Faculty of Law

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The Faculty of Law is situated in the Old Main Building, the centre of Stellenbosch. Initially the Faculty concentrated on LLB degrees, training and equipping students, not merely as legal practitioners, but also as jurists. Graduates of the Faculty include judges, advocates, attorneys, business people, politicians and academics.

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The abuse of the trust (or: "Going behind the trust form") : The South African experience with some comparative perspectives
(Mohr Siebeck, 2012-10) De Waal, Marius J.
INTRODUCTION: Sometime during 1994 a trust was created with a certain Mr. Badenhorst, a successful farmer near a small South African town, as one of its trustees. At the time he was happily married. The marriage between Mr. Badenhorst and his wife was out of community of property, meaning that each one of the parties to the marriage had an own separate estate (or “patrimony”).
Activation in the context of the unemployment insurance system in South Africa
(Juta Law Publishing, 2011-01) Govindjee, Avinash; Olivier, Marius; Dupper, Ockert
The main aim of labour market activation policies is to bring jobless people from unemployment or inactivity into work or, at the very least, to influence the employment prospects of the unemployed positively. Activation schemes typically make benefit receipt conditional upon job search activities, acceptance of available job offers and participation in training activities. This article addresses the appropriate role of the Unemployment Insurance Fund (UIF) in the establishment of activation in South Africa. It focuses on a number of principled and practical considerations and constraints that challenge the use of activation mechanisms, such as the fragmentation of the existing legal and institutional frameworks, the lack of available employment opportunities and human rights considerations. It is argued that the limited and short-term impact of the UIF, its strong labour-market orientation and its inability to appropriately contribute to preventing and combating unemployment or to reintegrate the unemployed into the labour market all point to the urgent need to reform the UIF. The gaps in the current unemployment insurance system are highlighted, as is the need to enhance the relationship between the unemployment insurance system and (appropriate) activation measures. The role of existing social security and employment creation initiatives in this dynamic is also considered. In particular, the absence of a link between those excluded from the UIF and the activation mechanisms introduced by the Skills Development Act 97 of 1998 is underscored. Proposals contained in the Employment Services Bill are also evaluated. It is suggested that an expanded form of employment services provision, incorporating a network of labour centres, ought to receive prioritisation in the South African context. This must be coupled with a move to consolidate the various available governmental databases in terms of which unemployed persons may register as job-seekers. The creation of an enabling framework to achieve such goals would require a variety of legislative changes, some of which are discussed in the article.
The adaptation of the institution of apartment ownership to civilian property law structures in the mixed jurisdictions of South Africa, Sri Lanka and Louisiana
(Juta Law Publishing, 2008-02) Van der Merwe, C. G.
INTRODUCTION: Since the maxim superficies solo cedit disallows separate ownership of land and parts of a building, special legislation was necessary in South Africa, Sri Lanka and Louisiana to breach this principle of accession and legitimize the institution of apartment ownership in these mixed jurisdictions. At the time when urgent housing shortages, especially near centers of employment, compelled these jurisdictions to promulgate statutes to regulate apartment ownership, the most attractive workable precedents available were the common law statutes of New South Wales, British Columbia and certain United States’ statutes. The great success which especially New South Wales enjoyed in providing housing to thousands of Australians led to the transplantation of the New South Wales statute to South Africa and Sri Lanka. The impetus for the first generation Louisiana Horizontal Property Act of 1962 was the availability of Federal Housing Authority insured mortgages for condominiums in states where condominium regimes were authorized by local law. This Act is copied almost verbatim from the Arkansas Property Act, which in turn borrowed from the Puerto Rican statute altering the civilian terminology in that statute to suit common law requirements. Because of numerous shortcomings, the Horizontal Property Act was replaced by the Condominium Act of 1974 and finally the Condominium Act of 1979. Although these second and third generation Louisiana statutes conform to the terminology of the Civil Code, the latest Act borrowed heavily from the Uniform Condominium Act approved by the Commissioners on Uniform State Laws in 1977. The Uniform Condominium Act and the New South Wales strata legislation are the two most sophisticated common law statutes in the world.
Addressing the issue in Harvey v Umhlatuze Municipality in legislation
(Juta Law Publishing, 2014-01) Slade, B. V.
In Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP) ("Harvey") the High Court had to decide whether it was competent to order the re-transfer of expropriated property to the previous owner when the purpose for which the property was expropriated could not be realised. The court refused to order the re-transfer of the property due to the absence of legislation that authorises the Court to re-transfer expropriated property upon the non-realisation of the purpose of the expropriation. In March 2013, a draft Expropriation Bill was released for public comment. This note shows that the Expropriation Bill, if passed into law, does not address the issue that was present in Harvey, but only allows for the re-transfer of previously expropriated property in very limited circumstances. Since the Expropriation Bill does not effectively address the issue that was present in Harvey, recommendations are made that should resolve the issue that was present in that decision. The main objective of the amending provisions should be to indicate the nature of the right of re-transfer, the persons entitled to claim re-transfer, the time-frame within which the expropriated owner can reclaim the property upon non-implementation of the purpose, setting up a framework for calculating the amount that has to be repaid, as well as the circumstances under which the state would not be required to re-transfer the property to the previous owner. Including detailed legislation that effectively resolves the issue in Harvey v Umhlatuze Municipality, the state would be prevented from changing the purpose for which expropriated property is used at its own discretion. It would also prevent the state from using a valid public purpose as a smokescreen to use the property for a different purpose after the property has been expropriated.
An administrative law perspective on “bad building” evictions in the Johannesburg inner city
(ESR Review (Economic and Social Rights in South Africa), 2007-05) Quinot, G.
The recent judgment of the Supreme Court of Appeal in Rand Properties provides an opportunity to assess the use of administrative law arguments in advancing the realisation of socio-economic rights. The judgment itself is disappointing in this respect by failing to grapple effectively with the potentially constructive interaction between section 33 of the Constitution and the various socio-economic rights provisions.
Affirmative” (measures in) action? revising the lawfulness of racial quotas (in South African (professional) team sports)
(University of Pretoria, 2019) Louw, Andre M.
This contribution critically examines the lawfulness of the use of race quotas in the selection of South African (professional) sports teams. These quotas purportedly function as affirmative action measures, and their legitimacy in this light is considered with reference to relevant case law on affirmative action and, more specifically, on the use of quotas in the application of affirmative action (as this has featured in other contexts in the case law to date). In the process, the author evaluates the constitutionality of such quotas (with specific reference to their apparent irrationality in the specific context of (professional) sport and its nature and characteristics). The piece further considers the legitimacy of these quotas at the domestic level in light of the application of the applicable labour legislation (specifically the Employment Equity Act, 1998), and at the international level in light of the applicable rules of international sports governing bodies in the relevant sporting codes. The author concludes that these race quotas are unconstitutional and have no legitimate place in South African sport and in the continuing process of sports transformation, and calls for their abolishment as a matter of urgency.
Die aftrekbaarheid van rente en huurgeld vir inkomstebelastingdoeleindes
(Juta Law, 2007-01) Taljaard, C.; Du Plessis, I.
In die onderhawige saak het BP Suid-Afrika (Edms) Beperk ("BPSA") op 'n kwartaallikse grondslag dividende aan sy houermaatskappy, BP Plc, verklaar. Sodanige verklarings is deur die houermaatskappy vereis. BPSA het in die betrokke jaar van aanslag oor verdeelbare reserwes van R683 miljoen beskik welke reserwes die maatskappy volgens getuienis sou wou behou. BP plc het egter sy belegging in Suid-Afrika op daardie stadium as riskant beskou en wou die fondse uit die land neem. Die gevolg was die verklaring van 'n dividend van R683 miljoen.
Age or maturity? African children’s right to participate in medical decision-making processes
(Pretoria University Law Press, 2020) Fokala, Elvis; Rudman, Annika
This article advocates an approach to children’s participation in medical decision-making processes guided by the rationality of the best interests’ principle, a child’s evolving capacity and a child’s age. Using a human rights-based approach, rooted in the UN Convention on the Rights of the Child and the African Children’s Charter, it seeks to elucidate the contested three-way partnership between the child, its parent(s) and the assigned physician(s), which plays out in relation to most medical procedures involving children. In analysing legislation and case law, the article further aims to clarify the complex relationship between age and maturity in child participation; to facilitate a child’s involvement in the three-way partnership; and to suggest the statutory recognition of an age indicator in domestic African law in relation to medical procedures.
