List of Titles

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

Tyrannical masters no more?: Promissory insurance warranties after Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co Ltd

- Glover, Graham B

Authors: Glover, Graham B
Date: 2019
Subjects: To be catalogued
Language: English
Type: text , article
Identifier: http://hdl.handle.net/10962/186701 , vital:44526 , xlink:href="https://hdl.handle.net/10520/EJC-1b0c21b6eb"
Description: Federal Insurance Co Ltd for the law on promissory insurance warranties are considered. The article begins with an overview of the traditional position, which has been that such warranties are to be strictly interpreted and enforced, no matter the harshness of the result. Thereafter, the article discusses the contrasting decisions in Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co Ltd in the Western Cape High Court and the SCA. Wallis JA suggested on appeal that the strict traditional approach to promissory warranties was no longer appropriate, but without having to decide the point. The article next considers the implications of an obiter dictum of the SCA, in a matter relating to a court exercising admiralty jurisdiction, on insurance law in general. Thereafter, the article proposes that Wallis JA’s comments indicate an important change to our law on promissory warranties, specifically in relation to the need for there to be a causal link between the insured’s breach of the warranty and the loss suffered, before an insurer may exercise the power to repudiate the contract. Although others have made the causal-link argument before, this article tries to explain and situate this development in two doctrinal contexts: the modern law on contractual interpretation; and the doctrine of public policy. A supplementary argument relates to the drawing together of the law on promissory warranties with the rules relating to cancellation for major breach, in cases where an insurer pursues that remedy.
Full Text:
Date Issued: 2019

Quick View

University protests, specific performance, and the public/private-law divide

- Glover, Graham B

Authors: Glover, Graham B
Date: 2017
Language: English
Type: text , article
Identifier: http://hdl.handle.net/10962/70637 , vital:29683 , https://hdl.handle.net/10520/EJC-8ff6ee9c3
Description: The upheaval experienced by most of South Africa’s tertiary institutions in 2015 and 2016 as a result of the #feesmustfall protests made national headlines, and was at certain periods the most significant social and political issue in the nation. Many tertiary institutions looked to the law to try to manage the unfolding events by obtaining the assistance of the South African Police Service (‘SAPS’) to try to restore order in the interests of the academic project. They did so by seeking urgent prohibitory interdicts to establish in as precise terms as possible where the boundaries of lawful and unlawful conduct lay.
Full Text: false
Date Issued: 2017

Quick View

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)

- Glover, Graham B

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

Quick View

Juta and Co Ltd and the South African Law Journal: a milestone

- Glover, Graham B

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

Quick View

The end of the road for the Roman rule of risk in sale?

- Glover, Graham B

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

Quick View

In service to the law: Alastair James Kerr SC

- Glover, Graham B

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

Quick View

Reflections on the sine causa requirements and the condictiones in South African law

- Glover, Graham B

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

Quick View

Jantjie v The Minister of Labour Unreported Eastern Cape Division Case No 2193/2006

- Glover, Graham B, Beard, M

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

Quick View

Lazarus in the Constitutional Court: an exhumation of the exceptio doli generalis

- Glover, Graham B

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

Quick View

Developing a test for economic duress in the South African law of contract: a comparative perspective

- Glover, Graham B

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

Quick View

The Condictio Indebiti and Unjust Factors (1)

- Glover, Graham B

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

Quick View

The Condictio Indebiti and Unjust Factors (2)

- Glover, Graham B

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

Quick View

The sharing of pension benefits on divorce: An inevitable affair?

- Glover, Graham B

Authors: Glover, Graham B
Date: 2006
Subjects: To be catalogued
Language: English
Type: text , article
Identifier: http://hdl.handle.net/10962/186723 , vital:44528 , xlink:href="Print only"
Description: One of the invariable consequences of divorce is that the patrimonial assets of the marriage have to be divided up between the two parties. At a primary level, the way in which this will occur will be determined by a number of factors: the matrimonial property regime under which the parties had been married; the relevant provisions of the Divorce Act (Act 70 of 1979) that deal with the question of the patrimonial consequences of divorce; as well as any agreement on this often ticklish matter that can be reached by the parties prior to the divorce action. Approximately fourteen years ago, section 7 of the Divorce Act was amended to allow a divorced spouse to share in the pension interests of the other spouse. There is some polemic, though, as to the interpretation of this provision: in particular, it is not clear whether this pension benefit will automatically form part of the assets that are susceptible to division, or whether a prayer to this effect must specifically be sought. After a consideration of the current legal position regarding the sharing of pension benefits generally, this note will examine this specific debate.
Full Text:
Date Issued: 2006

Quick View

The test for duress in the South African law of contract

- Glover, Graham B

Authors: Glover, Graham B
Date: 2006
Language: English
Type: text , article
Identifier: http://hdl.handle.net/10962/70756 , vital:29726 , https://hdl.handle.net/10520/EJC53682
Description: Although it is well-known that a contract induced by duress is voidable at the instance of an aggrieved party, little analysis of this cause of action has been undertaken in South Africa. The test for duress developed by Wessels, and adopted by the courts in Broodryk v Smuts NO 1942 TPD 47, has exercised a vice-grip over this area of contract law. In this article, all five elements of the traditional South African test are subjected to critical examination, and their deficiencies are exposed and discussed. It is argued that the test is neither logically nor conceptually satisfactory, and has hampered development of this area of law. Trends in other jurisdictions, belonging to both the civil-law and the common-law families, are analysed and compared to South African law. On this basis a more modern and coherent test is proposed. This test would be two-pronged, and involve an assessment, in turn, of the lawfulness of the threat made and of whether the party who in fact succumbed to an unlawful threat and entered into the contract was legally justified in doing so.
Full Text:
Date Issued: 2006

Quick View

Metus in the Roman law of obligations

- Glover, Graham B

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

Showing items 1 - 20 of 24