Reflecting on the Constitutional Court’s jurisdiction over the misapplication of settled legal tests of the common law in light of Olesitse NO v Minister of Police

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

NOTE

Reflecting on the Constitutional Court’s jurisdiction over the misapplication of settled legal tests of the common law in light of Olesitse NO v Minister of Police

Author: Ndivhuwo Ishmel Moleya

ISSN: 1996-2177
Affiliations: Attorney of the High Court of South Africa
Source: South African Law Journal, Volume 142 Issue 4, p. 693-706
https://doi.org/10.47348/SALJ/v142/i4a3

Abstract

This note analyses the Constitutional Court’s approach to its jurisdiction over the misapplication of settled common-law legal tests. The note criticises the court’s approach in recent cases as being unnecessarily circumscribed and argues that the outcome of the Olesitse case is commendable as it best ensures the maximum protection of constitutional rights and a coherent and harmonious development of our legal system in line with constitutional dictates. The note nevertheless criticises the court for adopting an ambivalent approach that sought to draw an overly fine distinction between a misapplication of the law and an error of law.

The ‘jurisprudential confusion’ intensifies: CF v MF (ZAGPPHC) and the conflation of the sham and veneer-piercing scenarios in joining an allegedly abused trust to divorce proceedings

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

NOTE

The ‘jurisprudential confusion’ intensifies: CF v MF (ZAGPPHC) and the conflation of the sham and veneer-piercing scenarios in joining an allegedly abused trust to divorce proceedings

Author: Bradley S Smith

ISSN: 1996-2177
Affiliations: Senior Researcher, The Independent Institute of Education, Emeris, Faculty of Law; Extraordinary Professor of Private Law, University of the Free State
Source: South African Law Journal, Volume 142 Issue 4, p. 707-724
https://doi.org/10.47348/SALJ/v142/i4a4

Abstract

In CF v MF & others [2022] ZAGPPHC 644 (‘CF’), the applicant sought the joinder of a trust and related parties to divorce proceedings because the trust was her husband’s alter ego. This note suggests that CF is yet another example of the much-lamented confusion emanating from the conflation of the sham and veneer-piercing scenarios in our jurisprudence on trust-form abuse in the divorce context. This is mainly due to imprecise engagement with leading precedent, the failure to consult relevant scholarship, and a lack of interrogation of the nature of the ultimate relief that the applicant sought. The result of these errors — committed by bar and bench — is a technically unsound judgment that ultimately overlooked that the joinder proceedings were objectionable for being inconsonant with the positive law. While proper engagement with precedent and scholarship could have resulted in a judgment that provided much-needed clarity on this branch of the law, CF has instead intensified the obfuscation that surrounds it.

Breach of contract, enrichment liability and the double sale

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

Breach of contract, enrichment liability and the double sale

Author: Jacques du Plessis

ISSN: 1996-2177
Affiliations: Distinguished Professor, Faculty of Law, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 4, p. 725-742
https://doi.org/10.47348/SALJ/v142/i4a5

Abstract

It is highly contested in modern contract law whether the victim of breach may lay claim to the profits of the party in breach. South African law generally does not support such a remedy, but a comparative perspective reveals a rather more complex picture. The fact pattern singled out for attention here is that of a seller profiting from breach of contract through selling the same object twice, and the legal system chosen for comparison is German law, which allows the first buyer to lay claim to the seller’s proceeds from the second sale. It is then indicated how the origins of this remedy rather curiously can be traced to the claim of a creditor against a debtor to give up reimbursement arising from impossibility of performance. These developments are then contrasted to the parallel evolutionary process that gave rise to modern South African law, which does not recognise this form of relief. In conclusion, it is considered whether South African law should follow the German example. The finding is that this is undesirable on grounds of principle as well as policy.

The distinction between the governing law and the incorporation by reference of contractual terms in international contracts

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

The distinction between the governing law and the incorporation by reference of contractual terms in international contracts

Author: Faadhil Adams

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 4, p. 743-773
https://doi.org/10.47348/SALJ/v142/i4a6

Abstract

The distinction between the governing law of a contract and the incorporation of contractual terms by reference is a crucial yet often misunderstood aspect of international contract law. This article systematically explores the theoretical foundations and practical implications of these concepts, assessing their significance in determining contractual rights, obligations, and the applicability of mandatory legal provisions. By engaging with private-international-law principles, comparative legal frameworks and case-law analysis, the article highlights how the governing law provides a legal framework for contractual interpretation and enforcement, whereas incorporated terms function within this framework as contractual provisions. The article provides a basis for how international uniform legal instruments (non-state law), such as the UNIDROIT Principles of International Commercial Contracts, may serve as governing law or merely as incorporated terms. Special attention is given to arbitration agreements, the impact of mandatory rules, and the doctrine of dépeçage. The findings suggest that while the distinction between these two concepts is often subtle, it has profound implications for legal certainty, contractual autonomy and the enforceability of international agreements. The article ultimately provides a refined understanding of these principles to aid practitioners and scholars in navigating complex cross-border contractual arrangements.

