Case Notes: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

by | Dec 9, 2021 | SAJELP, SAJELP 2020

Case Notes: Locus standi to institute a private prosecution of environmental offences in South Africa: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

Author: Jamil Ddamulira Mujuzi

ISSN: 2616-8499
Affiliations: LLB (Makerere) LLM (Pret) LLM (UFS) LLD (UWC), Lecturer, Faculty of Law, University of the Western Cape
Source: South African Journal of Environmental Law and Policy 2020, p. 161 – 178
https://doi.org/10.47348/SAJELP/v26/a6

Abstract

In Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd, in the first ever private prosecution under section 33 of the National Environmental Management Act, British Petroleum (BP) was prosecuted and convicted for constructing filling stations without the necessary authorisation. The judgment deals mostly with the issue of locus standi to institute a private prosecution for environmental offences. The purpose of this note is to highlight the issues that emerge from the judgment. The note also discusses the role that could be played by the National Director of Public Prosecutions should they decide to take over a private prosecution instituted under section 33 of NEMA.

Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

Author: Thomas Coggin

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 4, p. 697-715
https://doi.org/10.47348/SALJ/v138/i4a1

Abstract

In the Western Cape High Court decision of Adonisi, Gamble J framed the prevalence of well-located land scarcity in Cape Town with the phrase, ‘they’re not making land anymore’. In this case note, I present the court’s findings and reasoning in ruling against the Western Cape Provincial Government, and I argue we can read the judgment as an expression of the social function of property through two lenses: first, the manner in which the court situated the dispute within the spatial and historical geography of Cape Town; and, secondly, the way in which it prefaced the use value of property through its emphasis on meaningful participation and on custodianship. Both lenses indicated the duty incumbent on the province as landowner and in service of its obligations under s 25(5) of the Constitution, which are important when resolving similar disputes given the scarred ownership landscape characterising the South African urban and spatial environment.

Notes: Social media firestorms and the protection of smaller enterprises: Ubuntu Baba and Woolworths

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: Social media firestorms and the protection of smaller enterprises: Ubuntu Baba and Woolworths

Authors: Peter Kituri, Andrew Hutchison & James Lappeman

ISSN: 1996-2177
Affiliations: Attorney of the High Court of South Africa; Associate Professor, Department of Commercial Law, University of Cape Town; Senior Lecturer, School of Management Studies, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 715-731
https://doi.org/10.47348/SALJ/v138/i4a2

Abstract

In this note we explore the use of social media as a tool to help small enterprises exert pressure on large corporations. Specifically, we use the case study of a small South African business (Ubuntu Baba) that exerted a powerful non-legal sanction on major retailer Woolworths through social media. This entrepreneur-initiated social media firestorm led to victory in the court of public opinion and a quick settlement. This low-cost option was possibly chosen in the face of the costs and uncertainties of more conventional legal recourse. Small businesses are an important component of the South African government’s strategy for economic development and employment creation, yet the existing laws protecting weaker parties often leave small businesses exposed to corporate power-play. This form of corporate power imbalance is a core theme underlying our case study.

Notes: eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd: Personal costs against public officials through the lens of Westwood

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd: Personal costs against public officials through the lens of Westwood

Authors: Max du Plessis & Muhammad Zakaria Suleman

ISSN: 1996-2177
Affiliations: Senior Counsel, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal; Adjunct Professor, Nelson Mandela University; Advocate, KwaZulu-Natal Bar
Source: South African Law Journal, Volume 138 Issue 4, p. 731-747
https://doi.org/10.47348/SALJ/v138/i4a3

Abstract

eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd concerns personal costs orders against public officials. The high court sought to extend itself beyond the merits of a tender dispute in its main judgment by engaging in an inquiry about the officials implicated and whether they should be penalised by way of a personal costs order. In its costs judgment, certain individuals within the eThekwini Municipality were mulcted with personal costs orders. On appeal, a full bench cautioned against a court reaching conclusions about officials too quickly and drawing adverse inferences from facts that are not properly pleaded. This is a judgment that has mapped out the procedural steps necessary to make personal costs orders against public officials.

Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

Author: Tjakie Naude

ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 4, p. 748-760
https://doi.org/10.47348/SALJ/v138/i4a4

Abstract

South African case law has long held that standard terms may be incorporated into a contract by mere reference, and that it is unnecessary for the user of the terms to make the text of the terms available to the other party. The so-called railway ‘ticket cases’ from the early twentieth century started this approach. More recent case law involving contracts concluded by fax has confirmed the possibility of incorporation of standard terms by mere reference, without the text of the terms having been made available. This contribution argues that times have changed with increased access to the internet, and that the user of standard terms can reasonably be expected to make their text available to the other party, for example by making them available on a website. It draws on comparative study of the UN Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts. It also shows that legislation requires standard terms to be made available anyway in the consumer context, as well as in the case of electronic contracts. Writers of books on the law of contract should discuss the relevant rules.