On making, reporting, and repeating defamatory statements

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

On making, reporting, and repeating defamatory statements

Author: Anton Fagan

ISSN: 1996-2177
Affiliations: WP Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 1-14
https://doi.org/10.47348/SALJ/v141/i1a1

Abstract

This note starts by distinguishing the making from the reporting of a defamatory statement, and both of these from the repetition of one. Thereafter, having introduced the general rule that a defendant who made or reported a defamatory statement about a plaintiff to a third party cannot avoid liability on the ground that she was merely repeating a statement made by a fourth party, the note goes on to discuss certain already-existing exceptions, and possible exceptions, to this rule. Finally, the note looks at whether our law should acknowledge a further exception, namely where a defendant repeated a defamatory statement by reporting it, while knowing it to be false, but did so only in order to refute it.

A consideration of the Registrar’s powers in matters relating to the National Credit Act: An analysis of Gcasamba v Mercedes-Benz Financial Services (Pty) Ltd and Ngandela v Absa Bank Ltd

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

A consideration of the Registrar’s powers in matters relating to the National Credit Act: An analysis of Gcasamba v Mercedes-Benz Financial Services (Pty) Ltd and Ngandela v Absa Bank Ltd

Author: Ciresh Singh

ISSN: 1996-2177
Affiliations: Associate Professor, University of South Africa
Source: South African Law Journal, Volume 141 Issue 1, p. 15-23
https://doi.org/10.47348/SALJ/v141/i1a2

Abstract

Section 23 of the Superior Courts Act 10 of 2013, read with rule 31(5) of the Uniform Rules of Court, empowers the Registrar of the High Court, save in exceptional circumstances involving residential property, to grant default judgments. The purpose of this rule is to prevent the overburdening of the court roll and judicial workload by allowing Registrars the discretion to grant default judgments in uncomplicated, undefended matters. In recent judgments in Gcashamba v Mercedes-Benz Financial Services SA (Pty) Ltd & another 2023 (1) SA 141 (FB) and Ngandela v Absa Bank Ltd & another [2023] ZAECELLC 6, the courts both found that a Registrar is not empowered to grant default judgments in matters relating to the National Credit Act 34 of 2005. The question thus arises whether the National Credit Act has changed and effectively reduced the Registrar’s powers. The implications of these judgments are far-reaching. Not only do they appear to have lessened the powers of the Registrar, but they also have the effect of increasing the administrative workload of judges and potentially delaying the enforcement process of credit agreements subject to the National Credit Act.

Opposing cynical evictions: The possessory action

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Opposing cynical evictions: The possessory action

Authors: Jeremy Phillips & Arthur van Coller

ISSN: 1996-2177
Affiliations: Senior Associate, Cheadle Thompson & Haysom Inc; Associate Professor, Faculty of Law, University of Fort Hare
Source: South African Law Journal, Volume 141 Issue 1, p. 24-44
https://doi.org/10.47348/SALJ/v141/i1a3

Abstract

The possessory action is a relatively unknown common-law remedy. It has not featured in the law reports for the best part of the last one hundred years and is generally relegated to a cursory discussion in most property-law textbooks. Its basic formulation is that where one has been dispossessed of an item, one is to be restored in possession, paid compensation and/or paid damages if one has a stronger right to possess the item than the dispossessor. Although it has fallen out of fashion, there is growing interest in how the possessory action may be used to address contemporary issues. One such issue is persistent and recurring cynical evictions — unlawful evictions during which the home structure is demolished and destroyed. Whether the possessory action is at all available as a remedy for cynical evictions is unclear. This article explores the history, nature, and scope of the possessory action and asks whether it can be appropriately applied to oppose cynical evictions.

