Contract as a Basis for Mediation Confidentiality

2021 ◽  
Vol 33 (1) ◽  
pp. 112-136
Author(s):  
Michael Laubscher
Keyword(s):  
South Africa ◽  
Contract Law ◽  
Mediation Process ◽  
Confidential Information ◽  
Essential Aspect ◽  
Legal Foundations ◽  
Mediation Agreement ◽  
Interpretation Of Contract

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229(30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

2021 ◽  
Vol 33 (1) ◽  
pp. 137-152
Author(s):  
Marius van Staden ◽  
Kathleen van der Linde
Keyword(s):  
South Africa ◽  
Contract Law ◽  
Case Note ◽  
Mediation Process ◽  
Confidential Information ◽  
Essential Aspect ◽  
Legal Foundations ◽  
Mediation Agreement ◽  
Interpretation Of Contract

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

The Interpretation of Contract in Chinese Contract Law: A Comparative Perspective

2020 ◽  
pp. 24-43
Author(s):  
Yang Fan
Keyword(s):  
Contract Law ◽  
Comparative Perspective ◽  
Gap Filling ◽  
Chinese Law ◽  
Interpretation Of Contract

This chapter examines two closely connected issues in defining the contents of contracts in China: first, the approaches adopted in interpreting the meaning of agreed contractual terms and, second, to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, and the negotiations of the parties; and it shows how Chinese law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how Chinese courts deal with issues of contractual interpretation and gap-filling in practice.

Ethical and Legal Foundations of Relational Marketing Exchanges

1993 ◽  
Vol 57 (4) ◽  
pp. 35-46 ◽  
Author(s):  
Gregory T. Gundlach ◽  
Patrick E. Murphy
Keyword(s):  
Exchange Interaction ◽  
Contract Law ◽  
Limited Attention ◽  
Relational Exchange ◽  
Relational Marketing ◽  
Law And Ethics ◽  
Legal Foundations

Previous study of exchange by marketing scholars has emphasized events and conditions leading to and the outcomes of exchange interaction. However, limited attention has been directed toward the role of ethics and law in exchange. The emerging perspective of relational exchange suggests the importance of these foundations. The authors examine the interrelationship of contract law and ethics for building and sustaining marketing exchanges. They explore dimensions of ethical exchange and offer managerial and research implications.

Elitist, Populist or Prophetic?A Critique of Public Theologizing in Democratic South Africa

2018 ◽  
Vol 12 (3-4) ◽  
pp. 332-352
Author(s):  
Jakub Urbaniak
Keyword(s):  
South Africa ◽  
Public Theology ◽  
Black Feminist ◽  
Essential Aspect ◽  
Reality Check

Abstract Much has been already written about public theology’s prophetic role in democratic South Africa. This study seeks to offer a reality check. By probing some of Nico Koopman’s views on justice and reconciliation I draw tentative conclusions regarding the shortcomings characteristic of the prevalent discourses that have developed in South Africa under the umbrella of public theology since the mid-1990s. I seek to explain why liberation theologies—be it black, feminist or queer—may and should constructively disrupt these discourses. I also point to some promising (prophetically-loaded) insights coming from the chosen public theologians that revolve around the tension between civic spirit and public anger. Lastly, I suggest that one essential aspect of public theologians’ navigating between a populist temptation and a prophetic calling may be found in the need to rethink their theological accountability whereby grooving with people’s anger appears as a sine qua non condition for prophetic theologizing.

scholarly journals Hand-Print CARE: Towards Ethics-led Action Learning for ESD in School Subject Disciplines

2020 ◽  
Vol 14 (1) ◽  
pp. 41-60
Author(s):  
Rob O’Donoghue ◽  
Christa Henze ◽  
Chong Shimray ◽  
Kartikeya V. Sarabhai ◽  
Juan Carlos A. Sandoval Rivera
Keyword(s):  
South Africa ◽  
Common Good ◽  
Action Learning ◽  
Mediation Process ◽  
Learning Progressions ◽  
National Council ◽  
School Subject ◽  
Start Up ◽  
Kwazulu Natal ◽  
Concern For Others

