An analysis of the failure of a company to prevent bribery under the Prevention and Combating of Corrupt Activities Act

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

An analysis of the failure of a company to prevent bribery under the Prevention and Combating of Corrupt Activities Act

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 2, p. 347-374
https://doi.org/10.47348/SALJ/v142/i2a7

Abstract

An innovative provision of the Prevention and Combating of Corrupt Activities Act 12 of 2004 is the recently introduced s 34A. This section establishes a new offence: members of the private sector and incorporated state-owned entities can be held liable for failing to prevent bribery by an associated person. To escape liability, the entity must prove that it had adequate procedures in place to prevent bribery. This article examines the interpretation, application and enforcement of s 34A. The article compares s 34A to s 7 of the UK Bribery Act, 2010, on which it is modelled, and makes recommendations for interpreting, applying and enforcing s 34A. The article argues that s 34A holds immense potential to curb the distressingly high levels of bribery in South Africa, but that its effectiveness and impact will depend on how it is enforced and on the collective commitment to upholding its principles.

The Road Accident Fund’s ‘without prejudice’ settlement offers on general damages: Admissible admissions or inadmissible negotiation statements?

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

The Road Accident Fund’s ‘without prejudice’ settlement offers on general damages: Admissible admissions or inadmissible negotiation statements?

Author: Ferdinand Heinrich Hermann Kehrhahn

ISSN: 1996-2177
Affiliations: Lecturer, Department of Procedural Law, University of Pretoria
Source: South African Law Journal, Volume 142 Issue 2, p. 375-401
https://doi.org/10.47348/SALJ/v142/i2a8

Abstract

Under s 17(1), read with s 17(1A) of the Road Accident Fund Act 56 of 1996 and its Regulations, the Road Accident Fund (‘RAF’) is liable for general damages only if the RAF is satisfied that a medical practitioner has correctly assessed the injuries of a motor-accident victim as serious. The RAF’s satisfaction with the serious-injury assessment is a jurisdictional fact that must be alleged and proved if a court assumes jurisdiction to make a general-damages (non-pecuniary) award. One way to prove that the RAF has accepted the victim’s injuries as serious is by presenting evidence of the RAF’s admissions contained in extra-curial statements. However, such extra-curial statements are generally inadmissible when they are made during bona fide settlement negotiations. This article considers the without-prejudice settlement negotiation inadmissibility rule and its exceptions. It critically considers the recent judgments of Keagan, Ntsembi and Paulsen, on the one hand, where the courts held that the RAF’s settlement offers on general damages made during bona fide settlement negotiations were inadmissible evidence, and the judgments of Olivier and Van Tonder, on the other hand, where the courts held that the RAF’s settlement offer was admissible evidence. It is argued the RAF’s offer to settle general damages was correctly held in Olivier and Van Tonder to be a tacit acceptance by the RAF that the victim’s injuries were serious and that such offers are admissible evidence as an exception to the without-prejudice inadmissibility rule, thereby obviating the need to establish the required jurisdictional fact into evidence.

Price reduction as a generalised remedy in the law of contract

by | May 23, 2025 | SALJ, SALJ V142 I2 2025

ARTICLE

Price reduction as a generalised remedy in the law of contract

Author: Tjakie Naude

ISSN: 1996-2177
Affiliations: BA LLB LLD (Stellenbosch)
Source: South African Law Journal, Volume 142 Issue 2, p. 402-438
https://doi.org/10.47348/SALJ/v142/i2a9

Abstract

Price reduction should be recognised as a generalised remedy for breach of contract. Price reduction is already recognised in sale and lease contracts. The Consumer Protection Act 68 of 2008 also provides for it in respect of services. It should also be available in other contract types (subject to special regulation for contract types where there is structural inequality between the parties). For example, price reduction is necessary in contracts to do a piece of work (locatio conductio operis). The costs order and court’s statement on costs orders in BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) demonstrate that the court’s dicta on the exceptio non adimpleti contractus and the judicial discretion to relax it did not reflect what was expected of the aggrieved party on the facts. Since the aggrieved party was in fact expected to reduce the price extra-judicially in the circumstances, there should be recognition of and rules on such a self-help remedy at the instance of the aggrieved party. There is growing recognition of the utility of generalised price reduction internationally. South African law should follow suit. This contribution also proposes detailed rules on the price-reduction remedy.

Pledge, conditional sales and the pledgor’s right to redeem: Mapenduka v Ashington and Graf v Buechel revisited

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

NOTES

Pledge, conditional sales and the pledgor’s right to redeem: Mapenduka v Ashington and Graf v Buechel revisited law

Author: Kevin Mulligan

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

Abstract

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.

An analysis of security rights to secure the repayment of loans in South African law

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

NOTES

An analysis of security rights to secure the repayment of loans in South African law

Author: Adnaan Kariem

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

Abstract

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.

Transferring a controlling interest under the Mineral and Petroleum Resources Development Act: A note on Vantage Goldfields SA (Pty) Ltd v Arqomanzi (Pty) Ltd

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

NOTES

Transferring a controlling interest under the Mineral and Petroleum Resources Development Act: A note on Vantage Goldfields SA (Pty) Ltd v Arqomanzi (Pty) Ltd

Author: Daniel Hertog

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

Abstract

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.