Browsing by Author "Fagan, Anton"

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    Blind faith: a response to Professors Neethling and Potgieter
    (2007) Fagan, Anton
    In a recent note, ‘Wrongfulness and negligence in the law of delict: A Babylonian confusion?’ (2007) 70 THRHR 120, Professors J Neethling and J M Potgieter raise several objections to the analysis of wrongfulness and negligence that Brand JA presented in his inaugural lecture at the University of the Free State and which he adopted in his judgment in the case of Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA).
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    Dignity and the Political Right to Freedom
    (2008) Fagan, Anton
    In the case of Ferreira v Levin NO, Justice Laurie Ackermann seemed to make the assumption that the political right to freedom is best explained, and its content therefore best determined, by the fact that all human beings have dignity. That is, he seemed to assume that dignity and the fact that human beings necessarily possess it provide the key to an understanding of the political right to freedom. This is, I think, an assumption made by many. The aim of this essay is to question its validity.
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    The law affecting comparative advertising in South Africa
    (2003) Kadelbach, Philipp; Fagan, Anton
    Preliminary research showed that: firstly, South Africa's policy on comparative advertising is restrictive, and, secondly, that the country has a market structure where such advertising has the potential for a very positive effect on the market. Realising the potential role advertising could play in South Africa, the concept was born; not only to present South Africa's policy on the issue, but also to embark on an abstract analysis of the advertising regulation structure. The analysis provides the opportunity to present reasons for the present restrictive policy, and provides an essential background to pinpointing why policy changes might be necessary, and the changes required to reach a more satisfactory conclusion, based on literature and case reports available to me as at July 2002.
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    Liability for animals a comparative study: south African and German law
    (2000) Muller, Stephanie; Fagan, Anton
    The field of' Liability for Animals' appears at first sight to be only of minor interest to academics. This, however, is a false syllogism as incidents involving animals are frequent, and courts constantly deal with claims regarding damages for injuries caused by animals. Indeed, in many countries the law of animals forms special subject. With respect to English law for instance Lord Simonds, using the metaphor of a train, remarked that the Common Law of torts has developed historically in separate compartments and that beasts have travelled in a compartment of their own. 1 However, it is also true, that within this "tort-train" a few animals lurking in the other compartments marked 'Negligence or Nuisance' may also be found.
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    On the extinctive prescription of personal injury claims in South Africa
    (2024) Le Roith, Caitlin; Fagan, Anton
    The law of extinctive prescription regulates the impact that the passage of time has on claims, or ‘debts', to use the language of the South African Prescription Act 68 of 1969. In broad terms, if a person fails to institute legal proceedings for the enforcement of their claim before the lapse of the period that applies to that claim, which could be between three and thirty years, extinctive prescription operates to thwart that process. In South African law, it does so by empowering the person against whom the claim is brought to, by way of special plea, effectively relieve the court of its adjudicative duties in respect of that claim and, ultimately, release themselves from liability, terminating any obligation that person once had to perform. The person seeking to enforce their claim, then, is essentially deprived of their power to do so. Despite its long history and its reputation as a legal regime of enormous practical importance, laws of prescription are generally considered to be theoretically and intellectually unrewarding areas of statute law. As such, it does not receive nearly as much attention from our legal scholars as some of the other areas of law. In the South African context, this is particularly surprising given the frequency with which our courts engage with pleas of prescription, which are often the source of protracted litigation, in cases that make their way to our highest courts. A significant portion of these cases involved claims that arose from personal injury, which are subjected to the shortest prescription period of three years. In addition to a three-year prescription period, the prevailing interpretation of section 12(3) by our courts means that the prescription period will begin to run before the person with the right to claim is even aware of it. In this dissertation, I take a closer look at the rules governing the extinctive prescription of personal injury claims in South African law and the justifications for the manner in which these claims are regulated.
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    Reconsidering Carmichele
    (2008) Fagan, Anton
    The aim of this note is to reconsider the Constitutional Court's judgment in the case of Carmichele v Minister of Safety and Security & another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (hereafter Carmichele (CC)). The note focuses on the Constitutional Court's judgment, not in isolation, but rather in the context of the Supreme Court of Appeal judgments that preceded and succeeded it (Carmichele v Minister of Safety and Security & another 2001 (1) SA 489 (SCA) (the first judgment of the Supreme Court of Appeal, or Carmichele 2001 (SCA)) and Minister of Safety and Security & another v Carmichele 2004 (3) SA 305 (SCA) (its second judgment, or Carmichele 2004 (SCA)).
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    Risk as injury: an alternative interpretation of the South African law of defamation
    (2019) Jurgens, Francois; Fagan, Anton
    This thesis presents an alternative interpretation of the rules constituting the South African law of defamation. Defamation is typically understood to be a wrong in which the defendant has caused the plaintiff reputational harm. It is argued that it is more justifiable to view the wrong as a wrong of having increased the risk of reputational harm. Defamation law is an instance of state power and it is argued that this alternative interpretation better justifies that exercise of power. In making this argument, the fundamental features of the law are analysed, including what reputation is and why we value it, why it is problematic to view the wrong as being about the causation of reputational harm, and why liability for risk is problematic in the case of negligence but less problematic in the case of defamation. As the risk interpretation is meant to be an alternative interpretation of the existing rules, it is also shown that this interpretation is compatible with those rules, such as the presumptions and defences, and the standard remedial response of damages. While this thesis argues for an alternative interpretation of the rules, it is hoped that this analysis of those rules will shed new light on the law even if the risk interpretation is not accepted wholesale.
