Doctoral Degrees (Private Law)
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- ItemThe application of the Copyright Act, 1978, to works made prior to 1979(Stellenbosch : Stellenbosch University, 1988-12) Dean, O. H.; Jordaan, H. A.; Schwietering, K.; Stellenbosch University. Faculty of Law. Dept. of Private LawArticle 1 Section 8 Clause 8 of the Constitution of the United States of America empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". This simple clause sums up in a few words the philosophy and underlying principles of modern copyright law. Copyright law, like other branches of intellectual property law (i.e. the laws of patents, trade marks and designs), seeks to create a system whereby the creator of original works or intellectual property is afforded a qualified monopoly in the use or exploitation of his work in order, first, to compensate and reward him for the effort, creativity and talent expended and utilized in the creation of his work, and secondly, to act as an incentive for him to use his talents and efforts to create more and better works or items of intellectual property. The qualified monopoly is limited in duration and after the expiry of the term the work falls into the public domain and can be freely used and reproduced by others. A balance is struck between the interests of the individual and the public interest. The rationale behind this philosophy is the establishment of a profit incentive for creators of intellectual property. The effectiveness of the profit motive is dependent upon the degree to which the creator of the intellectual property is able to maintain and enforce his qualified monopoly. If the law is not effective in enabling the creator of intellectual property to maintain and enforce his monopoly then the efficiency of the operation of the profit motive will be impaired. Consequently, the soundness and effectiveness of the law of copyright is a . significant factor in the promotion of the creation of intellectual property and ultimately• in enriching our culture and promoting our knowledge and well-being. Viewed from a different perspective, the purpose of copyright is to prevent one man from appropriating to himself what has been produced by the skill and labour of others1 . In broad terms, copyright may be described as the exclusive right in relation to a work embodying intellectual property (i.e. the product of the intellect) to do or to authorize others to do certain acts in relation to that work, which acts represent in the case of each type of work the manners in which that work can be exploited for personal gain or profit. Copyright is an immaterial property right. The subject of the right is a work of the intellect or spirit and thus an intangible. Copyright in a work is akin to ownership in a tangible article. The following analysis of the essential nature of copyright by Slomowitz AJ in Video Parktown North (Pty) Limited v Paramount Pictures Corporation is instructive: "It seems to me that when he who harbours an idea, by dint of his imagination, skill or labour, or some or all of them, brings it into being in tactile, visible or audible form, capable thereby of being communicated to others as a meaningful conception or apprehension of his mind, a right of property in that idea immediatelycomes into existence. The proprietary interest in that object of knowledge is the ownership of it and is called 'copyright'. It might just as well be called 'ownership', but we have chosen to call it by another name, reserving 'ownership' as the appellation for the proprietary interest in corporeal things, by way of semantic, but not, as I see it, legal, distinction. In this sense, copyright has sometimes been called 'intellectual property', as it indeed is. " Copyright subsists in the work of the intellect embodied in a material form which is a tangible article. The tangible or physical form of the work embodies two separate items of property, i.e. the copyright in the work of the intellect and the ownership of the tangible article. Ownership of the two items of property must be distinguished and can vest in different persons. Transfer of the ownership of one of the i terns of property does not necessarily affect transfer of the ownership of the other item of property.
- ItemBuilding encroachments and compulsory transfer of ownership(Stellenbosch : University of Stellenbosch, 2010-12) Temmers, Zsa-Zsa; Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: South African courts seem to be adopting a new approach to the problem of building encroachments. For pragmatic and policy reasons courts are now inclined to exercise its discretion in favour of leaving building encroachments in place, against compensation, despite the common law right to demand removal. It has been widely accepted that courts indeed have the discretion to award damages instead of removal of the building encroachment. However, the circumstances involved and the consequences of these orders are uncertain and hence these orders result in confusion. It is unclear how this discretion is exercised. Furthermore, it is uncertain whether this discretion includes the power to order transfer of the encroached-upon land to the encroacher. There are doctrinal and constitutional implications that may be triggered by these court orders that leave building encroachments in place. The doctrinal issues centre on what happens when an encroachment is not removed and nothing is said about the rights of the respective parties after the order is made. Possible solutions are investigated to provide a doctrinally sound outcome in encroachment disputes. It is clear that the encroacher is allowed to continue occupying the portion of property on which the encroachment is erected. It seems as though a use right is indirectly created when the encroachment remains in place. The constitutional difficulty lies in the fact that the court orders may result in infringements that conflict with section 25 of the Constitution. The focus is specifically to determine whether these orders result in the compulsory loss of property or property rights. With reference to Germany, the Netherlands and Australia, a comparative perspective is provided in order to support the doctrinal and policy arguments. The comparative law provides a source of guidelines for what may work effectively and informs the ultimate suggestion of this project, namely the need for legislation to regulate building encroachments in South Africa. The legislation envisaged would have to prescribe with at least some sort of certainty how and in which circumstances the discretion should be exercised. It should also provide clarity with regard to the right that is created when the encroachment is not removed and how the compensation that is awarded in exchange for removal, should be determined. The unnecessary confusion and uncertainty that result from court orders made in the context of building encroachments may be cleared up by legislation.
