Commercial Certainty and Constitutionalism: Are they Compatible?

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

Commercial Certainty and Constitutionalism: Are they Compatible?

Authors Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 545 – 568

Abstract

The need for reasonable commercial certainty about the content of commercial law is central to the operation of the economic system of both South Africa and the world. Without it the outcome of commercial transactions becomes speculative and this is a disincentive to trade. The article explores a concern that the jurisprudence of the Constitutional Court has introduced a level of uncertainty into aspects of the law of contract and commercial law generally, and warns that the effect of such uncertainty will be to drive commercial litigation away from the courts into arbitral forums that are seen as more predictable in their outcome. This is bad for the development of commercial law and ultimately excludes the constitutional development of the common law. The author contends that the application of constitutional norms in the context of commercial law does not need to generate uncertainty and suggests how the Constitutional Court can dispel this impression.

Deriving the Ratio of an Over-Determined Judgment: The Law After Turnbull-Jackson v Hibiscus Coast Municipality

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

Deriving the Ratio of an Over-Determined Judgment: The Law After Turnbull-Jackson v Hibiscus Coast Municipality

Authors Piet Olivier

ISSN: 1996-2177
Affiliations: Researcher, Max Planck Institute for Comparative and International Private Law
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 522 – 544

Abstract

The traditional South African statement of the test for whether a judge-made rule is a ratio decidendi is from Pretoria City Council v Levinson. Under this test, a rule can only be a ratio if it is a conditio sine qua non for the outcome of the judgment that endorsed it. But when this test is applied to a judgment that endorses more than one rule, each of which is sufficient for the outcome (what this article calls an ‘overdetermined judgment’), that judgment has no ratio decidendi. In the recent case of Turnbull-Jackson v Hibiscus Coast Municipality, the Constitutional Court held that the Levinson test did not apply to rules in overdetermined judgments and held that it should instead be asked whether the relevant rule is ‘central’ to the judgment. This article argues that the centrality standard amounts to Wright’s ‘necessary element of a sufficient set’ (or ‘NESS’) test, applied to legal reasoning rather than causation. Thus, after Turnbull-Jackson, a judge-made rule is a ratio decidendi if, among other things, it is a necessary element of a set of logical conditions, actually endorsed by the court, that is sufficient to produce the outcome.

Notes: Administrative Action and Procedural Fairness – Minister of Defence and Military Veterans v Motau

by | Oct 21, 2019 | SALJ, SALJ V133 I3 2016

Notes: Administrative Action and Procedural Fairness – Minister of Defence and Military Veterans v Motau

Authors Andrew Konstant

ISSN: 1996-2177
Affiliations: Researcher, South African Institute of Advanced Constitutional, Public, Human Rights, and International Law, a Centre of the University of Johannesburg
Source: South African Law Journal, Volume 133 Issue 3, 2016, p. 491 – 504

Abstract

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