Faculty of Law
Department of Procedural Law
Selected Highlights from Research Findings
The Department of Justice and Constitutional Development commissioned the Centre for Advanced Corporate and Insolvency Law (CACIL) to embark on a research project to identify ways to improve section 74 of the Magistrate’s Courts Act. This section allows certain debtors, who are able to pay their debts, to apply for an administrative order. An administrative order can be described as a debt relief measure and, if an application is granted, it means that the debtor must make regular payments to an administrator, who in turn is obliged to draw up a list of creditors and to pay them on behalf of the debtor. The researchers found that although this order has merit, it is often abused. The researchers made a number of recommendations to address problems associated with the process. A time limit for repayment of debts must be included in the act. International laws make provision for a three-year to five-year repayment schedule. The researchers recommended a ten-year period. The system of blacklisting practices by credit bureaus needs formal regulation. Debtor education needs to be introduced on a large scale. Financial institutions should create proper credit-rating systems. A national debt register should be introduced as soon as possible. Finally, alternative debt assistance services must be introduced
Contact person: Prof A Boraine.
The former Credit Agreements Act contained specific provisions to deal with the cancellation of an instalment sale transaction. It also contained specific provisions that dealt with interim interdicts and attachments pending the cancellation procedures. The enforcement procedures of the National Credit Act (NCA) first of all need interpretation, whether they apply to cancellation at all. The researchers found that the enforcement procedures apply to cancellation as well. Although the NCA is silent with regard to interim interdicts and attachments, it is the submission of the researchers that such relief can be applied where the actions of the consumer threaten the rights of the credit provider in the goods sold, as long as the request for interim relief is still based on the common law substantive principles. The NCA also provides, like its predecessor, for a type of notice before the debt enforcement procedure may ensue. However, different time periods are involved. The provision that prescribes certain conditions under which a court may not determine a debt enforcement procedure will cause difficulty in practice. The researchers found that it will become the duty of the parties to provide the required information to the court, but that the NCA is silent on the procedure to be followed in this respect. In addition, they found that the NCA affords equal protection to the consumer regarding the exercise of the contractual rights by a credit provider to cancel a credit agreement as its immediate predecessor, the Credit Agreements Act. However, the provisions in the NCA that deal with this aspect are to some extent less clear than the repealed provisions and their judicial interpretation will have to be awaited
Contact person: Prof A Boraine.
Law clinics in South were established in the early 1970s, mostly due to the political and social circumstances prevailing in the country at the time. It was only in the late 1980s and early 1990s that most universities began to recognise the academic value of these programmes and began to impose academic requirements for students participating in such courses. Several leading university law clinics began designing academic curricula and implementing assessment methods that are in line with university requirements. Accreditation as a course in a law faculty curriculum depended on summative assessment processes having been implemented. Assessment can be defined as taking a sample of what students do, making inferences and estimating the value of their actions. Selecting an appropriate assessment method is a crucial part of the students’ learning process and is inextricably linked to what the desired outcomes of the programme is stated to be. Assessment methods must be valid and reliable. The researchers identified a need to determine the outcomes of the programme and then asked themselves if the assessment determined can actually measure the achievement of the objectives. Assessment purposes can be categorised as summative and formative. Summative assessment is used to measure the extent of learning. It is also used for grading purposes after completion of a piece of work or module. Formative assessment is used during the learning experience to provide feedback to students so that they have the opportunity to improve. Formative assessment methods are purely educational, and while they may be scored, they are not used to assign grades or rank students. As the clinical pedagogy demands a variety of skills to be taught in clinical legal education programmes, there is no one assessment method that can be implemented to evaluate the skills learnt, but rather a series of methods. The researchers recommended that when considering which assessment methods to adopt, one should reflect on the goal and outcome design of each programme, the teaching methodology implemented, student numbers and the organisational structure of the clinic and its programme
Contact person: Mnr FS Haupt.