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    Section 39(2) and political integrity
    (Juta Law, 2004) Fagan, Anton
    his essay concerns the following question: can s 39(2) of the South African Constitution be justified by Ronald Dworkin's notion of 'political integrity'? To understand this question one must know what s 39(2) of the South African Constitution says and what Dworkin's notion of political integrity entails. Section 39(2) holds that 'when developing the common law ... every court ... must promote the spirit, purport and objects of the Bill of Rights'. Dworkin's notion of political integrity, most fully developed in his Law's Empire, can be summarised in four points. First, political integrity is a property that a community's legal rules possess to a smaller or larger degree. Legal rules must here be understood as legal rules still in force: thus precedents that have not been overruled and statutes that have not been repealed. Secondly, a community's legal rules possess political integrity in so far as they are 'consistent in principle'. The more consistent in principle the rules are, the more political integrity they possess, and the converse. Thirdly, a community's rules are consistent in principle in so far as it is possible to justify them by principles that form a consistent set. As Dworkin puts it: a community lacks integrity if 'it must endorse principles to justify part of what it has done that it must reject to justify the rest'. Fourthly, according to Dworkin, political integrity (in the sense explained) is a political virtue besides justice and fairness. In other words, it matters that a community's legal rules are just and fair (fair in the sense that they were produced by procedures that distribute power in the right way). But that is not all that matters. It also matters that the rules possess political integrity, that the rules are consistent in principle.
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    The authority of indeterminate law
    (2020) Du Plessis, Quentin; Fagan, Anton
    In this dissertation I identify various sources of legal indeterminacy and scrutinize the functions that indeterminacy can play in law. In particular, I focus on the authority of indeterminate law: how it can be that laws of which it is not clear which obligations they impose, nonetheless impose obligations. I argue that there are more sources of legal indeterminacy than is commonly assumed in the literature, and that the role that context plays in the occurrence, functionality and authority of indeterminate legal norms has been largely overlooked. I argue further that indeterminate legal norms can be authoritatively binding just so long as we accept that the nature of the obligation imposed by the norm changes according to whether the legal norm generates a hard case as applied to a particular context.
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    The confusion of K
    (2009) Fagan, Anton
    The question in K was whether the Minister of Safety and Security was vicariously liable for rapes committed upon Ms K by three policemen in his employ. The Supreme Court of Appeal decided that he was not. The Constitutional Court decided that he was and that it was entitled to set aside the Supreme Court of Appeal's contrary decision.
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    The law of defamation - a comparison between the South African, the Canadian and the German legal systems
    (2000) Wegmeyer, Sandra Yuki; Fagan, Anton
    "The law of defamation aims at the protection of a person's reputation." This definition was found in the Canadian, the South African as well as in the German law. However, the question that arises is whether the law of defamation only protects the reputation and the good name of a person. Defamation can affect an individual's personality with all its aspects such as reputation, dignity or privacy. One can think of a broad range of possible violations. Due to the broad concept of the law of defamation, this article can only focus on the civil law of defamation and will analyse some specific legal problems that arise in all of the aforementioned legal systems. Therefore, the thesis begins with an analysis of the ambit of the law of defamation in the three different legal systems and examines the similarities and the differences. The second chapter deals with the problem of the title to sue in a defamation action. Not only living persons can be the target of defamatory words and conduct but also deceased person as well as legal entities. What parties have a right to sue for compensation in the aforementioned legal systems will be analysed. The third chapter illustrates under which circumstances a person will be held liable in a defamation action. Here, some major differences between the three legal systems are presented. In the fourth chapter the criteria of defamatory words and conduct, which are required in the Canadian, the South African and the German law, are examined and it is demonstrated how the different legal systems deal with the difficult problem of defining a defamatory action. After examining the different criteria for a successful action of defamation, the article goes on to compare the different defences that a defendant can raise under the three different legal systems. Eventually, the issue of compensation in an action for defamation arises. Therefore, the last chapter analyses what kind of damages the plaintiff can claim in an action for defamation and makes clear that major differences exist between the three legal systems.
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    The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development
    (2010) Fagan, Anton
    The South African Constitutional Court endorses the following proposition: According to the Constitution, the spirit, purport and objects of the Bill of Rights may be reasons for developing the common law. The court has not expressly endorsed this proposition. But it is entailed by a claim that the court has made repeatedly, namely that the Constitution obliges every court to develop the common law whenever it does not accord with the spirit, purport and objects of the Bill of Rights. As the court put it in the Carmichele case: ‘[W]here the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.’1 Notwithstanding its endorsement by the Constitutional Court, the proposition is false. It is not so that the Constitution regards the spirit, purport and objects of the Bill of Rights as possible reasons for developing the common law. As possible reasons for developing the common law, the Constitution recognises only the following: (1) the rights in the Bill of Rights; (2) justice; and (3) the rules of the common law itself.