Enforcing living wills in South Africa

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Enforcing living wills in South Africa

Authors: Elsje Bonthuys & Anton van Dalsen

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand, Johannesburg; BA (Pretoria) LLB (Stellenbosch)
Source: South African Law Journal, Volume 143 Issue 1, p. 68-92
https://doi.org/10.47348/SALJ/v143/i1a5

Abstract

This article examines some theoretical and practical issues concerning the implementation of living wills, also known as advance directives, on the assumption that legislation on the general issue of physician-assisted dying in South Africa is unlikely to be enacted soon. Pending the adoption of legislation, living wills provide an avenue for people to exercise meaningful choices about medical treatment near the end of life. Yet, medical practitioners and even courts often overlook the existence of living wills, despite the requirement of informed consent for any medical treatment. Four main factors impede the enforcement of these documents: first, the argument that the appointment of a person as a proxy decision-maker lapses when the maker of the living will becomes incompetent to express their views; secondly, ambiguity and contradictions in the law relating to assisted dying which are exacerbated by the medical professional guidelines; thirdly, the focus on criminal liability in the case law impedes the full development of the jurisprudence on this topic; and, fourthly, the practical difficulties in making the existence of living wills known to medical personnel at the time when they should be implemented. The article concludes by suggesting some ways to overcome these difficulties.

The enforceability of and contractual remedies for breach of extended notice periods in employment

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

The enforceability of and contractual remedies for breach of extended notice periods in employment

Author: Judith Geldenhuys

ISSN: 1996-2177
Affiliations: Senior Research Associate, University of Johannesburg
Source: South African Law Journal, Volume 143 Issue 1, p. 93-118
https://doi.org/10.47348/SALJ/v143/i1a6

Abstract

This article examines two key remedies available to employers — specific performance and damages — when employees breach agreed notice requirements. While the common-law position on termination by notice is largely settled, enforcing extended notice clauses remains a legally complex matter. Drawing on recent case law, the article explores the evidentiary and doctrinal thresholds for relief and traces a shift in judicial reasoning towards fact-sensitive adjudication. This evolution signals a deeper commitment to balancing enforceability, fairness and the realities of the modern workplace.

Requisitioned shareholder meetings in terms of section 61(3) of the Companies Act

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Requisitioned shareholder meetings in terms of section 61(3) of the Companies Act

Author: Vela Madlela

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 143 Issue 1, p. 119-154
https://doi.org/10.47348/SALJ/v143/i1a7

Abstract

This article examines some pertinent interpretational issues concerning the statutory framework relating to requisitioned shareholder meetings in terms of s 61(3) of the Companies Act 71 of 2008. The purpose is to assess the efficacy of this statutory framework, including its interpretation by the courts, in promoting shareholder governance while balancing the rights and obligations of company shareholders and directors. The article also assesses whether s 61(3) and its related provisions on requisitioned shareholder meetings are aligned with the trends in other modern corporate-law jurisdictions, particularly the United Kingdom, Australia and Canada. The article finds that while s 61(3) provides for an uncomplicated procedure that seeks to facilitate, rather than deter, requisitioned shareholder meetings, a fundamental weakness of the Companies Act in this regard is that it does not directly regulate the time frames within which a requisitioned shareholder meeting must be convened. Furthermore, the Act does not grant requisitionists the right to call and hold a requisitioned shareholder meeting if the directors have failed to do so. Moreover, the Act tends to be lenient on directors who ignore, unduly refuse or delay the calling of a requisitioned shareholder meeting. The article makes recommendations for legislative reform in South Africa to strengthen shareholders’ rights and directors’ accountability in the context of requisitioned shareholder meetings. It also provides recommendations on how the courts should interpret certain provisions of the Companies Act to advance the underlying objectives of requisitioned shareholder meetings, thereby enhancing corporate governance standards in South Africa.

Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

Author: Tebello Thabane

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 1, p. 155-183
https://doi.org/10.47348/SALJ/v143/i1a8

Abstract

This article examines the evolution of the notion of public interest in South African law, from the historical requirement for litigants to demonstrate a direct interest in the relief to its current endorsement by the Constitution of the Republic of South Africa, 1996. Traditionally, South African courts rejected the doctrine of the actio popularis, concerned that allowing open-access standing would open the floodgates of litigation and overwhelm the judicial system. However, the Constitution marked a paradigm shift, permitting any individual ‘acting in the public interest’ — an ‘ideological plaintiff’ — to protect constitutional rights through public interest actions. This constitutional pivot was further reflected in s 157(1)(d) of the Companies Act 71 of 2008, which introduced public interest standing into South African company law. Despite this significant shift, the application of public interest standing in company law remains largely unexplored until recent judicial developments. Notable cases, such as Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs, Organisation Undoing Tax Abuse NPC v Myeni (Special Plea Judgment) and Vantage Mezzanine Fund II Partnership v Hopeson have shed light on the potential and limitations of this mechanism in company law. This article critically examines these developments, clarifying the contours of public interest standing, evaluating its effectiveness, and speculating on its future trajectory, informed by insights from pioneering cases.

Protection down the road: Car shapes and intellectual property law

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Protection down the road: Car shapes and intellectual property law

Authors: Gretchen Jansen & Dennis Wurm

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, Stellenbosch University; Research assistant and PhD student in Public Law and International Economic Law, Universität Siegen, Germany
Source: South African Law Journal, Volume 143 Issue 1, p. 184-214
https://doi.org/10.47348/SALJ/v143/i1a9

Abstract

The automotive industry is of growing importance in South Africa. To maintain the country’s appeal as an international business hub for foreign automakers, the law should provide sufficient protection for automakers with regard to the shape of their vehicles. This article considers the extent to which South African intellectual property law provides protection for the shape of a motor vehicle. The law is examined comparatively, with the approaches in the European Union and the United Kingdom investigated to determine whether South African intellectual property law meets international standards in this context. It is argued that the law of registered designs remains the primary method of protection for car shapes, but that trade mark law and copyright law can be developed to offer supplementary avenues to enhance protection in this area.

Continuity and change in global labour law

by | Jan 31, 2026 | ACTA, ACTA 2025

Continuity and change in global labour law

Author Simon Deakin

ISSN: 1996-2088
Affiliations: MA PhD (Cantab) PhD(hc) (Louvain-la-Neuve); Professor of Law, University of Cambridge
Source: Acta Juridica, 2025, p. 1-25
https://doi.org/10.47348/ACTA/2025/a1

Abstract

This article undertakes an analysis of the prospects for global labour law from the perspective of long-run capitalist dynamics associated with phases of industrialisation. The article argues that Britain’s early industrialisation owed much to legal institutions, including the poor law and factory legislation, which supported labour mobility and improvements in productivity. Labour standards constructed around this model achieved a global reach by the middle decades of the twentieth century. Although weakened during the period of neoliberal policy dominance which began in Europe and North America in the 1980s, these institutions have proved surprisingly resilient, and have been strengthened in certain regions. If neoliberalism is ending, and it is not yet clear what will replace it, it is possible to predict that labour law will continue to have a future in mediating the impacts of markets and technology on humans and nature.

Has the Labour Relations Act exceeded its shelf life?

by | Jan 31, 2026 | ACTA, ACTA 2025

Has the Labour Relations Act exceeded its shelf life?

Author André van Niekerk

ISSN: 1996-2088
Affiliations: BA LLB MA (Witwatersrand) LLM (Leicester); Judge of the Labour Appeal Court
Source: Acta Juridica, 2025, p. 26-48
https://doi.org/10.47348/ACTA/2025/a2