- ItemThe child's rights to, in and through basic education : an analysis of South Africa's international obligations(Stellenbosch : Stellenbosch University, 2021-03) Strohwald, Annemarie; Human, Sonia; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The child’s right to basic education is of utmost importance as it not only prepares but enables them to participate in society. The child’s right to basic education also enables the realisation of other human rights and provides the opportunity to rise above one’s circumstances. This dissertation centres on South Africa’s international obligations in relation to the child’s rights to, in and through basic education and whether or not these obligations have been fulfilled. Specific focus is placed on the obligations created by the Convention on the Rights of the Child (“CRC”) as it is regarded as the foundation of international law on the rights of the child and still remains one of the most widely ratified human rights treaties. Additional obligations created by the International Bill of Human Rights and the African Charter on the Rights and Welfare of the Child are also examined in the dissertation. In order to measure whether or not these international obligations have been fulfilled, the model for compliance is introduced. The model embraces a child-centred approach in the two frameworks that make up the model: the normative framework and the practical framework. The normative framework is founded on articles 28 and 29 of the CRC and the practical framework is based on the 4-A scheme. The dissertation proves that the value of the normative and practical frameworks is that while they are complementary and form the model for compliance, they are also essential frameworks independently. Both frameworks are essential components in order to measure international obligations as states must be normatively strong in their recognition and protection of the child’s right to basic education, but it also requires implementation. With the model for compliance clearly established, it is then applied in India and Nigeria in order to gain a comparative perspective. Attention is paid to constitutional and legislative frameworks as well as relevant case law in these two jurisdictions. India and Nigeria’s periodic reports to the CRC Committee and the ACERWC also form part of the analysis and indicate that the concerns identified by these two committees are not only passing comments but should be dealt with in order to meet international obligations and ultimately result in the realisation of the child’s right to education. ivWith the application of the model for compliance in the South African context, it is quite clear that the constitutional framework is unfortunately not mirrored by our current reality. While positive steps have been taken to align legislation and policy with the international standards of the normative framework, the implementation thereof remains a major challenge. The dissertation concludes with final reflections and recommendations on South Africa’s international obligations. The model for compliance as proposed in the dissertation is valuable as it incorporates a normative and practical framework that provides content to dimensions of the right to basic education. Striking a balance in the realisation and interpretation of children’s rights is very important, and the model for compliance attempts to find this balance.
- ItemA comparative evaluation of the judicial discretion to refuse specific performance(Stellenbosch : Stellenbosch University, 2014-12) Van der Merwe, Su-Anne; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: This thesis examines the contractual remedy of specific performance in South African law. It looks closely and critically at the discretionary power of the courts to refuse to order specific performance. The focus is on the considerations relevant to the exercise of the judicial discretion. First, it emphasises the tension between the right and the discretion. It is argued that it is problematical for our courts to refuse to order specific performance in the exercise of their discretion. The underlying difficulty is that the discretion of the court to refuse specific performance is fundamentally in conflict with the supposed right of the plaintiff to claim specific performance. The thesis investigates the tenability of this open-ended discretionary approach to the availability of specific performance as a remedy for breach of contract. To this end, the thesis examines less complex, more streamlined approaches embodied in different international instruments. Comparison between different legal systems is also used in order to highlight particular problems in the South African approach, and to see whether a better solution may be borrowed from elsewhere. An investigation of the availability of this remedy in other legal systems and international instruments reveals that the South African approach is incoherent and unduly complex. In order to illustrate this point, the thesis examines four of the grounds on which our courts have refused to order specific performance. In the first two instances, namely, when damages provide adequate relief, and when it will be difficult for the court to oversee the execution of the order, we see that the courts gradually attach less or even no weight to these factors when deciding whether or not to order specific performance. In the third instance, namely, personal service contracts, the courts have at times been willing to grant specific performance, but have also refused it in respect of highly personal obligations, which is understandable insofar as the law wishes to avoid forced labour and sub-standard performances. The analysis of the fourth example, namely, undue hardship, demonstrates that the courts continue to take account of the interests of defendants and third parties when deciding whether or not to order specific performance. This study found that there are certain circumstances in which the courts invariably refuse to order specific performance and where the discretionary power that courts have to refuse specific performance is actually illusory. It is argued that our law relating to specific performance could be discredited if this reality is not reflected in legal doctrine. Given this prospect, possible solutions to the problem are evaluated, and an argument is made in favour of a simpler concrete approach that recognises more clearly-defined rules with regard to when specific performance should be refused in order to provide coherency and certainty in the law. This study concludes that a limited right to be awarded specific performance may be preferable to a right which is subject to an open-ended discretion to refuse it, and that an exception-based approach could provide a basis for the simplification of our law governing specific performance of contracts.
- ItemComparative perspectives on the role of the trustees and the managing agent as dramatis personae in the governance of sectional title schemes in South Africa(Stellenbosch : Stellenbosch University, 2016-03) Durham, Carryn Melissa; Van der Merwe, Cornelius Gerhardus; Stellenbosch University. Faculty of Law. Department of Private LawENGLISH ABSTRACT : Ownership of affordable housing is made possible through the concept of sectional title, which maximizes the number of available homes per square meter and makes optimum use of available land. The utilization of sectional title schemes to provide housing to a broader base of South Africans would only be successful if schemes are provided with an efficient management structure. Besides the general meeting, the two most important dramatis personae in the management of sectional title schemes are the trustees and the managing agent. This thesis will focus on the role played by these administrators in the governance of sectional title schemes. The discussion will commence with an exposition of the legal status of both these role players followed by an examination of the reasons for their election and appointment to perform the day-to-day management functions of the body corporate. In order for these role players to carry out their functions effectively they need to be suitably qualified and should have the personal qualities required to execute the task. Furthermore, the role players should be properly elected or appointed to their positions by established administrative procedures. The powers, functions and duties of the trustees and the managing agent must be clearly defined with the minimum overlap between their tasks to ensure certainty, and to avoid a situation where a certain function is either not performed at all, or where a single function is performed by two or more of the role players. Due to the fact that these role players should be held accountable for abuses or negligence in the performance of their functions, the fiduciary position and instances of indemnification of trustees for negligent execution of their duties will then be dealt with. This will be followed by an examination of the remuneration payable to trustees and managing agents and their claims for expenses incurred in the performance of their functions. Finally, the terms of appointment of the managing agent will be scrutinized and the circumstances in which his appointment and the office of trustees may be terminated will be placed on the table. The thesis will regularly identify particular deficiencies in the Sectional Titles Act 95 of 1986 and the prescribed management rules relating to trustees and managing agents. Where appropriate and practicable, reference will be made to the manner in which New South Wales, Singapore, Malaysia, China and Germany deal with particular shortcomings. The aim is to search for potentially more appropriate solutions to iron out such problems, and thereby to regulate the governance of sectional title schemes in South Africa more effectively. Where a sectional title scheme faces financial ruin or experiences flagrant managerial mismanagement, the Sectional Titles Act provides for the appointment of an administrator. This measure of last resort should be avoided by ensuring that properly elected, qualified and accountable managerial role players administer the scheme. Therefore, I propose that the Sectional Titles Act 95 of 1986 (or rather the future Sectional Titles Schemes Management Act 8 of 2011) should be amended to make provision for the mandatory appointment of a professional manager as the sole executive organ of the body corporate assisted by an elected board of trustees consisting of sectional owners, and who act merely in a advisory capacity. The status of the managing agent would be elevated to that of an executive organ of the body corporate. This will mean greater responsibilities for the managing agent, but would result in more efficient management of South African sectional title schemes.
