South African Law Journal - Volume 130, Issue 3, 2013
Volume 130, Issue 3, 2013
Author Eric DescheemaekerSource: South African Law Journal 130, pp 435 –448 (2013)More Less
The judgment of the Supreme Court of Appeal of South Africa in Media 24 v SA Taxi Securitisation 2011 (5) SA 329 (SCA) raises questions of central significance, not simply for the law of defamation - and more generally the law of iniuriae, of which defamation will be regarded as a component part in a South African context - but for delict theory in general. These pertain to the nature of the loss sustained by the defamed (or insulted) party; the relationship between the original injury to reputation and any consequential - in this case, as often, financial - loss; and the ability of a juridical entity to sue on defamation or iniuria. Although not the only issues addressed by the case, these are the questions regarded by the present writer as of foundational importance for this province of the law. Both the majority judgment and the dissent deserve careful attention in this respect, because their disagreement goes to the heart of the purpose of the law of defamation. While focused on South African law, this note aims to be informed by comparative references to (mainly) English law and Roman law, the two pillars on which the modern law of South Africa was erected.
Author Morne OlivierSource: South African Law Journal 130, pp 448 –464 (2013)More Less
Carmel Rickard observed rather cynically yet accurately in 1999 that 'a funny thing happened on the way to judicial transformation: women dropped off the agenda' (Carmel Rickard 'Women are still not contenders' Sunday Times, 18 April 1999). Since that time, successive Chief Justices have emphasised the importance of a more diverse judiciary.
Observations on the impact of the 2008 Companies Act on the doctrine of constructive notice and the Turquand rule : notesAuthor Richard JoosteSource: South African Law Journal 130, pp 464 –475 (2013)More Less
Prior to 1 April 2011, the date on which the Companies Act 71 of 2008 ('the Act') came into force, authority to enter into a contract on behalf of a company was governed by generally applicable agency principles supplemented by the common-law doctrine of constructive notice and the common-law Turquand rule. This note seeks to highlight some of the problems brought about by the changes made to the law in this regard by the Act. The note is not an exhaustive treatise on the matter, but rather as an attempt to elicit thought and comment on important provisions of the Act. The note does not deal with the situation where authority to contract on behalf of the company is lacking because the contract is beyond the company's capacity. It is assumed, therefore, that the contract in question in this note is within the company's capacity. Before addressing some of the relevant provisions of the Act, a brief outline of the Turquand rule and the doctrine of constructive notice in our common law is necessary in order to understand the problems to which I have alluded.
Source: South African Law Journal 130, pp 476 –485 (2013)More Less
It has only recently become possible to conclude legally valid surrogate motherhood contracts in South Africa. The enabling legislation is chapter 19 of the Children's Act 38 of 2005 (hereafter 'the Act') which was implemented on 1 April 2010. The first two reported court interpretations of aspects of that chapter are Ex Parte Applications for the Confirmation of Three Surrogate Motherhood Agreements 2011 (6) SA 22 (GSJ) (hereafter 'Three Agreements') and Ex parte WH & others 2011 (6) SA 514 (GNP) (hereafter 'WH'). For reasons which will be explained below, in the former judgment discussion of chapter 19 was relatively brief. However, in WH the court sought to reduce confusion concerning application of the chapter by providing some detailed guidance. To assist it in achieving this objective, the court requested submissions by the Pretoria Bar, Law Society and Centre for Child Law (as amicus curiae) regarding the correct approach in surrogate motherhood confirmation applications.
Source: South African Law Journal 130, pp 485 –495 (2013)More Less
In 2011 the North and South Gauteng High Courts were approached to confirm surrogate motherhood agreements in accordance with the provisions of chapter 19 of the Children's Act 38 of 2005. The judgments were reported as In Re Confirmation of Three Surrogate Motherhood Agreements 2011 (6) SA22 (GSJ) and Ex parte WH 2011 (6) SA514 (GNP). This note concerns the latter judgment.
Author Maleka Femida CassimSource: South African Law Journal 130, pp 496 –526 (2013)More Less
The new statutory derivative action under the Companies Act 71 of 2008 is a paramount protective measure or weapon for minority shareholders, which will be very useful in good corporate governance and in policing boards of directors. The court is entrusted in terms of s 165 with a pivotal role as the gatekeeper, and has a crucial screening function in the exercise of its discretion to grant leave to a minority shareholder (or other applicant) to institute derivative litigation to seek redress for the company, when those in control of it improperly fail or refuse to do so. The approach that the courts adopt to the application of the three guiding criteria in s 165(5)(b) for the exercise of their discretion - particularly the open-textured criterion of 'good faith' - is a matter of supreme importance that will have a major impact on the effectiveness (or lack thereof) of the new statutory derivative action. The focus of this article is this particularly elusive criterion of good faith, and its many nuances, interpretations and applications in relevant foreign jurisdictions. A framework for good faith in South African law is proposed, and further fundamental facets of good faith are explored, with reference both to existing principles in our common law and valuable lessons gleaned from other comparable jurisdictions such as Canada, Australia, New Zealand and the United Kingdom.
