South African Airways makes an emergency landing into business rescue: some burning issues

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

South African Airways makes an emergency landing into business rescue: some burning issues

Author Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Attorney and Notary Public of the High Court of South Africa
Source: South African Law Journal, Volume 137 Issue 2, p. 201-214

Abstract

The initiation of the voluntary business rescue of South African Airways marks the first time in South African law that a state-owned entity has been placed under business rescue. The step poses some challenging legal issues for the field of business rescue. It also holds crucial lessons for the directors of other state-owned companies in financial distress. This note considers some of these burning legal issues, including the duty of the directors of a company that is nearing insolvency to cease trading, how to assess whether a company is financially distressed and should be put under business rescue, and whether the post-commencement financier has a right to vote on the approval of the business rescue plan.

Repudiation of an inheritance by a spouse married in community of property: Govender No v Gounden

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

Repudiation of an inheritance by a spouse married in community of property: Govender No v Gounden

Author Michael Cameron Wood-Bodley

ISSN: 1996-2177
Affiliations: Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 137 Issue 2, p. 214-228

Abstract

The note examines the basis of the decision in Govender NO v Gounden 2019 (2) SA 262 (KZD), in which it was found that in terms of s 15(3)(b)(iii) of the Matrimonial Property Act 88 of 1984 an inheritance of money by a spouse married in community of property can be validly repudiated by the beneficiary spouse alone, without the concurrence of the non-beneficiary spouse, thereby depriving the joint estate of the benefit of the inheritance. The judgment is critically examined in the light of the principles that were decided by the Supreme Court of Appeal in Wessels NO v De Jager NO 2000 (4) SA 924 (SCA). The author argues that the Govender decision cannot be reconciled with the reasoning in the Wessels case. Further problematic aspects of the Govender decision are also examined.

Suppliers, consumers and redress for defective vehicles — the reach of the national consumer tribunal: Tshehla v Aucamp Eiendoms Beleggings

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

Suppliers, consumers and redress for defective vehicles — the reach of the national consumer tribunal: Tshehla v Aucamp Eiendoms Beleggings

Author Jacolien Barnard

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 137 Issue 2, p. 229-245

Abstract

The National Consumer Tribunal has been inundated with disputes regarding the supply of defective motor vehicles by unscrupulous suppliers in terms of the Consumer Protection Act 68 of 2008. The purpose of this note is to disseminate the recent Tribunal decision of Tshehla v Aucamp Eiendoms Beleggings t/a CA Motors [2019] ZANCT 160 to illustrate the recurring prohibited conduct by suppliers as motor dealerships regarding not only the sale of defective goods, but also the representations, conduct and content of the preceding consumer sale agreements. The discussion will illustrate the Tribunal’s efforts to provide effective redress and enforcement as a mandated enforcement institution in terms of the Act, despite the obstacles faced in this regard specifically because of the problematic wording and application of the Act.

The legal nature of performance reconsidered

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

The legal nature of performance reconsidered

Author Ferdinand Botha

ISSN: 1996-2177
Affiliations: Researcher, Max Planck Institute for Comparative and International Private Law
Source: South African Law Journal, Volume 137 Issue 2, p. 246-268

Abstract

South African law regards the performance of a legal obligation as a bilateral act which requires the co-operation and agreement of the debtor and the creditor. In addition to the actual act of performance, the debtor must therefore also enter into a so-called debt extinguishing agreement with the creditor before the debtor will be released from the obligation. It is argued that this approach is outdated from a comparative perspective and that it tends to hinder, rather than assist, the courts in resolving disputes. The suggestion is made that South Africa should adopt the so-called real performance theory from German law instead. This theory asks only whether a particular act of performance can be assigned to a certain obligation and does not require a debt extinguishing agreement for a debtor to be released from the obligation.

A legal fallacy? Testing the ordinariness of ‘ordinary meaning’

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

A legal fallacy? Testing the ordinariness of ‘ordinary meaning’

Author Terrence R Carney

ISSN: 1996-2177
Affiliations: Senior Lecturer in Afrikaans Linguistics, University of South Africa
Source: South African Law Journal, Volume 137 Issue 2, p. 269-304

Abstract

The canon that dictates that words be interpreted according to their ordinary meaning has been widely debated. Many studies have either highlighted the shortcomings of the ordinary meaning principle or have tried to debunk its existence altogether. Despite efforts to introduce a new approach to the interpretation of statutes in South Africa (through Endumeni), the application of the ordinary-meaning rule persists and remains a contested issue. Weighing in on the debate by scholars such as Cowen and Labuschagne, this contribution tests if the phenomenon of ordinary meaning actually exists. Rooted in the argument that ordinary meaning is representative of a so-called reasonable speaker’s understanding, data was collected through a survey approach. The survey tested ten words taken from South African case law that were interpreted according to the ordinary meaning principle. The results were then compared with the meanings assigned by the respective courts and those appearing in the iWeb corpus. Interpreted against the demographic information of 151 participants, the preliminary results indicate correspondence between the courts’ understanding of the selected words and that of the respondents. Therefore, the findings cautiously confirm the existence of the ordinary meaning principle as a phenomenon within a specific spectrum of society.

The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo American case law

by | Jun 12, 2020 | SALJ, SALJ V137 I2 2020

The evidentiary value of an accused’s invocation of the pre-trial and trial right to silence through Anglo American case law

Author Constantine Theophilopoulos

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 137 Issue 2, p. 305-334

Abstract

The right to silence is difficult to analyse in theory and practice as it has different applications at different stages of a criminal prosecution. The accused’s right to silence is also a manifestly modern right which has often been confused with its traditional English common-law ancestor, the witness privilege against self-incrimination. In order to explain the right to silence, this article begins by briefly setting out its libertarian jurisprudential foundations as a Hohfeldian immunity against compulsion and self-incrimination. The analysis is sourced from American and Canadian case law, as there is no South African case law on point. Thereafter, the evidentiary value of a right to silence is explained in utilitarian terms by critically examining the adverse inferences which may be drawn from silence as an item of circumstantial evidence at the pre-trial and trial stages of criminal proceedings. The evidentiary probative value of silence is analysed in its traditional common-law context as a bare rule of evidence, as well as in its modern constitutional context as an entrenched constitutional right. This critical evaluation is based on a rich vein of English, South African and other common-law and constitutional case precedent. Finally, this article suggests a possible five-legged model which may provide a consistent and coherent formula for determining the probative value of an accused’s invocation of silence in all factual circumstances.