Annual Survey of South African Law - Volume 2011, Issue 1, 2011
Volume 2011, Issue 1, 2011
Source: Annual Survey of South African Law 2011, pp 1 –48 (2011)More Less
2011 saw a transition from the tenure of former Ngcobo CJ to a new era in which the judiciary will be led by Mogoeng CJ. Both the end of Ngcobo CJ's term, which followed an unsuccessful attempt to extend his term, and the appointment of the new Chief Justice attracted significant public interest and raised critical issues of process and substance relating to judicial appointments.
Author Geo QuinotSource: Annual Survey of South African Law 2011, pp 49 –65 (2011)More Less
In Roux v Health Professions Council of South Africa and Another (SCA 21 September 2011 (case 786/2010) unreported), the court held that the formulation of a charge sheet upon which a disciplinary hearing is to follow in itself constitutes administrative action and would thus be subject to challenge under the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') even prior to the contemplated hearing (para ).
Source: Annual Survey of South African Law 2011, pp 66 –80 (2011)More Less
In 2011, the South African Maritime Safety Authority ('SAMSA') issued the following marine notices, adequately described by their titles, which could be relevant to proceedings in the Admiralty Court or a Court of Marine Enquiry or indeed any court exercising criminal jurisdiction: marine notice 2 of 2011 'Amendments to MARPOL Annex 1 from 1 January 2011 to ship operators, seafarers, maritime training institutions and principal officers'; marine notice 5 of 2011 'Approval of simulator systems for use in maritime training institutions and programmes and performance areas of instructors involved in training and education using simulators in accordance with Regulation 1/6 and 1/12 of the STCW convention'; marine notice 6 of 2011 'The list of participants in the national small vessel examination regime and the list of appointed small vessel examiners to small vessel operators, small vessel skippers, small vessel training institutions and principal officers'; marine notice 8 of 2011 'Marine Incident Report for use by small vessels involved in an incident to all principal officers, regional managers, surveyors, small vessel operators, skippers, maritime training institutions, accredited agencies and other interested and affected parties'; marine notice 11 of 2011 'To owners, operators, masters, and agents of South African ships, seafarers serving on South African ships, approved medical practitioners and principal officers'; marine notice 13 of 2011 'SAMSA interpretation of the regulations pertaining to, and internal policy on, small vessel surveys, certification and numbering, and skipper qualification and certification, in terms of the Merchant Shipping (National Small Vessel Safety) Regulations, 2007 (as amended)'; marine notice 14 of 2011 'SAMSA approved servicing stations for inflatable life rafts to masters and operators of ships, their agents, South African association of ship operators and agents, harbour masters, other interested parties and principal officers'; marine notice 18 of 2011 'Fitness for duty and rest periods for watchkeeping personnel and those whose duties involve designated safety, security and prevention of pollution duties in accordance with the provisions of Section A-VIII/1 of the STCW Code to SAMSA examiners, principal officers, maritime education and training providers, ship operators and owners and seafarers'; marine notice 21 of 2011 'Alerting all SAMSA approved medical practitioners to pending changes to the Merchant Shipping (Eyesight and Medical Examination) Regulations, 2004 to SAMSA examiners, principal officers, SAMSA approved medical practitioners, ship operators and owners and seafarers'; marine notice 22 of 2011 'EPIRB Registration to masters, ship owners, marine radio equipment suppliers and their agents and principal officers'; marine notice 24 of 2011 'South African seafarers database to all shipping companies, port authority, crewing agencies, ship's agencies, ASABOSA, SAIMENA, SOMMSA, training institutions and seafarers'; marine notice 26 of 2011 'Pontoon Boats (Excluding Passenger Vessels) - Minimum Requirements for Stability, Watertight Integrity and Survivability (in terms of the Merchant Shipping (National Small Vessel Safety) Regulations, 2007 (as amended) to all principal officers, survey staff, authorized agents, safety officers, boat builders, boat dealers, boat owners and other interested and affected parties'; marine notice 27 of 2011 'Shortcomings in the safety culture on board South African fishing vessels, a comparison of trends 2003 to 2011 to all principal officers, owners, operators, managers, skipper's and safety officer's of fishing vessels and training institutions'; and marine notice 28 of 2011 'Agreement between the African Paddling Association (APA) and SAMSA to all principal officers small vessel surveyors, commercial paddling industry and other interested and affect parties'.
