South African Law Journal - Volume 126, Issue 1, 2009
Volume 126, Issue 1, 2009
Source: South African Law Journal 126, pp 5 –14 (2009)More Less
The Securities Regulation Panel (the Panel) is a regulatory body establishedin terms of s 440B of the Companies Act 61 of 1973 (the Act). Its function is,among other things, to regulate corporate mergers and takeovers. It ismandated to make rules relating to the effective monitoring of compliancewith, and enforcement of, the Securities Regulation Code on CompanyTakeovers and Mergers (the Code: see ss 440C (1)(a) and (4) (e) of the Act). The Panel was formed pursuant to a report made to the Standing Advisory Committee on Company Law by the Hon Mr Justice Cecil Margo and Professor Stefan Naude in 1983 (the Margo Report: see The Securities Regulation Code: Its Background, Implementation and the Role as Pertaining to Take-overs and Mergers, available at http://www.srpanel.co.za/Background.pdf accessed on 2 June 2008). In the report Margo J and Professor Naude did not consider it necessary to discuss the administrative and financial details of the Panel's organization because they did not foresee any insurmountable problems (see C Margo and S Naude 'Take-overs and Mergers: the City Panel and the Position in South Africa' in Report to the Standing Advisory Committee on Company Law (1983) 35). With the benefit of hindsight, one could say that they ought to have discussed the issue, for the Panel established as a result of their recommendation has faced, and continues to face, financial problems which threaten its continued financial viability. This in turn affects its ability both to monitor compliance with, and to enforce, the Code. In the course of events, details of the Panel's financing scheme were left to be determined by the legislature and the Panel itself.
Author Wim AlbertsSource: South African Law Journal 126, pp 14 –23 (2009)More Less
The rationale for the protection of intellectual property rights, both of a statutory and common law nature, is often linked to the view that such rights are essentially of a negative nature (LT C Harms 'The role of the judiciary in the enforcement of intellectual property rights: Intellectual property litigation under the common law system with special emphasis on the experience in South Africa' 2004 EIPR 483 at 484 note 32). The Trade Marks Act 194 of 1993 may be an example. It enumerates the circumstances when a trade mark registration will be infringed (s 34(1)). These provisions are exclusionary in nature, and there is no enactment to the effect that, for instance, a registration provides the exclusive (positive) right to use the mark. Another approach is that the protection of intellectual property rights involves the positive right to do, as well as the (negative) right to prevent the doing of, certain acts (Video Parktown North (Pty) Ltd v Paramount Pictures Corporation 1986 (2) SA 623 (T) at 631G-632B; E D Du Plessis 'Immaterial property rights: Negative or positive?' 1976 Codicillus 17 at 22). This approach is evident from the Patents Act 57 of 1978. Certain actions, such as the 'making' of an invention are prohibited, so that the patentee 'shall have and enjoy the whole profit and advantage accruing by reason of the invention' (s 45). Another example is the Copyright Act 98 of 1978, which lists certain exclusive rights (s 6-11B), and then sets out the circumstances in which these rights will be infringed (s 23(1)).
Open justice and beyond : Independent Newspapers v Minister for intelligence Services in re Masetlha : notesAuthor Jonathan KlaarenSource: South African Law Journal 126, pp 24 –38 (2009)More Less
This note reflects upon the Constitutional Court decision in the matter of Independent Newspapers v Minister for Intelligence Services: in re Masetlha (hereafter Independent Newspapers), both on its own terms and within the contexts of related questions raised recently regarding the interface of national security and openness. Some of these questions relate to the Protection of Information Bill (B28-2008) that has been considered by Parliament from May 2008 (although the Bill was withdrawn in October after the resignation of the Minister for Intelligence Services at the same time as the resignation of President Thabo Mbeki). The note outlines the contours, coherence and contests of the court's significant notion of open justice (constructed from the right of freedom of expression, the right to a fair trial, and the right of access to courts), which the Independent Newspapers case enunciates. Finally, this note briefly identifies a related constitutional concept, arguably the fount of open justice. One might term this related concept 'open democracy'. Such a concept would be rooted even more directly than open justice in the right of access to information contained in s 32 of the Bill of the Rights.
Author A.J. KerrSource: South African Law Journal 126, pp 39 –50 (2009)More Less
The facts recorded in paragraph 3 in the report on Shilubana & others v Nwamitwa 2009 (2) SA 66 (CC) (Shilubana (CC)) were as follows. The late Hosi (Chief) Fofoza, who died on 24 February 1968, left no male descendant. He was, however, survived by two daughters, the elder being Ms Shilubana, the first applicant. The rule of male primogeniture being in force at the time, his younger brother Richard succeeded to the position in question. Richard died on 1 October 2001. A dispute then arose between Richard's son, Mr Nwamitwa, and Ms Shilubana as to who should succeed to the vacant position.
Revival of wills - the Supreme Court of Appeal resolves long standing uncertainty : Wessels N.O. v Die Meester : notesAuthor Michael Cameron Wood-BodleySource: South African Law Journal 126, pp 50 –61 (2009)More Less
In 2001, our leading textbook on the law of succession, commenting on the decision of the Appellate Division in Moses v Abinader 1951 (4) SA 537 (A), stated with justification that '[t]he result of this decision is that the law is in an uncertain state in so far as the question of the revival of a revoked will is concerned' (see The Hon M M Corbett, Gys Hofmeyr & Ellison Kahn The Law of Succession in South Africa 2 ed (2001) 111). In particular, the Moses decision left unresolved the question whether it is necessary to re-execute a revoked will physically in order to bring it to life once more. This issue has now thankfully been resolved in a decision of the Supreme Court of Appeal in Wessels NO v Die Meester  SCA 17 (RSA) (coram Brand JA, van Heerden JA & Combrinck JA), in which Brand JA delivered the unanimous judgment of the bench. (For a discussion of the revival of wills immediately prior to the Wills Act 7 of 1953 coming into force, see Corbett et al op cit at 110. In short, revival by a subsequent will was expressly provided for in the Natal statute and had been held to be permissible under the Cape and Transvaal statutes, all of which were repealed by the Wills Act.)
