Regspraak: Oordrag van onroerende eiendom kragtens ’n egskeidingsbevel tóg ’n besmette vervreemding volgens die Insolvensiewet?

by | Jun 18, 2022 | TSAR, TSAR 2022 I3

Regspraak: Oordrag van onroerende eiendom kragtens ’n egskeidingsbevel tóg ’n besmette vervreemding volgens die Insolvensiewet?

Author: JC Sonnekus

ISSN: 1996-2207
Affiliations: Universiteit van Johannesburg
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 3, 2022, p. 591-601
https://doi.org/10.47348/TSAR/2022/i3a12

Abstract

The Insolvency Act defines a disposition for purposes of the act and states that a voidable disposition does not include a disposition in compliance with an order of court. Section 29 of the act defines a voidable preference for this section as a debtor’s disposition of his property made not more than six months before the sequestration of his estate. A sequestration is defined with reference to a sequestration order, which means any order of court whereby an estate is sequestrated and includes a provisional order. In the Mercantile case the marriage of the respondent and his erstwhile wife was dissolved by a divorce order of the divorce court in January 2020. Incorporated into the court order is the settlement of the parties’ respective claims regarding their matrimonial property regime. The parties had been married with a classic antenuptial contract that excluded any community of property, community of profit and loss or any accrual sharing. Notwithstanding the fact that the judgment indicates otherwise, section 7(3) of the Divorce Act could not have applied in the light of the settlement agreement. This section is applicable only in the absence of any agreement between the parties regarding the division of their assets. Only where section 7(3) applies is the court granted a wide discretion to order that such assets, or such part of the assets, of the other party as the court may deem just, must be transferred to the first-mentioned party. The final settlement of the erstwhile couple’s property regime was consequently not as a result of the court’s exercising its statutory discretion but the result of the agreement sanctioned by the court’s order. In accordance with the agreed settlement, the husband was compelled by the court order to transfer a house in Gallo Manor registered in his name as immovable property to the erstwhile wife. This property was unburdened by any registered limited real security right such as a mortgage bond. The transfer was completed in March 2020 when the property was transferred into the woman’s name in accordance with the requirements of the Deeds Registries Act 47 of 1937. Mercantile Bank attained a provisional sequestration order against the respondent in October 2021 and apparently, according to Maier-Frawley J’s judgment, indicated its intention to rely on section 29 of the Insolvency Act to claim the reversal of the transfer of the immovable property as an alleged voidable disposition of a valuable asset from the estate of the respondent as debtor to the detriment of the claimant and other creditors. It is submitted that the six-month limit forms an unsurpassable hurdle and bars the application of section 29 in this matter. In addition, any reliance on eg section 31 of the Insolvency Act that refers to collusive dealings before sequestration without an equivalent six-month time bar will be barred by the explicit definition of a disposition in the act that excludes a disposition in compliance with an order of court. It may be doubted whether it is justified to waste additional costs and the time of the high court in light of the foregoing in this matter. Where the legal position is crystalized the court is left without a contrary discretion.

Populist conceptions of the “people” and multi-party democracy

by | Jun 18, 2022 | SLR, SLR V33 I2

Populist conceptions of the “people” and multi-party democracy

Author: JL Pretorius

ISSN: 1996-2193
Affiliations: BComm BA(Hons) LLB LLD Extraordinary Professor, Free State Centre for Human Rights, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 3 – 24
https://doi.org/10.47348/SLR/2022/i2a1

Abstract

Although conceptual approaches to populism differ, there is a high degree of consensus that the ideological distinctiveness of populism lies in the unique way it constructs its core concept, the “people”. This article assesses the implications of populist understandings of the people for the constitutional endorsement of multi-party representative democracy. Regardless of its many manifestations, populism structures peoplehood around a distinct brand of ideologised popular sovereignty, in combination with another dominant host ideology, which, depending on the context, can be drawn from any of the main ideologies on the left‒right spectrum. This combination invariably produces an opposite “other”, an “anti-people”, as a necessary co-constituent of the populist people’s cohesion and identity. The homogenising and exclusionary construct of peoplehood associated with populism holds profound implications for multi-party representative government. It challenges the pluralist notion of multi-party representation by advocating for representation as the embodiment of a homogenous popular will instead. Representation as embodiment fosters extreme majoritarian attitudes and, as histories of populists-in-government have shown, tendencies towards authoritarianism. Populist conceptions of the people ultimately dispute core features of multi-party representative democracy, such as inclusive democratic citizenship, pluralist representation, oppositional political rights, the recognition of opposition parties as standing alternatives to incumbent governments, and accommodation and compromise as inclusionary democratic practice.

