Annual Survey of South African Law - Volume 2008, Issue 1, 2008
Volume 2008, Issue 1, 2008
Source: Annual Survey of South African Law 2008, pp 1 –23 (2008)More Less
There can be little doubt that the major controversy affecting the administration of justice in 2008 was triggered by the conduct of Judge John Hlophe, Judge President of the Cape High Court. Hlophe JP was already no stranger to extensive media attention since at least 2004, due to the contested lawfulness of his receipt of a substantial sum of money in monthly payments from a financial institution (Oasis Asset Management) over the period 2000 to 2005, related disputes concerning his granting of permission to that company to sue a fellow judge, and his compilation of a report submitted directly to the Minister of Justice in which report he alleged racism in his colleagues and the legal profession.
Author Clive PlasketSource: Annual Survey of South African Law 2008, pp 24 –54 (2008)More Less
As one would expect, the year under review provided its fair share of cases on what falls within and outside the definition of 'administrative action' in section 1 of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA'). What makes 2008 stand out, however, is that the Constitutional Court has given judgments in a number of matters on this issue and a measure of dissent is apparent in some. The issue will continue to have significant consequences for the development of administrative law.
Author Hilton StanilandSource: Annual Survey of South African Law 2008, pp 55 –61 (2008)More Less
The Minister of Transport, by virtue of the power vested in him under section 11(a) of the South African Maritime and Aeronautical Search and Rescue Act 44 of 2002, designated the office of the South African Maritime Safety Authority (SAMSA), situated at Tygerberg Park, Plattekloof, Cape Town, as the Maritime Rescue Co-ordination Centre (GN 857 in GG 31322 of 15 August 2008). The designation was an essential step in empowering SAMSA to achieve one of its statutory objectives - 'to ensure safety of life and property at sea', as stipulated by section 3 of the South African Maritime Safety Authority Act 5 of 1998.
Source: Annual Survey of South African Law 2008, pp 62 –111 (2008)More Less
As discussed below under Freedom and Security of the Person, in Bid Industrial Holdings (Pty) Ltd v Strang & another (Minister of Justice and Constitutional Development, Third Party) 2008 (3) SA 355 (SCA), the Supreme Court of Appeal held that the common-law rule allowing the arrest of a defendant in order to found or confirm jurisdiction is unconstitutional. The appeal court exercised its broad power to develop the common law in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 to abolish the practice of jurisdictional arrest and to adopt what Howie P referred to as 'a legally acceptable substitute practice' (para ). This practice is that where attachment of property is not possible, a High Court has jurisdiction if the summons is served on the defendant while in South Africa and 'there is sufficient connection between the suit and the area of jurisdiction of the court concerned so that disposal of the case by that court is appropriate and convenient' (para ).
Author Estelle HurterSource: Annual Survey of South African Law 2008, pp 112 –143 (2008)More Less
Author S.M. LuizSource: Annual Survey of South African Law 2008, pp 144 –166 (2008)More Less
In early 2004, the Policy Paper entitled 'South African Company Law for the 21st Century Guidelines for Corporate Law Reform' was published by the Minister of Trade and Industry (Gen N 1183 GG 26493 of 23 June 2004). The idea was to embark on a major reform of the legislation regulating companies. The last time company law underwent a major revamp was in 1973 when the report of the Van Wyk De Vries Commission of Enquiry into the Companies Act of 1926 led to the introduction of the Companies Act 61 of 1973. Since then the social, political, and economic scene has altered radically in South Africa and the Minister of Trade and Industry recognized that it was necessary to review and modernize company law to take into account the changing business environment both domestically and globally.
Author Christian SchulzeSource: Annual Survey of South African Law 2008, pp 167 –173 (2008)More Less
In Bid Industrial Holdings (Pty) Ltd v Strang & another 2008 (3) SA 355 (SCA), the central issue of the appeal was whether the common-law rule that arrest was mandatory to found or confirm jurisdiction would pass the limitation of rights test set by section 36(1) of the Constitution of the Republic of South Africa, 1996.
Author Jason BrickhillSource: Annual Survey of South African Law 2008, pp 174 –230 (2008)More Less
S v Molimi 2008 (3) SA 608 (CC) concerned the admissibility of extra-curial statements of one accused against a co-accused in a criminal trial. The admissibility of admissions and confessions of a co-accused engages the rules governing hearsay evidence, now crystallized in section 3 of the Law of Evidence Amendment Act 45 of 1988, in addition to the provisions of the Criminal Procedure Act 51 of 1977 ('CPA'). The fair trial and evidence aspects of this case are discussed, respectively, in the chapters on Bill of Rights Jurisprudence and The Law of Evidence. I concern myself here only with the appointment of counsel for the accused and the role of amici curiae in criminal matters, which arose in the matter.
