Propping up the crumbling city: Sectional title law, residential building governance and local government

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

Propping up the crumbling city: Sectional title law, residential building governance and local government

Author: Marius Pieterse

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 141 Issue 3, p. 589-621
https://doi.org/10.47348/SALJ/v141/i3a8

Abstract

This article considers the interface between urban local government and sectional title, focusing specifically on the governance of residential apartment blocks in urban areas. It argues that the governance of sectional title schemes is currently wrongly depicted in South African law as being predominantly ‘private’ and contractual in nature. Based on a historical overview and qualitative case study of apartment building governance in centrally located suburbs in the city of Johannesburg, the article argues that building governance ought to be reconceptualised as being located primarily within a public-law paradigm, more specifically as forming part of the ‘special cluster of relationships’ that govern service delivery in South African cities and that give rise to public-law rights and responsibilities, ultimately sourced in the Constitution, for all the relevant parties. This would imply that the relationship between cities and sectional title schemes ought to be viewed as one between local government and rights-bearing stakeholders (rather than customers or residential subjects). Moreover, it would require that sectional title schemes’ governing agents be both adequately empowered and adequately held accountable, under administrative and constitutional law, for exercising their governance functions.

J Smit, E O Alemika, C Botha, G Ngantweni & G van Mollendorf (eds) Policing in Africa — Towards an African Epistemology (2022)

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

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J Smit, E O Alemika, C Botha, G Ngantweni & G van Mollendorf (eds) Policing in Africa — Towards an African Epistemology (2022)

Author: Elrena van der Spuy

ISSN: 1996-2177
Affiliations: Centre of Criminology, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 3, p. 630-633
https://doi.org/10.47348/SALJ/v141/i3a10

Abstract

None

Common-law avoidance

Common-law avoidance

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

Common-law avoidance

Author: Leo Boonzaier

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 2, p. 213-256
https://doi.org/10.47348/SALJ/v141/i2a1

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Boonzaier, L
Common-law avoidance
South African Law Journal, Volume 141 Issue 2, p. 213-256 https://doi.org/10.47348/SALJ/v141/i2a1

Abstract

This article discusses an important trend in recent judgments of our appellate courts, which I call ‘common-law avoidance’. Rather than applying established sets of common-law principles, the courts have chosen to substitute them with other sets of norms of their own invention, usually sourced in the Constitution. This marks a departure from the status quo ante, in which it was accepted that the impact of the Constitution on private-law disputes was to be felt through the common law, rather than by displacing it. I discuss three cases that evidence this new pattern, spanning the three branches of the law of obligations: AB v Pridwin Preparatory School, which implicated the law of contract; Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality, involving delict; and Greater Tzaneen Municipality v Bravospan 252 CC, which raised an issue in the law of unjustified enrichment. I critically assess the trend exhibited in these cases, arguing that it is the result of (among other factors) the courts’ preference for the Constitution’s more familiar and discretionary standards, and of their increasing difficulties in meeting the demands of the common-law method.

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

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

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

Author: Denise Meyerson

ISSN: 1996-2177
Affiliations: Emeritus Professor of Law, Macquarie University
Source: South African Law Journal, Volume 141 Issue 2, p. 257-292
https://doi.org/10.47348/SALJ/v141/i2a2

Abstract

In this article, I examine the dignity-based test for unfair discrimination developed by the Constitutional Court of South Africa. First, I argue that the point of antidiscrimination rights is to protect equality. They seek to prevent a comparative wrong — wrongful disparities in treatment. Violating dignity appears, however, to be a non-comparative wrong — one that is independent of the treatment extended to others. Tying unfair discrimination to dignity violations therefore seems to miss the comparative concerns that underlie anti-discrimination rights. Adding that everyone is ‘equally’ entitled to be treated with dignity does not solve the problem. I respond to this apparent difficulty with the court’s approach by suggesting that the court is best understood as concerned with a distinctive kind of dignity — status dignity. I also argue that there is an attractive conception of equality — relational equality — that explains why violations of status dignity are violations of equality. This interpretation provides the requisite egalitarian foundation for the court’s approach. Secondly, I address the criticism that a dignity-based understanding of substantive equality is too limited to address systemic inequalities. I suggest that an understanding based in status dignity is suitably robust and requires far-reaching reforms and restructuring of social practices.

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.