ISSN: 1996-2177
Affiliations: Johannesburg Bar
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 441 – 444
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ISSN: 1996-2177
Affiliations: Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 415 – 440
This article examines the impact of ss 90(2)(n) and 124 of the National Credit Act 34 of 2005 (‘NCA’) on the common-law right of credit providers to invoke set-off. It focuses on the interpretation of these sections and considers whether, and if so, to what extent, a limitation on a credit provider’s right to invoke set-off is desirable. An analysis of the policy documents prepared during the drafting of the NCA indicates that insufficient consideration was given to the consequences of limiting a credit provider’s right to set-off. It is concluded that ss 90 (2)(n) and 124 of the NCA are unclear and lead to an outcome which either completely excludes a credit provider’s common-law right to set-off, or creates an anomalous situation where a credit provider must refrain from stipulating such a right in the credit agreement in order to retain it. After a brief investigation of the provisions regarding set-off contained in consumer legislation of other jurisdictions, it is argued that, although certain limitations of a credit provider’s right to invoke set-off are justified, the conditions set by the NCA are too stringent. Legislative reforms are suggested to clarify and improve the protection granted by the NCA.
ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of South Africa; Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 383 – 414
The remuneration of directors is a controversial issue in many jurisdictions in the light of the global financial crisis and the escalating remuneration packages of directors. One way of managing the escalating levels of directors’ remuneration is to compel companies to disclose the details of directors’ remuneration packages. Full disclosure of the remuneration of directors would increase transparency and accountability in the remuneration-setting process of directors. This article explores the adequacy of the Companies Act 71 of 2008 in relation to the disclosure of directors’ remuneration. It further examines the disclosure requirements of directors’ remuneration under the JSE Listings Requirements and the King Report on Governance for South Africa, 2016 (‘King IV’). It compares South Africa’s remuneration disclosure requirements with the legislative standards for remuneration disclosure under the Companies Act 2006 of the United Kingdom, and examines whether our disclosure requirements meet the standards of the UK Companies Act, 2006. This article concludes that the minimum standards of remuneration disclosure set by the Companies Act are too low to satisfy enhanced transparency, and suggests various proposals for strengthening the disclosure requirements of directors’ remuneration under the Companies Act.
ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor of Law, Nelson Mandela Metropolitan University
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 361 – 382
New order prospecting rights and mining rights are labelled as ‘limited real rights’ in s 5(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’). The use of this label is questioned in this article, and it is shown that the prospecting rights and mining rights are not fully compatible with the common-law notion of a limited real right. The nature of prospecting or mining rights is analysed by drawing a comparison with limited real rights or property in terms of property theory, equivalent rights which existed during the previous mineral dispensation, other rights to minerals issued under the MPRDA, public-law instruments, and the nature of ‘property’ in terms of s 25(1) of the Constitution of the Republic of South Africa, 1996. It is shown that rights which differ in nature and origin arise at different moments in time. It is concluded that a limited real right under the MPRDA is rather a right sui generis or a right that is separate from the dominium of land or minerals in situ.
ISSN: 1996-2177
Affiliations: Chair in Public Order Law, Faculty of Law, University of Groningen; Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 327 – 360
This article focuses on eviction used by local authorities to combat crime and anti-social behaviour in the Netherlands and South Africa. It further analyses how these practices relate to the right of respect for the home of the evictees, as laid down in treaties and national legislation. The results of a functional comparative analysis indicate that both countries use eviction to address crime, and primarily apply this instrument to address drug-related crime. The analysis identifies three ways of using criminal activities as grounds for eviction. First, authorities refer to crime committed by the evictees themselves as a reason for the eviction. Secondly, they refer to crime committed by third parties as a reason to evict residents. Thirdly, criminal activity is used as a justification for mass evictions of residents. In both countries eviction is qualified as a serious interference with the right to respect for the home. The article concludes, however, that the use of eviction in cases regarding crime does not automatically result in a violation of this right. Local authorities and courts in both countries seem to have accepted the growing role of evictions to combat crime and anti-social behaviour.
ISSN: 1996-2177
Affiliations: Associate Professor in the Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 296 – 326
One of the key insights of relational contract theory is that context matters — in all contracts, but particularly in long-term commercial ones. The use of context in the interpretation of contracts appears to be on the rise in South Africa, in line with increased subjectivity in contract adjudication. Interesting parallels can be drawn with the shifting sands of contract interpretation in the UK, where contextualism is on the rise, but remains controversial. Indeed, even the concept of good faith is under discussion in English law, particularly with regard to relational contracts. Appropriate construction of the agreement seems to be the favoured approach to achieve results which make ‘commercial common sense’. This article will also draw on the English reception of relational contract theory. These comparative insights will then be applied in a discussion of the proper approach to South African contract adjudication, using a case study of the Everfresh case, which is a leading example of a post-constitutional relational contract dispute.