South African Law Journal - Volume 132, Issue 3, 2015
Volume 132, Issue 3, 2015
Source: South African Law Journal 132, pp 483 –493 (2015)More Less
The judgment in the case of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi & others 2014 (1) SA 585 (SCA) upholds earlier decisions at the CCMA, the labour court and the labour appeal court. (Paragraph references that follow will be to this judgment, unless otherwise indicated.) This unanimity of decision is accompanied by striking differences regarding whether the first respondent was ill, in what ways a note from the respondent's traditional healer should be regarded as evidence, and in the nature of the respondent's justification for failing to present herself for work. Regrettably, the judgment at the SCA does too little to resolve the differences between earlier rulings. In addition, it at least suggests an approach to the status of sick notes from traditional healers that is unsuitable for broad application, and seems rather to be an ad hoc reaction to an unusual case.
Source: South African Law Journal 132, pp 494 –509 (2015)More Less
In recent years, there has been some 'toing and froing' between the Constitutional Court ('CC') and the Supreme Court of Appeal ('SCA') about the impact of the Constitution of the Republic of South Africa, 1996 on the common law of contract. Whereas both the CC and the SCA accept that the Constitution is horizontally applicable, there remains considerable uncertainty about the precise extent and manner of horizontal application of the Bill of Rights, particularly when it comes to the question of greater substantive fairness in contracts (Brisley v Drotsky 2002 (4) SA 1 (SCA) paras 22, 24 and 93; Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) para 32; Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA) paras 12 and 14-17; South African Forestry Co Ltd v York Timbers 2005 (3) SA 323 (SCA) para 30; Napier v Barkhuizen 2006 (4) SA 1 (SCA) para 7; Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) paras 27-8 and 50-4; Maphango v Aengus Lifestyle Properties (Pty) Ltd 2011 (5) SA 19 (SCA) paras 23-5; Barkhuizen v Napier 2007 (5) SA 323 (CC) paras 51-2, 56-8, 70-3, 104 and 124; and Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA256 (CC) para 71).
Author Harvey E. WainerSource: South African Law Journal 132, pp 509 –517 (2015)More Less
This note explores certain features of the Companies Act 71 of 2008 ('the Act'), which indicate that it is unacceptable for a company to continue to trade whilst factually insolvent, even though there is no express prohibition against the practice in the Act. It also deals with the importance placed on factual solvency and contrasts the position to the approach in Australian company law. Certain curious and unnecessary provisions in the Act are identified, and necessary amendments are suggested. Apparent different intended meanings for the words 'solvent' and 'insolvent' in the Act are beyond the scope of the discussion. (See for example s 4 of the Act, where the word 'solvency' is clearly a reference to factual solvency (assets exceeding liabilities), compared with the use of the word 'insolvent' in ss 13(7)(e)(i), 79(3) and 163(2)(b), which, in all of their respective contexts, seem to refer to commercial insolvency (inability to pay debts when due), compared with s 69(8)(b)(i), which uses the word 'insolvent' in the sense of a debtor whose estate is under sequestration as contemplated by the Insolvency Act 24 of 1936. See also Boschpoort Ondernemings (Pty) Ltd v Absa Bank Ltd 2014 (2) SA 518 (SCA), which dealt with the meaning of solvent and insolvent for the purposes of ss 79-81 of the Act, and Firstrand Bank Ltd v Wayrail Investments (Pty) Ltd  2 All SA 295 (KZD), which traversed the meaning of 'solvent' in item 9(2) of Schedule 5 to the Act and s 81 of the Act.) The winding-up and liquidation of companies under the Act is also beyond the ambit of this note, as is the meaning of 'solvent' and 'insolvent' for the purposes of the Insolvency Act 24 of 1936.
Source: South African Law Journal 132, pp 518 –546 (2015)More Less
In case law the lessor's tacit hypothec has been extended to cover movable property belonging to a third party. This extension of the hypothec is reasonably well established, but there is some uncertainty about the reasons or justifications for it. Two seemingly contradictory explanations for the extension have been raised in the literature, namely implied consent and estoppel. Upon closer scrutiny the former reason appears in fact to refer to (judicially) imputed rather than implied consent. Provided that the consent is judicially attributed to the third-party owner of the movables on the ground that she should have been aware of the whereabouts of her property and should have taken the necessary and reasonable steps to protect it against the landlord's hypothec (for example by informing the landlord of her right in the property), this seems to be an acceptable explanation for the extension of the hypothec. The same can be said for estoppel in cases where the requirements for estoppel are actually proved, particularly if fault (negligence) is required and if it is proven that the owner of the movables could have disabused the landlord of the false impression that the movables belonged to the tenant, but failed to do so. From a policy perspective, it can therefore be said that the extension of the hypothec to movables that belong to a third party is justified, provided that the reasons for the extension (either imputed consent or estoppel) are understood correctly, and the accompanying requirements are applied correctly and strictly. From a constitutional property perspective, the deprivation of property that extension of the hypothec brings about when a third party's property is affected by the landlord's right to attach and sell the movables would be constitutionally unassailable (not arbitrary in terms of s 25(1) of the Constitution) if there is sufficient reason for the deprivation. Provided the requirements are applied correctly and strictly, in line with the policy explanations (imputed consent or estoppel) that explain the extension satisfactorily, the deprivation of a third party's property that results from extension of the hypothec should generally speaking not be arbitrary, and thus should be constitutionally uncontroversial. This conclusion contradicts views to the contrary that have been expressed in the academic literature.
