Bwanya, EB and contexts of structural inequality in contracts

by | Nov 8, 2025 | SLR, SLR V36 I1

Bwanya, EB and contexts of structural inequality in contracts

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA, LLB, LLM (Stell) PhD (Cantab), Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 16-38
https://doi.org/10.47348/SLR/2025/i1a2

Abstract

Two recent Constitutional Court cases have modified the reasoning about contractual autonomy expressed in the court’s earlier judgment in Volks v Robinson. In Volks, the court held that people who choose not to marry cannot expect to benefit from the rights afforded to spouses – generally called the choice argument. This article examines the effects of these judgments for party autonomy in contracts in general. Bwanya v The Master acknowledges that structural forms of inequality, like gender inequality, can impede parties’ abilities to freely contract, but it is ambiguous on the question whether a right to support will be afforded to unmarried partners on the basis of contract or a familial relationship, or both. This creates uncertainty about the basis of future claims for rights to support in such relationships and opens the door for contractual defences to future claims. EB v ER considered the role of the choice argument in contracts which had turned out to be detrimental to one party. It confirmed the central role of pacta sunt servanda in public policy on contracts, but decided the matter on the basis of the unfair discrimination test in Harksen v Lane. Together, the cases create a chink in the armour of pacta sunt servanda and the choice argument for broader reconsideration of autonomy and fairness in contract law.

Learners resolving conflict: integrating mandatory peer mediation in South African public high schools to address issues of discipline

by | Nov 8, 2025 | SLR, SLR V36 I1

Learners resolving conflict: integrating mandatory peer mediation in South African public high schools to address issues of discipline

Authors: Monique Carels and Muofhe Tshifularo

ISSN: 1996-2193
Affiliations: LLB, LLM (Dispute Resolution), LLM (Labour Law), Lecturer, University of Cape Town; LLB, LLM (Dispute Resolution), Admitted Attorney
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 39-60
https://doi.org/10.47348/SLR/2025/i1a3

 Abstract

Disputes are a natural part of school life, and unfortunately, bullying, harassment, victimisation, and assaults have become all too common in South African public high schools. Schools face significant disciplinary challenges, with issues of ill-discipline on the rise in schools across the country. However, the current school disciplinary procedures adopted by most public high schools fail to address the root causes of these problems and do not provide concrete solutions.
This article aims to explore the idea of implementing mandatory peer mediation in South African public high schools as a way to resolve conflicts and address issues of discipline. It will begin by briefly examining the school disciplinary procedure, before discussing its shortcomings. Next, it will examine the concept of peer mediation and compare it to the disciplinary hearing process. To gain a deeper understanding of how peer mediation could be integrated into the school environment, we will look at the experience in New Zealand. Finally, the article will discuss the practicalities of implementing mandatory peer mediation in South African high schools.

Relationship-centred lawyering and its impact on legal practice

by | Nov 8, 2025 | SLR, SLR V36 I1

Relationship-centred lawyering and its impact on legal practice

Author: Jonathan Campbell

ISSN: 1996-2193
Affiliations: BA LLB (UCT) LLM, Associate Professor, Faculty of Law, Rhodes University
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 61-78
https://doi.org/10.47348/SLR/2025/i1a4

 Abstract

This contribution emphasises the human factor in the relationship between lawyer and client. It submits that traditional “client-centred lawyering”, which foregrounds the paramount interests of the client, has considerable value but does not go far enough. “Relationship-centred lawyering” (or “relational lawyering”) extends the focus beyond the interests of the client to the relationship between lawyer and client. According to this approach the building of trust and rapport is foundational to a successful professional relationship.
Four key characteristics define relational lawyering: (i) the background contexts of both the client and the lawyer, and the personalities, values, preferences (and more) that each brings into the interactions between them; (ii) the importance of non-legal issues that can determine (in whole or in part) the strategy adopted and even the preferred outcome; (iii) a partnership between lawyer and client that allows for collaborative problem-solving, since the client knows best the facts of the case but also her needs and preferences, with the emphasis on the importance of client autonomy in decision-making; and (iv) a range of psychological matters, including interpersonal literacy, emotional intelligence and empathy in the lawyer-client relationship.
A range of skills and values are required to practice relational lawyering, known as “relational competencies”. These competencies are not widely practiced or understood by lawyers, and usually they are not explicitly included in law curricula. This contribution argues that there is a need for relational skills and values to be taught in law schools so that these valued competencies can aid graduates in serving the best interests of their clients in their future careers.

