Annual Survey of South African Law - Volume 2013, Issue 1, 2013
Volume 2013, Issue 1, 2013
Source: Annual Survey of South African Law 2013, pp 1 –60 (2013)More Less
South Africa lost two Chief Justices in late 2012 and mid-2013. Arthur Chaskalson, who served as President of the Constitutional Court from 1994 to 2001 and Chief Justice from 2001 to 2005, passed away on 1 December 2012. Among many achievements and accolades, he was a member of the defence team in the Rivonia Trial of 1963 and was one of the founders of the Legal Resources Centre in 1979. (G Budlender 'In Memoriam: The late former Chief Justice Arthur Chaskalson' (2013) 26 part 1 April Advocate 8-10). Pius Nkonzo Langa succeeded Athur Chaskalson as Chief Justice in 2005, having served as Deputy Chief Justice from 2001. He retired in October 2009 and passed away on 24 July 2013. Justice Langa was a founding member of the National Association of Democratic Lawyers (NADEL). He was among the first judges appointed to the newly created Constitutional Court and served with great distinction. (Moseneke 'Public power on behalf of the people' (2013) 26 part 3 December Advocate 27-8).
Source: Annual Survey of South African Law 2013, pp 91 –101 (2013)More Less
No significant statutes were brought into force during the year under review. The training and certification of seafarers was kept abreast of international developments by way of regulation and various marine notices and guidance notes were issued by the South African Maritime Safety Authority ('SAMSA') that are of importance to seafarers, especially in relation to their employment, safety and certification. These marine notices and guidance notes can play a significant role in criminal and civil proceedings.
Author Estelle HurterSource: Annual Survey of South African Law 2013, pp 102 –139 (2013)More Less
Of particular importance to civil procedure is the ConstitutionSeventeenth Amendment Act, 2012, assented to on 1 February2013 (GN 72 GG 36128 of 1 February 2013). This Act amends the Constitution of the Republic of South Africa, 1996, to: further define the role of the Chief Justice as head of the judiciary with the responsibility to establish and monitor norms and standards for the exercise of the judicial functions of all courts (s 1); amends s 166 of the Constitution to provide for a single High Court of South Africa (s 2); amends s 167 of the Constitution to elevate the Constitutional Court to the apex court in all matters (not only constitutional matters (s 3); and regulates the jurisdiction of the Supreme Court of Appeal (s 5). Consequently, an appeal in non-constitutional matters may now be heard by the Constitutional Court if this court grants leave to appeal on the ground that 'the matter raises an arguable point of law of general public importance which ought to be considered' by the Constitutional Court (s 167(3)(a)(iii) of the Constitution). In contrast, the Supreme Court of Appeal may decide only appeals and issues connected with appeals (and any matter referred to it in terms of legislation) in any matter arising from the High Court or a court of similar status, except in respect of labour and competition matters. The final appeal, therefore, no longer lies with the Supreme Court of Appeal which court now has only intermediate appeal powers (s 4, amending s 168 of the Constitution).
Author A.J. Van Der WaltSource: Annual Survey of South African Law 2013, pp 216 –230 (2013)More Less
Following upon the much criticised draft Expropriation Bill 2008 of 26 March 2008, a further draft Expropriation Bill was released in March 2013 for public comment (Department of Public Works Draft Expropriation Bill [B-2013] GN 234, GG 36269 of 15 March 2013), together with an Explanatory memorandum (Draft Expropriation Bill, 2013, - Explanatory memorandum, available at http://www.publicworks.gov.za/PDFs/Explanatory%20memorandum%20on%20the%20draft%20Expropriation%20Bill%20(2013-03-15).pdf). The preamble aligns the Bill with constitutional principles and requirements and indicates that the purpose is to replace the existing Expropriation Act 63 of 1975 with new legislation that is consistent with the expropriation provisions in ss 25(2) and 25(3) of the Constitution of the Republic of South Africa, 1996, (as well as with ss 9 and 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000 ('PAJA')).
Author S.V. HoctorSource: Annual Survey of South African Law 2013, pp 297 –332 (2013)More Less
Prevention of and Treatment for Substance Abuse Act 70 Of 2008
This Act, which is aimed at establishing a comprehensive national response to the combating of the scourge of substance abuse, commenced on 31 March 2013. In terms of section 63, read with section 52 of the Act, it is an offence to obstruct or hinder a police official in the exercise of any power relating to the location and apprehension of an absconder from a treatment centre.
