A Common-Law Presumption, Statutory Interpretation and Section 25(2) of the Constitution – A Tale of Three Fallacies. A Critical Analysis of the Constitutional Court’s Arun Judgment

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

A Common-Law Presumption, Statutory Interpretation and Section 25(2) of the Constitution – A Tale of Three Fallacies. A Critical Analysis of the Constitutional Court’s Arun Judgment

Authors E J Marais

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of Johannesburg
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 629 – 663

Abstract

In Arun Property Development (Pty) Ltd v Cape Town City the Constitutional Court had to rule on the meaning of s 28 of the Land Use Planning Ordinance (‘LUPO’). Moseneke DCJ held that this provision results in a vesting in the local authority of excess land unrelated to the normal needs of a planned development. Such vesting, so it was held, requires compensation under s 25(2) of the Constitution if the provision is to survive constitutional scrutiny. This finding is unconvincing. First, in light of the presumption that enacted laws are not unjust, inequitable and unreasonable, the court misconstrued the presumption that the legislature does not intend to expropriate property without compensation in the absence of express words or plain implication. In this regard the court also failed to take cognisance of the distinction between deprivation and expropriation, the doctrine of exactions, and the requirements for expropriation in our law. These considerations reveal that provisions like s 28 are not aimed at vesting excess land in a local authority, which would have dispensed with the dispute at hand. For purposes of deciding constitutional property disputes, courts should adhere to the established principles of constitutional property law, which inform the mentioned presumption, when interpreting legislation to establish whether it takes away property. Care should be taken against over-emphasising whether it is possible to read an implicit obligation to pay compensation into a statute if the statute (apparently) results in a taking away of property, since compensation merely follows upon a valid expropriation and is not a justification for it.

Genetically Modified Food and Feed in South Africa: Labelling and the Right to Disclosure of Information

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

Genetically Modified Food and Feed in South Africa: Labelling and the Right to Disclosure of Information

Authors Odile Juliette Lim Tung

ISSN: 1996-2177
Affiliations: Post-doctoral Fellow (Mandela Institute), School of Law, University of Witwatersrand
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 600 – 628

Abstract

When genetically modified organisms (‘GMOs’) were first commercialised in South Africa towards the end of the 1990s, there was no specific labelling obligation for such products apart from general requirements on labelling and advertising of foodstuffs. As from 2004, regulations on the labelling of food obtained through genetic modification came into existence when the Department of Health required GMOs to be labelled if they are significantly different from their traditional counterparts. The local labelling framework for GMOs evolved to a stricter regime under the Consumer Protection Act 68 of 2008. Although South Africa is currently one of the ten biggest world producers of genetically modified (‘GM’) crops, GM labels for food on the local market are scarce. This article examines the South African labelling regime for GM food and feed in the light of the right of consumers to disclosure of information under its consumer protection law. It seeks to shed light on the practical difficulties which may arise regarding the implementation of this labelling regime, and the need for the strengthening and monitoring of labelling obligations.

The Fundamental Principles of Justice and Legal Vacuums: The Regulatory Powers of National Sporting Bodies

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

The Fundamental Principles of Justice and Legal Vacuums: The Regulatory Powers of National Sporting Bodies

Authors Clive Plasket

ISSN: 1996-2177
Affiliations: Judge of the Eastern Cape Division of the High Court
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 569 – 599

Abstract

This article is concerned with whether private bodies that administer sporting codes on a national level exercise public or private power in the exercise of their bureaucratic or regulatory functions. This is an issue of importance as the answer to this question determines the nature and extent of the legal control over the actions of what have become powerful, often monopolistic, organisations able to take decisions that may have devastating effects on those who are subject to their powers. In order to explore this issue, it is necessary to begin with an historical overview of the development of these bodies and to discuss the place of sport in the wider society. Once that has been done, I shall address whether private bodies are able to exercise public power and, if so, in what circumstances; how the courts have traditionally dealt with sporting bodies and their exercises of power; and, finally, whether that approach still holds good in the context of the legislative and socio-political framework within which sport is regulated in South Africa.

Commercial Certainty and Constitutionalism: Are they Compatible?

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

Commercial Certainty and Constitutionalism: Are they Compatible?

Authors Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 545 – 568

Abstract

The need for reasonable commercial certainty about the content of commercial law is central to the operation of the economic system of both South Africa and the world. Without it the outcome of commercial transactions becomes speculative and this is a disincentive to trade. The article explores a concern that the jurisprudence of the Constitutional Court has introduced a level of uncertainty into aspects of the law of contract and commercial law generally, and warns that the effect of such uncertainty will be to drive commercial litigation away from the courts into arbitral forums that are seen as more predictable in their outcome. This is bad for the development of commercial law and ultimately excludes the constitutional development of the common law. The author contends that the application of constitutional norms in the context of commercial law does not need to generate uncertainty and suggests how the Constitutional Court can dispel this impression.

Deriving the Ratio of an Over-Determined Judgment: The Law After Turnbull-Jackson v Hibiscus Coast Municipality

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

Deriving the Ratio of an Over-Determined Judgment: The Law After Turnbull-Jackson v Hibiscus Coast Municipality

Authors Piet Olivier

ISSN: 1996-2177
Affiliations: Researcher, Max Planck Institute for Comparative and International Private Law
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 522 – 544

Abstract

The traditional South African statement of the test for whether a judge-made rule is a ratio decidendi is from Pretoria City Council v Levinson. Under this test, a rule can only be a ratio if it is a conditio sine qua non for the outcome of the judgment that endorsed it. But when this test is applied to a judgment that endorses more than one rule, each of which is sufficient for the outcome (what this article calls an ‘overdetermined judgment’), that judgment has no ratio decidendi. In the recent case of Turnbull-Jackson v Hibiscus Coast Municipality, the Constitutional Court held that the Levinson test did not apply to rules in overdetermined judgments and held that it should instead be asked whether the relevant rule is ‘central’ to the judgment. This article argues that the centrality standard amounts to Wright’s ‘necessary element of a sufficient set’ (or ‘NESS’) test, applied to legal reasoning rather than causation. Thus, after Turnbull-Jackson, a judge-made rule is a ratio decidendi if, among other things, it is a necessary element of a set of logical conditions, actually endorsed by the court, that is sufficient to produce the outcome.