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
Developing a test for economic duress in the South African law of contract: a comparative perspective
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70832 , vital:29748 , https://hdl.handle.net/10520/EJC53694
- Description: Until the recent Supreme Court of Appeal decision in Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA), the courts in South Africa consistently adopted the attitude that so-called 'economic duress' does not constitute a valid cause of action in our law of contract. In this sense, our law lags behind other jurisdictions, which have recognised for some time that threats of economic harm can be just as coercive as threats to person or property, especially in the modern commercial word. While the indication given in the Medscheme case that our law could develop to recognise cases of economic duress is a welcome one, the court's statement in this regard was merely obiter, and the court consequently undertook no analysis of the issue. In this article, an attempt is made to develop guidelines for dealing with such cases, in accordance with a more modern and coherent test for duress in contract generally. Much of the discussion involves comparative analyses of the authorities on economic duress in Anglo-American jurisdictions, since there is a dearth of authority on the point in South Africa.
- Full Text: false
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70832 , vital:29748 , https://hdl.handle.net/10520/EJC53694
- Description: Until the recent Supreme Court of Appeal decision in Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA), the courts in South Africa consistently adopted the attitude that so-called 'economic duress' does not constitute a valid cause of action in our law of contract. In this sense, our law lags behind other jurisdictions, which have recognised for some time that threats of economic harm can be just as coercive as threats to person or property, especially in the modern commercial word. While the indication given in the Medscheme case that our law could develop to recognise cases of economic duress is a welcome one, the court's statement in this regard was merely obiter, and the court consequently undertook no analysis of the issue. In this article, an attempt is made to develop guidelines for dealing with such cases, in accordance with a more modern and coherent test for duress in contract generally. Much of the discussion involves comparative analyses of the authorities on economic duress in Anglo-American jurisdictions, since there is a dearth of authority on the point in South Africa.
- Full Text: false
- Date Issued: 2006
Duress in the Roman-Dutch law of obligations
- Authors: Glover, Graham B
- Date: 2005
- Language: English
- Type: Article
- Identifier: vital:6337 , http://hdl.handle.net/10962/d1012402
- Description: [From the introduction]: The institutional writers and practitioners of 16th, 17th and 18th century Roman- Dutch law looked to the Roman law of obligations to form the foundation upon which they erected their structure of private law. During the course of the reception, the idea was that Roman law was supposed to be referred to and applied only where the indigenous law did not already cater for a legal problem.
- Full Text:
- Date Issued: 2005
- Authors: Glover, Graham B
- Date: 2005
- Language: English
- Type: Article
- Identifier: vital:6337 , http://hdl.handle.net/10962/d1012402
- Description: [From the introduction]: The institutional writers and practitioners of 16th, 17th and 18th century Roman- Dutch law looked to the Roman law of obligations to form the foundation upon which they erected their structure of private law. During the course of the reception, the idea was that Roman law was supposed to be referred to and applied only where the indigenous law did not already cater for a legal problem.
- Full Text:
- Date Issued: 2005
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
In service to the law: Alastair James Kerr SC
- Authors: Glover, Graham B
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70658 , vital:29686 , https://hdl.handle.net/10520/EJC53959
- Description: Professor Alastair James Kerr SC passed away at Settlers Hospital in Grahamstown on the 29th of September 2010. He was eighty-eight years of age. Ironically, his death occurred at the time that the third part of the 2010 SALJ appeared in print, containing a tribute to one of the other great writers on South African contract law, Professor Richard (Dick) Christie, who had passed away earlier in the year (see A J G Lang 'Professor Richard Hunter Christie: A memorial tribute' (2010) 127 SALJ 414). 2010 may have been a momentous year in South Africa for many reasons, but the deaths of these two men in the same year has left the landscape of our contract law irrevocably changed, even though their ideas will live on through their published works.
