Obiter - latest Issue
Volume 37, Issue 1, 2016
Source: Obiter 37, pp 1 –19 (2016)More Less
Executive remuneration is one of the essential aspects of corporate governance that has attracted increasing attention in corporate circles and beyond in recent years. This comes in the wake of the global financial crisis of 2008 and the executive remuneration packages that are spiraling out of control. The increasingly excessive payments companies and financial institutions make to their management teams have given rise to growing consensus that executive remuneration needs to be controlled and regulated. Included among the identified causes of the problem are inter alia lack of transparency and accountability in determining executive remuneration, conflict of interests among those who determine executive remuneration, misalignment of management and shareholder interests, as well as inadequate protection of shareholder governance rights. The primary object of this paper is to examine the adequacy of the current regulatory framework in South Africa in addressing the challenges relating to executive remuneration. It further takes cognisance of the need for companies to achieve an appropriate balance between adequate regulation and the necessary flexibility in responding to the needs of different companies. The paper also makes proposals for reforming the current regulatory framework in a way that promotes fairness, transparency and accountability in executive remuneration.
Author M. SlabbertSource: Obiter 37, pp 20 –35 (2016)More Less
The Road Accident Amendment Act came into effect in 2008. This Act limits the Road Accident Fund's liability for compensation in respect of claims where serious injuries have been sustained. In the event of the Road Accident Fund rejecting a serious injury claim the appeal process is prescribed by the regulations to the Act. The disputed case has to be referred to an Appeal Tribunal under the auspices of the Health Professions Council of South Africa. The Tribunal faces many challenges despite the fact that the use of the AMA Guides is intended to yield objective and consistent findings.
DNA processing contemplated in the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013 and the constitutional right to privacySource: Obiter 37, pp 36 –63 (2016)More Less
The article focuses on the provisions of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013, which established the National Forensic DNA Database (NFDD) of South Africa. The implications of DNA taking, retention, and profiling on an individual's constitutional rights are discussed with special reference to the provisions of the Protection of Personal Information Act 4 of 2013 (POPIA). The value of DNA evidence in combating crime is not disputed. Policies relating to the parameters of the database and the duration of DNA storage are also highlighted. It is submitted that the different categories of expungement of DNA samples and profiles raise constitutional issues. The article also deliberates whether there is adequate awareness of rights and adequate resources to ensure the proper destruction or expungement of DNA samples. Although the writers are prima facie of the opinion that the individual's right to privacy is not violated by the abovementioned Acts, only time will tell whether this opinion is correct.
Author Paul NkoaneSource: Obiter 37, pp 64 –86 (2016)More Less
Mandatory offers are generally envisioned to curb unfair and abusive conduct during and after acquisition of securities in a regulated company. The regime is designed to offer minorities an opportunity to exit the company during takeovers. Mandatory offers are formulated to regulate all acquisitions in the range of the prescribed percentage. Only where the Panel exempts an offeror will the transaction not be covered by the rules of mandatory offers. In keeping with the purpose of the Companies Act, this article is intended to indicate that clear and precise exemptions must form an integral component of this regime.
Author W. ErlankSource: Obiter 37, pp 87 –105 (2016)More Less
Traditionally, objects were classified according to their relation to man or according to their own nature. The classical division according to their relation to man relates to the question of whether something is susceptible to private ownership or not. This aspect is of cardinal importance when it comes to objects in space. This results in the need for a further distinction between things that are classified as being in commerce (res in commercium) and things that are outside of commerce (res extra commercium). After a thorough investigation it is determined that heavenly bodies, such as the Moon, as well as smaller bodies, such as asteroids, can be classified as objects of property law falling within commerce - if the required characteristics are present, and taking into consideration that the current prohibition on appropriation of heavenly bodies will either be discarded in future, or at the very least be interpreted in such a way as to allow for appropriation in certain instances. These characteristics are corporeality, external to persons, independence, appropriability/susceptibility to human control and use and value. Therefore it can be surmised that in terms of property law, it is possible to acquire ownership of heavenly bodies and other objects in space, and that these objects can be classified in terms of South African property law.
However, the following (from the conclusions) flows more satisfactorily for the author - one makes the choice:
By turning to the foundational aspects of property law as found in South African property law, large celestial bodies, such as the Moon, as well as smaller bodies, such as asteroids, can be classified as objects of property law falling within commerce - if the required characteristics (corporeality, external to persons, independence, appropriability/susceptibility to human control, use and value) are present. When these are present, it would follow that it would be possible to acquire a heavenly body, object in space, or part thereof by means of occupation of a res nullius. Even in cases where certain categories of things have been designated as being unappropriable, or outside of commerce (res extra commercium) due to historical reasons, the possibility exists that by exerting effective control over the object, it can be reclassified as being appropriable and hence inside of commerce (res in commercio). In addition to this classification of celestial bodies as falling inside of commerce and having the characteristics of objects, the discussion of their division according to their nature, being corporeal or incorporeal, movable or immovable, divisible and indivisible, consumable and non-consumable, fungible and non-fungible, and singular and composite, has revealed that even in terms of this classification, heavenly bodies could in fact fall squarely within the confines of property law, and can therefore be regarded as objects of property law even in cases where they do not fall into the narrow classification of "things".
