Abstract

The colonial and apartheid systems created widespread poverty and inequality which, in tandem with each other, shaped the lives of millions of our people. The Constitution of the Republic of South Africa, 1996, beyond recognising this legacy, contains a clear and unconditional commitment to fundamentally changing it. This contribution explores the achievements and challenges in redressing poverty and inequality, two key elements of the legacy of apartheid, which continues to plague South African society 30 years after the first democratic elections. It focuses on the relationship between equality and socio-economic rights, and the evolving constitutional jurisprudence on these rights. It proceeds to examine the implications of the chasm between the public and private spheres of our society in redressing the inequalities in our society, raising the question of redistributive justice. Thereafter this contribution examines the role of the courts in addressing poverty and inequality. It identifies the important role that context-sensitive adjudication can play, while also highlighting the institutional constraints of the judiciary. The contribution concludes by exploring the reasonableness model of review for adjudicating socio-economic rights claims. It identifies the features of reasonableness review that enable courts to promote government accountability for socio-economic rights realisation while respecting the separation of powers doctrine. The paper concludes that while courts have a vital role to play, addressing poverty and inequality is ultimately a joint responsibility shared by the people of this country.

Abstract

The global Covid-19 pandemic resulted in a transition to online teaching and learning, which prompted higher education institutions to reconsider their assessment methods. Soon, implementing the most appropriate assessment approach to encourage students to engage with the study material on an ongoing basis and which would lead to a deeper understanding of module content became an exciting challenge in the completely remote learning scenario. Grappling with this challenge, lecturers in the Faculty of Law at the University of the Free State implemented alternative assessment methods in a Legal Skills first-year module and a Law of Property third-year module. By using the action research method to implement change, observe the change and critically reflect on the outcome, the authors report on the valuable lessons that they have learned from this exercise. This contribution provides an account of the benefits and drawbacks of traditional versus alternative assessment methods and a critical perspective on the practicality of using alternative assessment tools in undergraduate programmes.

Abstract

In South African law, a company that wishes to provide financial assistance to one of its directors, a related juristic person, or to a person related to a director or related juristic person, must comply with the requirements contained in section 45 of the Companies Act 71 of 2008 to validly execute such a transaction. The Act contains no precise definition of the term “financial assistance”, causing commentators to speculate that the reach of section 45 may be extremely wide. However, in Constantia Insurance Co Ltd v Master, Johannesburg High Court 2023 5 SA 88 (SCA), the Supreme Court of Appeal interpreted “financial assistance” narrowly. In this contribution, the Court’s restrictive interpretation of the term is critically analysed. I argue that the Court’s decision was correct and that its interpretation of “financial assistance” is consistent with the objectives of South African company law because it is likely to improve business efficiency without unduly prejudicing a company’s stakeholders. I also propose that the necessity for related-party financial assistance provisions should be reconsidered.

Abstract

The aspirations of the Constitution of the Republic of South Africa, 1996 are expressly recognised in competition legislation. Competition authorities and courts must, accordingly, adjudicate competition matters in a manner that gives effect to the Constitution. This has resulted in the Constitutional Court assuming jurisdiction over appeals from the Competition Appeal Court, thereby raising questions about the Constitutional Court’s competence to adjudicate specialised competition matters that cannot be understood solely through the lens of constitutional interpretation. The Constitutional Court’s decision in Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC) is a cautionary tale that exposes the dangers that arise when the Court enters this specialised realm of the law and imposes constitutional interpretation without engaging with the principles of competition law.

The case concerned a dispute about whether a merger in the healthcare sector would lead to an increase in the price of healthcare. The Constitutional Court’s judgment emphasises the constitutional imperative to quell the harmful effects of the inequalities that loom over South Africa’s post-apartheid economy, but it is not legally sound in all respects. This note explores the weaknesses in the judgment under the following themes: the approach to jurisdiction that contradicts jurisprudence and untenably extends the Constitutional Court’s jurisdiction; the problematic assertion that precedent severely constrains the appellate powers of the Competition Appeal Court; and the Constitutional Court’s inconsistent appreciation of the specialised nature of competition law and its consequent failure to engage with the evidence.

This analysis concludes that this attempt to import constitutional rights into competition law, without adequately engaging with competition law itself, reveals an urgent need to re-examine the true scope of the Constitutional Court’s jurisdiction and its powers to adjudicate complex and highly specialised areas of the law.

Abstract

The court in Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022) ordered the cancellation of five deeds of transfer to restore the original owners as the registered owners of the property in question. The order was based on a finding that the sale in execution of the property two decades before was invalid because the creditor did not follow the correct judicial process. Because the transfer pursuant to the sale in execution was invalid, all subsequent transfers were invalid as well, with the result that the current registered owner was not the rightful owner. This note does not question the manner in which the court applied the substantive law regarding invalid transfers of property. In light of the negative nature of the deeds registry system, it is correct for a court to order the cancellation of a title deed that does not reflect the rightful owner. Instead, the note takes issue with the manner in which the court drew conclusions from a very unclear factual matrix based on almost no documentary or other evidence. The argument is made that a title deed (such as a deed of transfer) should be regarded as prima facie correct and should only be cancelled if the person who alleges that the deed is inaccurate can supply sufficient evidence to prove that person’s allegation on a balance of probabilities. The registered owner should not have to disprove mere allegations of inaccuracy or prove that all previous transfers were valid.