Author Karl MarxenSource: South African Law Journal 132, pp 547 –565 (2015)More Less
This article analyses the influence of the United Nations Convention on Contracts for the International Sale of Goods ('CISG') on domestic, regional and supra-national legislative activity. Despite not being drafted as a 'model law', the CISG has assumed an interesting new role in this regard. With its balanced, fair and clearly structured provisions, the CISG must be viewed not only as a final product of legal harmonisation within an international context, but also as a catalyst for further harmonisation and modernisation. Such harmonisation and modernisation can occur at regional, supra-national, and even domestic, level. In this article, evidence which supports this view is presented in relation to the German Schuldrechtsreform, a European Union directive relating to consumer goods, and the Uniform Act on General Commercial Law drafted by the Organization for the Harmonization of Business Law in Africa. Further, benefits and risks pursuant to the new role of the CISG are investigated, and political implications and concerns relating to legal harmonisation and globalisation - especially in the context of developing countries - are set out.
Protection for homes during mortgage enforcement : human-rights approaches in South African and English lawAuthor Reghard BritsSource: South African Law Journal 132, pp 566 –595 (2015)More Less
This article investigates the enforcement of mortgages in South Africa and England. It specifically focuses on the influence of human-rights housing principles in so far as they may require courts to conduct a proportionality enquiry whenever a legal process leads to the loss of a home. It appears that art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms - essentially the United Kingdomâ??s housing clause - is conceptually similar to s 26(1) of the South African Constitution. The underlying idea is that, when a home is violated, justification must be provided as regards the proportionate relationship between the purpose of the violation and the impact of the violation on the occupier. English law already accepts that this principle applies when local authorities seek to evict unlawful occupiers, but this approach has not yet been extended to mortgage repossessions. Conversely, South African law already acknowledges that the housing clause must be applied in mortgage cases. After investigating developments in both jurisdictions, the article concludes that a proportionality test is workable in mortgage cases. Furthermore, the traditional assumption that 'creditors must win', although still relatively strong, is in the process of being replaced by a more contextual approach.
Author Constantine TheophilopoulosSource: South African Law Journal 132, pp 596 –615 (2015)More Less
The techno-savvy cybercriminal's easy internet access to encryption software and anonymous cloud servers, and the legal protection offered to such individuals by the privilege against self-incrimination, make it difficult for a state agency tasked with combatting cybercrime to monitor, intercept, or compel the disclosure of electronic documents containing incriminating content. The principal Act in this field, the Electronic Communications and Transactions Act 25 of 2002, is flawed in that it makes no reference to the relationship between general disclosure orders (in the form of Anton Piller orders or search and seizure warrants), the privilege against self-incrimination, and the compulsion of electronic documents stored on a computer hard drive or in the cloud. The purpose of this article is to suggest a number of substantive and procedural remedies which may assist in expunging the lacuna in the Act.
Author Gustav MullerSource: South African Law Journal 132, pp 616 –638 (2015)More Less
In two recent judgments, the Constitutional Court failed to provide local authorities with guidance as to the precise nature of the relationship between police-power legislation to evict unlawful occupiers for health and safety reasons, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. I set out to provide such guidance by contextualising South Africa as a constitutional democracy with a supreme Constitution (the principle of a single system of law) that delineates a point of departure for establishing which source of law should regulate litigation about the alleged infringement of a right in the Bill of Rights (the subsidiarity principles). I then overlay the principle of a single system of law and the subsidiarity principles with characteristics of a property system that promotes s 39(2) of the Constitution. Taken together, these principles and the characteristics are used to evaluate the National Building Regulations and Building Standards Act, the Disaster Management Act, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act with a view to establishing which of them is the most appropriate source of law for evicting unlawful occupiers for health and safety reasons.
Mapping legislative and executive powers over 'municipal planning' : exploring the boundaries of local, provincial and national controlAuthor Victoria BronsteinSource: South African Law Journal 132, pp 639 –663 (2015)More Less
'Municipal planning' is a functional area that appears in Part B of Schedule 4 of the Constitution. Schedule 4 areas are areas of concurrent national and provincial legislative competence. Section 156(1)(a) of the Constitution provides that 'a municipality has executive authority in respect of, and has the right to administer the local government matters listed in Part B of Schedule 4'. Local government's right to exercise executive and administrative authority over municipal planning was recently enforced in the Supreme Court of Appeal and Constitutional Court decisions in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others. It is important to determine the distinction between legislative power over municipal planning on the one hand and executive/administrative power on the other. I argue in this article that town planning schemes, zoning schemes, and land use planning schemes are legislative in character. This is despite the fact that it has been authoritatively established that rezoning applications which result in amendments to spatial schemes are executive/administrative and hence the prerogative of local government. I refer to a line of authority which has had traction in some states in the United States in order to illustrate my arguments. Ultimately I argue that the Durban Metropolitan Open Space (D'Moss) amendments to the town planning schemes in Durban are legislative amendments. The article aims to examine these issues in order to add to the debate on the parameters of municipal powers in South Africa and their impact on the other spheres of government.
