Traversing the South African emolument attachment order legal landscape post 2016: Quo Vadis?

by | Oct 27, 2019 | SLR, SLR V30 I1

Traversing the South African emolument attachment order legal landscape post 2016: Quo Vadis?

Authors Stephan van der Merwe

ISSN: 1996-2193
Affiliations: Senior Attorney and Lecturer, Stellenbosch University Law Clinic
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 77 – 96

Abstract

The South African Constitutional Court delivered a landmark judgment in relation to emolument attachment orders ("EAOs") in its 2016 ruling of University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services; Association of Debt Recovery Agents NPC v Clinic; Mavava Trading 279 (Pty) Ltd v Clinic. The court confirmed that EAOs were frequently obtained unlawfully and in circumstances where debtors’ constitutional rights and freedoms were completely disregarded. The judgment followed on decades of legal disputes between creditors, abetted by their collection agents, and debtors, represented by organisations like the University of Stellenbosch Law Clinic. Following this judgment, legislation has been enacted to address some of the more pertinent frailties in the Magistrates’ Courts Act 32 of 1944 ("MCA") in order to provide for more robust judicial oversight in the granting of EAOs. This article offers a unique perspective on the background that merited this significant judicial and legislative intervention. It then considers the significance and impact of the judgment and impending law reform, and evaluates whether the enactment of the Courts of Law Amendment Act 7 of 2017 ("CLA") addresses all the relevant concerns. It is suggested that uncertainty still remains regarding EAOs granted before the judgment, as well as with regard to the recovery of illegally deducted amounts.

All bark and no bite? Contemporary consumer redress in Latin America

by | Oct 27, 2019 | SLR, SLR V30 I1

All bark and no bite? Contemporary consumer redress in Latin America

Authors Manuel A. Gómez

ISSN: 1996-2193
Affiliations: Professor of Law and Associate Dean of International & Graduate Studies at the College of Law, Florida International University
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 61 – 76

Abstract

This article describes the current status of consumer protection in Latin America with particular attention to the recent efforts pursued both at the national and regional levels and the challenges faced. It surveys the landscape of consumer redress in the region and also discusses the use of transnational litigation as a remedial strategy for the shortcomings of the Latin American consumer protection regime. As the article shows, despite many differences among the national legal systems of Latin American countries, there have been some attempts to achieve regional synchronisation. From the CIDIP-VII draft produced under the aegis of the Organization of American States ("OAS"), to the significant effort undertaken by United Nations Conference of Trade and Development ("UNCTAD") with the support of the Swiss government; several countries are now able to coordinate their activities and work toward harmonising their legal regimes. Notwithstanding this optimistic outlook, there are still some important obstacles that stand in the way and that have prevented these modernised consumer protection systems from realising some of its goals. As the article concludes, one possible way to mitigate the existing problems would be if Latin American countries paid more attention to ensuring that consumers have access to local and effective means of judicial protection; in other words, that the existing remedies not only bark but also bite.

Regulatory and judicial consumer protection in the United States of America: An assessment

by | Oct 27, 2019 | SLR, SLR V30 I1

Regulatory and judicial consumer protection in the United States of America: An assessment

Authors Linda S Mullenix

ISSN: 1996-2193
Affiliations: Morris and Rita Atlas Chair in Advocacy, The University of Texas School of Law
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 33 – 60

Abstract

Consumers in the United States of America are protected through a vast scheme of federal and state regulatory agencies and bureaus. Notwithstanding the existence of an impressive bureaucratic apparatus for consumer protection, a persistent theme among scholars is the relative weakness of regulatory consumer protection in the United States, compared to that of other countries — most notably countries within the European Union. The public awareness of and impetus for robust consumer protection in the United States began in the 1960s, with a consumer movement founded by Ralph Nader. Since the 1960s, numerous consumer interest groups have served as lobbyists and watchdogs for consumer interests, pursuing legislation and instituting remedial actions before relevant agencies and in private litigation. This article explores the complex nature of regulatory consumer protection in the United States, describing the array of federal and state agencies whose mandate is consumer protection. The article explores the authority of these various executive branch bodies to issue rules and regulations, conduct investigations, prosecute and sanction violations of consumer protection laws. In addition to consumer protection authorized under federal law, the article further discusses the power of state attorneys general to pursue parens patriae actions on behalf of state citizens for consumer law violations. In assessing the efficacy of federal and state regulatory powers, the article surveys various legislative, executive, judicial, and political constraints on consumer protection agencies to carry out their missions. Finally, the article turns attention to consumer protection through the judicial system, focusing on individual and aggregate procedural means — especially class action litigation — for private enforcement of consumer protection laws. The article assesses the extent to which private litigation serves to counterbalance the problems associated with alleged weak regulatory enforcement of consumer protection laws.

The South African Class Action vs Group Action as an appropriate procedural device

by | Oct 27, 2019 | SLR, SLR V30 I1

The South African Class Action vs Group Action as an appropriate procedural device

Authors Theo Broodryk

ISSN: 1996-2193
Affiliations: Senior Lecturer and Manager: Law Clinic, Stellenbosch University
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 6 – 32

Abstract

In Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae), Wallis JA held that in defining the class it is not necessary to identify all the members of the class otherwise the question would arise whether a class action was necessary as joinder in terms of the court rules would be permissible. He held that what is required is that the class be defined with sufficient particularity that a specific person’s membership can be objectively determined by examining his or her situation in light of the class definition. It can accordingly be inferred that, where the claimants are all identifiable, irrespective of the size of the class, they may need to be joined as plaintiffs to the proceedings. Class action proceedings may therefore not be the appropriate procedural device to be utilised in such circumstances. The problem, however, is that where the class comprises a large group of persons, joinder may be cumbersome and largely unfeasible. This potential problem is significant in that a court ordering joinder in such circumstances could potentially undermine the very foundation for the incorporation of the class action in to South African law, namely, access to justice. The article will accordingly consider what the test is that our courts should apply and what the factors are that it should take into consideration when determining the appropriateness of a class action as opposed to joinder. These issues have not yet been subject to a comprehensive and critical analysis with regard to the procedural approaches of prominent foreign jurisdictions, which is what the article will aim to do.

Judicature: (ON)Geregistreerde diensbaarheid van pypleiding en tóg die reg tot sloping van onskuldige eienaars se wonings?

by | Oct 27, 2019 | TSAR, TSAR 2018 I1

Judicature: (ON)Geregistreerde diensbaarheid van pypleiding en tóg die reg tot sloping van onskuldige eienaars se wonings?

Authors JC Sonnekus

ISSN: 1996-2207
Affiliations: Affiliated with the University of Johannesburg
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 1, 2018, p. 213 – 222

Abstract

None

Judicature: The constitutional and statutory obligations of private companies regarding requests for access to information

by | Oct 27, 2019 | TSAR, TSAR 2018 I1

Judicature: The constitutional and statutory obligations of private companies regarding requests for access to information

Authors Raashi Chauhan

ISSN: 1996-2207
Affiliations: Affiliated with the University of Johannesburg
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 1, 2018, p. 197 – 213

Abstract

None