The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

The application of the doctrine of informed consent in South African medical law: Reflections on significant developments in the case law

Authors: Marno Swart & Pieter Carstens

ISSN: 1996-2177
Affiliations: PhD Candidate in Medical Ethics and Law, University of Cambridge; Emeritus Professor of Medical Law and Criminal Law; Former Director of the Centre for Law and Medicine, University of Pretoria
Source: South African Law Journal, Volume 141 Issue 1, p. 45-83
https://doi.org/10.47348/SALJ/v141/i1a4

Abstract

The doctrine of informed consent is the foundation of the physician–patient relationship. This doctrine remains controversial despite its importance, and issues involving consent are frequently litigated. This article examines the application of the doctrine of informed consent in South African medical law as it has developed in South African case law. This examination first sets a normative background for consent as a ground of justification against a wrong ful act in either contract or delict (or both) that is significantly influenced by the Constitution of the Republic of South Africa, 1996. Against this normative background, a selected anthology of nine significant judgments by South African courts is analysed, with specific attention paid to the critical shift prompted by the promulgation of the Constitution. Finally, the analyses of the nine judgments are consolidated and collated to draw conclusions about the triumphs and failings of the South African courts, based on the normative background. This analysis reveals which aspects of the doctrine of informed consent have crystallised in South African medical law and which remain unclear.

Identification parades in South Africa — Time for a change?

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Identification parades in South Africa — Time for a change?

Authors: Colin G Tredoux, Ryan J Fitzgerald, Aldred Allan & Alicia Nortje

ISSN: 1996-2177
Affiliations: Professor, Department of Psychology, University of Cape Town; Assistant Professor, Department of Psychology, Simon Fraser University; Professor, Department of Psychology, Edith Cowan University; Post-doctoral Researcher, Department of Psychology, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 84-111
https://doi.org/10.47348/SALJ/v141/i1a5

Abstract

Identification parades are essential when obtaining evidence of identity from eyewitnesses. Eyewitnesses are shown a line of people containing the suspect(s) and innocent fillers, and witnesses are asked to point out the perpetrator(s) of the crime, noting that the perpetrator(s) might not be present. Corporeal (‘live’) parades are required in South Africa unless there is a good reason not to use them, in which case the police may use photograph parades. We review the rules for conducting parades in South Africa and compare these to those in several other countries, many of which no longer use corporeal parades. We consider evidence from empirical studies that have tested the ‘live superiority’ hypothesis and conclude that there is no clear evidence in its favour, notwithstanding that there are benefits to augmenting static views of faces with additional cues to identity. We then consider the logistical and financial cost of conducting live parades, which we find to be considerable. We conclude that it may well be time to reconsider the use of live identification parades in South Africa but caution that this should coincide with a review of the law regulating the use of alternative methods to ensure that accused persons receive fair trials.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Authors: Amy Gooden & Donrich Thaldar

ISSN: 1996-2177
Affiliations: Doctoral Fellow, School of Law, University of KwaZulu-Natal; Professor, School of Law, University of KwaZulu-Natal; Visiting Scholar, Petrie-Flom Center for Health Policy, Biotechnology, and Bioethics, Harvard Law School
Source: South African Law Journal, Volume 141 Issue 1, p. 112-142
https://doi.org/10.47348/SALJ/v141/i1a6

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Abstract

This article examines the regulation of health-related direct-to-consumer genetic tests (‘HDGTs’) in South Africa by the Medicines and Related Substances Act 101 of 1965 and its related regulations, namely the Regulations Relating to Medical Devices and In Vitro Diagnostic Medical Devices and the draft Regulations Relating to Medical Devices, as well as the South African Health Products Regulatory Authority guidelines. Such regulation includes the classification, licensing, registration, marketing, labelling and importing of HDGTs. At a basic classification level, the manufacturer’s intention determines whether HDGTs are medical devices and/or in vitro diagnostic devices (‘IVDs’). Those HDGTs that are medical devices are also likely to be IVDs and are likely to be classified as Class B IVD medical devices, meaning that they pose low to medium risk. This is because the intended use of an HDGT is generally not as a diagnostic tool but as an informational tool, where the results are not definitive and additional testing is required. Accordingly, a licence is required to manufacture, import, export, sell or distribute HDGTs in South Africa. The classification of HDGTs also impacts the rules relating to labelling, advertising and importation.