Author Mlungisi TenzaSource: Obiter 37, pp 106 –120 (2016)More Less
The use of replacement workers during strikes has been a cause for concern in recent years. Since industrial action often becomes violent, the question that arises is whether the use of replacement labour can be one of the factors that contributes to the eruption of such violence. This article investigates whether there is a link between the use of replacement labour and the eruption of violence during a strike. In doing this, the author refers to certain instances where such use has resulted in friction between striking employees and replacement workers. Strikers believe that the use of such workers robs them of their weaponry of strike. The argument goes on to say that such use enables the employer to not commit faithfully to negotiations because he or she does not feel the economic harm that the employees want to inflict, as he or she is able to continue with production or delivery, while the former suffer from the "no work no pay" rule. The article argues that in the presence of the provision in the Labour Relations Act that permits employers to use such workers, the relations between employers and unions will remain unhealthy, if not tense. The article further argues that such use will have the effect of protracting negotiations and delay dispute settlements. As a result, it is suggested that the relevant clause be removed from the Labour Relations Act.
Investigating parental alienation as a form of domestic violence, child abuse and harassment : a legal hypothesis : noteAuthor Charnelle Van der BijlSource: Obiter 37, pp 121 –131 (2016)More Less
"Parental Alienation Syndrome" is the term created by a psychiatrist, Gardner, to explain the phenomenon where, to get sole custody, one parent attempts to brainwash their child into rejecting the other parent - a situation often encountered during (but not limited to) custody disputes (Gardner Family Evaluation in Child Custody Mediations. Arbitration and Litigation (1989) 233; Gardner The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals (1998) 73-74; Turkat "Parental Alienation Syndrome: A Review of Critical Issues" 2002 18 J. Am. Acad. Matrimonial Law 131 133-134; Nichols "Towards a Child-centered Approach to Evaluating Claims of Alienation in High-conflict Custody Disputes" 2014 112 Michigan LR 663 664-665; and Berg "Parental Alienation Analysis, Domestic Violence, and Gender Bias in Minnesota Courts" 2011 29 Law & Ineq 5 and 7). Parental alienation is a broader term, which encompasses parental alienation syndrome and incorporates the neglect, emotional abuse of a child (Berg 2011 29 Law & Ineq 8). Parental alienation tends to focus on the conduct of the parent, whereas parental alienation syndrome is more concerned with the conduct of the child (McGlynn "Parent and Child-custody and Control of Child: Parental Alienation: Trash Talking the Non-custodial Parent is Not Okay" 2001 77 North Dakota LR 525 533).
Source: Obiter 37, pp 132 –139 (2016)More Less
The Republic of Angola and the Republic of Mozambique are two of five countries on the African continent with Portuguese as an official language (the others being Cabo Verde, Guinea-Bissau and São Tomé and Príncipe). Regarding their independence from Portugal, they share a relatively similar history. In consequence of the Portuguese Carnation Revolution (Revolução dos Cravos), which was initiated 25 April 1974, Angola became independent on 11 November 1975 and Mozambique on 25 June 1975.
Regulating the termination of employment of absconding employees in the public sector and public education in South Africa : a preliminary view : noteSource: Obiter 37, pp 140 –146 (2016)More Less
South Africa is a constitutional democracy with a justiciable Bill of Rights. Section 23(1) of the Bill of Rights entrenches the right to fair labour practices. National legislation, including the Labour Relations Act 66 of 1995 (LRA), gives detailed context to the constitutional right to fair labour practices, including the right not to be unfairly dismissed, provided for in section 185(a). In terms of section 186(1) of the LRA a dismissal means "an employer terminated a contract of employment with or without notice".
Section 188 provides further that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the dismissal is for a fair reason related to the employees conduct, or capacity, or based on the employer's operational requirements, and the dismissal had been in accordance with a fair procedure. These provisions give effect to the Termination of Employment Convention 158 of the ILO (see in particular articles 3 to 14) and the constitutional right to fair labour practices contained in section 23(1) of the Constitution.
Knowledge of the existence of discretionary powers is an implied precondition to the proper exercise of a discretion to arrest without a warrant
Motabatshindi v Minister of Police (South Gauteng High Court, Johannesburg (unreported) 2014-09-26 Case No A3017/2014) : casesAuthor Thulani NkosiSource: Obiter 37, pp 147 –157 (2016)More Less
This note aims to examine the findings of the South Gauteng High Court in Motabatshindi v Minister of Police (hereinafter "Motabatshindi"). In this case, which was an appeal from the Johannesburg Magistrates Court, the High Court was called upon to decide if the magistrate had correctly interpreted and applied the provisions of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (hereinafter "CPA"). The main bone of contention in the case was whether a police officer who admits that he was not aware that the section conferred discretionary powers on him could, nevertheless, be said to have properly exercised the discretionary powers conferred by the section where the magistrate found his actions to have been bona fide. Put in another way, the High Court was asked to pronounce if an unlawful exercise of power somehow becomes lawful just because the actor acted in good faith. In its examination of the judgment this note will start by providing a background overview of section 40(1)(b) of the CPA and the manner in which the section has been interpreted and applied. This will be followed by the facts of Motabatshindi in so far as they are relevant to the discussion. Thereafter, the judgment will be discussed in detail and critiqued against existing precedent.
