South African Law Journal - Volume 128, Issue 4, 2011
Volume 128, Issue 4, 2011
Source: South African Law Journal 128, pp I –XXXVII (2011)More Less
Pending suits in the magistrates' courts - the effect of the lack of transitional provisions in the new rules of court : notesAuthor Danie Van LoggerenbergSource: South African Law Journal 128, pp 607 –611 (2011)More Less
On 15 October 2010 the rules regulating the conduct of the proceedings of magistrates' courts were repealed and replaced by a comprehensive set of new rules (GN 888 GG 33620 of 8 October 2010). The new rules were made, and the old rules repealed, by the Rules Board for Courts of Law in the exercise of its power under s 6 of the Rules Board for Courts of Law Act 107 of 1985. The new rules do not contain any transitional provisions. A question therefore arises whether suits that were pending in the magistrates' courts on 15 October 2010 are governed by the old or new rules.
Suicide notes, wills, testamentary capacity, and s 2(3) of the Wills Act 7 of 1953 : Smith v Parsons NO; Henriques v Giles NO : notesAuthor Michael Cameron Wood-BodleySource: South African Law Journal 128, pp 612 –620 (2011)More Less
It is not uncommon for a person who commits suicide to leave some form of document to be discovered on his or her death. In many instances this is a farewell note intended for those left behind and has no legal ramifications. Where, however, the document goes further and touches on what is to become of the deceased's property then questions arise whether this is a testamentary disposition and, if so, whether the requirements for the execution of a valid will have been fully complied with. (The elements of a testamentary disposition are: a disposition of assets, an identification of the beneficiaries, and an indication of their interests in the assets (Ex parte Estate Davies 1957 (3) SA 471 (N) at 474A-C; Oosthuizen v Die Weesheer 1974 (2) SA 434 (O) at 436C-D. For the execution requirements see s 2(1) of the Wills Act 7 of 1953 (as amended) (hereafter the 'Wills Act' or the 'Act'.))
'The art of the possible' in realising socio-economic rights : the SCA decision in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd : notesAuthor Helen KruuseSource: South African Law Journal 128, pp 620 –632 (2011)More Less
In 1871, the Prussian politician Otto von Bismark is said to have remarked: 'Politics is the art of the possible.' One would not expect to find a truncated version of that same remark in a Supreme Court of Appeal judgment in 2011 (see para 54 of City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2011 (4) SA 337 (SCA) ('Blue Moonlight')). However, as I shall explain below, the quotation is oddly appropriate in the light of the decision of Navsa JA and Plasket AJA in Blue Moonlight (as confirmed recently by the Constitutional Court on appeal in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd  ZACC 33). Such appropriateness relates to the court's indication in this eviction matter that it will take an increasingly robust approach in ensuring the realisation of socio-economic rights in South Africa. In the words of the judges, a court's approach (or 'role') can rightly be described as 'the art of the possible' in that a court has a duty to protect and promote socio-economic rights, while at the same time having to accept the reality of limited available resources, and that it must not breach the limits set by the separation of powers doctrine (Blue Moonlight ibid).
Protecting parties from ambush : some recommendations on discovery in children's court litigation : notesSource: South African Law Journal 128, pp 632 –642 (2011)More Less
Pre-trial discovery for achieving the disclosure of evidence between parties is commonly utilised in civil litigation. Each party has the right to call on others to specify which relevant documents and other recorded evidence they possess and/or intend to use at the trial. In instances where the rules of procedure allow it, they may also be required to reveal such evidence for inspection and copying. Thus, the purpose of discovery is to permit 'each party knowledge of, and eventual access to' evidentiary material 'in possession of an opposing party that might be relevant to the trial' (S Peté, D Hulme, M du Plessis & O Sibanda Civil Procedure: A Practical Guide (2011) 227 (hereafter 'Peté et al')). This avoids parties being taken by surprise, fosters transparency and co-operation, and eliminates disputes where evidence is unassailable (Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1083; Peté et al op cit at 227). It also saves expense and court time by avoiding adjournments and other delays, narrows the issues in dispute, and is conducive to matters being resolved on the merits and not as a result of tactical manoeuvrings (Law Reform Commission of Western Australia 'Disclosure' (Chapter 13) in Review of the Criminal and Civil Justice System in Western Australia (Project 92) (1999) available at http://www.lrc.justice.wa.gov.au/2publications/reports/P92-CJS/finalreport/ch13disclosure.pdf, accessed on 25 April 2011).
