Reflections on Wallage v Williams-Ashman & others: Gender discrimination, the optimism bias, freedom of testation, property rights and vesting

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

NOTE

Reflections on Wallage v Williams-Ashman & others: Gender discrimination, the optimism bias, freedom of testation, property rights and vesting

Author: Mohamed Paleker

ISSN: 1996-2177
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 4, p. 659-675
https://doi.org/10.47348/SALJ/v142/i4a1

Abstract

This note highlights issues arising from the court’s reasoning in Wallage v Williams-Ashman NO & others 2023 (4) SA 113 (SCA) and, particularly, the wording of s 2B of the Wills Act 7 of 1953. The note takes the view that s 2B may need closer examination due to its potential reinforcement of the ‘optimism bias’. It also addresses several miscellaneous issues arising from the case.

Perumal v Janse van Rensburg: Condonation of an electronic document under section 2(3) of the Wills Act — One step forward, two steps back

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

NOTE

Perumal v Janse van Rensburg: Condonation of an electronic document under section 2(3) of the Wills Act — One step forward, two steps back

Author: James Faber

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of the Free State
Source: South African Law Journal, Volume 142 Issue 4, p. 676-692
https://doi.org/10.47348/SALJ/v142/i4a2

Abstract

This note critically examines the Gauteng High Court’s decision in Perumal v Janse van Rensburg NO & others, highlighting the judiciary’s ongoing failure to provide legal clarity about the condonation of electronic wills under s 2(3) of the Wills Act 7 of 1953. The judgment condoned a printed copy of an electronic document without adequately addressing its digital status or the statutory requirements for condonation. The case reveals deeper uncertainty about the application of s 2(3), particularly where a document is unexecuted and drafted by a third party. Moreover, the deceased’s conduct and communications suggest that, although his dispositive intentions were clear, he did not regard the document as his final will and therefore lacked the requisite animus testandi. This missed opportunity illustrates the disconnect between legal formalism and evolving testamentary practices, reinforcing the need for judicial engagement and legislative reform to accommodate digital wills in the South African law of succession.

Reflecting on the Constitutional Court’s jurisdiction over the misapplication of settled legal tests of the common law in light of Olesitse NO v Minister of Police

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

NOTE

Reflecting on the Constitutional Court’s jurisdiction over the misapplication of settled legal tests of the common law in light of Olesitse NO v Minister of Police

Author: Ndivhuwo Ishmel Moleya

ISSN: 1996-2177
Affiliations: Attorney of the High Court of South Africa
Source: South African Law Journal, Volume 142 Issue 4, p. 693-706
https://doi.org/10.47348/SALJ/v142/i4a3

Abstract

This note analyses the Constitutional Court’s approach to its jurisdiction over the misapplication of settled common-law legal tests. The note criticises the court’s approach in recent cases as being unnecessarily circumscribed and argues that the outcome of the Olesitse case is commendable as it best ensures the maximum protection of constitutional rights and a coherent and harmonious development of our legal system in line with constitutional dictates. The note nevertheless criticises the court for adopting an ambivalent approach that sought to draw an overly fine distinction between a misapplication of the law and an error of law.

The ‘jurisprudential confusion’ intensifies: CF v MF (ZAGPPHC) and the conflation of the sham and veneer-piercing scenarios in joining an allegedly abused trust to divorce proceedings

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

NOTE

The ‘jurisprudential confusion’ intensifies: CF v MF (ZAGPPHC) and the conflation of the sham and veneer-piercing scenarios in joining an allegedly abused trust to divorce proceedings

Author: Bradley S Smith

ISSN: 1996-2177
Affiliations: Senior Researcher, The Independent Institute of Education, Emeris, Faculty of Law; Extraordinary Professor of Private Law, University of the Free State
Source: South African Law Journal, Volume 142 Issue 4, p. 707-724
https://doi.org/10.47348/SALJ/v142/i4a4

Abstract

In CF v MF & others [2022] ZAGPPHC 644 (‘CF’), the applicant sought the joinder of a trust and related parties to divorce proceedings because the trust was her husband’s alter ego. This note suggests that CF is yet another example of the much-lamented confusion emanating from the conflation of the sham and veneer-piercing scenarios in our jurisprudence on trust-form abuse in the divorce context. This is mainly due to imprecise engagement with leading precedent, the failure to consult relevant scholarship, and a lack of interrogation of the nature of the ultimate relief that the applicant sought. The result of these errors — committed by bar and bench — is a technically unsound judgment that ultimately overlooked that the joinder proceedings were objectionable for being inconsonant with the positive law. While proper engagement with precedent and scholarship could have resulted in a judgment that provided much-needed clarity on this branch of the law, CF has instead intensified the obfuscation that surrounds it.

Breach of contract, enrichment liability and the double sale

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

Breach of contract, enrichment liability and the double sale

Author: Jacques du Plessis

ISSN: 1996-2177
Affiliations: Distinguished Professor, Faculty of Law, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 4, p. 725-742
https://doi.org/10.47348/SALJ/v142/i4a5

Abstract

It is highly contested in modern contract law whether the victim of breach may lay claim to the profits of the party in breach. South African law generally does not support such a remedy, but a comparative perspective reveals a rather more complex picture. The fact pattern singled out for attention here is that of a seller profiting from breach of contract through selling the same object twice, and the legal system chosen for comparison is German law, which allows the first buyer to lay claim to the seller’s proceeds from the second sale. It is then indicated how the origins of this remedy rather curiously can be traced to the claim of a creditor against a debtor to give up reimbursement arising from impossibility of performance. These developments are then contrasted to the parallel evolutionary process that gave rise to modern South African law, which does not recognise this form of relief. In conclusion, it is considered whether South African law should follow the German example. The finding is that this is undesirable on grounds of principle as well as policy.

The distinction between the governing law and the incorporation by reference of contractual terms in international contracts

by | Dec 2, 2025 | SALJ, SALJ V142 I4 2025

ARTICLE

The distinction between the governing law and the incorporation by reference of contractual terms in international contracts

Author: Faadhil Adams

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 4, p. 743-773
https://doi.org/10.47348/SALJ/v142/i4a6

Abstract

The distinction between the governing law of a contract and the incorporation of contractual terms by reference is a crucial yet often misunderstood aspect of international contract law. This article systematically explores the theoretical foundations and practical implications of these concepts, assessing their significance in determining contractual rights, obligations, and the applicability of mandatory legal provisions. By engaging with private-international-law principles, comparative legal frameworks and case-law analysis, the article highlights how the governing law provides a legal framework for contractual interpretation and enforcement, whereas incorporated terms function within this framework as contractual provisions. The article provides a basis for how international uniform legal instruments (non-state law), such as the UNIDROIT Principles of International Commercial Contracts, may serve as governing law or merely as incorporated terms. Special attention is given to arbitration agreements, the impact of mandatory rules, and the doctrine of dépeçage. The findings suggest that while the distinction between these two concepts is often subtle, it has profound implications for legal certainty, contractual autonomy and the enforceability of international agreements. The article ultimately provides a refined understanding of these principles to aid practitioners and scholars in navigating complex cross-border contractual arrangements.