ISSN: 1996-2177
Affiliations: Judge President of the Competition Appeal Court
Source: South African Law Journal, Volume 136 Issue 3, p. 420-432
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ISSN: 1996-2177
Affiliations: Advocate, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal; Advocate, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Law Journal, Volume 136 Issue 3, p. 433-462
The Constitution and its interpretation by the courts have brought about a sea-change in the nature and extent of international-law use and acceptance in South Africa. What one sees is a careful weaving together of international law and our domestic law by the Constitutional Court and other courts: an autochthonous South African approach to international law’s use and application. The article focuses on three critical elements of this transformation what we call the Constitution’s international-law trifecta. First, the Constitution requires all domestic statutes to be interpreted as far as possible to comply with and give effect to international law. Secondly, the Constitution expressly provides for all customary international law to form part of South African law. It must be applied, and can be applied, directly. Thirdly, flowing from the Constitution’s enshrining of the rule of law, the courts have determined that it is a justiciable violation of the principle of legality for public officials to act (or take decisions) in violation of South Africa’s international-law obligations, whether inside or outside South Africa. As we attempt to show in this article, this trifecta’s accumulative effect heralds a significant new vista for constitutionally recognised and incorporated international law in the domestic sphere. The leitmotif of this dawning epoch may well be that we are all international lawyers now.
ISSN: 1996-2177
Affiliations: Research Associate, Centre for Banking Law, University of Johannesburg
Source: South African Law Journal, Volume 136 Issue 3, p. 463-488
The prohibition of interest in duplum refers to the rule that arrear interest ceases to accrue once it exceeds the unpaid capital amount of a loan or credit extended. A version of this rule has been enacted in s 103(5) of the National Credit Act 34 of 2005. This article examines the issue of payment of interest that exceeds the unpaid capital amount in instances where parties enter into a lump-sum payment arrangement that is, where they agree that payment of the capital amount and interest is to be made in a single lump sum at the end of the term of a credit agreement, instead of periodic instalments being paid. The article explores the views of Roman and Roman-Dutch authorities and case law on the issue. The author submits that, because the common-law in duplum rule regulates interest only once a debtor has defaulted, it does not limit interest in lump-sum payment arrangements. Since the statutory in duplum rule in s 103(5) of the Act only comes into effect when there is breach by the consumer, lump-sum payment arrangements that fall within the ambit of the Act should not be treated any differently. The author further submits that if the date for the lump-sum payment of the capital amount plus interest arrives and the debtor fails to meet his or her obligations, the aggregate amount (capital initially lent and interest accrued over the contractual period) starts to accrue mora interest, and that it is the latter interest which is limited by the operation of the common-law in duplum rule or s 103(5) of the Act, as the case may be.
ISSN: 1996-2177
Affiliations: Teaching Assistant, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 136 Issue 3, p. 489-512
South African courts have long recognised duplication of convictions (or ‘splitting of charges’) as unacceptable. However, determining when a duplication of convictions has occurred is a troublesome matter that has led to much confusion and disagreement. This uncertainty has led to our courts’ prescribing reliance on the standard of ‘common sense’ to ascertain whether there has been a duplication of convictions in a given case, both to guide the application of other legal tests and as a principle to fall back on when those tests yield indeterminate outcomes. The reasons for the rule against duplication of convictions relate to moral concerns about the justifications for an act of punishment. Retributivist theories of punishment require the identification of a desert basis for punishment, to render punishment justified. It is possible to identify unique desert bases for punishment, both in a temporal sense and according to the nature of the interest of the victim violated by the criminal act. Identifying unique interest violations is a more effective means of identifying duplications of convictions than the flawed method currently employed by our criminal courts.
ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 136 Issue 3, p. 513-549
This article critically analyses the grounds for the removal from office of a director by the board of directors under s 71(3) of the Companies Act 71 of 2008. These grounds of removal are ineligibility, disqualification, incapacity, neglect and dereliction in the performance of the functions of a director. It is argued that certain grounds of removal are ambiguous while other grounds have the potential to be abused. For instance, there is much scope for the ground of incapacity to be abused; there are no provisions guarding against the introduction of new qualification requirements being improperly used to remove directors; the meaning of the term ‘derelict’ is not clear; an objective standard rather than a subjective standard has been imposed to ascertain whether a director has properly performed his or her functions; and it is not clear whether negligence is an additional ground for the removal of a director, nor is it clear whether additional grounds of removal may be explicitly inserted in a company’s Memorandum of Incorporation. This article recommends that s 71(3) of the Companies Act be amended with a view to removing ambiguities in this provision and to improve and strengthen the grounds for the removal of directors by the board of directors.
ISSN: 1996-2177
Affiliations: Professor, University of the Free State
Source: South African Law Journal, Volume 136 Issue 3, p. 550-580
Although it is trite that five essentialia are prescribed for valid trust formation, the possibility of a court holding a ‘trust’ to be a ‘sham’ due to a finding that a trust founder never truly intended to create the trust is a relatively new feature of South African trust-law jurisprudence. While early attempts to define and characterise the sham trust concept may justifiably be criticised for conflating it with a situation where it is necessary to ‘pierce the veneer’ of a validly created trust, pioneering legal scholarship has contributed to an authoritative body of case law in which its theoretical underpinnings have become crystallised. However, only two (unreported) judgments have thus far dealt with the sham trust in practice. This article uses the latest of these (the unreported decision in Humansdorp Co-op v Wait) as a platform from which to interrogate the intention requirement and its inter-relationship with the requirement of sufficient trustee independence. The authority relied on in Wait is also utilised to develop conceptual linkages between the sham scenario, the ‘control test’ that is used in the veneer-piercing context, and the ‘core idea’ of the trust as articulated in the seminal judgment of Land and Agricultural Bank of SA v Parker 2005 (2) SA 77 (SCA). The article concludes that although Wait is not a model of clarity, it is a ground-breaking judgment that has elevated the ‘sham trust’ concept from theoretical possibility to practical reality.