The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

Authors: Amy Harpur Gevers & Vishal Surbun

ISSN: 1996-2177
Affiliations: Legal Practitioner of the High Court of South Africa; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 140 Issue 1, p. 194-219
https://doi.org/10.47348/SALJ/v140/i1a8

Abstract

The definition of ‘maritime claim’ in s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 is the gatekeeper to the exercise of admiralty jurisdiction. It is accordingly critical that the process of classifying a claim as a maritime claim is certain and predictable. However, the elasticity of the wording in the definition can create confusion for claimants in borderline cases. In Kuehne & Nagel (Pty) Ltd v Moncada Energy Group SRL 2016 JDR 0312 (GJ) the court formulated the ‘legally relevant connection’ test to assist it in classifying a claim to enforce a demand guarantee. The test was subsequently relied on in Twende Africa Group (Pty) Ltd v MFV Qavak 2018 JDR 0238 (ECP) in classifying a damages claim for unlawful contractual interference. This article examines the ‘legally relevant connection’ test in the context of both cases to assess whether it is consistent with the definition of ‘maritime claim’. We show that the reasoning followed in Kuehne & Nagel is flawed in several respects, revealing certain fundamental weaknesses of the test. However, the decision in Twende demonstrates that the test is capable of yielding results that align with the policy justification for the exercise of admiralty jurisdiction.

Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021)

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021)

Author: Gerhard Lubbe

ISSN: 1996-2177
Affiliations: University of Stellenbosch
Source: South African Law Journal, Volume 140 Issue 1, p. 225-233
https://doi.org/10.47348/SALJ/v140/i1a10

Abstract

None

Notes: Confusion in the removal of directors by shareholders under the Companies Act 71 of 2008: Miller v Natmed Defence (Pty) Ltd

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Notes: Confusion in the removal of directors by shareholders under the Companies Act 71 of 2008: Miller v Natmed Defence (Pty) Ltd

Authors: Rehana Cassim

ISSN: 1996-2177
Affiliations: Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 139 Issue 4, p. 741-756
https://doi.org/10.47348/SALJ/v139/i4a1

Abstract

This note critically analyses the judgment in Miller v Natmed Defence (Pty) Ltd 2022 (2) SA 554 (GJ), in which the court ruled on the validity of the removal of a director by the company’s sole shareholder. Three issues were in contention: whether a shareholder must furnish the director with reasons for the proposed resolution to remove a director from office under s 71 of the Companies Act 71 of 2008; whether a shorter notice period for the shareholders’ meeting was legally acceptable; and whether the meeting that was held telephonically was valid. The court ruled that the director’s removal from office was valid and dismissed his request to be reinstated as a director. This note critically analyses the judgment and argues that the court misinterpreted some aspects of s 71 of the Act.

Notes: The intersection between insolvency and tax avoidance

by | Dec 14, 2022 | SALJ, SALJ V139 I4 2022

Notes: The intersection between insolvency and tax avoidance

Authors: Thabo Legwaila & Carika Fritz

ISSN: 1996-2177
Affiliations: Professor of Law, University of Johannesburg; Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 139 Issue 4, p. 757-767
https://doi.org/10.47348/SALJ/v139/i4a2

Abstract

In the realm of taxation, the South African Revenue Service has the power to set aside (or alter) certain transactions to curb impermissible tax avoidance or to give effect to the substance of a transaction over its form. Equally, in the insolvency realm, the Insolvency Act 24 of 1936 provides for certain instances where a transaction can be set aside if it falls within the ambit of impeachable dispositions. In this note, we consider the intersection between insolvency and tax avoidance with specific reference to the overlap between voidable preferences and impermissible tax avoidance arrangements, on the one hand, and substance over form and dispositions not made for value, on the other hand. This analysis highlights the significance of the timeline of events. We argue that SARS would only be able to benefit from both the avoidance mechanism and the setting side of the impeachable disposition when the tax avoidance remedy precedes the sequestration or liquidation order and the subsequent setting aside of the impeachable disposition.