The voluntary assumption of an enforceable support duty — Comments on the ruling in NM v BM

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

NOTES

The voluntary assumption of an enforceable support duty — Comments on the ruling in NM v BM

Author: Amanda Barratt

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 2, p. 260-275
https://doi.org/10.47348/SALJ/v142/i2a4

Abstract

In the case of NM v BM [2024] ZAWCHC 254, a stepfather had been providing generous financial support to his stepchildren while he was married to the children’s mother. The court was not satisfied with the stepfather’s abrupt discontinuation of financial support immediately upon splitting from the children’s mother. The note explores whether an order requiring continued maintenance from a stepparent could be supported by the Supreme Court of Appeal ruling in Road Accident Fund v Mohohlo 2018 (2) SA 65 (SCA), which provided that an enforceable duty of financial support could be created through the voluntary assumption of such a duty in a familial setting.

Rooftop solar panels: Movable or immovable?

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Rooftop solar panels: Movable or immovable?

Author: Reghard Brits

ISSN: 1996-2177
Affiliations: Extraordinary Professor, University of the Western Cape; Research Fellow, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 2, p. 276-310
https://doi.org/10.47348/SALJ/v142/i2a5

Abstract

This article investigates whether rooftop solar panels form part of the building (immovable property) on which they are installed or whether they remain independent movable things even after their attachment to a roof. The enquiry is conducted against the backdrop of the uncertainties and debates that plague the doctrine of accession (accessio) in terms of which the owner of land is automatically the owner of all accessories thereof — that is, things permanently attached to the property. Based on the current state of the law, the courts are likely to regard rooftop solar panels as movable things where it was not the intention of the owner of the movable to forfeit ownership thereof (like a creditor who had reserved ownership in a credit agreement), even if the objective factors alone would have indicated that the solar panels had acceded to the building. This approach is criticised, and the argument is made that only the objective factors surrounding the physical installation, as informed by common sense and the prevailing standards of society, should be considered — not anyone’s subjective intention. After considering these factors, the article argues that most rooftop solar panels are part of the immovable property and are thus automatically owned by the landowner. If this outcome is unsatisfactory for commercial or policy reasons, it is recommended that the legislature should intervene with an express statutory exception for solar installations and/or a more general mechanism that would enable the registration of notarial bonds over objects attached to a building. Either or both solutions will create more certainty than the current approach of considering the owner’s intention on a case-by-case basis.

Possessory protection under the mandament van spolie for the lessee against the lessor in a case involving the remote deactivation of movables

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Possessory protection under the mandament van spolie for the lessee against the lessor in a case involving the remote deactivation of movables

Author: E J Marais

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 142 Issue 2, p. 311-346
https://doi.org/10.47348/SALJ/v142/i2a6

Abstract

In Tenox Management Consulting Inc v Scania South Africa (Pty) Ltd [2022] ZAGPJHC 737, the lessee of trucks refused to return them to the lessor after the lessee committed a breach of contract. The lessor then remotely deactivated the trucks without a court order, as per its agreement with the lessee in the event of a breach. The lessee subsequently instituted the mandament van spolie (‘mandament’) against the lessor to restore the trucks to the lessee in an operational state. The court ruled in favour of the lessee by holding that the lessor’s conduct amounted to unlawful spoliation. The decision raises several points worthy of investigation, namely: the type of ‘possession’ needed for the mandament (specifically whether the lessee has possession for purposes of this remedy); the legal-political function of possession (which concerns the rationale for possessory protection under the mandament); whether parties may agree that one could spoliate or dispossess the other (via remote deactivation) in an extra-judicial manner; whether the prohibition of co-possession applies in our law and whether it excludes the mandament as between lessees and lessors; the difference between lease and agency; and, finally, the intention needed for the mandament. A doctrinal and constitutional analysis reveals that the decision is, for the most part, to be welcomed.

An analysis of the failure of a company to prevent bribery under the Prevention and Combating of Corrupt Activities Act

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

An analysis of the failure of a company to prevent bribery under the Prevention and Combating of Corrupt Activities Act

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 2, p. 347-374
https://doi.org/10.47348/SALJ/v142/i2a7

Abstract

An innovative provision of the Prevention and Combating of Corrupt Activities Act 12 of 2004 is the recently introduced s 34A. This section establishes a new offence: members of the private sector and incorporated state-owned entities can be held liable for failing to prevent bribery by an associated person. To escape liability, the entity must prove that it had adequate procedures in place to prevent bribery. This article examines the interpretation, application and enforcement of s 34A. The article compares s 34A to s 7 of the UK Bribery Act, 2010, on which it is modelled, and makes recommendations for interpreting, applying and enforcing s 34A. The article argues that s 34A holds immense potential to curb the distressingly high levels of bribery in South Africa, but that its effectiveness and impact will depend on how it is enforced and on the collective commitment to upholding its principles.

