South African Law Journal - Volume 130, Issue 2, 2013
Volume 130, Issue 2, 2013
Source: South African Law Journal 130, pp 219 –230 (2013)More Less
In September 2009, 22 candidates were interviewed for four vacancies on the Constitutional Court. These vacancies arose due to the impending end of the tenure the then Chief Justice Pius Langa, and Justices Yvonne Mokgoro, Kate O'Regan and Albie Sachs. In terms of s 174(4)(a) of the Constitution of the Republic of South Africa, 1996, the Judicial Service Commission ('JSC') prepared a list of seven nominees - three more than the number of vacancies - and submitted it to the President. The seven judges on this list were Judges Johan Froneman, Chris Jafta, Sisi Khampepe, Mandisa Maya, Mogoeng Mogoeng, Leona Theron and Raymond Zondo. Justices Froneman, Jafta, Khampepe and Mogoeng were subsequently appointed.
Source: South African Law Journal 130, pp 231 –243 (2013)More Less
This note sets out brief biographical details of the judges appointed to the Supreme Court of Appeal ('SCA') over the past three years, from December 2009 to November 2012. It draws on the curricula vitae of the justices (available at http://www.justice.gov.za/sca/judges_cv.html), as well as on the author's own monitoring of JSC interviews. A statistical analysis of the number of cases heard, and judgments delivered, at the SCA by each justice is also provided. These include all cases heard as acting justices of appeal prior to appointment, and as justices of appeal after appointment. Co-authored judgments are included in the totals.
Can section 2(3) of the Wills Act 7 of 1953 properly be applied to a mere instruction to draft a will? Mabika v Mabika : noteAuthor Michael Cameron Wood-BodleySource: South African Law Journal 130, pp 244 –260 (2013)More Less
This note concerns one aspect of the judgment in Mabika & others v Mabika & another, coram Moshidi J, in particular the granting of an order in terms of s 2(3) of the Wills Act 7 of 1953 (as amended). (A version of the judgment appears on SAFL 11 at  ZAGPJHC 109, but this version is different in some repeats to the original judgment on file with the author. The references in this note are to the full original judgment in Case no 2011/10308, GSJ, 8 September 2011.) Section 2(3) is the provision that empowers a court to give legal efficacy to a will even though it does not comply with the formalities prescribed for the execution of wills and would otherwise be null and void. The other aspects of the judgment, relating to orders for the forfeiture of certain property interests and the custody and guardianship of a minor child, are beyond the scope of this note.
Procedural fairness as a component of legality : is a reconciliation between Albutt and Masetlha possible? : noteAuthor Melanie MurcottSource: South African Law Journal 130, pp 260 –274 (2013)More Less
In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the Constitutional Court expanded the concept of legality. It did so by finding that rationality, as a component of legality, required that the victims of politically motivated crimes had first to be afforded a hearing before the President could exercise his power to pardon prisoners who had been found guilty of committing these crimes, and who had not sought amnesty from the Truth and Reconciliation Commission ('TRC'). The effect of Albutt is that the principle of legality is now capable of imposing procedural-fairness standards on the exercise of public power where it would be irrational not to do so, regardless of whether the exercise of such power amounts to administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA'). Surprisingly, the Constitutional Court held that it was 'not necessary' to determine whether the exercise of the President's pardoning power amounts to administrative action in terms of the PAJA (Albutt para 83).