Author Jacques Du PlessisSource: South African Law Journal 132, pp 664 –688 (2015)More Less
South African law, in line with a number of prominent jurisdictions, recognises the general rule that when the legality of a contractual term is in dispute, the party who alleges illegality bears the burden of proof. Possible justifications for the general rule are explored and it is concluded that the rule is supported by established principles of the law of evidence, as well as by the pacta servanda sunt principle, which requires that freely concluded agreements should be enforced. It further is concluded that in disputes over the legality of restraint of trade clauses there appears to be no compelling reason why the law should deviate from the general rule by exceptionally placing the burden of proof on the party seeking enforcement. The mere fact that parties sometimes agree to these terms in situations of inequality does not suffice. However, those who advocate greater sensitivity for the position that contracting parties find themselves in when they supposedly exercise their contractual autonomy express a legitimate concern. A solution supported here is that South African law should address this problem directly by extending the existing categories of cases of improperly obtained consent to include cases of exploitation of certain specific situations of weakness. Such a development would reinforce, rather than subvert, the pacta servanda sunt principle.
African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives, Chuma Himonga, Thandabantu Nhlapo, I P Maithufi, Sindiso Mnisi Weeks, Lesala Mofokeng & Dial Ndima : book reviewAuthor Gordon R. WoodmanSource: South African Law Journal 132, pp 689 –693 (2015)More Less
There is a strong need for textbooks on the customary laws of African states. In all of them the law applied in state institutions includes parts of at least one (and usually many) bodies of customary law in addition to at least one body of received law. Customary laws are especially prominent in the fields of family law, land law and the law of traditional authorities. Law students who on graduation engage with state law in any way are likely to encounter cases in which a customary law is applicable. Naturally the subject is taught in law schools, and textbooks are needed to accompany lectures and seminars.
The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law, Charles Jalloh (Ed.) : book reviewAuthor Mia SwartSource: South African Law Journal 132, pp 694 –698 (2015)More Less
I first became aware of the Special Court for Sierra Leone ('SCSL') in 2002 when the newly appointed Chief Prosecutor of the SCSL, David Crane, spoke about the newly established court in The Hague. A Texan and former prosecutor, Crane made cowboy-like statements such as 'we're going to hunt down those war criminals'. I was concerned about the extent to which he seemed to be demonising and convicting the accused even before the trials had started. But I was intrigued by some of his statements. He emphasised that the SCSL would be considerably less expensive than its ad hoc UN-created predecessors, the International Criminal Tribunal for the former Yugoslavia ('ICTY') and the International Criminal Tribunal for Rwanda ('ICTR'). It was clear that the SCSL was going to be novel not just from the perspective of being constituted as a hybrid tribunal but also from the perspective of the way it would be run and funded. Having always been critical of the enormous cost of the ad hoc Tribunals, I was curious about how the SCSL would fulfil its mandate in such a streamlined manner. Twelve years later, at the point where the SCSL has essentially wrapped up its work, it is with great interest that I read the volume on the work of the SCSL edited by Charles Jalloh.
Source: South African Law Journal 132, pp 699 –702 (2015)More Less
John Grogan is all but a household name in labour law, and there is good reason for this. Over the years, he has been a prolific writer, consistently producing and updating textbooks covering the primary aspects of labour law. It will come as no surprise then that the eleventh and second editions of Workplace Law and Dismissal respectively have recently been released. Equally unsurprising is that both texts encompass the amendments to the Employment Equity Act 55 of 1998 ('EEA'), the Basic Conditions of Employment Act 75 of 1997 ('BCEA') and to some extent, the amendments to the Labour Relations Act 66 of 1995 ('LRA'). The books are significantly longer than their predecessors - a testament to the extent of the amendments, but also to Grogan's efforts in reflecting them all.
Labour Law Rules!, Marié McGregor, Adriette Dekker, Mpfariseni Budeli-Nemakonde, Wilhelmina Germishuys, Ernest Manamela, Tukishi Manamela & Clarence Tshoose : book noticeSource: South African Law Journal 132, pp 702 –705 (2015)More Less
Labour Law Rules! is now in its second edition, following its initial release in 2012, and for the most part, it incorporates the recent amendments to South African labour legislation. Those familiar with the book will know that it is an accessible introductory text on the basic principles of labour law. It is not (and does not purport to be) an advanced statement of the law. To that end, its target market is fairly broad, encompassing not only undergraduate students of labour law, but also practitioners, human resource and industrial relations consultants, trade union officials, bargaining council arbitrators, CCMA commissioners, line managers and the like.