Problems relating to the formation of online contracts: A comparative perspective

by | Feb 13, 2022 | SALJ, SALJ V139 I1 2022

Problems relating to the formation of online contracts: A comparative perspective

Author: Sanmarie van Deventer

ISSN: 1996-2177
Affiliations: Consolidoc Fellow in Private Law, Stellenbosch University
Source: South African Law Journal, Volume 139 Issue 1, p. 32-77
https://doi.org/10.47348/SALJ/v139/i1a2

Abstract

The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.

A comparative analysis of the Twin Peaks model of financial regulation in South Africa and the United Kingdom

by | Feb 12, 2022 | SALJ, SALJ V139 I1 2022

A comparative analysis of the Twin Peaks model of financial regulation in South Africa and the United Kingdom

Author: Mmiselo Freedom Qumba

ISSN: 1996-2177
Affiliations: Lecturer, University of Pretoria
Source: South African Law Journal, Volume 139 Issue 1, p. 78-113
https://doi.org/10.47348/SALJ/v139/i1a3

Abstract

This article examines the recent adoption of the Twin Peaks model by the United Kingdom and South Africa. An international and comparative analysis is provided. It observes that there is a gradual paradigm shift across the world towards the Twin Peaks model of financial regulation. There are slight variations in the design of the two countries’ Twin Peaks models. The variations in regulatory design indicate the flexibility of the Twin Peaks model and its adaptability to suit local conditions, regulatory culture, and the country’s specific needs. Therefore, while the South African model has drawn significantly from the experiences of other Twin Peaks jurisdictions, particularly the UK, South Africa has adopted the model to accommodate its own needs and unique characteristics. It is imperative for the success of the Twin Peaks model that it clearly delineates the objectives and functions of each regulator, and achieves effective co-ordination between them. This article warns that, given the potential overlaps and high levels of co-operation required between the different regulatory bodies in South Africa, there could be detrimental consequences if this complicated financial regulation regime is not properly managed.

Disclosure of corporate political donations and expenditure to shareholders: Why South Africa should follow the United Kingdom’s legislative approach

by | Feb 12, 2022 | SALJ, SALJ V139 I1 2022

Disclosure of corporate political donations and expenditure to shareholders: Why South Africa should follow the United Kingdom’s legislative approach

Author: Vela Madlela

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 139 Issue 1, p. 114-156
https://doi.org/10.47348/SALJ/v139/i1a4

Abstract

Whilst corporate political donations and expenditure is legally permissible in South Africa, and whilst some companies may be making such donations and incurring such expenditure for valid reasons, corporate political donations and expenditure is frequently associated with secrecy and poor corporate governance practices within companies. One strategy that some corporate-law jurisdictions have adopted to regulate corporate political donations and expenditure is to require company boards to disclose relevant information about such donations and expenditure directly to their shareholders. However, South African law currently does not require companies to disclose their political donations or expenditure directly to the shareholders, either in the annual financial statements, or in the directors’ report that must be included in the annual financial statements, or in the annual report. Following an examination of key policy considerations relevant to the disclosure of corporate political donations and expenditure to shareholders, and an examination of the legislative approach in the UK, the article argues for the effective disclosure of corporate political donations and expenditure to shareholders under the Companies Act 71 of 2008. It then makes detailed recommendations on how such disclosure requirements could be introduced and implemented in South Africa.

Guilty of being deaf. Kruse v S — paying lip service to the fair-trial rights of hearing-impaired accused persons

by | Feb 12, 2022 | SALJ, SALJ V139 I1 2022

Guilty of being deaf. Kruse v S — paying lip service to the fair-trial rights of hearing-impaired accused persons

Authors: Ferdinand Heinrich Hermann Kehrhahn & Jani Charlese de Lange

ISSN: 1996-2177
Affiliations: Lecturer, Independent Institute of Education, Varsity College, Pretoria; Lecturer, Department of South African Sign Languages and Deaf Studies, University of the Free State
Source: South African Law Journal, Volume 139 Issue 1, p. 157-180
https://doi.org/10.47348/SALJ/v139/i1a5

Abstract

This article considers the case of Kruse v S, where the right to a fair trial of a deaf accused was infringed owing to the poor communication and translation of the trial proceedings. This article considers the methods available to translate court proceedings to a deaf or hard-of-hearing accused, and demonstrates an appreciation that the deaf community is not homogeneous and that a single interpreting method cannot accommodate every deaf person. In raising the question as to which method is best suited to a specific accused, the article indicates that the culture and history of the deaf accused should be indispensable factors to consider. The article explores the rights of deaf accused in the South African criminal justice system by considering the Constitution, national legislation, and judicial norms and standards which relate to the interpreting of trial proceedings to the deaf accused. The existing laws and safeguards that protect these rights are poorly implemented at a grass-roots level, which calls for better training of stakeholders and more effective policy implementation. A concerted effort on the part of the government is required to ensure that the rights of the deaf accused are protected.

