Possessory protection under the mandament van spolie for the lessee against the lessor in a case involving the remote deactivation of movables

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Possessory protection under the mandament van spolie for the lessee against the lessor in a case involving the remote deactivation of movables

Author: E J Marais

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 142 Issue 2, p. 311-346
https://doi.org/10.47348/SALJ/v142/i2a6

Abstract

In Tenox Management Consulting Inc v Scania South Africa (Pty) Ltd [2022] ZAGPJHC 737, the lessee of trucks refused to return them to the lessor after the lessee committed a breach of contract. The lessor then remotely deactivated the trucks without a court order, as per its agreement with the lessee in the event of a breach. The lessee subsequently instituted the mandament van spolie (‘mandament’) against the lessor to restore the trucks to the lessee in an operational state. The court ruled in favour of the lessee by holding that the lessor’s conduct amounted to unlawful spoliation. The decision raises several points worthy of investigation, namely: the type of ‘possession’ needed for the mandament (specifically whether the lessee has possession for purposes of this remedy); the legal-political function of possession (which concerns the rationale for possessory protection under the mandament); whether parties may agree that one could spoliate or dispossess the other (via remote deactivation) in an extra-judicial manner; whether the prohibition of co-possession applies in our law and whether it excludes the mandament as between lessees and lessors; the difference between lease and agency; and, finally, the intention needed for the mandament. A doctrinal and constitutional analysis reveals that the decision is, for the most part, to be welcomed.

An analysis of the failure of a company to prevent bribery under the Prevention and Combating of Corrupt Activities Act

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

An analysis of the failure of a company to prevent bribery under the Prevention and Combating of Corrupt Activities Act

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 2, p. 347-374
https://doi.org/10.47348/SALJ/v142/i2a7

Abstract

An innovative provision of the Prevention and Combating of Corrupt Activities Act 12 of 2004 is the recently introduced s 34A. This section establishes a new offence: members of the private sector and incorporated state-owned entities can be held liable for failing to prevent bribery by an associated person. To escape liability, the entity must prove that it had adequate procedures in place to prevent bribery. This article examines the interpretation, application and enforcement of s 34A. The article compares s 34A to s 7 of the UK Bribery Act, 2010, on which it is modelled, and makes recommendations for interpreting, applying and enforcing s 34A. The article argues that s 34A holds immense potential to curb the distressingly high levels of bribery in South Africa, but that its effectiveness and impact will depend on how it is enforced and on the collective commitment to upholding its principles.

The Road Accident Fund’s ‘without prejudice’ settlement offers on general damages: Admissible admissions or inadmissible negotiation statements?

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

The Road Accident Fund’s ‘without prejudice’ settlement offers on general damages: Admissible admissions or inadmissible negotiation statements?

Author: Ferdinand Heinrich Hermann Kehrhahn

ISSN: 1996-2177
Affiliations: Lecturer, Department of Procedural Law, University of Pretoria
Source: South African Law Journal, Volume 142 Issue 2, p. 375-401
https://doi.org/10.47348/SALJ/v142/i2a8

Abstract

Under s 17(1), read with s 17(1A) of the Road Accident Fund Act 56 of 1996 and its Regulations, the Road Accident Fund (‘RAF’) is liable for general damages only if the RAF is satisfied that a medical practitioner has correctly assessed the injuries of a motor-accident victim as serious. The RAF’s satisfaction with the serious-injury assessment is a jurisdictional fact that must be alleged and proved if a court assumes jurisdiction to make a general-damages (non-pecuniary) award. One way to prove that the RAF has accepted the victim’s injuries as serious is by presenting evidence of the RAF’s admissions contained in extra-curial statements. However, such extra-curial statements are generally inadmissible when they are made during bona fide settlement negotiations. This article considers the without-prejudice settlement negotiation inadmissibility rule and its exceptions. It critically considers the recent judgments of Keagan, Ntsembi and Paulsen, on the one hand, where the courts held that the RAF’s settlement offers on general damages made during bona fide settlement negotiations were inadmissible evidence, and the judgments of Olivier and Van Tonder, on the other hand, where the courts held that the RAF’s settlement offer was admissible evidence. It is argued the RAF’s offer to settle general damages was correctly held in Olivier and Van Tonder to be a tacit acceptance by the RAF that the victim’s injuries were serious and that such offers are admissible evidence as an exception to the without-prejudice inadmissibility rule, thereby obviating the need to establish the required jurisdictional fact into evidence.

Price reduction as a generalised remedy in the law of contract

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Price reduction as a generalised remedy in the law of contract

Author: Tjakie Naude

ISSN: 1996-2177
Affiliations: BA LLB LLD (Stellenbosch)
Source: South African Law Journal, Volume 142 Issue 2, p. 402-438
https://doi.org/10.47348/SALJ/v142/i2a9

Abstract

Price reduction should be recognised as a generalised remedy for breach of contract. Price reduction is already recognised in sale and lease contracts. The Consumer Protection Act 68 of 2008 also provides for it in respect of services. It should also be available in other contract types (subject to special regulation for contract types where there is structural inequality between the parties). For example, price reduction is necessary in contracts to do a piece of work (locatio conductio operis). The costs order and court’s statement on costs orders in BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) demonstrate that the court’s dicta on the exceptio non adimpleti contractus and the judicial discretion to relax it did not reflect what was expected of the aggrieved party on the facts. Since the aggrieved party was in fact expected to reduce the price extra-judicially in the circumstances, there should be recognition of and rules on such a self-help remedy at the instance of the aggrieved party. There is growing recognition of the utility of generalised price reduction internationally. South African law should follow suit. This contribution also proposes detailed rules on the price-reduction remedy.

The ambit and purpose of the crime of public violence

by | Apr 26, 2025 | SACJ, SACJ V37 I3 2024

The ambit and purpose of the crime of public violence

Author: Shannon Hoctor

ISSN: 1996-2118
Affiliations: BA LLB LLM (UCT) DJuris (Leiden) PG Dip (Latin) (Wales Trinity Saint David); Professor, Department of Public Law, Faculty of Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 37 Issue 3, p. 289-312
https://doi.org/10.47348/SACJ/v37/i3a1

Abstract

The roots of the crime of public violence may be found in Roman law, but the modern South African crime has developed through case law, principally based on the definition of the crime found in the works of the Roman-Dutch institutional writer Van der Linden. While there is wide agreement regarding the elements of the crime, the content of such elements is not always very clear and is subject to the qualifying element of the crime: that the conduct should assume serious dimensions. It is contended that the crime may be committed by means of force rather than violence and that this can occur in the context of either the disturbance of peace and security or the invasion of the rights of others. Moreover, it is pointed out that the structure of the crime incorporates the common purpose doctrine, where liability is based on the accused’s conduct in associating himself or herself with the crime being committed, rather than personally committing the unlawful conduct. The implications of these aspects are explored in the context of the application of the crime of public violence to unlawful protest actions.