Twin Peaks: South Africa’s financial sector regulatory framework

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Twin Peaks: South Africa’s financial sector regulatory framework

Authors Andrew Godwin, Timothy Howse, Ian Ramsay

ISSN: 1996-2177
Affiliations: Associate Professor, Melbourne Law School, The University of Melbourne; Research Associate, Melbourne Law School, The University of Melbourne; Harold Ford Professor of Commercial Law, Melbourne Law School, The University of Melbourne
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 665 – 702

Abstract

The National Assembly of South Africa has passed a Bill adopting the ‘twin-peaks’ model of financial regulation, which sees regulation split into two broad functions: market conduct regulation and prudential regulation. This article compares the structure of the twin-peaks model in South Africa with the structure in other jurisdictions. In doing so, it identifies the strengths and possible weaknesses of the model in South Africa, and the extent to which it reflects international experience. The evolution of the legislation reveals that South Africa has drawn increasingly on international experience, particularly the experience in the UK. However, it also reveals characteristics that might be regarded as unique to South Africa. Two areas are particularly noteworthy in this regard. First, the regulatory framework attempts to achieve a balance between the need to ensure operational independence on the part of the regulators, and the need to recognise the role and involvement of the executive government. Secondly, by comparison with international experience (even that in the UK) the design of the regulatory co-ordination framework appears to involve a high level of potential overlap between the co-ordinating bodies, and also a highly prescriptive approach to achieving effective co-ordination.

The authority of company representatives and the Turquand rule revisited

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

The authority of company representatives and the Turquand rule revisited

Authors Farouk H I Cassim, Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Former Professor of Law, University of the Witwatersrand; Former Visiting Professor, University of Johannesburg; Associate Professor, Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 639 – 664

Abstract

It has become necessary to re-examine the issue of authority and representation in the sphere of company law as a result of the judgment of the Constitutional Court in Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC), and consequent to the enactment of the Companies Act 71 of 2008. This article analyses the authority of, and representation by, agents on behalf of companies in general, with a specific focus on the burning question of the juristic nature of ostensible authority and the Turquand rule, and their relationship to the doctrine of estoppel.

The duty of the state to act fairly in litigation

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

The duty of the state to act fairly in litigation

Authors Abraham Klaasen

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, North-West University
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 616 – 638

Abstract

South African organs of state are obliged to act fairly, justly and honestly when litigating. These obligations are derived from the Constitution of the Republic of South Africa, 1996, which places positive constitutional duties on an organ of state when it engages in litigation. Organs of state frequently ignore these constitutionally imposed duties, and thereby abuse the court process. Existing control mechanisms in place to ensure compliance are clearly not effective in holding organs of state constitutionally accountable. A punitive costs order granted against the state is paid for by the taxpayer. A costs order de bonis propriis is not always possible or indeed desirable in the circumstances. Accordingly, a change to the current law of civil procedure and professional legal ethics may be necessary. Enforceable guidelines that could provide legal clarity on the constitutional obligation imposed on organs of state during litigation are needed. Such guidelines, known as the model-litigant obligations, are used in Australia to force the state litigant to behave ethically and honestly. This article proposes the adoption of the model-litigant obligations in South African law.

Ensuring proportionate state resource allocation in socio-economic-rights cases

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Ensuring proportionate state resource allocation in socio-economic-rights cases

Authors Shanell van der Berg

ISSN: 1996-2177
Affiliations: Mellon Early Research Career Fellow, Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 576 – 615

Abstract

This article argues that South African courts should apply proportionality review to state resource-allocation decisions in socio-economic-rights cases. Amartya Sen and Martha Nussbaum’s capabilities approach, which is evidently harmonious with the purposes of South Africa’s project of transformative constitutionalism, can be developed to yield review standards which can be utilised by the judiciary when adjudicating resource-allocation decisions in socio-economic-rights cases. When applying proportionality review to an impugned allocative decision, it is important that courts observe certain tenets common to both the capabilities approach and transformative constitutionalism. Furthermore, courts play a crucial role in interpreting the content of socio-economic rights with reference to the capabilities these rights represent in varying contexts during the first stage of a two-stage rights analysis. Only thereafter should the weight assigned to the capabilities content of the right be balanced against the weight assigned to the state’s resource-based justificatory arguments when a proportionality review standard is applied at the second stage of the rights analysis. By consistently requiring proportionate state resource allocation aimed at the realization of socio-economic rights, courts can contribute to a culture of justification, our project of transformative constitutionalism, and efforts to alleviate structural poverty in South Africa.

Cancellation and anticipatory breach of contract

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Cancellation and anticipatory breach of contract

Authors Martin Fischer

ISSN: 1996-2177
Affiliations: Candidate for the Bachelor of Civil Law degree, University of Oxford
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 543 – 575

Abstract

The decision in Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd is recognised as introducing a ‘new approach’ to repudiation and anticipatory breach of contract in South African law. In terms of this ‘new approach’, in order to determine whether or not a contracting party will be entitled to cancel a contract it must first be determined what breach of contract is predicted and then whether that breach, if it were to arise, would justify cancellation. This raises a number of issues, particularly where a delay is anticipated, and necessitates a reconsideration of the rules on cancellation for breach of contract in South African law. This contribution examines the origin and development of the right to cancel a contract on the basis of a breach in South African law to illustrate these issues. It then proposes a model for breach of contract drawing on Lord Diplock’s judgments in English law to address the uncertainty created by the judgment in Datacolor.

Thomas Kuhn’s Structure of Scientific Revolutions, paradigm shifts, and crises: Analysing recent changes in the approach to contractual interpretation in South African law

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Thomas Kuhn’s Structure of Scientific Revolutions, paradigm shifts, and crises: Analysing recent changes in the approach to contractual interpretation in South African law

Authors Franziska Myburgh

ISSN: 1996-2177
Affiliations: Senior Lecturer in the Department of Private Law, University of Stellenbosch
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 514 – 542

Abstract

Using Thomas Kuhn’s framework of scientific revolutions, this article considers the current state of contractual interpretation in South African law. Despite the view of some that Natal Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) reflect a paradigm shift in interpretation, recent judgments delivered on behalf of the Supreme Court of Appeal suggest otherwise. A similar retreat from Lord Hoffman’s approach in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 is evident in English law. This contribution argues that it is premature to state that a paradigm shift has indeed occurred in the South African approach to contractual interpretation: the imposition of a new approach in the absence of debate about fundamentals circumvents a necessary prerequisite, according to Kuhn, for a true paradigm shift.