Department of Private Law

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A comparative evaluation of the judicial discretion to refuse specific performance
(Stellenbosch : Stellenbosch University, 2014-12) Van der Merwe, Su-Anne; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.
ENGLISH ABSTRACT: This thesis examines the contractual remedy of specific performance in South African law. It looks closely and critically at the discretionary power of the courts to refuse to order specific performance. The focus is on the considerations relevant to the exercise of the judicial discretion. First, it emphasises the tension between the right and the discretion. It is argued that it is problematical for our courts to refuse to order specific performance in the exercise of their discretion. The underlying difficulty is that the discretion of the court to refuse specific performance is fundamentally in conflict with the supposed right of the plaintiff to claim specific performance. The thesis investigates the tenability of this open-ended discretionary approach to the availability of specific performance as a remedy for breach of contract. To this end, the thesis examines less complex, more streamlined approaches embodied in different international instruments. Comparison between different legal systems is also used in order to highlight particular problems in the South African approach, and to see whether a better solution may be borrowed from elsewhere. An investigation of the availability of this remedy in other legal systems and international instruments reveals that the South African approach is incoherent and unduly complex. In order to illustrate this point, the thesis examines four of the grounds on which our courts have refused to order specific performance. In the first two instances, namely, when damages provide adequate relief, and when it will be difficult for the court to oversee the execution of the order, we see that the courts gradually attach less or even no weight to these factors when deciding whether or not to order specific performance. In the third instance, namely, personal service contracts, the courts have at times been willing to grant specific performance, but have also refused it in respect of highly personal obligations, which is understandable insofar as the law wishes to avoid forced labour and sub-standard performances. The analysis of the fourth example, namely, undue hardship, demonstrates that the courts continue to take account of the interests of defendants and third parties when deciding whether or not to order specific performance. This study found that there are certain circumstances in which the courts invariably refuse to order specific performance and where the discretionary power that courts have to refuse specific performance is actually illusory. It is argued that our law relating to specific performance could be discredited if this reality is not reflected in legal doctrine. Given this prospect, possible solutions to the problem are evaluated, and an argument is made in favour of a simpler concrete approach that recognises more clearly-defined rules with regard to when specific performance should be refused in order to provide coherency and certainty in the law. This study concludes that a limited right to be awarded specific performance may be preferable to a right which is subject to an open-ended discretion to refuse it, and that an exception-based approach could provide a basis for the simplification of our law governing specific performance of contracts.
The consequences of contracts concluded by unassisted minors : a comparative evaluation
(Stellenbosch : Stellenbosch University, 2012-12) Watt, Ilze Jr; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: It is a general principle of the law of South Africa that an unassisted contract of a minor is unenforceable against the minor. Although it binds the other party, the minor is not bound. The minor will only be bound if the contract is enforced by his guardian, or if the contract is ratified by the child after attaining majority. This implies that the other party is in a rather unfortunate position, since the effectiveness of the contract will remain uncertain until the guardian of the minor decides to enforce or repudiate the contract, or until the minor ratifies it after attaining majority. The other party may not resile from the contract during this interim period. Should it be established that the contract has failed, the question arises to what extent the parties are obliged to return performances made in purported fulfilment of the contract. In terms of the law of South Africa, the prevailing view is that these claims are based on unjustified enrichment. However, the extent of these claims differs. In principle, both parties’ liability will be limited to the amount remaining in its estate, according to the defence of loss of enrichment. But the application of the defence is subject to an exception that does not apply equally to the parties. Had the other party known or should the other party have known that the enrichment was sine causa, yet continued to part with it, he will be held liable for the full enrichment. However, this exception does not apply to the enrichment liability of minors. In other words, whether the minor knew or should have known that the enrichment was sine causa, he would still be allowed to raise the defence of loss of enrichment. Furthermore, the rules applicable to minors’ enrichment liability applies to all minors, and no scope is left to consider the specific circumstances of each minor. It is accepted that there are two competing principles relating to minors’ unassisted contracts. On the one hand, the law must protect the minor from his immaturity and lack of experience. On the other hand, the law must protect the interests of the other party. It will be seen throughout this study that the determination of how to balance these competing principles is not an easy task. The key aim of this thesis is to investigate the principles governing the unwinding of unassisted minors’ contracts in South Africa. A comparison will be made with the principles applied in other legal systems, in order to identify similarities and differences in the approaches and, to establish what underlies the differences in the various approaches. Germany, England and Scotland have been chosen for comparison for various reasons. First, they share some historical roots, and they represent three major legal traditions, namely the civil law, common law and mixed legal systems, of which South Africa also forms part. Secondly, both England and Scotland have experienced recent legislative reform in this regard, which implies that their respective legal systems should be in line with modern tendencies, and consequently they may provide a valuable framework for possible reform in South Africa. In Germany, although mainly regulated by rather older legislation, there have been interesting developments in the determination of consequences of failed contracts. Hellwege has argued that the unwinding of all contracts should be treated similarly, regardless of the unwinding factor. He has also suggested that in order to prevent the accumulation of risk on one party, and to ensure that the risk is placed on the person who is in control of the object, the defence of loss of enrichment should not be available to any party. His reasoning and suggestions is dealt with in more detail in this thesis. This study argues that the current strict approach applied under South African law regarding minors’ unassisted contracts needs to be re-considered. The current approach is dated and is not in line with modern tendencies and legislation. No proper consideration is given to minors’ development into adulthood or personal circumstances of the parties. It is submitted that in the process of re-consideration, some form of acknowledgement must be given to minors’ development towards mature adults. It is submitted that this would be possible by introducing a more flexible approach to regulate the enforceability and unwinding of minors’ unassisted contracts.
