Faculty of Law
Department of Mercantile Law
Selected Highlights from Research Findings
The institution of a general class action via an act of Parliament would allow the protection of consumers who find it hard to pay for products and even harder to reach the price of justice. Arbitration clauses prohibiting the use of a class action should be "handled with care" as bargaining inequity could leave the consumer helpless during a dispute where consensus between the parties to an arbitration clause could bereave the consumer of his right to institute a class action. The success and efficiency of the law depends on the legal principles applicable in a certain context of the law. The South African Law Commission has completed research on the class action. A bill on class and public interest actions awaits enactment. It is therefore regrettable that at present no general class action for breach of contract in terms of the South African common law is recognised by our courts, despite the delay in the enactment of the bill and the court's constitutional power to broaden the option of applicants by allowing a general class action beyond the scope of the Constitution as a matter of urgency.
Contact person: SB Mrs Gericke.
Traditional jurisprudence holds that a person who posts private information onto a social networking website does not have a legitimate expectation of privacy. However, online social networking has revolutionised the way people communicate and share information with one another. This article considers ways in which a person could have a legitimate expectation of privacy on the Internet by attempting to answer questions such as whether privacy can exist where there is no physical space or inherently private subject matter, secrecy or seclusion and – more pertinently – whether the established jurisprudence can be applied within the phenomenon of social networking sites. South African law readily protects the privacy of telephone calls or e-mails sent between parties communicating with each other, and it found a way to apply traditional privacy jurisprudence to these modes of communication. Therefore, just as telephone technology challenged the notions of privacy in the USA in 1928, online social networking websites and the Internet are challenging our notions of privacy now. To rise to this challenge, South African jurisprudence will have to firstly, determine whether or not there is room for the recognition of the Internet as an integral part of interpersonal relationships, in the same way that foreign jurisprudence has. Once the law has recognised the Internet as integral to modern society’s interpersonal relationships, along with the possibility that the boni mores is taking on a different hue, the second determination will have to be: When exactly does an Internet user have a legitimate expectation of privacy in cyberspace? To assist in this determination it will be useful to take note of the theories surrounding public and private spaces on the Internet, and the fact that it is possible to demonstrate a will to keep the information private, such as when a profile is set as private.
Contact person: Ms S Papadopoulos.
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