Abstract

Any retrospective assessment of the Labour Relations Act (LRA) must necessarily determine whether the Act has succeeded in meeting its stated objectives, which are the advancement of economic development, social justice, labour peace and the democratisation of the workplace. This article traces the history of the LRA, the draft Bill that formed the basis of its negotiation, and the consensus that emerged from that tripartite process. The article concludes that the LRA has failed to meet its stated objectives, largely on account of its users’ rejection of those parts of the Act that sought to supplement the prevailing adversarial nature of industrial relations with a consensus-seeking, consultative ‘second channel’. The rejection of those provisions invites a consideration of different means to achieve the LRA’s stated objectives. A reconsideration of the LRA is also warranted by assumptions made when the LRA was drafted 30 years ago that are no longer valid. In particular, the corporatist assumptions that inform the model of collective bargaining no longer pertain, nor does the conception of work, tied as it is to the common-law contract of employment. Fragmented trade union federations and employers’ organisations, persistent adversarialism, the emergence of new forms of work and a dispute resolution system under stress all call for a re-evaluation of key elements of the LRA. The LRA failed to meet the challenges of democratic South Africa’s entry into a competitive global economy, even though it was designed to do so. The question is whether the Act remains fit for purpose to meet the current challenges of a fragile domestic economy in an increasingly polarised world.

Whither employment (and labour law)?

by | Jan 31, 2026 | ACTA, ACTA 2025

Whither employment (and labour law)?

Authors Abigail Osiki & Nicola Smit

ISSN: 1996-2088
Affiliations: LLB (Ibadan) LLM PhD (Cape Town). Senior Lecturer, Faculty of Law, University of Canterbury; Research Fellow, Department of Mercantile and Labour Law, University of the Western Cape; BLC LLB (Pretoria) LLD (Johannesburg). Professor of Law and Dean, Faculty of Law, Stellenbosch University
Source: Acta Juridica, 2025, p. 49-88
https://doi.org/10.47348/ACTA/2025/a3

Abstract

The legal and economic world for which labour law was traditionally designed has largely disappeared in the twenty-first century. Although the goals and purposes of labour law have not changed, it is in danger of becoming obsolete for most working people as employment, work and workplaces have undergone fundamental shifts. This contribution considers the changes that have occurred in the world of work and their impact on labour law and regulation by asking what status employment or work should carry in the future to improve the dignity, rights and autonomy of those who need them most. In considering the past and present iterations of employment (and labour law), while considering future adaptation, the following aspects are considered: the changing nature and scope of employment, collective rights and related concepts, the implications of such changes, emerging collaboration between different fields of law and policy, and recommendations for regulation to ensure the continued influence of labour law and its associated legal constructs (such as ‘work’).

Is the common law of employment up to the task of regulating the world of work, today and into the future?

by | Jan 31, 2026 | ACTA, ACTA 2025

Is the common law of employment up to the task of regulating the world of work, today and into the future?

Authors Dennis Davis & Chris Todd

ISSN: 1996-2088
Affiliations: BCom LLB (Cape Town) MPhil (Cantab). Former Judge President of the Competition Appeal Court; Honorary Professor of Law, University of Cape Town, University of the Western Cape and University of the Witwatersrand; BA(Hons) (Cape Town) BA (Oxon). Partner, Bowmans
Source: Acta Juridica, 2025, p. 89-135
https://doi.org/10.47348/ACTA/2025/a4

Abstract

This article examines how the common law regulating employment has developed over the past three decades. It reflects on the most significant cases dealing with contracts of employment during that period and how the law has evolved through those cases. While our common law of employment remains closely linked to Roman-Dutch law, the impact of the introduction of statutory protection for employees and the judicial interpretation of the scope and application of employment statutes has, somewhat surprisingly perhaps, rendered the common law less flexible than the system that Roman lawyers devised in a very different context. The article assesses whether the common law has the tools that it needs to respond to a rapidly changing world of work, and examines how employment statutes have, in effect, operated to tether the common law and have been interpreted in a manner that inhibits further development of the common law. Looking forward, the article assesses what changes in statutory regulation may be necessary or most effective to ensure that constitutionally supported employment protections and minimum standards, which broadly reflect twentieth century global consensus, remain relevant in the future, in the world in which South African citizens are most likely to find themselves working over the next three decades. The article identifies a significant disjuncture between current legal regulation and the reality of evolving working relationships under an increasingly wide variety of contracts and forms of work. Global instruments regulating the world of work are in a state of rapidly evolving transition. The article suggests that the South African legislature needs to follow suit, or it may find activist judges stepping in to fill the void.