South African Law Journal - Volume 126, Issue 4, 2009
Volume 126, Issue 4, 2009
Author Richard JoosteSource: South African Law Journal 126, pp 627 –650 (2009)More Less
The distribution by a company of its assets to its shareholders, whether they be in the form of cash or otherwise, ought to be carefully regulated by any legal system intent on protecting the interests of creditors and minority shareholders of the company. Until 1999 such protection was largely provided for by the maintenance of capital principle. This principle manifested itself in various ways, the most significant being that it was unlawful for a company to acquire its own shares or shares in its holding company, and the distribution of funds to shareholders other than those representing legally distributable profits usually required a court order. In 1999 this all changed with far-reaching amendments to the Companies Act 61 of 1973 (see the Companies Amendment Act 37 of 1999). The maintenance of capital principle was effectively abolished; companies were permitted to acquire their own shares and shares in their holding companies; and the distinction between profits and other funds of a company was removed. The distribution of funds entailed was allowed provided, inter alia, the company's solvency and liquidity was not placed in jeopardy and, in the case of a buy-back or a purchase of shares in the holding company, a special resolution had been adopted to approve the transaction.
Death and dependency : the meaning of 'dependent' under section 37C of the Pension Funds Act 24 of 1956 : notesAuthor Karin LehmannSource: South African Law Journal 126, pp 650 –666 (2009)More Less
In a recent decision on the disposition of pension benefits in terms of s 37C of the Pensions Funds Act 24 of 1956 ('the Act'), the present Pension Funds Adjudicator, Mamodupi Mohlala, determined that cohabiting life partners who are financially inter-dependent on each other at the time of one partner's (the deceased's) death, automatically qualify to be treated as factual dependents of the deceased, and as such are entitled to be considered amongst the potential pool of beneficiaries when the trustees decide on an equitable distribution of the deceased's death benefits. The decision in point was that of Hlathi v University of Fort Hare Retirement Fund (PFA/EC/9015/2006), handed down on 18 March 2009. In reaching this decision the Adjudicator broke with the test for factual dependence of cohabitees established by her predecessor, Vuyani Ngalwana, in 2005 in Van der Merwe v Central Retirement Annuity Fund (PFA/EC/1566/02/KM). The approach adopted in Hlathi (supra) appears to have found favour with commentators in the industry (see for example Alexander Forbes Legal Department 'The legal status of cohabitees' in On the Scales, Alexander Forbes legal update (May 2009) in which it is stated that 'trustees will take comfort from this case, which recognises that interdependency is sufficient for the purposes of proving financial dependency between couples'), and accords with the previously expressed view of scholars, who would appear to be of the view that the present approach is to be preferred on both the law and on the equities (see for example Mtendekwa Owen Mhango 'An examination of the accurate application of the dependency test under the Pension Funds Act 24 of 1956' (2008) 20 SA Mercantile LJ 126). I would respectfully disagree, both with the adjudicator's decision and with the support it appears to have garnered in the industry.
Ensuring access through the Medicines and Related Substances Amendment Act 72 of 2008 - another lost opportunity? : notesAuthor Yousuf A. VawdaSource: South African Law Journal 126, pp 667 –677 (2009)More Less
Medicines are crucial to the effective delivery of health care services. It has failed to introduce greater transparency and accountability in the regulatory process, has failed to safeguard the autonomy of the regulatory authority from interference by the executive, has not promoted measures in the medicines' registration and delivery process which promote access, and not removed those which impede it. Dispensed properly, they can literally save lives; but if they are misused or abused, the result can be serious ill-health, or even death. It is for this reason that in South Africa, the government rightly plays a role in regulating the availability, safety and quality of medicines. But given that a medicine is a very special type of commodity, the role and involvement of scientific experts is central to the process of regulating medicines.
With the approval of the Medicines and Related Substances Amendment Act 72 of 2008 (the 2008 Amendment Act (the date of commencement of this legislation is, at the time of writing, yet to be proclaimed)) Parliament has lost yet another opportunity not only to dispense with the old apartheid-era paradigm governing our medicines regulation, but also to align the law with the ethos and values of the Constitution of the Republic of South Africa, 1996 (the Constitution) in several respects. By contrast, several laws passed under the constitutional era are explicitly committed to the promotion of human rights and democratic values and are redistributive in character : to name a few examples, the Competition Act 89 of 1998; the National Health Act 61 of 2003; and the Promotion of Access to Information Act 2 of 2000.
Author A.J. KerrSource: South African Law Journal 126, pp 677 –689 (2009)More Less
The Constitutional Court has discussed the nature and future of customary law (also referred to as 'indigenous law') in a number of cases, the most recent being Gumede v President of the Republic of South Africa & others 2009 (3) SA 152 (CC) (Gumede). In this case it was decided that all monogamous-in-fact customary law marriages are to be treated as equal to marriages in South African general (common) law. On this last mentioned term see the section on 'Terminology' in my case note entitled 'The Constitution and customary law' (2009) 126 SALJ 39. The other cases are Alexkor Ltd v The Richtersveld Community 2004 (5) SA 460 (CC) (Alexkor); Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 (1) SA 580 (CC); (Bhe) and Shilubana & others v Nwamitwa 2009 (2) SA 66 (CC) (Shilubana).
Guidelines for determining the constitutional injunction to apply customary law in the new South Africa : notesAuthor Richman MqekeSource: South African Law Journal 126, pp 689 –694 (2009)More Less
The purpose of this note is to consider the judicial comments regarding s 211(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution) made in two recent, unrelated judgments of the superior courts. These cases are Fosi v Road Accident Fund & another 2008 (3) SA 560 (C) and Gumede v President of the Republic of South Africa & others 2009 (3) SA 152 (CC). Section 211(3) of the Constitution reads :
'The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.'
