Problems relating to the formation of online contracts: A South African perspective

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Problems relating to the formation of online contracts: A South African perspective

Author: Sanmarie van Deventer

ISSN: 1996-2177
Affiliations: BCom LLB LLM LLD (Stellenbosch)
Source: South African Law Journal, Volume 138 Issue 2, p. 221-259
https://doi.org/10.47348/SALJ/v138/i2a1

Abstract

This article analyses the formation of online contracts, or standard-form contracts appearing in electronic form, in the South African context. The unique characteristics of online contracts — such as their length and ubiquity — render it more difficult to establish assent to these contracts than in the case of traditional standard-form contracts. In general, it is simply not reasonable to expect of consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Furthermore, evidence shows that consumers do not perceive online contracts in the same manner as their paper-based equivalent. The article investigates whether contractual liability to online contracts can be established in terms of the reliance theory, and considers how and when notice of contractual terms should be given. It further argues that the unexpected terms doctrine potentially provides important protection to online consumers’ reasonable expectations, and may encourage suppliers to identify surprising terms and bring them to the attention of consumers. This approach requires of courts to recognise that it may be quite reasonable for consumers to decide not to read online contracts, and that consumers’ mistakes about surprising terms in online contracts must almost always be reasonable.

Time for Cinderella to go to the ball: Reflections on the right to freedom of scientific research

Time for Cinderella to go to the ball: Reflections on the right to freedom of scientific research

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Time for Cinderella to go to the ball: Reflections on the right to freedom of scientific research

Authors: Donrich W Thaldar & Michaela Steytler

ISSN: 1996-2177
Affiliations: School of Law, University of KwaZulu-Natal; School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 138 Issue 2, p. 260-288
https://doi.org/10.47348/SALJ/v138/i2a2

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Abstract

Despite the fact that the Constitution explicitly protects the right to freedom of scientific research, this right features neither in the preamble to any legislation, nor in any reported case law. If the right to freedom of scientific research remains in obscurity, South Africa could slip into totalitarian control of the scientific enterprise, to the detriment not only of scientists, but also of society in general. The right to freedom of scientific research should play a more central role in policy-making. This is not only because it is an enumerated constitutional right, but also because it is important in its own right, as it serves purposes that are at the core of our constitutional value-system: promoting individual autonomy, facilitating the search for truth, and supporting democracy. The right to freedom of scientific research is unique in protecting not only the exchange of scientific thoughts and information, but also in particular the physical activities entailed by scientific research, such as performing experiments. The notion that government should somehow seek to regulate every new scientific development is erroneous, as freedom should be the default position in science-related policy, and should only be limited by regulation if, and to the extent that, it is constitutionally justified.

Reconceptualising redistribution of land in South Africa: A possible legal framework

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Reconceptualising redistribution of land in South Africa: A possible legal framework

Authors: Tina Kotzé & Juanita M Pienaar

ISSN: 1996-2177
Affiliations: BA LLB LLM LLD (Stellenbosch); BJuris LLM LLD (Potch)
Source: South African Law Journal, Volume 138 Issue 2, p. 289-324
https://doi.org/10.47348/SALJ/v138/i2a3

Abstract

After 27 years the unequal distribution of land in South Africa remains prevalent, despite a constitutional mandate, and corresponding legislative measures and policy documents. In light of the government’s dismal track record in achieving any meaning ful redistribution, this article suggests a possible overarching legal framework within which land redistribution in South Africa could be approached and, ultimately, monitored and adjusted as needed. This requires, from the outset, a contextualisation of relevant concepts of ‘access to land’ and ‘redistribution’ respectively. Thereafter, the article proposes seven different phases, comprising a coherent and broad legal framework for land redistribution. Where relevant, we consider recent developments, including the 2020 Beneficiary Policy and the 2019 Land Reform Report. While all land, urban as well as rural, is integral in the redistribution endeavour, the article’s main emphasis is on agricultural land: reference is made to urban and peri-urban land only where appropriate. The article concludes with an Annexure that contains a schematic overview of the suggested different phases, and the corresponding institutions we propose ought to be responsible for, or involved in administering, the respective phases.

Forfeiting proceeds: Civil forfeiture, the right to property and the Constitution

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Forfeiting proceeds: Civil forfeiture, the right to property and the Constitution

Author: Michael Rhimes

ISSN: 1996-2177
Affiliations: LLB (Hons) (Queen Mary) BCL (Oxon)
Source: South African Law Journal, Volume 138 Issue 2, p. 325-368
https://doi.org/10.47348/SALJ/v138/i2a4

Abstract

Civil forfeiture powers are a useful tool in the fight against crime — particularly the organised kind. They deter such crime by removing the proceeds from wrongdoers, thereby diminishing the incentives for offending. However, as the courts in South Africa have long recognised, the forfeiture powers must be calibrated to ensure a fair balance between the public interest in crime deterrence and private interests such as the right to property. Achieving this balance when forfeiting proceeds is a vexed question which this article seeks to explore. It argues that while the forfeiture of proceeds will usually be justified by the legitimate aim of crime deterrence, forfeiture should nevertheless be subject to a proportionality check. This check is arguably required by the property clause in s 25(1) of the Constitution of the Republic of South Africa, 1996, and is justified by the need to constrain the breadth of the powers under the Prevention of Organised Crime Act. It then explores what situations might justify refusing forfeiture of proceeds, and how the proportionality check should be applied.

Transforming age-related capacity for fault in delict

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Transforming age-related capacity for fault in delict

Author: Emile Zitzke

ISSN: 1996-2177
Affiliations: LLB LLD (Pretoria)
Source: South African Law Journal, Volume 138 Issue 2, p. 369-398
https://doi.org/10.47348/SALJ/v138/i2a5

Abstract

For a wrongdoer to have ‘capacity for fault’ in the South African law of delict, it is widely accepted that the wrongdoer must possess the ability to distinguish between right and wrong (cognition) and the ability to act in accordance with that appreciation (conation). One factor that affects a person’s capacity for fault is youthfulness. There are two schools of thought on age-related capacity for fault in the South African law of delict. On the one hand, Van der Walt & Midgley are of the view that the common law stipulates the rules regulating this issue. In terms of this paradigm, the minimum age for capacity for fault is seven years. On the other hand, Neethling & Potgieter were, until very recently, of the view that the Child Justice Act should apply to the determination of a child’s capacity for fault. At the time of Neethling & Potgieter’s earlier writing, the minimum age for capacity for fault under the Act was ten years. Since June 2020, this age has been raised to twelve. In this article, the tension between these two schools of thought is analysed, and an attempt is made to resolve the tension through a proposal for a transformative, constitutional development of the common law of delict.

Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

Author: Lize Mills

ISSN: 1996-2177
Affiliations: BA LLB LLM LLD (Stellenbosch)
Source: South African Law Journal, Volume 138 Issue 2, p. 399-424
https://doi.org/10.47348/SALJ/v138/i2a6

Abstract

Two recent decisions by English courts have established that the man who gave birth to his child should be registered as the ‘mother’ of that child. The courts found that, despite the fact that the Gender Recognition Act provides that a person who had changed sex and received ‘a full gender recognition certificate’ is considered ‘for all purposes’ to be a person of ‘the acquired gender’, this person still has to be registered on his child’s birth certificate as belonging to the opposite sex. This article describes and evaluates the reasons for these decisions, and compares the English position to those of a number of jurisdictions, including that of South Africa. It argues that the legal context in this country provides for a more pragmatic and equitable approach to the rights of both trans parents and their children.