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- ItemOpen AccessA consideration of certain aspects of standard form contracts and exemption clauses [Microfiche] : standard form contracts, the credit receiver's title to sue ex delicto in instalment sale transactions, the nature of a contract and exemption clauses, the burden proof and exemption clauses(1981) Van Dorsten, Johan Lourens; De Wet, Johannes Christiaan; Gibson, JohnThis dissertation, which is divided into four independent parts, deals with two aspects of standard form contracts: the general nature of standard form contracts and the credit receiver's title to sue ex delicto; and two aspects of exemption clauses: the nature of a contract and exemption clauses and the rules of incidence applicable to exemption clauses. In the first part standard form contracts in general are discussed. A brief historical background shows that standard terms and standard form contracts have a long history, but it is only in the last century that they have become predominant. Under the nature and categories of standard form contracts only the general characteristics are discussed; no definition is formulated because the widespread usage would necessitate too cumbersome a definition. Standard form contracts are generally documents in common form containing comprehensive pre-determined provisions designed to regulate all transactions of a particular type. Two classes of standard form contracts are distinguished: model contract forms (or agreed documents), which are specimen forms, incorporating settled practices, used at the discretion of the parties; and adhesion contracts which contain unilaterally fixed terms and are presented on a take-it-or-leave-it basis. Adhesion contracts arise from statutory intervention, regulations of associations or where individuals or business concerns have sufficiently strong bargaining powers. A further classification based on the situation in which standard form contracts operate distinguishes between horizontal or commercial standard contracts; vertical or commercial consumer standard contracts; end-consumer standard contracts; and personal service standard contracts. This classification is useful in that it provides a framework within which to deal with standard form contracts and to determine whether intervention is justified. The advantages of standardisation include uniformity; a saving in time and expense; costing and planning is facilitated; the promotion of economic stability; and legal certainty. The disadvantages include the shifting of the legal and economic equilibrium to the economically stronger party's advantage, the one-sided control of the contractual terms, the imposition of oppressive contracts, the limitation of the profaners' liability and the curtailment of the adhering party's rights and remedies. In the last section, the proposals for reform, various forms of administrative control and judicial control are briefly examined. The drawbacks of administrative control include the cumbersomeness of the administrative machinery which limits the effectiveness of the control, and the fact that general administrative powers are not always u'sed. to deal with a specific problem. The advantages of administrative control are that general measures can be imposed by administrative bodies acting mero motu, if necessary, and, if efficiently run, the process may be speedier because the procedures are generally more flexible. It is submitted that the Israeli and Swedish methods of providing for the submission of standard form contracts for approval prior to general use should be adopted. The disadvantages of judicial control are that until a body of case law develops uncertainty may arise, and many judges are reluctant to become involved in the morality of contracts. The advantage of judicial control is that general powers provide flexible remedies applicable to a wide range of problems. It is submitted that the English requirement that contractual provisions be reasonable to be enforceable be adopted. In conclusion it is recommended that administrative and judicial control be combined: a representative administrative body to provide prior approval and the courts to be given general powers to refuse to enforce unreasonable provisions. The second part examines the credit receiver's title to sue ex delicto in instalment sale transactions. This important academic and practical problem, which was not clarified in the new Credit Agreements Act, is concerned with whether a non-owner who buys on credit has sufficient interest to sue for patrimonial damage to the goods. The approach adopted here is to ascertain who has title to sue under the Lex Aguila; the legal status of the credit receiver/purchaser; and the various solutions adopted by the courts. Title to sue ex delicto is granted to owners and to a limited number of non-owners; of these only the bona fide possessor is ----,=---- entitled to a claim for the full measure of the damage, the others are limited to their id quod interest. Parties without the title to sue must obtain cession of action from the owner. The credit receiver/purchaser possesses the - goods with the intention of becoming owner; he enjoys all the essential rights and duties of ownership; he bears the risk of damage or destruction whilst remaining liable for the full purchase price; and is obliged to compensate the owner for damage to the goods. The case law is divided as to the credit receiver/purchaser's title to sue and where he has been allowed an action in his own right the juridical basis has varied. Actions have been allowed on the following grounds: (a) the contract itself which binds the purchaser to pay the full price after the risk has passed; (b) the contractual assumption of liability for loss; (c) the bona fide possessor analogy; and (d) as possessor being