Aggression as "organised hypocricy?" - How the war on terrorism and hybrid threats challenge the Nuremberg legacy
(University of Windsor, 2012) Kemp, Gerhard; Bachmann, Sascha-Dominik
Modern threats to international peace and security from so called “Hybrid Threats”, multimodal threats such as cyber war, low intensity asymmetric conflict scenarios, global terrorism etc. which involve a diverse and broad community of affected stakeholders involving both regional and international organisations/structures, also pose further questions for the existing legacy of Nuremberg. The (perhaps unsettling) question arises of whether our present concept of “war and peace”, with its legal pillars of the United Nations Charter’s Articles 2(4), 51, and the notion of the criminality of waging aggressive war based on the “legacy” of Nuremberg has now become outdated to respond to new threats arising in the 21st century. This article also serves to warn that one should not use the definition of aggression, adopted at the ICC Review Conference in Kampala in 2010, to repeat the most fundamental flaw of Nuremberg: ex post facto criminalisation of the (unlawful) use of force. A proper understanding of the “legacy of Nuremberg” and a cautious reading of the text of the ICC definition of aggression provide some markers for purposes of the debate on the impact of new threats to peace and security and the use of force in international law and politics.
Albie Sachs and the politics of interpretation
(UNISA Press, 2010-01) Botha, Henk
The politics of interpretation continues to haunt judges and legal theorists. Ever since the legal realists launched their attack on the formalist belief that general legal rules can generate determinate answers to concrete legal questions, constitutional thought has been obsessed with the spectre of unelected judges thwarting the will of legislative majorities in the name of their own, subjective interpretations of constitutional provisions. For generations of constitutional scholars, attempting to show how judges can avoid substituting their own views on policy issues for those of legislatures, and/or how constitutional adjudication can be placed on a more secure footing has been a consuming passion.
Alternatiewe benaderings ten opsigte van feitelike kousaliteit in die deliktereg
(LitNet, 2013-12) Wessels, Bernard
In Lee v Minister of Correctional Services is die eiser tydens sy aanhouding in die Pollsmoorgevangenis met tuberkulose (TB) geïnfekteer. Hy beweer dat die verweerder se werknemers op nalatige wyse versuim het om die bestaande gesondheidsmaatreëls toe te pas, welke versuim op onregmatige wyse sy infeksie veroorsaak het, en hy stel gevolglik ’n skadevergoedingseis teen die verweerder in. Weens die besondere aard van ’n TB-infeksie is dit onmoontlik om die bron daarvan te identifiseer en bygevolg op oorwig van waarskynlikheid te bewys dat die nalatige versuim van die tronkowerhede die die feitelike oorsaak van die eiser se skade is. Tog bevind die verhoorhof en die konstitusionele hof dat daar wel ’n kousale verband tussen die eiser se skade en die verweerder se nalatige versuim was. Die konstitusionele hof bevind voorts dat al die elemente van ’n delik deur die eiser bewys is en stel die verweerder deliktueel aanspreeklik. Die feite van hierdie saak illustreer die kompleksiteit wat die kousaliteitsvraag soms kan binnedring asook die uitdagings wat die gemeenregtelike conditio sine qua non- of but for-toets vir feitelike kousaliteit in uitsonderlike feitegevalle moet trotseer.
Alternative measures to reduce trial cases, private autonomy and "public interest" : some observations with specific reference to plea bargaining and economic crimes
(Juta Law Publishing, 2014-01) Kemp, Gerhard
This note considers alternative measures to reduce trial cases as a strategy to enhance the effectiveness of the criminal justice system. The emphasis falls on economic crime. It is noted that alternative measures, particularly formal and informal plea bargaining, can be beneficial and are also manifestations of individual autonomy. It is, however, warned that insofar as institutionalised alternative measures become part of a cost-benefit, economic analysis (which seems to be a real risk in the context of economic crime) and insofar as criminal trials for major or complex crimes serve public, didactic roles, alternative measures should not be opted for without careful consideration of the public interest in the broadest sense.