- Full Text: false
- Date Issued: 2011
- Authors: Glover, Graham B
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70658 , vital:29686 , https://hdl.handle.net/10520/EJC53959
- Description: Professor Alastair James Kerr SC passed away at Settlers Hospital in Grahamstown on the 29th of September 2010. He was eighty-eight years of age. Ironically, his death occurred at the time that the third part of the 2010 SALJ appeared in print, containing a tribute to one of the other great writers on South African contract law, Professor Richard (Dick) Christie, who had passed away earlier in the year (see A J G Lang 'Professor Richard Hunter Christie: A memorial tribute' (2010) 127 SALJ 414). 2010 may have been a momentous year in South Africa for many reasons, but the deaths of these two men in the same year has left the landscape of our contract law irrevocably changed, even though their ideas will live on through their published works.
- Full Text: false
- Date Issued: 2011
Jantjie v The Minister of Labour Unreported Eastern Cape Division Case No 2193/2006
- Authors: Glover, Graham B , Beard, M
- Date: 2008
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186891 , vital:44545 , xlink:href="///C:/Users/User/Downloads/41DeJure648%20(1).pdf"
- Description: James Joyce once wrote that "mistakes ... are the portals of discovery" (Ulysses (1964) Ch 9). This aptly describes the legal significance of the judgment in Jantjie v Minister of Labour (unreported decision of the High Court, Eastern Cape Division, case no 3193/2006, decided on 2007-06- 14). In this case, Leach J had to deal with a matter of civil procedure that does not seem to have been dealt with in any reported judgment - the effect of an attorney of record mistakenly failing to sign a notice of motion where an application is brought before the High Court.
- Full Text:
- Date Issued: 2008
- Authors: Glover, Graham B , Beard, M
- Date: 2008
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186891 , vital:44545 , xlink:href="///C:/Users/User/Downloads/41DeJure648%20(1).pdf"
- Description: James Joyce once wrote that "mistakes ... are the portals of discovery" (Ulysses (1964) Ch 9). This aptly describes the legal significance of the judgment in Jantjie v Minister of Labour (unreported decision of the High Court, Eastern Cape Division, case no 3193/2006, decided on 2007-06- 14). In this case, Leach J had to deal with a matter of civil procedure that does not seem to have been dealt with in any reported judgment - the effect of an attorney of record mistakenly failing to sign a notice of motion where an application is brought before the High Court.
- Full Text:
- Date Issued: 2008
Juta and Co Ltd and the South African Law Journal: a milestone
- Authors: Glover, Graham B
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70539 , vital:29673 , https://hdl.handle.net/10520/EJC54018
- Description: It might be said that the relationship between a journal and its publisher is something like an arranged marriage: it is cultural rather than romantic, and it is more of a business deal carefully considered by those in charge of both sets of parties with quiet aspirations of a solid future than about the passion and emotion of the wedding. There is much that is controversial about the social construct of an arranged marriage, but the relationship between the South African Law Journal (SALJ) and Juta and Company Ltd (to be referred to hereafter by its more common sobriquet in the legal profession: 'Juta') does seem to give credence to one of the most popular psychologies about the institution: that very often the relationship, a little uncertain at the start, grows stronger and more secure over time. The year 2011 marked the centenary of the publication of the SALJ by Juta: an exceptional anniversary. This is not a time to review the history of the relationship between Juta, the SALJ, and its various editors. This task has been carried out several times by Ellison Kahn in his inimitable style (see 'Fifty years of the Journal under Union' (1960) 77 SALJ 162; 'The birth and life of the South African Law Journal' (1983) 100 SALJ 594; 'Foreword' to Patricia Cobbledick and Mervyn Dendy The South African Law Journal Cumulative Index 1973-1997 (1997); 'Farewell! Fifty years' hard work comes to an end' (1999) 116 SALJ 691; 'Speech at the Juta Dinner at the South African Law Journal Jubilee Conference' (2004) 121 SALJ 271). But a short commemorative tribute seems apt to commemorate the liaison between the two parties.
