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- Volume 25, Issue 3, 2014
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 25, Issue 3, 2014
Volume 25, Issue 3, 2014
Author Geoff BudlenderSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 439 –450 (2014)More Less
It is a great honour to be invited to give this lecture. I follow a long line of very distinguished speakers, people of great wisdom and learning. I am very pleased to be able to acknowledge the presence of Mrs Beryl Botman. I did not know Professor Botman personally, but of course I knew of him by his reputation. The outpouring of tributes after his untimely death spoke volumes for the respect and affection in which he was held.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 451 –470 (2014)More Less
Wrongfulness - sometimes also referred to as unlawfulness - is one of the elements of delictual liability. The other elements are conduct, fault, causation and harm. Without the convergence of all these elements delictual liability will not ensue. The conduct element requires the presence of human intervention, either through positive conduct or by way of omission. The requirement of fault - in the form of either intent or negligence - deals with the blameworthiness of the defendant's conduct. Harm concerns the effect of the defendant's blameworthy conduct, while causation requires a causal link between the blameworthy conduct and the harm. In modern South African law, wrongfulness has become the most interesting of these elements. Under this rubric the law determines whether the defendant should be held legally liable for the harm suffered by the plaintiff that resulted from the defendant's blameworthy conduct. If the law determines that there will be no liability, the defendant is afforded immunity from the consequences of the wrongful conduct; the defendant is not liable despite the presence of all the other elements of delictual liability.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 471 –500 (2014)More Less
The purpose of this article is to determine whether the flexibility of the merger provisions in the Companies Act 71 of 2008 is accommodated by the corporate rules in the Income Tax Act 58 of 1962, ie the special rules in Chapter 2 Part III of the latter statute which provide tax rollover relief when transactions meet the requirements in these rules. The policy and conceptual differences between the corporate rules and the merger provisions give rise to fundamental conceptual issues, the analysis of which forms the core of this article.
Author Alistair PriceSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 501 –510 (2014)More Less
This note analyses the judgment of the Constitutional Court in Loureiro v Imvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC), which held a private security company liable concurrently in contract and delict after one of the guards in its employ mistakenly allowed armed robbers, masquerading as police officers, into the applicants' residence where they committed theft and assault. The case is a good example of a concursus actionum permitted by South African law and therefore provides an opportunity to reconsider the contract/delict interface, particularly in the context of delictual claims against companies who provide security services in terms of contracts. It is argued that the Constitutional Court's judgment should be welcomed but that two comments are nevertheless warranted. First, the Court's reasoning is consistent with a modern trend, when the question of wrongfulness is considered by our courts, to emphasise open-ended policy norms and to underemphasise argument by principled analogy from past or hypothetical cases where legal duties in delict have been or would be imposed or denied. Our courts should give greater weight to arguments from principled analogy in this context. Second, although the Court does not engage with the point explicitly, its decision is reconcilable with the sound principle of South African common law that novel legal duties in delict should not be imposed if they have no basis independent of the terms of a simultaneously-binding contract and would therefore effectively replicate a contractual duty but instead be owed to third persons not party to the relevant contract.
Author A.L. StanderSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 511 –535 (2014)More Less
One of the goals of environmental law is the immediate clean-up, remediation and restoration of environmental damage, the compensation of such damage and to attribute the obligation to pay for the costs of the clean-up to those responsible for the problem. Insolvency law, on the other hand, is designed inter alia for the benefit of the creditors of the insolvent, to protect them in this situation by maximising the proceeds of the insolvent estate, and the equal treatment of creditors in accordance with the prescribed order of priority. In addition, the law of insolvency is designed to give the debtor the opportunity to make a fresh start after the completion of the liquidation process by discharging all his debts that arose before sequestration. It is clear that the objectives of both insolvency law and environmental law may be in conflict in this regard. It is particularly the insolvency law principles of the automatic stay of pending civil proceedings, the equal treatment of creditors and the discharge of all debts that occurred prior to sequestration/liquidation, which must be investigated in the light of their effect on environmental obligations. Which regime will ultimately prevail in a situation where these two come up against one another? This article aims to find a golden mean by a "balancing" of the various policies, to ensure that a healthy balance is pursued between the public policy in environmental legislation and the relief offered by the insolvency law.
The statutory security right in section 118(3) of the Local Government: Municipal Systems Act 32 of 2000 - does it survive transfer of the land?