Determining the consequences of illegal contracts
(Stellenbosch : Stellenbosch University, 2022-03) Botha, Ferdinand Marthinus; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This thesis investigates the consequences of illegal contracts from a comparative perspective. Illegality usually raises two questions: to what extent may the contract still be enforced and under what circumstances may a plaintiff recover a performance rendered under the contract. When confronted with these questions, South African courts typically resort to constructs such as the maxims ex turpi causa non oritur actio and in pari delicto potior est conditio defendentis. These maxims respectively express the propositions that an illegal contract may not be enforced and that a plaintiff who is tainted by illegality may not obtain restitution of any performance rendered under the contract. The problem with these maxims is that they tend to divert attention away from other policy considerations that may also be important. In addition, it is not clear why South African courts find illegal contracts to be void in some cases and valid but unenforceable in others. In search of a more convincing approach to illegal contracts, the thesis therefore investigates how foreign jurisdictions determine the consequences of illegality. The comparative overview reveals that foreign jurisdictions generally aim to give effect to the same kind of policies when determining the consequences of illegality, although they employ different methods. Some apply strict rules with a limited number of exceptions while others give courts a discretion to determine the consequences in a particular case with reference to a list of policy considerations. These policy considerations are studied in more detail by analysing three particularly challenging scenarios from a comparative perspective – illegal consumer loans, illegal employment contracts and illegal work performed by contractors in the construction industry. From these analyses the thesis concludes by developing several claims. The first claim is that the solution to any illegality problem ultimately amounts to a balancing of various factors, irrespective of whether the illegality derives from legislation or public policy. Second, it is argued that the most satisfactory method for determining the consequences of illegal contracts is to give courts a discretion that must be exercised with reference to a range of policy considerations. And finally, it is concluded that South Africa should discard references to the ex turpi and par delictum maxims and adopt a more flexible approach to determining the consequences of illegality.
Developing a structure for the adjudication of class actions in South Africa
(Stellenbosch : Stellenbosch University, 2017-12) Broodryk, Theo; Du Plessis, Jacques; De Vos, Wouter
ENGLISH ABSTRACT : This dissertation is concerned with class actions within the context of South African civil procedural law. There is currently no South African statute or court rule that provides a procedural framework for the institution and regulation of class actions. Our courts have been required to develop the appropriate class action procedural rules using their inherent jurisdiction as entrenched in section 173 of the Constitution of the Republic of South Africa, 1996. This was done in Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae) 2013 1 All SA 648 (SCA), which effectively details key aspects of the law relating to class actions in South Africa. However, various ambiguities, inconsistencies and problems remain. In this regard, South African case law on class action procedure has not yet been subjected to a comprehensive and critical analysis in order to provide answers to a number of vital questions. These include the following: i) when is a class action, as opposed to joinder, the appropriate procedural device to beutilised to adjudicate a claim and when is it appropriate to use the opt-in, as opposedto the opt-out, class action regime? , ii) when, if ever, should notice of a class action be given to class members and whenwould individual notice to each class member be required, or would some form ofgeneral notice to the class suffice?; iii) what is the approach that our courts should follow and what are the devices that theycould utilise to determine damages in personal injury class actions?; and, iv) how should a class action be managed and what should the role of the courts be inthis regard? Ultimately, the purpose of the dissertation is to assist in developing a structure that could facilitate the adjudication of class actions in South Africa. This inevitably entails interpreting the South African class action procedure as expounded by our courts and, given the novelty of the procedure, constantly seeking guidance from the class action regimes of prominent foreign jurisdictions, most notably Australia, Ontario and the United States.