The Road Accident Fund’s ‘without prejudice’ settlement offers on general damages: Admissible admissions or inadmissible negotiation statements?

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

The Road Accident Fund’s ‘without prejudice’ settlement offers on general damages: Admissible admissions or inadmissible negotiation statements?

Author: Ferdinand Heinrich Hermann Kehrhahn

ISSN: 1996-2177
Affiliations: Lecturer, Department of Procedural Law, University of Pretoria
Source: South African Law Journal, Volume 142 Issue 2, p. 375-401
https://doi.org/10.47348/SALJ/v142/i2a8

Abstract

Under s 17(1), read with s 17(1A) of the Road Accident Fund Act 56 of 1996 and its Regulations, the Road Accident Fund (‘RAF’) is liable for general damages only if the RAF is satisfied that a medical practitioner has correctly assessed the injuries of a motor-accident victim as serious. The RAF’s satisfaction with the serious-injury assessment is a jurisdictional fact that must be alleged and proved if a court assumes jurisdiction to make a general-damages (non-pecuniary) award. One way to prove that the RAF has accepted the victim’s injuries as serious is by presenting evidence of the RAF’s admissions contained in extra-curial statements. However, such extra-curial statements are generally inadmissible when they are made during bona fide settlement negotiations. This article considers the without-prejudice settlement negotiation inadmissibility rule and its exceptions. It critically considers the recent judgments of Keagan, Ntsembi and Paulsen, on the one hand, where the courts held that the RAF’s settlement offers on general damages made during bona fide settlement negotiations were inadmissible evidence, and the judgments of Olivier and Van Tonder, on the other hand, where the courts held that the RAF’s settlement offer was admissible evidence. It is argued the RAF’s offer to settle general damages was correctly held in Olivier and Van Tonder to be a tacit acceptance by the RAF that the victim’s injuries were serious and that such offers are admissible evidence as an exception to the without-prejudice inadmissibility rule, thereby obviating the need to establish the required jurisdictional fact into evidence.

Price reduction as a generalised remedy in the law of contract

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Price reduction as a generalised remedy in the law of contract

Author: Tjakie Naude

ISSN: 1996-2177
Affiliations: BA LLB LLD (Stellenbosch)
Source: South African Law Journal, Volume 142 Issue 2, p. 402-438
https://doi.org/10.47348/SALJ/v142/i2a9

Abstract

Price reduction should be recognised as a generalised remedy for breach of contract. Price reduction is already recognised in sale and lease contracts. The Consumer Protection Act 68 of 2008 also provides for it in respect of services. It should also be available in other contract types (subject to special regulation for contract types where there is structural inequality between the parties). For example, price reduction is necessary in contracts to do a piece of work (locatio conductio operis). The costs order and court’s statement on costs orders in BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) demonstrate that the court’s dicta on the exceptio non adimpleti contractus and the judicial discretion to relax it did not reflect what was expected of the aggrieved party on the facts. Since the aggrieved party was in fact expected to reduce the price extra-judicially in the circumstances, there should be recognition of and rules on such a self-help remedy at the instance of the aggrieved party. There is growing recognition of the utility of generalised price reduction internationally. South African law should follow suit. This contribution also proposes detailed rules on the price-reduction remedy.

The ambit and purpose of the crime of public violence

by | Apr 26, 2025 | SACJ, SACJ V37 I3 2024

The ambit and purpose of the crime of public violence

Author: Shannon Hoctor

ISSN: 1996-2118
Affiliations: BA LLB LLM (UCT) DJuris (Leiden) PG Dip (Latin) (Wales Trinity Saint David); Professor, Department of Public Law, Faculty of Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 37 Issue 3, p. 289-312
https://doi.org/10.47348/SACJ/v37/i3a1

Abstract

The roots of the crime of public violence may be found in Roman law, but the modern South African crime has developed through case law, principally based on the definition of the crime found in the works of the Roman-Dutch institutional writer Van der Linden. While there is wide agreement regarding the elements of the crime, the content of such elements is not always very clear and is subject to the qualifying element of the crime: that the conduct should assume serious dimensions. It is contended that the crime may be committed by means of force rather than violence and that this can occur in the context of either the disturbance of peace and security or the invasion of the rights of others. Moreover, it is pointed out that the structure of the crime incorporates the common purpose doctrine, where liability is based on the accused’s conduct in associating himself or herself with the crime being committed, rather than personally committing the unlawful conduct. The implications of these aspects are explored in the context of the application of the crime of public violence to unlawful protest actions.

