South African Law Journal - Volume 128, Issue 2, 2011
Volume 128, Issue 2, 2011
A missed opportunity to achieve justice in respect of maintenance for divorced spouses whose former spouses die : Kruger v Goss : notesSource: South African Law Journal 128, pp 211 –223 (2011)More Less
In Kruger NO v Goss & another 2010 (2) SA 507 (SCA) (Kruger) the Supreme Court of Appeal delivered judgment on whether an order for maintenance made in terms of s 7(2) of the Divorce Act 70 of 1979 can be enforced against the deceased estate of the spouse who was ordered to pay maintenance (ie the maintenance debtor). Section 7(2) expressly deals with termination of the maintenance obligation by the death of the maintenance recipient, but is silent on the effect of the death of the maintenance debtor.
Author J. NeethlingSource: South African Law Journal 128, pp 223 –233 (2011)More Less
In South Africa there are constant threats of harm to persons or their property by veld, forest and mountain fires as a result of others' delictual conduct. Over the years, important decisions have been delivered on the issue and the legislature has also made provision for measures to prevent and combat veld fires throughout our land (see s 1(1) of the National Veld and Forest Fire Act 101 of 1998; in terms of s 2 of the Act a 'veld fire' means a veld, forest or mountain fire). It is trite that a delictual claim for damage caused by fires can succeed only if the five elements of a delict are present, namely an act, wrongfulness, fault, causation and damage (see HL & H Timber Products (Pty Ltd v Sappi Manufacturing (Pty) Ltd 2001 (4) SA 814 (SCA) at 820; Minister of Water Affairs & others v Durr & others  1 All SA 337 (SCA) para 20; Wingaart v Grobler 2010 (6) SA 148 (ECG) at 156; J Neethling & J M Potgieter Neethling-Potgieter-Visser Law of Delict 6 ed (2010) 4).
That 'devilish little point' - the impact of section 6(1) of the Trust Property Control Act 57 of 1988 on the capacity of trustees to contract, sue, and be sued : Luppacchini NO & another v Minister of Safety and Security : notesAuthor Michael Cameron Wood-BodleySource: South African Law Journal 128, pp 233 –245 (2011)More Less
The trust is an institution that has developed in the South African common law (see Edwin Cameron, Marius de Waal, Basil Wunsh, Peter Solomon & Ellison Kahn Honoré's South African Law of Trusts 5 ed (2002) at 21 - 4), unlike a company which owes its existence to statute.
Author Andre MukheibirSource: South African Law Journal 128, pp 246 –252 (2011)More Less
The collateral source and accounting of benefits rule is probably the most casuistic of all rules in the South African law of damages. The rule applies when a victim of a damage-causing event, in addition to suffering harm, also receives certain benefits. The question arises as to which benefits have to be deducted from the damages claim and which damages are res inter alios acta and hence need not be deducted. It is often said that there is no general underlying principle that determines when a benefit received pursuant to the commission of a delict should be deducted from the damages claim or not.
Author Lawrence G. BaxterSource: South African Law Journal 128, pp 253 –272 (2011)More Less
Changes in science, law and society are shaping new directions for administrative law. The traditional doctrinal framework within which we view how law should regulate government and private economic activity is becoming antiquated. To explain why this is the case, the article outlines the basic premises of prevailing doctrine and its growing shortcomings. Then numerous new developments in our understanding of the social ecologies through which law and regulation are transfused are described. Some implications for the way in which we need to think about future regulation in order to be more effective in this complex world are explored. We are moving from a framework of directive regulation to one that has to become much more adaptive. Examples are used from the world of financial services, but they can be found everywhere in the area of regulation. While this article focuses on understanding markets as evolutionary social ecologies and the consequences for administrative law and regulation, it is equally important to emphasise that these 'amoral bazaars' be grounded on a foundation of moral aspiration and integrity. The article therefore concludes that we ignore at our peril the urgent responsibility of redeveloping a moral framework within which markets should operate.
Author Andrew HutchisonSource: South African Law Journal 128, pp 273 –296 (2011)More Less
Parties to an agreement may include open terms which leave certain particulars open to future negotiation. The aim of this type of provision is usually to allow for changing circumstances over time or the threshing out of more detailed terms. Conventional drafting practice is to state that these terms are to be negotiated in the future in good faith. What if a party subsequently resists all efforts to reach agreement? Is there a mechanism which will enforce this duty to negotiate? Of course the parties may have inserted their own deadlock-breaking provision - in the absence thereof a court should be able to find its own resolution. This paper will consider proposed methods of enforcement of such a duty with reference to developments in South Africa as well as other countries, particularly the USA and Australia.
