Reimagining the right to engage in commercial activity on another’s land as a positive trading servitude

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Reimagining the right to engage in commercial activity on another’s land as a positive trading servitude

Author: Leigh-Ann Kiewitz

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of South Africa
Source: South African Law Journal, Volume 139 Issue 4, p. 887-912
https://doi.org/10.47348/SALJ/v139/i4a7

Abstract

This article shows that it could be theoretically possible to create a positive praedial trading servitude in the context of the right to trade on another’s land if certain established requirements are complied with when the doctrinal framework of South African law and s 63(1) of the Deeds Registries Act 47 of 1937 are applied. In light of s 63(1) of the Deeds Registries Act and the intention and subtraction from the dominium tests, it is conceivable that a positive trading right has the ability to burden land and to subtract from the servient owner’s entitlement of use and enjoyment of the land even in a physical sense. Therefore, such a right may be real and registrable. Furthermore, it is possible that a positive trading right could comply with the commonlaw criteria for the establishment of a praedial trading servitude. The article also examines the possible nature and content of positive personal trading servitudes. If parties do not negotiate for a positive praedial trading servitude, a personal servitude can be negotiated in favour of the beneficiary in his or personal capacity.

Protection of employees against sexual harassment: The development, successes and shortcomings of the South African legal system

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Protection of employees against sexual harassment: The development, successes and shortcomings of the South African legal system

Author: Karin Calitz

ISSN: 1996-2177
Affiliations: Emeritus Professor and Research Associate, Faculty of Law, Stellenbosch University
Source: South African Law Journal, Volume 139 Issue 4, p. 913-945
https://doi.org/10.47348/SALJ/v139/i4a8

Abstract

Despite extensive protection for employees against sexual harassment in the workplace, South African workplaces are still riddled with this harmful conduct. The severe consequences for victims and workplaces necessitate an analysis of the development of South African law to establish its successes, but also the shortcomings that continue to exist. Although there is a matrix of laws protecting employees against sexual harassment, the Employment Equity Act 55 of 1998, which regards harassment as a form of discrimination, is still the primary statute. In this article I argue that the tendency to focus on sexual harassment as a dignity and equality issue does not take sufficient cognisance of sexual harassment as a multifaceted issue involving criminal conduct, which threatens employees’ employment security and impacts on employees’ health and safety. An analysis of case law indicates that many employers have not adopted a policy on sexual harassment, and that some employers and the Commission for Conciliation, Mediation and Arbitration commissioners do not deal with sexual harassment in a gender-sensitive way, which is an approach endorsed by the International Labour Organization’s Violence and Harassment Convention 190 of 2019. This Convention emphasises the need for an inclusive, integrated approach to combat harassment. To align the protection of victims of harassment with the Convention, South Africa adopted a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in 2022. This Code, dealing with different kinds of harassment, including sexual harassment, replaced the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. By comparing the 2005 Code and related jurisprudence to the 2022 Code, the article considers whether sexual harassment is likely to be addressed more effectively under the 2022 Code. The 2022 Code has made certain improvements to the 2005 Code, but the altered definition of sexual harassment indicates the difficulties created by adopting one code to cover both misconduct and discrimination. In addition, aspects of the Convention, such as protecting the health and safety of employees, are not dealt with effectively in the 2022 Code. A separate code should be issued in terms of the Occupational Health and Safety Act to address the psychosocial safety of employees and the compensation of victims in terms of the Compensation for Injuries and Diseases Act 130 of 1993.

Book Review: Cora Hoexter & Glenn Penfold Administrative Law in South Africa 3 ed (2021)

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Book Review: Cora Hoexter & Glenn Penfold Administrative Law in South Africa 3 ed (2021)

Author: Malcolm Wallis

ISSN: 1996-2177
Affiliations: Retired Justice of the Supreme Court of Appeal; Honorary Professor of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 4, p. 946-956
https://doi.org/10.47348/SALJ/v139/i4a9

Abstract

None

Note: State liability in respect of a child negligently injured at an early childhood development centre: A critical assessment of BE obo JE v MEC for Social Development, Western Cape

by | Aug 27, 2022 | SALJ, SALJ V139 I3 2022

Note: State liability in respect of a child negligently injured at an early childhood development centre: A critical assessment of BE obo JE v MEC for Social Development, Western Cape

Authors: Brigitte Clark & Willene Holness

ISSN: 1996-2177
Affiliations: Associate Professor, University of KwaZulu-Natal, Honorary Visiting Researcher, Oxford Brookes University; Senior Lecturer, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 3, p. 491-510
https://doi.org/10.47348/SALJ/v139/i3a1

Abstract

This case note compares the judgments of the Western Cape High Court, the Supreme Court of Appeal and the Constitutional Court in BE on behalf of JE v MEC for Social Development, Western Cape. It suggests that the conclusion reached by the Western Cape High Court was not only the better decision in terms of a just outcome, but also the right decision when weighing the facts against the applicable statutory framework and case law, including the relevant international law. Furthermore, the case note submits that the approaches of the two higher courts to the wrong fulness inquiry were not in line with a children’s-rights approach and did not consider the state’s duty under international law to protect children’s rights, including the child’s right to play in a safe environment and to education, inclusive of the period from early childhood to birth.

Note: Multi-tiered dispute resolution clauses — Peremptory steps or too vague to matter?

by | Aug 27, 2022 | SALJ, SALJ V139 I3 2022

Note: Multi-tiered dispute resolution clauses — Peremptory steps or too vague to matter?

Author: Brendan Lyall Studti

ISSN: 1996-2177
Affiliations: Advocate, Cape Bar
Source: South African Law Journal, Volume 139 Issue 3, p. 511-526
https://doi.org/10.47348/SALJ/v139/i3a2

Abstract

Multi-tiered dispute resolution clauses in agreements in South Africa are prevalent. In many instances these clauses provide for a sequence of dispute resolution processes, often commencing with negotiation, followed by mediation, and then, finally, arbitration. Arbitrators and parties to these clauses need to consider whether the preconditions to arbitration are sufficiently certain to be enforceable and whether they have been fulfilled. The issue has received little attention in South Africa but there is a considerable body of foreign case law on the topic. According to foreign precedent, it must be determined whether the interim steps preceding arbitration are conditions precedent to arbitration, and, if so, whether they are enforceable. This entails, in part, assessing whether the clause in the agreement is of sufficient certainty for a court to ascertain whether it has been complied with. This note presents an exposition of the foreign case law and demonstrates how the position in foreign jurisdictions is consistent with the law in South Africa. It also aims to set out the minimum requirements for an interim negotiation or mediation clause to be enforceable as a precondition to arbitration.