ISSN: 1996-2193
Affiliations: University of the Free State
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 493 – 495
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ISSN: 1996-2193
Affiliations: Lecturer, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 471 – 492
In recent years, exercising the right to strike and other conduct in contemplation or in furtherance of a strike has often caused havoc, with participants engaging in violent acts resulting in damage to property and the intimidation of other people. Like all the rights in the Bill of Rights, the right to strike is not absolute, and can be limited in terms of section 36 of the Constitution. In terms of section 36 of the Constitution, the limitation of the right to strike can take place in terms of laws of general application. Examples of laws of general application discussed in this article are the Regulation of Gatherings Act 205 of 1993 ("RGA") and the Labour Relations Act 66 of 1996 ("LRA"). The article submits that limiting the right to strike, if a strike is violent, could serve the legitimate purpose of maintaining peace and of creating a just society based on human dignity and freedom. If a protected strike degenerates into violence, and, depending on the degree of violence, the Labour Court can be approached to declare the strike unprotected. The immunity from civil prosecution could be lifted, paving the way for the union and its members to be charged with civil action. The LRA provides victims of violent strikes with remedies such as an interdict, just and equitable compensation, and dismissal where the employer is also affected.
ISSN: 1996-2193
Affiliations: Head of Department: Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 453 – 470
Under South Africa’s tax laws, trusts are statutory persons imbued with legal personality. As such, a trust has the capacity to bear the duty to pay tax. In addition, it is entitled, as a taxpayer, to such statutory rights as may be conferred by a tax statute. In its capacity as a taxpayer, a trust is subject to the Tax Administration Act 28 of 2011 ("TAA") which confers, on the South African Revenue Service ("SARS"), wide powers to conduct an investigation, audit, review, inspection, search and seizure in relation to any taxpayer, including a trust. The exercise of its administrative powers places SARS and its officials on a collision course with a taxpayer’s rights. This article considers whether a trust, as a taxpayer, is entitled to the fundamental rights entrenched in the Bill of Rights and concludes that it is so entitled.
ISSN: 1996-2193
Affiliations: Professor of Law, University of the Witwatersrand; Lecturer in Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 430 – 452
Country Cloud Trading CC v MEC, Department of Infrastructure Development ("Country Cloud (CC)") is a significant case in so far as it concerns the intersection between contracts and a delict, which moreover involves the conduct of a state entity. In this article, we focus first on the contracts by scrutinising the CC’s judgment from a contractual perspective. Thereafter, we examine the court’s approach to the potential delict in the form of an intentional interference with a contractual relationship. In the course of doing so, we also reflect on the precise interplay between contract and delict in this particular scenario and argue that it does not hinder an expanded appreciation of what constitutes an intentional interference with a contractual relationship causing pure (relational) economic loss that gives rise to a delictual remedy. Rather it is in keeping with our law’s "generalising approach" to delicts. In the end, we contend that Country Cloud ought to have had a remedy against the Department both in terms of the law of contract as well as the law of delict. Unfortunately, the continued lack of legal clarity on what concurrence actually entails caused considerable confusion in the judgment which ultimately left Country Cloud without recourse.
ISSN: 1996-2193
Affiliations: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 420 – 429
This discussion of Macassar Land Claims Committee v Maccsand CC scrutinises the SCA’s attempt at achieving transformation in respect of surface and subsurface rights by weighing up rights conferred and/or protected in terms of the MPRDA and the Restitution Act. The note considers the SCA’s ruling in respect of three questions: (i) the LCC’s power to order acquisition/expropriation; (ii) the LCC’s power to adjust a right of commonage to an alternative form of title when making a restitution order; and (iii) the interplay between a claim for the restitution of landownership and an existing mining right. The assessment in the case note focuses on a consideration of the theoretical and practical relevance of weighing up rights under a new, transformed system of law. The SCA emphasised that both the MPRDA and the Restitution Act are products of a democratic legislature that aim to redress past discrimination; and that resolving potential clashing of rights protected by or conferred in terms of these statutes must take into account the current legislative context. The SCA’s preferred interpretation does not acknowledge the link between past discrimination and current, ongoing disadvantage. Moreover, the SCA confirmed that the right to mine is independent of surface ownership, and that it can be created only in terms of the MPRDA. In doing so, it clarified some important theoretical issues in a measured and careful manner. However, the practical effect of the judgment on the community affected also needs to be acknowledged. The invasiveness of sand-mining enterprises may mean that the redress available to a community such as the one in this matter could be nothing but a nominal acknowledgement of the right to be redressed. There may be practically no financial value attached to such a right.
ISSN: 1996-2193
Affiliations: Distinguished Professor of Private law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 379 – 419
South African courts generally support the notion that good faith is an underlying value of the law of contract, as opposed to a rule or standard that could be relied on directly to promote fairness. However, some commentators have criticised this approach and pointed out that the private law codes of modern civil-law systems contain general clauses or rules to the effect that parties must act according to good faith. The contribution focuses on arguably the most prominent of these codified systems, namely German law, and seeks to determine whether its experiences with the practical application of a good faith clause do indeed suggest that South African law will benefit from according a more prominent status to good faith. After examining how German law narrowly defines good faith, and how the good faith clause fits in the broader context of the Constitution and the German Civil Code, it is shown how the clause fulfils three main functions. These are to "supplement" contractual duties, to "limit" parties in the way they exercise contractual rights, and to "correct" or modify contractual terms. This threefold division of basic functions is adopted as a structure within which a broad range of rules of South African law can be located. This comparative analysis enables a clearer understanding of how these rules of South African law currently give practical effect to good faith as value, or have the potential to do so in future. The conclusion is reached that it is not self-evident that our courts must elevate good faith to a general standard or rule in order to promote greater contractual fairness.