ISSN: 1996-2177
Affiliations: Lecturer, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 450 – 462
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ISSN: 1996-2177
Affiliations: Judge President of the Eastern Cape Division of the High Court
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 438 – 449
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ISSN: 1996-2177
Affiliations: H F Oppenheimer Chair in Human Rights Law, Stellenbosch University
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 411 – 437
Theorists within the egalitarian liberal tradition have grappled with the question of how to achieve an alignment between the attribution of equal worth and citizenship to each person and the distribution of material resources in democratic societies. Their insights are relevant to devising constitutionally grounded strategies for redressing the intertwined challenges of poverty and inequality in post-apartheid South Africa. This article examines the implications of these theories for integrating the value of equality in the interpretation of socio-economic rights by the courts. It concludes that Nancy Fraser’s principle of parity of participation offers rich possibilities for rendering both reasonableness review and the application of socio-economic rights to contractual relations more responsive to systemic social and economic inequalities.
ISSN: 1996-2177
Affiliations: Senior Lecturer, Middlesex University; Honorary Fellow of Commercial Law, Durham University
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 372 – 410
As commercial mediation makes its advance into the dispute resolution arena in South Africa, the article analyses the role of the mediator in the process from a legal and regulatory perspective. After discussing the qualities, skills and role of the mediator, the piece analyses the models of mediation most appropriate to the resolution of commercial disputes. The article proceeds to deal with education, training, accreditation and standards with particular reference to best practice experience from the EU and USAas a guide for the developing commercial mediation industry in South Africa. The possibility that legal proceedings might be brought against mediators is a significant form of accountability. Experience from other jurisdictions suggests that proceedings are likely to be taken against mediators by aggrieved disputants or third parties in South Africa. A number of situations are identified and analysed in light of existing jurisprudence where parties could seek to hold commercial mediators liable, as well as the steps that can be followed in order to limit exposure. The article also discusses mediator immunity before concluding with a discussion on the relationship between mediation and the practice of law in order to avoid confusion between the two roles of mediator and lawyer.
ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Johannesburg; Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 340 – 371
Covering bonds provide security for the fulfilment of future obligations, provided explicit reference is made to the intention to secure a future debt up to a maximum amount. The accessorial principle, in terms of which the vesting of the right of real security is dependent on the existence of a principal debt, also entails the automatic demise of the security right if no debt any longer exists. Acovering mortgage bond ostensibly registered on the mistaken belief that the underlying loan agreement is valid, is ab initio void because it lacks the necessary accessory nexus. The perceived registered bond in reality never existed and the Deeds Registries must be corrected by cancelling the meaningless registration. Even if the creditor afterwards acquires another claim, it does not ex post ratify the void bond. A potential enrichment claim that may follow as a result of the advance of funds founded on an invalid loan agreement (presuming enrichment sine causa can be proven and no blame attaches to the conduct of the claimant condemned under the clean-hands principle) cannot be secured by a non-existing bond ostensibly registered as a ‘covering bond’ for the void loan. There was no consensus to secure this conditional debt founded on the condictio indebiti, and no real agreement as required for the abstract system existed. No judgment convinces merely because it ostensibly provides an equitable remedy to retrieve taxpayers’ money that was incompetently squandered.
ISSN: 1996-2177
Affiliations: Professor, University of Sherbrooke, Canada; Researcher, University of Neuchâtel, Switzerland
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 313 – 339
On 30 August 2003, the World Trade Organization decided that eligible countries without manufacturing capacities would be allowed to import generic drugs once they had been issued with a compulsory licence from an exporter country. Canada was the first country to implement this decision in its patent law and subsequently to apply it. Considering the fact that improving drug accessibility is a priority in sub-Saharan Africa, it is relevant for countries with manufacturing capacities, like South Africa, to consider implementing the August 30th decision into their legislation. This mechanism represents an opportunity for South Africa (1) to develop its pharmaceutical industry and (2) to increase drug accessibility in Africa. In exploring this option, the Canadian drug exportation mechanism could serve as a model for legislation in South Africa. In this article we review the Canadian experience, including the weaknesses of the Canadian platform. Based on lessons from this review, we suggest that South Africa should consider implementing a new drug exportation mechanism in its national patent law in order to rebuild its pharmaceutical manufacturing capacities and to improve access to drugs in Africa. In essence, by supplying sub-Saharan African countries, and thus using the compulsory licensing mechanism created following the Pretoria lawsuits, South Africa would close the loop.