The Validity of Surrogacy Facilitation Agreements: [An Analysis of Ex Parte HPP; Ex Parte DME [2017] 2 All SA 171 (GP)]

by | Feb 16, 2021 | SLR, SLR V31 I3

The Validity of Surrogacy Facilitation Agreements: [An Analysis of Ex Parte HPP; Ex Parte DME [2017] 2 All SA 171 (GP)]

Author: Themba Skosana

ISSN: 1996-2193
Affiliations: LLB LLM (UNISA), Senior Lecturer, Department of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 548 – 558

Abstract

Commercial surrogacy is prohibited in South Africa. In Ex parte HPP, the court dealt with a surrogate facilitation agreement which was tainted by an illegal surrogate motherhood agreement as a result of payments of surrogate facilitation fees. The court applied contract law principles to justify confirmation of the two surrogate motherhood agreements and to avoid the penal provisions of the Children’s Act applicable to such illegality. This article argues that this is the incorrect approach and that the court must focus on the provisions of the Act that, except for specific situations, forbid payments in connection with the confirmation or execution of surrogate agreements.

Critical Perspectives on the Allocation of Participation Quotas to Sections in Mixed-use Sectional Title Schemes; the Adjustment of Quotas after Extensions to the Scheme by the Addition of Non-residential Sections; and the Modification of Quotas by the Body Corporate in Mixed-use Schemes

by | Feb 15, 2021 | SLR, SLR V31 I2

Critical Perspectives on the Allocation of Participation Quotas to Sections in Mixed-use Sectional Title Schemes; the Adjustment of Quotas after Extensions to the Scheme by the Addition of Non-residential Sections; and the Modification of Quotas by the Body Corporate in Mixed-use Schemes

Author: CG van der Merwe

ISSN: 1996-2193
Affiliations: BA LLB BA (Hons) and BCL (Oxon) LLD, Research Fellow, Department of Private Law, Stellenbosch University, Emeritus Professor in Civil Law, University of Aberdeen
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 179 – 200

Abstract

This tale of three courts tells the story of how three South African courts, starting with the Durban Division, followed by the Pietermaritzburg full court, and culminating in the Supreme Court of Appeal, addressed the tribulations encountered in a single mixed-use sectional title scheme. In a mixed-use scheme, the developer has unfettered discretion, first, to allocate quotas to each non-residential section in the scheme, and second, to allocate a percentage of the total participation quotas to the non-residential component of the scheme. The legislation intended that a fairer result would be achieved if par value, as opposed to floor area, were used for the allocation. I propose that the developer should be compelled to disclose the formula he or she employs, both for allocating quotas to commercial sections and for allocating the percentage to the non-residential component. This will facilitate the adjustment of, first, commercial sections’ quotas; and second, the initial percentage allocated to the non-residential component where that component is enlarged by the addition of a further commercial section to the scheme. In the instant case, this never happened, with dire consequences for the body corporate. The Sectional Titles Schemes Management Act 8 of 2011 allows the body corporate to modify the ratio for levy contributions by adopting a special resolution authorising the insertion of a modifying formula in the rules of the scheme. I contend that the insertion in a conduct rule, and not a management rule, would suffice. As the New South Wales and German legislative templates for the promulgation of the first Sectional Titles Act 66 of 1971 do not contain a proviso requiring the written consent of an owner adversely affected by the modification, I propose that this proviso should be eliminated and that the ombud service should be authorised to modify an existing method of allocation that is blatantly unfair and causes grave disharmony in the scheme.

A Systemically Correct Approach in State Evictions

by | Feb 15, 2021 | SLR, SLR V31 I2

A Systemically Correct Approach in State Evictions

Author: Sue-Mari Viljoen

ISSN: 1996-2193
Affiliations: BComm (Law) LLB LLD, Associate Professor, University of the Western Cape, Department of Private Law
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 201 – 225

Abstract

Evictions at the hand of the state have been litigated and adjudicated with reference to section 26(3) of the Constitution of the Republic of South Africa (“Constitution”) and section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”); administrative law principles have not featured to determine the substantive fairness of such decisions. It is argued that the courts’ methodological approach in these cases has been systemically incoherent. The application of administrative law principles can arguably complement this area of law if proportionality is incorporated as the requisite standard for reasonableness. A proportionality analysis not only requires a delicate balance between the eviction of unlawful occupiers and the objective of the state’s action, but also a clear understanding of the impact of such an order. From a methodological perspective, it is argued on the basis of the first subsidiary principle that a) administrative law should find application in evictions at the hand of the state; b) the courts are required to first interpret legislation that has been enacted to give effect to constitutional rights to establish whether an eviction order should be granted or not; and c) the proportionality requirement in terms of administrative law should bring the human factor to the forefront of a substantive fairness enquiry in the context of state evictions.