Forged in secrecy, sealed in blood: The origin, initiation, symbolism, hierarchy and power dynamics within devil-worshipping gangs in the Free State province

by | Apr 26, 2025 | SACJ, SACJ V37 I3 2024

Forged in secrecy, sealed in blood: The origin, initiation, symbolism, hierarchy and power dynamics within devil-worshipping gangs in the Free State province

Authors: Ashwill Phillips & M Cronje

ISSN: 1996-2118
Affiliations:BA BA (Hons)(Crim) MA (Crim) (UFS); Lecturer, Department of Criminology, University of the Free State; PhD (Crim) (UKZN); Lecturer, Department of Criminology, University of the Free State
Source: South African Journal of Criminal Justice, Volume 37 Issue 3, p. 313-339
https://doi.org/10.47348/SACJ/v37/i3a2

Abstract

An investigation by the South African Police Service in 1997 led to the discovery of a devil-worshipping group or ‘evil church’ that moved from parts of northern Africa and settled in Maseru, Lesotho. This group allegedly combined elements of the occult with traditional African witchcraft, giving rise to what local communities refer to as ‘devil-worshipping gangs’. Since 2011, these groups have evolved and spread throughout the Free State province, perpetrating crimes which range from murder to organ trafficking and rape. They have gained notoriety for committing ‘spiritually motivated’ crimes that include the consumption of human flesh, ritual stabbings, and purported communication with demonic entities. Despite their infamy, and the fear their gang-related practices induce, not much is known about these youth gangs. Extant research is primarily based on secondary data obtained from service providers and desktop analyses. Their enigmatic nature and complex structures also serve to complicate crime prevention efforts in communities, posing a plethora of social challenges and exacerbating crime rates. Accordingly, a qualitative study was conducted with 39 detained male offenders and 18 service providers to explore the existence of these groups and their unique practices related to initiation, symbolism, hierarchy and occult belief system.

A criminological exploration of the involvement of perpetrators in mob justice-related incidents in South Africa

by | Apr 26, 2025 | SACJ, SACJ V37 I3 2024

A criminological exploration of the involvement of perpetrators in mob justice-related incidents in South Africa

Authors: L Mpuru & BW Häefele

ISSN: 1996-2118
Affiliations:MA (Crim) (Unisa); Lecturer, Department of Criminology and Security Science, Unisa; PhD (Crim) (Fort Hare); Professor, Department of Criminology and Security Science, Unisa
Source: South African Journal of Criminal Justice, Volume 37 Issue 3, p. 340-362
https://doi.org/10.47348/SACJ/v37/i3a3

Abstract

It has been 30 years into democracy, and many South Africans are still confronted by mob justice incidents in their communities. Crime and violence, accompanied by a lack of trust in the justice system, have created feelings of fear and insecurity among community residents. The study explores the experiences of perpetrators involved in mob justice-related incidents in South Africa. A qualitative approach using semi-structured interviews was employed to gain an in-depth understanding of the participants’ experiences as direct perpetrators of mob justice. The study found that crime in South Africa remains unsolved, leading to communities relying on violence to settle communal disputes and prevent crime. The study concludes that community residents are generally frustrated by the high levels of crime, poverty and unemployment. As a result, the lack of coping mechanisms to survive these societal challenges shapes a society that is full of hostility, suspicion, and violence. The study offers prevention strategies through informed recommendations, such as creating job opportunities, developing community infrastructure, and fostering collaboration between the police and the community. Additionally, involving other stakeholders, such as social workers and social welfare services, will help facilitate awareness campaigns to discourage participation in mob justice-related incidents.

An analysis of the offences relating to malicious communications and associated court orders under the Cybercrimes Act 19 of 2020

by | Apr 26, 2025 | SACJ, SACJ V37 I3 2024

An analysis of the offences relating to malicious communications and associated court orders under the Cybercrimes Act 19 of 2020

Author: Delano van der Linde

ISSN: 1996-2118
Affiliations: LLB LLM LLD (Stell); Associate Professor, Faculty of Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 37 Issue 3, p. 363-394
https://doi.org/10.47348/SACJ/v37/i3a4

Abstract

As society has been increasingly reliant on online platforms to communicate, it has also unfortunately become increasingly necessary to criminalise communications which violate the constitutional rights of equality, dignity as well as bodily and psychological integrity. The Cybercrimes Act 19 of 2020 creates a trilogy of new offences, namely the disclosure of data messages that incite damage to property or violence (s 14), data messages which threaten persons with damage to property or violence (s 15) and the unlawful disclosure of intimate images (s 16). These offences are collectively referred to as ‘malicious communications’ under Part II of the Act. Due to several constitutional and interpretive issues, it is doubted how effective these new offences will be in practice. Perhaps the most potent protection for complainants will be the orders that courts may make to ‘protect complainants from the harmful effect of malicious communications’ under Part VI of the Cybercrimes Act (which has yet to come into force). These orders include protection orders to prohibit the disclosure or subsequent disclosure of malicious communications and the removal or disabling of access to such messages. Some of these orders are similarly marred with interpretative issues but do not negate their practical necessity.