Alternative strategies to protect the existing view from a property
(Juta Law, 2016-03) Kriek, C. A.; Van Der Walt, A. J.
In terms of the common law, a South African property owner does not have an inherent right to the existing view from her property over adjoining properties, although the existing view from her property can be protected with a servitude that prevents or restricts building works on adjoining land. Furthermore, there are (weak and inconclusive) indications that the view from a specific property may be protected as an inherent part of landownership in exceptional circumstances, where the view forms an integral part of the use and enjoyment of the property and where the protection of that view was an important consideration in the development of land in that area. Apart from these rather limited circumstances, landowners can generally not claim an inherent right, as part of their ownership, to uphold the undisturbed prospect from their land against the wish of neighbouring owners to develop and build on their land.
Ambit of mineral rights : paving the way for new order disputes
(Juta Law, 2007-01) Badenhorst, P. J.; Mostert, H.
The ambit of a real right, such as a mineral right, is determined by ascertaining the content thereof by identifying and listing its entitlements as well as identifying the limitations placed upon the exercise of such right. Once the ambit of a right (and/or competing rights) is determined, the relationship or possible conflict between parties holding different rights to the same legal object may be ascertained. This contribution is a discussion of the recent decision in Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2006 1 SA 350 (T) in which the content of mineral rights in the context of the doctrine of lateral support was considered. A brief exposition of the relevant facts follows, whereafter the arguments entertained by the court is discussed. The court's decision on the ambit of mineral rights and the applicability of the property clause to the present case will then receive attention, before the general impact of the decision is discussed in more detail.
The ambit of the discretion of courts in the case of encroachments : Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property
(Juta Law, 2015-01) Boggenpoel, Z. T.
The purpose of this note is to analyse a recent judgment of the South Gauteng High Court in Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property (unreported GSJ judgment, case no 41882/12, 10 December 2013). Although this is a fairly short judgment it raises important questions regarding the law pertaining to encroachments. As such, it warrants a discussion of the ambit of the courts’ discretion where encroachments are concerned. The facts of the case can be summarised as follows. The applicant and respondent owned neighbouring commercial properties. The applicant owned plot 989, which measures 5989 square metres, while the respondent owned plot 990, which measures roughly 1821 hectares. The applicant had initially owned both properties and sold off plot 990 to the respondent on 31 July 2006. At the time that the transfer took place, both parties were unaware that the existing fence between the two plots was not situated on the cadastral boundary between the properties (para 4). The inaccurate placing of the fence resulted in a triangular piece of land (measuring some 2271 square metres), an incomplete building (approximately 703 square metres in size) and a guard house structure being incorrectly incorporated as part of the applicant’s land, although they actually belonged to the respondent (para 2). When the applicant became aware of the encroachment, it approached the respondent to acquire the encroachment area. The applicant offered to pay an amount of R4 410 721.00 plus a solatium of R100 000 for the encroachment to remain in place in perpetuity. However, the negotiations failed and the parties approached the Gauteng South High Court for a decision on the matter.
The application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements
(North-West University, Faculty of Law, 2019-11-15) Jansen van Rensburg, Enelia
General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context otherwise requires. All South African DTAs include such a clause. Many interpretational issues remain with regard to the application and interpretation of general renvoi clauses. This article considers four of these issues in the light of South African cases in which general renvoi clauses were referred to. The following cases are considered: ITC 789 (1954) 19 SATC 434, Baldwins (South Africa) Ltd v Commissioner for Inland Revenue (1961) 24 SATC 270 and Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA). The first of the issues considered in the article is relevant in those cases where a DTA includes a general renvoi clause based on the pre-1995 version of article 3(2) and where amendments were made to a relevant domestic meaning after the conclusion of the particular DTA. These clauses do not expressly state whether the relevant domestic meaning is the domestic meaning existing at the time of the conclusion of the DTA, or at the time of the application of the DTA. The second issue arises if the expression used in the domestic law is not identical to the undefined treaty term. The question is whether the expression in the domestic law can be used to give meaning to the treaty term under the general renvoi clause. Another interpretational issue considered in the article concerns deeming provisions in the domestic law. The issue is whether a meaning that a term is deemed to have under a provision in domestic legislation can be used under the general renvoi clause to give meaning to the undefined term in the DTA. The last issue deals with the meaning of the phrase "unless the context requires otherwise". The question raised is whether this phrase means that the domestic meaning should be given only as a "last resort", or whether it should apply unless "reasonably strong" arguments to the contrary are made.
