MISTAKE AND SURETYSHIP: AVOIDING THE SPECTRE OF BRINK V HUMPHRIES & JEWELL (PTY) LTD

The nettlesome matter of operative mistake and suretyships tucked away in credit applications tends to find its way into the law reports on a rather frequent basis. This phenomenon is hardly surprising because in the cut and thrust of modern commerce, and even more so in lean times, individuals are keen to apply for credit on behalf of the corporate entities which they represent, but less eager to stand in for these debts when they cannot be serviced. From the contractual perspective of mistake, these cases tend tofollow a familiar pattern. Commonly, a member of a close corporation or director of a private company applies on behalf of the close corporation or company, as the case may be, for some or other form of credit from another party. Usually, within a business context, credit will not be granted without some form of security, and in these instances more often than not the representative is required to agree to a personal suretyship in favour of the creditor, which is often embodied in the credit application form itself. Oncethe representative has appended him or her signature to the application form, he or she inexorably finds himself or herself simultaneously bound as surety and co-principal debtor, the formal requirements for a suretyship agreement having been complied with (as prescribed by s 6 of the General Law Amendment Act 50 of 1956). On the whole older case law displays a reluctancy on the part of the judiciary to excuse a surety on the basis of material mistake in such circumstances, but in Brink v Humphries & Jewell (Pty) Ltd (2005 2 SA 419 (SCA)) the Supreme Court of Appeal adopted a far more lenient approach in favour of the surety, and perhaps heralded a not too subtle change in the law. This note examines the way in which the courts have adjudicated similar cases, and specifically whether more recently they have reinforced the generally stricter approach of old or been prepared to follow the path which Brink seemed to have cleared.

RELIANCE, FORMALITIES AND THE MODE OF ACCEPTANCE OF AN OFFER Pillay v Shaik 2009 4 SA 74 (SCA)

In Pillay v Shaik (2009 4 SA 74 (SCA)), the Supreme Court of Appeal was confronted with a situation which tends to feature in the law reports more frequently than one would expect, and that is where a party to a transaction involving the sale of immovable property reneges on an apparent agreement by invoking some form of technicality (in casu the lack of a signature on a contractual document) as a bar to the proper conclusion of the contract. Usually, where immovable property is sold directly to a purchaser, section 2(1) of theAlienation of Land Act 68 of 1981 applies and provides that no alienation of land will be of any force or effect unless contained in a deed of alienation signed by the parties, or by their agents acting on their written authority. Failure to comply with this provision renders an alienation of land void. Where, however, immovable property is held in the name of a close corporation or private company merely the members’ interests or shares are transferred to the purchaser, but the purchaser still indirectly gains control over the property owned by the juridical entity. The present matter dealt with the latter type of situation and the legal question was whether the sellers had accepted a signed, written offer made by the purchasers despite the fact that the sellers had not in turn signed the contractual documents. The Natal Provincial Division (Shaik v Pillay 2008 3 SA 59 (N)) found that contractual liability did not lie for want of compliance with a party-imposed signature formality, whereas the Supreme Court of Appeal applied the reliance theory to reach the opposite conclusion in the circumstances. The respective approaches of these two courts are diametrically opposed giving rise to some interesting issues on doctrinal as well as policy levels.

7. Breach of duty: the standard of care

Once it has been established that there is a sufficient relationship between the parties to establish a duty, the question then arises whether the defendant has been in breach of this duty. This involves a number of issues, many of which involve the judgment of the ‘reasonable man’. The defendant’s behaviour must have fallen below the level of the standard of care owed, which defines the level of safety a claimant is entitled to expect. The ‘reasonable man’ may give the impression of certainty where there is none, for whether it is reasonable to take a certain risk involves questions of economic and social policy which are rarely expressed in the law reports.

