Common-law avoidance

Common-law avoidance

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

Common-law avoidance

Author: Leo Boonzaier

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 2, p. 213-256
https://doi.org/10.47348/SALJ/v141/i2a1

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Abstract

This article discusses an important trend in recent judgments of our appellate courts, which I call ‘common-law avoidance’. Rather than applying established sets of common-law principles, the courts have chosen to substitute them with other sets of norms of their own invention, usually sourced in the Constitution. This marks a departure from the status quo ante, in which it was accepted that the impact of the Constitution on private-law disputes was to be felt through the common law, rather than by displacing it. I discuss three cases that evidence this new pattern, spanning the three branches of the law of obligations: AB v Pridwin Preparatory School, which implicated the law of contract; Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality, involving delict; and Greater Tzaneen Municipality v Bravospan 252 CC, which raised an issue in the law of unjustified enrichment. I critically assess the trend exhibited in these cases, arguing that it is the result of (among other factors) the courts’ preference for the Constitution’s more familiar and discretionary standards, and of their increasing difficulties in meeting the demands of the common-law method.

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

Author: Denise Meyerson

ISSN: 1996-2177
Affiliations: Emeritus Professor of Law, Macquarie University
Source: South African Law Journal, Volume 141 Issue 2, p. 257-292
https://doi.org/10.47348/SALJ/v141/i2a2

Abstract

In this article, I examine the dignity-based test for unfair discrimination developed by the Constitutional Court of South Africa. First, I argue that the point of antidiscrimination rights is to protect equality. They seek to prevent a comparative wrong — wrongful disparities in treatment. Violating dignity appears, however, to be a non-comparative wrong — one that is independent of the treatment extended to others. Tying unfair discrimination to dignity violations therefore seems to miss the comparative concerns that underlie anti-discrimination rights. Adding that everyone is ‘equally’ entitled to be treated with dignity does not solve the problem. I respond to this apparent difficulty with the court’s approach by suggesting that the court is best understood as concerned with a distinctive kind of dignity — status dignity. I also argue that there is an attractive conception of equality — relational equality — that explains why violations of status dignity are violations of equality. This interpretation provides the requisite egalitarian foundation for the court’s approach. Secondly, I address the criticism that a dignity-based understanding of substantive equality is too limited to address systemic inequalities. I suggest that an understanding based in status dignity is suitably robust and requires far-reaching reforms and restructuring of social practices.

The shareholder’s appraisal remedy under the Companies Act: How should the courts gauge ‘fair value’?

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

The shareholder’s appraisal remedy under the Companies Act: How should the courts gauge ‘fair value’?

Author: Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Professor of Law, Mercantile Law Department, University of South Africa
Source: South African Law Journal, Volume 141 Issue 2, p. 293-322
https://doi.org/10.47348/SALJ/v141/i2a3

Abstract

The appraisal remedy is the right of minority shareholders to demand that the company buy out their shares in cash, at a price reflecting their ‘fair value’, when they are aggrieved by certain triggering transactions that the majority shareholders have approved. The appraisal right is an American concept that was introduced into South African law when the Companies Act 71 of 2008 came into force. The most formidable challenge concerning the appraisal right is the meaning and interpretation of the key phrase ‘fair value’ and, coupled with this, the appropriate valuation methodology that the court ought to adopt when valuing the shares of dissenting minority shareholders. Two recent judgments of the High Court have considered these thorny issues for the first time. This article critically analyses the findings of the High Court in BNS Nominees (RF) (Pty) Ltd v Zeder Investments Ltd and BNS Nominees (RF) (Pty) Ltd v Arrowhead Properties Ltd, with a particular focus on the divergent approaches that the two cases adopt in gauging the ‘fair value’ of the dissenters’ shares and the judicial discretion to appoint an appraiser to value the shares. This is followed by a detailed discussion of the proper interpretation of the pivotal phrase ‘fair value’ in appraisal proceedings and of appraisal valuation methodology. This is done with reference to the legal position in comparable foreign jurisdictions such as the United States of America and Canada. Guidelines are also suggested for the South African courts to follow when gauging the ‘fair value’ of shares in appraisal cases.