The application of socio-economic rights to private law
(Juta Law, 2008-01) Liebenberg, Sandra
The constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range of socio-economic rights read together with the provisions relating to substantive equality,1 land reform2 and environmental rights.3 Moreover, the constitution contains a number of express provisions signalling that the rights and values in the bill of rights are intended to apply to private relations and to influence the development of the common law and customary law. Sections 8(1)-(3) and 39(2) are the primary provisions governing the application of the bill of rights to private parties. In South Africa (as is the case in other societies based on a market economy) powerful private actors such as landlords, banks, medical aid schemes, insurance companies and utility companies delivering public services such as water exercise significant control over people’s access to socio-economic rights. Common-law rules and institutions structure access to socio-economic resources in diverse areas of contract law, property law, delict, family law and succession.
Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1)
(Juta Law, 2014-04) Brits, R.; Van Der Walt, A. J.
Direct execution of a judgment debt against immovable property - including those burdened with mortgage bonds - is permissible in the high court on the condition that "where the property sought to be attached is the primary residence of the judgment debtor, no writ [of execution] shall be issued unless the court, having considered all the relevant circumstances, orders execution against such property." The amended rule is a result of section 26 of the Constitution of the Republic of South Africa, 1996 and reflects the principle that was established earlier in Jaftha v Schoeman; Van Rooyen v Stoltz with regard to the magistrates' courts' execution process. The housing clause provides as follows: "(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions." To give effect to debtors' rights under section 26(1), the constitutional court held in the Jaftha case that a clerk of the court may no longer grant judgments by default against primary residences. Rather, a magistrate must grant the order and may do so only after all the relevant circumstances have been considered. The case involved insignificant, unsecured debts that were enforced against vulnerable debtors' state-subsidised houses. It was therefore not immediately apparent that section 26 would apply also in the general context of mortgage bonds being enforced in the high courts.
Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 2)
(Juta Law, 2014-01) Brits, R.; Van Der Walt, A. J.
The proportionality test to determine the justification of execution against a home revolves around various contextual considerations. Yet, it appears that the enquiry will largely centre on the size of the outstanding debt and – significantly – of the actual arrears, as compared to alternative ways that are available to satisfy the claim for either or both of these amounts. For mortgage law to comply with the proportionality standard, the process must include a way to have recourse to reasonable, creative alternatives before a home is sold in execution. In terms of common law doctrine, a mortgage is a limited real right that the creditor holds in the debtor’s hypothecated land. The most prominent element of this property right is the creditor’s entitlement, when the debtor defaults, to call up the bond and insist on the sale of the burdened property to settle the debt. Because the mortgagee has a right to execute against that specific property on the basis of its limited real right in that property, it has no duty to first seek execution against other assets, such as movables or non-primary residences.
Applying the mandament van spolie in the case of incorporeals : two recent examples from case law
(Juta Law, 2015-01) Boggenpoel, Z. T.
The mandament van spolie is a remedy available in South African law to protect possession of property. The remedy is aimed at ensuring restoration of possession ante omnia in instances of unlawful dispossession. It is not specifically aimed at protecting rights with regard to property; therefore it is generally accepted that courts should disregard the merits of the dispute when deciding whether the remedy should be granted. Considerations other than the remedy's two requirements are therefore irrelevant in the decision of whether the mandament van spolie is applicable. There are two requirements that need to be complied with in order for one to be successful with the mandament van spolie. Firstly, the spoliatus - the person who was dispossessed - must prove peaceful and undisturbed possession of property. In the case of incorporeals - where physical possession is not possible - the law recognises quasi-possession to fulfil the first requirement of the remedy. Van der Merwe explains that the spoliatus does not have to prove that he/she actually had a right to possess in terms of the maxim ante omnia restituendus est, but simply that the right was actually possessed and that unlawful dispossession took place.

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