bluuebunny/crossref_metadata_2025 huggingface dataset:
UNTANGLING THE REQUIREMENT OF GOOD FAITH IN THE DERIVATIVE ACTION IN COMPANY LAW (Part 2)
Authors: Maleka Femida Cassim
Published: September 2021

A crucial prerequisite for a derivative action is that the applicant must be acting in good faith in terms of section 165(5)(b)(i) of the Companies Act 71 of 2008 in order to obtain the leave of the court to bring the proposed derivative action. Both the Supreme Court of Appeal and the High Court have recently made important pronouncements of legal principle on the approach that the courts would take to the determination of good faith for the purposes of the statutory derivative action under section 165 of the Companies Act. These judicial findings relate not only to the complex issue of how to prove good faith but also to the meaning and content of the requirement of good faith. The courts have now reached a crossroads in delineating the content of good faith and how it is to be proved. This two-part series of articles critically evaluates these judicial pronouncements. While the focus of these articles is mainly on the tangled requirement of good faith, relevant judicial findings on the other prerequisites for a derivative action under section 165(5)(b) read with (7) and (8) of the Companies Act are also discussed. A comparative approach is adopted which takes into account the jurisprudence developed in Australia, Canada and Singapore. The first article in this series of two articles discussed the test of good faith. This article focuses on the proof of good faith.
ALTERNATIVE CARE IN SOUTH AFRICA
Authors: Glynis van der Walt
Published: September 2021

Currently, South Africa has an estimated 5,2 million abandoned children in need of care. Facing the highest rate of deaths worldwide from HIV/AIDS, and as a developing country, many children are left in need of care. The current article considers the status of alternative care in South Africa in light of the State’s ability to provide appropriate alternative care for those in need thereof.
CONTRACTUAL CAPACITY AND THE CONFLICT OF LAWS IN COMMON-LAW JURISDICTIONS (PART 1): THE UNITED KINGDOM
Authors: Eesa A Fredericks
Published: September 2021

This series of two articles provides a comparative overview of the position in the common-law conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, is investigated in part I. Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom is also discussed.Part II will deal with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). Part II also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.
RESOLVING PROVINCIAL CROSS- BORDER DISPUTES UNDER THE CONSUMER PROTECTION ACT
Authors: Stephen Newman  , Mark Tait
Published: September 2021

This research sets out a practical enforcement problem which provincial consumer protection authorities are faced with under the Consumer Protection Act 68 of 2008. In the initial period after the Act became effective, many of the provincial authorities received complaints that involved the consumer and supplier being in different provinces. In terms of section 84 of the Act, which sets out jurisdictional limits of the provincial authorities, it appears that provincial authorities were only able to intervene in a dispute where the consumer and supplier are present in their province. The provincial authorities referred such cross-border disputes to the National Consumer Commission for resolution as the Commission has jurisdiction throughout the country. The Commission refused to deal with these individual disputes. This research sets out the sections of the Act, and other measures, which could potentially be used to try to resolve this situation.
BRIDGING THE INTERNATIONAL GAP: THE ROLE OF NATIONAL HUMAN RIGHTS INSTITUTIONS IN THE IMPLEMENTATION OF HUMAN RIGHTS TREATIES IN AFRICA
Authors: Aliyu Ibrahim
Published: September 2021

