Contractual fairness: Conflict resolved?

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 321-342
Author(s):  
A Price
Keyword(s):  
South African ◽  
Contract Law ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Preparatory School ◽  
The Supreme Court ◽  
Fresh Impetus ◽  
Court Of Appeal ◽  
Apparent Conflict ◽  
Do So

In 2019 Dale Hutchison called upon the Constitutional Court to resolve the apparent conflict between certain of its judgments and those of the Supreme Court of Appeal relating to the most burning issue in South African contract law, namely, the extent to which a judge can refuse to enforce an otherwise valid contract on the grounds that it would be unduly harsh, unfair or unreasonable to do so. Two of the Constitutional Court’s judgments handed down simultaneously in 2020 – Beadica 231 CC v Oregon Trust and AB v Pridwin Preparatory School – answered Dale’s call. In Beadica, the notion that abstract values such as fairness, reasonableness and good faith serve as directly applicable standards that courts may use to control contractual content and enforcement was rejected. The established Barkhuizen test for public policy should be employed instead, ‘it was held’. Nonetheless Pridwin provides fresh impetus to the horizontal application of constitutional rights to contracting parties in terms of s 8(2) of the Constitution. The courts will have to use the latter tool carefully and incrementally, particularly in the context of commercial contracting, if the careful balance between contractual fairness and certainty achieved in Beadica is to be preserved.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

2020 ◽  
Vol 33 (3) ◽  
pp. 617-645
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Development ◽  
Personal Liberty ◽  
The Supreme Court ◽  
Present Part ◽  
Court Of Appeal

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).

Some views from the South African Constitutional Court on patent revocation and infringement matters: Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC)

2021 ◽  
Vol 9 ◽  
pp. 1-17
Author(s):  
Mikhalien Du Bois
Keyword(s):  
Supreme Court ◽  
South African ◽  
Animal Health ◽  
Main Issue ◽  
Constitutional Court ◽  
The South ◽  
Res Judicata ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
The Way

In South African law, the substantive requirements for a patent may be scrutinised during infringement proceedings or revocation proceedings. Lack of novelty (or anticipation) is a ground for revocation of a patent but can also serve as a defense in an infringement matter. After a series of decisions by the Commissioner of Patents and the Supreme Court of Appeal on infringement and revocation matters relating to Merck’s Patent 98/10975 and its alleged infringement by Cipla (now Ascendis), the Constitutional Court was asked to deliberate the matter in Ascendis Animal Health (Pty) Limited v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC). The main issue related to the principle of res judicata, and whether invalidity of a patent may be considered as a defense during infringement matters after the validity of the patent was already determined during revocation proceedings between the same parties. The decisions also considered whether each revocation ground constituted a separate issue or whether revocation is the issue for purposes of determining whether a matter is res judicata. A review of all the preceding decisions also indicate that the Supreme Court of Appeal may have developed the way in which lack of novelty is determined in South African law, but without explicitly acknowledging that the approach is different. The Constitutional Court’s evenly split decisions (per Khampepe J and Cameron J) indicate different approaches to reaching just and fair outcomes in patent matters. While Khampepe J’s decision focuses more on the need to remove invalid patents from the register, Cameron J’s decision focuses on preventing harm from piecemeal litigation.

Twenty Years of the Remedy of Reinstatement in the Law of Unfair Dismissal in South Africa: Some Preliminary, Jurisprudential and Sundry Issues

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Chuks Okpaluba ◽  
Mpfariseni Budeli-Nemakonde
Keyword(s):  
South African ◽  
Retirement Age ◽  
Constitutional Court ◽  
Labour Law ◽  
Labour Relations ◽  
Appeal Court ◽  
Unfair Dismissal ◽  
The Supreme Court ◽  
Evaluation Exercise ◽  
Court Of Appeal

Reinstatement as a remedy for unfair dismissal was known to and applied by the Industrial Court of the bygone labour relations regime of 1956. It was, however, the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the modern South African labour relations system designed essentially to do justice between the employer and the employee and, fundamentally, to achieve industrial justice. After two decades of the operation of the adjudicative institutions established by the 1995 Act, it is time to evaluate the ways in which the labour arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and applied the provisions of the LRA relating to reinstatement. This evaluation exercise also extends to the immense contributions of the Supreme Court of Appeal and the Constitutional Court to the jurisprudence surrounding reinstatement as an unfair dismissal remedy in contemporary South African labour law. This article starts by defining reinstatement, distinguishing the remedy of re-employment and, further, the Constitutional Court’s judicial activist innovation to the labour relations lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary and jurisprudential in nature—issues that were probably not contemplated by the enabling legislation, but which have arisen in adjudication. These include resignation and its effect on reinstatement, automatic reinstatement in the form of a declaration, and whether a court is able to order either ‘interim reinstatement’ or ‘semi-urgent interim relief’.  The latter part of this article examines those non-statutory obstacles to accessing the remedy of reinstatement. These include the employer’s non-compliance with the order of reinstatement, as was the issue in the protracted litigation concerning Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act applies to claims for reinstatement; and such sundry issues as whether arrear wages could be recovered as a judgment debt. Finally, we consider whether an employee nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

scholarly journals Yet Another Call for a Greater Role for Good Faith in the South African Law of Contract: Can we banish the Law of the Jungle, while avoiding the Elephant in the Room?

