Law Clinic

Permanent URI for this community

https://scholar.sun.ac.za/handle/10019.1/97575

Browse

Browsing Law Clinic by Title

Now showing 1 - 20 of 25
  • Thumbnail Image
    Item
    Cautioning the careless writer : the importance of accurate and ethical legal writing
    (Sabinet Online, 2014-12) Van der Merwe, Stephan
    Legal professionals are required to write ethically, skilfully and accurately. Growing concerns over the quality of graduated students entering the profession has led to an increased sensitivity about the teaching of writing skills. This article will not consider the how to, but instead focus on the issue of why legal writers should be vigilant in guarding against the proclivity to write in a careless manner. It will be argued that the results of careless legal writing could have devastating consequences for the legal professional’s career as well as his client’s wallet. Legal writing has to be professional and ethical and reflect the writer’s respect for his or her own workmanship as well as for the intended recipient. Careful legal writing aims to avoid misunderstandings and litigation and aids in developing and clarifying legal analysis. It recognises the permanent nature of what is being written and the persuasive potential innate to legal drafting. Responsible legal writers are mindful of the specific legal consequences of their writing and recognise that they have, in their writing, the ability to appeal to the aesthetic sensibilities of the reader.
  • Thumbnail Image
    Item
    Class action certification and constitutional claims : the South African case
    (2020-09-21) Broodryk, Theo
    This article considers whether, in the case of South African, there is a valid basis for requiring certification of certain types of class actions only. Specifically, the article will consider whether a preliminary certification requirement should apply to constitutional claims against the government in the same way it applies to other class actions. To determine this issue, the purpose of certification is considered with a view to establishing whether said purpose is only given effect to in certain circumstances. If certification would serve no purpose in the context of Bill of Rights claims or claims which display a public character, it may be prudent not to require class action certification in such cases. Conversely, if certification would still serve a purpose in those types of cases, it should remain part of class proceedings. To assist in making this determination, the position in several European jurisdictions, Ontario and the United States is considered.
  • Thumbnail Image
    Item
    Contemporary challenges facing law clinics
    (2018-11-01) Van der Merwe, Stephan
    The Stellenbosch University Law Clinic (SULC) held a conference in July discussing the contemporary challenges facing South African university law clinics. Before the conference began, the SULC hosted a dinner in celebration of its relaunch. The event celebrated SULC’s 30th anniversary, since the establishment of its organisational strategy for the period of 2018 to 2022 and the launch of its website (www.sulawclinic.co.za). The relaunch was followed by news of the shortlisting of SULC as specialist law firm of the year at the 2018 African Legal Awards where it was awarded the Corporate Counsel Association of South Africa’s Achievement Award. Participants at the conference engaged in discussion on a variety of relevant and contentious issues, including the positioning of clinical legal education within the LLB curriculum, monitoring and evaluation and transformation and decolonisation
  • Thumbnail Image
    Item
    An empirical analysis of class actions in South Africa
    (2020-03-01) Broodryk, Theo
    As far as the author is aware, there has not been an empirical analysis of class actions in South Africa since the introduction of the mechanism by the interim Constitution of 1993 more than 25 years ago. There is no publicly available data which provides meaningful empirical insight into the operation of the South African class action. There is consequently much that we do not know about it. This article attempts to examine class actions over a period spanning more than 19 years. The purpose of the article will be to provide, through an analysis of case law, an empirical exposition of class actions instituted in South Africa using the criteria and methodology mentioned below. The study demonstrates that, although there have been only a limited number of certification judgments delivered to date, there has been rapid growth in the number of certification judgments delivered in the past five years. Most of these judgments are aimed at providing access to justice for poor and marginalised individuals. The data presented herein could place South Africa in the fortuitous position of being able to build a comprehensive data archive in which the class action is statistically dissected. Without comprehensive data concerning the operation of the class action, the available information will be insufficient from the perspective of providing adequate insight to enable its optimal development going forward.
  • Thumbnail Image
    Item
    Failure to discharge : a discussion of the insufficient legal recourse afforded to judgment debtors in the South African context
    (AGORA University Editing House, 2008-07) Van der Merwe, S. J. H.
