Relational theory, context and commercial common sense: views on contract interpretation and adjudication

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

Relational theory, context and commercial common sense: views on contract interpretation and adjudication

Authors Andrew Hutchison

ISSN: 1996-2177
Affiliations: Associate Professor in the Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 296 – 326

Abstract

One of the key insights of relational contract theory is that context matters — in all contracts, but particularly in long-term commercial ones. The use of context in the interpretation of contracts appears to be on the rise in South Africa, in line with increased subjectivity in contract adjudication. Interesting parallels can be drawn with the shifting sands of contract interpretation in the UK, where contextualism is on the rise, but remains controversial. Indeed, even the concept of good faith is under discussion in English law, particularly with regard to relational contracts. Appropriate construction of the agreement seems to be the favoured approach to achieve results which make ‘commercial common sense’. This article will also draw on the English reception of relational contract theory. These comparative insights will then be applied in a discussion of the proper approach to South African contract adjudication, using a case study of the Everfresh case, which is a leading example of a post-constitutional relational contract dispute.

‘Delinquent directors’ and ‘directors under probation’: A unique South African approach regarding disqualification of company directors

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

‘Delinquent directors’ and ‘directors under probation’: A unique South African approach regarding disqualification of company directors

Authors Jean du Plessis

ISSN: 1996-2177
Affiliations: Professor (Corporate Law) and Director, Centre for Comparative Corporate Governance, Deakin Law School, Deakin University, Australia
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 274 – 295

Abstract

This article explores the unique way in which the disqualification of company directors is provided for in the South African Companies Act 71 of 2008. Not only is the terminology of ‘delinquent director’ or ‘director under probation’ unique, but there are also several peculiar aspects regarding the orders that a court can make, and conditions that may be attached to these orders, when persons are declared ‘delinquent’ or put under ‘probation’ by a court. The article also explains in detail the rather complex nature of the disqualification provisions, and analyses all the cases dealing with ‘delinquency’. The focus is on the constitutionality of the delinquency orders that may be made by a court, which has been a pivotal aspect in most of the cases decided so far. The authors conclude that the core problem of the section providing for the disqualification of persons on application (s 162 of the Act) is its complexity. Different parties have standing to apply for delinquency or probation orders respectively, and the circumstances under which these parties can apply for such orders are also different and require careful interpretation to comprehend. It is unlikely that these provisions will be used to their full potential to achieve their ultimate goals, which are the protection of shareholders, creditors and the public against delinquent directors, and to provide opportunities for some directors to gain experience as directors in terms of court orders which place them ‘under probation’.

Notes: The admissibility of extra-curial admissions by a co-accused: A discussion in the light of the Ndhlovu, Litako and Mhlongo/Nkosi cases, and international law

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

Notes: The admissibility of extra-curial admissions by a co-accused: A discussion in the light of the Ndhlovu, Litako and Mhlongo/Nkosi cases, and international law

Authors Nicci Whitear

ISSN: 1996-2177
Affiliations: Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 244 – 262

Abstract

None

Notes: What is a ‘provincial act’ for purposes of the constitution? Determining the boundaries of the Constitutional Court’s confirmation jurisdiction

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

Notes: What is a ‘provincial act’ for purposes of the constitution? Determining the boundaries of the Constitutional Court’s confirmation jurisdiction

Authors Victoria Bronstein

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 235 – 244

Abstract

None

On the Legal Effects of Unlawful Administrative Action

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

On the Legal Effects of Unlawful Administrative Action

Authors Daniel Freund, Alistair Price

ISSN: 1996-2177
Affiliations: Candidate Attorney, Bowman Gilfillan Inc; Associate Professor in Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 184 – 208

Abstract

The rule of law, a founding value of the South African Constitution, is a complex ideal. It comprises principles that, on occasion, pull in different directions. This conflict within the rule of law is laid bare in administrative law. The tension is most acute when a court is called upon to remedy unlawful administrative action. On one hand unlawful administrative action ought to have no legal effect. On the other hand, considerations of certainty and practicality may require courts to decline to set aside unlawful administrative action with retrospective effect. Sometimes unlawful administrative action may justifiably have legal effects. This article first demonstrates how this apparent paradox is visible at all stages of the application of administrative law. The article then turns its focus to the remedial stage: that is, when a court has to decide when it is just, equitable and in the public interest not to quash an unlawful administrative act. To this end we explain the proper relationship between the remedial provisions of the Constitution and the Promotion of Administrative Justice Act. We then propose a non-exhaustive set of considerations that ought to guide the courts’ exercise of remedial discretion which may assist the incremental development of a principled and predictable jurisprudence.

The Tenability of the Constitutional Court’s Arguments in Support of the Possible Recognition of Wrongful-Life Claims in South Africa

by | Oct 19, 2019 | SALJ, SALJ V134 I1 2017

The Tenability of the Constitutional Court’s Arguments in Support of the Possible Recognition of Wrongful-Life Claims in South Africa

Authors Anton van Loggerenberg

ISSN: 1996-2177
Affiliations: Advocate of the High Court of South Africa
Source: South African Law Journal, Volume 134 Issue 1, 2017, p. 162 – 183

Abstract

This article is a critical analysis of the Constitutional Court’s arguments relating to the potential recognition or viability of wrongful-life claims in the South African law of delict as set out in H v Fetal Assessment Centre 2015 (2) SA 193 (CC). The article illustrates how the Constitutional Court’s attempt to justify the recognition of this claim within the context of an Aquilian action by application of inter alia the child’s constitutional right to have his or her best interests regarded as paramount in all circumstances concerning the child, is untenable. It accordingly considers the prospects of establishing harm-causing conduct, wrongfulness and causation in order to succeed with the actio legis Aquiliae in addition to the possibility of claiming constitutional damages.