Source: Annual Survey of South African Law 2011, pp 81 –126 (2011)More Less
The implications of the state's duty to 'respect, protect, promote and fulfil the rights in the Bill of Rights', as required by section 7(2) of the Constitution of the Republic of South Africa, 1996, is a relatively undeveloped area of our Bill of Rights jurisprudence. This duty played an important role in a much-publicised decision of the Constitutional Court in the year under review - Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC).
Author Estelle HurterSource: Annual Survey of South African Law 2011, pp 127 –177 (2011)More Less
A draft version of the Constitution Seventeenth Amendment Bill [B6-2011] was published for public comment (GG 33216 of 21 May 2010). The primary aim of the Bill is to amend the Constitution of the Republic of South Africa, 1996, further to define the role of the Chief Justice as the head of the judiciary; to change references to 'magistrates' courts' to 'lower courts'; to provide for a single 'High Court of South Africa', comprising of various divisions, and for the Constitutional Court as the apex court in all matters; to regulate the jurisdiction of the Constitutional Court and Supreme Court of Appeal accordingly; and to provide for ancillary matters pertaining to certain appointments, the composition of the Judicial Services Commission (JSC) and its extended role. The changes envisaged in respect of the role of the Chief Justice as head of the judiciary and the establishment of a single 'High Court of South Africa' would in turn lay the constitutional basis for the provisions of the Superior Courts Bill 2011 that aim to give effect to these changes. Because these two Bills are closely linked, the latter was simultaneously published for public comment.
Author Christian SchulzeSource: Annual Survey of South African Law 2011, pp 178 –187 (2011)More Less
In AS v CS 2011(2) SA 360 (WCC), the court was called upon to grant a decree of divorce and division of the joint estate of a same-sex relationship concluded abroad. The plaintiff, who was a holder of a British passport and a resident of Johannesburg in March 2005, shortly thereafter left South Africa to work and reside in the United Kingdom. She wanted to take up employment in the United Kingdom in order to earn money in a foreign currency and then to return to South Africa. The plaintiff and the defendant knew each other and they travelled together to England, where they then cohabited. On 9 August 2006, the parties entered into a civil partnership at the West Surrey Register Office in Guildford, outside London. Their partnership was validated by a certificate issued under the English Civil Partnership Act, 2004, which Act governs registered same-sex partnerships. After some time, the relationship between the parties soured and they separated in 2007. The plaintiff returned to South Africa in 2009 and now resides permanently in Gordon's Bay, Western Cape, whereas the defendant who also returned from the United Kingdom, is resident in Kempton Park, Gauteng. As a result of the parties' relationship having broken down irretrievably, the plaintiff issued summons in March 2010.
Source: Annual Survey of South African Law 2011, pp 188 –244 (2011)More Less
Two cases relating to legislative authority arose this year. The first is in the line of cases challenging legislation for a failure to facilitate public involvement in the legislative process. The second relates to the powers of the provincial legislatures to regulate their own financial affairs and, more broadly, to the meaning of section 104(1)(b) of the Constitution of the Republic of South Africa, 1996.
Author A.J. Van der WaltSource: Annual Survey of South African Law 2011, pp 245 –292 (2011)More Less
In constitutional property law, questions about the validity of regulatory control over the use and exploitation of property are decided with reference to 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 adopted in this decision means that state regulation of the use and exploitation of property (such as land use planning, regulatory control over the development of or building on land, 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 is constitutionally unassailable, without compensation, even when it causes loss of value for the property holder, 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 (see the cases discussed in AJ van der Walt Constitutional Property Law 3 ed (2011) 213-18; more recent case law is discussed below).
