The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

The quest for ‘reasonable certainty’: Refining the justice and equity remedial framework in public procurement cases

Authors Raisa Cachalia & Lauren Kohn

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, University of Johannesburg; Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 4, p. 659-697

Abstract

Flowing from the constitutional imprimatur in s 172(1) to further ‘justice and equity’  (‘J&E’), the courts have made important strides in developing a framework for remedying  irregular public procurement. They have not, however, done so clearly and coherently;  nor in a way that encourages predictability in remedial outcomes. In response, we have  sought to leverage an argument for ‘reasonable certainty’ as a rule-of-law justification  for refining the framework in a comprehensive and helpful way that does not pit  form against ‘individualised justice’. We have done so against the backdrop of two  hypothetical tender scenarios — a review by a private contractor and a state self-review  — based upon a pattern emerging from the jurisprudence. Through our analysis, we  illustrate that ultimately the J&E enquiry is a kind of proportionality assessment that  has, at its heart, an appreciation of the overall ‘impact’ of setting a tender aside, from  both a practical and principled perspective. We posit a two-step approach to addressing  this overarching ‘impact question’: a big-picture assessment of the various interests to  be weighed in the balance, followed by the particularised balancing of these affected  interests with reference to several open-list factors. Ultimately, we seek to provide a  principled and pragmatic guide for the exercise of the courts’ remedial discretion and so  draw the analysis together by applying this framework to the scenarios sketched. 

Procedural fairness, executive decision-making and the rule of law

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Procedural fairness, executive decision-making and the rule of law

Author Clive Plasket

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal; Honorary Visiting Professor, Rhodes University
Source: South African Law Journal, Volume 137 Issue 4, p. 698-712

Abstract

The connection between procedural fairness and the rule of law was assumed to be  trite until the majority judgment in Masetlha v President of the Republic of  South Africa & another 2008 (1) SA 566 (CC). It held that procedural fairness  was not part of the rule of law, being a doctrine that only applied in administrative  decision-making, and that it was inappropriate to ‘constrain executive power to  requirements of procedural fairness’. In Albutt v Centre for the Study of Violence  and Reconciliation & others 2010 (3) SA 293 (CC) an attempt was made to  undo some of the damage that had been caused by Masetlha (short of overruling it)  by holding that in some cases, in order to take a rational decision, the decision-maker  was required to hear affected parties. In terms of Albutt, however, the right to a  hearing was the exception, rather than the default position. This article argues that  the majority decision in Masetlha is wrong and should be overruled, and that the  Albutt exception is very much a second-best alternative to a proper right to procedural  fairness — to a recognition that procedural fairness is part of the rule of law and  that executive decision-makers, as is the case with everyone else who has to decide  anything, are required to act fairly. 

The right of ‘interested parties’ to be heard during an anti-dumping investigation conducted by the National Treasury on behalf of the Minister of Finance

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

The right of ‘interested parties’ to be heard during an anti-dumping investigation conducted by the National Treasury on behalf of the Minister of Finance

Author Clive Vinti

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, University of the Free State
Source: South African Law Journal, Volume 137 Issue 4, p. 713-732

Abstract

The purpose of this article is to advocate for the right of ‘interested parties’ to be  heard during the National Treasury anti-dumping investigation conducted on behalf  of the Minister of Finance when the Minister of Trade, Industry and Competition  makes a ‘request’ to impose or vary an anti-dumping duty in terms of ss 55 and 56  of the Customs and Excise Act 91 of 1964. This inquiry was prompted by recent  jurisprudence from the High Court of South Africa which asserted that the Minister  of Finance has a discretion when the Minister of Trade, Industry and Competition  requests that an anti-dumping duty must be imposed or varied on a particular product.  In this regard, the National Treasury of South Africa investigates the desirability  of the imposition or variation of an anti-dumping duty on behalf of the Minister of  Finance. However, interested parties are never heard by the Minister of Finance or the  National Treasury. This poses the question whether interested parties must be heard  during the National Treasury’s investigation on whether anti-dumping duties must  be imposed or varied. 

Opposing cynical evictions: A framework of appropriate remedies

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Opposing cynical evictions: A framework of appropriate remedies

Author Jeremy Phillips

ISSN: 1996-2177
Affiliations: LLM Student, University of Fort Hare
Source: South African Law Journal, Volume 137 Issue 4, p. 733-762

Abstract

The South African political landscape has been darkly coloured by inhumane  evictions, exacted to design the social and geographic landscape of the country along  discriminatory lines. A notorious brand of eviction, often resorted to by the apartheid  state, is the ‘cynical eviction’ — an unlawful eviction where the evictee’s home is  demolished and destroyed. Shamefully, cynical evictions have persisted post-1994.  The cynicality of such an eviction lies in the fact that, by destroying the materials of the  home, the defence of impossibility precludes the evictee relying on the mandament van  spolie. While there is consensus that evictees are entitled to relief, there is disagreement  on which remedy should deliver that relief. Developing the mandament van spolie  to bypass the defence of impossibility has been touted as the ideal remedy, whereas  the court in Tswelopele, and subsequent academic commentators, have preferred an  extraordinary remedy based directly on s 26(3) of the Constitution. This article argues  that the debate is a false dichotomy. There are subtle, but critical, differences which  distinguish both remedies. Furthermore, the possessory action should be revived as a  third alternative remedy. With three available remedies, all offering different forms of  relief, evictees have a comprehensive arsenal with which to combat cynical evictions. 

