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.

Privacy, public interest, and the purposes of the internet

Privacy, public interest, and the purposes of the internet

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

ARTICLE

Privacy, public interest, and the purposes of the internet

Author: Leo Boonzaier

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Private Law, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 3, p. 528-566
https://doi.org/10.47348/SALJ/v142/i3a6

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Leo Boonzaier
Privacy, public interest, and the purposes of the internet
SouthAfrican Law Journal, Volume 142 Issue 3, p. 528–566
https://doi.org/10.47348/SALJ/v142/i1a6

Abstract

This article analyses the Constitutional Court’s judgment in Botha v Smuts, which now ranks as our leading judgment on civil claims for the infringement of informational privacy. The case involved a condemnatory social media post in which the defendant publicised the plaintiff’s name and addresses, provoking threatening third-party responses. A majority of the court held the defendant’s post to be (in part) unlawful, because it unjustifiably infringed the plaintiff’s right to privacy. The article situates the Botha judgment historically and comparatively and critiques its various developments of the common law. In setting out the applicable framework, the court favours a flexible public interest defence, which is influenced by Anglo-American law and constitutional balancing tests. In applying its framework, the court does two notable things. First, it sharpens the distinction between purely business addresses and home addresses, giving the latter robust privacy protection. Secondly, and more remarkably, it holds that individuals may retain a reasonable expectation of privacy in information they themselves have chosen to publish widely. This finding suggests a new role for informational privacy claims and may, unless moderated, mark a newly tough regime for free expression on the Internet.

Exploring the use of personal servitudes for renewable energy in South Africa: A common, irregular or novel idea?

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

ARTICLE

Exploring the use of personal servitudes for renewable energy in South Africa: A common, irregular or novel idea?

Author: Tina Kotze

ISSN: 1996-2177
Affiliations: Research and Didactics Lead: Law and Ethics, Boston City Campus; Research Associate, University of Pretoria
Source: South African Law Journal, Volume 142 Issue 3, p. 567-599
https://doi.org/10.47348/SALJ/v142/i3a7

Abstract

Securing rights on land is the first step in developing a renewable energy project. This article considers using and creating personal servitudes in favour of a private independent power producer to establish a renewable energy facility (‘REF’) in South Africa. In particular, the article considers three different categories of personal servitudes that could be used to secure land rights for the establishment and operation of a REF, namely (a) traditional common-law personal servitudes (specifically the usufruct), (b) irregular servitudes (servitutes irregulares), and (c) novel personal servitudes. The absence of a numerus clausus of real rights in the South African property-law context allows for the creation of novel limited real rights. In the renewable energy context, this means that entirely novel limited real rights in general, and more specifically a new category of servitude in particular, could in principle be created, provided that the right complies with (a) the requirements of s 63(1) of the Deeds Registries Act 47 of 1937, (b) the subtraction from the dominium test, (c) the general requirements of personal servitudes, and (d) other relevant legislative requirements, such as those provided for in the Subdivision of Agricultural Land Act 70 of 1970.

The role of trade mark law in food-labelling regulation: A buttery battle between Clover SA (Pty) Ltd and Siqalo Foods (Pty) Ltd

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

ARTICLE

The role of trade mark law in food-labelling regulation: A buttery battle between Clover SA (Pty) Ltd and Siqalo Foods (Pty) Ltd

Authors: Jeanette Visagie

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, North-West University
Source: South African Law Journal, Volume 142 Issue 3, p. 600-625
https://doi.org/10.47348/SALJ/v142/i3a8

Abstract

This article considers the role of trade mark law in food-labelling regulation with reference to Clover SA (Pty) Ltd v Siqalo Foods (Pty) Ltd (ZAGPPHC) and the subsequent appeal in Siqalo Foods (Pty) Ltd v Clover SA (Pty) Ltd (SCA). Our courts accept that the test to establish if the use of a mark contravenes s 6 of the Agricultural Product Standards Act 119 of 1990 (‘APS Act’), as read with the relevant regulations, is synonymous with establishing whether or not there is a likelihood of deception or confusion under trade mark law. The article also discusses the meaning of a trade mark and its relevance to labelling letter-size restrictions under the Dairy Regulations issued in terms of the APS Act. The article also highlights the different roles and functions of the Minister of Agriculture under the APS Act and the Registrar of Trade Marks under the Trade Marks Act 194 of 1993 in considering the distinguishing features between trade mark law and food-labelling regulation.

