Abstract

The global Covid-19 pandemic resulted in a transition to online teaching and learning, which prompted higher education institutions to reconsider their assessment methods. Soon, implementing the most appropriate assessment approach to encourage students to engage with the study material on an ongoing basis and which would lead to a deeper understanding of module content became an exciting challenge in the completely remote learning scenario. Grappling with this challenge, lecturers in the Faculty of Law at the University of the Free State implemented alternative assessment methods in a Legal Skills first-year module and a Law of Property third-year module. By using the action research method to implement change, observe the change and critically reflect on the outcome, the authors report on the valuable lessons that they have learned from this exercise. This contribution provides an account of the benefits and drawbacks of traditional versus alternative assessment methods and a critical perspective on the practicality of using alternative assessment tools in undergraduate programmes.

Abstract

In South African law, a company that wishes to provide financial assistance to one of its directors, a related juristic person, or to a person related to a director or related juristic person, must comply with the requirements contained in section 45 of the Companies Act 71 of 2008 to validly execute such a transaction. The Act contains no precise definition of the term “financial assistance”, causing commentators to speculate that the reach of section 45 may be extremely wide. However, in Constantia Insurance Co Ltd v Master, Johannesburg High Court 2023 5 SA 88 (SCA), the Supreme Court of Appeal interpreted “financial assistance” narrowly. In this contribution, the Court’s restrictive interpretation of the term is critically analysed. I argue that the Court’s decision was correct and that its interpretation of “financial assistance” is consistent with the objectives of South African company law because it is likely to improve business efficiency without unduly prejudicing a company’s stakeholders. I also propose that the necessity for related-party financial assistance provisions should be reconsidered.

Abstract

The aspirations of the Constitution of the Republic of South Africa, 1996 are expressly recognised in competition legislation. Competition authorities and courts must, accordingly, adjudicate competition matters in a manner that gives effect to the Constitution. This has resulted in the Constitutional Court assuming jurisdiction over appeals from the Competition Appeal Court, thereby raising questions about the Constitutional Court’s competence to adjudicate specialised competition matters that cannot be understood solely through the lens of constitutional interpretation. The Constitutional Court’s decision in Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC) is a cautionary tale that exposes the dangers that arise when the Court enters this specialised realm of the law and imposes constitutional interpretation without engaging with the principles of competition law.

The case concerned a dispute about whether a merger in the healthcare sector would lead to an increase in the price of healthcare. The Constitutional Court’s judgment emphasises the constitutional imperative to quell the harmful effects of the inequalities that loom over South Africa’s post-apartheid economy, but it is not legally sound in all respects. This note explores the weaknesses in the judgment under the following themes: the approach to jurisdiction that contradicts jurisprudence and untenably extends the Constitutional Court’s jurisdiction; the problematic assertion that precedent severely constrains the appellate powers of the Competition Appeal Court; and the Constitutional Court’s inconsistent appreciation of the specialised nature of competition law and its consequent failure to engage with the evidence.

This analysis concludes that this attempt to import constitutional rights into competition law, without adequately engaging with competition law itself, reveals an urgent need to re-examine the true scope of the Constitutional Court’s jurisdiction and its powers to adjudicate complex and highly specialised areas of the law.

Abstract

The court in Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022) ordered the cancellation of five deeds of transfer to restore the original owners as the registered owners of the property in question. The order was based on a finding that the sale in execution of the property two decades before was invalid because the creditor did not follow the correct judicial process. Because the transfer pursuant to the sale in execution was invalid, all subsequent transfers were invalid as well, with the result that the current registered owner was not the rightful owner. This note does not question the manner in which the court applied the substantive law regarding invalid transfers of property. In light of the negative nature of the deeds registry system, it is correct for a court to order the cancellation of a title deed that does not reflect the rightful owner. Instead, the note takes issue with the manner in which the court drew conclusions from a very unclear factual matrix based on almost no documentary or other evidence. The argument is made that a title deed (such as a deed of transfer) should be regarded as prima facie correct and should only be cancelled if the person who alleges that the deed is inaccurate can supply sufficient evidence to prove that person’s allegation on a balance of probabilities. The registered owner should not have to disprove mere allegations of inaccuracy or prove that all previous transfers were valid.

Abstract

Women-owned businesses (“WOBs”) obtain less than 6% of public procurement contracts, despite accounting for close to 30% of registered businesses in South Africa. This contribution examines the reasons for the limited participation of WOBs in the public procurement system and finds that there are policy, legal, institutional and cultural barriers to the participation of WOBs in public procurement in South Africa. Policy barriers arise out of the misalignment between economic, gender and procurement policies and legal barriers arise from the previous limited and currently uncertain approach to preferential procurement legislation. However, the contribution finds that institutional, cultural and structural barriers pose even more of a risk to women’s participation in public procurement in South Africa. These institutional barriers include a reticence to prioritise WOBs by public agencies in the absence of an explicit mandate to do so, the reluctance to favour new market entrants to avoid contract failures and a culturally biased approach to WOBs by public agencies. Other barriers include the gendered impact of procurement corruption; the gendered impact of Covid-19, which terminated public contracts in sectors serviced by WOBs; and the complexity and opacity of the procurement process. The contribution finds that the historical lack of attention to women’s participation in procurement, and the lack of disaggregated data on preferential and gendered contracts, have made it difficult to understand the extent of women’s participation and the nature of required legal and policy interventions. This contribution assesses the barriers to the participation of WOBs in public procurement and makes recommendations aimed at addressing some of these barriers.

Abstract

Medico-legal claims in the South African health sector have noticeably increased since approximately 2007. This is significant as money spent from the public health budget on these claims is money which ought to have been spent on other healthcare priorities. As such, it becomes vital to understand why these claims have shown such drastic increases and what could be done to stem the rising tide.
This article addresses two main themes: first, it explains the various causes for increased claims related to the medical field and broader possible solutions to this problem; secondly, mediation is proffered as a viable means of negating the negative impact of these claims on the health sector and budget.
The conventional method of resolving medico-legal disputes is through adversarial court litigation. Litigation is expensive, time-consuming, complex and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Conventional civil dispute resolution exhibits little appreciation for, or consideration of, alternative and better-suited dispute resolution techniques and mechanisms. In this article we argue that mediation offers a viable alternative to resolve medico-legal issues. In essence, mediation is third-party (mediator) facilitated dispute resolution through negotiation. The process is less expensive, less time-consuming, uncomplicated, and party-oriented. In addition, it has the potential to enhance access to justice. However, to achieve this will require a change in legal culture.