Annual Survey of South African Law - Volume 2010, Issue 1, 2010
Volume 2010, Issue 1, 2010
Source: Annual Survey of South African Law 2010, pp 1 –40 (2010)More Less
The position of National Director of Public Prosecutions (NDPP) has been something of a poisoned chalice in recent years. The last four incumbents have been at the centre of political controversy of some sort. Two (Bulelani Ngcuka and Vusi Pikoli) were dismissed by successive Presidents and have challenged their dismissals with a measure of success; a third (Mokotedi Mpshe) faced heavy public criticism for the decision to withdraw charges against the President, Mr Jacob Zuma; and the fourth (Menzi Simelane), who is the incumbent, faced questions over whether he is fit and proper for appointment as NDPP.
Author Geo QuinotSource: Annual Survey of South African Law 2010, pp 41 –76 (2010)More Less
The enquiry into whether particular action amounted to administrative action as defined in section 1(i) of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') again dominated administrative law jurisprudence in 2010. As the overview below illustrates, the vast majority of decided cases dealt either exclusively or primarily with this issue. The trend in South African administrative law adjudication thus still seems to be highly formalistic and conceptual in terms of which the focus is largely on the identification of administrative action. Once that question has been answered the application of the actual rules of administrative law and formulating appropriate remedies follow almost on automatic pilot.
Source: Annual Survey of South African Law 2010, pp 77 –97 (2010)More Less
The legislation and cases under review for 2010 are of international significance for litigants, the shipping industry, and for law reform, the vast majority of parties before the South African Admiralty Court being foreign, with their numbers rising for various reasons. Straddling one of the major shipping routes of the world - made more important by the growing threats of piracy off the east and west coasts of Africa - with her large commercial ports enjoying major capital investments, and with a seat on the Council of the International Maritime Organization (as a category 'C' member with special interests in maritime transport or navigation), South Africa's Admiralty Court is frequented by foreigners, especially - but by no means exclusively - in respect of the arrest of associated ships as security for arbitration or litigation contemplated, pending or proceeding in such major maritime centres as London, New York, Hong Kong, and Singapore and, soon, Shanghai, especially as South Africa is now a member of the group of BRICS states.
The legal developments critically analysed in this review will often affect proceedings in those jurisdictions, and, as greater services and supplies of all types are provided to ships in South African ports, more local decisions on the merits claims relating to these services and supplies will serve before the Admiralty Court.
Source: Annual Survey of South African Law 2010, pp 98 –131 (2010)More Less
In Kylie v CCMA and Others 2010 (4) SA 383 (LAC) (discussed below under 'Labour Relations') the Labour Appeal Court (per Davis JA) concluded that the constitutional protection of fair labour practices as enshrined in section 23 of the Constitution of the Republic of South Africa, 1996, applies to sex workers despite their engagement in illegal employment.
What of the remedy? To the Labour Appeal Court, their substantive conclusion did not mean that the full range of remedies and rights under the Labour Relations Act 66 of 1995 ('LRA') should necessarily be available in every such case (para ). Instead, said Davis JA, each case should be decided on its own facts. For example, in Kylie, the Labour Appeal Court held it could not order reinstatement of Kylie, as this would be manifestly in violation of the Sexual Offences Act 23 of 1957 (which criminalizes the performance of sexual services for reward). The court also deliberately left open the question whether a sex worker could be awarded monetary compensation for loss of employment (para ), although it mooted that it 'may be ... that such compensation would be inappropriate in a case where the nature of the services rendered by the dismissed employee are illegal' (ibid).
Author Estelle HurterSource: Annual Survey of South African Law 2010, pp 132 –178 (2010)More Less
The Jurisdiction of Regional Courts Amendment Act 31 of 2008 commenced on 9 August 2010 (Proc R41 GG 33448 of 6 August 2010). This event gave rise to the simultaneous repeal of the Divorce Court rules made under section 10(4) of the Administration Amendment Act 9 of 1925 and the commencement of the Rules Regulating the Conduct of the Proceedings of the Magistrates' Courts of South Africa, in terms of section 9(4) of the Jurisdiction of Regional Courts Amendment Act 31 of 2008 (read with rule 70 of the said rules) on 15 October 2010 (GN 888 GG 33620 of 8 October 2010). The new rules are contained in GN R740 GG 33487 of 23 August 2010.