The aim of this research project was to consolidate local judgments (scattered over many years in different law reports), minimum sentence legislation and selected foreign practices in order to offer more readily accessible guidelines that will contribute to greater uniformity in the judicial approach during the sentencing process. These guidelines embrace general and specific principles, as well as relevant aggravating and mitigating factors, and are intended to guide the judicial officer in the exercise of his or her discretion. Sexual abuse of children includes the offences of rape and sexual assault, although guidelines may overlap. Child rape is an emotionally laden offence that courts increasingly have to deal with during a complex sentencing process. In contrast to the situation during the trial, in the sentencing phase, the judicial officer has to function in a quasi-inquisitorial way by taking on a central and active role. In addition, behavioural science – a discipline of which the judicial officer has little understanding – acquires greater importance in this phase. In the sentencing phase, the focus falls not only on issues regarding the motive of the accused, danger and degree of culpability, but also on issues relating to the impact of the crime on the victim. During sentencing, the court is required to consider whether a finding of substantial and compelling circumstances (in terms of section 51(3) (a) of the Criminal Law Amendment Act) could be made in order to deviate from the prescribed term of imprisonment and thereby avoid a grossly disproportionate sentence. Since the beginning of 2008, regional court magistrates have been authorised to impose life imprisonment, inter alia, in cases of rape involving children, and are therefore no longer required to refer such cases to the high court for sentencing purposes after conviction. Regional courts are thus required to determine substantial and compelling circumstances and to subsequently grade these offences themselves. Notwithstanding the above developments, judicial discretion during sentencing (within the legal framework) has always been hailed as something to be jealously guarded and has been described as a crucial aspect of our law of sentencing. However, although it is accepted that this will have the effect that sentencing outcomes will/ may differ to a certain degree, judicial discretion has also given rise to unacceptable and unjustified disparity in the sentencing process, as well as in the actual sentences imposed in child rape cases. This disparity has been caused by diverse judicial approaches to the seriousness of these offences, to the recognition and interpretation of mitigating and aggravating factors, to the relevant circumstances of the offender and the victim, and to the relative weight given to each of these factors
Contact person: Prof IA van der Merwe.
This research project focused on a defence strategy often used by a person accused of sexual assault. Against the background of S v Zuma 2006 BCLR 790 (W), the research project focused on the problematic aspects of the defence. The researcher evaluated the application of the defence in Canadian and English law and set out a number of guidelines that aim to ensure the fair and equitable application of the defence by South African courts. The researcher also considered the effect on the defence of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007. The researcher found that the defence of mistaken belief in consent aims to protect those who have not been proven guilty of sexual assault from the social stigma attached to sexual offenders. Although the doctrine underlying this defence has been criticised for defining sexual assault from the perspective of the accused, as opposed to that of the complainant, it is also recognised that it cannot be entirely abolished. An attempt was made to point out some of the difficulties arising from the defence of mistaken belief in consent against the background of the Zuma case. It has been suggested that law reform initiatives aimed at alleviating secondary victimisation of complainants in sexual assault cases may be one of the reasons for the potentially increased availability of this defence – an indication that success and failure exist side by side when it comes to inevitably controversial reforms of this kind. In the final instance, it has been argued that the process of determining which evidence may be relevant to support a defence of mistaken belief may have to be limited in order to ensure the sexual autonomy of complainants and the equal protection of the law for victims of sexual assault. It has been indicated that certain categories of evidence, such as the evidence of the complainant’s previous sexual history and the cultural beliefs of the accused, may have a particularly distorting effect on the fact-finding process. The preamble to the new act states that one of its objectives is “to afford complainants of sexual offences the maximum and least traumatising protection that the law can provide”. The availability to an accused of the defence that he had genuinely, though mistakenly, believed the complainant to have consented to the sexual activity in question may pose complex challenges to these objectives. If these objectives of the new act are to be realised, the courts should remain constantly vigilant to these challenges
Contact person: Ms ED Illsley.
In this project, the researchers dealt with the notion of an unexecuted sale in execution and its consequences in a subsequent sequestration of the judgment debtor’s estate. They focused on two aspects: the position of the sheriff, the trustee and the purchaser of immovable property with regard to the execution procedure after the sequestration of the estate of the judgment debtor, more specifically regarding the treatment of unexecuted pre-sequestration sales after sequestration, with a few comparative remarks regarding the same position following winding-up, and the effect of the transfer of immovable property subsequent to sequestration in terms of an unexecuted pre-sequestration sale in execution. They used Warricker v Senekal for their case study. In this case, the Sheriff of the High Court (Brits) conducted the sale of a property. The purchaser paid the deposit over to the sheriff. The terms and conditions of the sale included a surety clause whereby a director of the purchaser bound himself as surety. He signed the conditions of sale on behalf of the purchaser with full knowledge of the surety clause. In the conditions of sale, the sheriff described himself merely by his office, without stating specifically who had sold the property. It was evident that the property had been sold pursuant to a sale in execution. The estate of the judgment debtor was provisionally sequestrated. The plaintiffs applied to the Master of the High Court for permission to sell the property. However, the sheriff allowed the property to be sold in execution prior to sequestration, to be transferred after sequestration without the court’s consent. In addition, he paid the deposit over to the trustees, but the balance of the purchase price was not collected from the purchaser. The trustees subsequently sued the defendant for the balance of the purchase price because he had bound himself as surety. The trustees attempted to claim the balance of the purchase price from the surety even though the sheriff had sold the property on behalf of the judgment creditor and affected transfer after sequestration into the name of the purchaser. The court ruled that the execution procedure, including the sale, was stayed as from the moment of sequestration and this procedure could only proceed with the consent of the court. Therefore, the trustees did not take over the obligations of the sheriff regarding the sale in execution and had no locus standi to claim the balance of the purchase price. The researchers found that this area of insolvency law should be reformed, and recommended that the construction of the treatment of ‘unexecuted’ in insolvency law should be used as a basis for such reform
Contact person: Prof A Boraine.
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