Compulsory Debt Reorganisation in South African Mortgage Law: A ‘Sharing’ Remedy

by | Sep 8, 2019 | SALJ V135 I4 2018

Compulsory Debt Reorganisation in South African Mortgage Law: A ‘Sharing’ Remedy

Authors Reghard Brits

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 135 Number 4, p. 737 – 765

Abstract

Since the Jaftha judgment about 15 years ago, South African mortgage foreclosure law has undergone dramatic changes in the light of the protection afforded to mortgage debtors against the unjustified limitation of their constitutional housing rights. Previously the approach of mortgage enforcement law was to give effect to the proven rights of creditors without much question, but Jaftha changed the approach to one where creative alternatives should be pursued before the home is sold only as a last resort. This contribution focuses on one of the major alternatives to normal foreclosure, namely the debt rearrangement order that can be granted to an over-indebted consumer as part of the National Credit Act’s debt-review process. A particular aim is to link this compulsory debt reorganisation remedy with arguments made by Dyal-Chand with regard to so-called ‘sharing’ remedies based on an interest-outcome model. I therefore illustrate that debt rearrangement can be regarded as a ‘sharing’ remedy that does not solely focus on the parties’ formal title to the mortgaged property, but indeed pays more attention to their respective interests in, and uses of, the property. This perspective can arguably help to uphold debtors’ housing interests while also giving effect to creditors’ economic interests.

The Interpretation and Identification of International Law in South African Courts

by | Sep 8, 2019 | SALJ V135 I4 2018

The Interpretation and Identification of International Law in South African Courts

Authors Dire Tladi

ISSN: 1996-2177
Affiliations: Professor of International Law, University of Pretoria
Source: South African Law Journal, Volume 135 Number 4, p. 703 – 736

Abstract

South Africa has a constitution that has been described, correctly, as an ‘international law-friendly’ constitution. In the landmark decision in S v Makwanyane, the Constitutional Court went to great lengths to show the court’s openness to international law by, inter alia, declaring that the Constitution’s reference to international law included both binding and non-binding international law. Yet the use of, and openness to, international law by South African courts does not tell us about the approach to the identification and interpretation of international law. In other words, the Constitution’s openness to international law presupposes an ascertainment of the content of international law, either through identification or interpretation. But are South African courts able to use techniques, tools and methodology of international law to give content to it? The purpose of this article is to consider this question. It considers this question through an analysis of the decisions of South African courts relying on international law, particularly those of the Constitutional Court. It looks at both old and new cases to make a determination about the extent to which South African courts are faithful to the techniques, tools and methodologies to identify and interpret international law.

Implications of the ‘Direct, External Legal Effect’ of Administrative Action for its Purported Validity

by | Sep 7, 2019 | SALJ V135 I4 2018

Implications of the ‘Direct, External Legal Effect’ of Administrative Action for its Purported Validity

Authors Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Associate, the UFS Centre for Human Rights, University of the Free State
Source: South African Law Journal, Volume 135 Number 4, p. 678 – 707

Abstract

There have been differences of opinion for decades as to whether defective administrative action is void ab initio or ‘valid but voidable’. The latter proposition is rooted in the presumption of validity in terms of which defective administrative action is deemed to be valid until set aside. It is highly questionable whether the presumption, which dates back to 18th century absolutist times, is compatible with the constitutional norms embodied in ss 1(c), 8(1) and 33 of the Constitution of the Republic of South Africa, 1996. Little cognisance has also been taken of the implications of the criterion of a ‘direct, external legal effect’ in the statutory definition of ‘administrative action’, which has been taken over from German administrative law. It implies that an administrative act becomes effective (legally binding) once it has been communicated to the addressee; its validity, however, depends on compliance with the applicable law and constitutional norms. A comparative perspective from German law may offer a possible resolution of the dispute and put the distinction between void and voidable administrative action on a better footing.

A Decision to Undo

by | Sep 7, 2019 | SALJ V135 I4 2018

A Decision to Undo

Authors Leo Boonzaier

ISSN: 1996-2177
Affiliations: DPhil candidate, Faculty of Law, University of Oxford
Source: South African Law Journal, Volume 135 Number 4, p. 642 – 677

Abstract

In several recent judgments the Constitutional Court has dealt with the problem of state officials seeking the judicial review of their own prior decisions. Its judgment in State Information Technology Agency Soc Limited v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) raises the same issue. The court held, in particular, that the state applicant in these situations may not rely on the Promotion of Administrative Justice Act 3 of 2000, but must rely on the principle of legality. I argue that the court’s reasoning contains very serious errors and flouts its own jurisprudence. In addition, the court’s glib disposal of the review application reflects an objectionable approach to procedure, evidence, and remedy. All this is symptomatic of a worrying general decline in the quality of the Contitutional Court’s judgments.

Notes: The Application of and the Prospects for the Public Trust Doctrine in South Africa: A Brief Overview

by | Sep 7, 2019 | SALJ V135 I4 2018

Notes: The Application of and the Prospects for the Public Trust Doctrine in South Africa: A Brief Overview

Authors Adrew Blackmore

ISSN: 1996-2177
Affiliations: Manager Conservation Planning, Scientific Services, Ezemvelo KZN Wildlife; Research Fellow, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 135 Number 4, p. 631 – 641

Abstract

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