While most of the United Nations (UN) treaties have committees to monitor the implementation of their provisions among their States parties, one of the major challenges they encounter is their inability to independently verify the information provided by the States parties, on the level of fulfilling their obligations to the treaties. However, the establishment of National Human Rights Institutions (NHRIs) by the majority of UN member states was meant to not only promote and protect human rights within the territories of States parties, but also to monitor the implementation of the provisions of treaties at the domestic level. This resulted in treaty bodies to encourage NHRIs, in monitoring and providing it with information on the level of implementation of the provisions of these treaties within the territories of respective States parties. This article examines whether these institutions in Africa have been able to discharge their mandates concerning the implementation of two treaties, namely, the International Covenant on Civil and Political Rights (ICCPR) which is monitored by the Human Rights Committee (HRC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which is overseen by the Committee on Economic, Social and Cultural Rights (CESCR). The NHRIs of South Africa, Morocco and Nigeria have been selected to test the effectiveness of these institutions. The study ultimately shows that the majority of these institutions are still far off from achieving their potential.
BREXIT AND THE IMPLICATIONS FOR TACIT CHOICE OF LAW IN THE UNITED KINGDOM
Authors: Garth Bouwers
Published: September 2021

The influence of European Union law on the United Kingdom is noteworthy. In the commercial arena, it has transformed the rules of private international law in the United Kingdom. The European Union has established a common framework for jurisdiction of national courts, the recognition and enforcement of judgments and the determination of the applicable law. The article highlights the implications of Brexit on the determination of the applicable law in the United Kingdom, more specifically, its impact on a tacit choice of law in international commercial contracts. The article examines the current legal position in the United Kingdom (i.e. the legal framework in a so-called “soft-Brexit” scenario). Secondly, the article analyses the effect of a complete withdrawal from the European Union (i.e. the legal framework in a “hard- Brexit” scenario).
THE DISTINCTIVENESS AND INTERRELATEDNESS OF THE PRIVILEGES AND IMMUNITIES OF PARLIAMENT: A COMPARISON OF THE NAMIBIAN AND SOUTH AFRICAN JURISDICTIONS
Authors: Mbuzeni Johnson Mathenjwa  , Lindelwa Mhlongo
Published: September 2021

The terms “privileges” and “immunities” in relation to parliament are used interchangeably in the literature. A comparison of the privileges and immunities of parliament in the Namibian and the South African jurisdictions has shown that these are distinctive but interrelated. Major dissimilarities in Namibian and South African law in this regard are discernible. In the Namibian system, certain weaknesses are identified in the legal framework for the privileges and immunities of parliament. Recommendations are made based on these identified gaps with a view to improving the law relating to the privileges and immunities of parliament.
OF HOUSEBREAKING AND COMMON PURPOSE: S v Leshilo 2017 JDR 1788 (GP)
Authors: Shannon Hoctor
Published: September 2021

Some aspects of substantive criminal law generate more controversy than others. One of the features of the common-law crime of “housebreaking with the intent to commit a crime” is the possible difficulty of proving what “further intent” the accused harboured upon breaking into premises: what crime did the accused intend to commit within? To assist the prosecutor in this regard, the legislature intervened by extending the ambit of the common-law crime to include not just housebreaking where the “further intent” of the accused could be properly identified, but also housebreaking where the “further intent” of the accused could not be identified. Thus, in terms of the Criminal Procedure Act (51 of 1977), a charge of housebreaking with intent to commit a crime “to the prosecutor unknown” (s 95(12)), and a conviction in these terms (s 262) was established. These provisions have proved very controversial, with De Wet commenting that in providing this statutory extension to the common-law crime, the legislature miraculously created a representation of something that is conceptually impossible.The common purpose doctrine also provides invaluable assistance to the State in situations where more than one actor has been involved in the commission of a crime, and where it is extremely difficult to ascertain which actor was responsible for which act. Typically, such crimes arise out of mob violence. A strict application of the rules of causation in such circumstances often makes proof of individual perpetrator liability extremely hard to establish. The consequence of the difficulty in establishing a causal link between the actor’s conduct and the harmful result may be lesser liability or even no liability for the harm. The common purpose doctrine (defined below) however provides that where the actors share a common purpose to commit a crime, and act to that end, the conduct of each actor is imputed to each of the other actors. Thus the difficulty with proof of causation is entirely circumvented.