[Discussion of City of Tshwane Metropolitan Municipality v Mathabathe 2013 4 SA 319 (SCA)]Author Reghard BritsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 536 –548 (2014)More Less
The Supreme Court of Appeal's decision in City of Tshwane Metropolitan Municipality v Mathabathe 2013 4 SA 319 (SCA) may have some implications for the interpretation of section 118(3) of the Local Government: Municipal Systems Act 32 of 2000. This subsection provides that municipal debts constitute a "charge" upon the immovable property to which the debts relate. In other words, municipalities are afforded a type of statutory real security right that secures payment of the debt. A potential problem with the decision is that one could read it to mean that the municipality's security right is enforceable against successors in title, hence that it continues to exist even after the property has been transferred to a new owner. This prospect is controversial because it could have the effect that a later owner is held liable for the municipal debts incurred by a previous owner. Just as problematic, the municipality's charge would enjoy preference above the claims of mortgagees. This contribution discusses the case and briefly considers whether the supposed interpretation is sustainable. A suggestion is made regarding the way in which section 118(3) should be interpreted so that it makes practical sense, has fair consequences and is in line with section 25(1) of the Constitution of the Republic of South Africa, 1996. The conclusion is that the municipality's charge is not enforceable against successors in title, but that it must be enforced before or at transfer of the property.
Author Richard S. BradstreetSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 549 –565 (2014)More Less
The Companies Act 71 of 2008 provides in sections 128-155 (Chapter 6) for "business rescue and compromise with creditors", which deals primarily with the "business rescue" of companies. The compromise mechanism, contained in section 155, is distinct from the sections dealing with business rescue, which provide for a fairly comprehensive procedure for ultimately developing and implementing a plan to rescue the company from its financial distress under the supervision of a business rescue practitioner. Section 155, on the other hand, provides for the restructuring of the financial affairs of a company without the involvement of a business rescue practitioner, allowing a company to propose a compromise or arrangement to its creditors in a form that is almost identical to a business rescue plan.
Unlike business rescue, the idea of entering into a compromise or arrangement with creditors is not new to South African company law. The Companies Act 61 of 1973 provided for two mechanisms for this kind of informal restructuring - a "compromise" and an "arrangement" (referred to as a "scheme of arrangement" when used in conjunction). To properly understand the utility of the new section 155 compromise, one must consider the historical background to the concept of compromise in this context, and the way in which these two mechanisms were applied under the previous legislation.
This article will examine in some detail the nature of compromises and schemes of arrangement under the Companies Act 1973 and critically evaluate the new section 155 compromise as an alternative to the business rescue procedure in the Companies Act 2008. It is argued that although the new compromise shows promise, it is in need of some fine-tuning by legislative amendment in order for it to be a viable option for furthering the restructuring of the affairs of companies in financial distress in the context of Chapter 6.
Author Lindiwe MaqutuSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 566 –579 (2014)More Less
Businesses routinely suffer massive stock loss and in many cases employers are unable to identify those responsible for the misconduct. The application of "team misconduct" in our law facilitates a method of effecting group dismissal without having actual proof that each individual employee is in fact guilty of either misconduct or poor work performance. I argue that "team misconduct" is really a euphemism for "collective guilt". An entire staff contingent can now be held responsible for the misdeeds of one or more employees. Innocence may no longer be a bar to an employee being found guilty of misconduct and dismissed. "Team misconduct" intertwines liability for misconduct with liability for incapacity and the need for proof that an employee has actually failed to meet a set target is dispensed with. Even while there is no evidence of individual wrongdoing an employee must exculpate himself failing which a finding of guilt is made. This reversal of onus violates the presumption of innocence. In the absence of common purpose or evidence of contravention of the reciprocal duty of good faith, legal justification ascribing guilt on all employees merely because some in their midst may have committed the offence lacks merit. "Team misconduct" strips employees of their constitutionally guaranteed right to fair labour practices.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 580 –594 (2014)More Less
Drawing on earlier scholarly works that deal with the legally relevant interface between local government and the constitutional environmental duties of the state, this case comment ventures into an outline of the factual background and judgment in RA Le sueur v Ethekwini Municipality 2013 JDR 0178 (KZP) as far as it concerns the execution of original and assigned municipal powers regarding the conservation of natural resources and the protection of biodiversity. The authors further share their observations on what the facts and the judgment of this case may mean from the perspectives of the objectives of South African environmental law and the entire state's constitutional duty towards the environment.
Author Nomthandazo NtlamaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 595 –611 (2014)More Less
The efficacy of the institution of the Ombudsman has been a subject of debate since its establishment which is traced back to Sweden in 1809. These debates are related to the ability of the institution to maintain its independence in the quest for the promotion of good governance and accountability in the regulation of state authority. In this regard, this article provides a succinct overview of the theoretical framework of the principle of "independence" of the institution of the public-service Ombudsman, in facilitating the advancement of the principles of good governance in two Southern African countries: Namibia and South Africa. The purpose of selecting these two countries is not motivated by the fact that they both have established the institution of the Ombudsman per se - but rather because they share a similar history in the regulation of state authority. Namibia - formerly known as South West Africa - was under the authority of South Africa from 1915 until its independence in 1990. In turn, South Africa exercised such authority and attained its own independence in 1994. The objective of the article is to determine the various factors that may have the potential to compromise the principle of the "independence" of the institution. This is limited to examination of the principle of "independence" and not other procedural or substantive issues that may have to be addressed by the institution.