Mediation as a Tool to Manage and Resolve Class Actions

by | Feb 15, 2021 | SLR, SLR V31 I2

Mediation as a Tool to Manage and Resolve Class Actions

Author: Theo Broodryk

ISSN: 1996-2193
Affiliations: BA LLB LLD (Stell), Associate Professor and Manager: Law Clinic, Stellenbosch University
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 226 – 248

Abstract

The importance of managing class actions effectively is evidenced by the fact that manageability problems could potentially result in the termination of a class action. This article evaluates court-annexed mediation as a tool that our courts could utilise to assist it in managing, and possibly resolving, class actions. The article considers mediation to be a valuable case management tool, even when it fails to lead to immediate settlement of the dispute. Where it does not result in settlement of the dispute, mediation may nevertheless have value from the perspective of, for example, a potential partial settlement of the dispute or by providing a party with valuable information of the other party’s case. Ultimately, however, mediating disputes may have the effect of relieving our superior courts’ high caseload, as well as shielding the parties and the courts from the high costs and delays generally involved in civil litigation. This article considers the mediation approaches in prominent foreign jurisdictions, including Australia, Canada and the United States of America, with a view to evaluating whether and to what extent they could find application within a South African context.

Formele Onreëlmatighede, Materiële Onreëlmatighede, Regsgeldigheid van Verrigtinge en Artikel 157 van die Insolvensiewet 24 van 1936

by | Feb 15, 2021 | SLR, SLR V31 I2

Formele Onreëlmatighede, Materiële Onreëlmatighede, Regsgeldigheid van Verrigtinge en Artikel 157 van die Insolvensiewet 24 van 1936

Authors: AL Stander en HJ Kloppers

ISSN: 1996-2193
Affiliations: BIuris LLM LLD Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus; BComm LLB LLM LLD Nagraadse Diploma: Finansiële beplanning Mede-professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 249 – 269

Abstract

The application of section 157(1) of the Insolvency Act 24 of 1936 (“the Act”) that concerns a formal defect or irregularity requires careful consideration. Many court cases have already been decided on this aspect and over the years there have been several endeavours to define “a formal defect”. In the Gauteng Division of the High Court and the KwaZulu-Natal Division of the High Court, there are currently different approaches to the application of this phrase in section 4(1) of the Insolvency Act, due to different interpretations of the term “formal defect”. In the first-mentioned division, it is the view that if section 4(1), read with section 157, means that a notice of surrender published more than 30 days before the relevant date is valid (provided that a court does not in due course find that a substantial injustice has occurred), it would create uncertainty. Effectively, a debtor will be able to secure and control a suspension of execution. That was clearly not what the legislature intended. In the KwaZulu-Natal division, the view is that the premature publication of a notice of surrender of an estate under section 4(1) is a formal defect or irregularity within the meaning of that phrase in section 157(1) of the Act. The publication itself is therefore not rendered invalid by the defect. The extent to which the applicant has complied with or deviated from the procedural requirements of the Act is a factor to be considered in exercising the court’s discretion in terms of section 6 of the Insolvency Act. However, the different approaches of the two divisions of the High Court create uncertainty. In the recent case of Swart v Starbuck, the Constitutional Court applied, among other things, section 157(1) to maintain the validity of an action by the Master. It is argued in this article that neither the majority decision nor the minority ruling has given sufficient consideration to the characterisation of “formal defect” in order to address the uncertainty about the application of this section.

Living Wills: What is the Current Legal Status in South Africa?

by | Feb 15, 2021 | SLR, SLR V31 I2

Living Wills: What is the Current Legal Status in South Africa?

Author: Gertruida Grové

ISSN: 1996-2193
Affiliations: BA LLB LLM (US) (LLD) (Pret), Attorney of the High Court of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 270 – 298

Abstract

In this article the current legal status of living wills (advance directives) in South Africa is investigated. The legal enforcement of living will documents should allow compos mentis persons to state their medical instructions in writing in advance. These instructions should be adhered to in medical decision-making processes in situations where the makers of such living wills are no longer able to convey their medical instructions contemporaneously, for example, in states of temporary or permanent unconsciousness. The historical and current legal debate on living wills in South Africa is explored. It is found that there are currently legal lacunae in the South African law, as living wills and enduring powers of attorney which could be incorporated into living wills have not yet been found to form part of our common law and no living will-specific legislation has been enacted. As a result of the legal lacunae there is much legal uncertainty which can, for example, be seen by the varying terminology used by the legal and medical fraternity regarding living wills and related documents. These inconsistencies lead to much confusion and subsequent varying enforcement standards. The Law Reform Commission has investigated the legal lacunae; its reports and suggestions for draft legislation are discussed. The applicable provisions of the National Health Act 61 of 2003 as well as draft legislation, specifically the Draft Bill on End of Life Decisions, 1998, and the National Health Amendment Bill, 2019, the applicable case law and ethical guidelines, including the Health Professions Council of South Africa Guidelines and the South African Medical Association Guidelines, are discussed. The legal lacunae should be addressed to promote legal certainty in South Africa on the enforceability of living wills. This would enhance the doctor-patient relationship and promote the protection of patients’ fundamental human rights.