Annual Survey of South African Law - Volume 2006, Issue 1, 2006
Volume 2006, Issue 1, 2006
Author Kate HofmeyrSource: Annual Survey of South African Law 2006, pp 1 –44 (2006)More Less
In the year under review, the interpretation of s 167(4)(e) of the Constitution was considered by both the Supreme Court of Appeal in King & others v Attorneys' Fidelity Fund Board of Control 2006 (1) SA 474 (SCA) and by the Constitutional Court in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC), 2006 (12) BCLR 1399 (discussed further under 'Standing' and 'Public involvement in legislative drafting'). Section 167(4)(e) of the Constitution provides that '[o]nly the Constitutional Court may ... decide that Parliament or the President has failed to fulfil a constitutional obligation'.
Source: Annual Survey of South African Law 2006, pp 45 –106 (2006)More Less
Section 7(2) of the Constitution of the Republic of South Africa, 1996 obliges government to 'respect, protect, promote and fulfil the rights in the Bill of Rights'. Kiliko & others v Minister of Home Affairs & others 2006 (4) SA 114 (C) (also discussed in the chapters on Administrative Law and Public International Law) is a case dealing with Congolese citizens who were seeking asylum in South Africa but who were faced with policies and practices adopted by the Department of Home Affairs which denied them a proper opportunity to submit applications for asylum and refugee status. Van Reenen J emphasised that the duty imposed by s 7(2) means that '[t]he State ... is obliged to respect the basic human rights of any foreigner who has entered its territory, and any such person is under the South African Constitution, entitled to all the fundamental rights entrenched in the Bill of Rights, save those expressly limited to South African citizens' (para 28).
Author Clive PlasketSource: Annual Survey of South African Law 2006, pp 107 –127 (2006)More Less
The year under review has produced the usual batch of cases dealing with the meaning of 'administrative action', necessitated by the entrenchment of a fundamental right to just administrative action and a complicated definition of the term in s 1 of the Promotion of Administrative Justice Act 3 of 2000 ('the PAJA'). The difficulties involved in interpreting the statutory definition have been discussed in previous volumes of the Annual Survey and continue to be reflected in the case law.
Source: Annual Survey of South African Law 2006, pp 128 –138 (2006)More Less
The lawfulness of granting asylum in diplomatic or consular premises is a subject of controversy. During the apartheid era anti-apartheid activists on several occasions took refuge in foreign embassies or consulates. The refusal of foreign missions in question to hand over the activists was condemned by the South African government as a violation of international law. (See John Dugard International Law; A South African Perspective 3rd ed (2005) 265-8.)
Author Wesahl DomingoSource: Annual Survey of South African Law 2006, pp 139 –177 (2006)More Less
The Civil Union Act 17 of 2006 came into operation on 30 November 2006, following the Constitutional Court's decision in Minister of Home Affairs v Fourie; Lesbian & Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 which held that the common law definition of marriage as embodied in the Marriage Act of 25 of 1961 was inconsistent with the Constitution because it unfairly discriminated against same-sex couples, who were unable to enjoy the status, benefits and responsibilities which flow from a recognised heterosexual marriage. The court gave Parliament 12 months to correct the legal defect and to provide for the legal recognition of same-sex marriages (para 162).
Source: Annual Survey of South African Law 2006, pp 178 –238 (2006)More Less
The following parts of the National Credit Act 34 of 2005 came into operation during 2006 (GN 22 GG 28824 of 11 May 2006) :
- chap 1 (interpretation, purpose and the application of the Act);
- chap 2 (establishment of the National Credit Regulator and the National Consumer Tribunal);
- chap 3 (registration and regulation of credit providers, credit bureaux and debt counsellors);
- chap 4 part B excluding s 71 (regulation of collection and dissemination of consumer credit information);
- chap 7 (alternative dispute resolution, as well as investigation and hearings of complaints by the Regulator and Tribunal);
- chap 8 (powers of search, offences in terms of the Act and miscellaneous matters); and
- chap 9 (conflicting legislation and transitional arrangements).
Author T. NaudeSource: Annual Survey of South African Law 2006, pp 239 –267 (2006)More Less
The National Credit Act 34 of 2005 ('the Act') was signed by the President in March 2006 (GN 230 GG 28619 of 15 March 2006). Parts of the Act have come into operation on 1 June 2006, others on 1 September 2006, and by 1 June 2007 the remainder of the Act came into operation (see J M Otto The National Credit Act Explained (2006) 6-9). The Act is discussed more fully in the chapter on Financial Institutions and Stock Exchanges and is also mentioned in the chapter on General Principles of Contract. Only certain aspects relevant to instalment sales agreements are briefly discussed here.
Author Constantine TheophilopoulosSource: Annual Survey of South African Law 2006, pp 268 –271 (2006)More Less
In Business Aviation Corporation (Pty) Ltd & another v Rand Airport Holdings (Pty) Ltd 2006 (2) SA 95 (W), (per Goldstein J), an appeal was lodged against a magistrate's court order evicting Business Aviation, the first appellant, and its partner, the second appellant, from a property at Rand Airport which the second appellant had occupied for many years in terms of a verbal lease agreement. The appeal was based on the fact that the second appellant had been in possession of the property for some twenty years which, according to the appellants, implied the security of a long term lease and not that of a monthly tenancy (at 96A-C).
Miscellaneous contracts (agency, carriage, deposit, donation, loan, partnership, service and suretyship)Source: Annual Survey of South African Law 2006, pp 272 –292 (2006)More Less
Sasfin Bank Ltd v Soho Unit 14 CC t/a Aventura Eiland 2006 (4) SA 513 (T) dealt with issues related to suretyship and the question whether applying the doctrine of the undisclosed principal may be regarded as a variation or an amendment of an agreement entered into between the intermediary (agent) and the third party. The case is discussed under suretyship in this chapter and also in the chapter on General Principles of Contract.
