ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 4, 2024, p. 80
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 4, 2024, p. 80
None
ISSN: 1996-2177
Affiliations: Arbitrator and Consultant, Johannesburg
Source: South African Law Journal, Volume 142 Issue 1, p. 1-13
https://doi.org/10.47348/SALJ/v142/i1a1
The principle that, in pledge, the debtor has the right to redeem the pledged property by paying the debt, even after default and up to the moment that the property passes into the ownership of another upon realization, was affirmed in 1919 by the Appellate Division in Mapenduka v Ashington. However, in 2003, some doubt emerged as to whether the principle applies in the context of the conditional sale, which has long been regarded as a valid alternative to the invalid pactum commissorium. This doubt arose due to interpretations of a somewhat cryptic obiter dictum in Graf v Buechel to the effect that Mapenduka should not be seen as authority for the proposition that the debtor should still be willing to proceed with the sale after default. This note examines these dicta in their correct doctrinal context and proposes an interpretation of the Graf dictum that reconciles the apparent conflict between the two.
ISSN: 1996-2177
Affiliations: N/A
Source: South African Law Journal, Volume 142 Issue 1, p. 14-27
https://doi.org/10.47348/SALJ/v142/i1a2
In South African law, a borrower’s obligation to repay a loan for consumption, which is typically a loan of money, can be secured using a myriad of common-law and statutory security rights created in favour of the lender. If, applying the pledge theory of cession in securitatem debiti, the security right takes the form of a pledge and cession in securitatem debiti of a personal right, the borrower or other security provider retains its dominium in the right. At the same time, the lender temporarily acquires and holds, for as long as the loan remains unpaid, a limited security interest therein. The lender’s right to repayment of its loan is thereby secured in that the lender can exercise its security rights if the borrower defaults on its loan repayment obligation. Complex issues regarding certain security rights available to lenders are analysed, including their purpose, function, classification, nature and operation. It is recommended that the UNCITRAL Model Law on Secured Transactions could be drawn on to streamline South Africa’s current piecemeal approach to security rights.
ISSN: 1996-2177
Affiliations: Doctoral Research Assistant, DST/NRF South African Research Chair: Mineral Law in Africa, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 1, p. 28-37
https://doi.org/10.47348/SALJ/v142/i1a3
This note analyses the Supreme Court of Appeal judgment in Vantage Goldfields SA (Pty) Ltd & another v Arqomanzi (Pty) Ltd & others 2023 (3) All SA 667 (SCA) (‘Goldfields’). It does so with a particular focus on indirectly transferring a controlling interest under s 11 of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘the MPRDA’). After putting s 11 of the MPRDA into context, the note considers previous pronouncements on the transfer of a controlling interest, such as that in the case of Mogale Alloys (Pty) Ltd v Nuco Chrome Bophuthatswana (Pty) Ltd 2011 (6) SA 96 (GSJ). This is followed by a discussion of the facts and law in Goldfields and an analytical commentary on the judgment. The note concludes that the Goldfields judgment is a welcome development that deserves praise for its pronouncements on the transfer of a controlling interest under s 11 of the MPRDA.
ISSN: 1996-2177
Affiliations: Professor of Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 1, p. 38-50
https://doi.org/10.47348/SALJ/v142/i1a4
Chapter IV of the Labour Relations Act 66 of 1995 gives effect to the right to strike and provides for protected and unprotected strikes. In terms of s 68(1)(b), the Labour Court has exclusive jurisdiction to order the payment of just and equitable compensation for loss attributable to a strike or conduct that does not comply with chap IV. This note analyses the Labour Appeal Court’s findings in SACCAWU v Massmart Holding Ltd (2024) 45 ILJ 1610 (LAC), in which the union raised an exception that the Labour Court did not have jurisdiction to order the payment of a just and equitable compensation for loss attributable to a protected strike or conduct. The Labour Appeal Court also found that the Labour Court has exclusive jurisdiction in this regard. The note asserts that the judgment has far-reaching implications, as it affirms that the Labour Court is a specialist court that deals with labour disputes.
ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand & Claude Leon Chair in Earth Justice and Stewardship
Source: South African Law Journal, Volume 142 Issue 1, p. 51-68
https://doi.org/10.47348/SALJ/v142/i1a5
This note argues that integrated energy planning in South Africa should urgently proceed in terms of s 6 of the National Energy Act 34 of 2008, which only commenced on 1 April 2024. The note defines the concept of integrated energy planning and explains how Integrated Resource Plans and s 34 determinations under the Electricity Regulation Act 4 of 2006 have appropriated integrated energy planning. This has put the entire edifice of energy planning on an unstable base. Instead, an Integrated Energy Plan under the National Energy Act should serve as the participatory roadmap to chart South Africa’s energy future.
ISSN: 1996-2177
Affiliations: Advocate, Cape and Johannesburg Bars; Honorary Research Associate, Rhodes University
Source: South African Law Journal, Volume 142 Issue 1, p. 69-98
https://doi.org/10.47348/SALJ/v142/i1a6
This article considers two issues. The first continues to cause controversy nearly two decades after the decision which gave rise to it was handed down. It relates to whether executive decisions are (or should be) constrained by procedural-fairness requirements and, if so, when and how. At the centre of this debate is the Constitutional Court’s decision in Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC), in which the apex court held that it was ‘inappropriate to constrain the exercise of executive power to the requirements of procedural fairness’. I consider the common criticisms of Masetlha and argue, contrary to other commentators, that the decision was neither ‘unprecedented’ nor so untenable as to justify statements to the effect that it is ‘obviously wrong’ and ‘at odds with the Constitution’. I further argue that there are sound reasons to justify the reasoning in Masetlha. The second issue I consider has not been squarely decided by the Constitutional Court: whether the effect of Masetlha is that an executive decision made by an executive functionary is not constrained by the rule against bias. Surprisingly, this has received limited academic interrogation in the wake of Masetlha. I argue that a High Court decision that addressed the issue did so without proffering a jurisprudentially clear and sound basis for its conclusions.
ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 142 Issue 1, p. 99-128
https://doi.org/10.47348/SALJ/v142/i1a7
The Income Tax Act 59 of 1962 requires that a taxpayer should be carrying on a trade to be able to deduct expenses in terms of the general deductions formula, to deduct interest in terms of the specific provisions applicable to interest, or to set off assessed losses. The meaning of ‘trade’ has been the subject of many court cases. These cases have assigned varied and divergent meanings to the term ‘trade’. The result has been that it has become a complex term that complicates the deductibility rules without adding much value to the rules. This article considers this trade requirement’s continued relevance and importance and concludes that it is obsolete and ineffective, and adds no value to the deductibility provisions. The essence of the trade requirement is a duplication of the ‘production of the income’ requirement in the general deduction formula. It is also too broad for interest deductibility provisions, meaning that it lacks effect and is too restrictive in the assessed losses provisions. This disadvantages struggling businesses. The article recommends removing the trade requirement from the Income Tax Act.
ISSN: 1996-2177
Affiliations: Associate Professor, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 142 Issue 1, p. 129-150
https://doi.org/10.47348/SALJ/v142/i1a8
The article considers the role of tax disputes as a signal of a company’s approach to corporate governance by considering two tax disputes between the South African Revenue Service and the Steinhoff group. It seeks to illustrate the role of tax disputes as a signal of corporate governance concerns through an analysis of the two cases, namely CSARS v Capstone 556 (Pty) Ltd and CSARS v Kluh Investments (Pty) Ltd. The tests used in determining tax liability can be difficult to navigate where the respective roles of the board of directors, the directors and the shareholders are not clear, with de facto and de jure ownership and control shifting between the various parties. This may create uncertainty about who is actually in control of the company and who is legally in control of the company. An in-depth analysis of these two cases shows that tax disputes can alert stakeholders and serve as a warning that something is amiss in the governance of the company.