South African Law Journal - Volume 126, Issue 3, 2009
Volume 126, Issue 3, 2009
Evangeline's search : a critical analysis and comparison of Mareva injunctions, security arrests and Rule B attachmentsAuthor Darryl CookeSource: South African Law Journal 126, pp 429 –462 (2009)More Less
This article compares three different remedies which are available to maritime claimants who seek to secure their claims, namely : the English Mareva injunction; the South African security arrest; and the American Rule B attachment. The author suggests that procedures such as these can be assessed with reference to the criteria of proximity, prejudice and protective safeguards. It is suggested that in order for all interested parties to be treated equitably, these criteria must be in equilibrium. The article makes the point that in respect of each of the remedies under discussion, there are low levels of proximity and high levels of prejudice. In these circumstances it is important that meaningful protective safeguards are present. It is argued that the Mareva injunction provides the most protection for affected parties and the Rule B attachment the least. It is submitted that while the security arrest procedure affords some safeguards, it could be improved by adopting certain elements of the Mareva injunction.
Author Francois Du ToitSource: South African Law Journal 126, pp 463 –488 (2009)More Less
This contribution traces the development of the so-called 'constitutional family' in the law of succession. The first part of the article provides a synopsis of, first, recent Constitutional Court judgments as well as a number of High Court judgments on the application of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 outside the confines of the traditional nuclear family as constituted through a valid civil marriage under the Marriage Act 25 of 1961 and, secondly, an overview of recent legislative developments regarding the aforementioned two statutes. This exposition of judicial and legislative developments necessitates an extraction of the constitutional underpinnings of these developments, which is attempted in the second part of the article. The focus in the third and final parts of the article falls, first, on a tabulation of current and future legal developments on the spousal concept for purposes of the two abovementioned statutes and, secondly, on investigating the implications of current and future legal developments regarding the constitutional family for certain provisions of the Intestate Succession Act.
Author Stephen Bruce CohenSource: South African Law Journal 126, pp 489 –504 (2009)More Less
The Supreme Court of Appeal judgment in Commissioner for the South African Revenue Service v Brummeria Renaissance Ltd holds that an interest-free loan produces taxable income for the borrower equal to the interest that would have been charged at market rates. The decision has been wrongly criticized as an 'economic disaster' imposing 'double taxation.' To ignore the economic benefit to a borrower of an interest-free loan is to undermine the fundamental object of the income tax, which is to apportion taxes according to economic well-being. The Brummeria judgment, nevertheless, fails to consider other critical aspects of the interest-free loan transaction. The proper tax treatment of such loans implicates multiple taxpayers and requires an appropriate balance between preventing tax avoidance, on the one hand, and keeping the income tax law from becoming overly complex, on the other. This article compares Brummeria with US tax law, which recharacterizes an interest-free loan as a loan bearing interest at the market rate, coupled with a non-loan payment from the lender to the borrower that funds the payment of market-rate interest by the borrower. The comparison suggests that it does not make sense to expect courts to deal adequately with the problem. The tax-avoidance potential of interest-free loans calls for a legislative or an administrative (rather than a judicial) solution.
The consumer's 'right to fair, reasonable and just terms' under the new Consumer Protection Act in comparative perspectiveAuthor Tjakie NaudeSource: South African Law Journal 126, pp 505 –536 (2009)More Less
The DTI and Parliament should be commended for introducing unfair contract terms legislation at last, in the form of ss 48 to 52 of the Consumer Protection Act 68 of 2008. However, more cognisance should have been taken of international best practice in this area in drafting this legislation. The problems faced by consumers which necessitate legislative protection could have been far better addressed through a number of strategies employed elsewhere. This article discusses the provisions on unfair contract terms in the Consumer Protection Act and recommends amendments to these provisions on the basis of comparative research. Courts are also urged to follow the recommendations made in this article for the interpretation of the provisions in the light of comparative research. Section 2(2)(a) of the Act specifically allows courts to have regard to relevant foreign and international law when interpreting the Act.
