South African Law Journal - Volume 128, Issue 1, 2011
Volume 128, Issue 1, 2011
Sustaining public confidence in the judiciary : an essential condition for realising the judicial role : noteAuthor S. Sandile NgcoboSource: South African Law Journal 128, pp 5 –17 (2011)More Less
It is a great honour to deliver the first Claude Leon lecture here at the University of Cape Town. I am grateful for this opportunity to speak to and exchange views with members of the academic community present, including law students. I am told that the Claude Leon Foundation has recently endowed a Chair in Constitutional Governance at the University of Cape Town. This is commendable. The legal academy is vital to the rule of law: it produces future lawyers, advocates, and judges; it helps guide the growth of legislation and jurisprudence through its insight and inspiration; and, of course, it is the source of some constructive criticism of legal developments that helps to keep the judiciary efficient and upright.
The taxation of spousal and child maintenance arising from marital disputes and child maintenance orders : noteAuthor Charles De Matos AlaSource: South African Law Journal 128, pp 17 –32 (2011)More Less
This note focuses on the taxation of spousal and child maintenance derived from court orders, agreements made in the context of matrimonial disputes and in terms of the Maintenance Act 98 of 1999 ('the Maintenance Act'). More particularly, the focus is on para (b) of the gross income definition (hereafter 'para (b)') and s 10(1)(u) (hereafter 'para (u)') of the Income Tax Act 58 of 1962 ('the Act'). The terms 'alimony or allowance or maintenance' used in these paragraphs mean essentially the same thing: the performance of a duty of support. Galgut J in ITC 920 (1959), 24 SATC 239 (T) at 242 held that the word 'allowance' was to be read eiusdem generis with the words 'alimony' and 'maintenance'. Similarly, 'alimony' was 'a personal allowance ordered by the court in substitution for a husband's obligation to support his wife' (ITC 966 (1962) 24 SATC 718 (F) at 719). Therefore, 'allowance' meant something akin to maintenance or alimony (ibid at 720). Consequently, I will simply refer to 'maintenance' rather than the ungainly term used in the legislation.
Author Caroline B. NcubeSource: South African Law Journal 128, pp 33 –51 (2011)More Less
It has been noted in the Australian context that the removal of directors is a 'sleeper topic' about which little is written (James McConvil 'Removal of directors of public companies takes centre stage in Australia: an exploration of the corporate law and governance issues' (2005) 1 Corporate Governance LR 191 at 192; Jean J du Plessis & James McConvil 'Removal of company directors in a climate of corporate collapses' (2003) 31 Australian Business LR 251 at 251). The same situation prevails in South Africa, where only a few papers have been written on the topic (See, for example, M P Larkin 'Distinctions and differences: a company lawyer looks at executive dismissals' (1986) 7 ILJ 248; J J du Plessis 'Besondere oorwegings van toepassing op die ontslag van besturende direkteure' (1991) 2 JJS/TRW 1, I Esser 'Company law and the spoliated director : Greaves v Barnard' (2008) 20 SA Merc LJ 135, John F Olson 'South Africa moves to a global model of corporate governance but with important national variations' 2010 Acta Juridica 219 at 237-9). This note seeks to address this deficit by examining the provisions relating to the removal of directors in the new Companies Act 71 of 2008 (the 2008 Act) as the removal of directors is an important corporate governance tool.
Author Graham GloverSource: South African Law Journal 128, pp 51 –62 (2011)More Less
Professor Alastair James Kerr SC passed away at Settlers Hospital in Grahamstown on the 29th of September 2010. He was eighty-eight years of age. Ironically, his death occurred at the time that the third part of the 2010 SALJ appeared in print, containing a tribute to one of the other great writers on South African contract law, Professor Richard (Dick) Christie, who had passed away earlier in the year (see A J G Lang 'Professor Richard Hunter Christie: A memorial tribute' (2010) 127 SALJ 414). 2010 may have been a momentous year in South Africa for many reasons, but the deaths of these two men in the same year has left the landscape of our contract law irrevocably changed, even though their ideas will live on through their published works.