Developing the South African law of delict: the creation of a statutory compensation fund for crime victims
(Stellenbosch : Stellenbosch University, 2018-03) Wessels, Albertus Bernardus; Loubser, Max; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.
ENGLISH ABSTRACT : The dissertation evaluates the compensatory relief South African law currently provides to victims of crime. To obtain compensation for the harm arising from crime, a victim may institute a common-law delictual claim against the perpetrator of the crime. Because the perpetrator is unlikely to be in a financial position to compensate the victim’s harm, crime victims frequently frame actions against the state, not only on the basis of vicarious liability for positive wrongdoing by state employees, but increasingly on the basis of failure by the state or its employees to prevent crime. This dissertation describes the expanding delictual liability of the state for harm caused by crime and concludes that this development of the law of delict is both theoretically and practically undesirable. The dissertation further argues that the existing statutory mechanisms to claim compensation for harm arising from crime is unsatisfactory and provides little assistance to crime victims. Within this framework the dissertation considers whether there is an alternative method to secure compensation for the hundreds of thousands of South Africans who fall victim to crime each year. The most common solution adopted in foreign jurisdictions is the establishment of a statutory compensation fund for crime victims. The dissertation seeks to establish whether the legislative reform of the South African law of delict through the creation of such a fund is justified and appropriate. To do so, the dissertation analyses the historical background and policy bases of other significant instances of legislative reform of the South African law of delict. In the process, a general theoretical framework is developed that may provide an outline for statutory reform of the law of delict to provide compensation for specific categories of victims. The dissertation thereafter examines whether the establishment of a statutory crime victim compensation fund could fit within this proposed theoretical framework. It is concluded that the proposed fund is justifiable and, when compared to the solutions offered by the current developments within the common-law of delict and existing legislation, it seems, in principle, to be a more desirable solution to improve the legal position regarding compensation of crime victims. To be successful, the proposed statutory compensation scheme must be theoretically sound and practically workable. The dissertation therefore concludes by focusing on several practical questions and considerations which the South African legislature should take into account, if it were to enact such a scheme.
The fair price rule and the South African law of contract: A historical and comparative analysis
(Stellenbosch : Stellenbosch University, 2018-12) Visser, Wiaan; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This thesis focuses on legal rules that allow a court to set aside or modify a contract on the basis of a large discrepancy in the value of the respective performances. These “fair price” or “just price” rules have been the object of debate and disagreement among jurists for centuries. Although one such a rule previously formed part of the South African common law of contract, the prevailing view is that the price does not have to be fair or reasonable for a contract to be valid. However, due to changing attitudes to price control both locally and internationally, this view might require reconsideration. To this end, the study traces the treatment of fair price rules historically and comparatively, and thereafter evaluates the application of these rules in the South African context by taking account of certain underlying values and principles of the law of contract. The historical overview studies the development of the fair price rule from its origins in late classical Roman law to its reception and subsequent abolition in modern law. The overview shows that jurists during the Middle Ages had a well thought-out understanding of the fair price rule as a doctrine aimed at enforcing a market-oriented just price in order to avoid the exploitation of weakness, price discrimination, fraud, and exceptionally harsh bargains. The comparative overview in turn shows that while a variety of different approaches to dealing with substantively unfair prices exist, there are signs of an increased willingness to engage in price control. It is also evident that more modern fair price rules follow a flexible approach to the determination of whether the price is fair. This approach does not only take account of the objective disparity in the value of the respective contractual performances, but also of the procedural fairness of the conclusion of the contract. These modern fair price rules follow a similarly flexible approach to restitution, by investing the court with the discretion to adapt the contract price, or to avoid the contract and award damages to the disadvantaged party. Building on the comparative and historical analysis, the thesis concludes that it would be both desirable and suitable that a modern fair price rule, which follows a flexible approach to the determination of fairness, should be introduced into South African common law of contract. This can be achieved through the development of the common-law rule that contracts may not be contrary to public policy. It is argued that this will lead to a law of contract that is better equipped to provide relief to prejudiced contracting parties, and that gives greater effect to a number of fundamental values of our law of contract, such as dignity, party autonomy, good faith, and Ubuntu.
