South Africa’s Intestate Succession Act 81 of 1987 privileges the nuclear family and, in particular, marriage and marriage-like relationships in intestate inheritance. This article examines the exclusion of platonic relationships from intestate inheritance, situating the problem within South Africa’s evolving family structures and jurisprudence. The article discusses how legal reform (through jurisprudence and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009) has kept intestate inheritance tethered to a narrow marriage-centric model. It draws on comparative law to demonstrate both the possibilities and limitations of extending benefits usually reserved for marriage to other relationships. The article argues for an amendment to the Intestate Succession Act that would empower the Master of the High Court to consider the totality of the circumstances and relationships of dependency in making an order for the devolution of an intestate estate. This discretionary remedy may provide relief to vulnerable dependants pending broader legislative reform. By decentring marriage in intestate inheritance, the article contributes to the broader project of aligning family law with social reality and fostering inclusive protections for diverse South African households.
South African labour law recognises both employers’ rights to discipline and employees’ rights to fair labour practices. While the Labour Relations Act (‘LRA’), the Constitution and the Employment Equity Act prohibit unfair discrimination and guarantee fair dismissals, employers may implement workplace safety rules, including zero-tolerance drug policies. Following Prince v Minister of Justice (2018), which decriminalised private cannabis use, disputes have arisen over employees’ dismissal for positive tests. In Enever v Barloworld (2024), a category analyst was dismissed under her employer’s zero-tolerance policy after repeatedly testing positive for cannabis used privately for health and religious reasons. The Labour Court upheld the dismissal, emphasising workplace safety. However, the Labour Appeal Court overturned it, finding the dismissal to be automatically unfair and discriminatory under s 187(1)(f ) of the LRA, as it impaired the employee’s dignity and failed to distinguish between workplace safety risks and private use. This article argues that employers must reassess zero-tolerance cannabis policies to account for job requirements, fairness and constitutional rights, to balance workplace discipline with employee rights in an appropriate way.
This article critically examines dominant theoretical perspectives on executive remuneration in the context of South Africa’s constitutional commitment to substantive equality, human dignity and social justice. Certain theories on executive remuneration are analysed to assess their explanatory power and normative adequacy in light of the country’s deeply entrenched socio-economic inequality. The article argues that while these theories have shaped remuneration practices in the corporate sector, they largely reinforce, rather than challenge, excessive pay disparities and fail to align with the transformative goals enshrined in the Constitution of the Republic of South Africa, 1996. Drawing on the concept of transformative constitutionalism, the article highlights the obligation of private actors, including companies, to respect and advance constitutional values. In response to the limitations of existing remuneration theories, the article proposes the Inclusive Redress Theory (‘IRT’), a normative framework grounded in principles of substantive equality and social redress. The IRT advocates for mechanisms such as maximum pay ratios and redress-linked incentive structures to ensure fairness and accountability in executive remuneration. The article concludes that adopting such a framework could help to focus corporate practices on the constitutional imperative of social transformation in post-apartheid South Africa.
Section 15(7) of the Companies Act 71 of 2008 radically altered the way in which the constitutional documents of a company — the memorandum of incorporation (‘MOI’) and the shareholders’ agreement — interact. Section 15(7) provides inter alia that any provision in the shareholders’ agreement that is inconsistent with a company’s MOI is void to the extent of the inconsistency. This article examines the interplay between the shareholders’ agreement and the MOI and offers recommendations for resolving any conflicts between the two. This article critically evaluates how the courts have interpreted s 15(7). The analysis reveals that our courts do not always interpret s 15(7) consistently or correctly. Where s 15(7) is applied correctly, it can lead to efficiencies in corporate governance, reaffirming the majority-rule doctrine that our corporate law embraces. Even when s 15(7) is not applied correctly, it can lead to absurd outcomes in which the provisions of a shareholders’ agreement are ignored despite all the shareholders consenting to them. Section 15(7) should ideally recognise unanimous shareholders’ agreements over the MOI in certain contexts. Given that legislative reform is not always realistic, I make practical recommendations to legal practitioners about navigating s 15(7).
