Notes: The legitimacy of the South African Consumer Goods and Services Ombud’s Code of Conduct: An analysis of Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Notes: The legitimacy of the South African Consumer Goods and Services Ombud’s Code of Conduct: An analysis of Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd

Author: Tshepiso Scott & Obakeng van Dyk

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria; Independent Researcher
Source: South African Law Journal, Volume 139 Issue 2, p. 259-273
https://doi.org/10.47348/SALJ/v139/i2a1

Abstract

Alternative dispute resolution is one of the mechanisms envisaged by the Consumer  Protection Act 68 of 2008 to provide consumers with access to cost-effective and  speedy redress of consumer disputes. Accredited industry ombuds are one of the fora  that give effect to this purpose. However, industry participants are not always willing  participants, and may wish to challenge the legitimacy of such fora, particularly where  the relevant forum is funded by these industry participants. This makes it challenging  to give effect to the provisions of any applicable codes of conduct, and also frustrates the  consumer’s pursuit for redress. These issues came to the fore in Consumer Goods  and Services Ombud NPC v Voltex (Pty) Ltd [2021] ZAGPPHC 309.  In this matter, the Consumer Goods and Services Ombud sought a declaratory order  from the court, confirming that its code of conduct was legitimate. The judgment is  significant as it has an impact on the enforcement of consumer rights by this ombud,  and has wider implications for other current and future accredited industry ombuds. 

Notes: Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Notes: Introducing feminist legal theory as a basis for South African judicial jurisprudence: Insights from S v Tshabalala

Author: Rorisang Matlala

ISSN: 1996-2177
Affiliations: Junior Lecturer in Law, North-West University
Source: South African Law Journal, Volume 139 Issue 2, p. 274-285
https://doi.org/10.47348/SALJ/v139/i2a2

Abstract

In S v Tshabalala, the Constitutional Court considered an appeal about whether  accused persons who were present at a rape scene, but who did not participate in the  crime and who neither aided nor abetted the perpetrators, could be found guilty of  rape. The court decided this question in the affirmative by developing the commonlaw  doctrine of common purpose and extending its application to rape cases. The court  said that it did so to remove obstacles caused by patriarchal elements of the common  law found in criminal law. The most interesting aspect of the judgment is that the  court used feminism as a starting point for understanding the plight of women in rape  cases. It affirmed its solidarity with women facing sexual violence and introduced  feminist legal theory as a viable jurisprudential consideration in the adjudication of  sexual crimes. This note considers the judgment and its implications for South Africa. 

Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Notes: Commodus usus, exclusive trade rights and public policy in lease: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd

Author: Anthea-lee September-Van Huffel

ISSN: 1996-2177
Affiliations: Lecturer, University of the Free State
Source: South African Law Journal, Volume 139 Issue 2, p. 286-299
https://doi.org/10.47348/SALJ/v139/i2a3

Abstract

In Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC)  the Constitutional Court found that the personal right of exclusive trade in the lease  contract was contrary to public policy and not worthy of protection. To do so, the court  relied on the ‘competition principle’ — that the competitor who delivers the best or  fairest (most reasonable) performance must achieve victory, while the one rendering  the weakest (worst) performance must suffer defeat. The court was of the view that,  as a general proposition, third parties have no legal duty not to infringe contractually  derived exclusive rights to trade. According to the majority, exclusive trading rights  make the competitive field uneven. The court emphasised that the boni mores must be  understood in terms of the values of the Constitution, and that the values contained  in the Bill of Rights are a crucial tool in the development of the common law.  Although the majority judgment focused on the delict of unlawful third-party  interference in a contractual relationship and the nature of interdicts, the judgment  relates also to the question of the personal right to commodus usus in a lease contract,  and the remedies available to vindicate this right. The intersection of these issues is  investigated in this note. 

‘I beg to differ’: Are our courts too agreeable?

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

‘I beg to differ’: Are our courts too agreeable?

