scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

scholarly journals Establishment by virtue of the law of land easement with the content corresponding to transmission easement in the light of the resolution of the Supreme Court of June 5, 2018, in case III CZP 50/17

2019 ◽  
Vol 29 ◽  
pp. 227-236
Author(s):  
Anna Maria Barańska
Keyword(s):  
Property Rights ◽  
Supreme Court ◽  
The Other ◽  
Other Hand ◽  
The Supreme Court ◽  
The Subject ◽  
The Creation ◽  
The Law ◽  
Owned Company

The subject of this article is the resolution of the enlarged composition of the Supreme Court of June 5, 2018, which resolves the issue of acquiring by land easement with the content corresponding to transmission easement together with the acquisition by a state-owned company of transmission facilities developed on State Treasury properties. As a result of granting property rights to state-owned companies of state property in the early 1990s, the ownership of the transmission infrastructure and the property on which they were situated were separated.In the judicature, divergent concepts emerged regarding the solution of the issue of  further use of this land by transmission companies. According to the first one, the transfer of property rights was accompanied by the creation by law of a land easement with the content corresponding to a transmission easement. On the other hand, according to the second concept, obtaining a legal title for further use of the property was possible only through contractual acquisition or prescription of transmission easement. Powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu w świetle uchwały Sądu Najwyższego z dnia 5 czerwca 2018 roku, sygn. akt III CZP 50/17 Tematem artykułu jest uchwała powiększonego składu Sądu Najwyższego z dnia 5 czerwca 2018 roku, która rozstrzyga kwestię nabycia z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu wraz z nabyciem przez przedsiębiorstwo państwowe własności urządzeń przesyłowych posadowionych na nieruchomościach Skarbu Państwa. W wyniku uwłaszczenia mienia państwowego na początku lat dziewięćdziesiątych ubiegłego wieku doszło do rozdzielenia własności infrastruktury przesyłowej oraz nieruchomości, na której były one posadowione. W judykaturze pojawiły się rozbieżne koncepcje odnośnie do rozwiązania kwestii dalszego korzystania przez przedsiębiorstwa przesyłowe z tych gruntów. Zgodnie z pierwszą z nich przeniesieniu prawa własności towarzyszyło powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu. Na podstawie drugiej — uzyskanie tytułu prawnego do dalszego korzystania z nieruchomości było możliwe wyłącznie w drodze umownego nabycia albo zasiedzenia służebności przesyłu.

scholarly journals A Fresh Perspective on Historical Sexual Abuse: The Case of Hewitt v S 2017 1 SACR 309 (SCA)

2017 ◽  
Vol 20 ◽  
pp. 1-21
Author(s):  
Windell Nortje ◽  
Pieter Du Toit
Keyword(s):  
South Africa ◽  
Sexual Abuse ◽  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Sexual Offences ◽  
Sexual Crimes ◽  
The Supreme Court ◽  
Fresh Perspective ◽  
Court Of Appeal

Sexual crimes continues to be a scourge in our society. It is therefore not surprising that the prevention and criminalisation of sexual crimes in South Africa has received a large amount of attention over the last few years. Contrarily, the matter of historical sexual abuse has received only occasional consideration. Cases of historical sexual abuse present numerous challenges to all parties involved. The victims of historical sexual abuse, often children at the time, are now adults. Some of these victims might not want to relive the experience or confront the offender. On the other hand, the offender might have been rehabilitated and become a respected citizen. In Hewitt v S 2017 1 SACR 309 (SCA) the Supreme Court of Appeal heard the appeal against the sentence of Bob Hewitt, a retired tennis champion. He was convicted of committing numerous sexual offences against young girls. The first of these crimes was committed more than three decades ago. This case note analyses the decision by the SCA while it also examines historical sexual abuse more generally in South Africa as well as in England and Wales, in order to establish whether any lessons can be learned from previous cases and laws as implemented in these countries.     

scholarly journals CONSTRUCTIVE DISMISSAL: A TRICKY HORSE TO RIDE Jordaan v CCMA 2010 31 ILJ 2331 (LAC)

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
N Whitear-Nel ◽  
Matthew Rudling
Keyword(s):  
Supreme Court ◽  
Job Security ◽  
Case Note ◽  
Group Schemes ◽  
Appeal Court ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

The concept of constructive dismissal is flexible because the circumstances that may give rise to it are “so infinitely various” (Minister of Home Affairs v Hambidge 1999 20 ILJ 2632 (LC) par 12). As such, there are no clear rules defining precisely when a constructive dismissal has taken place. The facts of each case must be established, interpreted and measured against general principles to determine whether the requirements for constructive dismissal have been met. The Labour Appeal Court (LAC), in the case of Jordaan v CCMA (2010 31 ILJ 2331 (LAC) 2335), made the point that the law has attained more certainty since Hambidge’s case. This is partially true. However, this case note shows that it remains difficult to set down hard and fast rules to determine the existence of a constructive dismissal. The Supreme Court of Appeal (SCA) has held that very strict proof of constructive dismissal is required, and it has not readily found that circumstances complained of by employees constitute such a dismissal. In the case of Old Mutual Group Schemes v Dreyer (1999 20 ILJ 2030 (LAC)) Conradie JA cautioned that constructive dismissal is not for the asking. He held that generally it will be difficult for an employee who resigns to show that he has actually been constructively dismissed, because the onus of proof on the employee in this regard is a heavy one. Jordaan’s case highlights just how hard it is to establish a viable claim of constructive dismissal. It shows that even where an employee experiences a loss of job security as a result of attempts by the employer to protect his business, and this leads to the employee’s resignation, it will not rise to the standard of constructive dismissal. The LAC saw Jordaan’s case as an attempt to “stretch the law relating to constructive dismissal” and held that this was not only inappropriate but that such an attempt “should not be contemplated” by future courts.

scholarly journals Forging Alberta's Constitutional Framework, Richard Connors and John M. Law, eds., and The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger, Ed.

