BSocSc LLB Cape Town BCL Oxon. Visiting researcher, Max Planck Institute for Comparative and International Private Law (2012). Law clerk to Justice Edwin Cameron, Constitutional Court of South Africa (2013-14). Currently co-convenor of the Obligations Discussion Group; stipendiary lecturer at Pembroke College; and DPhil candidate at Balliol College working on the philosophical foundations of tort law under the supervision of Prof John Gardner and Dr Sandy Steel.
- In this note I reconsider the Constitutional Court's judgment in Botha v Rich 2014 (4) SA 124 (CC), which has attracted much criticism for its apparent willingness to subject all exercises of contractual rights to an overarching test of 'fairness'. I argue for a narrower reading which emphasises the case's statutory setting. I conclude by considering the implications of this narrower reading for the pending appeal in Beadica v Oregon Trust.In several recent judgments the Constitutional Court has dealt with the problem of state officials seeking the judicial review of their own prior decisions. Its judgment in State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited  ZACC 40 raises the same issue. The Court held, in particular, that the state applicant in these situations may not rely on the Promotion of Administrative Justice Act 3 of 2000, but must rely on the principle of legality. I argue that the Court’s reasoning contains very serious errors and flouts its own jurisprudence. In addition, the Court’s glib disposal of the review application reflects an objectionable approach to procedure, evidence, and remedy. All this is symptomatic of a worrying general decline in the quality of the Court’s judgments.In this article I investigate the problems which arise from the South African law of delict's attempt to hold the state vicariously liable. In part I, I explain the rules of vicarious liability. In part II, I explain the history of state liability in South African law, and its heavy reliance on the vicarious liability paradigm. In part III, I discuss the problems that this has created in cases decided in the last ten years, arguing that vicarious liability cannot coherently accommodate the state's unique duties or the multifaceted failures for which it is being sued. Both difficulties are addressed by holding the state directly liable, but doing so requires our law to address certain conceptual challenges, which I discuss in part IV. Finally, in part V, I discuss a recent Constitutional Court judgment which constitutes the most recent installment in this saga.
Private law and its philosophical foundations; tort law; general jurisprudence; constitutional theory.