South African Law Journal - Volume 125, Issue 4, 2008
Volume 125, Issue 4, 2008
Source: South African Law Journal 125, pp 1 –26 (2008)More Less
Author Francois VenterSource: South African Law Journal 125, pp 633 –642 (2008)More Less
What can be done in law when a government prevents one of its own law-enforcement agencies from pursuing an investigation into alleged corruption and bribery? This question was raised in the judgment of April 2008 by the Administrative Court of the Queen's Bench Division in R (Corner House Research & another) v Director of the Serious Fraud Office  EWHC 714 (Admin) (the BAE case) per Moses LJ with Sullivan J. The implications of the judgment are also highly topical in the context of contemporary South African politics and law. (The judgment incidentally also demonstrates the increasing permeability of the boundaries between various disciplines of the law, as the arguments range seamlessly through administrative law, public international law, criminal law and constitutional law.)
Source: South African Law Journal 125, pp 642 –647 (2008)More Less
The aim of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 includes 'regulating procedures' and, in its preamble, it refers to the plight of victims 'through secondary victimisation and traumatisation' and mentions that 'the South African common law and statutory law do not deal adequately and effectively and in a non-discriminatory manner with many aspects relating to or associated with the commission of sexual offences'. It is obvious that the Act is intended to remedy what are perceived to be those defects. It is against that background that ss 58 and 59 have to be construed.
Author K. PhelpsSource: South African Law Journal 125, pp 648 –659 (2008)More Less
Masiya v Director of Public Prosecutions 2007 (5) SA 30 (CC) (hereafter Masiya) is inherently controversial. The facts of the case, the unlawful anal penetration of a 9-year-old girl, strike at the heart of our social fabric. The legal issues at stake, such as the principle of legality, the separation of powers and the Constitution, strike at the heart of our legal order. It is thus unsurprising that the judgment in Masiya has elicited critical commentary. This is a direct response to one such comment, C R Snyman's recent note 'Extending the scope of rape - A dangerous precedent' (2007) 124 SALJ 677 (hereafter 'Snyman'). Snyman addresses the following four issues in his note as they pertain to the judgment in Masiya : the principle of legality; separation of powers; the constitutionality of the common-law definition of rape; and whether the court was unduly swayed by emotional considerations. This comment refutes his stance and the reasoning employed in relation to each of these issues.
Author Anton FaganSource: South African Law Journal 125, pp 659 –673 (2008)More Less
The aim of this note is to reconsider the Constitutional Court's judgment in the case of Carmichele v Minister of Safety and Security & another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (hereafter Carmichele (CC)). The note focuses on the Constitutional Court's judgment, not in isolation, but rather in the context of the Supreme Court of Appeal judgments that preceded and succeeded it (Carmichele v Minister of Safety and Security & another 2001 (1) SA 489 (SCA) (the first judgment of the Supreme Court of Appeal, or Carmichele 2001 (SCA)) and Minister of Safety and Security & another v Carmichele 2004 (3) SA 305 (SCA) (its second judgment, or Carmichele 2004 (SCA)).
K v Minister of Safety and Security and the increasingly blurred line between personal and vicarious liability : notesAuthor Stephen WagenerSource: South African Law Journal 125, pp 673 –680 (2008)More Less
An employer's delictual liability can be either personal or vicarious. Vicarious liability is a form of secondary liability. It is liability for the delict of an employee committed within the course and scope of her employment. Its conceptual ambit is thus limited in three ways. In considering whether an employer should be held personally liable, none of these limitations holds. All that is asked is whether the employer wrongfully and negligently caused the plaintiff's injury.
Author Deeksha BhanaSource: South African Law Journal 125, pp 680 –693 (2008)More Less
In this note I critically evaluate the Van Aardt decision against a particular hypothesis of the juristic nature of the pre-emption contract and measure it against the distinct enterprise of the option contract (see Deeksha Bhana 'The contract of pre-emption as an agreement to agree' (2008) 71 THRHR 568). In doing so, I diverge from the approach taken by the court where it purports to fit the relevant clause within the parameters of pre-emption. I then pay specific attention to the implications of the relevant statutory formalities that are applicable in the circumstances.
Constitutionalization and the International Criminal Court : whither individual criminal liability for aggression?Author Gerhard KempSource: South African Law Journal 125, pp 694 –714 (2008)More Less
The Rome Statute of the International Criminal Court provides for the criminalization of the most serious crimes under international law, including aggression. However, the International Criminal Court can only exercise jurisdiction over aggression after the adoption of a definition and conditions for the exercise of jurisdiction by the Assembly of States Parties to the Rome Statute. The debate about the definition of aggression involves a number of important perspectives. It is submitted that a constitutionalist perspective on these developments might help to put the debate in its proper context, namely an attempt to advance international peace and security through multiple means. The quest to find a suitable definition of aggression for purposes of ICC jurisdiction is more than a legal problem; it is also a political problem. It concerns in essence a debate about the role of international criminal law in the contemporary international system. It is argued that the Rome Statute contains certain constitutionalist traits that can contribute to the further development of international criminal law. A constitutionalist perspective on the criminalization of aggression can contribute to multiple efforts to enhance international peace and security.
