South African Law Journal - Volume 130, Issue 1, 2013
Volume 130, Issue 1, 2013
An application for debt review does not constitute an act of insolvency: First Rand Bank Ltd v Janse Van Rensburg : notesAuthor Carias Tererai ChokudaSource: South African Law Journal 130, pp 5 –18 (2013)More Less
The Insolvency Act 24 of 1936 ('the Insolvency Act') and the National Credit Act 34 of 2005 ('the NCA') both regulate, amongst other things, matters concerning debtors who are unable to pay their debts. Due to this overlap, there is an ever present danger that tensions may arise in the application of the two Acts in any given case. In the past few years the courts have had to resolve disputes touching on the inter-relationship between the two Acts in the context of sequestration and debt review (see the case of Investec Bank Ltd v Mutemeri 2010 (1) SA 265 (GSJ) as well as Ex Parte Ford 2009 (3) SA 376 (WCC); see also A Boraine & C van Heerden 'To sequestrate or not to sequestrate in view of the National Credit Act: a tale of two judgments' (2010) 13(3) PELJ 19; N Maghembe 'The Appellate Division has spoken - sequestration proceedings do not qualify as proceedings to enforce a credit agreement under the National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 (4) SA 597' (2011) 14(2) PELJ 171). The High Court's decision in the case of First Rand Bank Limited v Janse van Rensburg  2 All SA 186 (ECP) is one of the latest judgments in this respect. The court had to resolve the question whether an application by a debtor to be placed under debt review in terms of s 86 of the NCA constitutes an act of insolvency in terms of s 8(g) of the Insolvency Act. The judgment is significant because it clarifies an important aspect of the inter-play between the NCA and the Insolvency Act.
Is a resignation vitiated by the failure to give proper notice? A discussion of Lottering & Others v Stellenbosch Municipality : notesSource: South African Law Journal 130, pp 18 –30 (2013)More Less
The case of Lottering & others v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC), ('Lottering') investigated the question whether resignations tendered by the applicants had the effect of terminating their contracts of employment with the respondent. The central issue which the court dealt with was whether their resignations were vitiated by their failure to give proper notice.
Accountability, contextualisation and the standard of judicial review of affirmative action : Solidarity obo Barnard v South African Police Services : notesAuthor J.L. PretoriusSource: South African Law Journal 130, pp 31 –44 (2013)More Less
The decision in Solidarity obo Barnard v South African Police Services (2010) 31 ILJ 742 (LC) ('Barnard') has, once again, raised the issue of the proper standard of review of affirmative action measures. The Labour Court ruled that under s 6 of the Employment Equity Act 55 of 1998 ('EEA') the respondent bears the onus of proving the fairness of its decision not to appoint the applicant, a white female. This approach contradicts the Constitutional Court's leading judgment on the test for affirmative action under s 9(2) of the Constitution. In Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) ('Van Heerden'), the court held that affirmative action measures falling within the ambit of s 9(2) are not subject to the presumption of unfairness in terms of s 9(5) of the Constitution.
Business rescue proves to be creditor-friendly : C J Claassen J's analysis of the new business rescue procedure in Oakdene Square Properties : notesAuthor Richard S. BradstreetSource: South African Law Journal 130, pp 44 –52 (2013)More Less
Amongst the recent spate of emerging case law on the business rescue provisions in Chapter 6 of the Companies Act 71 of 2008 ('the Act') comes the decision of Oakdene Square Properties (Pty) Ltd & others v Farm Bothasfontein (Kyalami) (Pty) Ltd & others 2012 (3) SA 273 (GSJ) ('Oakdene Square Properties'), which is of particular relevance to creditors who may have been concerned about a loss of protection under the new dispensation. Whereas judicial management and liquidation have in the past been implemented disproportionately in the favour of creditors - not least for the reason that the former often led to the latter as a matter of course - the new procedure seeks to protect a wider range of interests in the business rescue process.
Author D.M. DavisSource: South African Law Journal 130, pp 52 –59 (2013)More Less
In my initial response to Professor Fagan (D M Davis 'How many positivist legal philosophers can be made to dance on the head of a pin? A reply to Professor Fagan (2012) 129 SALJ 59 ('Critique')) I expressed the view that his entire argument in his inaugural lecture (Anton Fagan 'The secondary role of the spirit, purport and object of the Bill of Rights in the common law's development' (2010) 127 SALJ 611 ('Initial article')), which was predicated upon the concept of determinatio, had been based upon a fundamental misreading of the work of John Finnis, from whom Fagan had apparently derived the concept. For this reason alone, the reading of a text lies at the heart of the debate between Fagan and myself. Surprisingly, in his rejoinder (Anton Fagan 'A straw man, three red herrings and a closet rule worshipper - A rejoinder to Davis JP' 2012 (129) SALJ 788 ('Rejoinder')) Fagan neither defends himself against this serious charge, nor does he retract his representation of Finnis.
The environmental management programme : legislative design, administrative practice and environmental activismAuthor Tracy HumbySource: South African Law Journal 130, pp 60 –84 (2013)More Less
The submission and approval of an environmental management plan or programme ('EMP') under the Mineral and Petroleum Resources Development Act 28 of 2002 ('MPRDA') is both separate from and linked to the actual granting of a prospecting or mining right in the MPRDA legislative design and the Department of Mineral Resources' administrative practice. This leads to a number of uncertainties when the EMP and the granting of the right are challenged, as illustrated by the slightly differing approaches in the Bengwenyama, Mapungubwe and Xolobeni cases. In an effort to alleviate this uncertainty, the article argues that the approval of the EMP can indeed be considered as an administrative decision (for purposes of appeal) or administrative action (for purposes of review) distinct from that of granting a prospecting or mining right.
