Abstract

In this article, the implications of the decision of the Supreme Court of Appeal (“SCA”)in Viking Inshore Fishing (Pty) Ltd v Mutual & Federal Insurance Co Ltd for the law on promissory insurance warranties are considered. The article begins with an overview of the traditional position, which has been that such warranties are to be strictly interpreted and enforced, no matter the harshness of the result. Thereafter, the article discusses the contrasting decisions in Viking Inshore Fishing (Pty) Ltd v Mutual & Federal Insurance Co Ltd in the Western Cape High Court and the SCA. Wallis JA suggested on appeal that the strict traditional approach to promissory warranties was no longer appropriate, but without having to decide the point. The article next considers the implications of an obiter dictum of the SCA, in a matter relating to a court exercising admiralty jurisdiction, on insurance law in general. Thereafter, the article proposes that Wallis JA’s comments indicate an important change to our law on promissory warranties, specifically in relation to the need for there to be a causal link between the insured’s breach of the warranty and the loss suffered, before an insurer may exercise the power to repudiate the contract. Although others have made the causal-link argument before, this article tries to explain and situate this development in two doctrinal contexts: the modern law on contractual interpretation; and the doctrine of public policy. A supplementary argument relates to the drawing together of the law on promissory warranties with the rules relating to cancellation for major breach, in cases where an insurer pursues that remedy.

Abstract

This article evaluates the compensatory relief South African law currently provides to crime victims. To obtain compensation for harm arising from crime, a victim may institute a common-law delictual claim against the perpetrator of the crime. Because the perpetrator is unlikely to be in a financial position to compensate, crime victims have had to develop an alternative strategy. Essentially, they have argued that it is the state, rather than the perpetrator, that should be held delictually liable for harm arising from crime. More specifically, they have argued that the state should be held vicariously liable in delict on the basis that its employees culpably and wrongfully caused the victim’s harm, either by action or inaction. This article evaluates this development of the common law and argues that the expanding delictual liability of the state for harm arising from crime is undesirable. The common-law delictual claim is not the crime victim’s only option for compensation. The Criminal Procedure Act 51 of 1977 provides crime victims with a degree of procedural assistance in claiming compensation from the perpetrator and the Prevention of Organised Crime Act 121 of 1998 seeks to introduce measures to combat organised crime activities and provides for the recovery of the proceeds of unlawful activities. The article analyses the existing statutory mechanisms to claim compensation for harm arising from crime and finds that it is unsatisfactory from a crime victim compensation perspective. Against this background, the article suggests that it may be sensible to consider an alternative method to secure compensation for crime victims. From a comparative legal perspective, the most popular alternative solution appears to be the enactment of a statutory crime victim compensation scheme. The article examines some of the theoretical concerns that require consideration, if such a proposal were to be taken seriously by the legislature.

Abstract

Environmental degradation negatively impacts both women and men. However, it is an indisputable fact that women experience its adverse effects more than men. This is based on women’s socially constructed roles which make them more dependent on natural resources like forests, lakes and land. This responsibility enables women to interact more closely with the environment than men, thus, giving them an opportunity to contribute to environmental conservation. Despite the relationship that women have with the environment and the contribution they make towards environmental protection and conservation, it remains largely unclear if their contribution is adequately recognised and implemented. This article examines the contribution of women in environmental conservation and the extent to which existing environmental conservation laws and policies at international, regional and national levels recognise this. It is concluded that some instruments at the international, regional and national levels scantily recognise the role of women in environmental conservation. However, these scanty provisions are met with discriminatory practices against women at the national level which makes it close to impossible for these instruments to advance the role of women in environmental conservation.

Abstract

In this case an elderly applicant, Mr Lyons, applied to the Western Cape High Court for an interdict obliging the body corporate to repair four of the five elevators in his sectional title scheme which had been out of commission for over two years. As it was common cause that the first two requirements for an interdict were satisfied, the court considered the argument of the body corporate regarding the third requirement, that there were other remedies available namely the convention of a special meeting to discuss the matter and the election of new trustees to compel the engaged elevator service providers to repair the lifts speedily. The court rejected this stance as an inefficient solution to the problem and granted the interdict compelling the body corporate to have the elevators repaired within a period of three months.

In the second part of the article, I have shown that Mr Lyons would have been in a better position if he sought relief after the coming into operation on 7 October 2016 of the Community Schemes Ombud Service Act 9 of 2011 (“CSOSA”) and the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”) and the related Regulations. The CSOSA pertinently makes specific orders available to applicants in the position of Mr Lyons, to force the body corporate to carry out maintenance and repair of the common property. The STSMA and related Regulations oblige the body corporate to ensure that the administrative and reserve funds of bodies corporate contain sufficient money for the maintenance and repair of elevators. In addition, the Regulations oblige the body corporate to prepare a 10-year maintenance, repair and replacement plan for major capital items (including escalators). This plan would ensure that escalators are always kept in good working condition.

Abstract

Section 62 of the Systems Act 32 of 2000 provides an effective tool for persons affected by a decision of a political office bearer. The court in Reader interpreted section 62(1) to mean that only the person(s) who are party to the application for approval from a political office bearer can appeal the decision that has been made. Whilst this finding is sound, it is not without any blemish. This is because of the paucity of reasoning proffered by the court. Thus, this article in part, suggests a rationale for this finding and for the most part, explored the implications of the Municipality of the City of Cape Town v Reader decision. It is my view that the court’s interpretation of section 62(1) failed to strike the balance between the rights of the aggrieved applicant and the so-called “third parties”. Section 62(1) permits “a person” who is affected by the decision of a political office bearer to appeal that decision. This must include all persons with a direct and substantial interest and not just the applicants for approval/permission from the political office bearer. Lastly, the court’s interpretation that section 62(3) “insulates” the decision of the political office bearer is incorrect. The correct approach is that of the separate judgment that held that section 62(3) does not protect the “decision” but rather, the “rights” that have “accrued” as a result of the impugned decision. Ultimately, it is my recommendation that section 62(3) must be amended to state that no rights accrue to an approval decision that is the subject of an appeal. This approach would avoid the perpetuation of an illegality in instances whereby a political office bearer has either colluded with an applicant or made a patently wrong decision to accumulate rights for the applicant. Ultimately, this article suggests that the correct approach to section 62 is that of O’Regan J in the Walele v The City of Cape Town case.