Talking Point October 2017


A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

I take great pleasure in submitting the October 2017 edition of Talking Point to you.  This edition is also available on our website at http://walkers.co.za/.

Epicurus (341 BCE to 270 BCE) was an ancient Greek philosopher, and the founder of the school of philosophy called Epicureanism.

He regarded the purpose of philosophy to be the attainment of a happy and tranquil life, with freedom from fear, and the absence of pain.

Very little of his publications survived, but his philosophy lived on in the work of his followers, especially Lucretius (a Roman philosopher).  Lucretius’ poem De Rerum Natura (On the Nature of Things) is the best known explanation of Epicureanism.

In 2012, Stephen Greenblatt won the Pulitzer Prize for Non-Fiction with his book The Swerve: How the World Became Modern (also titled How the Renaissance Began).  The book tells the story of the rediscovery of De Rerum Natura in 1417, and Greenblatt regards De Rerum Natura as the origin of the Renaissance; and, in effect, of modernity.

Thomas Jefferson, the principal author of the USA Declaration of Independence (and the third President), was an ardent Epicurean; hence the phrase “the pursuit of Happiness” in the famous document.

As confirmed by quotes attributed to Epicurus, he aspired to a simple life, very different from the modern day hedonism associated with the term “epicurean” (not capitalised):

Pleasure is the first good. It is the beginning of every choice and every aversion.  It is the absence of pain in the body and of troubles in the soul.”

Not what we have, but what we enjoy, constitutes our abundance.”

Nothing is sufficient for the person who finds sufficiency too little.”

 

More quotes from Epicurus

In this issue:

Price fixing knows no borders

Horizontal price fixing occurs when two or more competitors conspire to set prices for their goods or services.  “On both a moral and practical level, there is not a great deal of difference between price fixing and theft.”  We discuss a recent Australian Case that may find local application.

When an employer overpays an employee

There is a joke about an employee ‘forgiving’ an employer’s first error of an overpayment, but not the second error of the subsequent adjustment.  We discuss a recent case with quite similar facts.

To be free of the Competition Act

The Competition Act can have parties tied up in red tape.  We discuss a recent Namibian case in which an industry managed to ‘break free’.

A nasty surprise for lenders

An ostensibly simple question regarding a brief statutory provision and uncomplicated facts results in split decisions in the Supreme Court of Appeal and the Constitutional Court.  And many lenders may find that their rights have prescribed.

You’re in the Air Force Now

The slogan of the South African Air Force is “Ours is to serve with discipline, dignity, professionalism and patriotism“.  We discuss a case in which the Court requires of members to live up to the slogan.

POPI and freedom of expression

The Protection of Personal Information Act (POPI) has been law since 2013, but is at present not fully operative.  As we do more advisory work on POPI, we become aware of more challenges regarding POPI.  We discuss a Canadian case with an unexpected outcome.

POPI developments

The Information Regulator has published draft regulations relating to the Protection of Personal Information Act.  The actual regulations will be a decisive step towards POPI becoming fully effective.  We discuss the draft regulations in brief.

The Palsgraf legacy

The famous legal case in this issue is perhaps the most referenced USA delict/negligence case ever – it is an understanding of cause and effect (in law) regarding unusual, but not that farfetched, facts.  Despite its antiquity (1928), the case still generates scholarly articles today (for and against), and is on occasion referred to in South Africa Courts.  It is difficult to decide whether one sides with the majority or the minority judgment.

 

As always, I would greatly appreciate your feedback on Talking Point. Please email me at charlt@walkers.law.

Regards

Charl Theron

Chairman