Big brother and the holding company : ministerial consent to dispose of indirect controlling interests in mining companiesSource: South African Law Journal 130, pp 85 –124 (2013)More Less
The Mineral and Petroleum Resources Development Act prohibits disposals without ministerial consent of controlling interests in mining (and petroleum production) companies. This probably includes indirectly-held controlling interests. While the Act criminalises disposals without ministerial consent, it does not clearly render them void. As such, the article considers arguments for and against the nullity of such disposals. Secondly, the article considers the extent of criminal liability for a disposal of equity in a foreign holding company with a South African mining subsidiary. Thirdly, we consider whether transferees, attorneys and others assisting with unauthorised disposals could be criminally liable as accomplices, and whether there could be a defence that any one of these parties was acting in reasonable ignorance of the law. The article also considers actions to enforce transfer of a controlling interest where ministerial consent has not been granted, including dilatory pleas and excipiability, and whether restitution is appropriate if transfer occurs without such consent. As the Act currently stands, the exemption for changes of controlling interests in listed companies probably extends to companies listed abroad. If and when a 2008 amendment commences, the prohibition will extend to disposals of any interests in unlisted companies and controlling interests in listed companies, both of which could apply to companies abroad.
The application of assignment and delegation within the context of the National Water Act : the implications for catchment management agenciesAuthor Ramin PejanSource: South African Law Journal 130, pp 125 –153 (2013)More Less
The establishment of catchment management agencies ('CMAs') is integral to the decentralisation of water resource management. South Africa's water management laws and policies envision that CMAs are in the best position to manage water on a catchment scale, including facilitating participatory decision-making and information sharing between stakeholders. Assignment and delegation are the two main mechanisms by which powers are transferred from the Department of Water Affairs to CMAs, and each has very different legal implications in terms of responsibility and access to funds. However, the National Water Act 36 of 1998 provides little guidance regarding how, when and which of the two should be used. Moreover, within the Department of Water Affairs there are conflicting viewpoints as to whether CMAs should be assigned or delegated functions, and the role that the CMA should play in water management. This lack of clarity is unfortunate and contributes to the delays in establishing and developing fully functioning CMAs. The National Water Act should be amended to provide guidelines to clarify uncertainty about the process of assignment and delegation.
Author M.F.T. BothaSource: South African Law Journal 130, pp 154 –186 (2013)More Less
Fagan's requirements for private defence, articulated in an article in the 2005 SALJ, are not supported by any of the cases he relies upon. His test lacks the unlawful attack and the necessity requirements. His belief requirement is different to that of the courts as it relates to a mere danger believed to be averted, whereas that of the courts relates to a specific kind of danger believed to be averted, namely death or serious injury. His requirements are therefore not in line with those in South African law of delict as set out by the courts. His requirements are based on the English law of torts, where an unlawful attack is not required for a person to act in private defence, and where the belief requirement is formulated in such a way that putative private defence is equated with actual private defence. He is however in part right in his criticism of the Kgaleng judgment, although it will be argued that his views on the ex ante and ex post debate are not entirely correct. The Kgaleng judgment and Fagan's requirements reveal a conflict in the belief requirement and the requirements for the defensive action which indicate that the setting of a belief requirement is not proper in the determination of private defence as a justification defence.
Author Alan RycroftSource: South African Law Journal 130, pp 187 –209 (2013)More Less
Should reaching a settlement agreement after negotiations be a private matter immune from public or judicial scrutiny? This article seeks to show that, far from being an insulated process, the process of reaching a settlement, and the actual content of settlement agreements, is impacted upon by the law and public policy in diverse ways. Parallel to the law of contract are dynamic forces which mould the ethics and practice of reaching a settlement and, once reached, increasingly subject it to scrutiny. The article first considers the legal status of settlement agreements. It then looks at three related themes of the settlement process: the regulation of the ethics of negotiation, the duty to bargain in good faith, and the obligation to attempt mediation to reach a settlement. It also considers the impact of the law on the settlement agreement, considering judicial review of both the settlement process and the settlement agreement. It considers the mandate of lawyers as negotiators, before concluding with some remarks about possible future directions.
Author Sieg EiselenSource: South African Law Journal 130, pp 210 –213 (2013)More Less
Once the Cinderella sister in the South African law of obligations, a sudden flurry of monographs has seen the law of unjustified enrichment receive some serious, but welcome attention from a number of private law princes. The change started with the publication of Jean Sonnekus's Ongegronde Verryking in die Suid-Afrikaanse Reg (2007) and its translated English version in the same year. That was followed by Danie Visser's Unjustified Enrichment (2008), the third edition of Sieg Eiselen & Gerrit Pienaar Unjustified Enrichment - A Casebook (2008), and now by Jacques du Plessis's work The South African Law of Unjustified Enrichment (2012).
Author Jacqueline YeatsSource: South African Law Journal 130, pp 213 –215 (2013)More Less
As anyone who has an interest in company law will be only too well aware, the last few years has been marked by radical changes to South Africa's company law legislation. A complex and lengthy drafting process that was undertaken under the auspices of the Department of Trade and Industry eventually culminated in the Companies Act 71 of 2008. The Act became effective on 1 April 2011. On 26 April 2011, voluminous and detailed Companies Regulations were promulgated, adding another dimension to the Act and effectively presenting South Africans with a new corporate law regime.