Race, realism and critique : the politics of race and Afriforum v Malema in the (in)Equality Court : noteAuthor Joel ModiriSource: South African Law Journal 130, pp 274 –293 (2013)More Less
In this note, I will employ the jurisprudential approaches of legal realism, critical legal studies ('CLS') and critical race theory ('CRT') in order to examine the ruling of Lamont J in Afriforum v Malema 2011 (6) SA 240 (EqC) (hereinafter Afriforum v Malema. All subsequent references to paragraphs in this note refer to this case). Although my real concern is with the manner in which this judgment reflects an impoverished ideological approach to race and law, I also hope to illustrate the importance of considering divergent philosophical perspectives in legal analysis of equality jurisprudence and rights discourse as a way of offering counter-'seeings' and counter-readings of the law. This critique will not be based on any niceties of technical legal analysis but rather on the way in which the court engaged with (or rather disengaged from dealing with) the ideological nature of law and the politics of race in post-1994 South Africa. My purpose is not to show why and how the judgment was wrong but rather to show why, because of how deeply formalism and racism remains embedded in the law and legal culture, law and legal reasoning continues to favour the socially and economically dominant members of society.
Southern Africa Litigation Centre & Another v National Director of Public Prosecutions & Others : noteAuthor Christopher GeversSource: South African Law Journal 130, pp 293 –309 (2013)More Less
On 8 May 2012 the North Gauteng High Court handed down judgment in Southern Africa Litigation Centre & another v National Director of Public Prosecutions & others 2012 (10) BCLR 1089 (GNP) ('SALC v NDPP'). The case involved a review application under the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') and the legality of the decision by the National Prosecuting Authority ('NPA'), on the advice of the South African Police Service ('SAPS' or 'the Police'), not to institute an investigation into a docket submitted to the NPA in March 2008 by the Southern Africa Litigation Centre ('SALC'). The docket contained allegations of crimes against humanity committed in Zimbabwe in 2007. On the basis of the docket the SALC had requested the NPA to investigate and, if necessary, prosecute the perpetrators under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 ('the ICC Act').
Can an employee claim damages as a result of a breach of an implied contractual term that he will not be unfairly dismissed? South African Maritime Safety Authority v McKenzie : noteSource: South African Law Journal 130, pp 309 –317 (2013)More Less
Much has been written on the jurisdictional quagmire created by the judicial recognition of claims for unfair dismissal arising from the common law, as well as in terms of the Labour Relations Act 66 of 1995 (see, for example Tamara Cohen 'Implying fairness into the employment contract' (2009) 30 ILJ 2271; Tamara Cohen 'Compensation and forum shopping in South African labour law' (2005) 122 SALJ 614; Tamara Cohen 'Jurisdiction over employment disputes: Light at the end of the tunnel?' (2010) 22 SA Merc LJ 417; Craig Bosch 'The implied term of trust and confidence in the South African labour law' (2006) 27 ILJ 28; Darcy du Toit 'Oil on troubled waters? The slippery interface between the contract of employment and statutory labour law' (2008) 125 SALJ 95; F D J Brand 'The role of good faith, equity and fairness in the South African law of contract: The influence of the common law and the Constitution' (2009) 126 SALJ 71; Darcy du Toit 'A common-law hydra emerges from the forum shopping swamp' (2010) 31 ILJ 21).
The issue of shares is not 'expenditure' for the purposes of the Income Tax Act : Commissioner, South African Revenue Service v Labat Africa Ltd : noteAuthor Thabo LegwailaSource: South African Law Journal 130, pp 318 –329 (2013)More Less
Section 11 of the Income Tax Act 58 of 1962 ('the Act') provides for deductions in the determination of a taxpayer's taxable income. Section 11(gA), as it read during the 2000 tax year, provided for the amortisation of the cost of the acquisition of intellectual property rights at the rate of four per cent per annum. The salient provisions of the section provided (at the relevant period) that for the purpose of determining the taxable income derived by any person from carrying on any trade within the Republic, there shall be allowed as deductions from the income of such person so derived an allowance in respect of any expenditure actually incurred by the taxpayer in acquiring by assignment from any other person any trade mark, if such trade mark is used by the taxpayer in the production of his income, or income is derived by him therefrom.
