Beyond punishment: Context and correctional supervision as a restorative sentence — An analysis of S v Mphahlele

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

Note

Beyond punishment: Context and correctional supervision as a restorative sentence — An analysis of S v Mphahlele

Author: Amanda Spies

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Public Law, Nelson Mandela University
Source: South African Law Journal, Volume 142 Issue 3, p. 439-454
https://doi.org/10.47348/SALJ/v142/i3a1

Abstract

This note examines correctional supervision as a sentencing option for serious crimes by analysing the Mphahlele judgment, and explores whether correctional supervision incorporates (or should incorporate) elements of restorative justice. It critically assesses whether such an approach risks distorting traditional restorative justice principles and underscores the need to engage with justice as a transformative process — one that shifts the focus from individualised notions of crime and punishment to the structural inequalities that underpin criminal behaviour. Additionally, the note adopts a feminist perspective to interrogate the role of gender in sentencing, considering in particular whether identifying the accused as a mother and primary caregiver in Mphahlele reinforces harmful stereotypes.

Thorndike’s law of effect and its influence on legal practitioners’ ethics: Lembore v Minister of Home Affairs

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

Note

Thorndike’s law of effect and its influence on legal practitioners’ ethics: Lembore v Minister of Home Affairs

Authors: Michele van Eck & Helen Kruuse

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg; Associate Professor, Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 142 Issue 3, p. 455-466
https://doi.org/10.47348/SALJ/v142/i3a2

Abstract

The Lembore v Minister of Home Affairs case highlights the unethical practice of recycling affidavits in court applications, a practice that the courts repeatedly condemn. Legal practitioners continue this misconduct despite clear judicial instructions not to do so. To understand this persistence, we turn to behavioural theory by examining Thorndike’s law of effect. By doing so, we suggest that sanctions alone are insufficient to curb unethical conduct; instead, a dual approach is needed. This dual approach comprises external adjustments that include eliminating situational opportunities, enhancing regulatory oversight, and ensuring swift enforcement of sanctions. It also includes internal adjustments which require a mindset shift, where legal practitioners prioritise justice over profit. Without these reforms, unethical practices will persist, and cases such as Lembore will continue to emerge. Breaking this cycle demands both systemic change and professional introspection to restore ethical integrity in the legal profession.

The use of a trade mark as a trade mark in an expressive-work context: The Jack Daniel’s judgment

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

Note

The use of a trade mark as a trade mark in an expressive-work context: The Jack Daniel’s judgment

Author: Wim Alberts

ISSN: 1996-2177
Affiliations: Professor of Mercantile Law, University of Johannesburg
Source: South African Law Journal, Volume 142 Issue 3, p. 467-481
https://doi.org/10.47348/SALJ/v142/i3a3

Abstract

This contribution deals primarily with the issue of the use of a trade mark as a trade mark — in other words, use to indicate origin. The focus is the United States Supreme Court’s Jack Daniel’s decision, which involved a dog toy as a parody of a famous whisky bottle. Before the Jack Daniel’s decision, the previous Rogers ruling had found that an expressive work had First Amendment protection if its use of the mark was artistically relevant and not misleading. The Supreme Court, however, decided that if a trade mark is used as a trade mark, then the Rogers judgment did not apply. Then the parody is subject to a likelihood-of-confusion analysis. There is no automatic protection for use of a trade mark with an expressive message, for a trade mark often has an expressive message, and too much emphasis on the message will leave the door wide open. Where a particular form of use has an expressive message in addition to use as a trade mark, liability could still follow. In cases of conventional infringement, parody is but one of various factors to be considered, along with the similarity of the goods, the proximity of the marks and the marketing channels. No liability would follow where there is an expressive message only, and not trade mark use, such as with the BARBIE song.

A curate’s egg: A misunderstanding of financial assistance in section 45 of the Companies Act

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

Note

A curate’s egg: A misunderstanding of financial assistance in section 45 of the Companies Act

Author: Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Professor, Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 3, p. 482-497
https://doi.org/10.47348/SALJ/v142/i3a4

Abstract

In Constantia Insurance Co Ltd v Master, Johannesburg High Court 2023 (5) SA 88 (SCA), the Supreme Court of Appeal considered the prohibition against giving financial assistance to directors and related companies, as provided for in s 45 of the Companies Act 71 of 2008. The term ‘financial assistance’ is at the heart of s 45. Controversially, the Supreme Court of Appeal asserted that the list of three financial-assistance transactions referred to in s 45(1)(a) is exhaustive of the meaning of ‘financial assistance’. This note submits that by misconstruing the concept of ‘financial assistance’, the Constantia judgment imprudently truncates the scope of the prohibition in s 45 and frustrates the fundamentally important objectives that it is designed to achieve. Serious practical ramifications may be expected to arise. The Constantia judgment does, however, sound a timely warning to innocent third parties who deal with companies in transactions connected with the giving of financial assistance.

Reunifying administrative law: The Promotion of Administrative Justice Act as a source of requirements for the validity of administrative action

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

ARTICLE

Reunifying administrative law: The Promotion of Administrative Justice Act as a source of requirements for the validity of administrative action

Authors: Glenn Penfold & Cora Hoexter

ISSN: 1996-2177
Affiliations: Partner, Webber Wentzel; Visiting Adjunct Professor, School of Law, University of the Witwatersrand, Johannesburg; Part-time Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 142 Issue 3, p. 498-527
https://doi.org/10.47348/SALJ/v142/i3a5

Abstract

The scheme of s 33 of the Constitution of the Republic of South Africa, 1996 has been undermined by the courts’ treating the principle of legality, and not solely the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’), as a basis for the review of administrative action. This article argues that the key to the reunification of administrative law is to give effect to the proposition that PAJA, including s 6(2), reflects the requirements for the validity of administrative action. The logical consequence of this proposition is that where administrative action is the target, classical collateral challenge and self-review ought to be adjudicated based on PAJA’s grounds of invalidity. The same is true of internal review by a functionary or tribunal where the enabling legislation does not provide for more specific grounds of review. In the case of self-review and internal review, this direct approach would, however, require certain rulings of the Constitutional Court to be revisited. Failing that, a more indirect and thus less satisfactory solution would be for PAJA’s review grounds to be applied under the umbrella of legality review.