Labour-law remedies in South Africa: Contractual and statutory avenues

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

ARTICLE

Labour-law remedies in South Africa: Contractual and statutory avenues

Authors: Marthinus van Staden & Sieg Eiselen

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand; Professor Extraordinarius in Private Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 3, p. 626-657
https://doi.org/10.47348/SALJ/v142/i3a9

Abstract

This article examines the complex interplay between contractual and statutory remedies in South African labour law. It highlights how statutory remedies now coexist with common-law contractual remedies. The authors analyse the key principles that the courts have established, including the conceptual separation between contractual and legislative matters, distinctions between ‘unlawful’ and ‘unfair’ dismissals, and the strategic implications for litigants making a choice of remedy avenues. The article explores three primary contractual remedies — specific performance, compensation and damages — detailing their applications and limitations. It discusses how courts have sought to balance employee protections with employer rights while considering practical workplace realities. The authors note that while contractual and statutory remedies overlap to some extent, they operate independently. This offers flexibility, but choosing a suitable remedy does require careful consideration. Based on this analysis, the article proposes several recommendations to improve the system. These include clearer legislative guidelines on remedy interactions, enhanced training for legal professionals, improved public education on labour rights, the encouragement of alternative dispute resolution mechanisms and the potential harmonisation of prescription periods for different claim types. Implementing such recommendations could refine South Africa’s labour-law system, ensuring that it balances stakeholder rights effectively while providing clear, accessible remedies for workplace disputes. The authors conclude that the dual system of remedies, when properly understood and applied, offers comprehensive protection and a fair resolution of labour issues in the South African context.

Application of the Kenyan Bill of Rights: Legal Insights from Comparative Constitutional Law and Jurisprudence

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Application of the Kenyan Bill of Rights: Legal Insights from Comparative Constitutional Law and Jurisprudence

Author Brian Sang YK

ISSN: 2521-2613
Affiliations: LLB (MU), LLM (UCT), PhD (Can) (UCT), Faculty of Law, University of Cape Town
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 1 – 40

Abstract

Unlike any of its legal antecedents, the Constitution of Kenya, 2010, foregrounds the Bill of Rights, its repository of all fundamental rights and freedoms, and expressly provides that its content applies to all law and binds all State organs and all persons. The logical implication of this is that, since fundamental rights in the Bill of Rights bind State actors and non-State actors, they consequentially are also enforceable against both classes of actors. But, there is a better and more nuanced view: that, while fundamental rights in the Bill of Rights are, in general, enforceable against the State, the nature of a right and the correlative duty imposed by it may limit such enforceability against private persons, albeit in line with the Constitution. And yet, despite the Constitution’s clarity of purpose in this respect, lately the High Court of Kenya has rendered conflicting rulings in constitutional matters wherein the vexed issue of application arose. This article contends that, the legal position adopted by some learned judges that constitutional rights are not enforceable against natural or juristic persons is as misconceived as it is unsupported by a holistic construction of the Constitution. Rather, it advocates the maximal enforceability of fundamental rights subject only to the lawful strictures of the limitation clause as enshrined in the Kenyan Bill of Rights. Accordingly, the article analyses comparative constitutional law and jurisprudence on the application of fundamental rights in the private sphere with a view to gleaning some instructive legal insights that can inform the development of Kenya’s nascent constitutional law doctrine.