2017 ◽  
Vol 16 (5) ◽  
pp. 43
Author(s):  
Andre M Louw
Keyword(s):  
South African ◽  
Current Approach ◽  
Good Faith ◽  
Law Reform ◽  
Constitutional Court ◽  
The South ◽  
The Supreme Court ◽  
The Republic ◽  
Near Future ◽  
Court Of Appeal

 This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts. 

scholarly journals The Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)

2017 ◽  
Vol 12 (3) ◽  
pp. 135
Author(s):  
B Mmusinyane
Keyword(s):  
South African ◽  
Cultural Practices ◽  
Customary Law ◽  
Constitutional Court ◽  
South Africans ◽  
The Supreme Court ◽  
Customary Laws ◽  
The Republic ◽  
Traditional Authorities ◽  
Court Of Appeal

South African customary law is a body of law by which many South Africans regulate their lives in a multicultural society. South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996, including African customary law, and that all laws are limited only by the Constitution. Customary law existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country. It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities. This contribution investigates customary systems of succession that are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. The discussion focuses in particular on the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). This case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal substantially confirming a decision of the Pretoria High Court that prevented a woman from being a Hosi (traditional leader) of her own community

scholarly journals The Potential Impact of Indigenous Rights on the International Law of Nationality

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 135-139
Author(s):  
Kirsty Gover
Keyword(s):  
International Law ◽  
Legal Status ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Potential Impact ◽  
Human Rights Norms ◽  
Domestic Law ◽  
Court Of Appeal

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

2021 ◽  
Vol 8 (2) ◽  
pp. 149-174
Author(s):  
Paul Nkoane
Keyword(s):  
United States ◽  
Supreme Court ◽  
South African ◽  
General Public ◽  
The United States ◽  
Constitutional Court ◽  
United States Supreme ◽  
The South ◽  
Case Selection ◽  
The Supreme Court

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

scholarly journals Penegakan Putusan Mahkamah Konstitusi Nomor 13/PUU-XV/2017 Mengenai Hak Mendapatkan Pekerjaan dan Hak Membentuk Keluarga

2019 ◽  
Vol 15 (4) ◽  
pp. 858
Author(s):  
Muhammad Reza Winata ◽  
Intan Permata Putri
Keyword(s):  
Qualitative Research ◽  
Judicial Review ◽  
Industrial Relations ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Freedom Of Contract ◽  
Legal Power ◽  
The Supreme Court ◽  
The Republic ◽  
The Right

Jaminan konstitusi terkait hak konstitusional untuk mendapatkan pekerjaan dalam Pasal 28D ayat (2) UUD NRI 1945 dan hak konstitusional untuk membentuk keluarga dalam Pasal 28B ayat (1) UUD 1945 telah dibatasi dengan adanya ketentuan Pasal 153 ayat (1) huruf f Undang-Undang No 13 Tahun 2003 tentang Ketenagakerjaan. Keberadaan perjanjian kerja menghalangi hak pekerja untuk menikah dalam satu institusi karena pekerja harus mengalami pemutusan hubungan kerja untuk dapat melaksanakan haknya membentuk keluarga yang sebenarnya dijamin dalam konstitusi dan peraturan perundang- undangan. Pengujian Pasal 153 ayat (1) huruf f UU No 13 Tahun 2003 dalam Putusan Mahkamah Konstitusi Nomor 13/PUU-XV/2017 telah menyatakan frasa "kecuali telah diatur dalam perjanjian kerja, peraturan Perusahaan, atau perjanjian kerja bersama" bertentangan dengan UUD 1945. Artikel ini hendak menjawab kekuatan mengikat dan akibat hukum putusan, sekaligus Penegakan putusan dengan memetakan penyelesaian terkait peraturan perundang-undangan dan perjanjian kerja yang tidak tidak sesuai dengan putusan dan bertentangan dengan prinsip kebebasan berkontrak. Penelitian ini didasarkan pada penelitian kualitatif, dimana sumber analisis yakni Putusan MK terkait permasalahan yang diangkat, peraturan perundang-undangan, buku dan artikel ilmiah. Artikel ini hendak memetakan penyelesaian yang sesuai terkait kepada perjanjian kerja yang tidak menjamin hak pekerja yang dijamin dalam konstitusi, serta bertentangan dengan prinsip kebebasan berkontrak. yakni: pertama, penyelarasan peraturan perundang undangan di bawah Undang-undang judicial review di Mahkamah Agung, kedua, penyelesaian perselisihan hak melalui Pengadilan Hubungan Industrian yang akan menguji penegakan putusan dalam perjanjian kerja, peraturan perusahaan, atau perjanjian kerja bersama.The constitutional guarantee regarding constitutional rights to obtain employment in Article 28 D paragraph (2) of the 1945 Constitution of the Republic of Indonesia and the constitutional rights to form a family in Article 28 B paragraph (1) of the 1945 Constitution has been limited by the provisions of Article 153 paragraph (1) letter f Law No. 13 of 2003 concerning Labor. The existence of a work agreement prevents the right of workers to get married in one institution because workers must experience termination of employment to be able to exercise their rights to form a family which is actually guaranteed in the constitution and legislation. Testing Article 153 paragraph (1) letter f of Law No. 13 of 2003 in the Decision of the Constitutional Court Number 13/PUU-XV/2017 has stated the phrase "except as stipulated in work agreements, company regulations, or collective labor agreements" contrary to the 1945 Constitution. This article is about to answer the binding and consequent legal power of the decision, as well as Enforcement of decisions by mapping out solutions related to legislation and work agreements that are not incompatible with decisions and are contrary to the principle of freedom of contract. This research is based on qualitative research, where the source of analysis is the Constitutional Court Decision related to the issues raised, legislation, scientific books, and articles. This article intends to map appropriate solutions related to work agreements that do not guarantee workers’ rights guaranteed in the constitution, as well as contrary to the principle of freedom of contract. namely: first, alignment of legislation under the judicial review law in the Supreme Court, secondly, settlement of rights disputes through the Industrial Relations Court which will test enforcement of decisions in work agreements, company regulations, or collective labor agreements.

Sign in / Sign up

Export Citation Format

Share Document