The shareholder’s appraisal remedy under the Companies Act: How should the courts gauge ‘fair value’?

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

The shareholder’s appraisal remedy under the Companies Act: How should the courts gauge ‘fair value’?

Author: Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Professor of Law, Mercantile Law Department, University of South Africa
Source: South African Law Journal, Volume 141 Issue 2, p. 293-322
https://doi.org/10.47348/SALJ/v141/i2a3

Abstract

The appraisal remedy is the right of minority shareholders to demand that the company buy out their shares in cash, at a price reflecting their ‘fair value’, when they are aggrieved by certain triggering transactions that the majority shareholders have approved. The appraisal right is an American concept that was introduced into South African law when the Companies Act 71 of 2008 came into force. The most formidable challenge concerning the appraisal right is the meaning and interpretation of the key phrase ‘fair value’ and, coupled with this, the appropriate valuation methodology that the court ought to adopt when valuing the shares of dissenting minority shareholders. Two recent judgments of the High Court have considered these thorny issues for the first time. This article critically analyses the findings of the High Court in BNS Nominees (RF) (Pty) Ltd v Zeder Investments Ltd and BNS Nominees (RF) (Pty) Ltd v Arrowhead Properties Ltd, with a particular focus on the divergent approaches that the two cases adopt in gauging the ‘fair value’ of the dissenters’ shares and the judicial discretion to appoint an appraiser to value the shares. This is followed by a detailed discussion of the proper interpretation of the pivotal phrase ‘fair value’ in appraisal proceedings and of appraisal valuation methodology. This is done with reference to the legal position in comparable foreign jurisdictions such as the United States of America and Canada. Guidelines are also suggested for the South African courts to follow when gauging the ‘fair value’ of shares in appraisal cases.

The many shades of intolerability in the workplace

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

The many shades of intolerability in the workplace

Authors: Rochelle le Roux & Aisha Adam

ISSN: 1996-2177
Affiliations: Professor, Faculty of Law, University of Cape Town; Teaching and Research Assistant, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 2, p. 323-348
https://doi.org/10.47348/SALJ/v141/i2a4

Abstract

The notion of intolerability traverses several workplace decisions. However, its meaning in the law is far from linear, and its significance varies, particularly when considering three primary dismissal-related scenarios: the meaning of dismissal; the general threshold for dismissal (also in the case of first offences); and the barriers to reinstatement in the case of unfair dismissal. This article restates established principles concerning labour dispute resolution, particularly those relating to onus and review standards and the role of breach of trust in employment relations. Drawing on recent jurisprudence, the article revisits the assumed role of intolerability and explores its nuanced impact on decision-making processes. In particular, the article demonstrates how the burden of proof and applicable review standards in the case of each of these dismissal-related scenarios can transform an ostensibly neutral term into a kaleidoscope of shades and meaning, with far-reaching implications in the workplace.

Procedural justice as a feature of transformative substantive equality: Critical notes on Social Justice Coalition v Minister of Police (CC)

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

Procedural justice as a feature of transformative substantive equality: Critical notes on Social Justice Coalition v Minister of Police (CC)

Authors: Gideon Burnett Basson

ISSN: 1996-2177
Affiliations: Extraordinary Research Fellow, Department of Public Law, Stellenbosch University
Source: South African Law Journal, Volume 141 Issue 2, p. 349-390
https://doi.org/10.47348/SALJ/v141/i2a5

Abstract

The case of Social Justice Coalition v Minister of Police 2022 (10) BCLR 1267 (CC) is concerning. The litigants and the Constitutional Court sidestepped the innovative and transformative role that is envisaged for access to courts and judicial proceedings and that is required by a substantive conception of equality underlying impoverished peoples’ equality rights. This article argues that procedural justice was overlooked as a feature of transformative substantive equality to be applied in a claim relating to poverty-based discrimination. Procedural justice is vital, as impoverished people encounter pervasive economic, social, political and procedural barriers to accessing justice in various democratic forums, including courts. To introduce procedural justice as an indispensable feature of transformative substantive equality, I use the work of the global justice theorist, Nancy Fraser. Fraser’s work provides formidable insights into developing the existing constitutional framework to overcome the bracketing of the pervasive material and social inequalities that are characteristic of liberal rights claims. By focusing on courts and the procedurally innovative demands of equality proceedings, I argue that the judgment is a worrying illustration of the deepening of impoverished people’s democratic erasure. The judgment is procedurally formalistic, effectively absolving courts from their accountability function for redressing poverty and inequality.

A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

A superfluous concept? The inherent jurisdiction of the South African superior courts as upper guardians of children

Authors: Julia Sloth-Nielsen & Brigitte Clark

ISSN: 1996-2177
Affiliations: Professor of Law, University of Huddersfield; Emeritus Professor, University of the Western Cape; Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University
Source: South African Law Journal, Volume 141 Issue 2, p. 391-414
https://doi.org/10.47348/SALJ/v141/i2a6

Abstract

This article examines the relationship between the role of the superior courts as upper guardians of minors and the constitutionally enshrined right of South African children to have their best interests considered paramount in any matter concerning them. The powerful procedural role of the superior courts in this regard is not subject to review or appeal, enabling the courts to intervene of their own accord on behalf of and to protect all children in their jurisdiction. The article examines whether this upper guardianship role has become superfluous and outdated in light of the constitutional requirement that courts consider the paramountcy of the child’s best interests as an independent right. The High Court’s upper guardianship role provides a more flexible legal basis for judicial intervention, as the case law reviewed in this article indicates. It is also supported by s 173 of the Constitution, which refers to the inherent powers of courts to protect and regulate their own process and to develop the common law, and by s 45(4) of the Children’s Act. Furthermore, the superior courts, as courts of record, enable the development of a system of precedent-based child law, providing judicial reasons for all decisions and justifying the retention of the common-law inherent jurisdiction of the High Court as the upper guardian of children. We conclude that there is a residual role for the continued existence of the powers of the superior courts to act as upper guardians of the children within their jurisdiction, the constitutional best-interests standard notwithstanding.