allowed to sue for the id quod interest which amounts to the risk borne, i.e. for the full amount of the damage. It is now clearly established in our law that the credit receiver/purchaser has title to sue because the second and the last ground has received the sanction of the Appellate Division. A brief comparative study shows that it is a widely accepted principle of law that possession gives title to sue. It is recommended that possible comprehensive statutory remedies dealing with remaining problems be examined. The third part examines the nature of a contract and exemption clauses: the relevance of this is that a clear understanding of each will assist in determining the effect of exemption clauses on contractual rights and duties: the exact content of the contractual obligation can then be established. A contract is an obligation-creating agreement which gives rise to various rights and duties: these may be classified into primary and secondary rights and duties to facilitate an examination of the nature and effect of individual provisions. The primary duty is the duty to perform in the agreed manner. The corresponding primary right entitles the creditor to demand performance and may be enforced by the primary remedy, a claim for performance - specific performance or damages as surrogate for performance. The primary rights and duties are binding and effective ab initio. The secondary rights entitle the creditor or injured party to the remedies of rescission or consequential damages: the corresponding secondary duty binds the debtor to make reparation for foreseeable damage caused by the breach. The secondary rights and duties arise ab initio but may be enforced only after a breach occurs. Both primary and secondary rights and duties may arise expressly or by operation of law. Exemption clauses restrict or exclude rights, liabilities, and remedies which, but for the exemption clauses, would form part of the relevant contracts. They have both a procedural and a substantive effect. A brief historical survey shows that in the Roman Law exemption clauses were either formal substantive stipulations or informal pacta adiecta which provided procedural defences. This substantive/procedural distinction was blurred in the Roman-Dutch law where added agreements have a substantive effect. Exemption clauses have a procedural effect if they limit or exclude adjectival or procedural rights of enforcement. The view that they operate as shields to damages by qualifying or excluding existing liabilities under a contract cannot be supported. Exemption clauses have a substantive effect because they are merely provisions which reflect the actual or presumed intentions of the parties and the rights and duties to which they pertain do not and are not intended to come into existence. Exemption clauses may be classified according to how they operate, and a distinction is here drawn between their excluding and limiting effects on primary, secondary, and procedural rights, as well as on special defences. Primary exemption clauses may be divided into primary exclusion clauses, which prevent naturalia or primary remedies from arising and primary limiting clauses, which merely qualify without excluding the naturalia or primary remedies. Secondary exemption clauses may, similarly, be divided into secondary exclusion clauses, which exclude secondary remedies: and secondary limiting clauses, which limit the creditor's secondary rights. Procedural exemption clauses exclude or qualify procedural rights of enforcement. Special defence examption clauses affect the right to rely on certain special defences based on factors such as defects in the formation of the contract or supervening impossibility. The latter two classes of exemption clauses have a procedurql effect whereas the former their effect.This analysis may assist understanding of the nature and effect thereby facilitating the drafting contracts. two are substantive in in gaining a clearer of exemption clauses and and interpretation of the final part deals with the burden of proof and exemption clauses: it examines the meaning of the expression onus or burden of proof and the rules of incidence applicable to the law of contract and exemption clauses. This is clearly relevant because in all disputes concerning the contents of contracts some party must ultimately prove the presence or absence of provisions. The meaning of the term onus, which must be distinguished from the evidential burden, is the duty borne by a litigant to ultimately satisfy the court that he is entitled to succeed in his claim or defence. Some of the more important rules of incidence are the onus rests upon the person who makes an assertion: or who affirms a fact: or against whom a rebuttable presumption of law operates. In the law of contract, the general rule is that the existence and contents of a contract must be proved by the person relying on the contract. This may be done by tendering a signed contractual document. If the terms of the latter are then disputed the defendant must prove one of the following: that it does not represent the true or complete agreement: that it was not signed animo contrahendi: or iustus error. Where exemption clauses are incorporated by implication or by reference the court's approach is as follows: the person is bound if he knows that the document contains writing relevant to the agreement: if he is unaware of the relevance of the writing but the other party did what was reasonably sufficient to bring the terms to his notice, he is also bound. The requirements of reasonable sufficiency and contemporaneousness of notice applies in all cases of incorporation by implication or by reference and the strictness of the requirements vary according to the circumstances of each case. A proper understanding of the incorporated provisions is not generally