The appeal and sanctioning authority of the Member of the Executive Council for local government under the Code of Conduct for Municipal Councillors in South Africa

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

ARTICLE

The appeal and sanctioning authority of the Member of the Executive Council for local government under the Code of Conduct for Municipal Councillors in South Africa

Authors: Oliver Fuo, Ngwako Raboshakga & Lourens Erasmus

ISSN: 1996-2177
Affiliations: SARChI CLES Chair, Professor, North-West University; Senior Lecturer, North-West University; Researcher and Administrator, SARChI CLES Chair, North-West University
Source: South African Law Journal, Volume 143 Issue 3, p. 572-593
https://doi.org/10.47348/SALJ/v143/i3a7

Abstract

The Code of Conduct for Councillors (2021) (‘the Code’), which appears in Schedule 7 to the Local Government: Municipal Structures Act 117 of 1998 (‘the Structures Act’), regulates the conduct of councillors. It gives municipal councils, the speakers of municipal councils, and the Member of the Executive Council (‘MEC’) for local government in each province the powers to ensure compliance with the Code. This article considers whether the authority vested in the MEC for local government to entertain appeals of municipal council decisions in terms of item 16(4) of the Code — including, where appropriate, the power to overturn council decisions — as well as the MEC’s authority to suspend or remove a councillor from office upon request by the council in terms of item 16(2)(c) and (e) read with item 16(7) of the Code, infringe upon the constitutionally guaranteed political autonomy of municipalities or go beyond the supervisory role envisaged for provincial governments by the constitutional framework. Answering these questions in the affirmative, the article argues that it is necessary to revisit and amend relevant provisions of the Code to address the identified defects, including poor drafting.

All that succeeds is success: Defining informal constitutional change

All that succeeds is success: Defining informal constitutional change

by | Sep 24, 2026 | SALJ, SALJ V143 I3 2026

ARTICLE

All that succeeds is success: Defining informal constitutional change

Author: Dan Mafora

ISSN: 1996-2177
Affiliations: Lecturer, Department of Public Law; Research Associate, Centre for Law and Society, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 3, p. 594-634
https://doi.org/10.47348/SALJ/v143/i3a8

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Dan Mafora
All that succeeds is success: Defining informal constitutional change
South African Law Journal, Volume 143 Issue 3, p. 594-634
https://doi.org/10.47348/SALJ/v143/i3a8

Abstract

This article considers whether the Constitution of the Republic of South Africa, 1996 has been informally changed by the courts through constitutional interpretation. To do so, it first provides a working definition of the concept of informal constitutional change and contrasts it with formal constitutional change. It then interrogates the challenges that arise from informal constitutional change by courts, including the question of the legitimacy or constitutionality of such change. To this end, the article develops an analytical framework for identifying both informal and unconstitutional constitutional change. Finally, it offers one likely instance of both informal and unconstitutional constitutional change by courts in South African law.

The anatomy of acquittal: Criminal liability thresholds in cases involving medical harm through a review of S v Beale

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

NOTE

The anatomy of acquittal: Criminal liability thresholds in cases involving medical harm through a review of S v Beale

Author: Suhayfa Bhamjee & Shuaib Kauchali

ISSN: 1996-2177
Affiliations: Discipline Head, Public Law, School of Law, University of KwaZulu-Natal; Academic Head of Division of Community Paediatrics and Child Health, School of Clinical Medicine, Faculty of Health Sciences, University of the Witwatersrand
Source: South African Law Journal, Volume 143 Issue 2, p. 221-239
https://doi.org/10.47348/SALJ/v143/i2a1

Abstract

This note examines the acquittal of Peter Gordon Beale in a South African criminal trial involving allegations of murder and fraud arising from paediatric surgical procedures. Through a detailed analysis of judicial reasoning, evidentiary shortcomings and medico-legal frameworks, we explore the complex intersection of clinical judgment, criminal intent and causation in medical harm. We argue that the prosecution’s failure to present structured, context-sensitive expert testimony and to reconstruct clinical decision-making contributed significantly to the court’s finding and Beale’s subsequent acquittal. Drawing on comparative jurisprudence, we propose a set of evidentiary standards and procedural reforms to guide future prosecutions, emphasising the need for independent investigations, blinded expert panels, and admissibility rules that prioritise clinical contexts. Ultimately, we advocate for a balanced accountability framework that protects patients while preserving the integrity of medical practice and that resists the temptation to lower evidentiary standards in response to prosecutorial failures.

Business rescue practitioners cannot have their cake and eat it: Cassim NO v Bombela Concession Company (RF) (Pty) Ltd

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

NOTE

Business rescue practitioners cannot have their cake and eat it: Cassim NO v Bombela Concession Company (RF) (Pty) Ltd

Author: Jacobus Jan Louw Nieuwoudt

ISSN: 1996-2177
Affiliations: Adjunct Academic, University of South Africa
Source: South African Law Journal, Volume 143 Issue 2, p. 240-250
https://doi.org/10.47348/SALJ/v143/i2a2

Abstract

In the unreported case of Cassim NO v Bombela Concession Company (RF) (Pty) Ltd ((ZAGPJHC) case no 006216/25 of 16 May 2025), the court analysed and interpreted s 136(2)(b) of the Companies Act 71 of 2008, expanding the scope and effect of the cancellation power of the business rescue practitioner. The court adopted a substance test that ultimately allows the business rescue practitioner to cancel obligations in terms of a pre-commencement contract that were amended postcommencement. This unreported case builds on the still-developing legal discourse concerning the cancellation power of the business rescue practitioner, as previously considered in Du Toit v Azari Wind (Pty) Ltd 2022 (2) SA 510 (WCC). However, it raises important interpretational concerns, particularly regarding the potential purposive overreach of the court in pursuit of a desired outcome.

Corporate governance and artificial intelligence: The emerging legal challenges in South Africa’s boardrooms

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

ARTICLE

Corporate governance and artificial intelligence: The emerging legal challenges in South Africa’s boardrooms

Author: Sebastian Krafzik

ISSN: 1996-2177
Affiliations: Postdoctoral Research Fellow, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 2, p. 251-282
https://doi.org/10.47348/SALJ/v143/i2a3

Abstract

This article examines the emerging legal and governance challenges arising from the integration of artificial intelligence (‘AI’) into South African boardrooms. As AI technologies increasingly influence corporate decision-making, they raise complex questions about directors’ fiduciary duties, accountability, and the adequacy of existing legal frameworks. Drawing on the Companies Act 71 of 2008 and the King V Code, this article examines how the adoption of AI intersects with directors’ duties of care and diligence, particularly as reliance on algorithmic tools becomes more prevalent. It critically assesses recent literature that distinguishes between assisted, augmented and autonomous AI, using this framework to analyse varying levels of AI integration and their implications for governance. The article identifies significant regulatory gaps in current soft-law approaches and argues that the King V provisions, while representing meaningful progress, require further refinement to address boardroom-specific risks and accountability concerns. To that end, the article proposes a hybrid regulatory model that combines enhanced principles-based guidance with targeted amendments to company law. This approach aims to balance innovation with legal certainty, ensuring that South Africa’s corporate governance standards evolve in tandem with AI capabilities while preserving the ethical leadership and human accountability central to sound governance.