The lessor’s hypothec – for rent?

by | Nov 8, 2025 | SLR, SLR V36 I1

The lessor’s hypothec – for rent?

Author: Graham Glover

ISSN: 1996-2193
Affiliations: BA LLB PhD, Professor, Faculty of Law, Rhodes University
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 1-15
https://doi.org/10.47348/SLR/2025/i1a1

Abstract

The lessor’s hypothec is a form of real security that has been recognised since the Republican period in Roman law. The hypothec, as it is traditionally understood, allows a lessor to attach and to sell in execution the property on the leased premises to set off arrear rent that the tenant owes. This contribution investigates two questions that have received little attention in the case law and literature. The first is how the concept of rent should be interpreted and understood in a modern world where lease contracts may describe the tenant’s financial obligations in various ways. The second is whether the hypothec should apply to any claims beyond the obligation to pay rent. An argument is made for an expanded approach to the traditional understanding of the application of the hypothec with respect to both questions. Nevertheless, reasons are given as to why this will not unduly stretch the range of application of the hypothec in any significant practical way.

Bwanya, EB and contexts of structural inequality in contracts

by | Nov 8, 2025 | SLR, SLR V36 I1

Bwanya, EB and contexts of structural inequality in contracts

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA, LLB, LLM (Stell) PhD (Cantab), Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 16-38
https://doi.org/10.47348/SLR/2025/i1a2

Abstract

Two recent Constitutional Court cases have modified the reasoning about contractual autonomy expressed in the court’s earlier judgment in Volks v Robinson. In Volks, the court held that people who choose not to marry cannot expect to benefit from the rights afforded to spouses – generally called the choice argument. This article examines the effects of these judgments for party autonomy in contracts in general. Bwanya v The Master acknowledges that structural forms of inequality, like gender inequality, can impede parties’ abilities to freely contract, but it is ambiguous on the question whether a right to support will be afforded to unmarried partners on the basis of contract or a familial relationship, or both. This creates uncertainty about the basis of future claims for rights to support in such relationships and opens the door for contractual defences to future claims. EB v ER considered the role of the choice argument in contracts which had turned out to be detrimental to one party. It confirmed the central role of pacta sunt servanda in public policy on contracts, but decided the matter on the basis of the unfair discrimination test in Harksen v Lane. Together, the cases create a chink in the armour of pacta sunt servanda and the choice argument for broader reconsideration of autonomy and fairness in contract law.

Learners resolving conflict: integrating mandatory peer mediation in South African public high schools to address issues of discipline

by | Nov 8, 2025 | SLR, SLR V36 I1

Learners resolving conflict: integrating mandatory peer mediation in South African public high schools to address issues of discipline

Authors: Monique Carels and Muofhe Tshifularo

ISSN: 1996-2193
Affiliations: LLB, LLM (Dispute Resolution), LLM (Labour Law), Lecturer, University of Cape Town; LLB, LLM (Dispute Resolution), Admitted Attorney
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 39-60
https://doi.org/10.47348/SLR/2025/i1a3

 Abstract

Disputes are a natural part of school life, and unfortunately, bullying, harassment, victimisation, and assaults have become all too common in South African public high schools. Schools face significant disciplinary challenges, with issues of ill-discipline on the rise in schools across the country. However, the current school disciplinary procedures adopted by most public high schools fail to address the root causes of these problems and do not provide concrete solutions.
This article aims to explore the idea of implementing mandatory peer mediation in South African public high schools as a way to resolve conflicts and address issues of discipline. It will begin by briefly examining the school disciplinary procedure, before discussing its shortcomings. Next, it will examine the concept of peer mediation and compare it to the disciplinary hearing process. To gain a deeper understanding of how peer mediation could be integrated into the school environment, we will look at the experience in New Zealand. Finally, the article will discuss the practicalities of implementing mandatory peer mediation in South African high schools.

Relationship-centred lawyering and its impact on legal practice

by | Nov 8, 2025 | SLR, SLR V36 I1

Relationship-centred lawyering and its impact on legal practice

Author: Jonathan Campbell

ISSN: 1996-2193
Affiliations: BA LLB (UCT) LLM, Associate Professor, Faculty of Law, Rhodes University
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 61-78
https://doi.org/10.47348/SLR/2025/i1a4

 Abstract

This contribution emphasises the human factor in the relationship between lawyer and client. It submits that traditional “client-centred lawyering”, which foregrounds the paramount interests of the client, has considerable value but does not go far enough. “Relationship-centred lawyering” (or “relational lawyering”) extends the focus beyond the interests of the client to the relationship between lawyer and client. According to this approach the building of trust and rapport is foundational to a successful professional relationship.
Four key characteristics define relational lawyering: (i) the background contexts of both the client and the lawyer, and the personalities, values, preferences (and more) that each brings into the interactions between them; (ii) the importance of non-legal issues that can determine (in whole or in part) the strategy adopted and even the preferred outcome; (iii) a partnership between lawyer and client that allows for collaborative problem-solving, since the client knows best the facts of the case but also her needs and preferences, with the emphasis on the importance of client autonomy in decision-making; and (iv) a range of psychological matters, including interpersonal literacy, emotional intelligence and empathy in the lawyer-client relationship.
A range of skills and values are required to practice relational lawyering, known as “relational competencies”. These competencies are not widely practiced or understood by lawyers, and usually they are not explicitly included in law curricula. This contribution argues that there is a need for relational skills and values to be taught in law schools so that these valued competencies can aid graduates in serving the best interests of their clients in their future careers.

Perfecting entitlement before filing: patent revocation and the right to apply

by | Nov 8, 2025 | SLR, SLR V36 I1

Perfecting entitlement before filing: patent revocation and the right to apply

Author: Joel Morrison

ISSN: 1996-2193
Affiliations: LLB LLM, LLD Candidate, University of South Africa
Source: Stellenbosch Law Review, Volume 36 Issue 1, 2025, p. 79-92
https://doi.org/10.47348/SLR/2025/i1a5

 Abstract

This case comment examines the recent judgment in Regents of the University of California and Others v Eurolab (Pty) Ltd and Others. The dispute centred on the validity of a South African patent for a pharmaceutical compound marketed by the Regents of the University of California (“UC”) under the brand name Xtandi for certain forms of prostate cancer. Eurolab (Pty) Ltd launched a generic version of the same drug, Enzutrix, which Dis-Chem Pharmacies distributes. When UC pursued an interim interdict, Eurolab and Dis-Chem challenged the patent’s validity on two primary grounds: (1) the patentee’s lack of entitlement to apply for the patent under section 27 of the Patents Act 57 of 1978 and (2) alleged misrepresentations concerning priority. The Commissioner held that, where the applicant for a patent is not the inventor, that applicant must have acquired the right to apply from the inventor before filing. On the facts, certain co-inventors had pre-assigned their rights to a research institution, and no complete re-assignment was furnished to the patentee before the filing date. As a result, the patentee was not “a person entitled under section 27” at the critical date, rendering the patent invalid and liable to revocation. This judgment reinforces the strict requirement that the chain of title must be perfected before filing, underscoring the importance of complete and timely assignments for patent validity. It also clarifies that a post-filing agreement to assign cannot cure an applicant’s lack of initial entitlement. For prospective patent holders, the decision highlights the practical necessity of sound contractual arrangements with inventors (and any third-party research sponsors) before proceeding with a national or international patent filing.