Author Garth AbrahamSource: South African Law Journal 128, pp 63 –99 (2011)More Less
At the very centre of the trade routes between Southern Africa and India, between Madagascar in the south west and the Maldives in the north east, south of the Arabian and Somali Basins and north of the Madagascar Basin, a constellation of islands are strewn across the Indian Ocean having their origin in volcanic activities that occurred between sixty and two-and-a-half million years ago. The giants of the constellation are the islands of Mauritius and Réunion; to their north, from west to east, white dwarfs, globular stars and multiple clusters of various shapes and sizes are scattered. Outside of the constellation, in the east, lie the islands of the Comores and those of the Mozambique Channel. Within, in the far north lie the 115 islands of the Seychelles, including the large granitic islands and their smaller neighbours arranged in the Amirantes and Farquhar Groups; in the near north lie Tomelin, Agalega, Cargados Carajos and Rodrigues; in the far north east lies the Chagos Archipelago.
Since their discovery, interest in the islands has been variously motivated. Apart from being an important source for fresh water and vegetables, the islands have also been exploited for a variety of other products. They also represent markers in the assertion of geopolitical hegemony. The strategic importance of the islands in the rivalry between Britain and France for control of the south west Indian Ocean in the eighteenth century has, until fairly recently, been mirrored by cold war antagonisms between the West and the Soviet Union. For most, though, the islands conjure up a perfect idyll of palm-fringed white sandy beaches and azure blue waters. Indeed, for Jacques-Henri Bernadin de Saint-Pierre the island of Mauritius, in certain of its aspects, represented a Rousseauesque state of nature, while Mark Twain suggested that Mauritius was created first and, thereafter, heaven itself was copied on this template.
Author Suzanna HarveySource: South African Law Journal 128, pp 100 –122 (2011)More Less
The long-running debate over the place of labour brokers in the South African labour market took a decisive step at the end of 2010 when the government published draft proposed amendments to labour legislation. Zwelinzima Vavi, General Secretary of COSATU, forecast the 'mother of all battles' over the issue in 2011.
Labour activists have long called for the industry to be banned outright, complaining of exploitation in the workplace. Economists and researchers have warned that this would impact negatively on the economy: they cite statistics showing a growth in employment in the sector and argue that this means that the industry creates jobs. Employer bodies representing the larger broking companies have insisted that it is just the 'bakkie brigade' that gives the whole industry a bad name: they suggest that existing legislation is adequate to protect workers, but that it should just be better enforced. They consequently call for 'regulation' of the brokers. Lastly, those defending the industry insist that an efficient economy requires temporary workers, and that banning brokers will curtail this essential function.
However, what the proponents of 'regulation' fail to see is that the current legal dispensation covering labour broking is constitutionally untenable. Globally, legislation protects workers in employment. In South Africa, two key protections are included in the Bill of Rights: the right to fair labour practices (which includes employment security), and the right to bargain with employers to improve conditions of employment. Under the current dispensation, a labour broker employs a worker, who is then provided to a client for a fee. The worker works for the client, under its supervision and at its workplace, but is paid by the broker. The Labour Relations Act (LRA) stipulates that the broker, and not the client, is the employer of the worker.
Author Anne PopeSource: South African Law Journal 128, pp 123 –146 (2011)More Less
Standard property law textbooks and latter day case law describe two approaches (a 'traditional' and a 'new' approach) that may be used to determine the occurrence of accession of movable to immovable property (inaedificatio). Both approaches use the same legal framework that facilitates an objective enquiry into whether, as a matter of fact, the movable has acceded to the immovable property. The enquiry is based on an assessment of the nature and purpose of the movable, the manner and degree of its attachment to the immovable and the intention underpinning the attachment. In cases where the facts unequivocally show the presence or not of a permanent join, both approaches usually arrive at the same answer. This is because the visibly obvious cannot easily be overridden. However, in situations where the objective assessment leads to an equivocal result, the approaches seem to diverge on the role and scope of the intention factor, resulting in different answers being reached.
It is argued here that South African law does not have two approaches to inaedificatio. Careful scrutiny and analysis of the cases show very little evidence for the proposition that there are two approaches. Instead, there is evidence that academic comment probably influenced the view that some courts approach inaedificatio assessment differently, especially in the context of acquisition of ownership. Case law subsequent to 1979 tends to perpetuate the idea that there is a dichotomy.
