Formele Onreëlmatighede, Materiële Onreëlmatighede, Regsgeldigheid van Verrigtinge en Artikel 157 van die Insolvensiewet 24 van 1936

by | Feb 15, 2021 | SLR, SLR V31 I2

Formele Onreëlmatighede, Materiële Onreëlmatighede, Regsgeldigheid van Verrigtinge en Artikel 157 van die Insolvensiewet 24 van 1936

Authors: AL Stander en HJ Kloppers

ISSN: 1996-2193
Affiliations: BIuris LLM LLD Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus; BComm LLB LLM LLD Nagraadse Diploma: Finansiële beplanning Mede-professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 249 – 269

Abstract

The application of section 157(1) of the Insolvency Act 24 of 1936 (“the Act”) that concerns a formal defect or irregularity requires careful consideration. Many court cases have already been decided on this aspect and over the years there have been several endeavours to define “a formal defect”. In the Gauteng Division of the High Court and the KwaZulu-Natal Division of the High Court, there are currently different approaches to the application of this phrase in section 4(1) of the Insolvency Act, due to different interpretations of the term “formal defect”. In the first-mentioned division, it is the view that if section 4(1), read with section 157, means that a notice of surrender published more than 30 days before the relevant date is valid (provided that a court does not in due course find that a substantial injustice has occurred), it would create uncertainty. Effectively, a debtor will be able to secure and control a suspension of execution. That was clearly not what the legislature intended. In the KwaZulu-Natal division, the view is that the premature publication of a notice of surrender of an estate under section 4(1) is a formal defect or irregularity within the meaning of that phrase in section 157(1) of the Act. The publication itself is therefore not rendered invalid by the defect. The extent to which the applicant has complied with or deviated from the procedural requirements of the Act is a factor to be considered in exercising the court’s discretion in terms of section 6 of the Insolvency Act. However, the different approaches of the two divisions of the High Court create uncertainty. In the recent case of Swart v Starbuck, the Constitutional Court applied, among other things, section 157(1) to maintain the validity of an action by the Master. It is argued in this article that neither the majority decision nor the minority ruling has given sufficient consideration to the characterisation of “formal defect” in order to address the uncertainty about the application of this section.

Living Wills: What is the Current Legal Status in South Africa?

by | Feb 15, 2021 | SLR, SLR V31 I2

Living Wills: What is the Current Legal Status in South Africa?

Author: Gertruida Grové

ISSN: 1996-2193
Affiliations: BA LLB LLM (US) (LLD) (Pret), Attorney of the High Court of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 270 – 298

Abstract

In this article the current legal status of living wills (advance directives) in South Africa is investigated. The legal enforcement of living will documents should allow compos mentis persons to state their medical instructions in writing in advance. These instructions should be adhered to in medical decision-making processes in situations where the makers of such living wills are no longer able to convey their medical instructions contemporaneously, for example, in states of temporary or permanent unconsciousness. The historical and current legal debate on living wills in South Africa is explored. It is found that there are currently legal lacunae in the South African law, as living wills and enduring powers of attorney which could be incorporated into living wills have not yet been found to form part of our common law and no living will-specific legislation has been enacted. As a result of the legal lacunae there is much legal uncertainty which can, for example, be seen by the varying terminology used by the legal and medical fraternity regarding living wills and related documents. These inconsistencies lead to much confusion and subsequent varying enforcement standards. The Law Reform Commission has investigated the legal lacunae; its reports and suggestions for draft legislation are discussed. The applicable provisions of the National Health Act 61 of 2003 as well as draft legislation, specifically the Draft Bill on End of Life Decisions, 1998, and the National Health Amendment Bill, 2019, the applicable case law and ethical guidelines, including the Health Professions Council of South Africa Guidelines and the South African Medical Association Guidelines, are discussed. The legal lacunae should be addressed to promote legal certainty in South Africa on the enforceability of living wills. This would enhance the doctor-patient relationship and promote the protection of patients’ fundamental human rights.

Curbing the Abuse of the Trust Form: The Inclusion of Penalty and Prohibition Provisions as well as Compulsory Audits in the Trust Property Control Act 57 of 1988

by | Feb 15, 2021 | SLR, SLR V31 I2

Curbing the Abuse of the Trust Form: The Inclusion of Penalty and Prohibition Provisions as well as Compulsory Audits in the Trust Property Control Act 57 of 1988

Author: L Manie

ISSN: 1996-2193
Affiliations: LLB LLM LLD (UWC), Senior lecturer, Department of Private Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 297 – 314

Abstract

The abuse of the trust form has become prevalent in recent times. As a consequence our courts have relied on other branches of law to find remedies to assist third parties who contract with trusts. This article analyses some of these remedies, as well as amendments to the Trust Property Control Act which could provide assistance in combating the abuse of the trust form. There are, however, certain remedies which should continue being developed by our courts.

