Illegal Contracts and the Burden of Proof

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Illegal Contracts and the Burden of Proof

Authors Jacques du Plessis

ISSN: 1996-2177
Affiliations: Professor of Private Law, Stellenbosch University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 664 – 688

Abstract

South African law, in line with a number of prominent jurisdictions, recognises the general rule that when the legality of a contractual term is in dispute, the party who alleges illegality bears the burden of proof. Possible justifications for the general rule are explored and it is concluded that the rule is supported by established principles of the law of evidence, as well as by the pacta servanda sunt principle, which requires that freely concluded agreements should be enforced. It further is concluded that in disputes over the legality of restraint of trade clauses there appears to be no compelling reason why the law should deviate from the general rule by exceptionally placing the burden of proof on the party seeking enforcement. The mere fact that parties sometimes agree to these terms in situations of inequality does not suffice. However, those who advocate greater sensitivity for the position that contracting parties find themselves in when they supposedly exercise their contractual autonomy express a legitimate concern. A solution supported here is that South African law should address this problem directly by extending the existing categories of cases of improperly obtained consent to include cases of exploitation of certain specific situations of weakness. Such a development would reinforce, rather than subvert, the pacta servanda sunt principle.

Mapping Legislative and Executive Powers Over ‘Municipal Planning’: Exploring the Boundaries of Local, Provincial and National Control

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Mapping Legislative and Executive Powers Over ‘Municipal Planning’: Exploring the Boundaries of Local, Provincial and National Control

Authors Victoria Bronstein

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 639 – 663

Abstract

‘Municipal planning’ is a functional area that appears in Part B of Schedule 4 of the Constitution. Schedule 4 areas are areas of concurrent national and provincial legislative competence. Section 156(1)(a) of the Constitution provides that ‘a municipality has executive authority in respect of, and has the right to administer the local government matters listed in Part B of Schedule 4’. Local government’s right to exercise executive and administrative authority over municipal planning was recently enforced in the Supreme Court of Appeal and Constitutional Court decisions in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others. It is important to determine the distinction between legislative power over municipal planning on the one hand and executive/administrative power on the other. I argue in this article that town planning schemes, zoning schemes, and land use planning schemes are legislative in character. This is despite the fact that it has been authoritatively established that rezoning applications which result in amendments to spatial schemes are executive/administrative and hence the prerogative of local government. I refer to a line of authority which has had traction in some states in the United States in order to illustrate my arguments. Ultimately I argue that the Durban Metropolitan Open Space (D’Moss) amendments to the town planning schemes in Durban are legislative amendments. The article aims to examine these issues in order to add to the debate on the parameters of municipal powers in South Africa and their impact on the other spheres of government.

Evicting Unlawful Occupiers for Health and Safety Reasons in Post-Apartheid South Africa

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Evicting Unlawful Occupiers for Health and Safety Reasons in Post-Apartheid South Africa

Authors Gustav Muller

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 616 – 638

Abstract

In two recent judgments, the Constitutional Court failed to provide local authorities with guidance as to the precise nature of the relationship between police-power legislation to evict unlawful occupiers for health and safety reasons, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. I set out to provide such guidance by contextualising South Africa as a constitutional democracy with a supreme Constitution (the principle of a single system of law) that delineates a point of departure for establishing which source of law should regulate litigation about the alleged infringement of a right in the Bill of Rights (the subsidiarity principles). I then overlay the principle of a single system of law and the subsidiarity principles with characteristics of a property system that promotes s 39(2) of the Constitution. Taken together, these principles and the characteristics are used to evaluate the National Building Regulations and Building Standards Act, the Disaster Management Act, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act with a view to establishing which of them is the most appropriate source of law for evicting unlawful occupiers for health and safety reasons.

Electronic Documents, Encryption, Cloud Storage and the Privilege Against Self-Incrimination

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Electronic Documents, Encryption, Cloud Storage and the Privilege Against Self-Incrimination

Authors Constantine Theophilopoulos

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 596 – 615

Abstract

The techno-savvy cybercriminal’s easy internet access to encryption software and anonymous cloud servers, and the legal protection offered to such individuals by the privilege against self-incrimination, make it difficult for a state agency tasked with combatting cybercrime to monitor, intercept, or compel the disclosure of electronic documents containing incriminating content. The principal Act in this field, the Electronic Communications and Transactions Act 25 of 2002, is flawed in that it makes no reference to the relationship between general disclosure orders (in the form of Anton Piller orders or search and seizure warrants), the privilege against selfincrimination, and the compulsion of electronic documents stored on a computer hard drive or in the cloud. The purpose of this article is to suggest a number of substantive and procedural remedies which may assist in expunging the lacuna in the Act.

Protection for Homes During Mortgage Enforcement: Human-Rights Approaches in South African and English Law

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

Protection for Homes During Mortgage Enforcement: Human-Rights Approaches in South African and English Law

Authors Reghard Brits

ISSN: 1996-2177
Affiliations: Postdoctoral Fellow at the South African Research Chair in Property Law, Stellenbosch University
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 566 – 595

Abstract

This article investigates the enforcement of mortgages in South Africa and England. It specifically focuses on the influence of human-rights housing principles in so far as they may require courts to conduct a proportionality enquiry whenever a legal process leads to the loss of a home. It appears that art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms — essentially the United Kingdom’s housing clause — is conceptually similar to s 26(1) of the South African Constitution. The underlying idea is that, when a home is violated, justification must be provided as regards the proportionate relationship between the purpose of the violation and the impact of the violation on the occupier. English law already accepts that this principle applies when local authorities seek to evict unlawful occupiers, but this approach has not yet been extended to mortgage repossessions. Conversely, South African law already acknowledges that the housing clause must be applied in mortgage cases. After investigating developments in both jurisdictions, the article concludes that a proportionality test is workable in mortgage cases. Furthermore, the traditional assumption that ‘creditors must win’, although still relatively strong, is in the process of being replaced by a more contextual approach.

The Cycle of Harmonisation – From Domestic Laws to the CISG and Back?

by | Oct 22, 2019 | SALJ, SALJ V132 I3 2015

The Cycle of Harmonisation – From Domestic Laws to the CISG and Back?

Authors Karl Marxen

ISSN: 1996-2177
Affiliations: Research Assistant, Centre for Banking Law, University of Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 547 – 565

Abstract

This article analyses the influence of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) on domestic, regional and supra-national legislative activity. Despite not being drafted as a ‘model law’, the CISG has assumed an interesting new role in this regard. With its balanced, fair and clearly structured provisions, the CISG must be viewed not only as a final product of legal harmonisation within an international context, but also as a catalyst for further harmonisation and modernisation. Such harmonisation and modernisation can occur at regional, supra-national, and even domestic, level. In this article, evidence which supports this view is presented in relation to the German Schuldrechtsreform, a European Union directive relating to consumer goods, and the Uniform Act on General Commercial Law drafted by the Organization for the Harmonization of Business Law in Africa. Further, benefits and risks pursuant to the new role of the CISG are investigated, and political implications and concerns relating to legal harmonisation and globalisation — especially in the context of developing countries — are set out.