Author Daniel Malan PretoriusSource: South African Law Journal 126, pp 537 –565 (2009)More Less
The decision in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) has been construed as authority for the proposition that apparently invalid administrative decisions stand, and must be regarded as operative, until set aside on judicial review. However, Oudekraal was concerned with a narrower question, namely the effect of an invalid prior administrative act upon a subsequent administrative act performed pursuant to the initial act. In this regard, the Supreme Court of Appeal held that where a 'second actor', assuming the initial act to be valid, performed a subsequent act, and where the factual existence rather than the substantive validity of the initial act was a precondition for the validity of the subsequent act, the latter act could be regarded as valid until the initial act was set aside.
To the limited extent that Oudekraal was concerned with the broader question whether administrative action must be treated as valid until set aside on review, it confirms a different principle (for which there is ample authority) : where an administrative body requires a person to do, or to refrain from doing, something, and that person doubts the lawfulness of that requirement, he may ignore it, await events and, if enforcement proceedings are instituted against him by the administrative body, he may raise a collateral challenge to the validity of the relevant administrative act. The courts accept that administrative action characterized by flagrant invalidity (for example, where the relevant act was manifestly beyond the decision-maker's jurisdiction, or where there was a complete failure of natural justice) may be ignored with impunity and without having the impugned act set aside. However, it would often be prudent to seek judicial intervention and to obtain a definitive pronouncement on the validity or otherwise of the impugned act.
Source: South African Law Journal 126, pp 566 –589 (2009)More Less
The Companies Act 71 of 2008 introduces a new s 44 which deals with financial assistance by a company for the acquisition of its shares and which will replace s 38 of the current Companies Act 61 of 1973 when the new Act comes into operation. The focus of the legislation has shifted from the prohibition to the regulation of financial assistance in this context, and the article subjects the new section to comparative and contextual analysis, seeks to interpret the specific provisions and highlights possible areas which may prove to be problematic or confusing.
Ten-year anniversary of the Maintenance Act 99 of 1998 - a time to reflect on improvements, shortcomings and the way forwardAuthor Madelene De JongSource: South African Law Journal 126, pp 590 –614 (2009)More Less
Through qualitative research as well as a literature review, this article examines whether the innovations of the Maintenance Act 99 of 1998 and certain government initiatives implemented since the enactment of this Act have succeeded in improving the operation of South Africa's maintenance system. First, the innovations of the Act (such as the appointment of maintenance investigators, maintenance payments by way of a lump sum, orders by default against recalcitrant maintenance debtors, the civil execution of maintenance orders and the shift in the onus to prove lack of means upon criminal prosecution) and the government initiatives (such as the transunion ITC information support service, Operation Isondlo, the Justice Deposit Account System (JDAS) and the Electronic Funds Transfer (EFT) system) are set out. Secondly, the qualitative research undertaken at grass-roots level in maintenance courts across the country and the results thereof (as obtained from questionnaires to regional heads, accounts clerks, maintenance officers and maintenance investigators) are explained. Lastly, certain findings and recommendations are made - although the South African maintenance system has improved greatly over the past ten years, areas relating to manpower, practices and procedures, training, infrastructure, attitudes and the dynamics between different court officials still need more attention.
The Constitution in the Classroom : Law and Education in South Africa 1994-2008, Stu Woolman and Brahm Fleisch : book reviewAuthor Patrick LentaSource: South African Law Journal 126, pp 615 –617 (2009)More Less
Only the uninformed will be surprised to learn that the provision of (or failure to provide) education is of great political importance in every state which claims to be democratic. Any modern society in which the provision of education is not prioritized by government is well on the way to comprehensive moral collapse as well as social disintegration.
Colonial Genocide and Reparations Claims in the 21st Century. The Socio-legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904-1908, Jeremy Sarkin : book reviewAuthor Mia SwartSource: South African Law Journal 126, pp 618 –621 (2009)More Less
In the first phase of the protracted Richtersveld litigation, the Land Claims Court described the Richtersveld Community as '... living in the margin of history on the edge of the country' (Alexkor Ltd and the Government of the Republic of South Africa v Richtersveld Community 2003 (12) BCLR 1301 (CC)). This description also fits the Herero people of Namibia, perhaps the most marginalized of the marginalized. Whereas the Richtersveld Community ultimately succeeded with their land claim, the Herero people have been unrecognized and uncompensated for the genocide committed by the German colonists in Namibia between 1904 and 1908. Jeremy Sarkin's book brings this 'hidden genocide' into the open and makes a strong case for the Herero people's claim for reparations.