But at what cost? Despite a Constitutional Court judgment to the contrary, Burchell has consistently argued that the common purpose doctrine “is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and, therefore, an infringement of the presumption of innocence”.In the case of S v Leshilo (2017 JDR 1788 (GP)), both these controversial aspects – the statutory extension to the housebreaking crime, and the common purpose doctrine – are drawn together, making a consideration of the judgment in this case both instructive and worthy of closer analysis.
USING A SLEDGEHAMMER TO CRACK A NUT: THE SCOPE AND POWERS OF THE MINE HEALTH AND SAFETY INSPECTORATE IN LIGHT OF Anglogold Ashanti Ltd v Mbonambi (2017) 38 ILJ 614 (LC)
Authors: C Tshoose  , B Khumalo
Published: September 2021

This case note examines the scope of the MHSI’s powers to issue section 54(1) instructions and the circumstances under which these instructions should be issued. Furthermore, the note examines the relevant jurisprudence of the South African courts dealing with the review of the MHSI’s exercise of power both in imposing administrative fines and issuing mine stoppage orders. This is done in light of the decision in AngloGold Ashanti. The note shows the importance of section 54 instructions and the role they have played in the reduction of serious injuries and fatalities at the mines over the past two decades. Nevertheless, the MHSI’s exercise of power in terms of the provision is not immune from critique. The facts of the case are outlined below. This is followed by a few comments and then a conclusion is drawn. The terms “employer” and “mining company” are used interchangeably in this contribution.
RE-EVALUATING THE MEANING AND EFFECT OF A WINDING UP ORDER ON THE INSOLVENT’S CONTRACTS Ellerine Brothers v McCarthy (245/13) [2014] ZASCA 46 (1 APRIL 2014)
Authors: Howard Chitimira
Published: September 2021

Notably, the Insolvency Act provides that a sequestration order is any provisional or final order of court that enables the insolvent’s estate to be sequestrated by the relevant creditors (s 2). In this regard, the article explores different interpretational challenges regarding the effect of a final sequestration order on the insolvent’s lease contracts (s 37 of the Insolvency Act) and the inconsistent application of section 348 of the Companies Act 1973 to such contracts as provided in Ellerine case (par 1−15). Related challenges involving the application of the provisions of the Companies Act 1973 to the winding up of insolvent companies have been unmasked in various South African cases to date.
THE COMPARATIVE LEGAL HISTORY OF LIMITATION AND PRESCRIPTION
Authors: Eltjo Schrage
Published: September 2021

Within both the civil law and the common law (as well as in mixed legal systems), there are means of acquiring and losing rights, or of freeing ourselves from obligations with the passage of time. The reason for this is at least twofold: on the one hand, for a claimant, a dispossessed owner or a creditor, limitation and prescription provide stimuli for bringing the action; on the other, this sanction upon the negligence of the claimant implies in many cases a windfall for the defendant. If a creditor is negligent in protecting his assets, the law at a certain stage no longer protects him or her. As Oliver Wendell Holmes, Jr. said aptly some 100 years ago: “Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example”.
MEDICAL TREATMENT V SURGERY: WHERE DOES MEDICAL TREATMENT END AND SURGERY BEGIN IN TERMS OF SECTION 129 OF THE CHILDREN’S ACT?
Authors: Carina van der Westhuizen
Published: September 2021

