South African Law Journal - Volume 127, Issue 2, 2010
Volume 127, Issue 2, 2010
Must a section 21 non-profit company be concerned only with charitable, benevolent or philanthropic activities? A closer look at the SCA judgment in Cuninghame v First Ready Development 249 : notesAuthor Tshepo H. MongaloSource: South African Law Journal 127, pp 195 –207 (2010)More Less
On 28 September 2009, the Supreme Court of Appeal in South Africa ('the SCA') delivered a judgment in Cuninghame v First Ready Development 249  1 All SA 473 (SCA) regarding a section 21 company, the principal business of which was the management of a commercial hotel. The judgment, it is submitted, will have far reaching practical consequences for a substantial number of registered section 21 companies which undertake commercial objects for 'group or communal interests' as provided for under s 21(1)(b) of the Companies Act 61 of 1973 ('the 1973 Companies Act').
The purpose of this case note is to analyse the judgment critically, with particular reference to whether a non-profit company, in the form of a section 21 company, can lawfully undertake a business with a view to advance a 'group or communal interest' unrelated to the promotion of religion, arts, sciences, education, charity, recreation or any other cultural or social interests (ie 'public benefit / charitable purposes').
Author Patrick VranckenSource: South African Law Journal 127, pp 207 –223 (2010)More Less
A state's territory is 'that defined portion of the globe which is subjected to the sovereignty of' that state (Robert Jennings & Arthur Watts (eds) Oppenheim's International Law 9 ed (1992) vol I at 563 (hereafter Oppenheim's International Law)). In that space, the state has the power 'to exercise supreme authority over all persons and things', subject to the restrictions placed by international law (Oppenheim's International Law 382 and 564). The use of the term 'territory' does not create any difficulty as long as the portion of the globe subjected to a state's sovereignty consists exclusively of land. This is because the primary meaning of the term 'territory' is 'land under the control of a ruler, State, or city etc' (Oxford Paperback Dictionary (1988) 845. The etymology of the word is 'unsettled', but it is 'usually taken as a deriv[ative] of terra earth, land' (Oxford English Dictionary (1933) vol XI at 215)).
Life policies and marriages in community of property - who owns the proceeds of the policy on the insured's death? : notesAuthor Michael Cameron Wood-BodleySource: South African Law Journal 127, pp 224 –230 (2010)More Less
What is the nature of the interest held by an insured in a life policy when there has been a revocable nomination of a beneficiary? Who owns the proceeds of the policy if the nomination fails and the insured (now deceased) was married in community of property? Do the proceeds fall into the joint estate or does the insured have a separate estate with respect to the proceeds? These questions, which arose in Danielz NO v DeWet & another 2009 (6) SA 42 (C), are the focus of this note. Other aspects of this interesting case will not be canvassed here but the case is more fully discussed in my note 'Forfeiture by a beneficiary who conspires to assault with intent to do grievous bodily harm' (2010) 127 SALJ 30.
Author Johann NeethlingSource: South African Law Journal 127, pp 230 –237 (2010)More Less
The right to freedom of speech or expression of the press and other media, and the personality right to privacy - which is particularly prone to infringements by the mass media - are recognised and protected both at common law and constitutionally in the Bill of Rights. Because freedom of speech and the right to privacy are often diametrically opposed, a careful weighing up of these conflicting rights is required. In this regard the common law succeeded in achieving a workable balance between maintaining freedom of speech on the one hand, and protecting the right to privacy on the other.
Engaged citizenship and the enabling state as factors determining the interference parameter of property : a comparison of German and South African lawAuthor Hanri MostertSource: South African Law Journal 127, pp 238 –273 (2010)More Less
This contribution analyses the South African Constitutional Court case law on property. Four important decisions of the Constitutional Court are analysed to indicate the emerging trend in jurisprudence that links the constitutional interference parameter of property to state duty, on the one hand, and civic responsibility, on the other hand. These concepts are explored. The emerging trends in South African case law are evaluated with comparative reference to the German approach to constitutional property protection and regulation, particularly after the relevance of such a comparison is asserted. Against the legal-comparative background, the importance of ideas such as individual self-governance and self-restraint, state duty and the ranking of purposes according to their social relevance can be better contextualised.