    University Legal Aid Clinics are often confronted with aspects of the law which are quite alien to those faced by our colleagues in private practice. One such area is that of assisting judgment debtors who have fallen afoul of disreputable and often immoral money lenders and other judgment creditors. These creditors unilaterally charge exuberant and unlawful fees for interest and ‘legal’ costs, which amounts are simply added to the judgments ex post facto. The issue of discharge then becomes hugely problematic as the courts do not mero motu step in to cancel emoluments attachment orders and other tools of collection employed by these creditors. It is argued that the South African legal system, including legislation in this regard, lends insufficient protection and recourse to indigent legal aid clients faced with this situation.
  • Thumbnail Image
    Item
    Fundamental procedural rights of civil litigants in Australia and South Africa : is there cause for concern? (part 1)
    (2019-07-16) Broodryk, Theo; De Vos, Wouter Le R.
    Op 6 Maart 2019 sterf drie jong dogters op weg na hul skool vir gehoorgestremdes in Durban as ’n taxibestuurder op volle vaart deur ’n rooi verkeerslig jaag en tussen die kinders op die sypaadjie deurploeg. Na berig word, het die bestuurder weggehardloop van die toneel van die ongeluk, maar is later aangekeer. Teen die taxibestuurder word na bewering ongespesifiseerde verkeersoortredings ondersoek - wat mag insluit ’n snelheidsoortreding, die verontagsaming van ’n rooi verkeerslig, roekelose bestuur, of nalate om hulp op ’n ongelukstoneel aan slagoffers te verleen - én moontlik strafbare manslag (Bhengu “Bail for taxi driver who ploughed into teens, killing three” TimesLive in Sunday Times (13-03-2019) 1). Hoekom nie moord nie? Geld vir taxibestuurders in Suid-Afrika, anders as byvoorbeeld in Duitsland (sien 618 hieronder), buitengewone en uitsonderlike verkeersreëls wat insluit straffelose verontagsaming van snelheidsperke, verkeersligte of stoptekens, die arrogante ry oor geelstroke soos ook op voetgangers se sypaadjies, die jaag téén aankomende verkeer en op die teenoorgestelde rybaan? Nog is geen gerapporteerde beslissing aantoonbaar waar ’n Suid-Afrikaanse hof ’n oortreder weens gedrag waaruit afgelei moet word dat die dader met die erns van sy wandade rekening gehou het en hom daarmee versoen het dat dít die dood van onskuldige ander verkeersdeelnemers kan veroorsaak, skuldig bevind het aan moord én dienooreenkomstig lewenslange gevangenisstraf opgelê het nie.
  • Thumbnail Image
    Item
    Fundamental procedural rights of civil litigants in Australia and South Africa : is there cause for concern? (part 2)
    (2019-10-01) Broodryk, Theo; De Vos, Wouter Le R.