- Full Text: false
- Date Issued: 2012
- Authors: Glover, Graham B
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70539 , vital:29673 , https://hdl.handle.net/10520/EJC54018
- Description: It might be said that the relationship between a journal and its publisher is something like an arranged marriage: it is cultural rather than romantic, and it is more of a business deal carefully considered by those in charge of both sets of parties with quiet aspirations of a solid future than about the passion and emotion of the wedding. There is much that is controversial about the social construct of an arranged marriage, but the relationship between the South African Law Journal (SALJ) and Juta and Company Ltd (to be referred to hereafter by its more common sobriquet in the legal profession: 'Juta') does seem to give credence to one of the most popular psychologies about the institution: that very often the relationship, a little uncertain at the start, grows stronger and more secure over time. The year 2011 marked the centenary of the publication of the SALJ by Juta: an exceptional anniversary. This is not a time to review the history of the relationship between Juta, the SALJ, and its various editors. This task has been carried out several times by Ellison Kahn in his inimitable style (see 'Fifty years of the Journal under Union' (1960) 77 SALJ 162; 'The birth and life of the South African Law Journal' (1983) 100 SALJ 594; 'Foreword' to Patricia Cobbledick and Mervyn Dendy The South African Law Journal Cumulative Index 1973-1997 (1997); 'Farewell! Fifty years' hard work comes to an end' (1999) 116 SALJ 691; 'Speech at the Juta Dinner at the South African Law Journal Jubilee Conference' (2004) 121 SALJ 271). But a short commemorative tribute seems apt to commemorate the liaison between the two parties.
- Full Text: false
- Date Issued: 2012
Lazarus in the Constitutional Court: an exhumation of the exceptio doli generalis
- Authors: Glover, Graham B
- Date: 2007
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70678 , vital:29688 , https://hdl.handle.net/10520/EJC53775
- Description: A landmark moment in the history of South African contract law was the emphatic interment of the exceptio doli generalis by Joubert JA in Bank of Lisbon and South Africa v De Ornelas 1988 (3) SA580 (A). Throughout most of the twentieth century, the exceptio doli generalis had been viewed as an equitable defence that allowed a defendant to resist a claim for performance under a contract when there was something unconscionable about the plaintiff's seeking to enforce the contract (or a clause thereof) in the specific circumstances of that case (see A J Kerr Principles of the Law of Contract 6 ed (2002) 637ff; P J Aronstam 'Unconscionable contracts: The South African solution?' (1979) 42 THRHR 21; P van Warmelo 'Exceptio doli' 1981 De Jure 202).
- Full Text: false
- Date Issued: 2007
- Authors: Glover, Graham B
- Date: 2007
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70678 , vital:29688 , https://hdl.handle.net/10520/EJC53775
- Description: A landmark moment in the history of South African contract law was the emphatic interment of the exceptio doli generalis by Joubert JA in Bank of Lisbon and South Africa v De Ornelas 1988 (3) SA580 (A). Throughout most of the twentieth century, the exceptio doli generalis had been viewed as an equitable defence that allowed a defendant to resist a claim for performance under a contract when there was something unconscionable about the plaintiff's seeking to enforce the contract (or a clause thereof) in the specific circumstances of that case (see A J Kerr Principles of the Law of Contract 6 ed (2002) 637ff; P J Aronstam 'Unconscionable contracts: The South African solution?' (1979) 42 THRHR 21; P van Warmelo 'Exceptio doli' 1981 De Jure 202).
- Full Text: false
- Date Issued: 2007
May essential provisions of a contract be determined by one of the parties alone
- Kerr, Alistair J, Glover, Graham B
- Authors: Kerr, Alistair J , Glover, Graham B
- Date: 2000
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70912 , vital:29759 , https://heinonline.org/HOL/Page?handle=hein.journals/soaf117&id=211&collection=journals&index=
- Description: When the Supreme Court of Appeal raises a question but does not answer it, what it says can be interpreted as an invitation to all those interested in the topic to discuss it. This note is a response to such an invitation in NBS Boland Bank v One Berg River Drive CC, Deeb v ABSA Bank Ltd, Friedman v Standard Bank of South Africa Ltd 1999 (4) SA 928 (SCA);[1999] 4 All SA 183, hereinafter referred to as the NBS Boland Bank case.
