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.

Note: Managing and participating in a criminal enterprise under POCA: Duplication of convictions? A discussion of the conflict between S v Prinsloo and S v Tiry

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

Note: Managing and participating in a criminal enterprise under POCA: Duplication of convictions? A discussion of the conflict between S v Prinsloo and S v Tiry

Author: Delano Cole van der Linde

ISSN: 1996-2177
Affiliations: Senior Lecturer, Stellenbosch University
Source: South African Law Journal, Volume 139 Issue 3, p. 526-540
https://doi.org/10.47348/SALJ/v139/i3a3

Abstract

Some debate exists as to whether convicting an accused of both participating in and managing a criminal enterprise under chap 2 of the Prevention of Organised Crime Act 121 of 1998 constitutes an impermissible duplication of convictions. This note analyses the relevant provisions of the Act, and the concept of duplication of convictions, against two conflicting Supreme Court of Appeal judgments, namely S v Prinsloo 2016 (2) SACR 25 (SCA) and S v Tiry 2021 (1) SACR 349 (SCA). In these two cases the court reached diametrically opposite conclusions on the same legal question, creating uncertainty. Ultimately, the question whether a duplication of convictions has occurred depends on the facts of each case, and the extent to which managers-cum-participants have ‘dirtied their hands’ in the pursuit of the criminal enterprise. Foreign perspectives from United States constitutional jurisprudence will also be considered.

‘Privacy by design’ in the EU General Data Protection Regulation: A new privacy standard or the Emperor’s new clothes?

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

‘Privacy by design’ in the EU General Data Protection Regulation: A new privacy standard or the Emperor’s new clothes?

Author: Dusty-Lee Donnelly

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 3, p. 541-576
https://doi.org/10.47348/SALJ/v139/i3a4

Abstract

Privacy by design (‘PbD’) is a conceptual framework that has been widely adopted as a helpful, practical framework for organisations to ‘translate’ legal data protection principles into concrete technical design and organisational policies. It can offer a harmonising framework for multiple, overlapping legal compliance obligations. Privacy is engineered directly into the design of new technologies, as a default setting, while still achieving full functionality. The article explains the seven foundational principles of the concept with detailed cross reference to the relevant conditions of lawful processing under the Protection of Personal Information Act 4 of 2013 (‘POPIA’), offering the first in-depth analysis of PbD in a South African context. PbD is now an express legal obligation in art 25 of the European Union’s General Data Protection Regulation (2016). The article sketches the background to that important development and provides an in-depth critique of the three key shortcomings of art 25. It recommends that instead of following the EU example, South Africa’s Information Regulator could promote the adoption of PbD through a guidance note and in approved codes of conduct. It concludes that a PbD approach is already (albeit only impliedly) required for compliance with the conditions of lawful processing under POPIA.

A Hohfeldian analysis of the Bill of Rights

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

A Hohfeldian analysis of the Bill of Rights

Author: Quentin du Plessis

ISSN: 1996-2177
Affiliations: Member of the Johannesburg Bar
Source: South African Law Journal, Volume 139 Issue 3, p. 577-622
https://doi.org/10.47348/SALJ/v139/i3a5

Abstract

In the scholarship on rights, one name is pre-eminent: Hohfeld. Despite this, there are two ways in which the Hohfeldian analysis of rights remains underappreciated. The first is that it is commonly assumed that the Hohfeldian analytic system applies only to private-law rights. The second is that South African lawyers remain mostly unfamiliar with the Hohfeldian analytic system. By providing a Hohfeldian analysis of the South African Bill of Rights, this article aims to set the record straight in both respects.

Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?

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

Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?

Author: Fareed Moosa

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile & Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 139 Issue 3, p. 623-649
https://doi.org/10.47348/SALJ/v139/i3a6

Abstract

Taxation of legal costs in the high courts of South Africa is a quasi-judicial proceeding during which a Taxing Master assesses the fairness of a bill of costs, quantifies the amount payable to a cost creditor, and issues an allocatur which certifies the sum payable by a cost debtor. It is argued that this legal process, which is regulated by Uniform Rule 70 read with Uniform Rule 69, implicates a cost debtor’s fundamental right, under s 34 of the Constitution of the Republic of South Africa, 1996, to fair dispute resolution at any independent forum. In terms of Uniform Rule 70(3B) (a), prior to the enrolment of a bill for taxation, a cost debtor is entitled ‘to inspect such documents or notes pertaining to any item on the bill’. This article argues that the inspection envisaged is a pre-taxation discovery procedure aimed at enabling a cost debtor to determine which items on a bill of costs are objectionable, and the grounds therefor. With reference to relevant judicial precedent and the established principles of interpretation, this article hypothesises that, having regard to the clear, unambiguous, peremptory language of Uniform Rule 70(3B)(a), as well as the purpose sought to be achieved by the right of inspection, the law has, in this context, excluded the operation of the cost creditor’s common-law right to assert legal professional privilege as regards documentation pertaining to any item claimed in the bill of costs. This is unlike the position prevailing at a pre-trial discovery procedure catered for in Uniform Rule 35. This article also argues that, in accordance with s 39(2) of the Constitution, the broad construction of the right of inspection under Uniform Rule 70(3B)(a) advanced here promotes both a cost debtor’s fundamental right in s 34 of the Constitution, and the values of justice and the rule of law which are deeply imbricated in the Bill of Rights.