- ItemConsidering the best interests of the child when marketing food to children: an analysis of the South African regulatory framework(Stellenbosch : Stellenbosch University, 2016-12) Mills, Lize; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Private LawENGLISH ABSTRACT : This thesis seeks to establish whether the South African government fulfils its international and constitutional obligations by applying the standard of the best interests of the child when food-marketing practices to children are employed. According to the World Health Organisation, overweight and obesity ranks as the fifth leading risk for death globally. It is therefore of particular concern to note that the WHO reports that in 2013 more than 42 million children under the age of five were overweight or obese. Although the reasons for the tremendous increase in global obesity rates can be complex and a number of factors contribute to the associated rise in noncommunicable diseases, research has shown that the heavy marketing of fast food and energy-dense, micronutrient-poor foods and beverages is a probable causal factor in weight gain and obesity. It has been established and accepted that there is a relationship between the marketing of food and children’s dietary choices and consumption. Moreover, studies from all over the world show that the foods which are most often marketed to children, are foods which are nutritionally poor and which contain high levels of salt, sugar and fat. Consequently, the WHO and other bodies have called for a restriction to be placed on the marketing of nutritionally poor foods to children. This thesis entails a discussion and an analysis of South Africa’s response to this call. It describes and assesses this country’s regulatory efforts regarding the marketing of food to children, comparing it to standards set by both international law and methods of regulation in other jurisdictions. The aim of the thesis is to assess the implementation of South Africa’s international and constitutional obligations in this respect, focussing in particular on the duty to regard the best interests of children as a matter of paramount importance and primary concern. The concept of the best interests of the child has been firmly entrenched in international law, the South African Constitution and South African legislation and jurisprudence. Since the Committee on the Rights of the Child has confirmed that the best interests of the child is a substantive right of itself, while also being a rule of procedure and a method of interpretation, it is also true that the implementation of this right may have an effect on other fundamental rights and freedoms. The thesis provides some suggestions as to how to achieve a proportional balance between the best interests of the child and the rights of the food and media industries, and of parents in South Africa, whilst bearing in mind that children’s interests are more important than anything else.
- ItemA critical analysis of State responsibility to internally displaced children in Africa(Stellenbosch : Stellenbosch University, 2018-12) Fawole, Charissa Esther; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT : The issue of international forced migration has received much international attention of late, but the problem begins much closer to home. Internal displacement is a type of forced migration, which occurs within a State’s boundaries. Internally displaced persons (“IDPs”) outnumber refugees at least two to one. Africa is a continent with the largest number of IDPs. Another daunting reality is that a least half of all IDPs in children. Therefore, internally displaced children in Africa are a group of children that warrant special consideration. Internally displaced children can be described as persons under the age of 18 years who are forced to leave their place of habitual residence but do not cross an international border. For this reason, the State in which they are displaced has the primary responsibility for their protection and assistance. Situations of internal displacement present several risks to the physical security, basic needs, social, economic and cultural rights and the civil and political rights of internally displaced children. This thesis, therefore, examines the legal obligations that States have to internally displaced children. As a supplementary research question, it will examine the most effective means to hold States accountable for their obligations to internally displaced children. To determine the obligations that State have to internally displaced children this thesis includes a critical analysis of the key instruments that govern children’s rights law and the law on internal displacement that are applicable to internally displaced children in Africa. The instruments critically analysed in this thesis are the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the United Nations Guiding Principles on Internal Displacement, the International Conference on the Great Lakes Region’s Protocol on the Protection and Assistance of Internally Displaced Persons and the African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention). A children’s rights perspective is the theoretical lens that used to critically analyse these instruments. The critical of the analysis of the key instruments demonstrates that the law, in theory, responds to the majority of the risks, rights and needs of internally displaced children. To address the secondary research question, the thesis examines the principle of accountability, the concept of sovereignty as responsibility, accountability mechanisms, the role of non-governmental organisations and practical steps for that facilitate State compliance with their obligations. Case studies of Uganda, the Central African Republic, Nigeria and Sudan provide context to the study and provide an opportunity to examine the steps for the practical implementation of State obligations to internally displaced children, which supports accountability. The thesis concludes with recommendations and framework from a children’s rights perspective that have the potential to improve the protection and assistance of internally displaced children and encourage States to comply with their obligations to this group of children. The recommendations and framework combine the theoretical aspects provided by a critical analysis of the law with practical steps that operationalise accountability with a focus on internally displaced children.