2008 ◽  
Author(s):  
James W. Muir
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
The Other ◽  
Weight Of Evidence ◽  
Recent Issue ◽  
Other Hand ◽  
New Directions ◽  
The Law ◽  
The One ◽  
Made In

In a recent issue I raised the question of whether Canada has developed a distinctive law of its own. With two recent publications it is possible to focus that question more narrowly and ask if there is such a thing as a distinctive Albertan law that has developed over the twentieth century. In the introduction to their book Forging Alberta's Constitutional Framework (Forging), Richard Connors and John Law declare that "Alberta has, in part, forged its own Constitution and its place within Canada's Constitution." This statement perfectly balances the issue: on the one hand, Alberta has its own Constitution that it has made itself; on the other hand, it exists as an entity within the wider Canadian constitutional framework. In his introduction to The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger strikes a similar balance: "In those areas where the Court did act, the weight of evidence suggests that while some aspects of Alberta's jurisprudential path have been creative and forward looking, in others they were less inclined to strike out in new directions.... And if the Court's jurisprudence in a given area might appear tentative or tightly prescribed, in others we find indications of a distinctive "made in Alberta" flavour that did not necessarily tread expected paths."Reading these books introduces us to many interesting parts of Alberta's legal past, but in the end these sometimes unique events do not lead us to conclude that there is much distinct about the law in Alberta, whether in its constitutional framework or in its courts.

scholarly journals L'égalité selon la Cour suprême

2005 ◽  
Vol 18 (4) ◽  
pp. 691-710
Author(s):  
Denis Bourque
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
The Other ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The One ◽  
The Right

Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights. Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.

scholarly journals Consultation with Aboriginal Peoples: Impacts on the Petroleum Industry

2020 ◽  
Author(s):  
Tony Fogarassy ◽  
KayLynn Litton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Petroleum Industry ◽  
The Other ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Company Limited ◽  
The Supreme Court ◽  
The One ◽  
Court Of Appeal

The duties of consultation and accommodation with Aboriginal peoples affected by resource development were, until 2002, primarily the responsibility of the Crown. The British Columbia Court of Appeal, in two related decisions involving the Haida Nation on the one hand and the Crown and Weyerhaeuser Company Limited on the other, has placed these duties squarely on to the shoulders of industry. Where the Crown fails to discharge its duties of consultation and accommodation, resource tenures such as permits, licenses or leases may be invalid and activity conducted pursuant to the tenures may result in damages awarded against industry in favour of affected Aboriginal peoples. Appeals from both decisions will be heard by the Supreme Court of Canada. In the meantime, the law on industry’s duty to consult and to accommodate Aboriginal peoples continues to lack certainty.

scholarly journals Songs about Zuma: revelations of divisions after democracy

Literator ◽  
2010 ◽  
Vol 31 (1) ◽  
pp. 123-146 ◽  
Author(s):  
M. Groenewald
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Trade Unions ◽  
The Other ◽  
Moral Integrity ◽  
Other Hand ◽  
The Supreme Court ◽  
Women Abuse ◽  
The One ◽  
Ordinary Folk

In February 2006, when he was Deputy President of the country, Mr Jacob Gedleyihlekisa Zuma appeared in the Supreme Court in Johannesburg to defend himself against charges of rape. The charge of rape by a woman known only as Khwezi against a powerful politician, popular with many trade unions and many ordinary folk, not only gave rise to one of the major media events in that year in South Africa, but also revealed divisions in society and in politics. While Zuma supporters sang in his defence and to his praise, activists against women abuse criticised Zuma. On the one hand, the supporters of Zuma defended him with reference to his moral integrity; they also stated that he was the popular choice for future president, while they ridiculed the futile actions of his enemies. On the other hand, the activists against women abuse attempted to highlight Zuma’s behaviour as immoral and urged women to speak out against abuse. This opposition revealed new divisions in society at large, as will be shown in the analysis of the songs.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

Law’s Contradictions

2018 ◽  
Author(s):  
Nimer Sultany
Keyword(s):  
The Other ◽  
Political Actors ◽  
Political Conflicts ◽  
Other Hand ◽  
The Law ◽  
The One

This chapter analyzes concrete Egyptian and Tunisian cases that showcase the interplay between continuity and rupture. These cases illustrate the lack of a systemic relation between law and revolution. On the one hand, the judiciary that interprets and applies the law is part of the very social and political conflicts it is supposed to resolve. On the other hand, the law is incoherent and there are often resources within the legal materials to play it both ways. Thus, the different forces at work use both continuity and rupture to advance their positions. Furthermore, legitimacy discourse mediates the contradictions between law and revolution in the experience of different legal and political actors. This mediation serves an ideological role because it presupposes a binary dichotomy between continuity and rupture, papers over law’s incoherence by reducing it to a singular voice, and reduces revolution to an event rather than a process.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

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