Die effek van die abstrakte stelsel van eiendomsoorgang by bateverkope deur ’n kurator van ’n insolvente boedel

by | Oct 27, 2019 | SLR, SLR V30 I1

Die effek van die abstrakte stelsel van eiendomsoorgang by bateverkope deur ’n kurator van ’n insolvente boedel

Authors AL Stander, HJ Kloppers

ISSN: 1996-2193
Affiliations: Professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus; Mede-professor, Fakulteit Regte, Noordwes Universiteit, Potchefstroomkampus
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 126 – 137

Abstract

The content, meaning and effect of the abstract theory of the transfer of ownership is that the underlying agreement can be irrelevant to the eventual transfer of ownership over a specific asset to another person. What effect can the application of the abstract theory have in insolvency law? Examples to illustrate the relevance of this question are where a person’s appointment as provisional trustee for some reason has not yet taken place, but he has already "sold" an asset from the estate to someone else; or where that person was provisionally appointed, but did not obtain the required consent to sell the asset from the estate; or he did not comply with the instructions of the creditors in connection with the sale of the asset. This position raises the following question: what is the relevance of the abstract theory of the transfer of ownership in insolvency law. According to the authors, the answer to the preceding questions is that if the provisional trustee was indeed properly appointed and authorised at the time of the real agreement, transfer of ownership will take place. This is the position despite the shortcoming in the underlying agreement. What effect does the application of the abstract theory have on the position where that trustee was properly provisionally appointed, but did not obtain the permission explicitly required by the Insolvency Act, to sell the asset from the estate? In such a case, there is indeed a defect in the real agreement, which can also compromise the transfer of ownership. This is also the case where the provisional trustee did not comply with the express instructions of the creditors in connection with the sale of the asset. The crux regarding the questions raised is to determine whether the trustee had valid authorisation or consent of the relevant parties, and only thereafter to assess whether this in any way had an impact on the intention of the parties. This is a consideration of the real agreement – not the underlying contract. This involves assessing all the surrounding circumstances from which the real agreement is derived.

Subcontracting in public procurement – The impact of the 2017 Preferential Procurement Regulations on the Construction Industry

by | Oct 27, 2019 | SLR, SLR V30 I1

Subcontracting in public procurement – The impact of the 2017 Preferential Procurement Regulations on the Construction Industry

Authors AM Anthony

ISSN: 1996-2193
Affiliations: Senior Lecturer at the University of South Africa
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 116 – 125

Abstract

The 2017 Preferential Procurement Regulations brought about vast changes to the legal landscape of construction procurement, specifically with regard to subcontracting. This article evaluates the impact of these regulations and the effect these changes may have on construction procurement and the construction industry at large. Recommendations are made where vacuums in the legal framework are found.

Consumer protection: An overview since 1994

by | Oct 27, 2019 | SLR, SLR V30 I1

Consumer protection: An overview since 1994

Authors Tanya Woker

ISSN: 1996-2193
Affiliations: Professor of Law, University of KwaZulu-Natal (Durban)
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 97 – 115

Abstract

South Africa has a Constitution that is celebrated internationally because it recognises that economic and social rights are just as important as civil and political rights. These rights are legally enforceable rights and since the early days of the newly installed democratic government in 1994, substantial measures have been introduced to promote and advance the social and economic welfare of South Africans. In theory, South African consumers appear to be the best-protected consumers in the world. Unfortunately, the reality is somewhat different. There is a high level of consumer frustration in South Africa which sometimes even translates into violent protest. Despite the government’s best intentions, effective consumer protection remains a distant dream for the majority of consumers. The article considers a three-pronged strategy that is necessary before there can be effective consumer protection: consumers must have knowledge of their rights, consumers must have access to redress, and the law must be enforced. Consumers who are unaware of their rights remain vulnerable and easy prey for exploitation. This poses enormous challenges for the authorities because so many consumers in South Africa reside in remote rural areas. Even if consumers are aware of their rights, it is still extremely difficult for them to enforce their rights. This calls for effective consumer courts in the provinces as well as a well-functioning and effective National Consumer Commission ("NCC"). The NCC is the primary entity established to champion consumer protection and enforce consumer rights in South Africa. The article also calls for the establishment of more specialised ombuds, as ombuds have often proved to be the most effective means of resolving consumer disputes.

Traversing the South African emolument attachment order legal landscape post 2016: Quo Vadis?

by | Oct 27, 2019 | SLR, SLR V30 I1

Traversing the South African emolument attachment order legal landscape post 2016: Quo Vadis?