required; this it is submitted should be varied to require such understanding in circumstances that warrant it, to prevent disavadvantaged parties from being unfairly surprised by the provisions. Moreover, exemption clauses should be printed or suitably reproduced instead of merely referring to them. Only terms which originate in the contractual concensus need to be proved; the naturalia, being normal incidents of a contract do not have to be proved. Persons disputing naturalia must establish special agreements to that effect. Persons relying on exemption clauses must prove their existence and that they cover the acts that caused the loss in question. If liability for negligence is excluded the party covered by the clause need not disprove such liability: if further grounds for liability are alleged, they must be established. To avoid strict or absolute liability the defendant must prove that one of the acknowledged exceptions is applicable or that such liability was modified by special agreements. The application of the general rules to purchase and sale, letting/and hiring, special defences, unreasonable terms, and third parties is also briefly examined. A party who relies on a lawful contract need not prove that its terms are reasonable or conscionable. In the absence of fraudulent or criminal acts contractual terms are gene~ally· enforceable whether they , are harsh or onerous. However, if gross injustice will result the courts will in some cases uphold the defence of exceptio doli. This tendency and the statutory power given in terms of the Conventional Penalties Act does· not provide a general remedy. It is, therefore, recommended that a statutory remedy along the lines of the English Unfair Contract Terms Act be adopted. This would require that persons relying on exemption clauses must prove that they are reasonable to be enforced; this requirement should only be applicable where a marked inequality of bargaining power exists. Third parties are protected by exemption clauses only is intended by the parties; the onus of establishing obviously borne by the third party. if this this is This examination of the rules of incidence shows that the courts are aware of the injustices that could result if exemption clauses are imposed without restriction. Attempts to intervene are limited by powerful precedents and it is recommended that the legislature should provide a remedy which requires that exemption clauses be incorporated in a clear and conspicuous manner; that they be reasonable; and that the burden of proving this be borne by the party imposing the exemption clause.
- ItemOpen AccessA series of four treatises pertaining broadly to contracts for the sale of land and estate agency(1987) Rivalland, Marc-Edouard; Hutchison, D
- ItemOpen AccessBeyond the Traditional Courts Bill: regulating customary courts in line with living customary law and the Constitution(Academy of Science of South Africa, 2011) Weeks, Sindiso MnisiThis article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. Customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. The article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. The framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the Constitution.
- ItemOpen AccessCentenary of the 1913 Natives Land Act: Post-apartheid laws re-entrench instead of undoing the act's legacy(2013-6) Rural Women's Action Research Programme
- ItemOpen AccessComments to Department of Rural Development and Land Reform on Restitution of Land Rights Amendment Bill 2013(2013) Centre for Law and Society
- ItemOpen AccessCommunity consultation meeting in preparation for Traditional Courts Bill Workshop, Eastern Cape, 13 – 14 November 2008(2008-11) Centre for Law and SocietyTranslated and transcribed by Sandile Dolweni.
- ItemOpen AccessCommunity consultation meeting in preparation for Traditional Courts Bill Workshop, KwaZulu-Natal, 28 – 30 October 2008(2008-10) Centre for Law and SocietyTranslated and transcribed by Mbali Cele.
- ItemOpen AccessCommunity consultation meeting in preparation for Traditional Courts Bill Workshop, Mpumalanga, 3 – 4 June 2009(2009-06) Centre for Law and SocietyTranslated and transcribed by Tanya Charles, with additional translation by Sindiso Mnisi, and edited by Aninka Claassens.
- ItemOpen AccessCommunity consultation meeting in preparation for Traditional Courts Bill Workshop, North West, 25 – 26 February 2009(2009-02) Centre for Law and SocietyTranslated and transcribed by Naledi Seripe and edited by Advice Lolwana.
- ItemOpen AccessDoing something with nothing : the family centre pilots(2000) Budlender, Debbie
- ItemOpen AccessDomestic Workers and their access to childcare: A Socio-Legal study(2018) van Zyl, Nicole; Smythe, DeirdreThis dissertation explores how domestic workers within the Cape Town area access childcare. From this exploration, the argument that the state should provide childcare to mothers as a redress measure under s9(2) is developed. This argument is drawn from the proposition that universal access to childcare has the potential to reduce gender inequality by removing the care burden that women bear. By providing universal access to childcare, and thereby removing or reducing the care burden, women are better empowered to access income earning activity. This qualitative enquiry utilises a literature review and one-on-one interviews as modes of data collection. Eight interviews were conducted on the experiences of domestic workers. A feminist methodology was adopted in the collection and analysis of the data, which led to the finding that greater state intervention is needed into the lives of domestic workers so that they may realise substantive equality. This Constitutionally based legal analysis is used as a means of understanding social transformation through the experiences of the participant group.
