Annual Survey of South African Law - Volume 2006, Issue 1, 2006
Volume 2006, Issue 1, 2006
Source: Annual Survey of South African Law 2006, pp 537 –556 (2006)More Less
In Barloworld Capital (Pty) Ltd t/a Barloworld Equipment Finance v Napier NO 2006 (5) SA 384 (SCA), an appeal from a decision in the Witwatersrand Local Division (see 2005 Annual Survey 521), the Supreme Court of Appeal considered the practice in the insurance industry of having the interest of a third party, usually the owner of insured property, noted by the insurer. The effect of a noting of interest is that, where the insured property is damaged or destroyed, an owner of insured property is paid by the insurer before the insured, to the extent of the insured's indebtedness to the owner and subject to the maximum insurance cover.
Author Charles De Matos-AlaSource: Annual Survey of South African Law 2006, pp 558 –594 (2006)More Less
The National Credit Act 34 of 2005 ('the Act') is an ambitious instrument with wide ranging effect. While the Act is aimed at regulating the credit industry it also regulates incidences which are not traditionally classified as the provision of credit. The Act however does not regulate the entire credit industry as there are important exceptions to its application. In essence the Act is a consumer protection statute. It is a synthesis of former interventions in the protection of credit consumers and new regulatory structures. The Act draws under its aegis the functions previously regulated by the Credit Agreements Act 75 of 1980 and the Usury Act 73 of 1968, replacing them within a scheme that covers all manner of credit transactions. The Act simplifies the cumbersome provisions of these previous statutes and is a welcome development (Otto The National Credit Act Explained (2006) 4-5). This chapter will focus on credit transactions which involve the extension of credit, which is the core business of financial institutions, and will not discuss incidental credit agreements.
Author Philip GinsburgSource: Annual Survey of South African Law 2006, pp 595 –604 (2006)More Less
One may be forgiven for having thought that after the encyclopedic judgment of the Supreme Court of Appeal in Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International 2005 (2) SA 46 (SCA) (discussed in 2005 Annual Survery 573ff), further judicial pronouncements could not have added to the development of the law on trade mark dilution under s 34(1)(c) of the Trade Marks Act 194 of 1993. However, the Constitutional Court did do so when reconsidering the matter in Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as amicus curiae) 2006 (1) SA 144 (CC), 2005 (8) BCLR 743. This took place in a hearing in respect of both an application for leave to appeal and the merits. Leave was granted and the appeal was upheld. (It is unnecessary to repeat the facts of the case as they form part of the review of the judgment in the 2005 Annual Survey 573.)
Author John GroganSource: Annual Survey of South African Law 2006, pp 605 –667 (2006)More Less
Uncertainty continues to reign over the potential overlap between the constitutional right to fair administrative action, as codified in the Promotion of Administrative Justice Act 3 of 2000 ('PAJA'), on the one hand, and labour legislation designed to give effect to those rights, on the other. Two distinct approaches have emerged. The first draws a rigid distinction between administrative law and labour law; the second regards the two branches of law as mutually reinforcing. The Labour Court has come out strongly in support of the former view. The divisions of the High Court, and even the Supreme Court of Appeal itself, remain divided.
Author James GrantSource: Annual Survey of South African Law 2006, pp 668 –683 (2006)More Less
An appeal against numerous convictions, including culpable homicide, by an appellant disputing that he had possessed criminal capacity due to intoxication, was rejected by Froneman J in S v Scholtz 2006 (1) SACR 442 (E). The appellant, a truck driver, spent the afternoon of 30 August 1998 drinking at the driver's rest quarters in Walmer, Port Elizabeth. The appellant and four others drank at least three bottles of brandy. A fight broke out between him and one of the four, after which he grabbed and pulled on some electrical wires. He then climbed into his truck and drove for about 50 kilometres on public roads, breaking through a seven meter security gate and knocking a tree out of the ground. He drove on the wrong side of the road or highway on several occasions and eventually, while on the wrong side of the road, collided with a BMW, killing the driver. The appellant continued driving and was discovered some 4.4 kilometres further, with his head slumped over, and the engine still running. The appellant was charged and convicted in a magistrate's court of several crimes; including driving under the influence; damage to property and culpable homicide. He appealed against his various convictions and sentences.
Author Michael CowlingSource: Annual Survey of South African Law 2006, pp 684 –762 (2006)More Less
In S v Makolane 2006 (1) SACR 589 (T) the accused was charged with the theft of two bags of cement. As a means of securing his attendance at court he was issued with a notice in terms of s 157A (1) of the Criminal Procedure Act 51 of 1977 which gave him the opportunity to admit his guilt and pay a fine in the sum of R300. The accused was prepared to admit guilt and duly paid the R300 stipulated fine. This was subsequently confirmed by a magistrate.
Author Alan DodsonSource: Annual Survey of South African Law 2006, pp 763 –777 (2006)More Less
The proper approach to disputes of fact in application proceedings is a recurrent theme. The rule in Plascon-Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H is well-entrenched as the guide to whose version should prevail in such cases. But should it be? In Mahala v Nkombombini 2006 (5) SA 524 (SE) the court was faced with an urgent application involving a dispute over rights to bury a deceased person. The respondent, the mother of the deceased, disputed that the applicant was the deceased's common law wife as claimed. The funeral was two days away, leaving no time for a referral to oral evidence. The court advocated a robust approach. It considered a departure from the rule in Plascon-Evans to be appropriate (para 9).