- Full Text: false
- Date Issued: 2000
- Authors: Kerr, Alistair J , Glover, Graham B
- Date: 2000
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70912 , vital:29759 , https://heinonline.org/HOL/Page?handle=hein.journals/soaf117&id=211&collection=journals&index=
- Description: When the Supreme Court of Appeal raises a question but does not answer it, what it says can be interpreted as an invitation to all those interested in the topic to discuss it. This note is a response to such an invitation in NBS Boland Bank v One Berg River Drive CC, Deeb v ABSA Bank Ltd, Friedman v Standard Bank of South Africa Ltd 1999 (4) SA 928 (SCA);[1999] 4 All SA 183, hereinafter referred to as the NBS Boland Bank case.
- Full Text: false
- Date Issued: 2000
Maybe the courts are not such a Bleak House after all - or please sir, I want some more copyright
- Authors: Glover, Graham B
- Date: 2002
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70841 , vital:29749 , https://heinonline.org/HOL/P?h=hein.journals/soaf119&i=101
- Description: In our advanced technological age the law of copyright faces tremendous challenges. In particular, the Internet has created serious problems for those who wish to enforce their proprietary rights, and to protect their textual (and other) creations from unregulated and uninhibited reproduction.
- Full Text: false
- Date Issued: 2002
- Authors: Glover, Graham B
- Date: 2002
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70841 , vital:29749 , https://heinonline.org/HOL/P?h=hein.journals/soaf119&i=101
- Description: In our advanced technological age the law of copyright faces tremendous challenges. In particular, the Internet has created serious problems for those who wish to enforce their proprietary rights, and to protect their textual (and other) creations from unregulated and uninhibited reproduction.
- Full Text: false
- Date Issued: 2002
Methinks he doth protest too much - recovering unjustified payments made under duress and protest
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70744 , vital:29724 , https://hdl.handle.net/10520/EJC55014
- Description: The private law doctrine of duress, although mostly discussed in the context of the law of contract in South Africa, is also relevant in the law of unjustified enrichment. Where an unjustified payment or transfer of some kind has been induced by duress, in a situation where there is no contractual relationship between the parties, the aggrieved party will be entitled to reclaim the payment or transfer. The principles of enrichment law will apply in such cases.
- Full Text: false
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70744 , vital:29724 , https://hdl.handle.net/10520/EJC55014
- Description: The private law doctrine of duress, although mostly discussed in the context of the law of contract in South Africa, is also relevant in the law of unjustified enrichment. Where an unjustified payment or transfer of some kind has been induced by duress, in a situation where there is no contractual relationship between the parties, the aggrieved party will be entitled to reclaim the payment or transfer. The principles of enrichment law will apply in such cases.