Misrepresentation by non-disclosure in South African law
(Stellenbosch : Stellenbosch University, 2013-03) Cupido, Robin Vicky; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This thesis investigates the approach to non-disclosure as a form of misrepresentation in South African law. The primary focus is the question of liability, and whether parties should be able to claim relief based on non-disclosure. In order to determine this, attention is also paid to the standards which have traditionally been employed in cases of non-disclosure, and it is questioned whether a general test can be formulated which could be used in all such instances. The point of departure in this discussion is a general historical and comparative overview of the law relating to non-disclosure. This overview places the position in modern South African law in context, and highlights some of the similarities between our current position regarding non-disclosure and the position in other jurisdictions. The overview also sets out the provisions relating to non-disclosure in international legal instruments, which could be of use in interpreting concepts used in our law. The study then shifts to an exploration of the specific situations, such as the conclusion of insurance agreements, or agreements of sale involving latent defects, where South African law automatically imposes a duty of disclosure. These instances are the exception to the general rule against imposing duties of disclosure on contracting parties. The study reveals that certain principles are applied in more than one of these exceptional cases, and attention is paid to each in order to determine which principles are most prevalent. It is suggested that the nature of the relationship between the parties is the underlying reason for always imposing duties of disclosure in these circumstances. Attention is then paid to the judicial development of the law relating to non-disclosure, specifically in those cases which fall outside the recognised special cases referred to above. The remedies available to a party when they have been wronged by another’s non-disclosure are identified and investigated here, namely rescission and damages. A distinction is drawn between the treatment of non-disclosure in the contractual sphere and the approach taken in the law of delict. The different requirements for each remedy are explored and evaluated. A detailed examination of the key judgments relating to non-disclosure shows us that the judiciary apply similar principles to those identified in the discussion of the exceptional instances when deciding to impose liability based on non-disclosure. Reliance is also placed on the standards set out in the earlier historical and comparative discussion. The most prevalent of these standards are the nature of the relationship between the parties and the good faith principle. It is then considered whether all of these principles and elements could be used in order to distill one general standard that could be used to determine whether non-disclosure could give rise to relief. The conclusion is drawn that it may not be advisable to adopt such a standard, and that the seemingly fragmented treatment of non-disclosure in South African law thus far has enabled its development and will continue to do so. A number of key considerations have been identified as possible standards, and these considerations can be applied by the judiciary on a case by case basis.
Pre-contractual agreements
(Stellenbosch : Stellenbosch University, 2020-03) Kleinhans, Brittany Lily Evelyn; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: As modern commercial transactions become larger and more complex, business professionals have resorted to various instruments or agreements aimed at regulating and progressing the negotiation process. Some of these instruments can even strongly resemble a contract, but are preliminary in form, and as such give rise to uncertainty as to their enforceability. The diverse range of agreements concluded prior to a principal contract, which may be termed pre-contractual agreements, are the focus of critical examination in this thesis. The nature and legal consequences of pre-contractual agreements are both uncertain and controversial. This is in large part due to the fact that the term “precontractual” does not refer to a specific type of agreement with a standardised legal content but rather to the stage at which the agreement is concluded. In this thesis, the various types of pre-contractual agreements are catergorised according to their function so as to establish which of these agreements, if any, meet the validity requirements for a contract and thus give rise to legal consequences. Particular focus is placed on the legal nature and consequences of various types of agreements to negotiate. Due to the limited local case law and academic literature on pre-contractual agreements and the broader topic of pre-contractual liability, comparative observations can form a central component in the formulation of potential solutions to the obstacles presented by these agreements. With the benefit of comparative analysis the conclusion is reached that a sound framework to regulate the precontractual phase can be established through the development of the law of contract to enforce specific types of agreements to negotiate. To analyse all the potential legal consequences arising from pre-contractual agreements comprehensively, the scope of the analysis extends beyond the law of contract to consider the potential remedies that may lie in other sources of law, such as the law of delict and the law of unjustified enrichment. The conclusion is reached that both the law of delict and the law of unjustified enrichment can serve as valuable sources of pre-contractual liability to rectify potential injustices that may arise during the presently unregulated pre-contractual phase.