An overview of indirect unfair discrimination protection in South Africa in the context of the Employment Equity Act’s affirmative action measures

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

An overview of indirect unfair discrimination protection in South Africa in the context of the Employment Equity Act’s affirmative action measures

Author: Elsabé Huysamen

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile & Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 142 Issue 4, p. 774-799
https://doi.org/10.47348/SALJ/v142/i4a7

Abstract

This article examines the relationship between affirmative action and protection against indirect discrimination in South African employment law, particularly under the Employment Equity Act 55 of 1998. Ultimately, the article aims to establish the extent to which reliance on indirect discrimination protection still plays a role outside the shadow of the EEA’s affirmative action measures. While both mechanisms aim to promote transformative substantive equality, they do so through distinct, yet overlapping, means. Affirmative action imposes proactive obligations on designated employers to address systemic disadvantage, potentially reducing the scope for indirect discrimination claims. However, this article argues that indirect discrimination remains a crucial safeguard, especially in contexts where affirmative action is absent, poorly implemented, or limited in scope. Key limitations of the EEA’s affirmative action measures include its application only to designated employers and its focus exclusively on race, gender and disability. Additionally, the enforcement of affirmative action obligations relies solely on administrative mechanisms, offering little recourse for aggrieved individuals. The article argues that indirect discrimination protection fills these gaps by identifying and addressing covert systemic inequalities. Ultimately, the article asserts that indirect discrimination retains significant legal and transformative value, particularly as a corrective mechanism for structural inequality. It concludes that affirmative action and indirect discrimination should be viewed as complementary tools rather than substitutes in pursuing equality and social justice in post-apartheid South Africa.

Children flourishing: Evolving capacities, human dignity and the realisation of children’s rights in South Africa

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

Children flourishing: Evolving capacities, human dignity and the realisation of children’s rights in South Africa

Authors: Bryony Elizabeth Fox & Caitlyn Lattimer

ISSN: 1996-2177
Affiliations: Postdoctoral Research Fellow, Chair in Urban Law and Sustainability Governance, Stellenbosch University; LLD Candidate, Department of Private Law, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 4, p. 800-821
https://doi.org/10.47348/SALJ/v142/i4a8

Abstract

This article examines the potential of the principle of evolving capacities, outlined in art 5 of the Convention on the Rights of the Child (‘CRC’), to enhance the realisation of children’s rights in South Africa. Although the principle is not explicitly recognised in South African law, it offers a normative framework for balancing children’s rights to protection and autonomy. The principle, which is grounded in international law and is aligned with ss 10 and 28 of the Constitution of the Republic of South Africa, 1996, can be understood in light of the constitutional values of human dignity and human flourishing. The article explores the principle’s conceptual foundations, as well as its interpretative, developmental, participatory and protective functions. It then analyses how the principle has been implicitly referenced in South African legislation, albeit that it is underdeveloped in South African jurisprudence. Finally, it proposes a constitutionally grounded approach for the principle’s greater domestic application. In doing so, the article advocates for a more context-sensitive and dignity-affirming jurisprudence for children in South Africa.

The rise of judicial review of South Africa’s treaty-making powers

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

The rise of judicial review of South Africa’s treaty-making powers

Author: Hannah Woolaver

ISSN: 1996-2177
Affiliations: Associate Professor, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 4, p. 822-856
https://doi.org/10.47348/SALJ/v142/i4a9

Abstract

This article examines recent developments in judicial review of South Africa’s treatymaking powers. It analyses court decisions that have expanded the procedural and substantive review of the executive’s authority to enter into and withdraw from treaties. The article argues that while these developments aim to enhance accountability, they risk intruding on the executive’s foreign affairs discretion and creating conflicts between domestic and international obligations. Drawing on comparative practice, it proposes refinements to limit standing, timing of review, and standards of scrutiny. The article concludes that clearer constitutional delineation of treaty powers may be needed to balance democratic accountability, rights protection, and effective foreign policy conduct.