Exploring the use of personal servitudes for renewable energy in South Africa: A common, irregular or novel idea?

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

ARTICLE

Exploring the use of personal servitudes for renewable energy in South Africa: A common, irregular or novel idea?

Author: Tina Kotze

ISSN: 1996-2177
Affiliations: Research and Didactics Lead: Law and Ethics, Boston City Campus; Research Associate, University of Pretoria
Source: South African Law Journal, Volume 142 Issue 3, p. 567-599
https://doi.org/10.47348/SALJ/v142/i3a7

Abstract

Securing rights on land is the first step in developing a renewable energy project. This article considers using and creating personal servitudes in favour of a private independent power producer to establish a renewable energy facility (‘REF’) in South Africa. In particular, the article considers three different categories of personal servitudes that could be used to secure land rights for the establishment and operation of a REF, namely (a) traditional common-law personal servitudes (specifically the usufruct), (b) irregular servitudes (servitutes irregulares), and (c) novel personal servitudes. The absence of a numerus clausus of real rights in the South African property-law context allows for the creation of novel limited real rights. In the renewable energy context, this means that entirely novel limited real rights in general, and more specifically a new category of servitude in particular, could in principle be created, provided that the right complies with (a) the requirements of s 63(1) of the Deeds Registries Act 47 of 1937, (b) the subtraction from the dominium test, (c) the general requirements of personal servitudes, and (d) other relevant legislative requirements, such as those provided for in the Subdivision of Agricultural Land Act 70 of 1970.

The role of trade mark law in food-labelling regulation: A buttery battle between Clover SA (Pty) Ltd and Siqalo Foods (Pty) Ltd

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

ARTICLE

The role of trade mark law in food-labelling regulation: A buttery battle between Clover SA (Pty) Ltd and Siqalo Foods (Pty) Ltd

Authors: Jeanette Visagie

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, North-West University
Source: South African Law Journal, Volume 142 Issue 3, p. 600-625
https://doi.org/10.47348/SALJ/v142/i3a8

Abstract

This article considers the role of trade mark law in food-labelling regulation with reference to Clover SA (Pty) Ltd v Siqalo Foods (Pty) Ltd (ZAGPPHC) and the subsequent appeal in Siqalo Foods (Pty) Ltd v Clover SA (Pty) Ltd (SCA). Our courts accept that the test to establish if the use of a mark contravenes s 6 of the Agricultural Product Standards Act 119 of 1990 (‘APS Act’), as read with the relevant regulations, is synonymous with establishing whether or not there is a likelihood of deception or confusion under trade mark law. The article also discusses the meaning of a trade mark and its relevance to labelling letter-size restrictions under the Dairy Regulations issued in terms of the APS Act. The article also highlights the different roles and functions of the Minister of Agriculture under the APS Act and the Registrar of Trade Marks under the Trade Marks Act 194 of 1993 in considering the distinguishing features between trade mark law and food-labelling regulation.

Labour-law remedies in South Africa: Contractual and statutory avenues

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

ARTICLE

Labour-law remedies in South Africa: Contractual and statutory avenues

Authors: Marthinus van Staden & Sieg Eiselen

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand; Professor Extraordinarius in Private Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 3, p. 626-657
https://doi.org/10.47348/SALJ/v142/i3a9

Abstract

This article examines the complex interplay between contractual and statutory remedies in South African labour law. It highlights how statutory remedies now coexist with common-law contractual remedies. The authors analyse the key principles that the courts have established, including the conceptual separation between contractual and legislative matters, distinctions between ‘unlawful’ and ‘unfair’ dismissals, and the strategic implications for litigants making a choice of remedy avenues. The article explores three primary contractual remedies — specific performance, compensation and damages — detailing their applications and limitations. It discusses how courts have sought to balance employee protections with employer rights while considering practical workplace realities. The authors note that while contractual and statutory remedies overlap to some extent, they operate independently. This offers flexibility, but choosing a suitable remedy does require careful consideration. Based on this analysis, the article proposes several recommendations to improve the system. These include clearer legislative guidelines on remedy interactions, enhanced training for legal professionals, improved public education on labour rights, the encouragement of alternative dispute resolution mechanisms and the potential harmonisation of prescription periods for different claim types. Implementing such recommendations could refine South Africa’s labour-law system, ensuring that it balances stakeholder rights effectively while providing clear, accessible remedies for workplace disputes. The authors conclude that the dual system of remedies, when properly understood and applied, offers comprehensive protection and a fair resolution of labour issues in the South African context.