Source: South African Law Journal 128, pp 147 –171 (2011)More Less
This article is a reflection on how science and technology have already influenced the law of evidence and procedure, and how they might well further influence it in the future. I focus on whether, and to what extent, expert evidence is changing the way criminal cases are proved and evaluated and what general trends can be detected in this area. An example of this can be seen in the increased use of different forms of forensic identification evidence in the criminal justice process. This development has affected all stages of the criminal justice process, revolutionising investigative techniques and evidence collection, adjusting pre-trial procedures, and transforming the presentation of evidence both at trial as well as during the evaluation of this information in judgments.
My observations are based on research which relates to developments in adversarial jurisdictions such as the United States, Canada, England and Wales and Australia. The article highlights how changes have come about and how they are being managed in these legal systems. Against this background this article attempts to ascertain the extent to which South African law mirrors the trends in these jurisdictions.
The growing scientific and technological world we live in has created certain issues that are universal challenges to all legal systems. This article also demonstrates that the law of evidence has become more multidisciplinary and interdisciplinary. The world-renowned scholar of evidence and proof, William Twining, has always claimed that 'the law of evidence is a multi-disciplinary field' in its own right. Expert evidence demonstrates progressively that lawyers need to know not only the law, but must also be familiar with the fields of science and technology which are nowadays increasingly being used to provide evidence in litigation.
Author Calli FerreiraSource: South African Law Journal 128, pp 172 –200 (2011)More Less
The term 'public contract' is used to describe a contract to which one of the parties is the administration, an organ or functionary of the executive branch of state, and the other is a private individual. Contracts of this type are frequently concluded and they serve a wide range of purposes, including the procurement of goods and services required to maintain the functioning of the state, the provision of public services on the state's behalf and the implementation and enforcement of government policy. The flexibility that contract allows for, as well as the range of legitimate governmental interests that can be pursued through its use, make it a valuable tool in the hands of the administration.
When the government utilises this tool and concludes public contracts, there is almost universal acknowledgement that these contracts cannot be fully equated with those that involve only private parties. There are various considerations underlying this conclusion, the most important of which is the recognition of the unique nature of the government as a contracting party. It is unlike a private contractant in several respects: first, it contracts not to further its own interests, but the public interest generally; secondly, the government is possessed of public powers and functions that it is required to exercise in the public interest; and thirdly, it is usually in a more powerful position vis-à-vis the party with whom it contracts than is ordinarily the case when only private parties contract.
Herbstein and Van Winsen The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, Volumes I and II, Andries Cilliers, Cheryl Loots & Hendrik Nel SC (Eds.) : book reviewSource: South African Law Journal 128, pp 201 –202 (2011)More Less
It is difficult to do this set of books justice in a book review. Herbstein and Van Winsen has for decades been regarded as the proverbial bible of high court practice. The new version, the fifth edition, is no exception and will be indispensable for the library of all legal practitioners including attorneys, advocates, presiding officers and of course law students. It remains a comprehensive source of reference and analysis, written in an accessible style and language.
Notwithstanding the slight change in the name necessitated by the nomenclature of the court structure, the book remains essentially the Herbstein and Van Winsen that has been used by practitioners over decades. It should be noted that the name of the book on the spine is abbreviated from the name on the title page. Although not indicated on the spine, the work still covers the high courts and Supreme Court of Appeal.
Environmental Compliance and Enforcement in South Africa: Legal Perspectives, Alexander Paterson & Louis J Kotzé (Eds.) : book reviewAuthor Tumai MuromboSource: South African Law Journal 128, pp 202 –206 (2011)More Less
The stated purpose of this book is to discuss critically the compliance and enforcement of the environmental regulatory regime in South Africa by the various role-players, to promote a broader understanding of the various components integral to this regime and to promote critical debate around the key challenges and anomalies inherent to this regime (at 8). As noted by Sachs J in the foreword, the book 'traces the manner in which, using international best practice, a gleaming constitutional promise was converted into a hard-nosed and comprehensive legislative framework. Yet as the authors point out, this new legal regime solves one problem, but creates another. The mechanisms are there on the statute books, but they are not being effectively applied' (at ix).