Veldra Fraser

Weddings are always big news. Especially when someone rich or famous is involved. Every marriage is preceded by some form of prior agreement, which is the subject matter of this article.

In the Western World the sight of a man kneeling before a woman, with an outstretched hand containing a small box will be instantly recognised as a proposal for marriage. “Rosemary, I love you with all my heart, will you marry me” and the much anticipated response “Yes, I will” usually signifies that the couple have entered into an arrangement known as “engagement”. The small box usually contains an engagement ring which will be worn on the ring-finger of the woman’s left hand as a signal to all and sundry of her “bespoken” status.

What many may be unaware of is that an engagement is actually a reciprocal contractual undertaking (a promise in fact) by the parties to be married to each other at some future unascertained date, and that failure to meet that commitment could have legal consequences in the form of damages for “breach of promise”.

That was the lesson learnt by Mr Rosenbaum in the case of Guggenheim v Rosenbaum 1961 (4) SA 21 (W).

In 1943 Mrs Guggenheim was divorced from her previous husband at Reno, Nevada although she was domiciled in the state of New York. Some time thereafter Mrs Guggenheim met Mr Rosenbaum, who was domiciled in South Africa but was visiting the United States. As these matters sometimes go, they fell in love and...

The historical development of the limited liability company is indeed a fascinating one, not the least because depending on who you are talking to and when the discussion takes place, there are likely to be different accounts.  We can also accept that virtually every country around the world recognises some form of “limited liability” entity that can be used to carry on business. We will in due course produce an appropriate piece for the Heritage Portal that deals with this issue.

But in this article on “Cases that Shaped South Africa” we are going to look at the cases that have dealt with a particular aspect of company law, namely that a duly registered company has a legal persona which is separate and distinct from its shareholders.

Until recently, when the promulgation and coming into operation of the Companies Act 2008 on 1 May 2011 finally severed the umbilical cord, there was a close link between company law in South Africa and that enacted in the United Kingdom. It is for that reason that some of the cases that shaped South Africa, especially in the area of company law, are actually decisions of a court in the UK. This statement holds true for two out of the five cases we mention briefly in this article.

We start off with Salomon v Salomon and Co Ltd [1897] AC 22 (HL) where the liquidator of a company tried to block the payment of the proceeds from a realisation (sale) of the assets of...

The cases we are examining in this series have been grouped under the collective title “Cases that Shaped South Africa". Click here to view the series index.

The cases selected are completely within our discretion as to their subject-matter and the extent to which they have indeed shaped South Africa.

In our view all the cases have their own merit.

However, there is one case that has to rank head and shoulders above all the rest. It is to that case (which is actually two cases!)** that we turn our attention. And given that the Constitutional Court recently celebrated its 30th “birthday” the timing of this article is particularly apt.

Prof Iain Currie and Adv Johann De Waal (“The Bill of Rights Handbook”, Juta) describe the background to this case in the following terms: 

The Interim Constitution came into force on 27 April 1994. While only the first step in the construction of post-apartheid state, its effect on the South African legal system can justifiably be described as revolutionary...

The primary purpose of The Interim Constitution, the product of the Conference for a Democratic South Africa (CODESA), an unelected gathering of political parties, was to set the procedures for the negotiating and drafting of the Constitution. Whereas the Interim Constitution was not produced by a democratically elected body, the Constitution passed in 1996 was produced by the Constitutional Assembly which took office after the first fully democratic elections held from 26 to 29 April 1994.

The Constitution was, however, itself subjected...

Escargot, especially smothered in garlic and butter sauce, are considered by many to be a source of gastronomic delight.

For Ms May Donoghue her encounter with a snail while dining at the Wellmeadow Café in Paisley was far from delightful: it was in fact shocking!

The café is in the foreground on the left

Ms Donoghue had ordered a “Scotsmans Ginger Float”. The owner of the cafe, Francis Minghella served Ms Donoghue: she poured some “Stevensons Ginger Beer” (contained in a brown opaque glass bottle) over a scoop of ice-cream. After Ms Donoghue had consumed a portion of her dish, her companion decanted the remainder of the bottle into a glass, at which point a decomposed snail floated out as part of the contents!

As a result of the nauseating sight of the snail in such circumstances, and in consequence of the impurities in the ginger-beer which she had already consumed, Ms Donoghue suffered from shock and severe gastro-enteritis which even necessitated a visit to her hospital!

Since Mr Stevenson, a manufactuer of aerated water products, had not sold the ginger beer to Ms Donoghue there was no contractual nexus between them. Instead she was forced to frame her claim as a delictual action (or what some jurisdictions refer to as a tort). She accordingly alleged that:

• the ginger-beer was manufactured...

It is probably fair to assume that the majority of the visitors to The Heritage Portal, except the lawyers, have had little inclination, or even the necessity, to read a “law report”, which is the technical name for the full text of a decision delivered by a judicial officer when it is published.

It is our intention to rectify this lacuna by unpacking some of the major legal decisions that have shaped the course of South African history. Hopefully we’ll do this in manner which is both enlightening and entertaining, and which will inspire one or two readers to dig even deeper and read the full judgment.

We recently read an article on The Heritage Portal dealing with the notorious Foster Gang (click here to view). This triggered a recollection that the activities of the Foster gang had precipitated the events which led to the decisions of the Cape Supreme Court in Bloom v The American Swiss Watch Co 1913 CPD 673 and the Appellate Division in Lee v American Swiss Watch Co 1914 AD 121.

Even though we were mistaken about the involvement of the Foster Gang, the factual background to the case did occur contemporaneously with the activities of the Foster Gang and a theft was involved!

Distilled to its essence:

• A theft had occurred at the premises of City Jewellers in Cape Town;
• A director of American Swiss (which owned City Jewellers) placed an advertisement in the Cape Argus offering a reward of £500 to any person who gave information...