Research Articles (Mercantile Law)

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Browsing Research Articles (Mercantile Law) by Subject "arbitrariness vortex -- South Africa"

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    Section 25 vortices (part 1)
    (Juta Law, 2016-10) Van Der Walt, A. J.
    Roux introduced the notion of the “arbitrariness vortex” to illustrate his observation that the constitutional court’s FNB decision could “telescope many of the issues that might have been addressed (and in comparative constitutional law are addressed) at other stages of the property clause inquiry into [the arbitrariness] stage” or, as he describes it elsewhere, of “sucking the [whole property] inquiry into the arbitrariness test”. Crucial to the idea of a vortex is that what is perceived as the crux of a section 25 dispute, namely the balancing of individual property interests and the public interest, is “sucked into” just one stage or part of a section 25 challenge, instead of taking place in or being spread over several discrete stages or parts of the inquiry.
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    Section 25 vortices (part 2)
    (Juta Law, 2016-12) Van Der Walt, A. J.
    Even when he first identified the arbitrariness vortex, Roux pointed out that courts may well not follow the methodology set out in the FNB case strictly and that deviations might reduce the vortex effect in some cases. In some subsequent decisions, the constitutional court did follow its approach in the FNB case, but it has become clear that the arbitrariness vortex is not going to materialise in a pure form or consistently and that the court will indeed deviate from the FNB methodology in ways that will at least water the vortex effect down. Perhaps more surprisingly, subsequent decisions have also shown that the court will deviate from the FNB methodology in ways that might create new vortices, centred on other parts of the section 25 inquiry.