Regulating against False Corporate Accounting: Does the Companies Act 71 of 2008 Have Sufficient Teeth?

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

Regulating against False Corporate Accounting: Does the Companies Act 71 of 2008 Have Sufficient Teeth?

Author: Etienne A Olivier

ISSN: 1996-2185
Affiliations: Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 1 – 24
https://doi.org/10.47348/SAMLJ/v33/i1a1

Abstract

This article questions whether the enforcement mechanisms in the Companies Act 71 of 2008 (the Act) are adequate deterrents to financial reporting misconduct and whether they provide suitable sanctions to punish wrongdoers. The South African regulatory approach to company directors and financial reporting compliance places great emphasis on stakeholder protection and board accountability. By criminalising the publication of false financial statements, providing civil remedies to prejudiced stakeholders and robust protection for whistleblowers, empowering regulatory agencies to investigate allegations of accounting fraud and penalise transgressors, and by creating a broad net of liability for corporate decision-makers who allow or cause the publication of false financial reporting, the Act takes a firm stance that accounting fraud must be discouraged. The Act’s enforcement mechanisms in respect of financial reporting are commendable, but detection and enforcement will likely remain challenging unless a concerted effort is made to educate the public about financial reporting misconduct and its dangers, sufficient funding is provided to the regulatory agencies, consistent use is made of the available criminal, civil, and administrative remedies, and Parliament reconsiders the appropriateness of the maximum penalties for accounting fraud.

COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes

Authors: Lonias Ndlovu & Clarence Itumeleng Tshoose

ISSN: 1996-2185
Affiliations: Associate Professor & Dean: School of Law, University of Venda; Professor of Labour & Social Security Law, School of Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 25 – 55
https://doi.org/10.47348/SAMLJ/v33/i1a2

Abstract

Public health emergencies such as the novel coronavirus (COVID-19), which was elevated to a global pandemic, usually have severe implications for people in various spheres of life. For example, people’s employment and social welfare are affected. In this paper, the authors explore the possible implications of COVID-19 on the rights of employers and employees in South Africa. The issues that need to be considered include leave when employees elect to stay at home as a precautionary measure against contracting the coronavirus at work, the enforcement of employment contracts, employment security, workplace discipline, working hours, absenteeism, and the employer’s duty to provide the employees with a safe working environment. Using a doctrinal legal research method, the article provides an analysis of the applicable laws and cases from South Africa and related jurisdictions. The comparative content, analysis of legislation, case law, and sector-specific guidelines show that COVID-19 has and will continue to have a significant impact on the employment laws as reflected in different jurisdictions. Although employment law is generally jurisdiction-specific, there are many commonalities in the laws of different countries, both on the African continent and globally. It is also important to note that the existing employment laws need to be adjusted in order to accommodate the effects of the pandemic. For example, South Africa can draw valuable lessons from other jurisdictions on how to deal with employment matters during a pandemic, and therefore COVID-19 presents the country with an opportunity to develop both its employment laws and the common law.

I ‘Notice’ You ‘Noticing’ Me: A Critical Analysis of the Section 129 Notice of the National Credit Act, and Recomendations for the Implementation of a ‘Specialised’ Foreclosure Notice

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

I ‘Notice’ You ‘Noticing’ Me: A Critical Analysis of the Section 129 Notice of the National Credit Act, and Recomendations for the Implementation of a ‘Specialised’ Foreclosure Notice

Author: Ciresh Singh

ISSN: 1996-2185
Affiliations: Attorney of the High Court
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 56 – 88
https://doi.org/10.47348/SAMLJ/v33/i1a3

Abstract

Section 129 of the National Credit Act provides that a creditor may not commence any legal proceedings to enforce a credit agreement before first issuing a section 129(1)(a) notice to the debtor. Thus, in a foreclosure context, should a mortgagee wish to enforce a mortgage agreement, he must first comply with section 129(1) and deliver a section 129 notice to the mortgagor. Should this not be done, any ensuing foreclosure proceedings could potentially be excipiable. Accordingly, section 129 has been described as the gateway to litigation and compliance with this section is paramount for debt enforcement. Unfortunately, section 129 has been the subject of much criticism and uncertainty due to its ambiguous wording and the resulting interpretation. Much of the uncertainty relates to the way in which the notice must be delivered and the contents of the notice. With specific regard to foreclosure proceedings, section 129 fails to alert the debtor about his rights and remedies and fails to notify the debtor of the full consequences of foreclosure. Consequently, the section has been amended several times. Unfortunately, the amendments have not resolved all the loopholes in section 129, and some of these amendments have created more uncertainty and ambiguity. Case law has, however, provided some direction as to the interpretation of section 129. Despite the amendments and case law developments, uncertainty still exists, and clarity is urgently required in relation to the interpretation and application of section 129 during foreclosure proceedings. It is accordingly suggested that certainty can only be achieved by implementing a specialised ‘foreclosure notice’.

