Research Articles (Private Law)

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Browsing Research Articles (Private Law) by Author "Myburgh, Franziska"

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    On constitutive formalities, estoppel and breaking the rules
    (Juta Law, 2016-08) Myburgh, Franziska
    This article focuses on the general rule in South African law that a successful reliance on estoppel should not result in the enforcement of an agreement prohibited by law.1 More particularly, it considers the application of the rule in the context of formally defective sales of land and suretyships, where section 2(1) of the Alienation of Land Act 68 of 1981 and section 6 of General Law Amendment Act 50 of 1956 respectively prescribe nullity in the event of formal non-compliance. The contention is that the blanket exclusion of estoppel here should be reconsidered.
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    The South African approach to the rectification of agreements subject to constitutive formalities : one step too many
    (Juta Law, 2014-01) Myburgh, Franziska
    This article examines the South African approach to the rectification of agreements subject to constitutive formal requirements. It focuses on the rule that such an agreement must first comply with formalities ex facie the document recording it, before a court may consider whether the traditional requirements for rectification have been met. In particular, the primary justifications for this rule are assessed: first, a void agreement cannot be rectified and, secondly, ex facie compliance promotes the functions of formalities. An analysis of South African case law reveals not only that these assumptions are questionable, but that the rule is inconsistently applied and leads to the drawing of tenuous distinctions. A brief investigation of both civilian and common-law approaches suggests further that the South African method is based on a misconception of the purpose of rectification: it conflates the correction of the document recording the agreement with the enforcement of that agreement once it is corrected. This leads to the conclusion that the requirement of ex facie compliance should be abolished as a preliminary step and that a South African court should rather consider whether awarding a claim for rectification would defeat the objects of formalities in general.