Author Hilton StanilandSource: Annual Survey of South African Law 2006, pp 778 –787 (2006)More Less
The National Ports Act 12 of 2005 ('the 2005 Act'), which was assented to on 31 July 2005, finally came into force on 26 November 2006. The Act provides for the establishment of the National Ports Authority ('the Authority') and the Ports Regulator. The management of the ports is radically restructured with the object of promoting and improving the efficiency with which the ports are operated. Much commentary could be directed at the manner in which the objects of the Act, which are fully adumbrated in s 2, may be achieved. That commentary would however have little to do with the enforcement of maritime claims in the Admiralty Court which is the subject of this chapter. What follows instead are some remarks necessarily restricted to issues of statutory construction as they relate to maritime claims arising out of the 2005 Act that may, or ought to, come before the Admiralty Court.
Author Frank SnyckersSource: Annual Survey of South African Law 2006, pp 788 –811 (2006)More Less
The problem with character evidence tends to be its intended use to suggest a propensity to commit acts that are similar to the acts in issue in litigation (particularly criminal proceedings), where the unfairness of such reasoning outweighs its cogency. However, in defamation actions character is in issue in order to determine the extent to which the plaintiff's good name and reputation have been injured by the defamation. Evidence proving bad character may therefore be led to reduce the damages suffered by the plaintiff. Such evidence cannot relate to incidents of bad conduct, since that would be irrelevant to reputation and would serve only to suggest that the plaintiff has done some bad things. The rule becomes tricky to apply in cases where a justification defence fails, but where the defendant seeks to lead evidence regarding conduct approximating the conduct that formed the basis of the justification defence, ie, evidence that partially justifies the defamatory allegations without amounting to a defence.
Author David CleggSource: Annual Survey of South African Law 2006, pp 812 –835 (2006)More Less
A number of significant amendments to the Income Tax Act 58 of 1962, ('the Act') were introduced by the Small Business Tax Amnesty and Amendment of Taxation Laws Act 9 of 2006; the Second Small Business Tax Amnesty and Amendment of Taxation Laws Act 10 of 2006; the Revenue Laws Amendment Act 20 of 2006 and the Revenue Laws Second Amendment Act 21 of 2006. The amendments were voluminous and at the date of writing, certain of these amendments are already obsolete (for example, the Small Business Tax Amnesty). The impact of other amendments is well known and their details readily available (as for example changes in the rates of taxation for companies and individuals); and still others are of merely textual significance. This chapter will deal only with the more significant amendments of broad general application and those of more niche application which are nonetheless of significant importance within those niches.
Author Christian SchulzeSource: Annual Survey of South African Law 2006, pp 836 –840 (2006)More Less
In Society of Lloyd's v Romahn 2006 (4) SA 23 (C), Van Zyl J had to deal with a mixed bag of issues, but the most important issue pertained to the process of characterisation, or classification, which is regarded as the most fundamental - but also the most difficult - problem in private international law. Briefly, the plaintiff sought provisional sentence against the defendants on the basis of judgments obtained against them in the English High Court of Justice, Queen's Bench Division, Commercial Court, London. The defendants were investors who had chosen to become underwriting members of the plaintiff, and who had failed to pay the plaintiff the amounts claimed from them. The plaintiff took judgment in English Courts against the defendants more than three years, but less than six years, prior to service on them of the South African provisional sentence summons issued on the strength of such judgments. The defendants contended that the plaintiff's claims had become prescribed in terms of South African law.
Source: Annual Survey of South African Law 2006, pp 841 –860 (2006)More Less
The prosecution of Schabir Shaik could well be described as the most important criminal trial with a direct impact on national political life in post-apartheid South Africa. It differed significantly from the apartheid-era political trials which, in the main, were trials of ideology (ie prosecutions of persons committed to a democratic polity in South Africa). The Shaik trial had strongly overt political overtones, but it was undoubtedly also a trial about fraud and corruption. What attracted so much interest was the alleged relationship between Shaik and Jacob Zuma while the latter held high office, including the Deputy Presidency of the Republic. The indictment alleged that between 1994 and 1999 Shaik paid Zuma substantial sums of money (in excess of one million rand) in order to influence Zuma to use his name and political influence for the benefit of Shaik's business enterprises and as an ongoing reward for having done so. The High Court (Squires J, brought from retirement to preside) found that Shaik was guilty of a contravention of s 1(1)(a) of the Corruption Act 94 of 1992 in relation to such payments and that Shaik had bribed Zuma to protect a French armaments company from exposure to official investigation. Shaik was sentenced to 15 years' imprisonment (see S v Shaik 2007 (1) SACR 142 (D)). The trial court also made an order directing Shaik to forfeit the proceeds of his crimes in terms of the Prevention of Organised Crime Act 121 of 1998.