Regulating the form and substance of online contracts : South African and foreign perspectives
(Stellenbosch : Stellenbosch University, 2020-03) Van Deventer, Susanna Maria; Du Plessis, Jacques; Myburgh, Franziska; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This dissertation focuses on the procedural and substantive problems which arise in the context of online contracts, i.e. standard form contracts appearing in electronic form. Although standard form contracts are not a new phenomenon, the study identifies certain attributes of online contracts which justify specific consideration of this contracting form. The aims of this dissertation are two-fold: it first determines how online contracting fits into existing legal principles in South African law, and secondly analyses and evaluates this outcome from a comparative perspective. It is argued that the unique characteristics of online contracts – such as their length and ubiquity – render it more difficult to establish assent to these contracts. This concern has featured prominently in American jurisprudence. Central to this issue is the fact that it is not reasonable for consumers to study online contracts, because the cost of reading (in the form of time spent) outweighs the potential benefit. Consequently, the dissertation analyses the formation of online contracts in the South African context. A comparative evaluation with primarily the American legal system – which draws on case law, the provisions of the Draft Restatement of the Law, Consumer Contracts and criticism by American jurists – is used to assess this outcome. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. The conclusion is reached that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. A possible exception in the form of voluntary, opt-in consent, as recognised in the European General Data Protection Regulation, is examined and found advisable for specific clauses. It is further argued that, in the South African context, the unexpected terms doctrine can provide important protection to consumers’ reasonable expectations, and can encourage suppliers to identify surprising terms and bring them to the attention of consumers. This requires courts to recognise that consumers reasonably decide not to read online contracts, and that consumers’mistakes about surprising terms in online contracts must almost always be reasonable. The dissertation further identifies and considers specific substantive problems that are affected by uniquely online risks. These include clauses relating to the use of personal information and consumer-generated content, clauses affected by the ongoing nature of online contracts (such as unilateral variation and unilateral termination clauses) and clauses affected by the global nature of online contracts (such as choice-of-law and choice-of-forum clauses). These clauses are evaluated in the light of current measures of substantive control recognised in South African law. The discussion also includes a consideration of procedural issues which could impact the evaluation of the substantive fairness of terms, such as the inequality of bargaining power and possibility of deception. It is found that current measures are inadequate to ensure proper protection for online consumers. Taking guidance from European law, the dissertation suggests legislative amendments to address these issues.
Remoteness and the limitation of contractual damages
(Stellenbosch : Stellenbosch University, 2016-12-07) Diamond, Alma; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT : This study explores remoteness of contractual damages in South African law. The manner in which South African contract law limits the extent of a plaintiff's recovery of damages caused by breach is controversial. Criticism has been expressed about, inter alia, the distinction between general and special damages, the convention requirement imposed for the recovery of special damages, and the approach of determining remoteness at the time of contracting and not of breach. It is expected that the current approach will be revised when the opportunity arises. In light of the debate around the current South African approach, and the need for its development, this study provides a detailed overview of the premise, purpose and operation of rules of remoteness. The study commences with a historical overview of the early civil and common law approaches to remoteness and their subsequent development in France, Germany and England. Against that background, the development of the South African approach is discussed and the various sources relied upon by South African courts placed in context. The study then considers three different theories of remoteness: the direct consequences theory, the adequate cause theory, and the foreseeability theory. The direct consequences theory is discussed in the context of English law. The discussion highlights the necessity for the remoteness inquiry to take account of the facts of a particular case. The adequate cause theory, in turn, is explored in the context of German law. The theory's development into a discretionary, policy-based approach to remoteness is discussed with reference to the adoption of the Schutzzwecklehre. The foreseeability theory is explored in two contexts: its application in English law and under the model instruments. The overview of English law shows that a distinction between general and special damages is often unhelpful and even detrimental to the remoteness inquiry. The recent move in English law toward an agreement-centred approach to remoteness is also evaluated with reference to the South African convention principle. Finally, foreseeability as applied in the model instruments is evaluated. It is concluded that the flexible approach to the foreseeability theory seen in the model instruments addresses many of the identified limitations of traditional foreseeability tests. The study suggests that the remoteness inquiry should focus on a discovery of what parties could reasonably have taken into account when contracting. For this reason, it is recommended that remoteness be determined with reference to the time of contract conclusion; and that it should not depend upon the parties' intentions or agreement about liability for damages. Additionally, the study finds that the foreseeability inquiry cannot draw a rigid distinction between the nature and extent of a loss. Ultimately, it is suggested that a flexible approach to foreseeability would resolve many of the limitations of the current South African approach. Such an approach would align the remoteness inquiry to notions of fairness and economic efficiency, as well as the constitutional value of human dignity.