Source: Annual Survey of South African Law 2011, pp 293 –335 (2011)More Less
The Companies Act 71 of 2008 was assented to on 8 April 2009 and took effect on 1 May 2011. It repealed the Companies Act 61 of 1973, except for Chapter XIV (Winding-up of Companies) (see Item 9 of Schedule 5 of the 2008 Companies Act read with section 224(2).
The Companies Amendment Act 3 of 2011 was signed into law on 20 April 2011 (see GN 370 in GG 34243 of 20 April 2011). The Regulations and forms under the 2008 Companies Act were published on 26 April 2011 (GN R351 in GG 34239).
Author S.V. HoctorSource: Annual Survey of South African Law 2011, pp 336 –369 (2011)More Less
Certain offences in this Act commenced on 10 December 2011 (s 45). Section 32(1)(l) criminalizes the contravention or failure to comply with the obligation of a dealer to report to a police official in the area of his or her business where he or she suspects, or reasonably should suspect, that information furnished to the dealer is false, or that goods are stolen, or that there has been an attempt to alter the appearance of an item so as to conceal its identity (s 22(1)), or where a person required to make such a report continues with the transaction to which the suspicion relates (s 22(3)). Further, in terms of section 32(1)(o), it is an offence for any dealer who engages in the business of recycling controlled metal (as defined in Schedule 2 to the Act) to fail to apply for registration as a recycler (in terms of s 25(1)), or to be in unauthorized possession of any apparatus for recycling controlled metal or any article containing controlled metal, or to fail to be able to provide a reasonable explanation for the possession, acquisition or disposal of any cable consisting of controlled metal of which the cover has been burnt (in terms of s 25(4)), or failure by a recycler to report the suspicion that scrap metal offered to him or her has been tampered with in order to conceal its identity (in terms of s 25(5)).
Author Andra Le Roux-KempSource: Annual Survey of South African Law 2011, pp 370 –398 (2011)More Less
This Act came into operation in respect of the magisterial district of Pietermaritzburg on 15 February 2011, and for the magisterial district of Highveld Ridge on 31 October 2011. It provides for the postponement of certain criminal proceedings against an accused person in custody awaiting trial to be conducted through audiovisual link (s 159A). This provision is applicable to accused persons over the age of 18 years, who are in custody in a correctional facility in respect of an offence, who have already appeared in court, and whose case has been postponed (in other words, accused persons in custody pending the trial), and are required to appear, or to be brought, before a court in subsequent proceedings. Such accused persons may, for the purpose of a further postponement of the case or consideration of release on bail in terms of sections 60, 63, 63A, 307, 308A or 321, where the granting of bail is not opposed by the prosecutor, or where the granting of bail does not require the leading of evidence, appear before the court by means of audiovisual link. The proceedings will be regarded as having been held in the presence of the accused person if the accused is held in custody in a correctional facility and is able to follow the court proceedings and the court is able to see and hear the accused person by means of audiovisual link. Thus, in terms of section 159A, it will be deemed that an accused person appearing by means of audiovisual link had appeared before a court for all intents and purposes.
Author Michael KiddSource: Annual Survey of South African Law 2011, pp 399 –413 (2011)More Less
Two cases that were discussed in the equivalent chapter in the 2010 Annual Survey were taken on appeal during 2011. In Maccsand (Pty) Ltd v City of Cape Town ( ZASCA 141), the Supreme Court of Appeal was faced with two issues. In essence these were whether the recipient of rights in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) required (a) approval of rezoning of the land in question in terms of the applicable provincial planning legislation, the Western Cape Land Use and Planning Ordinance 15 of 1985 (LUPO), and (b) an environmental authorization in terms of the National Environmental Management Act 107 of 1998 (NEMA). The court a quo had decided that the mining rights (I am using this term to include all mining-related rights under the MPRDA) holder was legally required to comply with the requirements of both LUPO and NEMA. In other words, a decision to grant mining rights under the MPRDA did not trump the legal requirements of planning and environmental authorization.
