Annual Survey of South African Law - Volume 2007, Issue 1, 2007
Volume 2007, Issue 1, 2007
Source: Annual Survey of South African Law 2007, pp 1 –24 (2007)More Less
On 7 October 2007, the Sunday Times published an article authored by former Supreme Court of Appeal and Constitutional Court Judge, Johann Kriegler, entitled 'Judge Hlophe betrayed the nation with his greed'. Remarkable in its frontal candour, the article called for Hlophe JP of the High Court in Cape Town to resign, because he was not a fit and proper person to be a judge.
Author Clive PlasketSource: Annual Survey of South African Law 2007, pp 25 –55 (2007)More Less
It is a regular feature of this chapter that substantial discussion is devoted to the case law on what is, and what is not, administrative action for purposes of the notoriously difficult definition of this term in section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). This year is no different.
Author Angus StewartSource: Annual Survey of South African Law 2007, pp 56 –66 (2007)More Less
During 2007, the Merchant Shipping (National Small Vessel Safety) Regulations, 2007 were brought into force in terms of section 356 of the Merchant Shipping Act 57 of 1951. They were published in GN R704 and GN R705 GG 30151 of 8 August 2007 and repealed the Regulations for the Use of Vessels of Less than Three Metres in Length, 1981 and the Merchant Shipping (Small Vessel Safety) Regulations, 2002.
Source: Annual Survey of South African Law 2007, pp 67 –130 (2007)More Less
The Bill of Rights does not only apply 'vertically' (as against the state); it also applies horizontally (between non-state actors). This is reflected in section 8(2) of the Constitution of the Republic of South Africa, 1996. It stipulates that the Bill of Rights 'binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right'. This test is somewhat uncertain and does not always yield a positive answer. It is thus advantageous for a party seeking to challenge the constitutionality of conduct if the Bill of Rights applies 'vertically' to the matter at hand - it applies with full force to an entity without further ado. In this regard, section 8(1) provides, without qualification, that the Bill of Rights binds the legislature, the executive, the judiciary, and all 'organs of state'. An 'organ of state' is defined in section 239 of the Constitution as (a) a department of state or administration; (b) a functionary or institution exercising a power or performing a function under the Constitution or a provincial constitution; or (c) a functionary or institution 'exercising a public power or performing a public function in terms of any legislation'. A significant aspect of the last category is that it extends the concept of 'organ of state' beyond the state to other bodies that perform public functions or exercise public power (see, for example, Inkatha Freedom Party & another v Truth and Reconciliation Committee & others 2000 (3) SA 119 (C) at 133).
Author Estelle HurterSource: Annual Survey of South African Law 2007, pp 131 –148 (2007)More Less
A wide range of matters presented themselves during the year under review. The infusion of constitutional values into the judgments of the courts continued unabated. This was particularly apparent in the field of the execution of immovable property. Change was also in the offing, as can be seen from the proposed legislation surveyed below and the Practice Directions of the Supreme Court of Appeal. The Supreme Court of Appeal's Practice Directions (see 2007 (6) SA 1) should be noted by practitioners. These directions deal with the postponement or settlement of an appeal; the withdrawal as attorney of record; the lodging of heads of argument; enrolment; the preparation of core bundle documents; heads of argument in cross-appeals; leave to appeal; documents of appeal; and communications from practitioners to the president of court or presiding judge. Finally, the Directions also stipulate the new mode of address in English as from 2 May 2007. The bench will now be addressed through the presiding judge and be referred to as 'the court'; an individual member of the bench is addressed by using the judge's surname preceded by the word 'judge'. The current form of address in Afrikaans remains unchanged.
Author S.M. LuizSource: Annual Survey of South African Law 2007, pp 149 –204 (2007)More Less
Two new classifications of companies were introduced into the Companies Act with the inclusion of definitions of a 'widely held company' and a 'limited interest company'. The relevance of these classifications becomes apparent when the amendments to the provisions regulating auditors are considered (see below).