Perfecting entitlement before filing: patent revocation and the right to apply

by | Nov 8, 2025 | SLR, SLR V36 I1

Perfecting entitlement before filing: patent revocation and the right to apply

Author: Joel Morrison

ISSN: 1996-2193
Affiliations: LLB LLM, LLD Candidate, University of South Africa
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 79-92
https://doi.org/10.47348/SLR/2025/i1a5

 Abstract

This case comment examines the recent judgment in Regents of the University of California and Others v Eurolab (Pty) Ltd and Others. The dispute centred on the validity of a South African patent for a pharmaceutical compound marketed by the Regents of the University of California (“UC”) under the brand name Xtandi for certain forms of prostate cancer. Eurolab (Pty) Ltd launched a generic version of the same drug, Enzutrix, which Dis-Chem Pharmacies distributes. When UC pursued an interim interdict, Eurolab and Dis-Chem challenged the patent’s validity on two primary grounds: (1) the patentee’s lack of entitlement to apply for the patent under section 27 of the Patents Act 57 of 1978 and (2) alleged misrepresentations concerning priority. The Commissioner held that, where the applicant for a patent is not the inventor, that applicant must have acquired the right to apply from the inventor before filing. On the facts, certain co-inventors had pre-assigned their rights to a research institution, and no complete re-assignment was furnished to the patentee before the filing date. As a result, the patentee was not “a person entitled under section 27” at the critical date, rendering the patent invalid and liable to revocation. This judgment reinforces the strict requirement that the chain of title must be perfected before filing, underscoring the importance of complete and timely assignments for patent validity. It also clarifies that a post-filing agreement to assign cannot cure an applicant’s lack of initial entitlement. For prospective patent holders, the decision highlights the practical necessity of sound contractual arrangements with inventors (and any third-party research sponsors) before proceeding with a national or international patent filing.

Navigating the VAT Maze: Input Tax Deductibility for Holding Companies and Private Equity Structures in the Post-Woolworths Era

by | Oct 18, 2025 | BTCLQ, BTCLQ V16 I3

Navigating the VAT Maze: Input Tax Deductibility for Holding Companies and Private Equity Structures in the Post-Woolworths Era

Authors: Joon Chong and Des Kruger

ISSN: 2219-1585
Affiliations: Partner, Webber Wentzel; Consultant, Webber Wentzel
Source: Business Tax & Company Law Quarterly, Volume 16 Issue 3, 2025, p. 1 – 14

Abstract

This article provides a comprehensive analysis of the evolving legal landscape governing value-added tax (VAT) input tax deductibility for holding companies in South Africa, as well as for private equity structures. It examines the seminal judgments in Commissioner for the South African Revenue Service (CSARS) v De Beers Consolidated Mines Ltd, the recent landmark case of CSARS v Woolworths Holdings Limited, and the corroborating Tax Court decision in IT 76795. The analysis reveals a fundamental jurisprudential shift away from the restrictive, transaction-focused approach established in De Beers towards the holistic, purpose-driven framework solidified in Woolworths. This evolution presents both significant opportunities and new compliance imperatives for corporate structures, particularly within the private equity (PE) sector.
The central principle emerging from this body of case law is the critical importance for a holding company to defi ne, structure, and evidence its status as an ‘active investment holding company’. To successfully claim input VAT on acquisition, capital-raising, and other strategic expenses, a holding company must demonstrate that its core enterprise involves the continuous and regular provision of taxable supplies – such as management, financial, or administrative services – to its underlying portfolio companies for a fee. The mere passive holding of shares and receipt of dividends or interest is insufficient to constitute a VAT enterprise for the purposes of deducting input tax on associated costs.
The core thesis of this article is that the test for deductibility has evolved. The question is no longer whether an expense has a ‘direct and immediate link’ to a specific operational transaction, but rather whether it has a clear ‘functional link’ to the company’s overall, continuous enterprise. The Woolworths judgment has affirmed that costs incurred in furtherance of strategic expansion, such as capital-raising fees, are deductible if they serve to enhance and grow an active investment management enterprise.
For the PE industry specifically, this represents a pivotal moment. The strategic imperative is clear: PE holding companies must proactively structure their operations to align with the principles of the Woolworths judgment. This involves establishing formal management service agreements, charging market-related fees, and maintaining meticulous records that evidence active strategic involvement in portfolio companies. By doing so, they can create a defensible basis for claiming input VAT on a wide range of transaction costs, thereby mitigating tax leakage and enhancing overall fund returns.