The Current Debate on the Reversal of the Onus of Proof When Enforcing Restraint-of-Trade Agreements: Much Ado About Nothing?
Ever since South Africa became a constitutional state in 1994, a recurrent debate has been conducted in the jurisprudence and academic writing on whether the onus of proof with regard to the reasonableness of a restraint of trade should be shifted back to the party who wishes to enforce the restraint. This debate has been prompted by the express protection of the principle of freedom of trade as a constitutional value and has to a large extent been reduced to a straight shoot-out between the two public interests. This reduction is a continuation of the pre-1994 jurisprudence. This debate is examined critically.
Ensuring contractual fairness in consumer contracts after Barkhuizen v Napier 2007 5 SA 323 (CC) - part 2
Barkhuizen v Napier 2007 5 SA 323 (CC) has important implications for insurance law, contract law in general, and an understanding of the interface between private common law and the Bill of Rights. In this matter an insurance policy determined that a claim against the insurer would lapse if the insured failed to serve summons on the insurer within 90 days of being notified of the insurer's repudiation of the claim. The insured argued that this provision conflicted with the constitutional right of access to the courts set out in section 34 of the Bill of Rights 
The majority of the Constitutional Court, per Ngcobo J, considered the application of the Constitution of the Republic of South Africa, 1996 in private relationships. He eschewed direct application of the Bill of Rights to the contractual provision but preferred to apply it indirectly via the contract law concept of public policy. He considered the meaning of this form of public policy in the light of the Constitution, determined the manner in which the section 34 right as an expression of public policy applied to this contract and related this to broader contractual fairness. Part I of this article, which appeared in 2008 (3) Stellenbosch Law Review, focused on these aspects.
CRIMINAL PROSECUTION FOR PRENATAL INJURY
A case of maternal assault resulted in fetomaternal hemorrhage and subsequent neonatal death, leading to a verdict of criminally negligent homicide against the assailant.