    Die artikel oorweeg die verskillende wyses waarop fundamentele prosedurele regte van siviele litigante in beide Australië en Suid-Afrika erken word. Die artikel oorweeg verder die mate waartoe moderne hervormings wat tot die siviele prosesregsisteme van voorafgaande jurisdiksies aangebring is hierdie regte beïnvloed. Die moderne hervormings wat in die artikel bespreek word hou primêr verband met die toenemende behoefte in hedendaagse gemeenregtelike sisteme aan prosedures wat daarop gemik is om siviele dispute op ’n goedkoper, vinniger en meer effektiewe wyse op te los. Die artikel oorweeg gevolglik of die Australiese- en Suid-Afrikaanse prosesregtelike sisteme op die regte pad is betreffende die beskerming van partye se fundamentele regte en of daar rede tot kommer behoort te wees. In beide Australië en Suid-Afrika speel geregtelike saakbestuur ’n toenemende belangrike rol gedurende litigasie, met die gevolg dat geregtelike saakbestuurders se magte voortdurend aan die uitbrei is. Daar bestaan ook voortdurende meedoënlose druk om weg te beweeg van verhore en om van alternatiewe geskilbeslegting, veral bemiddeling, gebruik te maak om siviele dispute op te los. In die artikel argumenteer die outeurs dat hierdie hervormings om verskeie redes ’n ontkenning van siviele litigante se fundamentele regte tot gevolg kan hê. Die breë spektrum van magte wat aan geregtelike saakbestuurders verleen word om prosedurele beslissings te maak kan ’n nadelige effek hê op die wyse waarop ’n party sy of haar saak pleit en voorlê vir geskilbeslegting. In die artikel argumenteer die outeurs dat dit ’n onregverdigbare beperking op ’n party se reg om gehoor te word tot gevolg kan hê. Die outeurs argumenteer verder dat die toenemende beweging weg van verhore en meer na alternatiewe geskilbeslegting die belangrike grondwetlike rol van die howe in siviele geskilbeslegting en die ontwikkeling van die reg kan benadeel. Dit maak verder ook inbreuk op ’n persoon se reg op toegang tot die how
  • Thumbnail Image
    Item
    Giving notice to members of opt-out class actions
    (Juta Law, 2017-08) Broodryk, Theo
    This article is concerned with class actions within the context of South African civil procedural law. There is currently no South African statute or court rule that provides a procedural framework for the institution and regulation of class actions. Our courts have been required to develop the appropriate class-action procedural rules using their inherent jurisdiction as entrenched in section 173 of the Constitution of the Republic of South Africa, 1996. This was done in Trustees for the Time Being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as Amicus Curiae), which effectively details key aspects of the law relating to class actions in South Africa. However, various ambiguities, inconsistencies and problems remain. In this regard, South African case law on class-action procedure has not yet been subject to a comprehensive and critical analysis in order to clarify when individual notice of the opt-out class action to each class member would be required, or whether some form of general notice to the class would suffice. Notice to class members in class-action proceedings is important in various respects. Most significantly, it informs class members of the class action so that they are in a position to choose to participate in the class action. Notification at a later stage, after the trial has commenced, may also be required, for example, as the court may direct. The issue of notice is also important in the light of the audi alteram partem principle and the doctrine of res judicata. Apart from being an important issue, notice is also very complicated, especially in circumstances where the class is large, and it comprises individuals who are poor, illiterate and often without access to the resources that are required to bring the action to their attention. The method employed in giving notice and the accompanying costs could raise complex issues that may even threaten the continuation of a class action.
  • Thumbnail Image
    Item
    Individual issues and the class-action mechanism : determining damages in single-accident mass personal injury class actions
    (Juta Law, 2017-12) Broodryk, Theo
    In a personal injury class action, the extent of the injuries and the quantum of damages suffered by each member are individual issues. The problem is that in a personal injury class action, if the class consists of a large number of victims and each victim is required to present oral evidence to prove his or her damages individually, the trial may take years to conclude, and some claimants could possibly pass away by the time the court delivers judgment. It would overburden proceedings and cause undue delay. Accordingly, it is necessary, in such circumstances, to utilise alternative innovative, practical and timeefficient procedures that would enable the determination of each individual’s damages. Our courts have not properly considered the approach to be followed when determining damages in mass personal injury class actions. This article evaluates certain alternative methods to determine damages in mass personal injury class actions in view of the existing procedural framework developed by our courts, with specific regard to the approaches followed by certain foreign jurisdictions.
  • Thumbnail Image
    Item
    Legal representation at the CCMA : Law Society of the Northern Provinces v Minister of Labour 2013 (1) BLLR 105 (GNP) and CCMA v Law Society, Northern Provinces 2013 (11) BLLR 1057 (SCA) : cases
    (2014-01-01) Broodryk, Theo
    In Law Society of the Northern Provinces v Minister of Labour (2013 (1) BLLR 105 (GNP); 2013 (1) All SA 688 (GNP)) the Law Society of the Northern Provinces applied to the North Gauteng High Court for an order declaring rule 25(1)(c) of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (GG 25515 of 10 October 2003) (Rules) unconstitutional. The application was opposed by the Minister of Labour, the Minister of Justice and Constitutional Development, the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Director of the CCMA.