Author Christian SchulzeSource: Annual Survey of South African Law 2010, pp 179 –186 (2010)More Less
In Burchell v Anglin 2010 (3) SA 48 (ECG), the court had to decide whether or not to apply foreign law. The facts of the case were as follows. The plaintiff, Barry Burchell, of Burchell Game Reserve, Alicedale, Eastern Cape, ran a game reserve and hunting safari business in South Africa known as 'Frontier Safaris and Burchell Taxidermy'. Most of the safari clients originated from the United States of America through a booking agent by the name of Cabelas in the state of Nebraska. This business relationship was very good, but from February 2005, the agent dramatically decreased the bookings with the plaintiff. The plaintiff alleged that this was due to defamatory statements made by the defendant to the agent. The defendant, Scott Anglin, was a hotel renovator residing in San Antonio, Texas. For a short period from 2002 onwards, the plaintiff and the defendant were both friends and business associates purchasing different fixed properties together. However, their relationship soured from about August 2003, and it broke down completely in January 2005.
Source: Annual Survey of South African Law 2010, pp 187 –250 (2010)More Less
In 2003, Mqabukeni Chonco and 383 other members of the Inkhata Freedom Party (IFP) who had been imprisoned for what they alleged were political crimes applied to the President for pardons in terms of section 84(2)(j) of the Constitution of the Republic of South Africa, 1996. Six years later, despite numerous requests, speeches by IFP officials in and out of Parliament, and a complaint to the South African Human Rights Commission, the President had not taken a decision. In 2005, the President stated that he had urged the Minister of Justice and Constitutional Development to speed up the processing of the applications. Believing that the problem lay with the Minister, Chonco and the other prisoners applied to the High Court for an order forcing the Minister to process the applications so that the President could take a decision.
Author A.J. Van der WaltSource: Annual Survey of South African Law 2010, pp 251 –294 (2010)More Less
In constitutional property law, questions about the validity of regulatory control over the use and development of immovable property (and the consequent impossibility of claiming compensation for loss of value caused by regulatory control) are decided on the basis of the deprivation provision in section 25(1) of the Constitution of the Republic of South Africa, 1996, as interpreted in FNB (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)). The general policing power or regulatory principle as set out in this decision has been adopted in South African law, which means that state regulation of land use planning, development, building and conservation of the environment is regarded as a legitimate exercise of state regulatory power that does not require compensation. Accordingly, regulatory deprivation of property without compensation is normally constitutionally unassailable even when it causes loss of value, provided the regulatory action was properly authorized, administrative justice principles were adhered to and the effects of the regulatory action are not arbitrary, excessive or disproportionately unfair (Nyangane v Stadsraad van Potchefstroom 1998 (2) BCLR 148 (T); South Peninsula Municipality v Malherbe 1999 (2) SA 966 (C); Oudekraal Estates (Pty) Ltd v City of Cape Town 2002 (6) SA 573 (C); Oudekraal Estates v City of Cape Town 2004 (6) SA 222 (SCA); African Billboard Advertising (Pty) Ltd v North and South Central Local Councils, Durban 2004 (3) SA 223 (N)). As a rule, unauthorized, procedurally unfair or excessive (arbitrary) regulatory controls are invalid in terms of section 25(1).
Source: Annual Survey of South African Law 2010, pp 295 –324 (2010)More Less
The Companies Act 71 of 2008 was assented to on 8 April 2009. The date of commencement of the Act has not yet been proclaimed but it may not come into operation earlier than 9 April 2010 (s 225). Draft Regulations to the Companies Act were published for comment on 22 December 2009 (GN 1664 GG 32832 of 22 December 2009). On 27 July 2010, the Companies Amendment Bill was released electronically (on the web sites of the Department of Trade and Industry and the Companies and Intellectual Property Office); it was published on 27 October 2010 in GG 33695. The Companies Amendment Bill (40B-2010) was tabled in Parliament on 9 November 2010. It proposed the amendment of the Companies Act to correct errors and to solve legal-technical and grammatical issues. The Bill was published for public comment. Public hearings were held on 30 November and 1 December 2010. By the end of 2010, the final version of the Bill had not been published.
Author S.V. HoctorSource: Annual Survey of South African Law 2010, pp 325 –355 (2010)More Less
Sections 28 and 51 of this Act commenced on 4 October 2010. In terms of section 51, it is an offence for an accountable institution or reporting institution to fail, within the prescribed period, to report to the Financial Intelligence Centre the prescribed information in respect of a cash transaction in accordance with section 28. Section 28 sets out the reporting requirements for an accountable institution and a reporting institution.