It has been firmly established in South African law that informed consent prior to the commencement of any form of medical procedure is required by the patient, or proxy decision maker. This principle has been established in South African law by two cases, namely Stoffberg v Elliott (1923 CPD 148) and Castell v De Greeff (1994 (4) SA 408 (C)). If the necessary consent is not obtained, the doctor may, among others, incur liability for civil or criminal assault.Initially, consent to the medical treatment of minors was regulated by the Child Care Act (74 of 1983). In terms of section 39(4) of this Act, a minor who reached the age of 18 years was legally competent to consent to an operation while a minor over the age of 14 could independently consent to medical treatment. (This would include a termination of pregnancy, inclusive of an anaesthetic. See Van Oosten “Choice on Termination of Pregnancy Act: Some Comments” 1999 SALJ 67. A termination of pregnancy is performed in terms of the Choice on Termination of Pregnancy Act (92 of 1996) and not the Children’s Act (38 of 2005), therefore it will not be discussed in this note). Van Oosten also notes that neither the terms “medical treatment” nor “operation” are defined in the Child Care Act.The Child Care Act prescribed a cumbersome procedure that had to be followed if the parent or guardian of a child needed to consent to an operation or medical treatment and the responsible person could not be found, could not consent by reason of mental incapacity, refused to consent or was deceased. In such cases the medical practitioner had to report the matter to the Minister of Social Development who could then give proxy consent (s 39(1) of the Child Care Act). In the case of an emergency when an operation or treatment was necessary to save the life of a minor or prevent serious physical injury and a competent person could not be found to consent, the superintendent of the hospital could consent to the necessary procedure (s 39(2) of the Child Care Act). Concerns were raised that the process was cumbersome, led to delays and was therefore not in the interest of minors who need immediate access to medical treatment. As will be pointed out below, the terms “medical treatment” or “surgery” have also not been defined in the Children’s Act. This note therefore seeks to find a workable solution to address the issue of where medical treatment ends and surgery begins as this has an effect on the consent requirements for these procedures. Finally, recommendations will be made based on the research. To put it in context, the consent requirement in the Children’s Act will be discussed, followed by definitions of medical treatment and surgery as well as the way in which other jurisdictions treated the issue of medical treatment and surgery.
A NOTE ON THE MISINTERPRETATION OF SECTION 13 OF THE TRUST PROPERTY CONTROL ACT: A PROPOSED SOLUTION
Authors: Latiefa Manie
Published: September 2021

Section 13 of the Trust Property Control Act (57 of 1988 hereinafter “the TPCA”) has received much judicial attention in recent times. Several applications in terms of section 13 of the TPCA related to amending a trust provision contained in a charitable bequest which allegedly conflicted with constitutional principles. Consequently, section 13 attained a constitutional dimension. The judgments can be commended for the manner in which our courts have attempted to strike a balance between the various constitutional rights at stake in such matters. However, the note will reveal that our courts have at times misinterpreted the criterion of section 13 in its attempt to address the constitutional arguments put forth. The note will highlight the content and depth of section 13. Thereafter, the focus will shift to the constitutional dimension attained by the provision with particular reference to charitable trusts, followed by a discussion of the manner in which the provision has been interpreted by our courts. The aim of the note is to provide a workable solution that will give effect to the method in which the provision is currently being interpreted and strike a balance between the constitutional rights at play.
STUDENT ENGAGEMENT: MORE THAN BELLS AND WHISTLES
Authors: Elizabeth Snyman-Van Deventer
Published: September 2021

Student engagement is the time, effort and energy that students spend on all educational activities that enhance their learning ability. The improvement of student engagement is the principal aim of the Learning in Law project embarked upon by the Department of Mercantile Law at the University of the Free State (UFS), South Africa. One of the aims of the project, which is run in collaboration with the university’s Centre for Teaching and Learning, is to help lecturers develop innovative teaching methods and techniques to ensure in-class student engagement. As modern-day students are used to fast access to information, entertainment and social activity via their mobile devices, new teaching methods to catch and hold their attention and promote participation are needed. This contribution not only makes the case for new ways of teaching law in a changing higher education environment, but also suggests specific steps and techniques to be considered, drawing from the experience of the UFS’s Department of Mercantile Law.
THE EFFECT OF AVOIDING THE FNB METHODOLOGY IN SECTION 25 DISPUTES
Authors: BV Slade
Published: September 2021

