An Unprecedented 'Precedent'?: Phodiclinics (Pty) Ltd v Pinehaven Private Hospital (Pty) Ltd (594/2010)[2011] ZASCA163 (28 September 2011); 2011 4 All SA 331 (SCA)
- Authors: Glover, Graham B
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/69950 , vital:29598 , https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2364288
- Description: There are some fundamental underlying requirements that need to be in place for a system of precedent to operate. Of these I wish to isolate two that are germane to this note. The first is that court decisions (especially those in which a written judgment is handed down) need to be clearly reasoned and logically articulated to be understandable, effective and to have value in a system of precedent that finds its ultimate lodestar in the rule of law. There is no constitutional or statutory requirement that a court in all cases must furnish reasons, or even written reasons, for its decision But the practice of doing so, the Constitutional Court has said, supports the rule of law, ensuring that judicial decision-making does not occur in a manner that is arbitrary, and ensures that judges may be held accountable for their decisions. The second requirement is a technical rule – the rule of majority: if the case is heard by a full bench, and where differing opinions are handed down by the judges hearing the case, the ratio decidendi can only be identified from those judges whose reasoning is in the majority.
- Full Text: false
- Date Issued: 2013
- Authors: Glover, Graham B
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/69950 , vital:29598 , https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2364288
- Description: There are some fundamental underlying requirements that need to be in place for a system of precedent to operate. Of these I wish to isolate two that are germane to this note. The first is that court decisions (especially those in which a written judgment is handed down) need to be clearly reasoned and logically articulated to be understandable, effective and to have value in a system of precedent that finds its ultimate lodestar in the rule of law. There is no constitutional or statutory requirement that a court in all cases must furnish reasons, or even written reasons, for its decision But the practice of doing so, the Constitutional Court has said, supports the rule of law, ensuring that judicial decision-making does not occur in a manner that is arbitrary, and ensures that judges may be held accountable for their decisions. The second requirement is a technical rule – the rule of majority: if the case is heard by a full bench, and where differing opinions are handed down by the judges hearing the case, the ratio decidendi can only be identified from those judges whose reasoning is in the majority.
- Full Text: false
- Date Issued: 2013
Section 40 of the Consumer Protection Act in comparative perspective: aantekeninge
- Authors: Glover, Graham B
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70527 , vital:29672 , https://hdl.handle.net/10520/EJC144971
- Description: The purpose of this comment is to consider some of the problems with how we are to understand the role and purpose of section 40 of South Africa's Consumer Protection Act 68 of 2008 when viewed from a doctrinal perspective. Section 40 has the heading "Unconscionable conduct", and contains three subsections.
- Full Text: false
- Date Issued: 2013
- Authors: Glover, Graham B
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70527 , vital:29672 , https://hdl.handle.net/10520/EJC144971
- Description: The purpose of this comment is to consider some of the problems with how we are to understand the role and purpose of section 40 of South Africa's Consumer Protection Act 68 of 2008 when viewed from a doctrinal perspective. Section 40 has the heading "Unconscionable conduct", and contains three subsections.
- Full Text: false
- Date Issued: 2013
Mistake, financial institutions, and the contract of suretyship: Prins v ABSA Bank Ltd 1998 (3) SA 904 (C)
- Authors: Glover, Graham B
- Date: 1999
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/155985 , vital:39938 , https://heinonline.org/HOL/Page?collection=journalsamp;handle=hein.journals/tyromhldre62amp;id=488amp;men_tab=srchresults
- Description: Although the debate about contractual mistake and its theoretical foundations has evolved to the point where disagreement and contradiction has in recent times been replaced by a far higher degree of certainty and clarity (Van der Merwe and Van Huyssteen "Reasonable reliance on consensus, iustus error and the creation of contractual obligations" 1994 SALJ 679 686; Hutchison "Contract formation" in Zimmermann and Visser (eds) Southern Cross: Civil law and common law in South Africa (1996) 193), judgments dealing with the question of mistake will no doubt continue to provide interesting insights into this area of the law. Prins v ABSA Bank Ltd serves as a case in point.
- Full Text: false
- Date Issued: 1999
- Authors: Glover, Graham B
- Date: 1999
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/155985 , vital:39938 , https://heinonline.org/HOL/Page?collection=journalsamp;handle=hein.journals/tyromhldre62amp;id=488amp;men_tab=srchresults
- Description: Although the debate about contractual mistake and its theoretical foundations has evolved to the point where disagreement and contradiction has in recent times been replaced by a far higher degree of certainty and clarity (Van der Merwe and Van Huyssteen "Reasonable reliance on consensus, iustus error and the creation of contractual obligations" 1994 SALJ 679 686; Hutchison "Contract formation" in Zimmermann and Visser (eds) Southern Cross: Civil law and common law in South Africa (1996) 193), judgments dealing with the question of mistake will no doubt continue to provide interesting insights into this area of the law. Prins v ABSA Bank Ltd serves as a case in point.
- Full Text: false
- Date Issued: 1999
Good faith and procedural unfairness in contract: Eerste Nationale Bank van Suidelike Afrika Bpk v Saayman 1997 (4) SA 302 (A)
- Authors: Glover, Graham B
- Date: 1998
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/155975 , vital:39937 , https://heinonline.org/HOL/Page?collection=journalsamp;handle=hein.journals/tyromhldre61amp;id=358amp;men_tab=srchresults
- Description: "It is unlikely that Bank of Lisbon will remain the last word on the matter of good faith and contract law" (Zimmermann "Good faith and equity" in Zimmermann and Visser (eds) Southern cross: Civil law and common law in South Africa (1996) 256). These words have proved to be prophetic in the light of the recent decision handed down by the Supreme Court of Appeal in Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman.
- Full Text: false
- Date Issued: 1998
- Authors: Glover, Graham B
- Date: 1998
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/155975 , vital:39937 , https://heinonline.org/HOL/Page?collection=journalsamp;handle=hein.journals/tyromhldre61amp;id=358amp;men_tab=srchresults
- Description: "It is unlikely that Bank of Lisbon will remain the last word on the matter of good faith and contract law" (Zimmermann "Good faith and equity" in Zimmermann and Visser (eds) Southern cross: Civil law and common law in South Africa (1996) 256). These words have proved to be prophetic in the light of the recent decision handed down by the Supreme Court of Appeal in Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman.
- Full Text: false
- Date Issued: 1998
- «
- ‹
- 1
- ›
- »