Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

Author: Lize Mills

ISSN: 1996-2177
Affiliations: BA LLB LLM LLD (Stellenbosch)
Source: South African Law Journal, Volume 138 Issue 2, p. 399-424
https://doi.org/10.47348/SALJ/v138/i2a6

Abstract

Two recent decisions by English courts have established that the man who gave birth to his child should be registered as the ‘mother’ of that child. The courts found that, despite the fact that the Gender Recognition Act provides that a person who had changed sex and received ‘a full gender recognition certificate’ is considered ‘for all purposes’ to be a person of ‘the acquired gender’, this person still has to be registered on his child’s birth certificate as belonging to the opposite sex. This article describes and evaluates the reasons for these decisions, and compares the English position to those of a number of jurisdictions, including that of South Africa. It argues that the legal context in this country provides for a more pragmatic and equitable approach to the rights of both trans parents and their children.

Third time lucky? Provincial intervention in the Makana Local Municipality

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Third time lucky? Provincial intervention in the Makana Local Municipality

Authors: Lisa Chamberlain & Thato Masiangoako

ISSN: 1996-2177
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand; Researcher, Socio-Economic Rights Institute of South Africa
Source: South African Law Journal, Volume 138 Issue 2, p. 425-461
https://doi.org/10.47348/SALJ/v138/i2a7

Abstract

South African local government is plagued by financial mismanagement and poor governance, resulting in widespread failure to realize socio-economic rights. One of the key mechanisms envisaged by the Constitution to address municipalities in crisis is provincial intervention in terms of s 139. However, although this mechanism is frequently used, its results have been underwhelming. This article discusses a recent case in which the Eastern Cape High Court, Grahamstown ordered the dissolution of the Makana Municipal Council as part of a provincial intervention. The article unpacks the law governing s 139 interventions and, drawing on the Makana example, questions the efficacy of provincial interventions. Further, a number of factors are identified which must be taken into consideration in order to maximise the chances that a provincial intervention might succeed. These include whether mandatory or discretionary intervention is appropriate; when the dissolution of a municipal council is an appropriate component of an intervention; the relationship between provincial intervention, stable governance and political influence; and the timing, funding and institutional arrangements of an intervention. The article concludes by highlighting the important role that community activism can play in catalysing intervention, but draws attention to the fact that such action can be dangerous for the activists involved.

Notes: Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni

by | Feb 25, 2021 | SALJ, SALJ V138 I1 2021

Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 138 Issue 1, p. 1-19
https://doi.org/10.47348/SALJ/v138/i1a1

Abstract

This note discusses and critically analyses the judgment in Organisation Undoing Tax Abuse v Myeni [2020] 3 All SA 578 (GP), in which the court declared a director delinquent for her lifetime in terms of s 162(5) of the Companies Act 71 of 2008. The basis of the application related to the director’s conduct while she was a nonexecutive director and chairperson of South African Airways SOC Ltd. The judgment is commendable for its strict stance against errant directors of state-owned companies. It is the first delinquency application brought by a party acting in the public interest, and the first judgment to impose a lifelong delinquency declaration on a director.

Notes: Investigations, natural justice and reviewability: Msiza v Motau NO & another

by | Feb 25, 2021 | SALJ, SALJ V138 I1 2021

Investigations, natural justice and reviewability: Msiza v Motau NO & another

Author: D M Pretorius

ISSN: 1996-2177
Affiliations: Bowmans, Johannesburg
Source: South African Law Journal, Volume 138 Issue 1, p. 20-39
https://doi.org/10.47348/SALJ/v138/i1a2

Abstract

The case of Msiza v Motau NO & another 2020 (6) SA 604 (GP) dealt with a report prepared by the first respondent pursuant to an investigation into the VBS Bank looting scandal. The investigation was conducted on behalf of the second respondent, the Prudential Authority. The applicant applied for, and was granted, an order reviewing and setting aside aspects of the report that reflected adversely on him. This was because the first respondent had not afforded the applicant an opportunity to be heard before he wrote the report and submitted it to the second respondent. As such, the case raised questions about the applicability of the right to procedural fairness in investigative proceedings and about the reviewability of reports produced by investigators. This note explores whether (and, if so, in what circumstances) investigations conducted by or on behalf of public bodies constitute administrative action that must be performed in accordance with the audi alteram partem rule. It concludes that the reasoning for the court’s view (that it is incumbent on an investigator who should foresee that his findings will have adverse consequences for another person to hear that person before making such findings) lacked depth and nuance. In determining whether there is a right to be heard in an investigative context, due attention should be given to the applicable statutory framework, the powers of the investigator, the potential impact on affected persons, and relevant precedent.