Author A.J. Van der WaltSource: Annual Survey of South African Law 2008, pp 231 –264 (2008)More Less
An Expropriation Bill was tabled during 2008 but later withdrawn, after heated (and sometimes exaggerated) public comment and debate, including threats to oppose the Bill through political action and, should it become law, through constitutional litigation. The reintroduction of the (possibly amended) Bill was mooted in the media towards the end of 2008, but at the time of writing this has not happened. The strongest criticism of the Bill was that it would make it possible for the state to expropriate land and determine the amount of compensation for expropriation of land arbitrarily and unilaterally, without the expropriated owner having proper recourse to the courts to dispute the amount. As the overview below suggests, this fear is possibly unfounded or overstated.
Author S.V. HoctorSource: Annual Survey of South African Law 2008, pp 265 –290 (2008)More Less
Securities Transfer Tax Administration Act 26 of 2007
This Act, which provides for the administration of a securities transfer tax and related matters, commenced on 1 July 2008 (s 22). Section 20 creates a number of offences relating to the failure to disclose information, documents, or certain material facts; the obstruction or hindrance of persons performing a function in terms of the Act; and the submission of a false certificate or statement.
Author W.G . SchulzeSource: Annual Survey of South African Law 2008, pp 359 –387 (2008)More Less
The Banks Amendment Act 20 of 2007 ('the Amendment Act'), the provisions of which came into operation on 1 January 2008, aims at tidying up a number of administrative and editorial matters in the Banks Act 94 of 1990 ('the main Act') that have became obsolete and / or incorrect over the years. Some of these amendments include to define or further define certain expressions in section 1 of the main Act; to update references to legislation and institutions; to delete outdated provisions; to provide for the roles and responsibilities of a consolidating and a host supervisor; to provide for the registration and deregistration of branches of banks; and to increase the powers of the Registrar and a duly appointed manager in respect of an inspection of the activities of unregistered persons.
Author Robert SharrockSource: Annual Survey of South African Law 2008, pp 388 –468 (2008)More Less
By virtue of section 15(2)(b) of the Matrimonial Property Act 88 of 1984, a spouse to a marriage in community of property cannot validly agree to mortgage immovable property forming part of the joint estate without the written consent of the other spouse. In Gounder v Top Spec Investments (Pty) Ltd 2008 (5) SA 151 (SCA), the husband of the appellant had purported to do just this. When negotiating a monetary loan from the respondent he had, without his wife's consent, agreed to the registration of a mortgage bond over their fixed property as security for repayment of the loan. No bond had actually been registered, but the appellant maintained that the failure to obtain consent to the mortgage agreement invalidated the entire transaction, including the loan agreement (which the respondent was seeking to enforce). The court held that the loan and mortgage agreements were separate and distinct and, accordingly, a declaration of invalidity in respect of one would not invalidate the other (para ).
Author Alastair SmithSource: Annual Survey of South African Law 2008, pp 469 –516 (2008)More Less
In Nedbank Ltd v Chance & others 2008 (4) SA 209 (D), after the bank had obtained a provisional liquidation order against Chance Bros in 1998, the parties' reorganization agreement to restructure the company's debt to the bank and remove the company from winding-up recorded that the company owed the bank more than R10 million and that the defendants stood surety for its obligations to the bank under suretyships executed in 1993. Of the company's debt, R3,5 million would be repaid by issuing the bank with 3,5 million cumulative redeemable preference shares, priced at one rand, with a cost of one cent and a premium of 99 cents a share. The rest of the company's debt was dealt with under a loan that the parties had entered into in 1996.
Author J.P. Van NiekerkSource: Annual Survey of South African Law 2008, pp 517 –620 (2008)More Less
The Financial Services Laws General Amendment Act 22 of 2008, published in GG 31471 of 30 September 2008, amends a wide range of financial services laws. Relevant for present purposes is its amendment of the Financial Services Board Act 97 of 1990 (ss 19-30 and 77(1)-(3) of the amending Act), the Financial Institutions (Protection of Funds) Act 28 of 2001 (ss 41-4 of the amending Act), and, consequentially, the Longterm Insurance Act 52 of 1998 ('LIA') and the Short-term Insurance Act 53 of 1998 ('SIA') (ss 31 and 32 of the amending Act,respectively).
Source: Annual Survey of South African Law 2008, pp 621 –638 (2008)More Less
The Intellectual Property Rights from Publicly Financed Research and Development Act 51 of 2008 aims (a) to provide for more effective utilization of intellectual property emanating from publicly financed research and development; (b) to establish the National Intellectual Property Management Office and the Intellectual Property Fund; and (c) to provide for the establishment of offices of technology transfer at institutions (the long title of the Act).
Author Marlize Van JaarsveldSource: Annual Survey of South African Law 2008, pp 639 –807 (2008)More Less
The EEA provides that a designated employer must have an employment equity plan in place before implementing affirmative action measures. An ad hoc decision of an employer in this regard is simply insufficient to justify an affirmative action appointment, regardless of the apparent worthy intentions involved. This principle is illustrated by the decision of the Supreme Court of Appeal in Gordon v Department of Health: KwaZulu-Natal (2008) 29 ILJ 2535 (SCA).