South African law journal最新文献_第5页

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a3

Jacques du Plessis

引用次数: 0

Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action 在南非打倒SLAPP诉讼:需要立法保护和公民社会行动

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i1a1

Zeenat Emmamally

{"title":"Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action","authors":"Zeenat Emmamally","doi":"10.47348/salj/v139/i1a1","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a1","url":null,"abstract":"The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Problems relating to the formation of online contracts: A comparative perspective 网络合同形成的相关问题:比较视角

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i1a2

Sanmarie van Deventer

{"title":"Problems relating to the formation of online contracts: A comparative perspective","authors":"Sanmarie van Deventer","doi":"10.47348/salj/v139/i1a2","DOIUrl":"https://doi.org/10.47348/salj/v139/i1a2","url":null,"abstract":"The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70821918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Taxation of legal costs: Is a cost creditor shielded by legal professional privilege? 法律费用的征税:成本债权人是否受到法律职业特权的保护?

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a6

F. Moosa

{"title":"Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?","authors":"F. Moosa","doi":"10.47348/salj/v139/i3a6","DOIUrl":"https://doi.org/10.47348/salj/v139/i3a6","url":null,"abstract":"Taxation of legal costs in the high courts of South Africa is a quasi-judicial proceeding during which a Taxing Master assesses the fairness of a bill of costs, quantifies the amount payable to a cost creditor, and issues an allocatur which certifies the sum payable by a cost debtor. It is argued that this legal process, which is regulated by Uniform Rule 70 read with Uniform Rule 69, implicates a cost debtor’s fundamental right, under s 34 of the Constitution of the Republic of South Africa, 1996, to fair dispute resolution at any independent forum. In terms of Uniform Rule 70(3B) (a), prior to the enrolment of a bill for taxation, a cost debtor is entitled ‘to inspect such documents or notes pertaining to any item on the bill’. This article argues that the inspection envisaged is a pre-taxation discovery procedure aimed at enabling a cost debtor to determine which items on a bill of costs are objectionable, and the grounds therefor. With reference to relevant judicial precedent and the established principles of interpretation, this article hypothesises that, having regard to the clear, unambiguous, peremptory language of Uniform Rule 70(3B)(a), as well as the purpose sought to be achieved by the right of inspection, the law has, in this context, excluded the operation of the cost creditor’s common-law right to assert legal professional privilege as regards documentation pertaining to any item claimed in the bill of costs. This is unlike the position prevailing at a pre-trial discovery procedure catered for in Uniform Rule 35. This article also argues that, in accordance with s 39(2) of the Constitution, the broad construction of the right of inspection under Uniform Rule 70(3B)(a) advanced here promotes both a cost debtor’s fundamental right in s 34 of the Constitution, and the values of justice and the rule of law which are deeply imbricated in the Bill of Rights.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70822956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs 让人民说话吧!在飞蝇渔民联合会诉环境事务部长一案之后，抵制公众参与权利的侵蚀

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i4a6

Jenny Hall

{"title":"Let the people speak! Resisting the erosion of the right to public participation in the wake of The Federation of Fly Fishers v The Minister of Environmental Affairs","authors":"Jenny Hall","doi":"10.47348/salj/v139/i4a6","DOIUrl":"https://doi.org/10.47348/salj/v139/i4a6","url":null,"abstract":"The need for public participation in environmental decisions is accepted in both international and South African law. In the run up to, and just after, the transition to democracy, South Africa was exemplary in many instances in ensuring that participation occurred in a meaningful and broad-based way. In recent years, however, some may question whether the underlying rationale for public participation is still as valued by government, or whether it is being diluted to a mechanistic procedural requirement reminiscent of the past. Disputes about the way in which requirements to give effect to public participation are being implemented have recently surfaced in the courts in respect of several environmental issues. There has been strong public opposition to municipal service delivery regarding waste and water, seismic testing off the South African coast, and law-making activities regarding trout. This article considers the court’s oversight of public participation processes in respect of one of those issues — recent decisions on the introduction of executive regulations. It does so by tracing the particular dynamics regarding the need for public participation in South Africa and assessing the way in which the court has adjudicated public participation disputes in the law-making context. It finds that the court appears to be willing to play its oversight role in a way which is true to the underlying ethos of democratic decision-making in the environmental context, albeit that further opportunities for the court to consider the full range of matters involving participation should be welcomed.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

When the legal pathways for sound financial management and spatial justice collide: The case of South African cities 当健全的财务管理和空间正义的法律途径发生冲突:以南非城市为例

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a7

Anel Du Plessis

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Book Review: Petrus T Damaseb The Supreme Court of Namibia (2021) 书评:Petrus T Damaseb:纳米比亚最高法院(2021)

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i3a9

M. Paleker

引用次数: 0

Where do we belong? The plight of plaintiffs with small maritime claims 我们属于哪里?小额海事索赔原告的困境

South African law journal Pub Date : 2022-01-01 DOI: 10.47348/salj/v139/i1a7

M. Wallis