Author: Owen Rogers

ISSN: 1996-2177
Affiliations: Judge of the High Court of South Africa, Western Cape Division; Judge of the Competition Appeal Court of South Africa
Source: South African Law Journal, Volume 139 Issue 2, p. 300-339
https://doi.org/10.47348/SALJ/v139/i2a4

Abstract

If dissenting judgments perform a valuable function in the administration of justice,  too little dissent may indicate that the administration of justice is not reaping the  benefits of dissent. South Africa belongs to the common-law tradition, which has  always allowed dissenting judgments. The civil-law system traditionally did not,  and this is still the position in many countries. In the modern era, considerations of  transparency and accountability favour the disclosure and publication of dissenting  judgments. Although they can play a role in the development of the law, their most  valuable function is to improve the quality of judicial output by requiring majority  judgments to confront the dissenting judgments’ reasoning. Factors which may affect  the extent of dissent in appellate courts include case complexity and control over  rolls; panel sizes; judicial diversity, personality and turnover; court leadership;  research resources; modes of judicial interaction; and protocols on the timeliness of  judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court  of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia,  Canada and the United States, suggest that there is less dissent in our intermediate  appellate courts than might be expected. Changes in work procedures could yield a  healthier pattern. 

The rights of municipalities under section 118 of the Local Government: Municipal Systems Act in the case of land expropriation

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

The rights of municipalities under section 118 of the Local Government: Municipal Systems Act in the case of land expropriation

Author: Chantelle Gladwin-Wood & Reghard Brits

ISSN: 1996-2177
Affiliations: Partner, Schindlers Attorneys; LLD candidate, Department of Mercantile Law, University of Pretoria; Associate Professor, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 139 Issue 2, p. 340-364
https://doi.org/10.47348/SALJ/v139/i2a5

Abstract

This article analyses the impact of s 118 of the Local Government: Municipal Systems  Act 32 of 2000 on the rights of a municipality when land in its jurisdiction is expropriated.  First, the municipality’s right under s 118(1) to embargo the transfer of a  property, until it has been paid all amounts owing for the two years prior to transfer,  might be undermined by a literal interpretation of the provisions of the Expropriation  Act 63 of 1975 in so far as the Act provides that the expropriating authority ‘may’  (not must) pay the amounts due to the municipality concerned. We argue that a  broader and more purposeful interpretation of not only the Expropriation Act but also  the Expropriation Bill B23-2020 ought to be adopted, in order to assist municipalities  in collecting debts owed to them. Secondly, we argue that a municipality’s security  right under s 118(3) constitutes an unregistered right in land and, although the right is  not protected under the current Expropriation Act, it will be protected if the provisions  of the Expropriation Bill come into force, with the result that even if nil compensation  is payable to the expropriated owner, the expropriating authority ought to compensate  the municipality. 

Clearing the CRISPR patent landscape: Towards a solution for South Africa

Clearing the CRISPR patent landscape: Towards a solution for South Africa

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Clearing the CRISPR patent landscape: Towards a solution for South Africa

Authors: Meshandren Naidoo & Donrich W Thaldar

ISSN: 1996-2177
Affiliations: Doctoral Fellow, University of KwaZulu-Natal; Associate Professor, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 2, p. 365-406
https://doi.org/10.47348/SALJ/v139/i2a6

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Abstract

Patenting activity regarding new CRISPR (Clustered Regularly Interspaced Short  Palindromic Repeats) genome editing technology has mushroomed to create a vast  and complex patent landscape. However, because of South Africa’s current depository  patent system, the South African CRISPR patent landscape contains foundational  patents with overlapping claims, as highlighted by the ongoing litigation in the United  States between the Broad Institute and the University of California. Both these  parties were granted four patents in South Africa. Also, the South African landscape  may contain multiple low-quality patents that have the potential to obstruct scientific  research in South Africa. The solution in the South African context is threefold, but  requires that the Intellectual Property Policy of South Africa: Phase I must first be  operationalised to: (a) prioritise CRISPR patent applications for formal examination  and substantive search and examination; (b) provide sufficient resources for extracurial  patent opposition proceedings regarding all CRISPR patent applications and  granted patents; and (c) create certainty by developing an obviousness standard with  well-defined parameters. Although CRISPR is not yet advanced enough to fall  within the class of life-saving technologies in the short-term, CRISPR may become  critical in the treatment and eradication of priority diseases such as HIV/AIDS and  tuberculosis. Accordingly, prioritising CRISPR-related patent applications serves the  public interest in access to healthcare. By using (a), (b) and (c) in tandem, a triple  layer of mechanisms will counter the problems of overlapping claims and of lowquality  patents, and hence remove these potential obstructions to CRISPR research  in South Africa.