{"title":"A rhetoric of terror and of the terrified","authors":"Sisanda Nkoala","doi":"10.47348/acta/2022/a6","DOIUrl":"https://doi.org/10.47348/acta/2022/a6","url":null,"abstract":"This paper draws on Philippe-Joseph Salazar’s work in Words are Weapons: Inside ISIS’s Rhetoric of Terror (2017) on ISIS’s persuasive self-presentation on social and traditional media, to consider the rhetoric of the terrified Farmers evident in the framing discourse of selected South African television news reports on Farm attacks. Scholars who study ISIS’s use of media have noted the efficacy with which this group has been able to harness the capabilities of media platforms to speak directly to audiences and construct its image. Likewise, the communicative strategies employed in the framing discourse of South African media around the victimhood of Farmers have been effective and have spread to audiences worldwide. Using Salazar’s examination of ISIS’s rhetoric, expressed through its use of words and images in the media, this paper discusses similarities between ISIS’s self-presentation in audio-visual media and the news media discourse that articulates a sense of self-othering by Farmers through these platforms.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","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":"70820858","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}
{"title":"An incomprehensible rhetoric","authors":"P. Engel","doi":"10.47348/acta/2022/a3","DOIUrl":"https://doi.org/10.47348/acta/2022/a3","url":null,"abstract":"In his pioneering essays on the role of rhetoric in political discourse in South Africa, and in particular within the Truth and Reconciliation Commission, Philippe-Joseph Salazar has emphasised the ‘postmodernist’ overtones of these debates. But he has clearly distinguished an Aristotelian line in the use of rhetoric in politics, according to which it ought to promote truth in order to convince, and a Protagorean line, according to which truth is relative and useless. Some commentators on these issues, such as Barbara Cassin, have – without a blink – espoused the postmodernist and Protagorean line. I take their view to be incomprehensible and incoherent. Rhetoric should not be used as a tool to bury truth, but to praise it. So, I prefer to see Salazar more as an Aristotelian than as a Protagorean.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","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":"70820630","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}
{"title":"Breach of contract","authors":"E. Clive","doi":"10.47348/acta/2021/a2","DOIUrl":"https://doi.org/10.47348/acta/2021/a2","url":null,"abstract":"This contribution uses J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89 as a peg on which to hang a number of fundamental questions about contract: What is a contract? Does the word ‘contract’ sometimes refer to a legal relationship rather than a juridical act? If so, does this matter? Is the law on implied terms satisfactory? Might a duty of good faith and fair dealing in contract law be a better way of dealing with certain problems than resort to the implication of terms? When is a breach of contract serious enough to justify cancellation or rescission? Should a supplier of defective goods have a right to cure the defect? Is there a risk of forgetting the difference between a right to withhold performance and a right to rescind or cancel? These questions are prompted by the fact that this was a straightforward case and similar situations must occur regularly. Yet, different judges reasoned differently and came to different conclusions in the course of the case being appealed all the way to the House of Lords. The question, therefore, is: how might a simple case have been better, or in a more straightforward way, approached through law? The contribution argues that the Draft Common Frame of Reference (the DCFR) provides both concepts and rules that would have reached the ultimate conclusion in Ritchie much more quickly and perhaps the case would not have needed to be litigated at all.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820198","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}
{"title":"Interference without ownership: The theft of incorporeal money in the South African law of unjustified enrichment","authors":"H. Scott","doi":"10.47348/acta/2021/a13","DOIUrl":"https://doi.org/10.47348/acta/2021/a13","url":null,"abstract":"First National Bank of Southern Africa v Perry, Nissan South Africa v Marnitz NO and Absa Bank v Lombard Insurance, as well as Trustees, Estate Whitehead v Dumas and Absa Bank v Moore, together amount to a concerted attempt on the part of South African courts to provide victims of the theft of incorporeal money with adequate redress. However, it has proved difficult to find a satisfactory juristic explanation for this series of decisions. This chapter shows that a model organised around the extension of the vindicatio to incorporeal money is unworkable. Instead, having considered briefly a second possibility, namely, the English constructive trust, this chapter advances an analysis of the plaintiff’s claim to the stolen money solely in terms of the non-consensual enrichment (that is, enrichment other than by deliberate conferral) of the defendant at their expense. Apart from its superior explanatory power, such an approach offers a blueprint for future development, insofar as it opens the way to the recognition of a secured claim where the proceeds of stolen money have been used to discharge the thief ’s pre-existing secured debts: the doctrine of subrogation to extinguished rights. This chapter closes by considering the implications of these conclusions for wider debates about the proper size and shape of the law of unjust enrichment.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820189","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}