- ItemA critical analysis of the financial and social obligations imposed on sectional owners in sectional title schemes, as well as their enforcement(Stellenbosch : Stellenbosch University, 2014-04) Booysen, Juann; Van der Merwe , C. G.; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: Over the years sectional ownership satisfied the psychological need of many South Africans to acquire home-ownership and it is currently estimated that there are more than 780 000 sectional title units throughout South Africa. The concept of sectional ownership consists of three elements, namely individual ownership of a section (residential or commercial); joint ownership of the common parts of the sectional title scheme and membership of the body corporate which governs the sectional title community. Sectional ownership is therefore a unique statutory institution with its own characteristics. An imperative of every sectional title scheme is to strive for financial stability, happiness and harmony in an intensified, diverse community where the objects of ownership, the individual units, are physically interdependent. The Sectional Titles Act 95 of 1986, as amended, therefore imposes numerous financial and social obligations on sectional owners. These obligations require each owner to give up a certain degree of freedom that he might otherwise enjoy in separate, privately owned property. Ultimately the success of a sectional title scheme will depend upon the necessary co-operation and support of its members for compliance with these obligations. Since non-compliance can destroy the financial stability and social harmony in a sectional title scheme, effective procedures for the enforcement of these financial and social obligations are essential. Accordingly, effective sanctions are a sine qua non for a financially viable and socially successful sectional title scheme. This thesis provides a critical analysis of the various financial and social obligations that are imposed on sectional owners, as well as the measures available for their enforcement. It will become evident that the sanctions in the South African sectional title legislation for non-compliance with these obligations are conspicuously few and far between. It is generally accepted that the Sectional Titles Act 95 of 1986 does not have sharp enough „teeth‟ to deal effectively with the non-compliance of these obligations. Consequently, the thesis will also focus on sanctions that are used in foreign jurisdictions to enforce sectional owners‟ financial and social obligations, with the aim to identify sanctions that may be adopted in the South African context to render the enforcement of these obligations more efficient and effective. In conclusion it will be recommended that the only manner in which financial stability and social harmony can be restored in a troubled sectional title scheme is to introduce legislation which allows the body corporate as a last resort to exclude a persistent offender who makes it impossible for the other sectional owners to share the sectional owners‟ community with him or her temporarily from this community.
- ItemDeveloping a structure for the adjudication of class actions in South Africa(Stellenbosch : Stellenbosch University, 2017-12) Broodryk, Theo; Du Plessis, Jacques; De Vos, WouterENGLISH ABSTRACT : This dissertation 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) 2013 1 All SA 648 (SCA), 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 subjected to a comprehensive and critical analysis in order to provide answers to a number of vital questions. These include the following: i) when is a class action, as opposed to joinder, the appropriate procedural device to beutilised to adjudicate a claim and when is it appropriate to use the opt-in, as opposedto the opt-out, class action regime? , ii) when, if ever, should notice of a class action be given to class members and whenwould individual notice to each class member be required, or would some form ofgeneral notice to the class suffice?; iii) what is the approach that our courts should follow and what are the devices that theycould utilise to determine damages in personal injury class actions?; and, iv) how should a class action be managed and what should the role of the courts be inthis regard? Ultimately, the purpose of the dissertation is to assist in developing a structure that could facilitate the adjudication of class actions in South Africa. This inevitably entails interpreting the South African class action procedure as expounded by our courts and, given the novelty of the procedure, constantly seeking guidance from the class action regimes of prominent foreign jurisdictions, most notably Australia, Ontario and the United States.
- ItemDeveloping the South African law of delict: the creation of a statutory compensation fund for crime victims(Stellenbosch : Stellenbosch University, 2018-03) Wessels, Albertus Bernardus; Loubser, Max; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT : The dissertation evaluates the compensatory relief South African law currently provides to victims of crime. To obtain compensation for the harm arising from crime, a victim may institute a common-law delictual claim against the perpetrator of the crime. Because the perpetrator is unlikely to be in a financial position to compensate the victim’s harm, crime victims frequently frame actions against the state, not only on the basis of vicarious liability for positive wrongdoing by state employees, but increasingly on the basis of failure by the state or its employees to prevent crime. This dissertation describes the expanding delictual liability of the state for harm caused by crime and concludes that this development of the law of delict is both theoretically and practically undesirable. The dissertation further argues that the existing statutory mechanisms to claim compensation for harm arising from crime is unsatisfactory and provides little assistance to crime victims. Within this framework the dissertation considers whether there is an alternative method to secure compensation for the hundreds of thousands of South Africans who fall victim to crime each year. The most common solution adopted in foreign jurisdictions is the establishment of a statutory compensation fund for crime victims. The dissertation seeks to establish whether the legislative reform of the South African law of delict through the creation of such a fund is justified and appropriate. To do so, the dissertation analyses the historical background and policy bases of other significant instances of legislative reform of the South African law of delict. In the process, a general theoretical framework is developed that may provide an outline for statutory reform of the law of delict to provide compensation for specific categories of victims. The dissertation thereafter examines whether the establishment of a statutory crime victim compensation fund could fit within this proposed theoretical framework. It is concluded that the proposed fund is justifiable and, when compared to the solutions offered by the current developments within the common-law of delict and existing legislation, it seems, in principle, to be a more desirable solution to improve the legal position regarding compensation of crime victims. To be successful, the proposed statutory compensation scheme must be theoretically sound and practically workable. The dissertation therefore concludes by focusing on several practical questions and considerations which the South African legislature should take into account, if it were to enact such a scheme.