The action of dependants revisited in the light of Brooks v the Minister of Safety and Security : notesAuthor Michael Celumusa ButheleziSource: South African Law Journal 128, pp 642 –658 (2011)More Less
In an unprecedented case, Aaron Brooks, the plaintiff, was a victim of domestic violence. His natural father had opened fire on a number of people, killing three of them and wounding five others. The plaintiff's mother and his sister were among the dead, while the plaintiff, who was fourteen years old at the time, was wounded. The plaintiff's father was then charged with, and convicted of, various offences, one of which was murder, and was subsequently sentenced to 20 years' imprisonment.
Source: South African Law Journal 128, pp 659 –685 (2011)More Less
What is the role of the judge in the conduct of a trial? Can he or she engage counsel in legal argument and ask questions on legal issues without breaking the brittle bond of justice or be said to have 'descended into the arena'? Assuming that these actions are permissible, at what point will the judge's dialogue with counsel or line of questioning go beyond permissible limits? These are the questions with which this article grapples. Based on an analysis of the Constitutional Court decisions in State v Basson (2) 2007 (1) SACR 566 (CC) and Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC), and several Supreme Court of Appeal and other Commonwealth decisions, the article explores the circumstances in which the recusal of judges has been sought, or judicial decisions have been challenged on appeal on the basis of an allegation that there have been violations of the principle of fair hearing as enshrined in the Constitution. The article draws on the 'apprehension of bias' jurisprudence to establish the utility of the presumption of impartiality and the hybrid test of double-reasonableness in contexts where a judge's conduct is in question. The article concludes that the dialogue between the bench and bar is a useful component of adjudication in our adversarial system and should be limited by the rules of impartiality only in very exceptional circumstances.
Crossing the divide between the business of the corporation and the imperatives of human rights - the impact of Section 7 of the Companies Act 71 of 2008Author Judith KatzewSource: South African Law Journal 128, pp 686 –711 (2011)More Less
This article considers the role of human rights in the corporate environment. It will be argued that although traditionally there has been a divide between the goals of the company, perceived as the pursuance of profit, and the imposition of human rights obligations upon companies, perceived of as an impediment to 'profit maximisation,' it is now essential that this divide be bridged. This imperative is found both in the Constitution of the Republic of South Africa, 1996 and within the Companies Act 71 of 2008. The article considers how s 7 of the Companies Act, which sets out the purpose of the Act, seeks to give effect to this constitutional mandate whilst protecting the more traditional functions of a company. Having established that companies do have responsibilities in a constitutional dispensation, the article proceeds to consider how these responsibilities can be applied effectively in the management of a company. The nature of the company as an entity is explored to provide a basis for considering how to define the content and the extent of human rights obligations in a company law context. International developments in this regard are also briefly discussed. The doctrine of veil piercing, and innovative interpretations of director's duties are then considered as mechanisms to inculcate these obligations within company structures.
