LL.M. (Banking Law) / It has long been the vogue that the traditional fraud exception is the only exception capable of defeating the doctrine of independence in documentary-credit and performance-guarantee practice. The reason for this is self-explanatory, for it has been stated authoritatively that fraud unravels all. And on construction, this must be the correct legal position. Even then however, the fraud exception is not in itself unassailable. Given the nature and exigency of the contractual relationships peculiar to documentary credits and performance guarantees, it is indubitable for their success that these unique contractual relationships be independent of one another. The latter argument is well established in the law and practice of many jurisdictions. Commercial comity, aspirations, expediency, fair trading and a measure of certainty, inter alia, dictate the necessity for the sanctity and preservation of the doctrine of independence. Without such certainty, international commercial enterprise and entrepreneurship will be the victims. Nevertheless, it would still be fair to state that there is a broad consensus within various jurisdictions regarding the application of a fraud exception to the doctrine of independence, which simply cannot be said for an exception based on unconscionability. There are cogent reasons for this disparity, some in favour of and some against an unconscionability exception. The question which begs an answer is whether the recognition of such an exception would erode the certainty and cash characteristics, inherent and integral to documentary credit and performance guarantee practice. These instruments were, after all, designed and predicated upon tenets of certainty and considered as immediately redeemable cash. Ultimately, this debate involves a choice between embracing commercial certainty on the one hand, and fairness on the other hand. In South Africa however, unconscionability does not exist as a specific concept of law with wide and uncertain parameters. But, the concept of good faith, equally confusing, awkwardly finds its place in the South African general law of contract, but in an informative capacity to the substantive requirements of the law, and not as an independent general defence. A defence in the general law of contract in South Africa, premised on the lack of good faith is bad in law, given the established brocards such as inter alia, caveat subscriptor, caveat emptor, pacta sunt servanda, 5 and the contra proferentem rule. South African legal heritage and precedent have jettisoned the exceptio doli generalis, and this precedent is peculiarly protected by the judiciary at the highest level. Good faith, in the South African context, is not the equivalent of the so called doctrine of unconscionability analysed and discussed in the academic literature and court decisions of certain common-law jurisdictions, but the exceptio doli generalis may have been, or rather, if properly developed, could have been. And so, from a South African perspective, there is the added difficulty of considering the introduction of a foreign broad-based, uncertain and undefinable doctrine grounded in equity, when the narrowly defined concept of good faith, only informative of the substantive law, finds no general application in the law of contract in South Africa. Regard will thus be had to inter alia: the nature, scope and elements (facta probanda) of this exception; certain arguments for and against its recognition; its inability to be defined with the necessary precision required for legal efficacy and practice; its lack of certainty being in essence descriptive of a host of other conduct short of fraud and inclusive of fraud; and whether the case for its recognition might perhaps have merit and applicability in relation to performance guarantees, separate and distinct from documentary credits.

LLM / Department of Mercantile Law / Once a company is incorporated it becomes a juristic entity, distinct and separate from its incorporators. Thus, the company bears its own liabilities. However, section 20(9) of the Companies Act 71 of 2008 grants the courts the discretion to disregard the separate legal personality of a company where there is unconscionable abuse of the juristic personality of the company. However, the challenge is that the section fails to define what constitutes ‘‘unconscionable abuse’’. This research thus investigated what constitutes unconscionable abuse of the juristic personality of the company as the ground for piercing the corporate veil. Simply put, this research identified the circumstances under which the corporate veil may be pierced, given the confounding provisions of section 20(9). In unravelling the problems posed by the said section, the researcher employed a combination of doctrinal legal research methodology and comparative research methodology which involve the scrutiny of ‘black letter of the law’ and the laws of other jurisdictions. The result from this extensive inquiry is that the term ‘unconscionable abuse’ is a legislative derivate from the various terms used by the courts at common law to justify the disregarding of the separate legal personality of the corporate entity. Therefore, the inescapable conclusion reached is that just as those terms used at common law are confounding, so shall this legislative innovation. Therefore, in order to resolve this problem each matter should be dealt with based on its peculiar facts.

See the attached abstract below

This thesis examines the validity of exclusionary clauses in medical contracts, more especially, hospital contracts in which the healthcare provider exonerates itself against edictal liability arising from the negligent conduct of its staff, resulting in the patient suffering damages. In assessing whether these types of clauses should be outlawed by our courts, this thesis attempts to synthesize six major traditional areas of law, namely, the law of delict, the law of contract, medical law and ethics, international and foreign law, statutory law and constitutional law into a legal conceptual framework relating specifically to exclusionary clauses in medical contracts in South Africa. This thesis highlights systemic inconsistencies with regard to the central issue, namely, whether these types of clauses are valid or not, especially, given the fact that the practice of exclusionary clauses or waivers in hospital contracts has hitherto traditionally been assessed within the framework of the law of contract. The alignment of the various pre-existing areas of statutory and common law with the Constitution highlights that an inter-disciplinary and purposive approach under the value-driven Constitution, brings about a less fragmented picture in assessing the validity of these types of clauses. This approach accords with the new solicitude of the executive, the judiciary, the legislature and academia to transform the South African legal system not only in terms of procedural law but also substantive law. This has resulted in the alignment with constitutional principles and the underlying values to test the validity of these types of clauses, alternatively, contracts. Whereas pre-constitutionally the assessment of disclaimers in hospital contracts was done against the stratum of antiquated principles, namely, freedom of contract and the sanctity of contract, ignoring values such as reasonableness, fairness and conscionability, post-constitutionally, because the values that underlie the Bill of Rights and which affects all spheres of law, including the law of contract, concepts such as fairness, equity, reasonableness should weigh heavily with the decision-maker. In this regard, broader medico-legal considerations, normative medical ethics and the common law principles of good faith, fairness and reasonableness play a fundamental role in the assessment of contractual provisions, including the practice of disclaimers or exclusionary clauses in hospital contracts. This thesis critically examines how these types of clauses or contracts ought to be adjudicated eventually against the background of such alignment. It concludes that the entering into a hospital contract, in which the patient exonerates a hospital and its staff from liability flowing from the hospital or its staff's negligence causing damages to the patient, would be inconsistent with the Constitution and invalid. In the old order in which traditional divisions of law have been encouraged, a fragmented approach resulted in legal in congruencies which, in turn, created turbulence and a lot of uncertainty. This approach is apposite to that which the new constitutionally based legal system, aims to achieve. The rights in the Bill of Rights which are interconnected and which influences all spheres of law, including contract law, offers a fairer basis upon which, the validity of contracts, or contractual provisions, can be measured than, the pure contract approach. In this regard, although contracts or contractual provisions in the past may have been unfair and unreasonable, the courts, however, refused to strike them down purely on this basis. The law of contract, as a legal vehicle for adjudicating the validity of exclusionary clauses or waivers in hospital contracts, is therefore not ideal. This is primarily due to the antiquated approach the South African courts have always taken in this area of law. The law of delict, statutory law and medical law, standing alone, also does not provide a satisfactory answer. What is needed is an integrated approach in which the traditional areas of law are united and wherein constitutional principles and values, give much guidance and direction. Alternatively, should the unification of the traditional areas of law not be possible in bringing about fair and equitable results, the introduction of legislative measures may very well be indicated. / Thesis (LLD)--University of Pretoria, 2009. / Public Law / unrestricted