorms and the protection of smaller enterprises: Ubuntu Baba and Woolworths

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: Social media firestorms and the protection of smaller enterprises: Ubuntu Baba and Woolworths

Authors: Peter Kituri, Andrew Hutchison & James Lappeman

ISSN: 1996-2177
Affiliations: Attorney of the High Court of South Africa; Associate Professor, Department of Commercial Law, University of Cape Town; Senior Lecturer, School of Management Studies, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 715-731
https://doi.org/10.47348/SALJ/v138/i4a2

Abstract

In this note we explore the use of social media as a tool to help small enterprises exert pressure on large corporations. Specifically, we use the case study of a small South African business (Ubuntu Baba) that exerted a powerful non-legal sanction on major retailer Woolworths through social media. This entrepreneur-initiated social media firestorm led to victory in the court of public opinion and a quick settlement. This low-cost option was possibly chosen in the face of the costs and uncertainties of more conventional legal recourse. Small businesses are an important component of the South African government’s strategy for economic development and employment creation, yet the existing laws protecting weaker parties often leave small businesses exposed to corporate power-play. This form of corporate power imbalance is a core theme underlying our case study.

Notes: eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd: Personal costs against public officials through the lens of Westwood

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd: Personal costs against public officials through the lens of Westwood

Authors: Max du Plessis & Muhammad Zakaria Suleman

ISSN: 1996-2177
Affiliations: Senior Counsel, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal; Adjunct Professor, Nelson Mandela University; Advocate, KwaZulu-Natal Bar
Source: South African Law Journal, Volume 138 Issue 4, p. 731-747
https://doi.org/10.47348/SALJ/v138/i4a3

Abstract

eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd concerns personal costs orders against public officials. The high court sought to extend itself beyond the merits of a tender dispute in its main judgment by engaging in an inquiry about the officials implicated and whether they should be penalised by way of a personal costs order. In its costs judgment, certain individuals within the eThekwini Municipality were mulcted with personal costs orders. On appeal, a full bench cautioned against a court reaching conclusions about officials too quickly and drawing adverse inferences from facts that are not properly pleaded. This is a judgment that has mapped out the procedural steps necessary to make personal costs orders against public officials.

Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

Author: Tjakie Naude

ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 748-760
https://doi.org/10.47348/SALJ/v138/i4a4

Abstract

South African case law has long held that standard terms may be incorporated into a contract by mere reference, and that it is unnecessary for the user of the terms to make the text of the terms available to the other party. The so-called railway ‘ticket cases’ from the early twentieth century started this approach. More recent case law involving contracts concluded by fax has confirmed the possibility of incorporation of standard terms by mere reference, without the text of the terms having been made available. This contribution argues that times have changed with increased access to the internet, and that the user of standard terms can reasonably be expected to make their text available to the other party, for example by making them available on a website. It draws on comparative study of the UN Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts. It also shows that legislation requires standard terms to be made available anyway in the consumer context, as well as in the case of electronic contracts. Writers of books on the law of contract should discuss the relevant rules.

A decolonial legal method

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

A decolonial legal method

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 761-798
https://doi.org/10.47348/SALJ/v138/i4a5

Abstract

A survey of the burgeoning body of scholarship on decolonising education in South Africa leaves one with the impression that this is an area of scholarship that is yet to mature, particularly due to the rarity with which its scholars engage in self-conscious reflections on their methods. The article addresses this in two ways. The second part of the article theorises generally about an appropriate method of decolonising the discipline of law. The proposed method rests on four conditions: (1) standpoint (with whom is one in conversation in broader debates about decolonial education?); (2) historicity (what particular aspects of a specified branch of law were inherited from colonial Europe and with which other African countries does South Africa have this in common?); (3) evaluative/critical (what is problematic about the identified colonial inheritances for the present epoch?); (4) remedial (what changes are proposed towards the development of the branch of law concerned, and the discipline as a whole?). The third part then proceeds to illustrate how to apply this method towards decolonising evidence scholarship in Africa. Ultimately, it is argued that the political legitimacy of African criminal process remains endangered by the colonial inheritances that currently are embedded in the law of evidence.

The intersection between taxation and insolvency — The South African Revenue Service’s preference

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

The intersection between taxation and insolvency — The South African Revenue Service’s preference

Authors: Carika Fritz & Thabo Legwaila

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand; Professor of Law, University of Johannesburg
Source: South African Law Journal, Volume 138 Issue 4, p. 799-817
https://doi.org/10.47348/SALJ/v138/i4a6

Abstract

When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency Act provides for a clear order of distribution both in respect of the insolvent estates of natural persons and when an insolvent company is wound up, tax legislation in South Africa should not be used to deviate from this order of distribution.