Fischer v Unlawful Occupiers & others (WCC): Difficulties in seeking damages for a failure by the police to prevent unlawful occupation

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

Fischer v Unlawful Occupiers & others (WCC): Difficulties in seeking damages for a failure by the police to prevent unlawful occupation

Author Sarah Fick

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of the Western Cape
Source: South African Law Journal, Volume 136 Issue 4, p. 676-716

Abstract

The decision in Fischer v Unlawful Occupiers & others 2018 (2) SA 228 (WCC) has been labelled a ‘landmark judgment’ in the context of evictions, because it highlighted several issues that are prevalent in eviction matters. This article focuses on one of these issues — the difficulties faced by landowners who want to claim damages from the state for the police’s failure to protect their properties against unlawful occupation. In Fischer, one landowner’s claim against the Minister of Police for the failure by the police to protect the properties against unlawful occupation was dismissed, without any explanation of the law relating to how the Minister of Police might be accountable in such situations. This article explores in detail the potential difficulties faced by landowners when trying to hold the state accountable for the police’s failure to prevent unlawful occupation. More specifically, it first examines the question whether the police have a legal duty to protect private property in eviction cases. Thereafter, the article considers the requirements and potential difficulties with three potential causes of action: claims for damages arising out of administrative law, the general principles of delict, and a direct claim for constitutional damages.

The question of rights, acceptance and amendments of inter vivos trusts in terms of the stipulatio alteri

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

The question of rights, acceptance and amendments of inter vivos trusts in terms of the stipulatio alteri

Author Rika van Zyl

ISSN: 1996-2177
Affiliations: Senior Lecturer, Private Law, University of the Free State
Source: South African Law Journal, Volume 136 Issue 4, p. 717-748

Abstract

The stipulatio alteri, which is regarded as the mode through which an inter vivos trust is created, is still being scrutinised and continues to be shrouded in uncertainty. Some of these uncertainties have been created by courts, which have held that acceptance enables the third party to step in as a contracting party to the trust. This article shows how case law has developed based on this faulty premise, and explains the impact the premise has had on the involvement that is needed from beneficiaries to effect amendments to a trust deed. It is argued that the true interpretation of the stipulatio alteri, in line with common law, focuses on the question of the rights that were intended for beneficiaries. The various intended rights may enjoy different forms of protection against amendment of the trust deed. When the issue of amendment comes up, consideration must be given to the position of the beneficiary, not by deeming him or her to be a contracting party, but by evaluating the rights the founder intended to confer on him or her, the value or protection of these rights, the effect of the amendment clause on these rights, and any rights that the beneficiary may possess ex lege trust law.

Towards a jurisprudence of corruption: Reformulating the contra fiscum principle for the purposive approach

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

Towards a jurisprudence of corruption: Reformulating the contra fiscum principle for the purposive approach

Author Colette Ashton

ISSN: 1996-2177
Affiliations: MA candidate, International Anti-Corruption Academy, Austria
Source: South African Law Journal, Volume 136 Issue 4, p. 749-780

Abstract

The dissenting judgment in the case of Daikin v CSARS disrupted the new orthodoxy of a purposive approach to the interpretation of legal texts. While the judges’ criticism of the purposive theory in its current form is valid, their proposal that the old literalistcum- intentionalist approach to statutory interpretation should be revived is potentially damaging to the project of building post-apartheid jurisprudence. Rather than reviving an outdated and theoretically unsound theory of interpretation, a better approach would be to strengthen the theoretical foundations of the purposive approach. This article attempts to contribute to this task by giving an overview of hermeneutic theory as realized in Johan van der Walt’s model of law as sacrifice, read through a Habermasian lens. I argue that this approach is more radical in orientation, better suited to the later post-apartheid context, and more appropriate to the Anthropocene era. The rationale for the contra fiscum principle could be reformulated in terms of constitutional norms, and the rule could be incorporated into a more resilient purposive theory.

The selection of victim groups in hate-crime legislation

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

The selection of victim groups in hate-crime legislation

Author Joanna Botha

ISSN: 1996-2177
Affiliations: Associate Professor in Public Law, Nelson Mandela University
Source: South African Law Journal, Volume 136 Issue 4, p. 781-810

Abstract

A hate crime is traditionally defined as a crime motivated by bias towards a particular group of persons based on the group’s protected characteristics. A key element is that the victim must be targeted based on his or her identity, with the victim belonging to groups of persons who are not valued by society, and often described as ‘the other’. The definition of a hate crime in a legislative provision is thus dependent on the identification of groups selected to be the victims of such crimes. The second version of South Africa’s Prevention and Combating of Hate Crimes and Hate Speech Bill was published in 2018. Section 3(1) of the Bill introduces the hate-crime concept into law and identifies a list of seventeen protected group characteristics. This article examines which groups of persons should be treated as deserving of protection in South Africa’s proposed hate crime regulatory framework. I argue for a principled approach that at its core appreciates the socio-legal context in which the phenomena of hate crime occur and the significance of group vulnerability. An added constraint is that the successful implementation of hate-crime legislation is an imperative. The hate-crime construct is new to South Africa and will serve a critically important purpose. An overly broad and unscientific legislative model creates the risk of unfavourable reception, an inability to implement, and problems with constitutional justification. For the South African context, it is recommended that the drafters make use of the concept of vulnerability to select group characteristics, coupled with an appropriately worded analogous grounds provision.

Tony Honoré: Last Roman

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

Tony Honoré: Last Roman

Author Jeremy Gauntlett

ISSN: 1996-2177
Affiliations: Member of the Cape and Johannesburg Bars and of the Bar of England and Wales; Member of the Bar of Ireland; Bencher of the Middle Temple
Source: South African Law Journal, Volume 136 Issue 4, p. 811-817

Abstract

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