Notes: ‘They’re not making land anymore’: A reading of the social function of property in Adonisi

In the Western Cape High Court decision of Adonisi, Gamble J framed the prevalence of well-located land scarcity in Cape Town with the phrase, ‘they’re not making land anymore’. In this case note, I present the court’s findings and reasoning in ruling against the Western Cape Provincial Government, and I argue we can read the judgment as an expression of the social function of property through two lenses: first, the manner in which the court situated the dispute within the spatial and historical geography of Cape Town; and, secondly, the way in which it prefaced the use value of property through its emphasis on meaning ful participation and on custodianship. Both lenses indicated the duty incumbent on the province as landowner and in service of its obligations under s 25(5) of the Constitution, which are important when resolving similar disputes given the scarred ownership landscape characterising the South African urban and spatial environment.

What are the duties (if any) of retirement funds boards which are requested by employers to withhold members’ retirement benefits?

This article evaluates an extraordinary remedy created by the legislature in s 37D(1)(b)(ii) of the Pension Funds Act 24 of 1956. This provision enables employers, who are able to satisfy retirement funds boards that they have suffered economic harm at the hands of their employees’ who are members of such retirement funds, to be compensated from liable members’ retirement benefits. It is demonstrated in this article that, by and large, the practical application of this section has been driven by the courts and the adjudicator, both of whom have interpreted this provision to include aspects that are not explicitly included in it, such as the retirement fund’s power to withhold benefits at the request of employers. It further demonstrates that there are several critical duties that are not explicitly described in any of the provisions of the Pension Funds Act which courts (and other tribunals) have held must be observed by boards when considering withholding members’ retirement benefits. In this article, these duties are critically evaluated with a view to recommending necessary amendments to s 37D(1)(b)(ii) of the Pension Funds Act.

Notes: To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

The decision in Atakas Ticaret Ve Nakliyat AS v Glencore International AG 2019 (5) SA 379 (SCA) made important remarks to the effect that the discretion to effect a joinder to admiralty proceedings under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, and the discretion to refuse a stay of proceedings under s 7(1)(b) of the Act, are ‘untouched’ by art 8 of the UNCITRAL Model Law on International Arbitration that is incorporated under the International Arbitration Act 15 of 2017. The court reached this decision on the basis that, in terms of art 1(5), the Model Law does not affect other laws of the Republic under which matters may not be referred to arbitration, or may only be so referred subject to conditions. This case note analyses the nature and extent of the court’s discretion under art 8(1) of the Model Law, the argument for an implied repeal of s 7(1)(b) of the Admiralty Jurisdiction Regulation Act, the interpretation of art 1(5) of the Model Law, and the questions left unanswered by the judgment. It argues that although the Model Law does not automatically oust the jurisdiction of the high court exercising admiralty jurisdiction to hear a maritime claim, the court only retains a narrow discretion to refuse a stay of those proceedings when an international commercial arbitration agreement exists in respect of the dispute.

Sources of legal indeterminacy

Traditional analyses characterise or identify vagueness and ambiguity as the sole or primary sources of legal indeterminacy. In this article, I identify and characterise various other sources of legal indeterminacy. In addition to the semantic indeterminacy of vagueness and ambiguity, philosophers of language have identified conversational, pragmatic, and contextual indeterminacy, each of which is capable of generating a ‘hard case’ as applied to the legal sphere. Nor is all legal indeterminacy linguistic in nature. Following Henry Prakken, I identify non-monotonicity, or the fact that legal inferences are defeasible, as a final source of legal indeterminacy. Each source of legal indeterminacy thus identified includes case-law examples to aid in the discussion.