The many shades of intolerability in the workplace

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

The many shades of intolerability in the workplace

Authors: Rochelle le Roux & Aisha Adam

ISSN: 1996-2177
Affiliations: Professor, Faculty of Law, University of Cape Town; Teaching and Research Assistant, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 2, p. 323-348
https://doi.org/10.47348/SALJ/v141/i2a4

Abstract

The notion of intolerability traverses several workplace decisions. However, its meaning in the law is far from linear, and its significance varies, particularly when considering three primary dismissal-related scenarios: the meaning of dismissal; the general threshold for dismissal (also in the case of first offences); and the barriers to reinstatement in the case of unfair dismissal. This article restates established principles concerning labour dispute resolution, particularly those relating to onus and review standards and the role of breach of trust in employment relations. Drawing on recent jurisprudence, the article revisits the assumed role of intolerability and explores its nuanced impact on decision-making processes. In particular, the article demonstrates how the burden of proof and applicable review standards in the case of each of these dismissal-related scenarios can transform an ostensibly neutral term into a kaleidoscope of shades and meaning, with far-reaching implications in the workplace.

Procedural justice as a feature of transformative substantive equality: Critical notes on Social Justice Coalition v Minister of Police (CC)

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

Procedural justice as a feature of transformative substantive equality: Critical notes on Social Justice Coalition v Minister of Police (CC)

Authors: Gideon Burnett Basson

ISSN: 1996-2177
Affiliations: Extraordinary Research Fellow, Department of Public Law, Stellenbosch University
Source: South African Law Journal, Volume 141 Issue 2, p. 349-390
https://doi.org/10.47348/SALJ/v141/i2a5

Abstract

The case of Social Justice Coalition v Minister of Police 2022 (10) BCLR 1267 (CC) is concerning. The litigants and the Constitutional Court sidestepped the innovative and transformative role that is envisaged for access to courts and judicial proceedings and that is required by a substantive conception of equality underlying impoverished peoples’ equality rights. This article argues that procedural justice was overlooked as a feature of transformative substantive equality to be applied in a claim relating to poverty-based discrimination. Procedural justice is vital, as impoverished people encounter pervasive economic, social, political and procedural barriers to accessing justice in various democratic forums, including courts. To introduce procedural justice as an indispensable feature of transformative substantive equality, I use the work of the global justice theorist, Nancy Fraser. Fraser’s work provides formidable insights into developing the existing constitutional framework to overcome the bracketing of the pervasive material and social inequalities that are characteristic of liberal rights claims. By focusing on courts and the procedurally innovative demands of equality proceedings, I argue that the judgment is a worrying illustration of the deepening of impoverished people’s democratic erasure. The judgment is procedurally formalistic, effectively absolving courts from their accountability function for redressing poverty and inequality.

A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

Authors: Julia Sloth-Nielsen & Brigitte Clark

ISSN: 1996-2177
Affiliations: Professor of Law, University of Huddersfield; Emeritus Professor, University of the Western Cape; Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University
Source: South African Law Journal, Volume 141 Issue 2, p. 391-414
https://doi.org/10.47348/SALJ/v141/i2a6

Abstract

This article examines the relationship between the role of the superior courts as upper guardians of minors and the constitutionally enshrined right of South African children to have their best interests considered paramount in any matter concerning them. The powerful procedural role of the superior courts in this regard is not subject to review or appeal, enabling the courts to intervene of their own accord on behalf of and to protect all children in their jurisdiction. The article examines whether this upper guardianship role has become superfluous and outdated in light of the constitutional requirement that courts consider the paramountcy of the child’s best interests as an independent right. The High Court’s upper guardianship role provides a more flexible legal basis for judicial intervention, as the case law reviewed in this article indicates. It is also supported by s 173 of the Constitution, which refers to the inherent powers of courts to protect and regulate their own process and to develop the common law, and by s 45(4) of the Children’s Act. Furthermore, the superior courts, as courts of record, enable the development of a system of precedent-based child law, providing judicial reasons for all decisions and justifying the retention of the common-law inherent jurisdiction of the High Court as the upper guardian of children. We conclude that there is a residual role for the continued existence of the powers of the superior courts to act as upper guardians of the children within their jurisdiction, the constitutional best-interests standard notwithstanding.