In the unreported case of Cassim NO v Bombela Concession Company (RF) (Pty) Ltd ((ZAGPJHC) case no 006216/25 of 16 May 2025), the court analysed and interpreted s 136(2)(b) of the Companies Act 71 of 2008, expanding the scope and effect of the cancellation power of the business rescue practitioner. The court adopted a substance test that ultimately allows the business rescue practitioner to cancel obligations in terms of a pre-commencement contract that were amended postcommencement. This unreported case builds on the still-developing legal discourse concerning the cancellation power of the business rescue practitioner, as previously considered in Du Toit v Azari Wind (Pty) Ltd 2022 (2) SA 510 (WCC). However, it raises important interpretational concerns, particularly regarding the potential purposive overreach of the court in pursuit of a desired outcome.
This article examines the emerging legal and governance challenges arising from the integration of artificial intelligence (‘AI’) into South African boardrooms. As AI technologies increasingly influence corporate decision-making, they raise complex questions about directors’ fiduciary duties, accountability, and the adequacy of existing legal frameworks. Drawing on the Companies Act 71 of 2008 and the King V Code, this article examines how the adoption of AI intersects with directors’ duties of care and diligence, particularly as reliance on algorithmic tools becomes more prevalent. It critically assesses recent literature that distinguishes between assisted, augmented and autonomous AI, using this framework to analyse varying levels of AI integration and their implications for governance. The article identifies significant regulatory gaps in current soft-law approaches and argues that the King V provisions, while representing meaningful progress, require further refinement to address boardroom-specific risks and accountability concerns. To that end, the article proposes a hybrid regulatory model that combines enhanced principles-based guidance with targeted amendments to company law. This approach aims to balance innovation with legal certainty, ensuring that South Africa’s corporate governance standards evolve in tandem with AI capabilities while preserving the ethical leadership and human accountability central to sound governance.
Consumer legislation impacts upon suppliers’ freedom to draft cancellation clauses. The view that it is not necessary in the case of repudiation to follow a procedure for cancellation prescribed in an agreed cancellation clause should apply where the breaching party repudiated the entire agreement or all outstanding obligations. By contrast, it should not generally apply where the breaching party repudiated only a part of the agreement, because the argument that the breaching party repudiated the whole of the agreement, including the cancellation clause, does not apply to partial repudiation. An exception would be where the breaching party persists in the partial repudiation despite repeated demands to retract the repudiation. A cancellation clause that allows the aggrieved party to cancel the contract immediately, without requiring the breaching party to issue an ultimatum, should not apply to an insignificant breach. Whether a breach is insignificant should depend on whether it is non-culpable and has little impact on the aggrieved party. If this rule is not regarded as acceptable for contracts generally, it should at least apply in the case of lease, as the tenant’s possessory rights are affected, with serious consequences for the tenant. There is support for these rules in foreign law.
This note examines the acquittal of Peter Gordon Beale in a South African criminal trial involving allegations of murder and fraud arising from paediatric surgical procedures. Through a detailed analysis of judicial reasoning, evidentiary shortcomings and medico-legal frameworks, we explore the complex intersection of clinical judgment, criminal intent and causation in medical harm. We argue that the prosecution’s failure to present structured, context-sensitive expert testimony and to reconstruct clinical decision-making contributed significantly to the court’s finding and Beale’s subsequent acquittal. Drawing on comparative jurisprudence, we propose a set of evidentiary standards and procedural reforms to guide future prosecutions, emphasising the need for independent investigations, blinded expert panels, and admissibility rules that prioritise clinical contexts. Ultimately, we advocate for a balanced accountability framework that protects patients while preserving the integrity of medical practice and that resists the temptation to lower evidentiary standards in response to prosecutorial failures.