Information Needs, Information Sources, Information Uses and Information-seeking Behaviours of Lawyers in Oyo State Nigeria

This study was carried out to examine the information needs, information uses, information sources and information-seeking behaviour of lawyers in Oyo State, Nigeria. Data were collected from a sample of 103 lawyers, using a questionnaire and a self-completed interview schedule. Case preparation was a major reason for lawyers’ information needs. A majority of the lawyers need information in order to enhance their performance and gain more knowledge. The quest for additional information is the main motive in searching for information by professionals and non-professionals alike. Knowing more and becoming well-informed on various aspects of society, constitute the major reasons why lawyers seek for information. Lawyers visit their personal information collection first, and consult available electronic sources before they resort to other sources. The major types of information needed by lawyers, largely relate to the following: weekly law reports, recent decisions of the Supreme Court, and information related to clients. The most consulted sources of information were personal experience, textbooks, journals, colleagues and partners, as well as firm case studies and court records. Creating ways to improve the capacity of lawyers to use digital resources by way of training, and expansion of the legal education curriculum to include ICT, will go a long way to address the challenges lawyers have in finding and using the information they need.

The Conquest in Later Medieval English Law I

Chapter 6 begins by demonstrating how the compilations of Old English royal law codes underpinned the great thirteenth-century conspectus of common law known as Bracton. It traces them, and the theme of the Conquest, through subsequent thirteenth-century books of English jurisprudence—specifically Britton, Fleta, and the Mirror of Justices. It examines the role of historical material, particularly ancient charters and Domesday Book, in forensic practice in the thirteenth century and later. There are two particular foci: ‘ancient demesne’ cases, and the Quo warranto inquest, on both of which this discussion throws new light. Much use is made of the recent substantial edition of thirteenth-century Law Reports.

Politics, Political Parties and the Party System in Nigeria: Who's Interest?

Party system and the administration of political parties are critical factors in determining the direction of politics and democracy. Three political parties contested at the inception of Nigeria’s Fourth Republic in 1999, but the number increased to more than 91 as at 2019. This paper raises fundamental questions as to whose interest – public or private interest of promoters and financiers - these parties serve, and whether the increase in the number of political parties has significantly entrenched democratic values in the country? These questions are compelling because of several events in political party operations in the 20 years of the Fourth Republic. These include controversial and vexatious party primaries preceding every major election, often leading to protracted and distractive litigations and rampant political defections. Unregulated use of money has, in particular, restrained ample participation by women and youths, while violence is almost becoming a norm and permanent characteristic of the electoral and political system. The paper draws data from secondary documentary sources for its conceptual and theoretical contents. Primary data are generated from events analyses by the authors as observers at party conventions and other meetings for the selection of candidates for political offices as well as during general elections. This is complimented by content analyses of relevant documents including electoral laws, court and law reports, and reports by special committees such as the Electoral Reform Committee (ERC). A combination of the ecological approach and conspiratorial theory is deployed for the paper’s analytic frame.

Neuropsychiatry in the civil courts

Neuropsychiatrists play an important role in the administration of justice in a variety of courts and tribunals. This chapter concerns neuropsychiatry, as it pertains to tort law specifically. The necessary considerations taken regarding the validity of an expert witness is explored, such as the expert’s credibility or the relevance of the evidence they provide, with relevance referring in this case to its probative or disprobative qualities. Practicalities are then discussed, from the structure of the neuropsychiatrist’s report to the key issues likely to arise in court, for instance whether the claimant is receiving sufficient care or the possibility they are malingering. Several law reports are cited as further evidence.

Perceived Usefulness and Ease of Use as Predictors of Early-year Lawyers Satisfaction with Law Pavilion Electronic Law Reports

This study examined perceived usefulness and ease of use as predictors of early-year lawyers’ satisfaction with Law Pavilion Electronic Law Reports (LPELR). Descriptive survey design was adopted and questionnaire was the instrument used to collect data. Total population sampling was adopted to select sample size. A total of 300 copies of questionnaires were administered on the respondents. However, only 248 copies were returned completely filled and validated for the study. The Cronbach alpha reliability for the study is 0.782. It was found that there is strong positive relationship between perceived ease of use and perceived satisfaction and that there is positive relationship between perceived usefulness and perceived satisfaction. The study findings show that electronic law reports are easy to use and useful for early-year lawyers in their legal research. The study concludes that, as much as the law profession is conservative in nature, the use of e-law reports is making inroads to the profession. It was recommended that technical service provision by LPELR should be improved significantly. Above all, electronic law reports licensors should ensure that task importance of electronic law reports is given utmost consideration when they are designing the system qualities of e-law reports.