A company is considered to be widely held if its articles provide for an unrestricted transfer of its shares, or its articles permit it to offer shares to the public, or it resolves by special resolution to be a widely held company, or if it is a subsidiary of a widely held company (s 1(6)(a)(i)-(iv)). A company is also a widely held company if it has two or more types or classes of shares and its articles provide for the unrestricted transfer of its shares in one or more of these types or classes (s 1(6)(b)). A company need thus comply with only one of the requirements specified in order to be classified as widely held. If it is not a widely held company, it is classified as a limited interest company (s 1(6)(d)). Most public companies will be classified as widely held and any private company that is a subsidiary of a widely held company will be considered to be widely held irrespective of what the articles of the subsidiary may provide.
Author Christian SchulzeSource: Annual Survey of South African Law 2007, pp 205 –210 (2007)More Less
This Act was briefly canvassed in the 2006 Annual Survey 142-56. Certain sections of the Act came into operation on 1 July 2007. The enacted section 17 has lowered the age of majority in South African law from 21 years to eighteen years. This is relevant to the many young South Africans temporarily living abroad, who are either still domiciled in South Africa, or who are still South African citizens. If the conflict of laws rule of the foreign country in which they live points to domicile or nationality for the determination of personal status, those older than 18 years will now have full contractual capacity in accordance with South African law.
Author Kate HofmeyrSource: Annual Survey of South African Law 2007, pp 211 –240 (2007)More Less
The background to the Constitutional Court's judgment in AAA Investments (Pty) Ltd v Micro Finance Regulatory Council & another 2007 (1) SA 343 (CC) is set out below under 'Mootness'. In addition to its approach to mootness, the case is noteworthy for its treatment of the issue of delegated of legislative authority.
The High Court had found that the rule-making power of the Micro Finance Regulatory Council was a legislative power that had not been properly delegated to the Council (para ).
Author A.J. Van Der WaltSource: Annual Survey of South African Law 2007, pp 241 –268 (2007)More Less
In constitutional property law, state regulation of land use planning, development, building and the conservation of the environment is generally regarded as a legitimate exercise of state regulatory power (sometimes referred to as the police power). Consequently, regulatory deprivation of property is constitutionally unassailable, provided that the action is properly authorized, due process principles are adhered to, and the effects of the regulatory action are not arbitrary, excessive, or disproportionately unfair. As far as South African law is concerned, constitutional control over state regulation of land use is restricted to the requirements in section 25(1) of the Constitution of the Republic of South Africa, 1996 : the deprivation of property must be authorized by law of general application, and no law may permit arbitrary deprivation (see, generally, AJ van der Walt Constitutional Property Law (2005) ch 4). According to general principles, regulation of land use can cause (even substantial) loss of property, but as long as the regulatory action is legitimate and fair, compensation is not payable for the deprivation. The exception is where a right to claim compensation for excessive regulatory deprivation is granted either by the constitution itself (Switzerland) or in judicial practice (the United States of America). If such a right to claim compensation for constructive expropriation (Switzerland) or regulatory takings (the United States) is not recognized, excessive regulatory deprivation is usually invalid for being unconstitutional. For the time being it seems unlikely that the doctrine of constructive expropriation will be adopted in South African law (Van der Walt op cit at 209-37). On the basis of case law and academic writing the situation in South African law is summarized by the Constitutional Court in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) (idem at 145-55): the deprivation of property resulting from state regulation of land use will be legitimate as long as it is properly authorized by legislation, complies with due process requirements, and is not arbitrary. In FNB, the court held that state regulatory action will be deemed non-arbitrary if there is sufficient reason for it.
Author S.V. HoctorSource: Annual Survey of South African Law 2007, pp 269 –306 (2007)More Less
Though assented to on 8 December 2000, the commencement date of this Act was 2 July 2007. The purpose of the Act is to promote fair lending practices, which require disclosure by financial institutions of information regarding the provision of home loans. Contravention of or failure to comply with any provision of this Act is an offence (s 15). The Minister of Housing may exempt a financial institution or category of institutions from the disclosure requirements in terms of the Act for a period not exceeding one year (s 14).