In current South African matrimonial law, a dum casta clause may be inserted into a divorce agreement between the parties to provide that the duty to pay spousal maintenance after divorce will cease when the maintenance recipient (usually the wife) remarries, dies or lives together with another person in a relationship akin to marriage. This note examines the nature of dum casta clauses in agreements regarding post-divorce spousal maintenance, focusing on their purpose, background, context and constitutionality. We examine the clause through a constitutional lens and with reference to international law, the courts’ constitutional duty to develop the common law in line with the Bill of Rights, the Promotion of Equality and Prevention of Unfair Discrimination Act, and from a public policy perspective. We conclude that this clause, if strictly interpreted, violates the constitutional rights of the maintenance recipient and that such clauses should be declared contrary to public policy.
This article examines two key remedies available to employers — specific performance and damages — when employees breach agreed notice requirements. While the common-law position on termination by notice is largely settled, enforcing extended notice clauses remains a legally complex matter. Drawing on recent case law, the article explores the evidentiary and doctrinal thresholds for relief and traces a shift in judicial reasoning towards fact-sensitive adjudication. This evolution signals a deeper commitment to balancing enforceability, fairness and the realities of the modern workplace.
This article examines some theoretical and practical issues concerning the implementation of living wills, also known as advance directives, on the assumption that legislation on the general issue of physician-assisted dying in South Africa is unlikely to be enacted soon. Pending the adoption of legislation, living wills provide an avenue for people to exercise meaningful choices about medical treatment near the end of life. Yet, medical practitioners and even courts often overlook the existence of living wills, despite the requirement of informed consent for any medical treatment. Four main factors impede the enforcement of these documents: first, the argument that the appointment of a person as a proxy decision-maker lapses when the maker of the living will becomes incompetent to express their views; secondly, ambiguity and contradictions in the law relating to assisted dying which are exacerbated by the medical professional guidelines; thirdly, the focus on criminal liability in the case law impedes the full development of the jurisprudence on this topic; and, fourthly, the practical difficulties in making the existence of living wills known to medical personnel at the time when they should be implemented. The article concludes by suggesting some ways to overcome these difficulties.
This article examines some pertinent interpretational issues concerning the statutory framework relating to requisitioned shareholder meetings in terms of s 61(3) of the Companies Act 71 of 2008. The purpose is to assess the efficacy of this statutory framework, including its interpretation by the courts, in promoting shareholder governance while balancing the rights and obligations of company shareholders and directors. The article also assesses whether s 61(3) and its related provisions on requisitioned shareholder meetings are aligned with the trends in other modern corporate-law jurisdictions, particularly the United Kingdom, Australia and Canada. The article finds that while s 61(3) provides for an uncomplicated procedure that seeks to facilitate, rather than deter, requisitioned shareholder meetings, a fundamental weakness of the Companies Act in this regard is that it does not directly regulate the time frames within which a requisitioned shareholder meeting must be convened. Furthermore, the Act does not grant requisitionists the right to call and hold a requisitioned shareholder meeting if the directors have failed to do so. Moreover, the Act tends to be lenient on directors who ignore, unduly refuse or delay the calling of a requisitioned shareholder meeting. The article makes recommendations for legislative reform in South Africa to strengthen shareholders’ rights and directors’ accountability in the context of requisitioned shareholder meetings. It also provides recommendations on how the courts should interpret certain provisions of the Companies Act to advance the underlying objectives of requisitioned shareholder meetings, thereby enhancing corporate governance standards in South Africa.
This article examines the evolution of the notion of public interest in South African law, from the historical requirement for litigants to demonstrate a direct interest in the relief to its current endorsement by the Constitution of the Republic of South Africa, 1996. Traditionally, South African courts rejected the doctrine of the actio popularis, concerned that allowing open-access standing would open the floodgates of litigation and overwhelm the judicial system. However, the Constitution marked a paradigm shift, permitting any individual ‘acting in the public interest’ — an ‘ideological plaintiff’ — to protect constitutional rights through public interest actions. This constitutional pivot was further reflected in s 157(1)(d) of the Companies Act 71 of 2008, which introduced public interest standing into South African company law. Despite this significant shift, the application of public interest standing in company law remains largely unexplored until recent judicial developments. Notable cases, such as Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs, Organisation Undoing Tax Abuse NPC v Myeni (Special Plea Judgment) and Vantage Mezzanine Fund II Partnership v Hopeson have shed light on the potential and limitations of this mechanism in company law. This article critically examines these developments, clarifying the contours of public interest standing, evaluating its effectiveness, and speculating on its future trajectory, informed by insights from pioneering cases.