Reflections on the concurrence of the remedies in terms of the reformed Pound legislation and the actio de pastuSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 612 –627 (2014)More Less
A landowner who finds animals trespassing on his land has the following alternatives: he can chase the animals off the land; impound the animals; or institute the actio de pastu for monetary compensation for damage caused to his land. Administrative proceedings under the pound ordinances were cheaper and speedier than action proceedings under the actio de pastu. After impoundment, the poundkeeper could sell the animals, without giving notice to the owners, and compensate the landowner for damage from the proceeds of sale. The constitutional validity of certain of the above provisions incorporated in the Natal Pound Ordinance 32 of 1947 was successfully challenged in the High Court of KwaZulu-Natal and confirmed by the Constitutional Court in 2005 in Zondi v MEC for Traditional and Local Government Affairs 2005 3 SA 589 (CC). The consequences of Zondi were that the administrative proceedings sanctioned by the Natal Pound Ordinance were replaced by judicial proceedings after impoundment through their rules over the process of execution, denied by the Natal Ordinance; assessment of damages caused by stray stock can no longer be made by private persons but must be incorporated in the judicial process established for supervising the process of impoundment; and the landowner and the poundkeeper are henceforth required to exercise care to identify the stockowner and to notify him or her at all stages of the execution process of what is happening to his or her stock. As a result of Zondi the KwaZulu-Natal Pound Act 3 of 2006 replaced the Natal Pounds Ordinance of 1947 with new legislation which would satisfy the constitutional dictates of Zondi. It is concluded that although the KwaZulu-Natal Pound Act has placed constitutional burdens on the landowner, the fact that it allows motion proceedings to found a judgment debt, means that impoundment proceedings would still be speedier than the action procedure under the actio de pastu.
Author J.L. PretoriusSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 628 –631 (2014)More Less
Laurie Ackermann is deservedly recognised as one of the originators of South Africa's equality jurisprudence. His imprint is particularly visible in the conceptual and doctrinal groundwork in orienting that jurisprudence to the value of human dignity. It goes all the way back to Prinsloo v Van der Linde 1997 3 SA 101 (CC) ("Prinsloo"), where he (writing with Justices O'Regan and Sachs) held that unfair discrimination "means treating persons differently in a way which impairs their fundamental dignity as human beings". This framed the unfairness inquiry as a search for actual human dignity violations and emphasised potential dignity infringements as the effective marker for the identification of analogous grounds of discrimination (6).
A Man of Principle: The Life and Legacy of JC de Wet / 'n Man van Beginsel: Die Lewe en Nalatenskap van JC de Wet, J. du Plessis & G. Lubbe (Eds.) : book reviewAuthor L. HawthorneSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 631 –633 (2014)More Less
Just over a century after JC de Wet's birth this collection of essays was published with the purpose of giving insight into this illustrious South African lawyer, both as a person as well as to give a retrospective evaluation of his contribution to South African legal science.
At the outset it should be kept in mind that a hundred years ago, no universities had as yet been established. Once created these institutions operated not only with a limited number of students, but with limited resources, such as part time lecturers provided by both bar and side bar. Textbooks were written by judges in the English tradition; in other words both judges and textbooks followed the common-law model. Just before the outbreak of World War II, De Wet spent a sabbatical in Leiden and visited Berlin and this encounter with Germanic legal science determined the course of his scientific career.
Author Phillip HellwegeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 633 –638 (2014)More Less
Helen Scott's Unjust Enrichment in South African Law is a revised version of her Oxford doctoral thesis of 2005 which she wrote under the supervision of Andrew Burrows and Tony Honoré. In essence, Scott develops an analysis of the South African law of unjustified enrichment which departs from that which is followed traditionally by the South African literature. Her analysis is rather based on Peter Birks' unjust factors approach. She herself, however, looks upon her analysis as a mixed approach.
Author Stephen De la HarpeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 638 –640 (2014)More Less
Research on public procurement in Africa is not as prevalent as in the developed world. This presents a stumbling block for a proper understanding and improvement of public procurement regulation in Africa. In South Africa it is only in the last few years that public procurement has come to the fore as a separate field of study, notably so because of the work of professors Phoebe Bolton, (who did her doctoral thesis on government procurement in South Africa) and Geo Quinot (who did his doctoral thesis on the judicial regulation of state commercial activity) from the African Public Procurement Regulation Research Unit, Faculty of Law, University of Stellenbosch. They have since published widely, including textbooks, on public procurement.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 641 –643 (2014)More Less