- Full Text: false
- Date Issued: 2006
Metus in the Roman law of obligations
- Authors: Glover, Graham B
- Date: 2004
- Language: English
- Type: Article
- Identifier: vital:6336 , http://hdl.handle.net/10962/d1012401
- Description: [From the introduction]: An entire title of book four of Justinian’s Digest is devoted to explaining the doctrine of metus as it was understood at the time of the codification of the Roman law. That title begins with the following statement: "The praetor says: 'I will not hold valid what has been done under duress.'" This unequivocal statement of legal principle illustrates, in very general terms, that by the time the Corpus Iuris Civilis was compiled, the Romans disapproved of persons using threats to inspire the creation of legal obligations, and that it was possible to avoid the legal consequences of an obligation because it was induced by metus. The Corpus Iuris Civilis remains our most valuable source of authority with regard to how duress cases were treated in Roman times. But the relevant textual sources pose some fundamental difficulties. Far from containing a coherent, structured analysis of the law, the relevant passages in fact amount to a jigsaw-puzzle of uncoordinated, haphazard, and occasionally contradictory legal propositions
- Full Text:
- Date Issued: 2004
- Authors: Glover, Graham B
- Date: 2004
- Language: English
- Type: Article
- Identifier: vital:6336 , http://hdl.handle.net/10962/d1012401
- Description: [From the introduction]: An entire title of book four of Justinian’s Digest is devoted to explaining the doctrine of metus as it was understood at the time of the codification of the Roman law. That title begins with the following statement: "The praetor says: 'I will not hold valid what has been done under duress.'" This unequivocal statement of legal principle illustrates, in very general terms, that by the time the Corpus Iuris Civilis was compiled, the Romans disapproved of persons using threats to inspire the creation of legal obligations, and that it was possible to avoid the legal consequences of an obligation because it was induced by metus. The Corpus Iuris Civilis remains our most valuable source of authority with regard to how duress cases were treated in Roman times. But the relevant textual sources pose some fundamental difficulties. Far from containing a coherent, structured analysis of the law, the relevant passages in fact amount to a jigsaw-puzzle of uncoordinated, haphazard, and occasionally contradictory legal propositions
- Full Text:
- Date Issued: 2004
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
Reflections on the sine causa requirements and the condictiones in South African law
- Authors: Glover, Graham B
- Date: 2009
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70668 , vital:29687 , https://hdl.handle.net/10520/EJC54716
- Description: The condictiones present interesting and difficult challenges of classification for the modern South African jurist. Their casuistic development has made them difficult to work with, and for a long time it was argued that a single general enrichment action should take their place. But the Supreme Court of Appeal in McCarthy Retail Ltd v Shortdistance Carriers CC 2001 3 SA 482 (SCA) chose not to follow this path, and instead preferred the idea that a general enrichment action should be subsidiary to the traditional actions. This has breathed new life into debates on the future of the condictiones. This article first examines the current range of application of the condictiones. It then proceeds to show how the courts in the first decade of the 21st century seem to have eschewed the technicalities inherent in pleading the condictiones, and have preferred rather to resolve cases by applying the general requirements of enrichment liability, in contrast to the injunction in McCarthy. The difficulty with this approach is the lack of substance that is given to the sine causa requirement. The article proceeds to examine the various theories about how we in South Africa should understand and give content to the sine causa requirement. This provides a springboard for considering the possible futures of the condictiones. Broadly, it seems that two options are possible: either to collapse the condictiones into one action to deal with cases of enrichment by transfer; or largely to retain the status quo. The most recent decisions of the Supreme Court of Appeal indicate that the latter, more conservative option is likely to be chosen in the short-term. If this approach is to be adopted, it will require a further review of how each of the constituent condictiones fulfils a particular function. A revisionist view of the condictio indebiti is postulated by way of example.
- Full Text: false
- Date Issued: 2009
- Authors: Glover, Graham B
- Date: 2009
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70668 , vital:29687 , https://hdl.handle.net/10520/EJC54716
- Description: The condictiones present interesting and difficult challenges of classification for the modern South African jurist. Their casuistic development has made them difficult to work with, and for a long time it was argued that a single general enrichment action should take their place. But the Supreme Court of Appeal in McCarthy Retail Ltd v Shortdistance Carriers CC 2001 3 SA 482 (SCA) chose not to follow this path, and instead preferred the idea that a general enrichment action should be subsidiary to the traditional actions. This has breathed new life into debates on the future of the condictiones. This article first examines the current range of application of the condictiones. It then proceeds to show how the courts in the first decade of the 21st century seem to have eschewed the technicalities inherent in pleading the condictiones, and have preferred rather to resolve cases by applying the general requirements of enrichment liability, in contrast to the injunction in McCarthy. The difficulty with this approach is the lack of substance that is given to the sine causa requirement. The article proceeds to examine the various theories about how we in South Africa should understand and give content to the sine causa requirement. This provides a springboard for considering the possible futures of the condictiones. Broadly, it seems that two options are possible: either to collapse the condictiones into one action to deal with cases of enrichment by transfer; or largely to retain the status quo. The most recent decisions of the Supreme Court of Appeal indicate that the latter, more conservative option is likely to be chosen in the short-term. If this approach is to be adopted, it will require a further review of how each of the constituent condictiones fulfils a particular function. A revisionist view of the condictio indebiti is postulated by way of example.