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

This article examines the nature and features of ‘unused old order rights’ (‘UOORs’) under item 8 of Schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 in light of the recent decision by the Constitutional Court in Magnificent Mile Trading 30 (Pty) Ltd v Celliers 2020 (4) SA 375 (CC). At issue was: (a) whether an UOOR was transmissible to heirs upon the death of its holder; and (b) the applicability of the Oudekraal principle to the award of an unlawful prospecting right to an applicant, contrary to the rights enjoyed by the holder of an UOOR. The article analyses the constituent elements of an UOOR, rights ancillary to the UOOR’s and the nature and features of UOORs and ancillary rights. The article also considers the possible loss of an UOOR by application of the Oudekraal principle due to the unlawful grant of a prospecting right by the state, as custodian of mineral resources. The article illustrates that the CC ensured in Magnificent Mile that the Oudekraal principle does not undermine the security of tenure and statutory priority afforded to holders of UOORs by ultra vires grants of inconsistent rights to opportunistic applicants. Concern is also expressed about the poor administration of mineral resources by the Department of Mineral Resources and Energy.

Summary judgment — Quo vadis?

The summary judgment procedure in South African law provides for a speedy judgment in favour of a deserving plaintiff where it can be shown that the defendant does not have a triable defence. In 2019 the Rules Board made certain drastic amendments to the procedure of summary judgment in the high court. In this article the historical development of the procedure of summary judgment will be discussed, and the new amendments to rule 32 of the Uniform Rules of Court critically evaluated. It will be argued that the amendments to rule 32 were unnecessary and that it may diminish the right to access to justice in civil disputes. It will, however, also be argued that there are some merits in the critique raised by the Rules Board in relation to rule 32 and that the Rules Board missed a golden opportunity to overhaul the entire summary judgment procedure in a more sensible manner and in line with the core constitutional values of s 34 of the Constitution. It will be argued that rule 32 should be replaced in its entirety by a new, more streamlined procedure, and some recommendations for legal reform will be made in this regard.

Book Review: Stuart Wilson Human Rights and the Transformation of Property (2021)

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Practical implications for the electoral system: New Nation Movement NPC v President of the Republic of South Africa

In New Nation Movement NPC v President of the Republic of South Africa, the Constitutional Court declared parts of the Electoral Act 73 of 1998 unconstitutional in so far as the Act does not provide for independent candidates to stand for political office in the national and provincial legislatures. The court has given the National Assembly two years to redesign the electoral system. Given the constitutional and logistical constraints, the legislature will probably not be able to avoid a major electoral reform. It will be very hard to justify that voters may select a candidate of their choice only when such a candidate runs as an independent but not when a candidate elects to run on a party ticket. The best option would therefore be to introduce a mixed electoral system which combines constituency-based elections with proportional representation of political parties. To keep ballots manageable it would be appropriate to use other electoral design tools such as an entrance hurdle for political parties and deposits and/or nominations by registered voters supporting independent candidates as well. Such a reform might contribute to weed out candidates tainted by corruption because the capacity of political parties to shield them from the electorate in closed lists where the voters have no say about which candidates get elected will be constrained.

Book Review: Sabino Cassese Advanced Introduction to Global Administrative Law (2021)

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Blood and breath alcohol test results: Uncertainty at the interface of science and law

Alcohol is well known for its ability to impair human faculties, which creates risks when driving a vehicle or when performing safety- and risk-sensitive tasks in workplaces. The article aims to highlight some shortcomings in the legal-scientific approach for alcohol testing in South Africa. In particular, we investigate the measurement uncertainty of blood alcohol test results, which is critical in adjudicating over-the-limit cases. The South African regulatory framework for alcohol testing in the criminal- and private-law environments is examined from an analytical due-process perspective, considering measurement uncertainty and other well-established scientific principles which are essential at the interface of science and law. Special attention is paid to the National Road Traffic Amendment Bill, which aims to decrease the alcohol limit to zero. We found that the measurement uncertainty concept has not yet been received into the South African legal system, even though it is a well-established scientific principle. We suggest changes to the current alcohol legislation to accommodate the measurement uncertainty principle and the related likelihood ratio, which we believe could assist in quantifying the odds of compliance. In particular, we believe that our suggestions regarding quantification and reporting of measurement uncertainty can assist the courts and tribunals to avoid false-positive errors that may have a devastating effect on innocent subjects.