Geographical indications: The cuckoo in the IP nest

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Geographical indications: The cuckoo in the IP nest

Author Sadulla Karjiker

ISSN: 1996-2177
Affiliations: Anton Mostert Chair of Intellectual Property Law, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 4, p. 763-791

Abstract

This article critically considers the recognition of Geographical Indications (‘GIs’)  as a form of intellectual property (‘IP’), and submits that it is unsuited to protection  as a distinct form of IP. It is submitted that GI protection does not accord with  established principles of IP law (most notably trade-mark law and the common law  of delict), and that its recognition has, in fact, been principally motivated by selfserving  protectionism on the part of the EU. There are no sound reasons to justify  GI protection as a distinct form of intellectual property, and its recognition says  more about the politics of IP law, rather than the merits of this form of protection.  That which is proffered as justifications for its recognition tends to be rhetoric and  unsubstantiated claims, and relies on a revisionist history of the part played by Europe  in the course of the past 400 years. This article seeks to expose the true basis on which  developing countries, former colonies of European nations, are being forced to concede  to demands to provide greater protection for European GIs, which demands harm the  ability of their producers to compete with European producers. 

Olga Martin-Otega & Claire Metven O’Brien (eds) Public Procurement and Human Rights — Opportunities, Risks and Dilemmas for the State as Buyer (2019)

by | Nov 27, 2020 | SALJ, SALJ V137 I4 2020

Olga Martin-Otega & Claire Metven O’Brien (eds) Public Procurement and Human Rights — Opportunities, Risks and Dilemmas for the State
as Buyer (2019)

Author Allison Anthony

ISSN: 1996-2177
Affiliations: N/A
Source: South African Law Journal, Volume 137 Issue 4, p. 807-810

Abstract

None

A social service? A case for accomplishing substituted service via WhatsApp in South Africa

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

A social service? A case for accomplishing substituted service via WhatsApp in South Africa

Authors Rilwan F Mahmoud & Adrian Hugh Bellengère

ISSN: 1996-2177
Affiliations: PhD graduate, University of KwaZulu-Natal; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 3, p. 371-388

Abstract

The amendment of the Uniform Rules of Court to include service by electronic mail  has raised the interesting question of service through electronic media other than  electronic mail. Recent developments have partially answered this question with regard  to substituted service via Facebook. However, it is still a relatively novel concept and  has not yet been extended to WhatsApp in South Africa. This note examines the  criteria employed in determining the likelihood of accomplishing substituted service  via WhatsApp. First, the principles underlying substituted service are examined,  followed by an assessment of the impact and reach of social media platforms,  a summary of the initial moves to incorporate them into South African procedural law,  and a description of the technical attributes of WhatsApp. Several judgments from  around the world, tentatively embracing service via WhatsApp, are then discussed,  followed by an assessment of the standards that need to be met in order to ensure  effective service, and the factors that a court needs to consider when faced with such a  request. The note concludes that a reasonable degree of certainty that service can be  achieved by WhatsApp exists, and that it could therefore be an effective medium for  substituted service. 

The Recognition of Customary Marriages Amendment Bill: Much ado about nothing?

by | Nov 27, 2020 | SALJ, SALJ V137 I3 2020

The Recognition of Customary Marriages Amendment Bill: Much ado about nothing?

Author Fatima Osman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 137 Issue 3, p. 389-406

Abstract

The Recognition of Customary Marriages Amendment Bill provides that spouses  in polygamous marriages concluded before the commencement of the Recognition of  Customary Marriages Act 120 of 1998 have joint rights of ownership, management  and control over marital property. The Bill creates uncertainty by failing to  explain what is meant by joint rights of ownership and control, which uncertainty  is exacerbated by the incorporation of the terms ‘marital’, ‘personal’, ‘house’ and  ‘family’ property without concrete definitions of these terms. The burden will fall to  courts to re-imagine the antiquated definitions of these concepts in the current socioeconomic  context. Moreover, the amendments are not reconciled within the existing  legal framework. Consequently, women in polygamous marriages concluded before the  Act’s commencement may, counter-intuitively, have greater rights than those women  in polygamous marriages concluded after the commencement of the Act. The note thus  argues for substantial revisions before the Bill is passed.