South African Law Journal - Volume 129, Issue 4, 2012
Volume 129, Issue 4, 2012
Compliance with Section 25(2)(b) of the Constitution : when should compensation for expropriation be determined? : notesAuthor Z.T. BoggenpoelSource: South African Law Journal 129, pp 605 –620 (2012)More Less
In the recent case of Haffejee NO & others v eThekwini Municipality & others 2011 (6) SA 134 (CC) (Haffejee), the Constitutional Court held that the determination of compensation need not precede an expropriation; compensation can in principle be determined after expropriation. The applicants (hereafter referred to as 'the Trust') in Haffejee were the trustees of the YGM Haffejee Family Trust, which owned property situated on the banks of the Umgeni River in Durban. This property was earmarked to be expropriated by the eThekwini Municipality for purposes of a canalisation programme to ensure that the effects of flooding of the river were minimised. In 2004, the Municipality resolved to expropriate the Trust's property and on 23 May 2005 a notice was sent to the Trust indicating the intention of the Municipality to expropriate the property. Another notice was sent on 30 June 2005, fixing the date of expropriation as 31 July 2005. Neither of these notices contained any offer of compensation. Therefore, it is clear that compensation had not been fixed at the time that the expropriation had taken place. In July 2006, the Municipality offered compensation at an amount of eighty per cent of the market value of the property. The applicants rejected the amount, because they questioned the validity of the expropriation in terms of s 25(2)(b) of the Constitution. Consequently, the Municipality instituted eviction proceedings and tendered payment of the full market value of the property as compensation, which was also rejected by the Trust.
Squeezing out provinces' legislative competence in Premier: Limpopo Province v Speaker: Limpopo Provincial Legislature & Other I and II : notesSource: South African Law Journal 129, pp 621 –637 (2012)More Less
In Premier: Limpopo Province v Speaker: Limpopo Provincial Legislature & others 2011 (6) SA 396 (CC) ('Limpopo I') the Constitutional Court ruled, nine to two, that a provincial law regulating the provincial legislature's financial affairs and practices was unconstitutional for being beyond the provincial legislature's competence. Five other provinces had passed similar laws but these were not before the court. In the follow-up case of Premier: Limpopo Province v Speaker: Limpopo Provincial Legislature & others 2012 (4) SA 58 (CC) ('Limpopo II') these laws were also invalidated.
Author Constantine TheophilopoulosSource: South African Law Journal 129, pp 637 –651 (2012)More Less
Previous case law and legislation have explained the nature of state privilege in terms of its relationship to public policy (ie the reasonable expectation that certain state actions and communications cannot be disclosed as evidence during the course of a trial and that such non-disclosure is in the public interest, or in the interests of justice). Unfortunately, the Promotion of State Information Bill B6B of 2010 omits any reference to the crucial concepts of state privilege and public policy. Current criticisms of the Bill mostly focus on those clauses which penalise the disclosure of classified information by a so-called whistle blower. This note supplements the critical debate by illustrating the very real danger posed by Chapter 12, clause 52 of the Bill, entitled 'protection of state information before courts', to the future development of the evidentiary and procedural principles which define the concept of state privilege.
Author Malcolm WallisSource: South African Law Journal 129, pp 652 –680 (2012)More Less
The article explores the relationship between judges and the public administration in the light of local and international suggestions that judges are employees. It argues that the superficial resemblance between a judge's working circumstances and those of civil servants is of less significance than the marked difference of function between the two, and concludes that it would be dangerous, in a young democracy such as South Africa, to follow an approach that characterises judges as employees of the state or civil servants.
Source: South African Law Journal 129, pp 681 –716 (2012)More Less
In five recent decisions the Constitutional Court has interpreted legislation in a manner that is incompatible with the words of the statutes. This article criticises the court's approach in these cases and argues for a return to the carefully calibrated approach to interpretation that the court has always advocated. We describe the court's current interpretive doctrine to set the scene for the charge that the court has been unfaithful to that approach. We then discuss each of the five cases - SAPS, Chirwa, Bertie Van Zyl, African National Congress and Van Vuren. Read together, these cases indicate that, when it suits it, the court is willing to ignore legislative text. This unrestrained interpretive method threatens the rule of law and the separation of powers without necessarily securing more just outcomes. We argue that there are three drivers of this approach: practitioners' and courts' over-use of section 39(2) rather than direct application; an academic legal culture that encourages disregard for the text; and the single-step structure of the interpretive method. We propose a two-stage approach to mitigate these risks: first, identifying the available meanings and explaining how they fit the text; and, secondly, relying on the values of the Constitution to choose a meaning.We do not call for a return to the arid literalism of yesteryear, and support the court's attempt to secure just outcomes, but argue that it can and should do so without sacrificing the text.
Author Kathy IdensohnSource: South African Law Journal 129, pp 717 –735 (2012)More Less
Most of the provisions in the Companies Act 71 of 2008 that regulate directors also apply to 'prescribed officers'. This term is both new and unique to South African company law, and is one with far-reaching legal implications. It is also one that has been defined in very vague and general terms. This article suggests and discusses some considerations that may be of assistance in finding an appropriate meaning for a 'prescribed officer'. In particular, it argues that the term must be interpreted with direct reference to the legal consequences that attach to it, and that the most significant of those consequences is that 'prescribed officers' are subject to substantially the same fiduciary-type duties as directors. The article then considers the principles governing the recognition of fiduciary duties and their implications for the 'prescribed officer' definition.