The Hand-Print concept emerged as a proposition for learner-led action learning in the Centre for Environment Education, Ahmedabad, Gujarat, India. Hand-Print CARE as an ethics-led action learning proposition was developed at a Local Culture for Understanding Mathematics and Science (LOCUMS) research group meeting with some educators in Alta, Norway. Here ‘CARE’ emerged as an acronym reflecting an ethic of inclusive respect through Concern for others, being Attentive to needs, showing Respect for each other and being Engaged in learning actions for the common good. Hand-Print CARE was thus activated as a co-engaged mediation process towards ‘Learning to look after others to best care for ourselves and the surroundings we all share’. Conceptual tools towards a Hand-Print CARE rationale were clarified in subsequent ESD workshops in Malaysia and Mexico and the challenge of developing a schema for ESD in school subject disciplines emerged at an ESD training workshop with National Council for Education Research and Training (NCERT) in Delhi, India. This article explores the emergence of Hand-Print CARE and the framing of an open-ended schema for mediating better-situated and ethics-led action learning in school subject disciplines. A formative perspective towards more locally situated and co-engaged processes for mediating learning was refined through an ESD Expert-Net collaboration to clarify ESD learning progressions in school subject disciplines. Some start-up materials were developed with partnering NGOs in the small town of Howick in KwaZulu-Natal, South Africa, and in an expanding collaboration involving partners in India, Mexico, Germany and South Africa. Each of us worked to refine Hand-Print CARE learning progressions for ESD processes of action learning in diverse subject discipline and school-in-community settings.

scholarly journals Reflecting on the Role and Impact of the Constitutional Value of uBuntu on the Concept of Contractual Freedom and Autonomy in South Africa

2021 ◽  
Vol 24 ◽  
pp. 1-68
Author(s):  
Theophilus Edwin Coleman
Keyword(s):  
South Africa ◽  
South African ◽  
Contract Law ◽  
Economic Interest ◽  
Competing Values ◽  
Judicial Interpretation ◽  
The Republic ◽  
Inhibition Control ◽  
The Impact ◽  
Theoretical Foundations

Private parties have the freedom and autonomy to enter into a contract. This autonomy is deeply rooted in their dignity and personal liberties. Private individuals, in furtherance of their autonomy and freedom to enter into a contract, have certain reasonable expectations, most fundamental of which is the desire that maximum respect is given to their legitimately concluded agreement. The concept of contractual freedom and autonomy connotes the idea that private individuals (natural and juristic) have the liberty to arrange their affairs in a manner that meets their economic interest without governmental inhibition, control and/or interference. However, the operative scope and the practical manifestations of the concept of contractual freedom are circumscribed in the constitutional, statutory, legislative and other socio-cultural orders of States. This article seeks to reflect on the role and influence of the constitutional value of ubuntu on the principle of contractual freedom and autonomy, and the naturally accompanying concepts of pacta sunt servanda and sanctity of contract in South Africa. The article provides an analysis of the judicial interpretation and views on the concept of contractual freedom and autonomy relative to other competing values that underlie the Constitution of the Republic of South Africa. Furthermore, the article appraises the impact of those judicial views on international commercial agreements. The article also discusses the extent to which communitarian values such as the concept of ubuntu have been infused into South African contract law and further reflects on the implication of infusing such communitarian values in both domestic and international contracts. The article concludes with a suggestion that the introduction of traditional African values in South African contract law fundamentally alters the theoretical foundations of the principle of contractual freedom and autonomy in both domestic and international contracts.

scholarly journals Implementation Challenges of Land Redistribution Programme in South Africa

2021 ◽  
Vol 16 (7) ◽  
pp. 1329-1337
Author(s):  
Nwabisa Tyekela ◽  
Christopher Amoah
Keyword(s):  
South Africa ◽  
Selection Process ◽  
Monitoring And Evaluation ◽  
Mediation Process ◽  
Research Approach ◽  
Successful Implementation ◽  
Implementation Challenges ◽  
Land Redistribution ◽  
The Government ◽  
Apartheid Regime

Upon assuming political office, the ANC government instituted a land redistribution programme to address the land ownership injustice perpetrated during the apartheid regime whereby the non-white citizens owned only 7% of land in South Africa. However, the programme has not achieved the set target; thus, this study sought to understand the challenges curtailing the successful implementation of the programme. The study used a qualitative research approach. An in-depth interview was conducted with three purposefully selected senior officials from three Departments in Greater Kokstad Municipality involved in the land redistribution programme’s implementation. The findings indicate that the major issues curtailing the programme's implementation are land claim disputes and mediation process, reliance on the willing-seller-willing-buyer model, lack of institutional capacity, cumbersome beneficiary selection process, land beneficiary resettlement support, and inadequate programme’s monitoring and evaluation. There is an urgent need for the government to institute measures to address the challenges preventing the smooth implementation of the land redistribution programme in South Africa. These challenges prevent the programme’s beneficiaries from accessing the land, thus preventing them from experiencing socio-economic emancipation as promised.

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