ISSN: 1996-2118
Affiliations: University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 35 Issue 2, p. 246 – 267
https://doi.org/10.47348/SACJ/v35/i2a7
None
ISSN: 1996-2118
Affiliations: University of Limpopo
Source: South African Journal of Criminal Justice, Volume 35 Issue 2, p. 268 – 283
https://doi.org/10.47348/SACJ/v35/i2a8
None
ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD (UCT), Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 548 – 559
https://doi.org/10.47348/SLR/2022/i3a10
The case of M v M (10751/2000) [2020] ZAGPPHC 155 (20 March 2020) (“M v M”) is novel in its finding that the abandonment of immovable property is possible in South African law. It is also novel in finding that the requisite intention to abandon a co-ownership share in immovable property could be inferred from the facts of the case. Past case law concerning the abandonment of immovable property always failed to make a finding of abandonment as the requisite intention could never be established. This approach was consistent with our courts’ unwillingness to infer an intention to abandon valuable property in the absence of clear intention to do so. This case note seeks to critique the decision of the court in M v M in light of a legal framework in which the abandonment of landownership does not appear possible given the principle of publicity. It further seeks to ask if there were other avenues available to the court to reach what was an undeniably just outcome on the set of facts before the court.
ISSN: 1996-2193
Affiliations: LLB (cum laude) LLM PhD, Senior Lecturer, Department of Public Law, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 560 – 578
https://doi.org/10.47348/SLR/2022/i3a11
The administration of anti-dumping investigations is the sole mandate of the International Trade Administration Commission (“ITAC”). This investigation has two stages, the preliminary and final investigation stages, which are accompanied by investigation reports at each stage. The investigation can be terminated or suspended after the preliminary investigation if the offending exporter ceases exports to the Southern African Customs Union (“SACU”) at the dumped prices or revises its prices such that ITAC is satisfied that injurious dumping has been eliminated. Twelve months after the publication of the final determination in the original investigation or the previous review, interested parties can request an interim review of the duty if there are significantly changed circumstances. It is these two aspects of dumping investigations that were the subject of litigation for the first time in South African law in Casar Drahtseilwerk Saar GMBH v International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020). This note assesses the novel approach employed by the court in readily construing these aspects of the anti-dumping investigation in South Africa in accordance with the jurisprudence on the Anti-Dumping Agreement. This approach is commendable in light of the ambivalent attitude of South African courts towards the country’s obligations in terms of the multilateral agreements of the World Trade Organization, despite the promulgation of local legislation to comply with these obligations and the constitutional injunction to prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.
ISSN: 1996-2193
Affiliations: BComm LLB LLM (Stell), LLD Candidate, Department of Public Law, Faculty of Law, Stellenbosch University; BComm LLB LLM LLD (Stell), Associate Professor, Department of Public Law, Faculty of Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 579 – 591
https://doi.org/10.47348/SLR/2022/i3a12
Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 provides everyone with the right to a basic education. However, the exact meaning of a “basic education” as protected in this section has been rather uncertain as it is not defined in the Constitution or any legislative document. In Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC), the Constitutional Court accepted that basic education includes, at a minimum, schooling from grades 1 to 9. In AB v Pridwin Preparatory School 2020 5 SA 327 (CC), Nicholls JA held that an educational institution which does not offer secondary or tertiary education, provides those attending the institution with a basic education. Several policy documents refer to basic education as the General Education and Training phase of schooling, which consists of schooling from grades 1 to 9. Given the uncertainty surrounding the exact ambit of a basic education, both in case law and legislation, the Constitutional Court in Moko v Acting Principal of Malusi Secondary School 2021 3 SA 323 (CC) had to answer the question “where does basic education end and further education begin?” The court’s decision provides clarity on the meaning of a basic education as protected in section 29(1)(a). This decision is to be welcomed given the importance of the right as a direct and unqualified right, and for its transformative potential. However, there is now a misalignment between the understanding of a basic education protected in section 29(1)(a) and several policy documents issued by the Department of Basic Education. This misalignment may lead to further confusion regarding the meaning of the right to a basic education and potentially negatively impact the realisation or fulfilment of the right. This note will consider the court’s decision, particularly in relation to its finding to the question posed above.
ISSN: 1996-2185
Affiliations: Research Fellow, Centre for Human Rights, University of the Free State, South Africa; Professor of Labour Law, School of Law, College of Law, UNISA
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 1 – 28
https://doi.org/10.47348/SAMLJ/v34/i1a1
The ‘deemed dismissal’ or ‘discharge’ clause is not mentioned either in the reinstatement provisions of section 193 of the Labour Relations Act 66 of 1995 (‘LRA’), or indeed, in any other provision of that Act. Such an expression can be traced to several public sector employment statutes such as: section 14(1)(a) of the Employment of Educators Act 76 of 1998; section 59(3) of the Defence Act 42 of 2002; and section 17(3)(a)(i) and (b) of the Public Service Act 103 of 1994 (‘PSA’). Notwithstanding that the substance and process of the ‘deemed dismissal’ disputes are quite different from those encountered in the law of unfair dismissal under the LRA, the determination whether reinstatement would be made in such a circumstance has been guided by the provisions of section 193(2)(a)–(d) of the LRA. After discussing the important South African cases of Phenithi v Minister of Education 2008 (1) SA 420 (SCA); Minister of Defence and Military Veterans v Mamasedi 2018 (2) SA 305 (SCA); and Ramonetha v Department of Roads and Transport, Limpopo [2018] 1 BLLR 16 (LAC), and those from the Botswana and Namibian jurisdictions, it becomes obvious that the Ramonetha case was quite different from the others. The conclusion, therefore, is that the judgment of the Labour Appeal Court sends a clear message to the employer that the statutory discretion invested in it by the PSA requires it to act within a space of time; the PSA does not give the employer the unbridled power to literally approbate and reprobate at the same time.
ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Private Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 29 – 51
https://doi.org/10.47348/SAMLJ/v34/i1a2
In Beadica 231 CC v Trustees, Oregon Trust, the Constitutional Court provided much-needed clarity on the role of equity principles (fairness, reasonableness and good faith) in contracts, in that the abstract principles found in equity principles will not apply directly to contractual engagements but will apply indirectly by means of public policy considerations. This article illustrates that this default position, as articulated by the Constitutional Court, does not completely exclude good faith in contractual engagements. In fact, good faith is infused in the entire contract lifecycle, starting from negotiation and presenting itself even in certain remedial action. In addition, there are a number of exceptions to the default position in that equity principles can be established by means of express incidentalia (in the form of good faith clauses), and could even be imported ex lege in consumer contracts by means of the Consumer Protection Act 68 of 2008. It can therefore be said that the operation of equity principles, such as good faith, in South African contractual engagements is neither dead nor obsolete. Rather, good faith has survived the Constitutional Court’s decision and continues to manifest itself in different ways in contracts reaffirming the place of good faith as a cornerstone principle in the operation of the law of contract.
ISSN: 1996-2185
Affiliations: Senior Lecturer, Nelson R. Mandela School of Law, University of Fort Hare
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 52 – 87
https://doi.org/10.47348/SAMLJ/v34/i1a3
Since the Companies Act 2008 came into being, there has been no clear direction regarding the interpretation to be given to the provisions regulating buy-back transactions. Recently, the provisions finally received some concrete attention in the judgment of Windell J in First National Nominees (Pty) Limited v Capital Appreciation Limited (Capprec). The judgment is important because it has since provided a measure of clarity on the potent interdependence between sections 48 and 114 of the 2008 Act, and how these must be interpreted. What is of interest is how Windell J set out and interpreted the operation and interdependence between section 48(2)(a), section 48(8)(b) and section 114 of the 2008 Act. Overall, the arguments from both parties in Capprec presented Windell J with a solid foundation that enabled the court to proffer a succinct and illuminating direction on the interpretation and operation of the provisions. This article attempts to extricate whether the course Windell J adopted in her judgment is consistent with what the 2008 Act contemplates, and if not, what would have been the appropriate course to take. The article demonstrates that Windell J did not seize the opportunity to thoroughly engage with section 114(1)(e) regulating buy-back schemes of arrangement and to ascertain what a scheme entails. This is despite the fact that in Capprec both parties’ arguments were underpinned by whether or not the proposed arrangement was a scheme. In this regard, Windell J’s approach is disappointing and is criticised because her interpretation means that the provisions of the 2008 Act have still not been clarified, although we have been waiting for 13 years for clarification. This is an unnecessary oversight by the judge.
ISSN: 1996-2185
Affiliations: Professor, Department of Taxation and the African Tax Institute in the Faculty of Economic and Management Sciences, University of Pretoria
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 88 – 117
https://doi.org/10.47348/SAMLJ/v34/i1a4
This article analyses the implications of the income tax provisions introduced to address the potential tax avoidance that could arise from the lifting of the exchange control restrictions on ‘loop structures’ which were effected from 1 January 2021. Most South Africans and foreign investors do not quite understand the operation and implications of exchange controls due to the complexity of these regulations, and the perception that it is difficult to move money in and out of South Africa. Since the removal of exchange control restrictions on loop structures does not apply to existing unauthorised loop structures, this paper also provides a broader understanding of the operation of exchange controls regarding loop structures. The article first explains the administration of exchange controls and how the restrictions of exchange controls on loop structures have been relaxed over the years, and then it explains the 2021 removal of the restriction on loop structures as well as the amendments to the Income Tax Act to curtail tax avoidance risks.
ISSN: 1996-2185
Affiliations: University of the Western Cape
Source: South African Mercantile Law Journal, Volume 34 Issue 1, 2021, p. 118 – 134
https://doi.org/10.47348/SAMLJ/v34/i1a5
The history of central banking began with payment services. Ever since then, payment-related innovation has always been an integral part of central banking (BIS Committee on Payments and Market Infrastructures and Markets Committee Report, ‘Central Bank Digital Currencies’ (2018) iii). Payments have evolved extensively over the years with the emergence of various technologies, from the development of real-time gross settlement (‘RTGS’) systems, to electronic money and mobile money, to name a few. The arrival of financial technologies or ‘fintech’ has led to cryptocurrencies and now central bank digital currency (‘CBDC’) (on cryptocurrencies, see Reddy & Lawack, ‘An overview of the regulatory developments in South Africa regarding the use of cryptocurrencies’ (2019) 31 SA Merc LJ 1–28; see also Deloitte, ‘Are Central Bank Digital Currencies (CBDCs) the money of tomorrow?’, available at https://www2.deloitte.com/ie/en/pages/financial-services/ articles/central-bank-digital-currencies-money-tomorrow.html, accessed on 3 May 2021). A CBDC represents another potential innovation in the area of an evolving branch of the law called ‘fintech law’. This exploratory analysis provides an overview of the meaning of CBDC and the legal nature of money and CBDC. In addition, it provides a broad overview of some legal implications, policy considerations and regulatory issues. Challenges and risks are also highlighted.