Author Matthew KrugerSource: South African Law Journal 128, pp 712 –740 (2011)More Less
There is little doubt that public policy, as a means of judicial control over the enforcement of contractual terms, is, and forever will be, somewhat of an unruly horse that is beyond absolute judicial control. As a standard-orientated concept, which is always context-dependent and subject to change, it simply cannot be applied in a formulaic or ritualistic manner. This is its nature. That this is so, however, is not to say that there are no ways of diminishing the uncertainty that accompanies its application in a contractual setting. Whilst the irremediable absence of a rules-like method to the application of public policy renders this area of law inherently uncertain, this uncertainty is exacerbated by other factors. These factors include the improper conceptualisation of the nature of and test for public policy; the failure to define properly the role of constitutional values in the public policy analysis; and the failure to engage, on a case-by-case basis, substantively and critically with the various policy considerations which give content to public policy. Whilst properly addressing each of these issues will by no means eliminate the uncertainty that accompanies the application of public policy, it will definitely go some way towards bringing this uncertainty within acceptable levels.
Author Minette NortjeSource: South African Law Journal 128, pp 741 –762 (2011)More Less
This contribution examines the reasons underlying the development of the 'unexpected term' defence to the caveat subscriptor rule. It is argued that the development cannot be ascribed to the changes to the doctrinal framework of mistake that took place over the past century. Rather, the explanation is changed attitudes to the assumptions underlying the caveat subscriptor rule in its traditional form, namely careful reading by the signatory as the norm, and the assumption that a deliberate decision not to read the document indicates blanket consent to all terms therein. It is argued that the most important catalyst for the development of the 'unexpected terms' defence was an implicit recognition by our courts that blanket consent only applies to 'expected terms. In addition, the implication of many of the decisions is that careful reading by the signatory is no longer regarded as the norm. However, the courts are ambivalent in regard to the latter, leading to inconsistent judgments with resultant uncertainty in an important area of contract law.
The make-up of transitional rights to minerals : something old, something new, something borrowed, something blue...?Source: South African Law Journal 128, pp 763 –784 (2011)More Less
When a new mineral law regime was introduced by the Mineral and Petroleum Resources Development Act 28 of 2002 ('MPRDA') the previous system of common law mineral rights, prospecting rights, mining rights and statutory rights was completely superseded by a new administrative system whereby the common law mineral rights were replaced by similar prospecting and mining rights granted by the Minister of Mineral Resources, and the statutory authorisations to exercise such rights were fused into the prospecting or mining right thus granted. The transition from the old order to the new mineral law regime was made possible by the transitional arrangements included in Schedule II to the MPRDA. Transition was necessary to prevent the disruption of an important sector of the economy until existing prospecting and mining operations could be regulated in terms of the MPRDA. In this article, features of the three categories of transitional rights ('old order rights') in relation to their acquisition, nature, content, transfer and termination are examined in the light of recent case law. By a process of analogical reasoning 'old older rights' will be compared with common law mineral rights, prospecting and mining rights and new order rights granted in terms of MPRDA. The contentious issue of the manner and moment of expropriation of transitional rights will be touched upon briefly at the end of the article.
Stella Iuris : 100 Years of Teaching Law in Pietermaritzburg, Michael Kidd & Shannon Hoctor (Eds.) : book reviewAuthor Hugh CorderSource: South African Law Journal 128, pp 785 –790 (2011)More Less
With the centenary of South Africa as a nation state having been reached last year, those among us who appreciate the indulgence from time to time of reflecting on our past can look forward to an increasing flow of books such as this: a marking of a significant temporal milestone in the existence of an institution. The authors or editors of such volumes have a choice: they can either focus their efforts (and those of any fellow-contributors) entirely on different aspects of a particular history (see, for example, Denis Cowen & Daniel Visser The University of Cape Town Law Faculty: A History 1859-2004 (2004) SiberInk: Cape Town), or they can compile a sort of Festschrift, in which both history and unrelated contributions from those invited to pay tribute are brought together in celebration of the institution concerned. Professors Kidd and Hoctor have chosen the latter route. The result is a handsome and substantial volume, attractively enclosed within sturdy covers, and containing eighteen contributions, only three of which (and some well-chosen photographs and paintings at the end) deal directly with the history of the teaching of law in Pietermaritzburg.