The Enforceability of the By-Laws of District Municipalities on Local Municipalities: The Case of Solid Waste Disposal

by | Feb 15, 2021 | SLR, SLR V31 I2

The Enforceability of the By-Laws of District Municipalities on
Local Municipalities: The Case of Solid Waste Disposal

Authors: NF de Villiers, HJ van As and JC Botha

ISSN: 1996-2193
Affiliations: BIuris Dipl Juris LLB LLM, Attorney, Port Elizabeth; BIuris LLB LLD NDip (Pol), Professor, Nelson Mandela University, Port Elizabeth; BA LLB LLD, Associate Professor, Nelson Mandela University, Port Elizabeth
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 315 – 343

Abstract

When waste disposal services are regionalised, the result is that waste disposal services are not the principal responsibility of local municipalities. Instead, they are shared between local and district municipalities. The regionalisation and regulation of solid waste disposal is a contentious issue and raises numerous questions. These include the issue of whether a district municipality may adopt by-laws to regulate regional waste disposal services, and also whether a local municipality benefiting from the service is bound thereby. A significant challenge for the regionalisation process is the lack of constitutional and legislative guidance on the implementation procedures needed and the overarching nature of the functions and powers of the impacted local and district municipalities. This article claims that district municipal by-laws may standardise the regional waste disposal function and that these by-laws, although not without limitations, should be enforceable on local municipalities, provided that the principles of cooperative governance and public participation are promoted.

The Right to Life as an Alternative Avenue for the Enforcement of the Right of Access to Adequate Housing in Zimbabwe

by | Feb 15, 2021 | SLR, SLR V31 I2

The Right to Life as an Alternative Avenue for the Enforcement of the Right of Access to Adequate Housing in Zimbabwe

Author: Justice Alfred Mavedzenge

ISSN: 1996-2193
Affiliations: BA LLB LLM PhD, Researcher at the Democratic Governance and Rights Unit, University of Cape Town, Legal Advisor at the International Commission of Jurists
Source: Stellenbosch Law Review, Volume 31 Issue 2, 2020, p. 344 – 373

Abstract

The Constitution of Zimbabwe, 2013 (“Constitution”) does not expressly guarantee every person the right of access to adequate housing, yet the country is bedevilled with an acute national housing crisis. However, the Constitution guarantees the right to life for every person and requires that the rights enshrined in the Bill of Rights be interpreted in a manner which best protects and promotes the constitutional value of human dignity. It also requires courts to interpret constitutional rights in a manner which promotes the fulfilment of international obligations arising from treaties and conventions which Zimbabwe has signed and ratified. The Constitution also requires courts to interpret constitutional rights in a way that incorporates state policy objectives enshrined in Chapter 2 of the Constitution. In this article, I engage with these constitutional rules of interpretation and demonstrate that they allow the right to life to be interpreted in a way that incorporates the right of access to adequate housing in Zimbabwe. Given that Zimbabwean courts are yet to develop their own jurisprudence on the interpretation of the right to life, I make considerable reference to foreign case law from comparative jurisdictions, namely South Africa and India, although I also critically engage with counter-arguments from other jurisdictions.

Oudekraal after fifteen years: the second act (or, a reassessment of the status and force of defective administrative decisions pending judicial review)

Oudekraal after fifteen years: the second act (or, a reassessment of the status and force of defective administrative decisions pending judicial review)

by | Aug 10, 2020 | SLR, SLR V31 I1

Oudekraal after fifteen years: the second act (or, a reassessment of the status and force of defective administrative decisions pending judicial review)

Authors: DM Pretorius

ISSN: 1996-2193
Affiliations: BA (Hons) LLB LLM PhD PGCE, Partner: Bowmans, Johannesburg; Director: St Augustine College of South Africa
Source: Stellenbosch Law Review, Volume 31 Issue 1, 2020, p. 3 – 36

Download PDF

Share

Cite this article

Pretorius, DM
Oudekraal after fifteen years: the second act (or, a reassessment of the status and force of defective administrative decisions pending judicial review)
Stellenbosch Law Review, Volume 31 Issue 1, 2020, p. 3 – 36

Abstract

This article revisits the decision of the Supreme Court of Appeal (“SCA”) in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 6 SA 222 (SCA) (“Oudekraal”) with reference to subsequent case law in an endeavour to clarify the ramifications of the Oudekraal decision. In particular, this article assesses the status and effect of ostensibly defective administrative action pending the outcome of judicial review proceedings aimed at ascertaining the validity or otherwise of such action. The article explores whether the impact of Oudekraal is that a person affected by administrative action which is prima facie unlawful is nevertheless bound by it unless and until it is declared invalid and set aside on judicial review. It also explores whether organs of state are bound by apparently flawed administrative action and must give effect to it as though it were lawful and valid, unless and until it is formally declared invalid and set aside by a court of law. The conclusion is that Oudekraal confirms that a person may disregard prima facie unlawful administrative action and, if it were to be enforced against him, challenge its validity reactively. However, absent statutory indications to the contrary, the author of seemingly unlawful administrative action may not disregard it despite its apparent legal infirmities. Likewise other organs of state are, unless otherwise authorised by law, generally bound by that defective administrative action unless and until it is set aside on review. The SCA enunciated several discrete principles in Oudekraal but subsequent case law has tended to conflate these principles, with resultant confusion about the import of Oudekraal. This article recommends that the questions posed above should not be answered with reference to elusive general principles sought to be inferred from Oudekraal, but rather with reference to the specific provisions of the relevant legislation.