{"title":"Contractual fairness: Conflict resolved?","authors":"A. Price","doi":"10.47348/acta/2021/a12","DOIUrl":"https://doi.org/10.47348/acta/2021/a12","url":null,"abstract":"In 2019 Dale Hutchison called upon the Constitutional Court to resolve the apparent conflict between certain of its judgments and those of the Supreme Court of Appeal relating to the most burning issue in South African contract law, namely, the extent to which a judge can refuse to enforce an otherwise valid contract on the grounds that it would be unduly harsh, unfair or unreasonable to do so. Two of the Constitutional Court’s judgments handed down simultaneously in 2020 – Beadica 231 CC v Oregon Trust and AB v Pridwin Preparatory School – answered Dale’s call. In Beadica, the notion that abstract values such as fairness, reasonableness and good faith serve as directly applicable standards that courts may use to control contractual content and enforcement was rejected. The established Barkhuizen test for public policy should be employed instead, ‘it was held’. Nonetheless Pridwin provides fresh impetus to the horizontal application of constitutional rights to contracting parties in terms of s 8(2) of the Constitution. The courts will have to use the latter tool carefully and incrementally, particularly in the context of commercial contracting, if the careful balance between contractual fairness and certainty achieved in Beadica is to be preserved.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820149","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}
{"title":"Recontextualising the teaching of commercial transactions law for an African university","authors":"A. Hutchison","doi":"10.47348/acta/2021/a10","DOIUrl":"https://doi.org/10.47348/acta/2021/a10","url":null,"abstract":"This article reflects on the changing political environment in South African higher education and offers one potential view of the future of contract law teaching in the twenty-first century. Specifically, the author discusses changes made to the final-level LLB course, Commercial Transactions Law, at the University of Cape Town. These changes were inspired by the #MustFall protest movements and also incorporated the requirements of the South African Council on Higher Education’s 2018 report on the LLB degree. In essence, this involved a recontextualisation of the component topics to speak to a broader range of student life experiences, as well as an attempt to incorporate more materials focused on social justice or which are characteristically ‘African’.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820123","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}
{"title":"Contract law reform: Legislators or judges – or both?","authors":"H. MacQueen","doi":"10.47348/acta/2021/a3","DOIUrl":"https://doi.org/10.47348/acta/2021/a3","url":null,"abstract":"This essay pursues a theme identified by Dale Hutchison – judges’ use of their technical expertise to achieve creativity in law – and asks how far that may be relied upon by law reform bodies, such as the Law Commissions in the United Kingdom. The question is whether such bodies should take account of means other than legislation for having their recommendations put into effect. It is suggested that, while law reform bodies should be fully aware that their published work is a source of information, ideas and arguments for practitioners and judges which may contribute to the judicial development of the law, they should address themselves only to government and the legislature.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820210","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}
{"title":"Bona fides and ubuntu – A response to Dale Hutchison","authors":"J. Barnard-Naudé","doi":"10.47348/acta/2021/a4","DOIUrl":"https://doi.org/10.47348/acta/2021/a4","url":null,"abstract":"This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820214","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}
{"title":"Agency in South Africa: Mapping its defining characteristics","authors":"G. Glover","doi":"10.47348/acta/2021/a9","DOIUrl":"https://doi.org/10.47348/acta/2021/a9","url":null,"abstract":"This article draws on contemporary trends in Anglo-American jurisdictions to propose a modernised analytical framework for agency law in South Africa. It first investigates the juridical basis of agency law, finding that the consensus is to see agency as a complex phenomenon that synthesises both internal consent and external power/liability models. Secondly, the article proposes certain essential conceptual features of agency, briefly discusses these features, and argues, with reference to comparative authority, how adopting these might facilitate a more complete understanding of agency in South Africa.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820501","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}
{"title":"The future of contract law: Three conversations at the Cape","authors":"R. Brownsword","doi":"10.47348/acta/2021/a1","DOIUrl":"https://doi.org/10.47348/acta/2021/a1","url":null,"abstract":"This contribution considers the future of the English law of contract in the form of three conversations that are alert to the disruptive impact of technologies on both the content of legal rules and the way that lawyers think – and indeed on the kind of conversations that lawyers have with one another. The first conversation is concerned with ‘coherence’ in contract law, with the application of general principles to novel fact situations and to new phenomena, with the smoothing of tensions within the law, and with the internal integrity of legal doctrine. The second conversation focuses on a tension between, on the one hand, what may be called a traditional private law ‘coherentist’ concern for doctrinal integrity and the primacy of principle over policy and, on the other hand, a more ‘regulatory’ approach to contracts, especially to consumer contracts, in which policy and instrumental rationality prevail. The third conversation focuses on the use of emerging transactional technologies (such as blockchain-supported smart contracts and AI) that have the potential to displace the rules and principles of contract law. Instead of legal code governing transactions, might we find that technological coding does all the work, making, performing and enforcing ‘contracts’? Each conversation suggests a different future for contract law. The first conversation suggests that contract law will have difficulty in living up to the private law ideal of coherence; the second suggests that coherentism will struggle to survive as it is challenged by an increasingly regulatory approach to the governance of transactions; and the third suggests that, in a world of smart transactional technologies, there is a serious question mark about the relevance of contract law as a body of rules that governs transactions.","PeriodicalId":90407,"journal":{"name":"Acta juridica (Cape Town, South Africa)","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70820023","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}
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