Authors Stephan van der Merwe

ISSN: 1996-2193
Affiliations: Senior Attorney and Lecturer, Stellenbosch University Law Clinic
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 77 – 96

Abstract

The South African Constitutional Court delivered a landmark judgment in relation to emolument attachment orders ("EAOs") in its 2016 ruling of University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services; Association of Debt Recovery Agents NPC v Clinic; Mavava Trading 279 (Pty) Ltd v Clinic. The court confirmed that EAOs were frequently obtained unlawfully and in circumstances where debtors’ constitutional rights and freedoms were completely disregarded. The judgment followed on decades of legal disputes between creditors, abetted by their collection agents, and debtors, represented by organisations like the University of Stellenbosch Law Clinic. Following this judgment, legislation has been enacted to address some of the more pertinent frailties in the Magistrates’ Courts Act 32 of 1944 ("MCA") in order to provide for more robust judicial oversight in the granting of EAOs. This article offers a unique perspective on the background that merited this significant judicial and legislative intervention. It then considers the significance and impact of the judgment and impending law reform, and evaluates whether the enactment of the Courts of Law Amendment Act 7 of 2017 ("CLA") addresses all the relevant concerns. It is suggested that uncertainty still remains regarding EAOs granted before the judgment, as well as with regard to the recovery of illegally deducted amounts.

All bark and no bite? Contemporary consumer redress in Latin America

by | Oct 27, 2019 | SLR, SLR V30 I1

All bark and no bite? Contemporary consumer redress in Latin America

Authors Manuel A. Gómez

ISSN: 1996-2193
Affiliations: Professor of Law and Associate Dean of International & Graduate Studies at the College of Law, Florida International University
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 61 – 76

Abstract

This article describes the current status of consumer protection in Latin America with particular attention to the recent efforts pursued both at the national and regional levels and the challenges faced. It surveys the landscape of consumer redress in the region and also discusses the use of transnational litigation as a remedial strategy for the shortcomings of the Latin American consumer protection regime. As the article shows, despite many differences among the national legal systems of Latin American countries, there have been some attempts to achieve regional synchronisation. From the CIDIP-VII draft produced under the aegis of the Organization of American States ("OAS"), to the significant effort undertaken by United Nations Conference of Trade and Development ("UNCTAD") with the support of the Swiss government; several countries are now able to coordinate their activities and work toward harmonising their legal regimes. Notwithstanding this optimistic outlook, there are still some important obstacles that stand in the way and that have prevented these modernised consumer protection systems from realising some of its goals. As the article concludes, one possible way to mitigate the existing problems would be if Latin American countries paid more attention to ensuring that consumers have access to local and effective means of judicial protection; in other words, that the existing remedies not only bark but also bite.

Regulatory and judicial consumer protection in the United States of America: An assessment

by | Oct 27, 2019 | SLR, SLR V30 I1

Regulatory and judicial consumer protection in the United States of America: An assessment

Authors Linda S Mullenix

ISSN: 1996-2193
Affiliations: Morris and Rita Atlas Chair in Advocacy, The University of Texas School of Law
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 33 – 60

Abstract

Consumers in the United States of America are protected through a vast scheme of federal and state regulatory agencies and bureaus. Notwithstanding the existence of an impressive bureaucratic apparatus for consumer protection, a persistent theme among scholars is the relative weakness of regulatory consumer protection in the United States, compared to that of other countries — most notably countries within the European Union. The public awareness of and impetus for robust consumer protection in the United States began in the 1960s, with a consumer movement founded by Ralph Nader. Since the 1960s, numerous consumer interest groups have served as lobbyists and watchdogs for consumer interests, pursuing legislation and instituting remedial actions before relevant agencies and in private litigation. This article explores the complex nature of regulatory consumer protection in the United States, describing the array of federal and state agencies whose mandate is consumer protection. The article explores the authority of these various executive branch bodies to issue rules and regulations, conduct investigations, prosecute and sanction violations of consumer protection laws. In addition to consumer protection authorized under federal law, the article further discusses the power of state attorneys general to pursue parens patriae actions on behalf of state citizens for consumer law violations. In assessing the efficacy of federal and state regulatory powers, the article surveys various legislative, executive, judicial, and political constraints on consumer protection agencies to carry out their missions. Finally, the article turns attention to consumer protection through the judicial system, focusing on individual and aggregate procedural means — especially class action litigation — for private enforcement of consumer protection laws. The article assesses the extent to which private litigation serves to counterbalance the problems associated with alleged weak regulatory enforcement of consumer protection laws.