Should the Electronic Communications and Transactions Act be amended to include electronic signatures for the sale of immovable property in South Africa?

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

Should the Electronic Communications and Transactions Act be amended to include electronic signatures for the sale of immovable property in South Africa?

Author: Nirissa Reddy

ISSN: 1996-2177
Affiliations: LLB (UKZN) LLM (Unisa)
Source: South African Law Journal, Volume 140 Issue 4, p. 795-812
https://doi.org/10.47348/SALJ/v140/i4a5

Abstract

Electronic signatures have become a core feature of digital transformation. Organisations can now transact with greater ease, regardless of physical distance or national borders. The Electronic Communications and Transactions Act 25 of 2002 facilitates electronic communications and transactions using electronic documents and signatures in South Africa. Electronic contracts and signatures are legally binding and constitute valid and admissible evidence in legal proceedings, although there are a few exceptions. One of the exclusions concerns agreements for the sale of immovable property. The Alienation of Land Act 68 of 1981, which regulates the sale of land, seeks to promote legal certainty as to the authenticity and contents of these contracts to limit instances of fraud and litigation. This article examines the risk associated with fraud and the case of Borcherds v Duxbury 2021 (1) SA 410 (ECP). In this case, contrary to legislation, the court accepted an electronic signature in a contract for the sale of immovable property. I recommend that the relevant legislation be amended to validate the use of advanced electronic signatures for the sale of immovable property. A holistic approach to electronic signatures is the only way to embrace an inevitable and complete digital transformation.

Bolstering creditor and shareholder protection under the South African and Zimbabwean amalgamation or merger regulatory regimes: Suggestions for company-law reform

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

Bolstering creditor and shareholder protection under the South African and Zimbabwean amalgamation or merger regulatory regimes: Suggestions for company-law reform

Author: Justice Mudzamiri

ISSN: 1996-2177
Affiliations: LLB (Fort Hare) LLM (UJ) LLD (Fort Hare)
Source: South African Law Journal, Volume 140 Issue 4, p. 813-837
https://doi.org/10.47348/SALJ/v140/i4a6

Abstract

This article critically assesses the efficacy of the South African and Zimbabwean merger regulatory regimes in providing suitable shareholder and creditor protection. The article seeks to balance competing goals. On the one hand, merger opportunities should be promoted by reducing regulatory barriers to merger regulation by, for instance, facilitating the implementation of mergers through a less complex procedure and with reduced court interference. On the other hand, the merger regimes ought to guarantee the appropriate and adequate protection of creditors and shareholders, including minority shareholders’ interests. The article focuses on the two comprehensive target shareholder protections — participatory and remedial rights — and two creditor remedies — the creditors’ notice and the solvency and liquidity test. The study establishes that South Africa offers better protection to creditors and shareholders than Zimbabwe. However, in some respects, both jurisdictions can seek lessons from other progressive jurisdictions, including the United States of America, with the state of Delaware as a particular example, and the United Kingdom.

Conservation of traditional values vis-à-vis the dependant’s action for loss of support in customary law — ‘go tsoša/tsosa hlogo’

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

Conservation of traditional values vis-à-vis the dependant’s action for loss of support in customary law — ‘go tsoša/tsosa hlogo’

Author: Matshilane Mokotong

ISSN: 1996-2177
Affiliations: BProc LLB (Limpopo) LLM LLD (Unisa)
Source: South African Law Journal, Volume 140 Issue 4, p. 838-861
https://doi.org/10.47348/SALJ/v140/i4a7

Abstract

In light of the widespread loss and endangered future of indigenous knowledge, there is a need to preserve traditional practices, values and rules relating to the dependant’s action for loss of support in African customary law (‘ACL’). Literature on the dependant’s action generally fails to mention the presence or absence of traditional practices relating to the dependant’s action for loss of support in ACL. Instead, existing research focuses almost exclusively on Western common law despite South Africa being a pluralistic society. This scholarly literature gap may encourage the standard view or tacit belief that traditional values applying to the dependant’s action do not exist in ACL. This article documents these traditional values in our legal system, thereby contributing to ongoing intellectual and political debates about protecting indigenous knowledge and cultural practices. The article discusses the dependant’s action for loss of support from an African perspective and compares it to the Western perspective. The effectiveness of traditional rules in the assessment of compensation is evaluated. The article proposes that the knowledge, understanding and integration of traditional values could result in the development of a single dependant’s action tailored to satisfy different cultures and beliefs and applies fairly and consistently to all.

A critical analysis of the State Capture Commission recommendations to protect whistleblowers in South Africa

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

A critical analysis of the State Capture Commission recommendations to protect whistleblowers in South Africa

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: BA LLB LLM (Witwatersrand) LLD (Unisa)
Source: South African Law Journal, Volume 140 Issue 4, p. 862-892
https://doi.org/10.47348/SALJ/v140/i4a8

Abstract

This article critically analyses the whistleblower recommendations of the State Capture Commission and the President of the Republic of South Africa’s response to implementing these recommendations. Three recommendations are made: ensuring that whistleblowers receive the protections afforded by art 32(2) of the United Nations Convention against Corruption; possibly awarding whistleblowers a proportion of funds recovered, provided the information disclosed has been material to recovering funds; and affording whistleblowers immunity from criminal or civil action arising from their honest disclosures. This article argues that, although these whistleblower recommendations are laudable and will both protect and incentivise whistleblowers to disclose wrongdoing, South Africa should have a consolidated legislative framework to govern whistleblowing in the various sectors rather than the current approach, which scatters the regulation of whistleblowing across many statutes. The article recommends enhancing the protection of whistleblowers and suggests how to structure South Africa’s whistleblower award programme so that it is clear, fair, transparent and efficient. It also argues that to avoid abuse, whistleblowers should not receive blanket immunity from criminal and civil proceedings but that this should be determined on a case-by-case basis.