Author A.J. Van der WaltSource: South African Law Journal 127, pp 274 –303 (2010)More Less
The author analyses the Supreme Court of Appeal decision in Allaclas Investments (Pty) Ltd v Milnerton Golf Club and concludes that there is a good explanation for the seemingly harsh decision to interdict the golf club from proceeding with its normal business until the danger posed for the appellants by stray golf balls had been eliminated. Comparing the decision to the Cape High Court decision in Laskey v Showzone CC, where the offending neighbour was allowed to continue doing business while eliminating the cause of the nuisance, the author argues that the difference between the two decisions is explained by the long-established distinction between nuisance in the narrow sense (annoyance), which disturbs or hinders neighbours in the use and enjoyment of their property, and nuisance in the wider sense, which involves actual damage to property or personal injury. With reference to comparable case law regarding stray golf and cricket balls in English, Australian, Canadian and German law, the author concludes that the normal reasonable tolerance principle should not find application in the latter category of cases, where the mere fact of significant harm or damage renders the action unlawful and actionable. The article also explores the implications of this conclusion for the notions of abuse of rights and 'coming to the nuisance'.
Author Jean J. Du PlessisSource: South African Law Journal 127, pp 304 –327 (2010)More Less
The main focus of this article is on the reasons why the courts have been reluctant to interfere in internal company matters. An analysis of numerous older English cases in particular indicates that these reasons vary considerably. These reasons are listed and discussed. Although it was never stated explicitly, the rule in Foss v Harbottle (establishing the proper plaintiff rule) provided one of the most convenient excuses for later courts not to consider the merits of internal company disputes. Hence, Foss v Harbottle established a strong precedent for non-interference in internal company matters. However, the article also examines other circumstances where the courts were prepared to interfere in internal company matters: these include several highly complex and often irreconcilable exceptions to the rule in Foss v Harbottle. Over time there was a shift away from the original reasons for non-interference by the courts to a more prominent focus on the powers of directors. This eventually led to the proper purpose doctrine. However, these developments were slow and took place over more than a hundred years.
Author Tracy GutuzaSource: South African Law Journal 127, pp 328 –338 (2010)More Less
The internet has changed the way we do business by dispensing with the physical requirement of being in the country where the business is being conducted. As the principles of tax law are based on the traditional business model, suggestions have been made for the re-evaluation of traditional tax laws and principles so as to apply them to e-commerce. The article explores one aspect of the applicability of the traditional tax laws and principles to e-commerce, namely the application of the current South African jurisprudence of 'source' to the business income of e-commerce enterprises operated through the use of a server or an ISP, where physical presence is not required. The article argues that the traditional source rules as developed by the South African courts, which emphasise the activities and physical presence of the taxpayer, may preclude the possibility of the place of trading and source of income being located on a server.
Author Wim AlbertsSource: South African Law Journal 127, pp 339 –362 (2010)More Less
This article deals with the situation in statutory trade mark law where reliance is placed on the honest concurrent use of a mark. This may occur in the situation where the Registrar of Trade Marks has issued a citation against a pending application, citing, amongst others, a conflict with a registered mark. It may also occur where a party already has a registration, and relies on such honest concurrent use to prevent the expungement of his registration. The position under previous legislation, as well as that under the current Trade Marks Act 194 of 1993, is considered in the article. A number of factors are taken into account in order to ascertain whether such use can be considered to satisfy the requirements of the Act. All these factors are examined in the article. The question of knowledge of the mark has been particularly problematic, and this question is fully investigated. It is argued that in the evaluation of a claim of honest concurrent use in South African law, English case law is of particular relevance.
Author Anton FaganSource: South African Law Journal 127 (2010)More Less
Letter by Mr John Mullins SC in (2009) 126 SALJ 861
Mr Mullins begins his comment on my article 'The confusions of K' (2009) 126 SALJ 156 by saying: 'I see things simply and, I think, correctly.' Mr Mullins is half right. He does, in this instance, see things simply but not, in my view, correctly.