What’s in a sentence? MK & Zuma v The IEC

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

NOTES

What’s in a sentence? MK & Zuma v The IEC

Author: Simon Thompson

ISSN: 1996-2177
Affiliations: Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 2, p. 207-223
https://doi.org/10.47348/SALJ/v142/i2a1

Abstract

The Constitutional Court’s confirmation that former President Jacob Zuma was disqualified from standing as a candidate in South Africa’s general election on 29 May 2024 created waves throughout political and legal circles. In this case note, I assess the treatment of one particular legal issue on which a unanimous Electoral Court and a unanimous Constitutional Court reached opposite conclusions, namely whether Zuma’s sentence for contempt of court fell within the ambit of the disqualification provision contained in s 47(1)(e) of the Constitution. Through the prism of the practical, inclusive method of constitutional interpretation, I criticise the Electoral Court for its handling of the issue and deem its conclusion, namely that Zuma’s sentence fell outside the provision, to be manifestly wrong. By contrast, I commend the Constitutional Court for its handling of the issue and find its conclusion, namely that Zuma’s sentence fell within the provision, to be patently correct.

An executor’s remuneration — Some unease with ‘gross value’ as a point of departure for its calculation if a fiduciary’s interest and matrimonial property are involved

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

NOTES

An executor’s remuneration — Some unease with ‘gross value’ as a point of departure for its calculation if a fiduciary’s interest and matrimonial property are involved

Author: J C Sonnekus

ISSN: 1996-2177
Affiliations: Professor in Private Law, University of Johannesburg
Source: South African Law Journal, Volume 142 Issue 2, p. 224-247
https://doi.org/10.47348/SALJ/v142/i2a2

Abstract

An executor’s remuneration for the administration of the estate is determined according to a prescribed tariff in the absence of an explicit clause in the will, and the Master taxes it according to the gross value of assets in the estate. The executor is entitled to receive the appropriate remuneration out of the estate’s assets. If the gross value includes the value, for example, of the joint estate where the deceased was married in community of property or of a fideicommissary asset that formed part of the deceased’s estate as fiduciary assets, this inflated value translates into an enhanced calculated remuneration that the executor could receive out of the residue of the assets of the estate. This, in turn, results in the unjustified impoverishment of all other beneficiaries and is to the unjustified benefit of the fideicommissary.

The termination of a ‘permanent romantic relationship’ and the right to maintenance pendente lite: EW v VH & Women’s Legal Centre Trust

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

NOTES

The termination of a ‘permanent romantic relationship’ and the right to maintenance pendente lite: EW v VH & Women’s Legal Centre Trust

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 142 Issue 2, p. 247-259
https://doi.org/10.47348/SALJ/v142/i2a3

Abstract

Unmarried permanent life partnerships have become a common phenomenon in South Africa. In EW v VH 2023 (4) SA 123 (WCC), the Western Cape High Court had to deal with an application for maintenance pendente lite and a contribution towards costs following the termination of a ‘permanent romantic relationship’. Part of the application was a prayer for developing the common law to recognise a claim for ongoing maintenance for life partners. An interim and constitutionally sound remedy for such couples upon the breakdown of their relationship needed to be found in the interests of justice. We examine the court’s constitutional duty to promote the spirit, purport and objects of the Bill of Rights when developing the common law and conclude that the lack of maintenance pendente lite protection for life partners undoubtedly constitutes unfair discrimination against a traditionally disadvantaged group: unmarried, cohabiting women.