Hyperlinking and copyright

by | Feb 12, 2022 | SALJ, SALJ V139 I1 2022

Hyperlinking and copyright

Author: Sadulla Karjiker

ISSN: 1996-2177
Affiliations: Anton Mostert Chair of Intellectual Property Law, Stellenbosch University
Source: South African Law Journal, Volume 139 Issue 1, p. 181-204
https://doi.org/10.47348/SALJ/v139/i1a6

Abstract

This article critically considers the legality of hyperlinking to copyright-protected material on the Internet. It considers the position with respect to standard hyperlinks, and attempts to provide a possible approach in light of the proposed introduction of two new exclusive rights, namely (i) the right of communication to the public; and (ii) the making-available right. These new exclusive rights appear to be an attempt to amend the South African Copyright Act in order to give effect to the 1996 WIPO Copyright Treaty, which sought to ‘digitise’ copyright law in light of the digital technology that had developed. The WIPO Copyright Treaty supplements, in particular, the rights granted to copyright owners under the Berne Convention, extending the right of communication to the public to include the making-available right. Use will be made of the case law of the Court of Justice of the European Union, which has given effect to the right of communication to the public (including the making-available right), following its inclusion in the WIPO Copyright Treaty of 1996. Through a more focused analysis of these exclusive rights, it is intended that this article can provide some guidance to South African lawyers and our courts when considering the application and scope of these exclusive rights.

Where do we belong? The plight of plaintiffs with small maritime claims

by | Feb 12, 2022 | SALJ, SALJ V139 I1 2022

Where do we belong? The plight of plaintiffs with small maritime claims

Author: Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 139 Issue 1, p. 205-231
https://doi.org/10.47348/SALJ/v139/i1a7

Abstract

Is a claim falling within the definition of a ‘maritime claim’ in terms of s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 and also within s 29(1) of the Magistrates’ Courts Act 32 of 1944 capable of being pursued in the magistrates’ courts? In World Net Logistics (Pty) Ltd v Donsantel 133 CC & another 2020 (3) SA 542 (KZP) the full court in KwaZulu-Natal held that such claims must be pursued within the exclusive admiralty jurisdiction of the high court. The article submits that this is incorrect and disregards the history of the Admiralty Jurisdiction Regulation Act, amounts pro tanto to an implied repeal of the relevant section of the Magistrates’ Courts Act, and is inconsistent with the principles of statutory interpretation applied by our courts. It urges the Maritime Law Association urgently to seek an opportunity to challenge the decision, which is prejudicial to claimants with small claims arising out of ship-related contracts or delicts.

Book Review: Andrew Stewart, Rosemary Owens, Niall O’Higgins & Anne Hewitt (eds) Internships, Employability and the Search for Decent Work Experience (2021)

by | Feb 12, 2022 | SALJ, SALJ V139 I1 2022

Book Review: Andrew Stewart, Rosemary Owens, Niall O’Higgins & Anne Hewitt (eds) Internships, Employability and the Search for Decent Work Experience (2021)

Author: Johann Maree

ISSN: 1996-2177
Affiliations: Emeritus Professor of Sociology, University of Cape Town
Source: South African Law Journal, Volume 139 Issue 1, p. 251-257
https://doi.org/10.47348/SALJ/v139/i1a9

Abstract

None

South Africa’s Engagement with International Human Rights Law

by | Jan 19, 2022 | SLR, SLR V32 I3

South Africa’s Engagement with International Human Rights Law

Author: Judge Navi Pillay

ISSN: 1996-2193
Affiliations: Former United Nations High Commissioner for Human Rights
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 365 – 385
https://doi.org/10.47348/SLR/2021/i3a1

Abstract

The commitment to human rights is the cornerstone of the Constitution of the Republic of South Africa, 1996. However, South Africa’s human rights record in the international community often stands in stark contrast to its constitutional commitment to human rights. In both international and regional contexts, South Africa has demonstrated an inconsistent approach to foreign policy that is often guided more by political considerations than by a principled commitment to advancing human rights. This lecture provides an overview of South Africa’s engagement with international human rights law in the constitutional era and evaluates its human rights record in the international arena in a diverse range of fields. These fields include South Africa’s record of human rights protection in peace and security operations on the African continent; its record as a member of the UN Security Council and Human Rights Council; the assessment of its performance by UN human rights treaty bodies; and its record in respect of the Covid-19 pandemic, international criminal justice, the death penalty, and the arms trade. The lecture draws on Judge Pillay’s extensive experience in international law, including as President of the International Criminal Tribunal for Rwanda, Judge at the International Criminal Court in The Hague and former UN High Commissioner for Human Rights.

The Protection of the Environmental Rights and Interests of Children: A South African Perspective

by | Jan 19, 2022 | SLR, SLR V32 I3

The Protection of the Environmental Rights and Interests of Children: A South African Perspective

Author: Rongedzayi Fambasayi

ISSN: 1996-2193
Affiliations: LLB Hons, PGDip Child Sensitive Social Policies, LLM, Doctoral Researcher, South African Research Chair in Cities, Law and Environmental Sustainability, Faculty of Law, North-West University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 386 – 409
https://doi.org/10.47348/SLR/2021/i3a2

Abstract

It is becoming increasingly apparent that children are disproportionately vulnerable to environmental harm, taking into account their physical, physiological and developmental characteristics. Environmental degradation threatens children’s enjoyment of fundamental rights and freedoms, such as the right to a clean and healthy environment, the right to life, the right to health, the right to the highest attainable standard of living, and the right to dignity. This article evaluates the extent to which the South African legal framework protects the environment-related rights and interests of children. In order to achieve this objective, the article outlines the body of international and African regional human rights law and the environmental law and policy that protects and promotes the environment-related rights and interests of children. The contribution also discusses the mechanisms for redress at the international, regional and national levels in the event of environmental harm to the rights and interests of children. The body of international and African regional law sets the expectations and normative benchmarks to measure the compliance of the national (South African) legal and policy framework.