Source: Annual Survey of South African Law 2013, pp 333 –379 (2013)More Less
Criminal Law (Forensic Procedures) Amendment Act 6 of 2010
The Criminal Law (Forensic Procedures) Amendment Act 6 of 2010 came into operation on 18 January 2013 (GG 36080). This Act will amend the Criminal Procedure Act 51 of 1977 by inserting ss 36A, 36B and 36C in Chapter 3 of the Act. In terms of these new provisions it will now be compulsory for police officials to take the fingerprints of certain categories of persons. The South African Police Service will also be able to retain and store these fingerprints and body-prints on a database, and the prints may also be used for the purposes of comparative (and cold-case) searches. This Amendment Act further provides for the integrity, operating procedures and general management of these databases.
Author Michael KiddSource: Annual Survey of South African Law 2013, pp 380 –424 (2013)More Less
National Environmental Management Laws Amendment Act 14 of 2013
This Act amends several environmental Acts. An earlier Bill contained amendments to the National Environmental Management Act 107 of 1998 ('NEMA') in relation to the regulation of mining, but these aspects have since been included in a separate Bill. First, the Act amends the National Environmental Management: Biodiversity Act 10 of 2004. Some of the more noteworthy amendments are: section 51, setting out the purpose of the chapter dealing with threatened or protected species, now contains an additional purpose which is to 'provide for the regulation of threatened or protected indigenous species to ensure that the utilisation of these species is managed in an ecologically sustainable manner' (s 3). Express provision has now been made for a purpose which was previously not provided for explicitly, as a response to the judgment in SA Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism  2 All SA 529 (SCA), where the court found 'canned hunting' regulations invalid because they did not fit within the legislative objective of the Act which is the protection of species, as opposed to their sustainable use.
Author Jacqueline HeatonSource: Annual Survey of South African Law 2013, pp 425 –467 (2013)More Less
South African Post Office SOC Ltd Amendment Act 38 of 2013
Section 5 and the Schedule to the South African Post Office SOC Ltd Amendment Act 38 of 2013, amend the Post and Telecommunication-related Matters Act 44 of 1958 (formerly the Post Office Act 44 of 1958). In terms of the amendments, the pension interest of a member of the Post Office Retirement Fund is deemed to be part of his or her assets on divorce, and the non-member spouse's share of the pension interest can be paid to the non-member after divorce. These amendments bring the position in respect of the Post Office Retirement Fund in line with that which applies to pension funds falling under the Pension Funds Act 24 of 1956 and the Government Employees Pension Law, 1996. The Amendment Act, which arose from the order of unconstitutionality made in Ngewu v Post Office Retirement Fund 2013 (4) BCLR 421 (CC), came into operation on 27 January 2014 (Proc 53 GG 37269 of 27 January 2014). Ngewu and its sequel, which probably hastened the coming into operation of the Amendment Act, are discussed below.
Author W.G. SchulzeSource: Annual Survey of South African Law 2013, pp 468 –508 (2013)More Less
Two important Acts of Parliament that impact on financial institutions came into effect during the course of 2013. These are the Credit Rating Services Act 24 of 2012 and the Financial Markets Act 19 of 2012. Both statutes were discussed in detail in the 2012 edition of the Annual Survey (see Natania Locke & Irene-marie Esser 'Corporate Law (Including Stock Exchanges)' 2012 Annual Survey 200 ff). The cursory comments on these two Acts, provided below, serve to highlight the relevance of these two Acts for financial institutions in general.
Author Alastair SmithSource: Annual Survey of South African Law 2013, pp 578 –632 (2013)More Less
Transactions on an exchange (s 35A)
The insolvent may not yet have performed his contractual obligations when his estate is sequestrated. The contract continues and is neither suspended nor terminated. This general rule at common law will be discussed in more detail below (see 'Effect of insolvency on uncompleted contracts The general principle at common law').
Source: Annual Survey of South African Law 2013, pp 691 –715 (2013)More Less
The Intellectual Property Laws Amendment Act 28 of 2013 was assented to by the President and published for general information (GN 996 GG 37148 of 10 December 2013). The Act recognises and protects certain types of traditional knowledge within the current intellectual property legal framework. The Act will come into operation on a date to be fixed by the President by proclamation in the Gazette (s 15).
Author John GroganSource: Annual Survey of South African Law 2013, pp 716 –792 (2013)More Less
The Basic Conditions of Employment Amendment Act 20 of 2013 and its regulations that were published on 29 August 2014 came into operation on 1 September 2014 (GN 987 in GG 37139 of 1 September 2014). The Employment Equity Act 55 of 1998 ('EEA') has been amended by the Employment Equity Amendment Act 47 of 2013 (GN R16 in GG 37238 of 16 January 2014). Although the Labour Relations Amendment Bill, 2012, was predicted to come into law in mid-2013, it was only assented to by the President on 18 August 2014 (See the Proclamation of the Labour Relations Amendment Act 6 of 2014 in GG 37921 of 18 August 2014). Although these amendments will impact on many facets of employment law, the legislation only became effective in 2014 and will be discussed in 2014 Annual Survey. Otherwise, there was no significant legislation relevant to this field of law during the period under review.