In Joint Matrimony We Share: Controlling the Powers to Use the Trust to Limit Matrimonial Property Rights in South African Law

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

In Joint Matrimony We Share: Controlling the Powers to Use the Trust to Limit Matrimonial Property Rights in South African Law

Authors: Aubrey Manthwa & Paul Nkoane

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of South Africa; Lecturer, University of South Africa
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 89 – 111
https://doi.org/10.47348/SAMLJ/v33/i1a4

Abstract

The deceitful use of trusts has created a fair amount of controversy, specifically where it has appeared that a trust has been employed to limit the rights of third parties. This article argues that it is in the interests of the law to ensure that rights are vindicated when unlawfully limited. Similarly, it is in the interest of the common good that legitimately acquired rights are protected. Trust laws state that there must be a separation between control and enjoyment and, in cases where there is no separation, the courts may scrutinise the affairs of a trust. Recent developments have illustrated that measures that provide relief to spouses upon the dissolution of the marriage may not be readily invoked, especially for marriages in community of property. Family trusts have provided spouses with avenues for hiding assets that would otherwise fall into the joint estate. Courts need to adopt a robust approach when dealing with trust assets upon the dissolution of a marriage, particularly to protect the rights of competing spouses.

Contract as a Basis for Mediation Confidentiality

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

Contract as a Basis for Mediation Confidentiality

Author: Michael Laubscher

ISSN: 1996-2185
Affiliations: Lecturer, North-West University
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 112 – 136
https://doi.org/10.47348/SAMLJ/v33/i1a5

Abstract

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

by | Nov 29, 2021 | SAMLJ, SAMLJ V33 I1

Case Notes: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

Authors: Marius van Staden & Kathleen van der Linde

ISSN: 1996-2185
Affiliations: Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 137 – 152
https://doi.org/10.47348/SAMLJ/v33/i1a6

Abstract

None

Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

by | Sep 19, 2021 | SLR, SLR V32 I2

Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

Author: Tina Kotzé

ISSN: 1996-2193
Affiliations: BA (Law) LLB LLM LLD, Research fellow at the South African Research Chair in Property Law, Department of Public Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 185 – 214
https://doi.org/10.47348/SLR/2021/i2a1

Abstract

There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, nonarbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

by | Sep 19, 2021 | SLR, SLR V32 I2

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

Author: EJ Marais

ISSN: 1996-2193
Affiliations: BA LLB LLD, Senior Lecturer, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 215 – 233
https://doi.org/10.47348/SLR/2021/i2a2

Abstract

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

by | Sep 19, 2021 | SLR, SLR V32 I2

A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

Author: Brigitte Clark

ISSN: 1996-2193
Affiliations: BA LLB (Rhodes) (cum laude) LLM (Cantab), PhD (Rhodes), Senior Lecturer, School of Law, University of KwaZulu Natal; Senior Honorary Research Fellow, Oxford Brookes University, Oxford
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 234 – 252
https://doi.org/10.47348/SLR/2021/i2a3

Abstract

The understanding of gender identities has evolved in response to legislative, policy, political, cultural and social change, but despite these shifts, transgender issues remain under‐explored, and marginalised in South African law and society generally. Transgender is an umbrella term for a person whose gender identity, and gender expression, do not conform to that normatively associated with the gender they were assigned at birth, and for persons who are gender transgressive. Transgender parenting constitutes a direct challenge to “normal” notions of family as transgender parents challenge traditional assumptions about families. Although some jurisdictions have moved beyond gender categories to broader categories of gender‐inclusive parenting, there is no legislative provision in South African law for transgender parents who conceive after having legally transitioned but not having undertaken gender reassignment surgery. After an analysis of recent case law in England and advances in reproductive medical science in this area, this article focuses particularly on whether the registration of trans parents in their chosen legal gender (or as a genderneutral parent) conflicts with the best interests of their children in relation to the lived reality of their children’s lives, the rights of trans parents and children to privacy and family life, and the children’s rights to know their genetic origins. After considering whether the rights of trans parents should be limited in the interests of their children, the article argues that South African legislation and case law should advance beyond the gendered, heteronormative concept of the family currently in operation so as not to limit the rights of trans parents. An administratively coherent system of birth registration that is in the best interests of children could be realised by changing the legal nomenclature to reflect the biological role of the trans parent without the binary connotations of gender.

Transforming the Law on Psychiatric Lesions

by | Sep 19, 2021 | SLR, SLR V32 I2

Transforming the Law on Psychiatric Lesions

Author: Emile Zitzke

ISSN: 1996-2193
Affiliations: LLB LLD, Senior Lecturer, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 253 – 271
https://doi.org/10.47348/SLR/2021/i2a4

Abstract

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.