- Full Text: false
- Date Issued: 2009
Remedies, repentance and the doctrine of election in South African contract law
- Authors: Glover, Graham B
- Date: 2019
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186712 , vital:44527 , xlink:href="https://hdl.handle.net/10520/EJC-1a756528b2"
- Description: One of the main features of South Africa’s law on remedies for breach of contract is the doctrine of election. In cases where a major breach has occurred, or a cancellation clause entitles the aggrieved party to seek cancellation, the aggrieved party has an election either to cancel or to claim performance, and will be held to that binary choice. In Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality the Supreme Court of Appeal recently recognised an exception to the usual election rule, specifically in cases involving repudiation. In terms of the ‘repentance principle’, a party who experiences repudiation may initially seek performance in the hope that the breaching party will repent of their breach; but if it does not, the aggrieved party may then change its mind and seek cancellation. This essay considers the history of the doctrine of election and the path to the recognition of its qualifier, the repentance principle. Thereafter, the essay poses the question whether it remains desirable for the strict doctrine of election to continue to apply in South African law, bearing in mind that a strict election can have an unduly constraining effect on the interests of the non-breaching (or ‘innocent’) party. This analysis is informed by the broader policy considerations behind the recognition of the repentance principle; the fact that other analogous exceptions to the election rule do exist; and the fact that other jurisdictions do not adopt such a strict approach to the aggrieved party’s choice of remedy.
- Full Text:
- Date Issued: 2019
- Authors: Glover, Graham B
- Date: 2019
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186712 , vital:44527 , xlink:href="https://hdl.handle.net/10520/EJC-1a756528b2"
- Description: One of the main features of South Africa’s law on remedies for breach of contract is the doctrine of election. In cases where a major breach has occurred, or a cancellation clause entitles the aggrieved party to seek cancellation, the aggrieved party has an election either to cancel or to claim performance, and will be held to that binary choice. In Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality the Supreme Court of Appeal recently recognised an exception to the usual election rule, specifically in cases involving repudiation. In terms of the ‘repentance principle’, a party who experiences repudiation may initially seek performance in the hope that the breaching party will repent of their breach; but if it does not, the aggrieved party may then change its mind and seek cancellation. This essay considers the history of the doctrine of election and the path to the recognition of its qualifier, the repentance principle. Thereafter, the essay poses the question whether it remains desirable for the strict doctrine of election to continue to apply in South African law, bearing in mind that a strict election can have an unduly constraining effect on the interests of the non-breaching (or ‘innocent’) party. This analysis is informed by the broader policy considerations behind the recognition of the repentance principle; the fact that other analogous exceptions to the election rule do exist; and the fact that other jurisdictions do not adopt such a strict approach to the aggrieved party’s choice of remedy.
- Full Text:
- Date Issued: 2019
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
The Condictio Indebiti and Unjust Factors (1)
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186869 , vital:44541 , xlink:href="file:///C:/Users/User/Downloads/69THRHR419%20(2).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
- Full Text:
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186869 , vital:44541 , xlink:href="file:///C:/Users/User/Downloads/69THRHR419%20(2).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
- Full Text:
- Date Issued: 2006
The Condictio Indebiti and Unjust Factors (2)
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186880 , vital:44544 , xlink:href="///C:/Users/User/Downloads/69THRHR561%20(1).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
- Full Text:
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Subjects: To be catalogued
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/186880 , vital:44544 , xlink:href="///C:/Users/User/Downloads/69THRHR561%20(1).pdf"
- Description: Since the Supreme Court of Appeal has continued to avoid taking the step of recognising a general enrichment action,' the traditional enrichment actions of the common law remain fundamentally important to the operation of the law of unjustified enrichment in South Africa. Most significant of these is the condictio indebiti, which is probably the most well-known and liberally utilised enrichment action in South African law.2 In this article, the nature and scope of this condictio will be examined, and it will be shown that it has grown beyond its notionally traditional role of reversing payments or transfers made unjustifiably by mistake, to include causes of action in duress and protest. The implications of this for the condictio, as well as for the foundations of our enrichment law will then be examined, with reference to the two leading schools of enrichment law: the civilian school, typified by German law, and the common-law school, typified by English law.