Mervyn Dendy & Cheryl Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa (2021)

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

BOOK REVIEW

Mervyn Dendy & Cheryl Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa (2021)

Author: Mohamed Paleker

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 4, p. 893-902
https://doi.org/10.47348/SALJ/v140/i4a9

Abstract

None

André du Toit Amnesty Chronicles: The Inner History of the Amnesty Negotiations During the South African Transition, and the Origins of the TRC’s Amnesty Process (2022)

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

BOOK REVIEW

André du Toit Amnesty Chronicles: The Inner History of the Amnesty Negotiations During the South African Transition, and the Origins of the TRC’s Amnesty Process (2022)

Author: Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 4, p. 903-911
https://doi.org/10.47348/SALJ/v140/i4a10

Abstract

None

The value of the market price in contracts of sale: an analysis

by | Nov 4, 2023 | JCCL, JCCL V9 I1

The value of the market price in contracts of sale: an analysis

Author: Paul Nkoane

ISSN: 2521-2575
Affiliations: BCom LLB (Unisa) LLM (UCT)
Source: Journal of Corporate and Commercial Law & Practice, Volume 9 Issue 1, 2023, p. 1 – 24
https://doi.org/10.47348/JCCL/V9/i1a1

Abstract

Every rule should be valuable to the law. More so if the rule affects the commercial interest of society. A rule may be adopted or formulated to regulate commercial transactions, particularly to support the efficiency of the market. The market price rule is formulated to measure the degree of damages a contract defaulter should pay. The rule should indeed be applied consistently and reasonably to avoid uncertainty and unfairness. It follows that the market value as a rule and measure of commercial liability should not escape analysis to determine its limitations and value in contracts of sale. Thus, this article aims to provide a thorough discourse on the market price rule and how it should be applied in contracts of sale. The purpose of this article is to provide a comprehensive exposition of what informs the market price and how the market price affects the determination of damages in contracts of sale.

Abusing business rescue proceedings by a director and its impact on King IV™ ethics of good corporate governance

by | Nov 4, 2023 | JCCL, JCCL V9 I1

Abusing business rescue proceedings by a director and its impact on King IV™ ethics of good corporate governance

Author: Simphiwe P Phungula

ISSN: 2521-2575
Affiliations: LLB, LLM, PhD (UKZN)
Source: Journal of Corporate and Commercial Law & Practice, Volume 9 Issue 1, 2023, p. 25 – 42
https://doi.org/10.47348/JCCL/V9/i1a2

Abstract

In the past few years, the impact of COVID-19 in South Africa has given rise to the need for business rescue proceedings for financially distressed businesses. Moreover, the looting, unrest, and floods in certain parts of South Africa have exacerbated businesses’ financial stress. To help financially distressed companies in South Africa, the Companies Act 71 of 2008 has introduced a business rescue procedure aimed at helping these ailing companies. This mechanism aims to rehabilitate financially distressed companies so that they become solvent again and, if that is not possible, yield a better return for the company’s creditors or shareholders than would result from the immediate liquidation of the company. Unfortunately, since the introduction of business rescue, evidence has shown that sometimes companies resort to business rescue proceedings to seek refuge from creditors even if the facts do not justify that the company should commence business rescue. In most cases, the abuse of business rescue is done by directors who pass a resolution that the company should embark on business rescue even if evidence shows that the company should not commence the proceedings. This is done notwithstanding the principles of the King IV Report on Corporate Governance™ (King IV™), which requires ethics and good governance on the part of directors. This article demonstrates how the abuse of business rescue can impact the principles of good governance and ethics of King IV™. It argues that directors should rethink their corporate practices and ethical standards when passing a resolution to commence business rescue proceedings.

Reimagining a new world of South African Insolvency Law: Advantage to creditors and section 39(2) of the constitution

by | Nov 4, 2023 | JCCL, JCCL V9 I1

Reimagining a new world of South African Insolvency Law: Advantage to creditors and section 39(2) of the constitution

Author: Alastair Smith

ISSN: 2521-2575
Affiliations: BA LLB (Rhodes), PhD (Edin)
Source: Journal of Corporate and Commercial Law & Practice, Volume 9 Issue 1, 2023, p. 43 – 91
https://doi.org/10.47348/JCCL/V9/i1a3

Abstract

A recent judgment in an application for a final order of compulsory sequestration provided startling justification for granting the order even if the debtor’s estate has no assets that would provide a pecuniary benefit and prospect of a dividend for creditors by relying in part on s 39(2) of the Constitution of the Republic of South Africa, 1996 and extensive quotations from two Constitutional Court decisions on other topics. The connections between the scope, purport and objects mentioned in s 39(2) and the subject matter of the case were not stated by the court but left to the reader to imagine and construct. Possible lines of justification are ventured in this article. The judgment’s vision of radically reimagining the South African law of insolvency is based on misapplying s 12(1)(c) of the Insolvency Act 24 of 1936. In possible moves towards reforming South African insolvency law by abandoning the requirement of advantage to creditors in a new statute, it would be essential for the legislature to canvass detailed, well-informed, carefully considered research and guidance by experts on South African social, economic and financial policy in the current circumstances.