Author Michael G. CowlingSource: Annual Survey of South African Law 2007, pp 307 –392 (2007)More Less
As in the previous few years there have not been many legislative developments in the sphere of criminal procedure. An exception in this respect has been the enactment of the Criminal Law (Sentencing) Amendment Act 38 of 2007 which, in turn, introduced significant amendments to the Criminal Law Amendment Act 105 of 1997. The latter was the forerunner of the minimum sentence legislation designed to ensure that courts imposed certain minimum sentences on persons convicted of specified offences.
Author W.G. SchulzeSource: Annual Survey of South African Law 2007, pp 428 –468 (2007)More Less
The Pension Funds Amendment Act 11 of 2007 ('the Amendment Act') came into operation on 13 September 2007 (Proc 26 GG 30297 of 13 September 2007). (For a summary of selected aspects of the Amendment Act, see Pieter Stassen & Koos Stassen 'New Legislation : Selected Aspects of the Pension Funds Amendment Act' Nov 2007 De Rebus 39.) The Amendment Act is an interim measure only as Parliament envisages a complete revision of the Pension Funds Act 24 of 1956 ('the Act').
Author C-J. PretoriusSource: Annual Survey of South African Law 2007, pp 469 –533 (2007)More Less
Manna v Lotter & another 2007 (4) SA 315 (C) specifically dealt with the disputed sale of immovable property, but an important aspect of the decision potentially pertains to contracts in general. The applicant (purchaser) made a written offer to purchase the respondent's (seller's) property. However, the seller signed the offer to purchase, and thus accepted the offer, only after its expiry date. It seems that initially both parties believed that a binding agreement had been concluded, but when later called upon to sign the necessary transfer documents the seller failed to respond despite repeated efforts on the part of the attorneys attending to the transfer. Eventually matters came to a head more than a year later when the purchaser launched an application to compel specific performance of the deed of sale. The seller proffered several defences, the main one of which was that the sale was void because the offer was accepted after it had lapsed.
Author Alastair SmithSource: Annual Survey of South African Law 2007, pp 534 –561 (2007)More Less
SACCAWU v Master of the Supreme Court  4 All SA 1034 (T) concerned the appointment of provisional liquidators to companies in winding-up. In brief, the context of such appointments is that the relevant statutory amendments introduced in 2004 are not yet effective. The practice in the Master's Office in the Transvaal Provincial Division operates in terms of a requisition system and certain policy documents, neither of which has legal force. Under case law, the Master's exercise of his discretion concerning the appointment of liquidators is unfettered and may be challenged in review proceedings on limited grounds. The Master's reasons for his decision may now be sought under a relatively new statute.
Author J.P. Van NiekerkSource: Annual Survey of South African Law 2007, pp 562 –640 (2007)More Less
The principal aim of an insurance contract, if it is one of indemnity, is to provide the insured with an indemnification against either the loss or damage it may suffer, or the liability it may incur towards third parties. However, contracts of a type other than insurance often contain an undertaking in terms of which the one party subsidiarily undertakes to indemnify the other party.
Source: Annual Survey of South African Law 2007, pp 641 –657 (2007)More Less
Litigation by a leading motor manufacturer, Bayerische Motoren WerkeAG (BMW), resulted in two important decisions by the Supreme Court of Appeal during the year under review. In these decisions Harms ADP reformulated what constitutes infringing use for purposes of section 34(1) of the Trade Marks Act 194 of 1993.
Author Marlize Van JaarsveldSource: Annual Survey of South African Law 2007, pp 658 –766 (2007)More Less
The EEA provides for fines if designated employers fail to observe the provisions of the EEA. However, the true impact of these financial measures were for the first time illuminated when the first number of decisions, dealing with employers who simply failed or chose to ignore to the inspectors of the Department of Labour' warning to comply with compliance orders, were reported during the year under review. Director-General of the Department of Labour v Jinghua Garments (Pty) Ltd (2007) 28 ILJ 880 (LC) is the first reported decision to illustrate the dire consequences of an employer's failure to comply with its employment equity obligations. The respondent in Jinghua failed to comply with several provisions of the EEA, in particular with a written undertaking it had given to a labour inspector. The inspector issued a compliance order that the respondent also ignored. The inspector applied in the Labour Court for the compliance order to be made an order of the court, and also for a fine to be imposed. The employer having made several admissions regarding his failure to comply with his EEA obligations, the only issue before the court related to the fine.