  • Thumbnail Image
    Item
    Litigation skills for South African lawyers, C.G. Marnewick : book review
    (2005-01-01) Van der Merwe, Stephan
    Some time during the last quarter of 2003, my candidate attorney stormed into my office and demanded an immediate audience. She then proceeded to inform me, in a most animated fashion, that she had stumbled upon the proverbial ``holy grail'' of textbooks on litigation skills. During a consultation earlier the same day with a client at advocate's chambers, she was introduced to ``Marnewick on Litigation Skills'' (as I am sure this book will soon be commonly referred to). Her rave review and report was warranted not only by the quality of the work at hand, but also in the knowledge that a book of exactly this scope and magnitude was what so many legal practitioners were yearning for. Constitutional Court Judge Johann Kriegler's lavish praise in the foreword of the book is thus well motivated.
  • Thumbnail Image
    Item
    Managerial judging and alternative dispute resolution in Australia : an example for South Africa to emulate. part 1
    (Juta Law, 2017-09-04) De Vos, Wouter Le R.; Broodryk, Theo
    The English common law heritage of the states and territories in Australia (most of which were former British colonies) ensured that these different jurisdictions all embraced the adversarial system of civil litigation. Essentially, this meant that a passive role was accorded to the judge, especially during the pre-trial phase, while the parties, through their lawyers, played an active role during both the pre-trial and trial stages. By virtue of the principle of party control the parties were in charge of preparing their cases for trial and presenting their evidence and arguments at the trial. During the pre-trial phase the judge would react only if a party sought interlocutory relief, and even during the trial the judge assumed the role of a passive arbitrator, only ensuring that the lawyers conducted themselves in a seemly manner and complied with the “rules of the game”.
  • Thumbnail Image
    Item
    Managerial judging and alternative dispute resolution in Australia : an example for South Africa to emulate. part 2
    (Juta Law, 2018-01) De Vos, Wouter Le R.; Broodryk, Theo
    The impact of judicial case management and alternative dispute resolution on the fundamental rights of the parties. Traditionally, English common law shied away from recognising the fundamental principles of civil procedural law in the form of basic rights or guarantees accorded to the parties. As Jolowicz aptly remarked, “English law tends rather to take [these guarantees] for granted than to enshrine [them] in a legislative text”. Since this statement was made close to fifty years ago there has been a dramatic change in the English approach. First and foremost, the incorporation into English domestic law of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Human Rights Act resulted in the statutory recognition of fundamental human rights for everyone in England. In the procedural field the adoption of article 6(1) of the convention, providing for a fair trial to litigants, brought about a sea change in civil procedural law.
  • Thumbnail Image
    Item
    Objections in civil litigation, P. van den Heever : book review
    (2011-01-01) Van der Merwe, Stephan
    In this book the author deals in concise terms with the categories of objection which most frequently arise in civil litigation, and in relation to each of them, refers to and provides the most leading and useful authorities. The busy practitioner confronted with an unruly witness will thus have at his disposal the tools with which to formulate a cogent and legally sound argument, on short notice, as to why a particular piece of testimony should be excluded. His opponent will similarly be assisted in dealing with the objection in a helpful and lucid manner.
  • Thumbnail Image
    Item
    Robots and the Law
    (2018-01-01) Van der Merwe, Stephan; Richards-Bray, Beth; East, Alan; Hardy, Stephen
    In 2017, Coventry University in the UK established the Coventry Law School Advocacy Project in partnership with the Central England Law Centre. This move enables students to represent clients in front of appellate tribunals. To capitalise on this practical approach to clinical legal education, Coventry University’s Law School and Stellenbosch University in South Africa embarked on an innovative advocacy programme.