- Full Text:
- Date Issued: 2006
The end of the road for the Roman rule of risk in sale?
- Authors: Glover, Graham B
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70550 , vital:29674 , https://hdl.handle.net/10520/EJC127052
- Description: The venerable Roman rule of risk in the law of sale – “perfecta emptione periculum est emptoris” – has always been a rule that has courted controversy, be it in the South African legal system or others where it has operated. In an excellent piece of analytical historical scholarship titled “Perfecta emptione periculum est emptoris: Why all the fuss?” Van den Bergh argued in 2008 that, despite all the ink that has been spent on critiquing the rule in the thousands of years that have passed since its genesis, the rule has endured, and there are indeed reasons (partly practical and partly policy-related) that have justified its resilience. In this article I do not wish to dispute her carefully researched historiographical conclusions. Rather, I wish to suggest that circumstances may now have changed. The agent of this change is, not unexpectedly, the Consumer Protection Act 68 of 2008 (the act). The act, simply stated, changes the rule of risk that applies to consumer sale contracts. The way in which the legislation does so will be discussed fully in part 4 of the article below. But what does this legislative shift mean for the common-law rule, bearing in mind that not all contracts are contracts that fall under the act? In the remainder of the article I shall discuss whether the time has come for the common-law rule to take its bow, particularly in the light of the criticism it has always faced, the clear and consistent statements of policy that emerge from the act and comparative modern sources about where risk should fall, and the interests of fairness and uniformity of treatment of the parties to a sale contract.
- Full Text: false
- Date Issued: 2012
- Authors: Glover, Graham B
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70550 , vital:29674 , https://hdl.handle.net/10520/EJC127052
- Description: The venerable Roman rule of risk in the law of sale – “perfecta emptione periculum est emptoris” – has always been a rule that has courted controversy, be it in the South African legal system or others where it has operated. In an excellent piece of analytical historical scholarship titled “Perfecta emptione periculum est emptoris: Why all the fuss?” Van den Bergh argued in 2008 that, despite all the ink that has been spent on critiquing the rule in the thousands of years that have passed since its genesis, the rule has endured, and there are indeed reasons (partly practical and partly policy-related) that have justified its resilience. In this article I do not wish to dispute her carefully researched historiographical conclusions. Rather, I wish to suggest that circumstances may now have changed. The agent of this change is, not unexpectedly, the Consumer Protection Act 68 of 2008 (the act). The act, simply stated, changes the rule of risk that applies to consumer sale contracts. The way in which the legislation does so will be discussed fully in part 4 of the article below. But what does this legislative shift mean for the common-law rule, bearing in mind that not all contracts are contracts that fall under the act? In the remainder of the article I shall discuss whether the time has come for the common-law rule to take its bow, particularly in the light of the criticism it has always faced, the clear and consistent statements of policy that emerge from the act and comparative modern sources about where risk should fall, and the interests of fairness and uniformity of treatment of the parties to a sale contract.
- Full Text: false
- Date Issued: 2012
The inducement of a contract by duress of goods - a reappraisal
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70734 , vital:29722 , https://hdl.handle.net/10520/EJC54192
- Full Text: false
- Date Issued: 2006
- Authors: Glover, Graham B
- Date: 2006
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/70734 , vital:29722 , https://hdl.handle.net/10520/EJC54192
- Full Text: false
- Date Issued: 2006