Source: South African Law Journal 128, pp 791 –795 (2011)More Less
The Companies Act 71 of 2008 represents a significant rupture from legislation which preceded it. After all, the Companies Act 61 of 1973, which followed the Van Wyk Commission of Enquiry (RP 45/1970; RP 31/1972) was itself a product of earlier legislation borrowed almost exclusively from the company law of 19th and early 20th century England. As Professor Farouk Cassim writes in the introduction to this new work (at 3), since that period,
'[n]ew corporate law concepts had been developed, such as solvency and liquidity, new and higher standards of corporate governance, new standards of accountability, disclosure and transparency, market manipulation and new ideas and approaches to mergers and amalgamations, shareholder appraisal rights and corporate rescue'.
Not only has the 2008 Act sought to respond to significant global economic changes that have occurred over the past 40 years but the drafters expanded the scope of influence which was exerted upon 2008 text, to borrow from a richer source of law than simply the United Kingdom. A careful reading of the text will reveal that, apart from English law, comparative corporate law will now play a greater influence as persuasive authority in the development of South Africa company law, with key concepts having been taken from the Model Business Corporation Act of the United States of America, the Delaware General Corporation Law, the Maryland General Corporation Law, and Australasian principles of corporate governance, the last of which will be essential reading for those seeking to parse ss 76-78 of the Act (standards of directors' conduct and liability of directors and prescribed officers respectively). In regard to US law, see the instructive contribution of James Hanks 'The new legal capital regime in South Africa' 2010 Acta Juridica 131. Professor Hanks, who was a member of the international reference team, the contribution of which was critical to the conceptualisation and drafting of the 2008 Act, provides an instructive exposition of the legal capital regime in South Africa as shaped by US legislation, particularly the Model Act, references to which would greatly have enriched the chapters dealing with the new capital regime.
Author Marita CarnelleySource: South African Law Journal 128, pp 795 –796 (2011)More Less
The commencement of the new Companies Act 71 of 2008 on 1 May 2011 brought about fundamental changes to the legislation regulating companies in South Africa. All legal professionals, practitioners, advisors and other interested parties working with the company laws have to adapt their operation in light of the new structure and content of the 2008 Act. A few books have seen the light in the past year such as Farouk H I Cassim (managing ed) Contemporary Company Law (2011) and T H Mongalo Modern Company Law for a Competitive South African Economy (2010). This book under discussion, the Comparative Guide to the Old and New Companies Act is slightly different. It is intended for practitioners with a working knowledge of the old legislation, making it ideal for the transitional period. It contains a number of referential guides to compare the old and new pieces of company legislation. From the outset it is noted that there is no discussion of any of the sections and as such the purpose of the book is to create a starting point for referential purposes only.
Author Tanya WokerSource: South African Law Journal 128, pp 796 –799 (2011)More Less
In this modern age intellectual property (IP) law is an area of the law which no lawyer can afford to ignore, even if that lawyer does not actively participate in the field of IP law. It is now almost universally recognised that IP rights are an essential part of any business. Protecting rights is critical to the interests of IP rights-holders because of the value of intellectual assets. During the last two decades IP law has expanded rapidly with regard to objects which are protected and the scope of that protection. Further, the IP system plays a critical role in both the national and international economy. IP law has therefore moved from being a rather dry area of commercial law, practised by relatively few, into the mainstream of legal practice. Every lawyer should at least understand the basics, even if it is just a case of the lawyer recognising that his or her client has a serious problem which requires the services of an expert. The problem with this area of the law is that it encompasses at least six different subjects, each of which warrants a text of its own and on which there are a number of major works, each one dealing with its own specialist subject. IP is protected by both statute and the common law. It is not an easy subject to understand and attempting to get to grips with the main principles can be quite daunting. For those who wish to get an overview of, and an introduction to, the entire topic it is useful to have a single book which covers the main categories of IP law.