- ItemOpen AccessEliminating child labour in South Africa: legislation, education and non governmental organisation strategies(1998) Ntloko, Nomfundo; Kalula, EvanceThe interest and concern around the issue of child labour has been growing in the past. few years throughout the world. With all that has happened in South Africa, with the transition to a democratically elected government, the is a need for us to focus on all the issues affecting our country in order to make the democracy real for the person in the street. With the present government focusing on improving the conditions under which children live, the is a responsibility on everybody. The government is presently changing and introducing new legislation. The focus of the legislation is based on the constitution which is the superior law that governs the country. The government hence has an obligation to change those laws which discriminated against any of the South African children and introduce legislation which is in line with the constitution governing the country. The President has put the right of children as one of his Presidential Lead projects and part of the Reconstruction and Development Programme. The role of the Ngo and Cbos is pivotal in working towards a better society for the children of South Africa. However, the information on child labour in South Africa is very inadequate, the very few studies available have been conducted mostly in the agricultural sector. Thus, it is important that more energy be put into conducting research to establish which forms of child labour exist and in which areas it is escalating. Once this has been established it will become easier for the relevant role players to implement measures to counter the increase of child labour This study will then analyze the status of child labour in South Africa, what has been done in the past by legislation and other role players and what the government is at present doing in order for them to meet the standards set out for them in the international documents especially the United Nations Convention on the Right of the Child, bearing in mind that South Africa ratified the convention on the 16 June 1995. This would also be in line with the National Programme of Action which sets out the programme that the country has set itself towards improving the total being of the South African child.
- ItemOpen AccessEthical issues for magistrates: manual for trainers(2014-09-15) Franco, Jane; Miller, Karen; University of Cape Town. Law, Race and Gender Research UnitThe manual contains readings, worksheets and teaching materials. There are also notes for trainers. This training manual was a landmark in an ongoing programme to develop an understanding of judicial ethics and to help magistrates deal more easily with the many, complicated ethical issues that arise in their day-to-day work. Many magistrates had raised concerns about their limited understanding ofjudicial ethics, the absence of any real discussion of ethical issues amongst magistrates, and the need for thorough and ongoing training in ethics. The first stage of the programme involved comparative and local research. A series of discussions with magistrates and workshops at which newly developed training exercises were tried out comprised the second stage of the programme. The production of this manual marked the conclusion of the third stage. The manual is divided into six training modules, each of which includes a discussion of the subject at hand and a number of exercises which can be used in training. Most of the examples that are included were provided by the magistrates with whom we discussed the manual or who participated in the workshops.
- ItemOpen AccessEvaluating the 'First Report': The persistent problem of evidence and distrust of the complainant in the adjudication of sexual offences(Juta Law, 2006) Singh, Karam JeetThis article looks at the issue of the first report, which exceptionally permits a complainant in a sexual offence case to offer a previously consistent statement into evidence. In the law of evidence a previous consistent statement is a written or oral statement, made by a witness on some prior occasion to testifying, which is substantially similar to her testimony in court. Normally, previous consistent statements are deemed to be inadmissible at trial because such testimony is considered to be self-serving and lacking in probative value. However, throughout jurisdictions following the Anglo-American tradition previous consistent statements in sexual offences are allowed as an exception to the general rule. This article reviews the history of the first report rule, including critical feminist legal critique of the rule's origins. The paper proceeds with a comparative look at divergent approaches to reform that have emerged with the rule in foreign jurisdictions. This analysis includes a review of reform proposals from the South African Law Commission (now the South African Law Reform Commission) before looking at a recent controversial case in the Supreme Court of Appeal that dealt with the first report, namely the case of S v Hammond.
- ItemOpen AccessGuidelines for writing a letter (to the Speaker and Select Committee on the Traditional Courts Bill)(2012) Centre for Law and Society