Shielding of parastatals against claims for performance : an unwarranted digression from legal principlesAuthor J.C. SonnekusSource: South African Law Journal 128, pp 297 –326 (2011)More Less
It is a matter of concern to what extent state-owned enterprises (parastatals or public entities), as enterprises or institutions that are directly or indirectly controlled by the state, may shy away from their liabilities behind the shadow of the 'sovereign state' to which they are linked by more than just an umbilical cord. In this contribution it is submitted that these sort of enterprises that are formally recognised as separate legal entities (eg Transnet Ltd) should not be allowed to use their close connection to the state to shield themselves against legal liability. They are, after all, companies subject to company law. An entity is a separate legal persona from its shareholder/s. The content and limits of the perceived blanket protection against liability provided for in the Legal Proceedings Against Certain Organs of State Act 40 of 2002 and the proposed Constitution Eighteenth Amendment Bill of 2009 and the State Liability Bill of 2009 published by the legislature should thus be interpreted restrictively to limit any unwarranted digressions from normal legal principles applicable to all subjects operating in the market place. The 'lifting of the corporate veil' doctrine should not ever be used as an excuse to benefit a corporate institution by allowing it to hide behind the limitations provided to its handicapped or challenged stakeholders in their personal capacities. It is submitted that a close scrutiny of the implications of the explicit formulations used in the proposed State Liability Bill of 2009 should exclude parastatals like Transnet, most notably: 'but [organ of state] does not include any public entity or parastatal which is financed fully or substantially from ... or (iii) by way of a tax, levy or other statutory money'. It is submitted that, irrespective of the applicability of the defence of estoppel in a related matter, legal certainty will be enhanced if it is accepted from the outset that the limited category of entities to be included under the moniker 'certain organs of state' should not be expanded beyond the clear wording of the Act. The proposed new Bill confirms this submission.
Author C.J. VisserSource: South African Law Journal 128, pp 327 –351 (2011)More Less
Although there is merit in considering the amende honorable as an alternative remedy to damages in a defamation action, it is questionable whether the amende honorable is an appropriate remedy against media defendants. Defamation law as applied to defamation by the media does not only involve the parties engaged in litigation but also the public, which relies on the media to receive information. As explained in the minority judgments of Dikoko v Mokhatla 2006 (6) SA 235 (CC), the purpose of the amende honorable is to achieve interpersonal repair between the defendant and the plaintiff in defamation cases and also to reintegrate the parties into broader social relations. The extended values of vindication of reputation cannot, however, be achieved by the amende honorable in the context of defamation by the media. The nature of the relationship between a media defendant and a plaintiff does not necessitate interpersonal repair, as the interests of justice will not be served by attempting to restore a personal relationship that does not exist. The amende honorable also falls short in achieving social harmony. The extent of mass publication by a media defendant falls beyond the reparative scope of the amende honorable. Through the mass publication of defamatory allegations, the media has an increased capacity to cause harm to the reputation of the plaintiff that cannot properly be vindicated by an apology.
Author Richard BradstreetSource: South African Law Journal 128, pp 352 –380 (2011)More Less
Chapter 6 of the Companies Act 71 of 2008, containing the new 'business rescue' provisions, marks a significant change in South African corporate law. It replaces the 'judicial management' provisions of the Companies Act 61 of 1973 with a procedure for the rescue of financially distressed companies, now under the supervision of a business rescue practitioner, to enable such companies to reorganise their affairs extra-judicially to avoid insolvency where at all possible. The new business rescue provisions adjust the previous emphasis on creditors' interests under the judicial management regime, to a more balanced consideration of the interests of debtors and other 'stakeholders' in addition to the interests of creditors. Although this shift away from an emphasis on creditors' interests brings South Africa into step with many recent international developments in this area of law, creditors are likely to be apprehensive about having their interests weighed against those of other 'affected persons'. This article seeks to assess the protection afforded to creditors in regard particularly to access to, and commencement of the rescue process, as well as the post-commencement moratorium on legal proceedings against the company being rescued and the supervisory role of the business rescue practitioner.
De Ratione Juris Docendi & Discendi Diatribe per Modum Dialogi, Ulrich Huber : A Translation and Commentary, Margaret Louise Hewett : book reviewAuthor Rena Van den BerghSource: South African Law Journal 128, pp 381 –384 (2011)More Less
The research of which this book is the end product started many years ago, as a much smaller project. The 1688 version of Ulric Huber's De ratione discendi et docendi iuris, diatribe per modum dialogi (hereafter Dialogus) was to be published as a Latin text with an English translation, appropriate footnotes and an introduction with brief resumés of the lives of the principal characters participating in the dialogue. In the end, it finally came to fruition in the present format as an academic thesis submitted for a doctorate at the University of Amsterdam in the Netherlands.
Source: South African Law Journal 128, pp 384 –390 (2011)More Less
The printed series of Lesotho Appeal Court judgments currently consists of four volumes: 1990 - 1994, 1995 - 1999, 2000 - 2005, and 2005 - 2006. It is edited by K A Maope, an advocate of the High Court of Lesotho, and published with the financial assistance of the United Nations Development Programme and the Lesotho Justice Sector Development Programme. Adv Maope should be commended for his detailed and diligent compilation.