Author Andra Le Roux-KempSource: Annual Survey of South African Law 2010, pp 356 –400 (2010)More Less
This Act was assented to by the President in October 2010 (GG 33607, Vol 544). The Act has at aim to increase the ambit and scope of the existing provisions dealing with the ascertainment of bodily features as set out in section 37 of the Criminal Procedure Act 51 of 1977. In terms of section 36B of the Act, a police official must take fingerprints or must cause such prints to be taken of any person arrested upon a charge related to an offence referred to in Schedule 1, or any person released on bail if such a person's fingerprints were not taken upon arrest, or a person upon whom a summons has been served in respect of any offence referred to in Schedule 1, or a person convicted by a court in respect of any offence that the Minister has by notice published in the Government Gazette to be declared an offence for the purposes of this subsection or, from any arrested person irrespective of the charge as well as any person deemed under section 57(6) of the Act to have been convicted of any offence which the Minister has by notice published in the Gazette.
Author Jacqueline HeatonSource: Annual Survey of South African Law 2010, pp 435 –496 (2010)More Less
Sections 1-11, 13-21, 27, 30, 31, 35-40, 130-134, 305(1)(b) and (c), 305(3)-(7), 307-11 and 313-15, and the second, third, fifth, seventh and ninth items of Schedule 4 of the Children's Act 38 of 2005 ('the Act') came into operation on 1 July 2007 (Proc 13 GG 30030 of 29 June 2007). The remaining sections of the Act had to be inserted by the Children's Amendment Act 41 of 2007 ('the Amendment Act') and/or required regulations to be issued before they could be implemented. The Amendment Act came into operation on 1 April 2010, while the regulations were published on 31 March and 1 April 2010 (Proc R13 GG 33076 of 1 April 2010; GN R250 GG 33067 of 31 March 2010; GN R261 GG 33076 of 1 April 2010). As all the provisions and regulations were in place by 1 April 2010, the remaining sections of the Act were brought into operation on that day (Proc R12 GG 33076 of 1 April 2010). The Act and Amendment Act were discussed in the 2006 Annual Survey 141-55 and 2007 Annual Survey 885-901.
Author Robert SharrockSource: Annual Survey of South African Law 2010, pp 543 –626 (2010)More Less
The Consumer Protection Act 68 of 2008 was due to become fully operational on 24 October 2010 (s 122 read with item 2(2) of sch 2). In terms of item 2(3)(a) of schedule 2, the Minister has postponed the implementation date to 31 March 2011 (GN 917 GG 33581 of 23 September 2010). In the meantime, 'Proposed Consumer Protection Regulations' have been published for comment (GN 1099 GG 33818 of 29 November 2010).
Author Alastair SmithSource: Annual Survey of South African Law 2010, pp 627 –677 (2010)More Less
The court reviewing the Master's decision, ruling, order or taxation under section 151 of the Insolvency Act 24 of 1936 exercises a statutory power of review enabling it to consider the matter afresh, with the powers of both a review and an appeal court and, on setting aside the decision, of deciding the matter on new evidence. The extent of its powers derives from the relevant statutory provision and the nature and extent of the decider's functions (Nel and Another NNO v The Master (Absa Bank Ltd and Others Intervening) 2005 (1) SA 276 (SCA) paras -).
Author J.P. Van NiekerkSource: Annual Survey of South African Law 2010, pp 678 –753 (2010)More Less
Construction guarantees provided by insurers continue to be the subject of litigation.
The facts in Lombard Insurance Co Ltd v Landmark Holdings (Pty) Ltd and Others 2010 (2) SA 86 (SCA) were rather complicated as they involved not only several contracts but also a number of parties. They may be summarized as follows.
The insurer was a registered short-term insurer and entitled to issue guarantee policies in terms of the Short-term Insurance Act 53 of 1998 ('SIA'). It issued a construction guarantee on behalf of a construction company (Landmark) in favour of a training academy.
Source: Annual Survey of South African Law 2010, pp 754 –774 (2010)More Less
In Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others 2010 (6) SA 329 (SCA), the appellants (the plaintiffs in the court below) alleged that they were, by assignment or as original authors, the owners of the copyright in the musical and literary works that comprise the musical Umoja. They further alleged that the defendants had infringed their copyright by performing the whole, or a part of, Umoja, by making recordings and cinematograph films of it, and by having it broadcast. The acts of infringement were alleged to have been committed in nineteen other countries, from Japan in the east to the United States of America in the west. Harms DP stressed that, in relation to these infringements, the appellants did not rely only on the South African Copyright Act 98 of 1978. Instead, they framed their claims with reference to each of these countries (para ; see the example given by the judge with reference to the United Kingdom (ibid)).