- ItemThe doctrine of notice in property law(Stellenbosch : Stellenbosch University, 2020-03) Siphuma, Nzumbululo Silas; Van der Merwe, C. G.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: Since its reception in the 1880s, the doctrine of notice has caused many controversies in South African private law. The doctrine provides that if an acquirer of ownership was aware or foresaw the possibility of the existence of a prior personal right aimed at acquisition of ownership over the land when he or she accepted transfer (by registration), the holder of a prior personal right is entitled to have the sale and the subsequent transfer set aside, and have registration of ownership effected in his or her name. In case of an unregistered limited real right, the grantee is entitled to compel the subsequent owner to cooperate in the registration of the limited real right in the land in the deed office in his or her favour. This outcome appears to conflict with several basic principles of South African private law. Consequently, the doctrine of notice has caused several doctrinal problems in both the South African system of property law and in the basics of the South African law of contract. Early South African case law and academic literature show that discourse regarding the doctrine of notice was centered on its doctrinal bases and scope of application. As a result, various doctrinal bases were developed in case law and academic literature in an attempt to justify and explain why under the doctrine a prior weaker personal right trumps a subsequent stronger real right. The main doctrinal bases advanced are equity, delictual liability, fraud, wrongfulness and fiction or recognition that the doctrine is an anomaly. However, recent case law and academic discourse has shown that there is a distinct lack of judicial and academic consensus regarding the doctrine’s dogmatic basis. The absence of clear doctrinal basis caused considerable ambiguity regarding the true scope of application of the doctrine of notice. Pertinently, the question is whether the doctrine should only protect prior personal rights to acquire real rights (iura in personam ad rem adquirendam) or should be extended to protect other rights, including rights that are purely personal in nature. Accordingly, this dissertation examines the doctrinal basis, scope and application of the common law doctrine of notice in South African property law. Drawing from the insights gained from scrutinising the two most recent comparative contributions, I conclude that explanations in terms of the derivative acquisition model and fraud in its modern appearance as mala fides are the two most persuasive bases for the doctrine because they demonstrate that the doctrine is rooted in South African property law. Furthermore, the dissertation concludes that the doctrine should not be extended to the scenarios of sales in execution, options, rights of pre-emption, sales subject to approval by a third person, and other rights purely personal in nature, since these right operates outside of the two-stage derivative acquisition model. Therefore, the application of the doctrine should be restricted to the classic scenarios of double and successive sales, and personal rights which will become real on registration (iura in personam ad rem adquirendam) acquired by the prior purchaser or grantee of certain limited real rights because holders of these rights are operating within the domain of the two-stage derivative acquisition model.
- ItemDie grondslag van kontraktuele gebondenheid(Stellenbosch : Stellenbosch University, 2004-04) Olivier, Pierre J. J.; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: An overview of the historical development of contract law and its underlying theory, spanning from Roman times to the present day, and in Western European and Anglo American systems, shows that the gradually developing will theory dominated in the early nineteenth century. It was, however, also in the nineteenth century that the first cracks in this theory were observed. First, sociological, political and economic factors, brought about by the Industrial Revolution, the rise of socialism and of labour, required a new, more humane approach. Secondly, with the emergence of a new economic system, new technical problems came to the fore: how were problems of mistake, interpretation, implied terms and derogation to be solved, unless reliance was placed, in each case, on untenable fictions? Thus, towards the last quarter of the nineteenth century, an intense and unparalleled juristic debate ensued, mainly in Europe, but later also in England and the United States of America. New approaches, e.g. that a strict and uncompromising declaration be followed, was proposed. The outcome of this debate was the emergence of the so-called confidence theory. The basis of this approach is that, whatever a person's real intention may have been, he so conducts himself as to lead the other party, as a reasonable person, to believe that the first party has assented to the contract as proposed or understood by the second party, the first party is bound by the impression he created. The principle was clearly stated by Blackburn J in Smith v Hughes (1871) LR 6 OB 597, which has since become one of the famous dicta in the law of contract, and forms part of the English law. It should be stressed that the Blackburn approach was not alien to Europe, where the gradual and natural development of the common law was overtaken by codification The French Codification retained the pure will theory. Under the Dutch code, the so-called will-reliance system was developed, akin to the Blackburn approach. In German law, however, the De Groot view was followed: the mistaken party was permitted to 'resile' from the 'contract' but under obligation to compensate the 'innocent' party's negative interest. In South Africa, the basic point of departure is the will theory but supplemented by the confidence theory This system is made possible by our law of procedure, where two remedies, the justus error approach and the contractual consent approach are available. As both these remedies have the same objective, viz. to protect the legitimate interests of the party that was misled, they require the same substantive law requirements. The confidence theory has imbedded itself so deeply in South African, European and English law, that it is now recognized by some as the key, not only to the solution of the dissensus problem, but also in cases of interpretation, supplementation and derogation. The combination of will and reliance are the foundation stones of contractual liability. These two principles have developed (and are still developing) from society's pre-positive, moral, ethical, political, economic, religious and other values, which have been and are still being absorbed in the body of legal rules. This process of development is informed by the norms and rules relating to public policy, public interest, the bani mores and good faith. These norms and rules are recognized and applied in the legal systems of the United States of America, England and Europe. They form part of our law, but unfortunately our courts are extremely conservative in recognizing and applying them. If we wish to obtain and sustain social and contractual justice, more weight should be accorded to these values.
- ItemThe impact of forensic DNA profiling on gender privacy(Stellenbosch : Stellenbosch University, 2022-12) Lynch, Vanessa; Human, Sonia; Heathfield, L. J.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: Forensic DNA profiling used in conjunction with a DNA database is considered a powerful tool in the fight against crime borne out of its ability to link serial offenders, identify who was present on a crime scene, exonerate the innocent as well as match human remains to missing persons. Identification is achieved by the statistical matching of an “unknown” forensic DNA profile to that of a known reference sample, and not on any physical information that can potentially be derived from the DNA. It is questionable then, why the legal definition of a forensic DNA profile states that no physical, medical, or behavioural information may be derived therefrom other than the sex of that person. This study therefore investigates whether biological sex should be considered private information and if the disclosure of the sex in a forensic DNA profile infringes on gender privacy. This was done by examining the purpose of a biological sex marker in forensic casework, interrogating the development and contents of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 (the “DNA Act”), exploring the concept of gender privacy and how it relates to the DNA Act, the Constitution of the Republic of South Africa, 1996 (the “Constitution”) and human rights (and the balance thereof in criminal cases), as well as comparing these factors to international human rights instruments and legal systems in other countries. A key finding of this study is that the concept of gender privacy has not been formally defined in national or international law, thus a definition thereof is proposed. It further emerged that there is limited legal and scientific regard for the differences between gender identity and biological sex, as these terms are often used interchangeably. This research accordingly highlights the critical need to use these terms accurately in the forensic setting. This study shows that the knowledge of an individual’s biological sex is not always necessary in forensic criminal cases and argues that disclosing the sex in forensic DNA profiling reports may infringe on that individual's right to gender privacy. It suggests that the protection of a person's gender privacy could be achieved without recourse to the disclosure of the sex of a person in forensic DNA reports, unless in specific (limited) instances when it is necessary for the promotion of justice. This novel revelation has a global impact insofar as re-conceptualising the difference between gender identity and biological sex in the context of forensic science and promotes a deeper understanding of how these scientific, legal and social concepts are so intricately related. Changes to legislation are recommended to provide vulnerable minorities with a right to gender privacy, as an extended right to privacy in the Constitution.