Author Bradley S. SmithSource: South African Law Journal 130, pp 527 –553 (2013)More Less
This article considers the ambit of the suggestion made by Cameron JA in paragraph 35 of the landmark judgment in Land and Agricultural Bank of South Africa v Parker (subsequently elevated to a legal requirement by Circular 2 of 2005 issued by the Acting Chief Master then in office) to the effect that an 'independent trustee' should be appointed to certain trusts in order to ensure 'that an adequate separation of control from enjoyment is maintained ...''. In particular, the interpretation of what may be termed the 'independent trustee requirement' is considered. I conclude that a literal interpretation of paragraph 35 of Parker does not square with the rationale and 'legal logic' behind the imposition of this requirement. A broader interpretation is therefore required in order to achieve this. Building on this conclusion, I investigate the issue whether the requirement should be imposed on non-formalised life partnerships. In this regard I consider the current legal position as well as the position that will obtain if the draft Domestic Partnerships Bill, 2008 were to be enacted. The article concludes with suggestions as to how my findings may be implemented by the Master.
The Blue Moonlight remedy : formulating the voucher scheme into a new emergency housing remedy in South AfricaAuthor Gerald S. DickinsonSource: South African Law Journal 130, pp 554 –596 (2013)More Less
In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another the Constitutional Court unanimously affirmed the Supreme Court of Appeal's earlier decision in the matter and held the City of Johannesburg's Emergency Housing Programme to be unconstitutional. This finding of unconstitutionality rested on the failure of the state to assist persons facing homelessness as a result of an eviction at the instance of a private landowner. As a result, the court indicated that '[a] remedy must be formulated'. This article suggests that the unusual cash assistance and ratepayer remedy, as proposed by the High Court but set aside on appeal, is akin to the voucher scheme in the United States and is worthy of consideration as a remedy. The article considers whether the US voucher scheme could provide direction to policymakers as an addition to the existing project-based shelter scheme under the Emergency Housing Programme. The article also considers whether the introduction of the voucher scheme as an additional policy - the Blue Moonlight remedy - could alleviate the anticipated budgetary constraint on municipalities and better assist beneficiaries to graduate to permanent housing.
Author Max Du PlessisSource: South African Law Journal 130, pp 597 –620 (2013)More Less
Upon a conspectus of 'legality' challenges, it is clear that the level of scrutiny in rationality reviews varies, ranging from the very strict to the deferential, and oftentimes with a lack of guidance by the courts as to the standard's parameters and applicability. The authors argue that this lack of clarity is problematic under the rule of law. The article identifies potential explanations for the variable application of the rationality test. The authors also explore what factors and guidelines ought to form the basis of the Constitutional Court's legality jurisprudence, in order to respect adequately the separation of powers, and to achieve the rational justification which the Constitution demands. Ultimately, the article aims to show that the court's legality jurisprudence might be improved in a number of respects. It is respectfully contended that such clarifications will benefit both potential litigants, particularly those who are forced by the nature of their case to seek refuge in the principle of legality, and lower courts, that are left to give effect to the Constitutional Court's decisions, while still respecting the doctrine of separation of powers.
The legal nature of the trust for debenture-holders in South African law : an efficacy-based approachAuthor Natania LockeSource: South African Law Journal 130, pp 621 –641 (2013)More Less
This article considers the preferable legal nature of a trust for debenture-holders in South African law as measured against the benefits that transactions parties hope to gain from the arrangement. There are four possibilities, namely that the arrangement could take the form of an agency, a bewind trust, a trust in the strict sense or a trust for debenture stockholders. The trust in the strict sense is proposed as the most ideal of these constructions. The claims of the underlying debentures are transferred to the trustee and the security is granted directly in the trustee's favour. This will be possible also for real security rights, as the underlying claims and the security will vest in the same person. The trustee will be in a strong bargaining position and will be able to enforce the claims and the security without necessarily canvassing support from the debenture-holders first. This implies that the trustee will be able to act swiftly when the security is in jeopardy. The provisions of the Trust Property Control Act 57 of 1988 apply, as does its benefits. Accordingly, the trust property will be separated from the personal property of the trustee.
Private International Law. The Modern Roman-Dutch Law including the Jurisdiction of the High Courts, C.F. Forsyth : book reviewAuthor Jan L. NeelsSource: South African Law Journal 130, pp 642 –643 (2013)More Less
The highlight on any local private international law calendar is beyond doubt the publication of a new edition of Christopher Forsyth's standard textbook on the Roman-Dutch conflict of laws as applicable in South Africa and most of its neighbouring countries (Botswana, Lesotho, Namibia, Swaziland and Zimbabwe), as well as in Sri Lanka. Upon its initial appearance in 1981, this was the first comprehensive text on the subject to be published since Paulus Voet's De Statutis Eorumque Concursu Liber Singularis in 1661 (for a translation, see AB Edwards The Selective Paulus Voet (2007)).