Author M.F.T. BothaSource: South African Law Journal 125, pp 715 –730 (2008)More Less
The duty to maintain comes to an end ipso jure once there is no need for a contribution towards the maintenance of the child from either parent. The fact that the child is in a position to earn an income, has become a major, is married, earns an income, or is guilty of gross ingratitude towards the person responsible for the maintenance does not in itself bring the duty to an end. These are merely factors in determining whether there is still a need for a contribution towards the maintenance of the child from either parent.
The duty to maintain underlies a maintenance order. This does not mean that the order fluctuates automatically according to the fluctuation of the incidence of the duty. The order has its own terms and should be given effect to in accordance with its terms. The fact that the order may at some stage not correspond with the underlying duty does not mean that it is automatically varied or discharged to be in accordance with that duty. If it does not accord with the duty, it can only be varied, substituted or discharged by the court on the request of one or both of the parties.
Post-resignation duties of directors : the application of the fiduciary duty not to misappropriate corporate opportunitiesAuthor Rehana CassimSource: South African Law Journal 125, pp 731 –753 (2008)More Less
This article examines when it would be appropriate to hold a former director accountable for the appropriation of corporate opportunities which take place after his resignation from the company. The author identifies and discusses various principles which may be deduced from the common-law jurisprudence which may serve as a guideline on the circumstances when a director's duty not to misappropriate a corporate opportunity would continue to apply after his resignation. In evaluating the application of these principles to directors post-resignation, the author examines the recent trends in this area of the law both in South African jurisprudence and relevant foreign jurisprudence and questions whether South African law is bound to the strict absolutist approach traditionally adopted on the duty of a director not to place himself in a position of a conflict of interest, or whether a flexible and pragmatic approach, may, and ought to be, applied in a modern commercial world. The article argues that, while the common-law principles may provide a guideline, there is indeed scope for South African law to adopt a flexible and pragmatic approach to a director's fiduciary duty post-resignation, and that such an approach would be more appropriate to modern commercial reality.
Author David BilchitzSource: South African Law Journal 125, pp 754 –789 (2008)More Less
Company law and constitutional law have continued largely as separate disciplines with a very limited area of overlap. This is so despite the express application of the Bill of Rights to natural and juristic persons. This article seeks to consider the implications of the horizontal application of the Bill of Rights for the responsibilities of corporations for the realization of fundamental rights. It does so in light of analysing, first, a range of recent international initiatives in this arena, ranging from voluntary frameworks to proposals for the imposition of binding human rights responsibilities on corporations. It is argued that the key question in this area that arises both at the international level and in the South African context remains a method of effectively delineating the content and extent of the responsibilities that corporations have for the realization of fundamental rights. The impact of corporate activity upon fundamental rights as well as the capabilities of a corporation in a particular context, it is argued, are two critical factors that can provide guidance in this regard. Furthermore, it is argued that the horizontal application of the Bill of Rights fundamentally changes the nature of the corporation. This change in nature requires concomitant law reform that includes the following measures: the imposition of an explicit fiduciary duty on directors to consider the impact on fundamental rights of a company's operations; the development of non-financial reporting obligations; the recognition that fundamental rights are binding on companies operating in South Africa beyond its borders; and the development of principles for the imposition of civil liability upon a principal corporation for the actions of its subsidiaries or sub-contractors.
Source: South African Law Journal 125, pp 790 –822 (2008)More Less
South Africa's corporate law severely limits the defensive stratagems that can be implemented by the directors of a target firm to ward off a hostile take-over. Those directors consequently have an incentive to try to achieve the same result by 'playing the competition card'. This stratagem was successfully employed by Gold Fields to ward off the 2004 takeover bid by Harmony.
The litigation in the Harmony - Gold Fields take-over battle brought to the fore the interpretation of key provisions of the Competition Act. Of central importance is the identification of the precise juncture, between the conception of a plan to acquire control of a firm and its consummation, at which that plan becomes a 'proposed merger' which cannot be implemented until the approval of the competition authorities has been obtained.
It is argued that the judgment of the Competition Appeal Court, in attempting to bring South Africa's competition law into harmony with the European Commission Merger Regulation, has inflicted on our legal system the interpretation that our statutory regulatory regime is powerless to act against the acquisition of control in the context of a notifiable merger, and that regulatory powers are triggered only when that control is subsequently exercised.