Author Leo BoonzaierSource: South African Law Journal 130, pp 330 –368 (2013)More Less
In this article I investigate the problems which arise from the South African law of delict's attempt to hold the state vicariously liable. In part I, I explain the rules of vicarious liability. In part II, I explain the history of state liability in South African law, and its heavy reliance on the vicarious liability paradigm. In part III, I discuss the problems that this has created in cases decided in the last ten years, arguing that vicarious liability cannot coherently accommodate the state's unique duties or the multifaceted failures for which it is being sued. Both difficulties are addressed by holding the state directly liable, but doing so requires our law to address certain conceptual challenges, which I discuss in part IV. Finally, in part V, I discuss a recent Constitutional Court judgment which constitutes the most recent installment in this saga.
Author Elmarie Van der SchyffSource: South African Law Journal 130, pp 369 –389 (2013)More Less
The idea of a doctrine of public trust is a controversial one in South African law. Despite the fact that international commentators argue that a constitutional and statutory foundation has been laid for a doctrine of public trust to operate in South African law, very little has been written in South African literature on what the subject might entail. The reality is, however, that the philosophical notion that governments exercise a fiduciary trust on behalf of their people, and that 'certain interests are so particularly the gifts of nature's bounty that they ought to be reserved for the whole of the populace' has been incorporated in different pieces of environmental and natural resources-related legislation. This notion, as embodied in s 24 of the Constitution and subsequent statutes dealing with natural resources, establishes a stewardship ethic of public trusteeship and state custodianship in South African natural resources law. An analysis of the relevant natural resources legislation leads to the conclusion that the concept of public trusteeship has, in limited fields, been incorporated in South African law in unique stewardship doctrines of public trust. As this stewardship ethic has been created in different statutes, the consequences brought about by this statutory intervention depend exclusively on the symbioses between the provisions of each individual statute.
Source: South African Law Journal 130, pp 390 –406 (2013)More Less
University law clinicians must be distinguished from attorneys or advocates practising at other law clinics or legal aid centres. In defining the role of the university law clinician, a number of factors are considered. The view across a number of jurisdictions is that the main focus of a university law clinic should be the globally-recognised methodology of clinical legal education; that is, the teaching of students by the clinicians and not the provision of free legal services to clients. A university law clinician is unique in that he or she is both attorney and academic teacher and often appears to be marginalised by both the practice and academia. As an attorney, the clinician must subscribe to the rules of the Law Society and train candidate attorneys. As an academic, the clinician must adhere to the directions of academia, such as teaching, research and publication. The essence of the clinician cannot be captured by the terms 'clinical lawyer' and 'law teacher'. The university law clinic is regarded as a significant teaching tool by which educational value is imparted to students. The university law clinician is an attorney who facilitates the imparting of practical and ancillary skills to the students by way of an academic clinical methodology.
Foreign prosecutions, mutual co-operation between states, and the privilege against self-incriminationAuthor Constantine TheophilopoulosSource: South African Law Journal 130, pp 407 –429 (2013)More Less
The principal purpose of this article is to determine the extent to which a suspect, wanted for crimes in a foreign country, may make use of the common law, statutory or constitutional due-process procedures of the South African justice system in order to avoid a foreign prosecution. In particular, the article examines an individual's invocation of the privilege against self-incrimination on the ground that incriminating testimony in a domestic court will result in a reasonable risk of a criminal prosecution within a foreign jurisdiction. A secondary purpose is to show the extent to which a defendant before a domestic criminal proceeding may frustrate the prosecution's attempt to establish a prima facie case by refusing to answer questions on the ground that there is a real and appreciable risk of a foreign prosecution upon forcible repatriation to the country of origin. The invocation of the privilege by a defendant may present a formidable obstacle to South Africa's successful prosecution of organised international crime and other trans-national crime. This problem has only been superficially addressed by our courts, and a review of the law in various Anglo-American jurisdictions reveals a paucity of case precedent and statutory regulation. In order to address the uncertainty in South African law a solution is proposed which incorporates functional elements of a human rights and a utilitarian approach. A solution which allows the witness to invoke a privilege with an extraterritorial dimension in specific and limited circumstances, and one which has been adapted to fit South African constitutional jurisprudence.