Author Jacqueline HeatonSource: Annual Survey of South African Law 2011, pp 414 –482 (2011)More Less
The Government Employees Pension Law Amendment Act 19 of 2011 ('the Amendment Act') came into operation upon its publication in Government Gazette 34864 of 14 December 2011 (s 8(1)). The purpose of the Amendment Act includes amending the Government Employees Pension Law, 1996 (Proc 21 GG 17135 of 19 April 1996) to bring its provisions in line with those of the Divorce Act 70 of 1979 and the Pension Funds Act 24 of 1956 with regard to the sharing of pension interests on divorce (Memorandum on the Objects of the Government Employees Pension Law Amendment Bill, 2011 paras 1.2-1.5).
Author W.G. SchulzeSource: Annual Survey of South African Law 2011, pp 483 –533 (2011)More Less
The South African PostBank Limited Act 9 of 2010 ('the Act'), came into effect on 22 July 2011 (GN 607 GG 34476 of 22 July 2011). The Act has corporatized the Postbank Division of the Post Office as a legal person ('the company') authorized to conduct the business of a bank. The company will be registered as a bank after it has satisfied the requirements of the Banks Act. (See further under 'The South African Reserve Bank' below, for a discussion of the provisions which allow for the PostBank to become a participant in the National Payment System.)
Author Robert SharrockSource: Annual Survey of South African Law 2011, pp 534 –632 (2011)More Less
The Consumer Protection Act 68 of 2008 ('CPA') became fully operational on 31 March 2011 (GN 917 GG 33581 of 23 September 2010). The Act must be read together with the Consumer Protection Regulations promulgated in terms of the Act (GN R293 GG 34180 of 1 April 2011). The new legislation is complex and covers a broad range of consumer transactions. What follows is an explanation of certain provisions of the Act and regulations that have a direct bearing on the general principles of the law of contract. (On the influence of the Act on the law of purchase and sale specifically, see the chapter on The Law of Purchase and Sale.) For the sake of brevity, it is assumed that the supplier is a juristic person, and the consumer, a natural person.
Author Alastair SmithSource: Annual Survey of South African Law 2011, pp 633 –672 (2011)More Less
The trustee, although not perhaps an officer of the court E Bertelsmann et al Mars: The Law of Insolvency in South Africa 9 ed (2008) at 293 ('Mars'); Gilbert v Bekker and Another 1984 (3) SA 774 (W) at 777-81), owes obligations of trust to the creditors, the insolvent, the Master and the court, and is required to be independent, disinterested and unbiased (Ex parte The Master of the High Court South Africa (North Gauteng) 2011 (5) SA 311 (GNP) para ).
Author J.P. Van NiekerkSource: Annual Survey of South African Law 2011, pp 673 –718 (2011)More Less
During the year under review, two further decisions were reported on the nature of the liability under a construction or building guarantee provided by a financial institution such as an insurer.
In Dormell Properties 282 CC v Renasa Insurance Co Ltd and Others 2011 (1) SA 70 (SCA) the validity, terms and enforceability of such a guarantee was in issue.
Source: Annual Survey of South African Law 2011, pp 719 –734 (2011)More Less
The Intellectual Property Laws Amendment Bill [B8B-2010] was passed by the National Assembly in 2011. However, on 20 September 2012, the Presidency issued a statement that the President has referred the Bill back to the National Assembly for reconsideration, after he had considered all the submissions that he received against signing the Bill into law. He sent the Bill on the following grounds: (a) The Bill ought to have been referred to the National House of Traditional Leaders, as required in terms of section 18 of the Traditional Leadership and Governance Framework Act 41 of 2003; and (b) the provisions of the Bill affect certain matters listed in Schedule 4 to the Constitution of the Republic of South Africa, 1996, in particular, traditional leadership and cultural matters, and should accordingly be dealt with in terms of section 76 of the Constitution (see http://www.thepresidency.gov.za/pebble.asp?relid=6794).