My intention is to comment on the meaning of the words 'must apply customary law when that law is applicable' as they appear in s 211(3). The facts of each case, and an analysis thereof, will be undertaken in turn. I do not wish to comment on the role of the courts in developing customary law in a more general sense, as this aspect has been sufficiently dealt in recent publications. (See, inter alia, the following : G J van Niekerk 'Succession, living indigenous law and ubuntu in the Constitutional Court' (2005) 26 Obiter 474; A J Kerr 'The Constitution, the Bill of Rights and the law of succession (2)' (2006) 20 Speculum Juris 20; Elmarie Knoetze and Morné Olivier 'To develop or not to develop the customary law : that is the question in Bhe' (2005) 26 Obiter 126; and Chuma Himonga 'Taking stock of customary law in a new South Africa' in Graham Glover (ed) Essays in Honour of AJ Kerr (2006) 215 at 232.)
Author Johan Van der WaltSource: South African Law Journal 126, pp 695 –739 (2009)More Less
This article is based on a public lecture that I presented at the University of the Witwatersrand, Johannesburg in August 2007. The lecture formed part of my teaching and research involvement with the Wits Law School as a Bram Fischer Visiting Scholar during the month of August 2007. The invitation to become a Bram Fischer Visiting Scholar and to give a public address in memory of Bram Fischer posed a daunting challenge. How is one to honour the memory and legacy of Bram Fischer, Bram Fischer the boere communist, after long reigns of communisms that, instead of vindicating the thinking of Marx, only served to discredit it; instead of destroying the state, only served to inflate the state and entrench it in every imaginable walk of life; instead of terminating the law in the name of a classless humanity, only served to dehumanise the law?
Author Julie CassidySource: South African Law Journal 126, pp 740 –779 (2009)More Less
The sustainability of a taxation system relies in part in reducing effective tax avoidance as far as is possible. Tax avoidance impacts on the economy both because it results in revenue loss and because it diverts people into devising, marketing and implementing avoidance arrangements, rather than engaging in economically productive activities. Revenue losses in turn weaken the government's ability to formulate and implement fiscal policies. Moreover, the very integrity of a tax system, necessary for its long-term sustainability, is attacked by tax avoidance. The goal of equity is undermined by tax avoidance as typically these schemes are accessed by the wealthy. Thus, tax avoidance results in an unfair shift in the tax burden to the less wealthy in society. As one commentator recently noted, combating 'tax avoidance ... will serve to lessen the overall burden on all taxpayers'. Further, legislative responses to tax avoidance increase the complexity of a taxation scheme. Tax avoidance schemes also undermine the neutrality of a taxation system by distorting trade and investment decisions. Thus, tax avoidance attacks every aspect of a fair, and hence, sustainable, taxation system.
Source: South African Law Journal 126, pp 780 –805 (2009)More Less
When facing threats to its national security from 'terrorist' organisations, apartheid South Africa responded in an all-too-familiar fashion. Between the early 1960s and the mid 1980s the practice of peace-time detention without trial became an integral and accepted part of the South African apartheid regime. During this period the South African Police routinely tortured and ill-treated 'enemies of the state' in detention. In 1984 Foster estimated that 83% of all detainees in South Africa were subjected to physical torture. If mechanisms existed to combat torture, they were clearly not working.
Yet, some theoretically credible mechanisms to combat torture did exist. This was particularly so in the courts, where common law rules governing the admissibility of evidence and imposing onuses on the state to rebut torture allegations were ostensibly in force. In their failure lies the special relevance and resonance that the apartheid security experience has for the so-called 'war on terror'. Much of the current concern regarding the impact of security legislation on human rights is directed to the treatment of detainees in places of detention. The checks that can be afforded by an independent judiciary are a key part of the response. This article examines why and how judicial checks failed to respond to the prevalence of torture during apartheid, to see what lessons can be learned. We frame these lessons as a critique of select aspects of the Robben Island Guidelines (hereafter 'RIG'). The RIG, which were drawn up by the African Commission in 2002, aim to assist African countries to design systems that will be effective in combating torture.
Author Harvey E. WainerSource: South African Law Journal 126, pp 806 –826 (2009)More Less
The Companies Act of 2008 (the 2008 Act) was signed into law on 8 April 2009. Once operational, the 2008 Act will replace entirely the existing Companies Act of 1973 (the 1973 Act) which was amended periodically, most notably in 2006. The 2008 Act comes into operation on a date to be fixed by proclamation in the Government Gazette, at least one year from the date of its signature into law. It is anticipated that the 2008 Act will come into operation on 1 July 2010. The Bill preceding the 2008 Act was accompanied by a 'Memorandum on the Objects of the Companies Bill, 2008' (the accompanying memorandum).
This article considers certain peculiarities and anomalies in the new Act, explores certain differences between the 2008 Act and the 1973 Act, and certain issues arising from the accompanying memorandum.
Author Patrick LentaSource: South African Law Journal 126, pp 827 –860 (2009)More Less
In a series of decisions implicating the right to freedom of religion, the Constitutional Court has indicated its readiness in appropriate cases to grant exemptions from facially neutral laws or regulations of general application where such laws or regulations impose disproportionate burdens on members of religious groups. In a recent decision, MEC for Education, Kwazulu-Natal & others v Pillay, the Constitutional Court granted an exemption from a regulation to permit a member of a religious group to engage in a practice that (the court determined) expressed her religious beliefs and culture. Should courts likewise be prepared to grant an exemption from anti-discrimination legislation to permit religious associations to engage in work-related discrimination on legally prohibited grounds?
Author John MullinsSource: South African Law Journal 126 (2009)More Less