Maternity, paternity and parental leave and the best interests of the child
MIA v State Information Technology Agency (Pty) Ltd  JOL 33060 (LC) : casesAuthor Andrea BaulingSource: Obiter 37, pp 158 –166 (2016)More Less
Since the enactment of Chapter 19 of the Children's Act 38 of 2005 (hereinafter "Children's Act") and the decision in Ex parte WH (2011 (6) SA 514 (GNP)) it has become possible for homosexual partners, or spouses in terms of a civil union (as regulated by the Civil Union Act 17 of 2006 (hereinafter "Civil Union Act")) to enter into surrogate-motherhood agreements. The effect of such an agreement would be that the spouses/partners become the biological parents of the child born of surrogacy. All children, regardless of their parentage or manner of conception, have the constitutionally enshrined right to "family care or parental care" (s 28(1)(b) of the Constitution of the Republic of South Africa, 1996 (hereinafter "Constitution")) and the best interests of the child should always be regarded as "of paramount importance in every matter concerning the child" (s 28(2)). It is in light of the acknowledgment of these rights of both homosexual parents, and children begotten from surrogacy, that the case of MIA v State Information Technology Agency (Pty) Ltd ( JOL 33060 (LC) (hereinafter "MIA")) came before the Labour Court.
Assisting foreign insolvency practitioners in cross-border insolvency : some foreign insights into South African law
Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda)  UKPC 36 (10 November 2014),  2 WLR 971 : casesAuthor Alastair SmithSource: Obiter 37, pp 167 –186 (2016)More Less
The related companies Saad Investments Company Limited and Singularis Holdings Ltd were registered in the Cayman Islands and audited by PricewaterhouseCoopers ("PwC"). When the Grand Court of the Cayman Islands wound them up, it ordered PwC, as a person relevantly connected to them, to deliver or transfer to their joint official liquidators ("JOLs") any property or documents belonging to those companies (s 103 of the Companies Law). The reason that the JOLs pursued PwC was that the Saad group had withdrawn property to Saudi Arabia (see the subsequent explanation by Chief Justice Smellie of the Cayman Islands in his recent paper, "Forum Shopping Is Bad; Choice of Forum Is Good? The Investment Fund Perspective" at the 11th INSOL/UNCITRAL/World Bank Judicial Colloquium, San Francisco (21-22 March 2015) https://www.judicial.ky/wpcontent/uploads/publications/papers/2015-04-21-ChiefJusticesPresentationatSanFranciscoINSOLJudicialColloquium.pdf (accessed 2015-09-18) 24 fn 35).
Back to the future : the reinstatement of deregistered companies and close corporations, section 82(4) of the Companies Act 71 of 2008
Missouri Trading CC v ABSA Bank Ltd 2014 (4) SA 55 (KZD) : casesAuthor Darren SubramanienSource: Obiter 37, pp 187 –199 (2016)More Less
In terms of section 82 of the Companies Act 71 of 2008 (hereinafter "the Act") a company or a close corporation may be deregistered by the Companies and Intellectual Property Commission (hereinafter "the Commission") if it failed to timeously lodge its annual returns with the Commission or if it has been inactive for a number of years. An important issue in terms of the Act is with regard to the consequences of re-registering a deregistered company or close corporation. When a company or close corporation is deregistered, it ceases to exist as a separate juristic person and its assets and rights vest automatically in the State as bona vacantia (Ex Parte Sprawson: in re Hebron Diamond Mining Syndicate Ltd 1914 TPD 458; Rainbow Diamonds (Edms) Bpk v Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy 1984 (3) SA 1 (A) par 10-11; and see also Wunsh "Are Assets of a Deregistered Company Bona Vacantia?" 1983 De Rebus 393). Sections 82 and 83 of the Act provide the ways in which re-registration may occur, that is by application to the Commission or to the High Court (s 82(4) of the Act). The previous Companies Act 61 of 1973 (hereinafter "the 1973 Act") and the Close Corporations Act 69 of 1984 contained provisions that expressly provided that the reinstatement of companies and close corporations were fully retrospective, and the effect was as if the entity was not deregistered in the first place. The new Act, however, does not contain a similar express provision, whether this was simply an oversight by the legislature or intentional is debatable (Ebrahim and Asmal "De-registration isn't Necessarily the End" 2013 13 Without Prejudice 18).