Deciding matters of general public importance: An analysis of the value-laden approach

by | Jun 18, 2022 | SLR, SLR V33 I2

Deciding matters of general public importance: An analysis of the value-laden approach

Author: Paul Nkoane

ISSN: 1996-2193
Affiliations: BComm LLB LLM Lecturer, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 25 – 45
https://doi.org/10.47348/SLR/2022/i2a2

Abstract

There is no doubt that the Constitution of the Republic of South Africa, 1996 is supreme. Thus, all laws and conduct should conform to it. However, the Constitution is constructed in such a manner that can lead to the questioning of its scope and therefore the extent of its supremacy. The provisions of the Constitution are crafted to focus on specific issues. This has led some to question its reach in matters that do not raise clear constitutional questions. This article is intended to provide a historical overview of the foundation of the Constitution and concomitantly to untangle its reach and scope. The analysis reveals that the scope of the Constitution extends far beyond the frontier of its provisions in the Bill of Rights. This then entails that matters of general public importance that do not raise clear constitutional questions could be decided through the application of constitutional standards.

Making and disputing jeopardy assessments: An administrative law perspective

by | Jun 18, 2022 | SLR, SLR V33 I2

Making and disputing jeopardy assessments: An administrative law perspective

Author: S De Lange

ISSN: 1996-2193
Affiliations:BAcc LLB MComm (Tax) Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 46 – 69
https://doi.org/10.47348/SLR/2022/i2a3

Abstract

The South African Revenue Service (“SARS”) is authorised by section 94(1) of the Tax Administration Act 28 of 2011 (“TAA”) to make a jeopardy assessment in advance of the date on which the return is normally due, if the Commissioner for the SARS is satisfied that it is required to secure the collection of tax that would otherwise be in jeopardy. As making a jeopardy assessment amounts to “administrative action” as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), it must meet the administrative justice requirements of lawfulness, reasonableness and procedural fairness as provided for in section 33 of the Constitution of the Republic of South Africa, 1996, read together with PAJA. This article analyses what is required of SARS when making a jeopardy assessment to meet these administrative justice requirements. However, should an aggrieved taxpayer not be satisfied with the making of a jeopardy assessment, the remedies which are available to the taxpayer to dispute a jeopardy assessment should be determined. Therefore, this article also sets out the various ways in which an aggrieved taxpayer can dispute a jeopardy assessment with reference to objection and appeal as provided for in the TAA, the special statutory review provided for in the TAA (which specifically allows that an application to review a jeopardy assessment may be made to the High Court on the grounds that its amount is excessive or circumstances that justify a jeopardy assessment do not exist), and the more general PAJA review process.

Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud – alternative suggestions

by | Jun 18, 2022 | SLR, SLR V33 I2

Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud – alternative suggestions

Author: MA (Riette) Du Plessis

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD Associate Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 70 – 90
https://doi.org/10.47348/SLR/2022/i2a4

Abstract

In this contribution, available avenues of consumer redress in terms of the Consumer Protection Act 68 of 2008 (“CPA”) are discussed. The majority of complaints heard by the courts and the National Consumer Tribunal (“NCT”) regarding defective goods entail second-hand cars. These include cases of suppliers’ contempt of findings by the Motor Industry Ombudsman of South Africa (“MIOSA”) in terms of section 70(3)(a), as well as instances where the MIOSA terminates the section 70(2) process and the consumer approaches the National Consumer Commission (“NCC”) in terms of section 71. Processes in the Consumer Protection Act 68 of 2008 are not clearly delineated, leading to unnecessary cross-referrals between different redress mechanisms, such as the MIOSA, the NCC and provincial protection authorities and consumer courts. The NCC’s approach, which is not supported by the CPA, is to avoid investigating individual consumer complaints. The NCC consistently refers matters back to either a different or the same alternative dispute resolution agent, in conflict with the caveat in section 72(1)(b). Many NCT decisions indicate that the NCC issues notices of non-referral without due justification, thereby compelling consumers to approach the NCT, if permitted, or consumer courts for relief. The interplay between the MIOSA, the NCC and provincial consumer courts is discussed, the effect of which frustrates the aim of effective and efficient redress and enforcement in terms of the CPA. An alternative route to ensure the enforcement of consumer rights and redress is suggested, in terms of which the NCC should focus on the outcome of the investigation and use section 73(1)(c)(iii) to refer matters to consumer courts in terms of section 73(2). The advantages of such referrals are indicated. It is shown that the successful outcome of consumers’ claims, where the supplier engages in prohibited conduct, depends on the appropriate application of the relevant sections of the CPA.