- ItemInvloed van die begrip kinderregte op die privaatregtelike ouer-kind verhouding in die Suid-Afrikaanse reg(Stellenbosch : University of Stellenbosch, 1998-12) Human, Cornelia Sophia; De Waal, M. J.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The thesis investigates the effect of the recognition of the rights of the child on the parent-child relationship in private law. Rights of the child seem, on the face of it, to undermine parental authority and family values. The impression is created that the state is abdicating its role as protector of the child in favour of unfettered freedom of the child. The delicate balance between individual freedom and family autonomy may in the result also be under threat. It was, therefore, necessary to extend the investigation to include the role of parents and that of the state. The study is divided into three parts. The first contains a theoretical analysis of the concept rights of the child. It is clear that the concept is a manifestation of fundamental human rights. The rights of the child are unique in nature and accommodate the changing phases of dependence and developing abilities of the child. Theoretical analysis negates the perception that the recognition of the rights of the child contributes to erosion of the family: the importance of the commitment of parents and of the state is apparent. The second part consists of a comprehensive review of the parent-child relationship in the South African private law, and an analysis of the public law dimension of the concept rights of the child. This part of the investigation demonstrates that parental authority is firmly rooted in legal history and that substantive private law does not recognise the child as bearer of rights within the context of the family. However, the Bill of Rights and the 1989 United Nations Convention on the Rights of the Child unequivocally give public law status to the child as bearer of rights. The study shows that the private and public law status of a child cannot be isolated from one another and that adaptations will have to be made to implement the rights of the child. In the third part of the study an attempt is made to identify the kind of adaptation that must be made. The impact of the idea of the rights of the child upon the parent-child relationship in private law is investigated. Australian and Scottish law are examples of legal systems which endeavour to implement fully the concept of the rights of the child. Indigenous law places a high value on human dignity. The interaction between rights and duties in indigenous systems reflect values which are inherent in the idea of the rights of the child. The study shows that the impact of the rights of the child on the parent-child relationship is such that change and adaptation of private law is necessary. Change and adaptation are required at both theoretical and practical level. A number of obstacles which may inhibit the process of change are identified. Finally, the kind of change and adaptation required is illustrated by a number of practical examples of the impact ofchange on the parent-child relationship.
- ItemThe judicial regulation of state commercial activity(Stellenbosch : University of Stellenbsoch, 2007-12) Quinot, G.; Van der Walt, A. J.; Lubbe, G. F.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The state participates in the market place in a large number of ways, spending millions annually. It buys and sells goods and services; it employs a massive workforce; it acquires, develops and disposes of land; it engages in all kinds of financial transactions; it sets up companies, holds shares and enters into partnerships. Yet, the legal treatment of the state as commercial player remains an enigma. In South African law there is no shortage of legal rules that apply or can potentially apply to state commercial activity, but there is nevertheless no coherent view of the conceptualisation of state commercial activity and as a result no clarity on how such conduct should be legally regulated. A voluminous, but extremely fragmented collection of statutory mechanisms aims to regulate a large variety of matters connected to state commercial activity. The courts have shown an almost schizophrenic attitude towards the application of the common law to these state actions, alternating between opting to apply general contract law and general administrative law rules. Constitutional transformation in South Africa necessitates a critical reevaluation of the legal approach to the regulation of state commercial activity. This necessity flows from a number of factors that converge in the judicial regulation of state commercial activity. These factors include a shift in the nature and function of the state, including the judiciary under the new constitutional dispensation; the use of commercial conduct to advance important transformation goals; the proper relationship between courts in protecting fundamental societal values captured in the Constitution and the executive as the key driver of social change; and the role of law in this changing environment. An analysis of the judicial regulation of state commercial activity creates an opportunity to probe basic questions about legal methodology, particularly in a transformative context such as South Africa. A central theme in this reassessment is the role of dichotomous reasoning in legal methodology, based on sharp distinctions between monolithic concepts such as public/private, state/private enterprise, rule/standard, contract/administrative action, delict/contract that no longer seem to adequately relate to experience in the real world. An analysis of South African case law on state commercial activity reveals the underlying judicial premise that all such state action can be classified as either administrative or contractual in nature. Once this conceptual classification is done the rules that apply follow automatically. State commercial activity is consequently subjected to either administrative law or private law rules in a manner that denies or obfuscates the choice on the part of the individual judge. The criteria used to classify the nature of the action under the classification approach have varied over time. The most prominent criteria are the source of the power exercised and the presence of superior power, with the courts currently alternating between these two. However, these criteria cannot be formulated with certainty and they do not provide consistent guidelines. While the criteria identify important aspects of state commercial activity that merit increased judicial control, the relationships between the criteria and the ensuing substantive regulation and particularly the relationships between them remain nebulous. Ultimately, the classification approach is characterised by excessive conceptualism and formalism. The reality that judges choose what regulation to apply to particular instances of state commercial activity is hidden. The application of specific substantive rules is made to seem natural, inevitable and selfevident. This closes off dialogue about that choice. Two alternatives to the classification methodology exist in South African law, namely an exclusively private law approach and a comprehensive public law approach. The exclusively private law approach highlights the commercial nature of the state action to the effect that state contracting is treated on par with all other forms of (private) commercial activity. However, it is questionable whether private law regulation can adequately address the regulatory concerns specific to the public context of state conduct. An analysis of this alternative approach identifies promising private law doctrines that can inspire such regulation, but significant further development is required before the desired level of regulation will be feasible on private law grounds. The comprehensive public law approach insists on the consistent application of public law rules to all state conduct, irrespective of the commercial nature of that conduct. Although this option may seem highly desirable, especially because it ensures public scrutiny of all state conduct, it is not ideal either. Particularly problematic is the high cost of such regulation and resultant inefficiency that may not be realistic given the current demands on South African public administration. The German and French legal systems provide examples of a third alternative approach in the form of distinct legal figures that exist between contract and administrative law. Recognition of such a distinct figure provides the prospect of developing a separate set of regulation tailored to the specific needs of that figure. A separate branch of government contract or government commercial law can thus be created. In South African law it may be possible to stimulate such development by recognising state contracts as a separate class of contract. However, it is doubtful whether the development of a third regulatory category will encourage the integration of public and private law rules to overcome the conceptualism of the current approach; it could also reinforce conceptualism by adding a third conceptual category. The most promising alternative methodology is premised on a more complex view of the interacting factors that inform judicial regulation and, by extension, legal treatment of state commercial activity. Such an approach perceives the distinctions between the various relevant concepts and factors not as sharp dichotomies, but as continuous and fluid relationships. It recognises that the legal treatment of a specific instance of state commercial activity is a function of the relationship between the various concepts and factors. Such an approach calls for more open and direct engagement with all the factors informing the regulation of state commercial activity. Ultimately, it requires individual judges to take responsibility for the choices they make in their involvement in state commercial activity by means of the regulatory control they exercise. It accordingly fosters dialogue and public debate about the role of law in social phenomena such as state commercial activity. This approach is in line with a culture of justification and transformative constitutionalism that ground the democratic enterprise in South Africa.