Author Daniel VisserSource: Annual Survey of South African Law 2006, pp 293 –300 (2006)More Less
The right of urban tenants to claim liens (to ensure the payment of compensation by their landlords for necessary and useful improvements that they had made to the leased property during the currency of the lease) was dramatically reinstated in Business Aviation Corporation (Pty) Ltd v Rand Airport Holdings 2006 (6) SA 605 (SCA), turning around an approach that many, including myself, (see 1993 Annual Survey 229 at 237ff and 1994 Restitution LR 261) had accepted as correct. (The decision in the court a quo is discussed in the chapter on the Law of Lease.)
Author Rob MidgleySource: Annual Survey of South African Law 2006, pp 301 –354 (2006)More Less
In Dikoko v Mokhatla 2006 (6) SA 235 (CC), 2007 (1) BCLR 1 (also discussed in the chapters on Constitutional Law and Bill of Rights Jurisprudence) the applicant was the Executive Mayor of the Southern District Municipality and the respondent was the Municipality's Chief Executive Officer. The applicant had failed to settle a debt in respect of cell phone use and the Provincial Auditor-General called upon him to account for this situation. In the course of his explanation the applicant made defamatory comments about the respondent, who instituted action.
Source: Annual Survey of South African Law 2006, pp 355 –404 (2006)More Less
The Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005 commenced on 12 April 2006. This Act repeals the notorious Black Administration Act 38 of 1927 in terms of which almost every aspect of the daily lives of indigenous South Africans was regulated and administered. This repeal, however, also had repercussions for deeds and registries in South Africa. Accordingly, the Deeds Registries Amendment Act 5 of 2006 was passed by Parliament during July 2006 to deal with these consequential amendments. Section 3(1)(p)(bis) was inserted into the Deeds Registries Act 47 of 1937 and provides that despite the repeal of the regulations, proclamations and by-laws made under ss 25(1), 30(2) and 30A(1) of the Black Administration Act any registerable transaction concerning a right originally acquired in terms of the repealed Act will continue to be registered in accordance with the legislation which created that right.
Author Hanri MostertSource: Annual Survey of South African Law 2006, pp 405 –426 (2006)More Less
The dispute in Du Toit v Minister of Transport 2006 (1) SA 297 (CC), 2005 (11) BCLR 1053 related to the correct approach to determining compensation, and the correct amount to be paid in terms of s 12 of the Expropriation Act 63 of 1975 for an expropriation under s 8 of the National Roads Act 54 of 1971. It was contentious whether s 8(1)(c) of the Roads Act, read with s 12(1)(b) of the Expropriation Act, rather than s 8(1)(b) of the Roads Act read with s 12(1)(a) of the Expropriation Act was the correct basis for determination of compensation following expropriation. This case and outcome are discussed in detail in the chapter on the Law of Property. Here it should merely be noted that all of the decisions in the Du Toit saga have elicited criticism from academic quarters. Most of the problems with the various decisions are summarized by AJ van der Walt 'The state's duty to pay "just and equitable" compensation for expropriation : Reflections on the Du Toit case' 2006 SALJ 7 765-78; and further 'Reconciling the state's duties to promote land reform and to pay "just and equitable" compensation" 2006 SALJ 23-40.
Author Michael O. DaleSource: Annual Survey of South African Law 2006, pp 454 –483 (2006)More Less
In terms of the repealed s 14 of the Mining Rights Act 20 of 1967, a prospecting lease in respect of natural oil could embody terms and conditions agreed upon in consultation with any other Minister on matters falling within the purview of a state department administered by that Minister, and could further embody such terms and conditions as so agreed which would apply to a mining lease granted to the holder of the prospecting lease (see BLS Franklin & M Kaplan The Mining and Mineral Laws of South Africa (1982) 361).
Author Raylene KeightleySource: Annual Survey of South African Law 2006, pp 484 –499 (2006)More Less
The only relevant legislative enactment in the year under review was the Repeal of the Black Administration Act and Amendment of Certain Laws Act 8 of 2006 ('the 2006 Amendment Act'). In last year's edition of this work reference was made to the enactment of the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005 ('the 2005 Repeal Act'). The 2006 Amendment Act simply effects an amendment to the date upon which various sections of the Black Administration Act 38 of 1927 are to be repealed. The date of repeal in the 2005 Repeal Act was 31 July 2006. The amended date of repeal, effected by the 2006 Amendment Act, is 30 September 2007. The relevant sections of the Black Administration Act thus remained in effect until the amended date.
Author F.H.I. CassimSource: Annual Survey of South African Law 2006, pp 500 –528 (2006)More Less
The Auditing Profession Act 26 of 2005 came into effect on 1 April 2006 (GN 316 GG 28698 of 31 March 2006). The Act repeals and replaces the Public Accountants' and Auditors' Act 80 of 1991. It contains a much more streamlined and a more stringent regulation of the auditing profession.
Author R.H. ZulmanSource: Annual Survey of South African Law 2006, pp 529 –536 (2006)More Less
In order to prove an act of insolvency in Lynn & Main Inc v Naidoo 2006 (1) SA 59 (N) (also discussed in the chapter on the Law of Evidence), the applicant in sequestration proceedings adduced a letter from the respondent's attorney. The letter, which included a statement that it could 'not be used to prove any act of compromise' in terms of the Insolvency Act 24 of 1936 ('the Insolvency Act'), was marked 'without prejudice'.