  • Thumbnail Image
    Item
    The South African class action mechanism : comparing the opt-in regime to the opt-out regime
    (ASSAf, 2019-05-20) Broodryk, Theo
    In Mukaddam v Pioneer Food (Pty) Ltd 2013 2 SA 254 (SCA), Nugent JA stated that, once the class is confined to claimants who choose positively to advance their claims and are required to come forward for that purpose, he can see no reason why they are not capable of doing so in their own names through joinder – they do not need a representative to do so on their behalf. The members who choose to opt in to the class action will thus be identifiable. If that is the case then, according Nugent JA, joinder may be the appropriate procedural device. A problem evidenced by this approach is accordingly that, by suggesting that joinder is the appropriate procedural device where all the claimants are identifiable, rather than a class action, the court essentially attacked the viability of the opt-in regime of class action litigation. The preferential treatment afforded by our courts to the opt-out class action regime is further reinforced by the finding of Nugent JA that the opt-in class action regime can be utilised only in exceptional circumstances. As exceptional circumstances had not been proved, he found that a class action was not the most appropriate way to pursue the claims. He accordingly suggested that joinder was a viable option to pursue the claims. The opt-in class action regime requires individual class members to take positive steps to participate in the class action. In other words, class members are required to come forward and opt into the class action, failing which they will not be bound by or benefit from the outcome of the litigation. Support for the opt-in regime is essentially premised on the belief that individuals who are unaware of the litigation should not be bound by its outcome. The opt-out class action regime, on the other hand, automatically binds members of the class to the class action and the outcome of the litigation unless the individual class members take steps to opt out of the class action. Support for the opt-out regime is essentially based on the view that the opting-in requirement could undermine one of the primary purposes of class action litigation, which is to facilitate access to justice. The Constitutional Court in Mukaddam v Pioneer Foods (Pty) Ltd 2013 5 SA 89 (CC) held that Nugent JA was wrong to find that an applicant in an opt-in class action is required to show exceptional circumstances. However, the court did not provide reasons for its disagreement. The issue relating to exceptional circumstances in opt-in class actions was dealt with in two sentences. The Constitutional Court also failed to deal with the nature and status of the opt-in class action compared with opt-out class actions in South African law. The note will accordingly consider when, if at all, it is appropriate to use the opt-in class action regime compared to the opt-out class action regime.
  • Thumbnail Image
    Item
    The South African class action mechanism : comparing the opt-in regime to the opt-out regime
    (2019-05-20) Broodryk, Theo
    In Mukaddam v Pioneer Food (Pty) Ltd 2013 2 SA 254 (SCA), Nugent JA stated that, once the class is confined to claimants who choose positively to advance their claims and are required to come forward for that purpose, he can see no reason why they are not capable of doing so in their own names through joinder – they do not need a representative to do so on their behalf. The members who choose to opt in to the class action will thus be identifiable. If that is the case then, according Nugent JA, joinder may be the appropriate procedural device. A problem evidenced by this approach is accordingly that, by suggesting that joinder is the appropriate procedural device where all the claimants are identifiable, rather than a class action, the court essentially attacked the viability of the opt-in regime of class action litigation. The preferential treatment afforded by our courts to the opt-out class action regime is further reinforced by the finding of Nugent JA that the opt-in class action regime can be utilised only in exceptional circumstances. As exceptional circumstances had not been proved, he found that a class action was not the most appropriate way to pursue the claims. He accordingly suggested that joinder was a viable option to pursue the claims. The opt-in class action regime requires individual class members to take positive steps to participate in the class action. In other words, class members are required to come forward and opt into the class action, failing which they will not be bound by or benefit from the outcome of the litigation. Support for the opt-in regime is essentially premised on the belief that individuals who are unaware of the litigation should not be bound by its outcome. The opt-out class action regime, on the other hand, automatically binds members of the class to the class action and the outcome of the litigation unless the individual class members take steps to opt out of the class action. Support for the opt-out regime is essentially based on the view that the opting-in requirement could undermine one of the primary purposes of class action litigation, which is to facilitate access to justice. The Constitutional Court in Mukaddam v Pioneer Foods (Pty) Ltd 2013 5 SA 89 (CC) held that Nugent JA was wrong to find that an applicant in an opt-in class action is required to show exceptional circumstances. However, the court did not provide reasons for its disagreement. The issue relating to exceptional circumstances in opt-in class actions was dealt with in two sentences. The Constitutional Court also failed to deal with the nature and status of the opt-in class action compared with opt-out class actions in South African law. The note will accordingly consider when, if at all, it is appropriate to use the opt-in class action regime compared to the opt-out class action regime.