Examining the value of criminologists’ skills in the context of sentencing objectives: Perspectives from presiding officers in Bloemfontein, Free State Province

by | Apr 3, 2024 | SACJ, SACJ V36 I3 2023

Examining the value of criminologists’ skills in the context of sentencing objectives: Perspectives from presiding officers in Bloemfontein, Free State Province

Author: Kelebogile Boleu

ISSN: 1996-2118
Affiliations: MA (Criminology) (UFS); Junior Lecturer, Faculty of the Humanities, University of the Free State
Source: South African Journal of Criminal Justice, Volume 36 Issue 3, p. 363 – 378
https://doi.org/10.47348/SACJ/v36/i3a1

Abstract

The role of criminologists in South Africa and many other countries has been evolving and expanding over the years. Criminologists are increasingly involved in various phases of the judicial process, including the pre-trial, trial, and post-trial stages.1 As a scientific discipline, criminology involves understanding the root causes of crime, its impact on society, and how to prevent and respond to criminal behaviour. However, it stands to reason that in making an informed and balanced contribution to a case in a court of law, the criminologist must familiarise themself with all aspects relevant to the case.2 The current study focused on the perception of presiding officers about criminologists as expert witnesses in their courts during sentencing. This study explored whether presiding officers valued criminologists knowing, understanding and applying sentencing objectives in writing their reports. A qualitative inquiry was conducted to explore whether it is important for a criminologist to understand sentencing objectives in order to provide an overall and thorough report to the court. Semi-structured interviews were conducted with presiding officers from the regional and high courts in Bloemfontein. The findings suggest that presiding officers prefer to appoint a criminologist who understands and has broad experience of all sentencing objectives in South Africa to assist them in deciding on appropriate sentences.

Measuring progress and plugging gaps: Towards a child-friendly criminal justice system in Zimbabwe

by | Apr 3, 2024 | SACJ, SACJ V36 I3 2023

Measuring progress and plugging gaps: Towards a child-friendly criminal justice system in Zimbabwe

Author: Admark Moyo

ISSN: 1996-2118
Affiliations: LLB (UFH) LLM PhD (UCT); Senior Lecturer, Department of Private Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 36 Issue 3, p. 379 – 405
https://doi.org/10.47348/SACJ/v36/i3a2

Abstract

This article takes stock of the progress made and challenges confronted by Zimbabwe in domesticating international child justice standards relating to general principles of children’s rights, the minimum age of criminal responsibility, and pre-trial detention. It demonstrates that the country has largely incorporated general principles of children’s rights and their implications for child justice norms, standards and practices at the domestic level. In addition, the article posits that the legislature should raise the minimum age of criminal responsibility to at least 14 years to harmonise domestic law with regional and international child law. In the context of pre-trial detention, it is argued that the constitutionalisation of the twin principles of detention as a measure of last resort and for the shortest appropriate period are designed to ensure that an alleged child offender is solely detained if there are no less restrictive means for securing the child’s attendance during trial proceedings. It is also shown that pre-diversion assessments of child offenders enable key players in the justice system to craft individualised, evidence-based interventions that respond to the treatment needs of each child offender. Finally, the article reiterates that the state should urgently enact the Child Justice Bill, allocate more resources, and build relevant infrastructure for pre-trial, child-friendly justice to become a reality.

Policing the Onion Router (Tor) crypto-markets on the dark web: An analysis of South African investigatory powers

by | Apr 3, 2024 | SACJ, SACJ V36 I3 2023

Policing the Onion Router (Tor) crypto-markets on the dark web: An analysis of South African investigatory powers

Author: Eveshnie Reddy

ISSN: 1996-2118
Affiliations: BCrim (Hons) (UKZN) MTech (Unisa); Senior Lecturer, Department of Criminology and Security Science, School of Criminal Justice, Unisa
Source: South African Journal of Criminal Justice, Volume 36 Issue 3, p. 406 – 433
https://doi.org/10.47348/SACJ/v36/i3a3

Abstract

Emerging financial technology (fintech), such as cryptocurrencies and privacy-enhancing technology (pets) such as the Onion Router (Tor), enable varying levels of anonymity or pseudonymity based on underlying encryption algorithms. These technologies are increasingly exploited by cybercriminals for nefarious purposes on the dark web. This has resulted in the so-called tor crypto-markets that facilitate ‘digital organised crime.’ Thus, albeit not inherently criminogenic, encryption constitutes a barrier to criminal investigation. This article discusses two specific methods that police use to investigate and prosecute criminals operating on the dark web, through the use of hacking tools in the context of: (1) online undercover cybersurveillance operations; and (2) remote search and seizure. These methods differ in both scope and complexity and, importantly, bear distinct legal, technical, and ethical consequences that have yet to confront South African courts. As a result, these methods, in the context of dark web investigations, have not previously been considered in South African literature, but have received significant analysis in the United States, the Netherlands, and Australia. These methods will be discussed in the context of South African investigatory powers in order to determine whether there is a legal basis for its operation.