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.
The role of good faith, equity and fairness in the South African law of contract : the influence of the common law and the Constitution : notes
The role of abstract values such as good faith and fairness in South African contract law needs to be considered against the wider background of the South African legal system and its historical development. South African private law is essentially uncodified and we must remember that, at the heart of this uncodified system lies seventeenth-century Roman Dutch law, which was the law of Holland at the time when the Cape of Good Hope was occupied, in 1652, by a Dutch commercial company, the Dutch East India Company. In 1806 the Cape was taken over by the British. The first Charter of Justice promulgated by the new colonial power in 1826 created a new Supreme Court, headed by a Chief Justice and two other judges who were to be appointed from the bars of the United Kingdom. The charter further provided that the substantive law to be applied by the court was the existing legal system - ie Roman Dutch Law - but that the judges could formulate their own law of procedure. Because the newly appointed judges were trained and formerly practiced in a common-law system, they superimposed the procedure known to them as well as the principle of stare decisis on the basic system of Roman Dutch law. Moreover, since these first judges at the Cape were more comfortable with the English language, they often resorted to English law when difficulties arose. The other geographical areas that eventually formed part of what is now the Republic of South Africa, followed closely in the footsteps of the Cape Colony. And so it came about that we joined the small group of jurisdictions - which includes Scotland, Louisiana and Sri Lanka - that are classified as mixed legal systems.
A call for a nuanced constitutional jurisprudence : ubuntu, dignity, and reconciliation : post-apartheid fragments : law, politics and critique
What I hope to do in this article is first try to reconfigure the relationship between dignity and ubuntu, and then show how we might rethink this relationship in some crucial court cases in South Africa. Dignity famously comes from Immanuel Kant's distinction between who and how we are as sensible beings in the world, subjected to determination by the causal laws of nature in our lives as sensual creatures. Yet in our lives as creatures capable of making ourselves, subject to the law of the categorical imperative, we can also make ourselves legislators of the moral law and moral right. We are free and as free we are of infinite worth. The categorical imperative in Kant is a demand put on us that could be succinctly summarised : who I am only has a claim to dignity because I comply my life with who I should be, and the categorical imperative is a practical imperative that commands the 'should be'. Since it is only in the realm of morality that we find our freedom, there is no contradiction in Kant between subjecting ourselves to that command and our freedom.