- ItemKompleksiteit en bemiddeling: ʼn Model vir die ontwerp van gepaste regulering(Stellenbosch : Stellenbosch University, 2017-12) Spruyt, Wynand Max Alexander; Human, Sonia; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT : The purpose of this study is to design a theoretical model of mediation that can be utilised to analyse the impact of regulation on the mediation process – and specifically the impact on the diversity that is said to characterise it. Although mediation is inherently a private and informal dispute resolution process, it is increasingly subjected to prescriptive and formal regulatory requirements. Regulation inevitably results in tension between the informal nature of mediation and the rigidity, formality and prescriptive nature of regulation. This tension is generally known as the diversity-consistency dilemma. The dilemma implies that a proper analysis of the impact of regulation is required to ensure that the appropriate and effective regulation of mediation does not occur at the cost of the inherent nature and features of the mediation process. The argument put forward in this study is that the mediation process can be modelled as a complex social system. The singular character and unique qualities of this system – and specifically the complex interaction taking place within it – distinguishes mediation from other forms of dispute resolution. This complexity model of mediation therefore allows for an analysis of the impact that regulation has on the most fundamental qualities of the mediation process. A complexity model furthermore allows for the analysis of diversity, as a quality of the mediation process, from a unique and novel perspective. Diversity in mediation is typically equated to the procedural flexibility, informality and multi-functionality that is generally associated with mediation. However, a systems analysis shows that diversity is a product of the complex interactions taking place during mediation. Diversity is therefore an inherent and fundamental attribute of the mediation process. This research consequently succeeds in giving actual content and meaning to the concept of diversity in mediation. This content makes it possible to determine with certainty what the diversity-consistency dilemma truly implies for the appropriate and effective regulation of mediation. These implications are consequently examined for each of the three most general forms of regulation in the context of mediation, namely triggering laws, procedural regulation and standardising mechanism. This examination finds that the design and implementation of regulations are often based on theoretically unsound assumptions. These mechanisms are therefore often not optimally effective, and unnecessarily exacerbate the tension represented by the diversity-consistency dilemma. The purpose of this study is therefore to lastly also provide new perspectives on the regulation of mediation. These new perspectives prove that a complexity model of mediation – as well as the unique paradigm of complexity that it permits – enables the design and implementation of effective, appropriate, fair and theoretically sound forms of regulation that will ultimately ensure and support the use of mediation. Thereby actual and legitimate requirements for standardisation and consistency can be achieved without unduly restricting the diversity that fundamentally characterises the mediation process.
- ItemThe law relating to documentary credits from a South African perspective with special reference to the legal position of the issuing and confirming banks(Stellenbosch: University of Stellenbosch, 1996-12) Hugo, Charl Francois; Van Wyk, A. H.; Butler, W.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The documentary credit is one of the most important methods of payment utilised in international trade. This versatile instrument is encountered in a variety of forms. In its simplest form it is an undertaking by a bank given on application by a buyer-importer (the bank's client) to pay the seller-exporter (the beneficiary) against delivery of stipulated documents. It has two essential characteristics: (i) the bank's undertaking to pay the beneficiary is independent of the contract of sale and the contract between the bank and its client; and (ii) the bank will pay only against the precise documents stipulated in the credit. In Chapter One the different relationships established between the parties involved are dealt with against this background, and the different types of credits are discussed. Documentary credits are, comparatively speaking, modern instruments. Possible historical origins are explored briefly in Chapter Two. Documentary credits are virtually invariably applied for and issued subject to the Uniform Customs and Practice for Documentary Credits (the UCP). The UCP is a set of rules formulated by the International Chamber of Commerce. The modern history of documentary credits as reflected in the development of the UCP is discussed in Chapter Three. The legal nature of the UCP is analysed from a civilian, common-law and South African perspective in Chapter Four. The legal nature of the relationship between the bank and the beneficiary is the focal point of Chapter Five. The question is approached from a civilian (especially German and Dutch), common-law (especially English and American) and South African point of view. Special attention is devoted to the ability (or inability) of the traditional law of contract of the different jurisdictions to provide a theoretical foundation for (i) the independence of the bank's obligation, and (ii) the irrevocability of the bank's undertaking. The conclusion arrived at is that the South African law of contract is able to provide an adequate basis for this relationship in general and these two matters in particular. In the final chapter the defences available to the bank against the beneficiary's claim are scrutinised, as well as the possibility of the bank being interdicted from paying the beneficiary. Related issues such as anti-dissipation interdicts and attachments in the documentary-credit context are also dealt with. These questions are likewise investigated from a civilian, common-law and South African perspective. This investigation leads to the conclusion that the South African law is essentially in harmony with the law elsewhere and that our courts have been successful to date in protecting the integrity of documentary credits.