Author Maleka Femida CassimSource: South African Law Journal 126, pp 61 –70 (2009)More Less
It is a well-entrenched principle of corporate law that a director has a fiduciary duty not to make a secret profit out of his trust, and generally must not place himself in a position in which his duty and self-interest may conflict (Aberdeen Railway Co v Blaikie Bros (1854) 2 Eq Rep 12 461; Regal (Hastings) Ltd v Gulliver  2 AC 134 (HL); Robinson v Randfontein Gold Mining Co Ltd 1921AD 168; Phillips v Fieldstone Africa (Pty) Ltd 2004 (3) SA 465 (SCA); Bhullar v Bhullar  2 BCLC 241 (CA); MS Blackman, R D Jooste, G K Everingham, M Larkin, C H Rademeyer & J L Yeats Commentary on the Companies Act Volume 2 (2008) 8-30). This broader principle may be subdivided into two categories, namely the corporate opportunity rule and the no-profit rule.
The role of good faith, equity and fairness in the South African law of contract : the influence of the common law and the Constitution : notesAuthor F.D.J. BrandSource: South African Law Journal 126, pp 71 –90 (2009)More Less
The role of abstract values such as good faith and fairness in South African contract law needs to be considered against the wider background of the South African legal system and its historical development. South African private law is essentially uncodified and we must remember that, at the heart of this uncodified system lies seventeenth-century Roman Dutch law, which was the law of Holland at the time when the Cape of Good Hope was occupied, in 1652, by a Dutch commercial company, the Dutch East India Company. In 1806 the Cape was taken over by the British. The first Charter of Justice promulgated by the new colonial power in 1826 created a new Supreme Court, headed by a Chief Justice and two other judges who were to be appointed from the bars of the United Kingdom. The charter further provided that the substantive law to be applied by the court was the existing legal system - ie Roman Dutch Law - but that the judges could formulate their own law of procedure. Because the newly appointed judges were trained and formerly practiced in a common-law system, they superimposed the procedure known to them as well as the principle of stare decisis on the basic system of Roman Dutch law. Moreover, since these first judges at the Cape were more comfortable with the English language, they often resorted to English law when difficulties arose. The other geographical areas that eventually formed part of what is now the Republic of South Africa, followed closely in the footsteps of the Cape Colony. And so it came about that we joined the small group of jurisdictions - which includes Scotland, Louisiana and Sri Lanka - that are classified as mixed legal systems.
Author Shane GodfreySource: South African Law Journal 126, pp 91 –123 (2009)More Less
It is well known that South Africa has a serious skills shortage. The new skills development dispensation introduced by the government in 1998, underpinned by the Skills Development Act, appears to have made little inroad into the shortage. The latest macroeconomic growth strategy, the Accelerated and Shared Growth Initiative (Asgisa), has focused attention on skills, making the elimination of the shortage a priority in order to achieve the 6 per cent economic growth rate that it has set as a target for the country in order to halve unemployment and poverty by 2014.
Author Mark CreigSource: South African Law Journal 126, pp 124 –140 (2009)More Less
The relationship between inflation and exchange rates is well-known to economists. Given the restitutionary principles inherent in our law of delict and contract, taken together with the peculiar susceptibility of developing economies to inflation and declining currencies, the rates of interest payable on debts, and the currency in which they are denominated, are important legal issues for South Africa and Southern African jurisdictions generally. If any testimony is needed to demonstrate this, the recent hyperinflation in Zimbabwe is ample for the purpose. The official figures released by the Zimbabwean Government in February 2008 indicated an official rate of inflation of 231 million per cent. As at 1 July 2008, the official exchange rate was 12 226 034 516.65 Zimbabwe Dollars to the US Dollar.
Source: South African Law Journal 126, pp 141 –155 (2009)More Less
Whilst different jurisdictions differ in their approaches to efficiencies, there is a general consensus that one of the important goals of merger control is to facilitate the achievement of efficiencies. Although there is a general belief that efficiency gains are more likely to be realized under competitive markets, there is another point of view which remains open to alternative means of achieving efficiencies other than through the preservation of a competitive market as gauged by the structure of the relevant market.
Author Anton FaganSource: South African Law Journal 126, pp 156 –205 (2009)More Less
The question in K was whether the Minister of Safety and Security was vicariously liable for rapes committed upon Ms K by three policemen in his employ. The Supreme Court of Appeal decided that he was not. The Constitutional Court decided that he was and that it was entitled to set aside the Supreme Court of Appeal's contrary decision.
Author I.G. FarlamSource: South African Law Journal 126, pp 206 –208 (2009)More Less
Denis Victor Cowen (1917-2007) was one of South Africa's most brilliant jurists, who made important contributions not only in the fields of constitutional law and negotiable instruments, for which he is best known as a result of his published books, but also in such subjects as jurisprudence, environmental law, sectional title, town planning and statutory interpretation. Many of his writings and addresses on these topics were published in legal and other professional journals, pamphlets and booklets, or not published at all. I have long thought that a comprehensive selection of his writings that were not readily available merited publication in book form. Early in the 1990s I suggested to his daughter Susannah, then a law student at the University of Cape Town, that she undertake the task of compiling a selection of her father's essays on law. The book under review is the result.