  • Thumbnail Image
    Item
    The South African class action vs group action as an appropriate procedural device
    (2019-06-01) Broodryk, Theo
    In Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae), Wallis JA held that in defining the class it is not necessary to identify all the members of the class otherwise the question would arise whether a class action was necessary as joinder in terms of the court rules would be permissible. He held that what is required is that the class be defined with sufficient particularity that a specific person’s membership can be objectively determined by examining his or her situation in light of the class definition. It can accordingly be inferred that, where the claimants are all identifiable, irrespective of the size of the class, they may need to be joined as plaintiffs to the proceedings. Class action proceedings may therefore not be the appropriate procedural device to be utilised in such circumstances. The problem, however, is that where the class comprises a large group of persons, joinder may be cumbersome and largely unfeasible. This potential problem is significant in that a court ordering joinder in such circumstances could potentially undermine the very foundation for the incorporation of the class action in to South African law, namely, access to justice. The article will accordingly consider what the test is that our courts should apply and what the factors are that it should take into consideration when determining the appropriateness of a class action as opposed to joinder. These issues have not yet been subject to a comprehensive and critical analysis with regard to the procedural approaches of prominent foreign jurisdictions, which is what the article will aim to do.
  • Thumbnail Image
    Item
    The South African class action vs group action as an appropriate procedural device
    (Juta Law Publishing, 2019) Broodryk, Theo
    In Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae), Wallis JA held that in defining the class it is not necessary to identify all the members of the class otherwise the question would arise whether a class action was necessary as joinder in terms of the court rules would be permissible. He held that what is required is that the class be defined with sufficient particularity that a specific person’s membership can be objectively determined by examining his or her situation in light of the class definition. It can accordingly be inferred that, where the claimants are all identifiable, irrespective of the size of the class, they may need to be joined as plaintiffs to the proceedings. Class action proceedings may therefore not be the appropriate procedural device to be utilised in such circumstances. The problem, however, is that where the class comprises a large group of persons, joinder may be cumbersome and largely unfeasible. This potential problem is significant in that a court ordering joinder in such circumstances could potentially undermine the very foundation for the incorporation of the class action in to South African law, namely, access to justice. The article will accordingly consider what the test is that our courts should apply and what the factors are that it should take into consideration when determining the appropriateness of a class action as opposed to joinder. These issues have not yet been subject to a comprehensive and critical analysis with regard to the procedural approaches of prominent foreign jurisdictions, which is what the article will aim to do.
  • Thumbnail Image
    Item
    Strategic considerations in global litigation : comparing judicial case management approaches in South Africa with the United States
    (Juta Law, 2017-08) Broodryk, Theo
    Economic activity has become globalised. As a result, the incidence and scope of mass litigation has increased dramatically. This has resulted in a continuously changing global litigation landscape. Litigation too has become globalised. Disputes that used to be contained within national borders are now transnational. To participate in this transnational litigation realm successfully and to design, implement and coordinate an effective global litigation strategy, knowledge limited to one’s own legal system will no longer suffice. Of fundamental importance is transnational knowledge of legal systems. Knowledge of the legal systems of the different jurisdictions involved in the litigation may assist in addressing the challenges that could arise during global litigation. It may also assist parties to make sensible strategic choices regarding the conduct of the litigation. One such relevant strategic consideration, which this article considers, is whether and to what extent the judge will manage the litigation. The managerial role of the judge is relevant to informing parties’ strategic decision-making in the context of global litigation. The article accordingly suggests that the parties to global litigation would be well-advised to consider possible disparities in the approaches of courts to managing complex litigation, both nationally and transnationally. The role of the judge is only one of these considerations, but it could have a significant impact on the litigation, including its outcome. The article does not aim to engage in a critical analysis of the value of judicial case management as such, but rather to consider how differences in judicial approaches could inform strategic decision-making during global litigation.