Set-Off in South African Law : challenges and opportunities
(Stellenbosch : Stellenbosch University, 2016-03) Van Deventer, Susanna Maria; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law
ENGLISH ABSTRACT : This study focuses on the principles surrounding the operation of set-off in South African law. It is evident that no uniform answer exists to the question of how set-off operates: it either operates automatically as soon as its requirements are met or in terms of a declaration by one of the parties, but with retrospective effect. This thesis examines the uncertainty and problems surrounding these two opposing approaches to the operation of set-off, and further considers the impact of sections 90 and 124 of the National Credit Act 34 of 2005 (NCA) on set-off. In order to evaluate the two approaches to set-off, their historical origin, practical effect and the policy considerations informing them are analysed. This analysis is also informed by comparative perspectives on the operation of set-off adopted in civilian jurisdictions. The thesis further examines the circumstances in which a party will be precluded from relying on set-off. It focuses on an agreement between the parties to exclude set-off, waiver of a party’s right to set-off and the circumstances in which a party can be estopped from invoking set-off. It is shown that neither of the approaches to set-off adopted in South African law provides an adequate explanation for the way in which set-off is applied in practice. The thesis illustrates that this can be attributed to the fact that the automatic approach affords insufficient recognition to the autonomy of contracting parties and that the retrospective approach leads to practical difficulties. The uncertainties which exist regarding the exclusions of the right to invoke set-off are also highlighted, as well as the difficulty in reconciling these exclusions with the automatic approach to set-off. The examination of sections 90 and 124 of the NCA focuses on the interpretation of these sections, and considers whether and to what extent, a limitation on a credit provider’s right to invoke set-off is desirable. It is concluded that these sections are unclear and that, although certain limitations of a credit provider’s right to invoke set-off are justified, the conditions set by the NCA are too stringent. Legislative reforms are suggested to clarify and improve the protection granted by the NCA. Finally, it is argued that South African courts should take note of international developments regarding the operation of set-off and opt for a solution which is more in line with modern commercial reality. Such a solution can be found in the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law, which recommend that set-off should be effected by a notice with prospective effect. It is shown that this approach ensures legal certainty and offers a solution which aligns legal and practical reality.
Statutory formalities in South African law
(Stellenbosch : Stellenbosch University, 2013-03) Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This dissertation examines the approach to statutory formalities in South African law. It focuses primarily on formal requirements which result in nullity in the event of non-compliance, and in particular, on those prescribed for alienations of land (section 2(1) of the Alienation of Land Act 68 of 1981) and suretyships (section 6 of the General Law Amendment Act 50 of 1956). To provide context, the study commences with a general historical overview of the development of formal requirements. It also considers the advantages and disadvantages of formalities. The conclusion is reached that an awareness of both is required if a court is to succeed in dealing with the challenges posed by statutory formalities. The dissertation then considers more specific aspects of the topic of formal requirements, including the difference between material and non-material terms. It also reveals that the current interpretation of statutory formalities is quite flexible and tends towards a conclusion of validity if reasonably possible. However, cases involving unnamed or undisclosed principals present particular challenges in this context, and the possibility of greater consistency, without the loss of theoretical soundness, is investigated. A discussion of what should be in writing, and with what exactitude, necessarily involves a consideration of the extent to which extrinsic evidence is admissible. The interaction between formal requirements and the parol evidence rule is therefore investigated. Special attention is paid to incorporation by reference. After an examination of the common-law approach to this topic, the conclusion is reached that room exists for developing this area of South African law, especially where a sufficient reference to another document is concerned. Rectification also enjoys detailed examination, due to the unique approach adopted in South African law. Where formalities are constitutive, a South African court first satisfies itself that a recordal complies with these requirements ex facie the document, before it will consider whether rectification may be appropriate. An analysis of both civilian and common-law judgments suggests that the South African approach is based on a misconception of the purpose of rectification. This leads to the further conclusion that the requirement of ex facie compliance should be abolished as a separate step and that a court should rather consider whether awarding a claim for rectification would defeat the objects of formalities in general. Finally, the remedies available to a party who performs in terms of an agreement void for formal non-compliance and the effect of full performance in terms of such an agreement, receive attention. An investigation of the remedies available in other legal systems reveals that the South African approach of limiting a party to an enrichment claim is unnecessarily restrictive. It is argued that local courts should reconsider their exclusion of estoppel in this context, particularly in cases where one party’s unconscionable conduct has led the other to rely on the formally defective agreement. In cases of full performance, no remedies are available, but it is argued that a distinction should be drawn between reciprocal and unilateral performances.

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