Regulating legal capital reduction : a comparison of creditor protection in South Africa and the state of DelawareAuthor Richard S. BradstreetSource: South African Law Journal 129, pp 736 –757 (2012)More Less
In modern corporate finance law, the solvency and liquidity threshold for making distributions from capital has superseded the highly technical regulatory regime of 'capital maintenance'. The capital maintenance rule was created as a means to protect creditors from prejudicial distributions of corporate 'legal capital', but the concept proved to be somewhat ineffective in practice. The solvency and liquidity requirements for distributions were introduced into the Companies Act 61 of 1973 by the Companies Amendment Act 37 of 1999, and reintroduced into the Companies Act 71 of 2008 free from the remnants of capital reduction terminology that endured before re-enactment. In Delaware, a state renowned for the permissiveness of its corporation laws, distributions continue to be regulated in terms of capital reduction. In view of the South African Companies Act of 2008's objectives being, inter alia, the encouragement of entrepreneurship, investment in the South African markets, and simplification of company law, this article, by comparing the approaches taken in South Africa and Delaware, seeks to assess whether the Act's move away from capital maintenance principles, traditionally associated with creditor protection, has appropriately simplified the provisions relating to capital reduction without having a detrimental impact on creditors.
The Malawi Pension Act : a general commentary on some of its core mandatory provisions with specific reference to sections 9, 10 and 15Source: South African Law Journal 129, pp 758 –787 (2012)More Less
After its independence from Britain in 1964, Malawi's pension regulatory framework was misdirected, fragmented and non-comprehensive. This situation has been addressed by the enactment of the Pension Act 6 of 2011. This Act, which was passed into law in April 2011, comprehensively regulates the pension funds sector and contains mandatory provisions that promote social protection and economic development. The article discusses these mandatory pension and life insurance provisions in the Pension Act. It mainly argues that s 15, which deals with mandatory life insurance, is progressive and should be welcomed. Furthermore, the adoption of s 15, in its current form, is commendable because it has circumvented the problems that could have emerged had the Act retained the language of its equivalent provision in the earlier Pension Bill. The article maintains that since the legal position adopted in the Pension Act is similar to that which obtained in South Africa, the legal developments in South Africa will be a useful guide to the Malawian practitioner and policy maker.
Author Anton FaganSource: South African Law Journal 129, pp 788 –798 (2012)More Less
It is flattering when a judge writes a response to an article one has published. It is even more flattering when the judge engages with the arguments one actually made in the article, rather than with an argument of his own invention. But judges are busy people. So it would be churlish to complain when one has been paid the first compliment without also being paid the second.
Author Jaco Barnard-NaudeSource: South African Law Journal 129, pp 799 –803 (2012)More Less
I must confess that it was quite by coincidence that the context in which I came to read this book primarily involves two things - reading Nietzsche and watching the monumental science fiction quadrilogy that is the Alien films, now supplemented by Ridley Scott's 2012 prequel, Prometheus. It was only by the end of Jacques de Ville's book on Derrida and law that it became apparent in how uncanny a fashion this reading-context resonates with the content of the book, for it is only in the concluding chapter of his text (under the somewhat ominously foreboding heading of 'Legal philosophers of a new species' (at 197)), that Nietzsche is invoked contemporaneously with the figure of the monster, or then, of the alien. My remarks about this book are thus inevitably 'framed' (as Derrida would put it) by this context and thus necessarily provisional and even violent. The criticisms expressed herein should, however, be read also in the context of an appreciation for all the recent work that, like the one under discussion, continues to show the relevance of deconstruction for legal studies. I hasten, on the other hand, to add that Law as Absolute Hospitality's claim that there was no ethical turn in Derrida's work, that it was always concerned with ethical questions, is a claim that I share - but it is really not a novel claim (see for instance, Mark Dooley & Liam Kavanagh The Philosophy of Derrida (2007) 107).
Author Michael KiddSource: South African Law Journal 129, pp 804 –807 (2012)More Less
If one believes the overwhelming weight of scientific opinion, humankind is causing the Earth's climate to heat at such a rate that life as we know it will be drastically changed a few decades from now. Some deny the anthropocentric source of climate change, but there are far fewer denialists of the fact that species extinction is significantly higher now than in past epochs, and that this is undoubtedly due to human pressures. Many scientists are warning that water availability is becoming ever more critical and the supply of water that is useful to humans is under increasing pressure. Furthermore, it is not just environmental concerns that are dominating the headlines. In many parts of the world, civil unrest is symptomatic of many people's intolerance of undemocratic rule and systems of government that are often centuries old. In those parts of the world that are not faced with civil unrest, people are attempting to claw themselves out of a major economic meltdown. At the time of writing, people in Europe are on tenterhooks about the so-called Eurozone crisis. Environment, politics and economics - nothing is stable in 2012. Does this not suggest a major rethink of how we do things is required?
Author Sanette NelSource: South African Law Journal 129, pp 808 –809 (2012)More Less
Medical Law is a fast-developing area of the law which has proved to be a popular and interesting elective course for LLB students at the undergraduate level, and field of research for law students at the postgraduate level. In the first place this is due to scientific innovations in medicine and surgery, which have led to many novel legal and ethical issues arising and which have to be dealt with in very real and serious situations.