Dolus eventualis: An endangered colonial species

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Dolus eventualis: An endangered colonial species

Author: Tshepo Bogosi Mosaka

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 239-262
https://doi.org/10.47348/SALJ/v140/i2a1

Abstract

This article focuses on the feasibility of dolus eventualis in addressing the problem of intended endangerments — that is, the question as to how the secondary consequences flowing from an act of endangerment, as distinguishable from an attack, can be said to be ‘intended’ (dolus). This problem manifests typically in the form of the orthodox marketplace bomb-thrower who has one primary aim but whose actions result in several other secondary consequences, some of which may not have been aimed or foreseen in any primary sense. After discussing why the two historical solutions — strict liability and the versari doctrine — are not viable answers to this problem, the remainder of the article examines the feasiblity of dolus eventualis as a third contemporary solution. This examination focuses on both the historical contradictions as well as the prevailing doctrinal controversies that are associated with dolus eventualis. The fourth part of the article reflects on five uncontroverted problems that currently beset dolus eventualis. The article concludes on a sceptical note: that dolus eventualis may not survive the many difficulties discussed in this article, and that exploring the expansion of negligence or the creation of a separate and new third form of fault may not be a bad idea.

The appealability of decisions to certify class actions: Where are we now? A proposed approach after Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd (WCC)

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

The appealability of decisions to certify class actions: Where are we now? A proposed approach after Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd (WCC)

Author: Theo Broodryk

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Stellenbosch University
Source: South African Law Journal, Volume 140 Issue 2, p. 263-284
https://doi.org/10.47348/SALJ/v140/i2a2

Abstract

Decisions refusing to certify class proceedings are appealable. The position regarding the appealability of decisions certifying class actions is, however, less clear. Regrettably, in Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd [2021] JOL 51475 (WCC), the court did not give a final ruling on whether a decision to certify a class action is appealable. Gamble J merely assumed, without deciding, that his decision in Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd 2022 (2) SA 237 (WCC) to certify the class action was appealable. This article aims to clarify the preferred approach when deciding whether to permit an appeal against a decision to certify a class action.

Wrongfulness in the South African law of defamation

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Wrongfulness in the South African law of defamation

Author: Anton Fagan

ISSN: 1996-2177
Affiliations: WP Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 285-327
https://doi.org/10.47348/SALJ/v140/i2a3

Abstract

According to some South African delict scholars, the South African law of defamation makes the wrong fulness of a defamatory statement turn on two conditions: first, that the statement caused reputational damage; and, secondly, that the damage caused was not outweighed by the achievement of some greater good. This article proposes an alternative view. According to it, the wrong fulness of a defamatory statement turns on two very different conditions. The first is that the statement represented the defamed person (the plaintiff) as having a worth which is less than the worth which the person ought to be estimated to have. The second is that the person making the statement (the defendant) intended this. The article starts by raising two objections to the scholars’ view. One is that it cannot explain the fact that a defamatory statement can be false yet lawful. The other is that it cannot explain the fact that a defamatory statement may be found to be wrong ful even though it caused no reputational damage. After this, the article goes on to discuss and defend the alternative view’s two conditions — that is, the ‘representation condition’ and the ‘intent condition’. The latter is likely to be the more controversial, as it flies in the face of a scholarly dogma to the effect that wrong fulness does not in any way depend on fault. However, as the article demonstrates, it is impossible to make sense of the wrong fulness-negating defences of privileged occasion, fair comment, and reasonable publication, unless we accept the intent condition.

Judicial intervention and the call to transformative constitutionalism in the context of consumer law, debt collection and the National Credit Act: Bayport Securitisation Ltd v University of Stellenbosch Law Clinic

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Judicial intervention and the call to transformative constitutionalism in the context of consumer law, debt collection and the National Credit Act: Bayport Securitisation Ltd v University of Stellenbosch Law Clinic

Author: Stephan van der Merwe

ISSN: 1996-2177
Affiliations: Senior Attorney and Lecturer, Stellenbosch University Law Clinic
Source: South African Law Journal, Volume 140 Issue 2, p. 328-364
https://doi.org/10.47348/SALJ/v140/i2a4

Abstract

As a result of various socio-economic factors, South Africans are some of the most indebted consumers in the world. Bad debt collection has escalated to a significant industry, with billions of rands at stake. The effects of private over-indebtedness and resulting collections are profound and have various negative consequences at household and macro-economic levels. These consequences are exacerbated when vulnerable debtors face unscrupulous debt collectors emboldened by a fragile legislative framework. Debtors depend on judicial intervention and effective access to courts to combat abusive lending and debt-collection practices. Courts are called on to protect vulnerable consumers by enforcing constitutional guarantees and values. Recently, the Supreme Court of Appeal was presented with the opportunity to demonstrate its commitment to transformative constitutionalism in consumer law and debt collection in the case of Bayport Securitisation Ltd v University of Stellenbosch Law Clinic. This judgment is significant as it attempted to address a serious and impactful concern with the interpretation of the National Credit Act. It will be demonstrated that the judgment is susceptible to serious criticism, particularly in its regrettable indifference to the constitutional values pertinent to the matter.

Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze

Author: Mkhululi Nyathi

ISSN: 1996-2177
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 2, p. 365-386
https://doi.org/10.47348/SALJ/v140/i2a5

Abstract

With the focus in the South African higher education landscape shifting towards research output, it is imperative that law schools equip postgraduate law students with proper legal research skills for them to carry out their legal research effectively. While the doctrinal legal research methodology has always been used in legal research and is well suited for the discipline of law, it has been subjected to serious criticism for some time, with some scholars labelling it as arrogant, non-objective and lacking in academic flair. Those who criticise the doctrinal legal research method tend to prescribe for the discipline of law research methodologies popular in other disciplines, such as the qualitative and quantitative methodologies that are popular in the social sciences. While a legal scholar doing interdisciplinary legal research is free to use such methodologies, these methodologies may not be suitable for classical legal research. The doctrinal legal research methodology remains the most appropriate methodology for legal research, as it is concerned with solving legal problems through the legal analysis of legal norms. The sources of legal norms are internally determined by the discipline itself and cannot be identified through qualitative and quantitative research.

Property and access: Inequality of land relations and the continued vulnerability of women

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Property and access: Inequality of land relations and the continued vulnerability of women

Author: Z T Boggenpoel

ISSN: 1996-2177
Affiliations: Professor in Private Law, Stellenbosch University
Source: South African Law Journal, Volume 140 Issue 2, p. 387-412
https://doi.org/10.47348/SALJ/v140/i2a6

Abstract

This article foregrounds the interplay between property and access from the perspective of those on the margins of property law, focusing specifically on women. The aim is to identify several instances where women are still in vulnerable positions despite a constitutional and/or legislative framework that purports to be progressive regarding gender equality and advancing women’s land rights. The article challenges the belief that individual wins in some court judgments are enough to proclaim the strengthening of women’s land rights. In this respect, it is important to consider whether a picture emerges that moves women away from the periphery towards the centre of property law.