You cannot contract out of the National Credit Act in a supplementary agreement: A consideration of Absa Bank Ltd v Serfontein

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

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You cannot contract out of the National Credit Act in a supplementary agreement: A consideration of Absa Bank Ltd v Serfontein

Author: Ciresh Singh

ISSN: 1996-2177
Affiliations: Associate Professor, University of South Africa
Source: South African Law Journal, Volume 143 Issue 1, p. 50-67
https://doi.org/10.47348/SALJ/v143/i1a4

Abstract

The implementation of the National Credit Act 34 of 2005 has undoubtedly created greater consumer protection in South Africa. Unfortunately, the Act is not always clear, and undesirable drafting has resulted in inconsistent interpretation and application. One glaring lacuna in the Act is its failure to define the term ‘supplementary agreement’, leaving it uncertain what types of documents fall within the scope of a supplementary agreement, and whether the Act fully governs such agreements. Another flaw in the National Credit Act is that it is not clear whether contracting parties to a credit agreement can agree to contract out of — ie exclude the applicability of — the provisions of the National Credit Act in a supplementary agreement. This flaw has potentially created room for unscrupulous credit providers to evade the applicability of certain provisions of the Act, or the entire Act, by entering into a supplementary agreement with a consumer. The recent case of Absa Bank Ltd v Serfontein 2025 (3) SA 345 (SCA) addressed some of these issues and highlighted the need to remedy these gaps.

Enforcing living wills in South Africa

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Enforcing living wills in South Africa

Authors: Elsje Bonthuys & Anton van Dalsen

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand, Johannesburg; BA (Pretoria) LLB (Stellenbosch)
Source: South African Law Journal, Volume 143 Issue 1, p. 68-92
https://doi.org/10.47348/SALJ/v143/i1a5

Abstract

This article examines some theoretical and practical issues concerning the implementation of living wills, also known as advance directives, on the assumption that legislation on the general issue of physician-assisted dying in South Africa is unlikely to be enacted soon. Pending the adoption of legislation, living wills provide an avenue for people to exercise meaningful choices about medical treatment near the end of life. Yet, medical practitioners and even courts often overlook the existence of living wills, despite the requirement of informed consent for any medical treatment. Four main factors impede the enforcement of these documents: first, the argument that the appointment of a person as a proxy decision-maker lapses when the maker of the living will becomes incompetent to express their views; secondly, ambiguity and contradictions in the law relating to assisted dying which are exacerbated by the medical professional guidelines; thirdly, the focus on criminal liability in the case law impedes the full development of the jurisprudence on this topic; and, fourthly, the practical difficulties in making the existence of living wills known to medical personnel at the time when they should be implemented. The article concludes by suggesting some ways to overcome these difficulties.

The enforceability of and contractual remedies for breach of extended notice periods in employment

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

The enforceability of and contractual remedies for breach of extended notice periods in employment

Author: Judith Geldenhuys

ISSN: 1996-2177
Affiliations: Senior Research Associate, University of Johannesburg
Source: South African Law Journal, Volume 143 Issue 1, p. 93-118
https://doi.org/10.47348/SALJ/v143/i1a6

Abstract

This article examines two key remedies available to employers — specific performance and damages — when employees breach agreed notice requirements. While the common-law position on termination by notice is largely settled, enforcing extended notice clauses remains a legally complex matter. Drawing on recent case law, the article explores the evidentiary and doctrinal thresholds for relief and traces a shift in judicial reasoning towards fact-sensitive adjudication. This evolution signals a deeper commitment to balancing enforceability, fairness and the realities of the modern workplace.

Requisitioned shareholder meetings in terms of section 61(3) of the Companies Act

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

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Requisitioned shareholder meetings in terms of section 61(3) of the Companies Act

Author: Vela Madlela

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 143 Issue 1, p. 119-154
https://doi.org/10.47348/SALJ/v143/i1a7

Abstract

This article examines some pertinent interpretational issues concerning the statutory framework relating to requisitioned shareholder meetings in terms of s 61(3) of the Companies Act 71 of 2008. The purpose is to assess the efficacy of this statutory framework, including its interpretation by the courts, in promoting shareholder governance while balancing the rights and obligations of company shareholders and directors. The article also assesses whether s 61(3) and its related provisions on requisitioned shareholder meetings are aligned with the trends in other modern corporate-law jurisdictions, particularly the United Kingdom, Australia and Canada. The article finds that while s 61(3) provides for an uncomplicated procedure that seeks to facilitate, rather than deter, requisitioned shareholder meetings, a fundamental weakness of the Companies Act in this regard is that it does not directly regulate the time frames within which a requisitioned shareholder meeting must be convened. Furthermore, the Act does not grant requisitionists the right to call and hold a requisitioned shareholder meeting if the directors have failed to do so. Moreover, the Act tends to be lenient on directors who ignore, unduly refuse or delay the calling of a requisitioned shareholder meeting. The article makes recommendations for legislative reform in South Africa to strengthen shareholders’ rights and directors’ accountability in the context of requisitioned shareholder meetings. It also provides recommendations on how the courts should interpret certain provisions of the Companies Act to advance the underlying objectives of requisitioned shareholder meetings, thereby enhancing corporate governance standards in South Africa.

Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

ARTICLE

Public interest standing under section 157(1)(d) of the Companies Act: A sharp arrow in the quiver of public interest guardians

Author: Tebello Thabane

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 1, p. 155-183
https://doi.org/10.47348/SALJ/v143/i1a8

Abstract

This article examines the evolution of the notion of public interest in South African law, from the historical requirement for litigants to demonstrate a direct interest in the relief to its current endorsement by the Constitution of the Republic of South Africa, 1996. Traditionally, South African courts rejected the doctrine of the actio popularis, concerned that allowing open-access standing would open the floodgates of litigation and overwhelm the judicial system. However, the Constitution marked a paradigm shift, permitting any individual ‘acting in the public interest’ — an ‘ideological plaintiff’ — to protect constitutional rights through public interest actions. This constitutional pivot was further reflected in s 157(1)(d) of the Companies Act 71 of 2008, which introduced public interest standing into South African company law. Despite this significant shift, the application of public interest standing in company law remains largely unexplored until recent judicial developments. Notable cases, such as Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs, Organisation Undoing Tax Abuse NPC v Myeni (Special Plea Judgment) and Vantage Mezzanine Fund II Partnership v Hopeson have shed light on the potential and limitations of this mechanism in company law. This article critically examines these developments, clarifying the contours of public interest standing, evaluating its effectiveness, and speculating on its future trajectory, informed by insights from pioneering cases.