This note examines the distinctions between dismissing an employee due to a disability, on the one hand, and incapacity resulting from ill health or injury, on the other hand. Only the latter is permitted and considered fair by the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998. The note provides a critical analysis of Gugwini v National Consumer Commissioner (2023) 44 ILJ 2237 (LC) by examining the Labour Court’s decision and its failure to consider how visually impaired employees may be reasonably accommodated in the workplace.
The automotive industry is of growing importance in South Africa. To maintain the country’s appeal as an international business hub for foreign automakers, the law should provide sufficient protection for automakers with regard to the shape of their vehicles. This article considers the extent to which South African intellectual property law provides protection for the shape of a motor vehicle. The law is examined comparatively, with the approaches in the European Union and the United Kingdom investigated to determine whether South African intellectual property law meets international standards in this context. It is argued that the law of registered designs remains the primary method of protection for car shapes, but that trade mark law and copyright law can be developed to offer supplementary avenues to enhance protection in this area.
Children with disabilities frequently experience significant problems when seeking admission to educational and alternative care settings, sometimes with conditions being attached to their admission. Cassim NO v MEC, Department of Social Development, Free State 2021 (1) SA 184 (FB) demonstrated that the conditional admission of a child with multiple disabilities and experiencing substance-abuse challenges to a special school is unconstitutional, even during a global humanitarian crisis such as the COVID-19 pandemic. The court determined that the school’s exclusionary admission criteria were discriminatory, breaching her rights to education and to access care. Although the decision did not address in detail the negative implications of delayed school enrolment, the case emphasised the urgent need for legislative reform concerning admission procedures for children with high-level support requirements to enhance inclusive education.
The implementation of the National Credit Act 34 of 2005 has undoubtedly created greater consumer protection in South Africa. Unfortunately, the Act is not always clear, and undesirable drafting has resulted in inconsistent interpretation and application. One glaring lacuna in the Act is its failure to define the term ‘supplementary agreement’, leaving it uncertain what types of documents fall within the scope of a supplementary agreement, and whether the Act fully governs such agreements. Another flaw in the National Credit Act is that it is not clear whether contracting parties to a credit agreement can agree to contract out of — ie exclude the applicability of — the provisions of the National Credit Act in a supplementary agreement. This flaw has potentially created room for unscrupulous credit providers to evade the applicability of certain provisions of the Act, or the entire Act, by entering into a supplementary agreement with a consumer. The recent case of Absa Bank Ltd v Serfontein 2025 (3) SA 345 (SCA) addressed some of these issues and highlighted the need to remedy these gaps.
Securing rights on land is the first step in developing a renewable energy project. This article considers using and creating personal servitudes in favour of a private independent power producer to establish a renewable energy facility (‘REF’) in South Africa. In particular, the article considers three different categories of personal servitudes that could be used to secure land rights for the establishment and operation of a REF, namely (a) traditional common-law personal servitudes (specifically the usufruct), (b) irregular servitudes (servitutes irregulares), and (c) novel personal servitudes. The absence of a numerus clausus of real rights in the South African property-law context allows for the creation of novel limited real rights. In the renewable energy context, this means that entirely novel limited real rights in general, and more specifically a new category of servitude in particular, could in principle be created, provided that the right complies with (a) the requirements of s 63(1) of the Deeds Registries Act 47 of 1937, (b) the subtraction from the dominium test, (c) the general requirements of personal servitudes, and (d) other relevant legislative requirements, such as those provided for in the Subdivision of Agricultural Land Act 70 of 1970.