- ItemDie leerstuk van die 'undisclosed principal'(Stellenbosch : Stellenbosch University, 1971) Van der Horst, J. C; De Wet, J. C.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: see item for full text AFRIKAANSE OPSOMMING: sien item vir volteks.
- ItemThe legal nature of preference contracts(Stellenbosch : Stellenbosch University, 2003-04) Naude, Tjakie; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: The various constructions of rights of pre-emption encountered in South African case law all have some merit. This is confirmed by the multiplicity of types of preference contracts encountered in German law especially. The tendency of South African courts and writers to portray one approach as the only correct one to the exclusion of all other views, results in tension and confusion, all the more because of the failure to investigate the relevant policy considerations comprehensively. The confusion is compounded by what amounts to a breakdown of the system of precedents with judgments being based on incorrect interpretations of previous decisions and with scant regard for contrary decisions. No certainty exists regarding the construction of the contractual right of pre-emption in Roman and Roman-Dutch law, nor is it clear what figure or figures were received into South African law. The Germanic concept of tiered ownership that forms the historical basis for the Oryx remedy, does not form part of our law. This accounts for the difficulty that courts and writers have in explaining this remedy in terms of Romanist terminology, and the resort to the language of fiction. German law and English law, relied upon in South African case law, do not support a uniform construction of all rights of pre-emption as creating an enforceable duty to make an offer upon manifestation of a desire to sell. The almost unanimous support of US courts for a remedy by which the holder can ultimately obtain performance of the main contract upon conclusion of a contract with a third party, challenges the hypothesis suggested by German law that the default construction of preference contracts should be the bare preference contract which only creates a negative obligation. The very cryptic way in which rights of pre-emption are normally drafted, makes it difficult to even identify the main purpose of the parties. It is therefore not easy to classify preference contracts into the different types identified in this study as notional possibilities. A default regime is therefore highly desirable in the interest of legal certainty. The choice of a default regime should be made on the basis of recognised policy considerations, particularly on the basis of an equitable balancing of typical parties' interests and in view of communal interests balanced against the demand for legal certainty. The choice of default regime cannot be based merely on historical authority or precedent (which is in any event unclear in the present context) or unsubstantiated claims that one model is more logical or commercially useful than another. When rules are chosen as the default regime, these rules must, as far as possible, be reconciled with the existing conceptual structure of our law to prevent contradictions and inconsistencies. A policy analysis reveals that three default types of preference contract should be recognised, each with a clearly delineated field of application. Firstly, where the agreement allows the grantor to contract with a third party, the holder has the right to contract with the grantor at the terms agreed with the third party. Such a preference contract can therefore be regarded as an option conditional upon conclusion of a contract with a third party. Such contracts are rare in South Africa. In other cases, the default rule should be that the grantor must first give the holder an opportunity to contract before he contracts with a third party. The default construction of this latter type of preference contracts depends on whether the preference contract itself predetermines the main contract price. If so, the holder has a right or option to contract at that price upon any manifestation of a desire to conclude the relevant type of contract. However, where the preference contract does not predetermine the price, or refers to a price that the grantor would accept from third parties, any manifestation of a desire to sell should not be sufficient to trigger the holder's right. The grantor and society have an interest in having her freedom to negotiate with third parties to obtain the best possible price curtailed as little as possible. In such cases, the default rule should be that the holder is only entitled to conclusion of the main contract upon breach in the form of a contract with or offer to a third party. The default rule should also be that such preference contracts - which will be treated as ordinary preference contracts - only terminate upon the grantor actually contracting with and performing to a third party within a reasonable time after the holder declined the opportunity to match those terms, and provided the identity of the third party was disclosed to the holder on request. The holder therefore cannot lose his preferential right by a rejection of an outrageously high offer by the grantor. Options and preference contracts are closely related and overlapping concepts. The type of preference contract that grants a conditional right to contract can often be understood as a conditional option (or at least as a conditional option subject to a resolutive condition that the grantor does not want to contract anymore). The traditional distinction between options and rights of first refusal can only be maintained in respect of some types of preference contracts. These are negative or bare preference contracts which only give rise to remedies aimed at restoring the status quo ante the breach, as well as those preference contracts creating conditional rights to contract which courts refuse to treat as conditional options because their wording implies a duty to make or accept an offer, or because the requirement of certainty precludes them from being options.
- ItemThe modernisation of trustees' investment functions in South African law through the implementation of an investment rule based on modern portfolio theory(Stellenbosch : Stellenbosch University, 2020-12) Van Tonder, Wiaan; De Waal, Marius Johannes; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: Changes in investment management and advances in economics and finance have led to extensive reform of trust investment law in New York, the United Kingdom and New Zealand. The centrepiece of this reform is modern portfolio theory (“MPT”). Today, trustee investing in each of these jurisdictions is governed by an investment rule based on MPT. In contrast, South African trust law has not kept abreast of contemporary changes to trust investment law and, consequently, trustees in South Africa are not judged by an investment rule based on MPT. The purpose of this dissertation is to examine whether trustees’ investment functions in South African law should be modernised through the implementation of an investment rule based on MPT. To this end, the dissertation analyses the development of trustees’ investment standards in South Africa, explains MPT, and compares the theoretical underpinnings of trust investment law as applicable in South Africa vis-à-vis the three foreign jurisdictions mentioned above. The dissertation concludes that trustees and beneficiaries can benefit greatly from modernising trustees’ investment functions and proffers recommendations for reform.