Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

by | Jan 19, 2022 | SLR, SLR V32 I3

Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings

Authors: Clement Marumoagae and Siphethile Phiri

ISSN: 1996-2193
Affiliations: Associate Professor, University of the Witwatersrand, School of Law Visiting Associate Professor, National University of Lesotho, Faculty of Law; LLB LLM LLD Candidate Teaching Assistant, University of Venda, Department of Private Law
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 496 – 517
https://doi.org/10.47348/SLR/2021/i3a7

Abstract

The South African business rescue procedure has not yet been adequately tested against the Constitution of the Republic of South Africa, 1996. In particular, the extent to which company stakeholders could raise constitutional rights to litigate against companies placed under business rescue is not clear. This contribution discusses the apparent tension between the ideal of providing business rescue practitioners the breathing space to attempt to rescue companies and the desire of the employees of those companies to litigate against such companies when they are placed under business rescue. It appears that generally, courts seem to be of the view that the moratorium established in chapter six of the Companies Act 71 of 2008  is broad enough to include employment-related disputes and that during the  period of business rescue, employees are not permitted to litigate against their employer companies. Nevertheless, it would also appear that courts have not adequately considered how this moratorium should be balanced with employees’ constitutional rights, like the right to fair labour practices, social security and equality, and whether the moratorium legitimately and reasonably prohibits employees from protecting these rights by approaching  courts during business rescue proceedings. It is argued in this contribution that either the courts or the legislature should provide clarity on the matter.

Regulating Substantively Unfair Terms in Online Contracts

by | Jan 19, 2022 | SLR, SLR V32 I3

Regulating Substantively Unfair Terms in Online Contracts

Author: Sanmarie van Deventer

ISSN: 1996-2193
Affiliations: BComm LLB LLM LLD, Temporary Lecturer, Department of Private Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 518 – 542
https://doi.org/10.47348/SLR/2021/i3a8

Abstract

The possible risks that standard form contracts pose to consumers have long been recognised. This article focuses on the impact that the online environment has on these risks, and it questions whether existing rules sufficiently protect consumers against unfair or abusive provisions in online contracts (ie standard form contracts appearing in electronic form). Several clauses which are affected by the unique characteristics of the online environment are identified and analysed. These include clauses relating to the use of personal information and consumer-generated content, clauses affected by the ongoing nature of online contracts (such as unilateral variation and unilateral termination clauses) and clauses affected by the global nature of online contracts (such as choice-of-law and choice-of-forum clauses). It is concluded that existing measures of control are inadequate to ensure proper protection for online consumers. It may allow suppliers to rely on generally unread terms included in online contracts to exploit consumer data or content, to modify terms without proper notice, to cause loss to consumers through unilateral termination, and to deprive consumers of effective enforcement measures or legal remedies. Proposals are then made for legislative provisions that aim to prevent suppliers from abusing online terms.

Die Vrugte van Beswaarde Bates by die Bereddering van ‘n Insolvente Boedel

by | Jan 19, 2022 | SLR, SLR V32 I3

Die Vrugte van Beswaarde Bates by die Bereddering van ‘n Insolvente Boedel

Author: AL Stander

ISSN: 1996-2193
Affiliations: BIuris LLM LLD, Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 543 – 558
https://doi.org/10.47348/SLR/2021/i3a9

Abstract

If the executor of a deceased estate finds that the estate is insolvent and the creditors of the deceased estate have not instructed him to sequestrate the estate in terms of the Insolvency Act 24 of 1936, he may choose to administer the estate as an insolvent deceased estate in terms of section 34 of the Administration of Estates Act 66 of 1965. Section 34(7) of this Act requires an executor to submit liquidation and distribution accounts of the estate to the Master within certain specified periods of time and section 34(7)(b) prescribes that these accounts must provide for the distribution of the proceeds according to the preferred order prescribed by the Insolvency Act. Section 95(1) of the Insolvency Act provides that “the proceeds of any property which was subject to a special mortgage, landlord’s legal hypothec, pledge or right of retention, after deduction therefrom of the costs mentioned in subsection (1) of section 89, shall be applied in satisfying the claims secured by the said property”. The question that this contribution seeks to answer is whether “the proceeds of any property” in section 95(1) includes the amount(s) paid by a tenant as rent after the date of sequestration, but before the property was sold by the trustee or liquidator? According to Singer NO v The Master 1996 2 SA 133(A), this phrase includes interest derived from the deposit of the purchase price of the property. However, the Appellate Division also accepted that “the proceeds of any property” were not limited to the purchase price of the property, but included fruits derived after the date of sequestration such as rent paid by a tenant before the property was sold or interest paid by the purchaser. It is recommended in this contribution that rental income that accrues prior to the realisation of the secured property should not be treated in the same way as, for example, rental income and occupational interest that accrues after realisation of the property. This recommendation is based on the interpretation of section 95(1) of the Insolvency Act, in conjunction with section 83 and section 95(2).

Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

by | Sep 19, 2021 | SLR, SLR V32 I2

Developing Criteria for the Identification of Suitable Agricultural Land for Expropriation and Redistribution in South Africa: Lessons Learnt from Namibia

Author: Tina Kotzé

ISSN: 1996-2193
Affiliations: BA (Law) LLB LLM LLD, Research fellow at the South African Research Chair in Property Law, Department of Public Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 185 – 214
https://doi.org/10.47348/SLR/2021/i2a1

Abstract

There has been a plethora of policy initiatives and academic debate focusing on how land should be acquired in South Africa for redistribution purposes and, if expropriation is to take place, at what value or for how much compensation. However, little attention has been paid to how land will be identified for acquisition in general, and expropriation specifically, for redistribution purposes. Therefore, the aim of this article is not to explore which approach is more suitable for specifically acquiring agricultural land, but rather how agricultural land should be identified prior to being acquired, specifically through expropriation, for redistribution purposes. To this end, the approach and criteria for identifying suitable agricultural land for expropriation as provided for in Namibia’s regulations to the Agricultural (Commercial) Land Reform Act 6 of 1995 may prove to be useful in formulating criteria for the South African context. The article concludes with the recommendation that for the sake of a transparent, procedurally fair and effective redistribution process in South Africa, objective, nonarbitrary criteria for identifying suitable agricultural land for redistribution purposes should be developed and provided for in regulations or policy. The development of criteria for identifying suitable agricultural land will provide the South African government with a useful tool in selecting agricultural land for acquisition and redistribution. The use of the criteria will not only contribute to a transparent, non-arbitrary and procedurally fair selection process, but will also assist landowners in determining the likelihood of their land being earmarked for redistribution.

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

by | Sep 19, 2021 | SLR, SLR V32 I2

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

Author: EJ Marais

ISSN: 1996-2193
Affiliations: BA LLB LLD, Senior Lecturer, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 215 – 233
https://doi.org/10.47348/SLR/2021/i2a2

Abstract

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

by | Sep 19, 2021 | SLR, SLR V32 I2

A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

Author: Brigitte Clark

ISSN: 1996-2193
Affiliations: BA LLB (Rhodes) (cum laude) LLM (Cantab), PhD (Rhodes), Senior Lecturer, School of Law, University of KwaZulu Natal; Senior Honorary Research Fellow, Oxford Brookes University, Oxford
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 234 – 252
https://doi.org/10.47348/SLR/2021/i2a3

Abstract

The understanding of gender identities has evolved in response to legislative, policy, political, cultural and social change, but despite these shifts, transgender issues remain under‐explored, and marginalised in South African law and society generally. Transgender is an umbrella term for a person whose gender identity, and gender expression, do not conform to that normatively associated with the gender they were assigned at birth, and for persons who are gender transgressive. Transgender parenting constitutes a direct challenge to “normal” notions of family as transgender parents challenge traditional assumptions about families. Although some jurisdictions have moved beyond gender categories to broader categories of gender‐inclusive parenting, there is no legislative provision in South African law for transgender parents who conceive after having legally transitioned but not having undertaken gender reassignment surgery. After an analysis of recent case law in England and advances in reproductive medical science in this area, this article focuses particularly on whether the registration of trans parents in their chosen legal gender (or as a genderneutral parent) conflicts with the best interests of their children in relation to the lived reality of their children’s lives, the rights of trans parents and children to privacy and family life, and the children’s rights to know their genetic origins. After considering whether the rights of trans parents should be limited in the interests of their children, the article argues that South African legislation and case law should advance beyond the gendered, heteronormative concept of the family currently in operation so as not to limit the rights of trans parents. An administratively coherent system of birth registration that is in the best interests of children could be realised by changing the legal nomenclature to reflect the biological role of the trans parent without the binary connotations of gender.