In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (FNB), the Constitutional Court set out a particular methodology with regard to the adjudication of section 25 disputes. In terms of this methodology, all expropriations in terms of section 25(2) must satisfy the requirements for a valid deprivation in terms of section 25(1). Therefore, the starting point of any constitutional property dispute is section 25(1). However, subsequent case law shows that the methodology proposed by the court is not consistently followed. In cases where the State formally expropriates property, courts customarily ignore the FNB methodology. In this article, it is argued that the avoidance of the FNB methodology in these cases is justifiable.It has also become clear recently that the courts will on occasion forgo the methodology proposed in FNB even in cases where there was no formal expropriation procedure. In this article, the effect of avoiding the FNB methodology in cases where there was no formal expropriation procedure is considered. It is argued that the avoidance of the FNB methodology in these cases has two interrelated effects. Firstly, parties are free to choose whether to rely on section 25(1) or section 25(2). Litigants are therefore, in theory, free to rely on section 25(2) directly. This makes it possible for litigants to claim compensation in terms of section 25(2), even if no formal expropriation procedure was adopted. Secondly, since litigants can decide whether to rely on section 25(1) or section 25(2), the difference between deprivation and expropriation becomes an important initial consideration, although not a simple one. In this article, it is argued that apart from state acquisition, the authority on which the State relies to effect an imposition on property is an important element in distinguishing between deprivation and expropriation.
ENHANCING CORPORATE DEMOCRACY BY THE USE OF SHAREHOLDER PROXIES
Authors: Maleka Femida Cassim
Published: September 2021

Effective shareholder control over the board of directors is patently in the interests of good corporate governance, accountability and transparency. In recognition of this modern reality, the policy focus in company law has shifted to encouraging shareholder participation and shareholder engagement in corporate affairs. Bearing in mind that very few shareholders of large public companies attend meetings in person, proxy voting is of vital importance to corporate democracy. This article discusses enhanced rights conferred by the Companies Act 71 of 2008 in relation to shareholder proxies who attend, speak and vote at shareholders’ meetings. It also considers the pressing practical question whether companies may impose a cut-off time for the lodgement of shareholder proxies.
THE CRIMINALISATION OF “REVENGE PORN” IN SOUTH AFRICA
Authors: Melody Musoni
Published: September 2021

This article aims to give an overview of the growing problem of non-consensual pornography in the digital age. The problem of non-consensual pornography grew exponentially when Hunter Moore created a website called IsAnyoneUp.com and started receiving nude images from scornful ex-lovers who posted them on his website. The article discusses the shortcomings of the legal framework that is designed to address non-consensual pornography. In addition, it discusses the provisions in the Cybercrimes Bill 2017 as it relates to criminalisation of non- consensual pornography.
HOUSING AND INTEGRATING REFUGEES: SOUTH AFRICA’S EXCLUSIONARY APPROACH
Authors: Callixte Kavuro
Published: September 2021

The article seeks to illuminate South Africa’s exclusionary approach towards housing refugees and asylum seekers, and to integrating them into the economy. To this end, this article argues that the exclusionary approach conflicts with and is in violation of the constitutional values of human dignity, equality and freedom on which South Africa’s refugee law is based. The article employs a qualitative research methodology to illustrate that policy issues are acting as barriers to accessing housing programmes. It makes recommendations on how to close the gaps in housing law to ensure that future planning and implementation of housing policies are in harmony with refugee policies. Finally, innovative and creative solutions to the challenges that refugees and asylum seekers face in the housing sector are drawn from the learning processes acquired from past experience.
WHEN THE LINES ARE BLURRED ─ A CASE OF MISCONDUCT, INCAPACITY OR OPERATIONAL REQUIREMENTS: ARE ALL DISMISSALS GOING OPERATIONAL?
Authors: Tukishi Manamela
Published: September 2021

The Labour Relations Act 66 of 1995 provides for three grounds of dismissal in the form of misconduct, incapacity and the employer’s operational reasons. Even though these grounds are distinct from one another, there are instances where one case of dismissal may fit under more than one of these grounds. The difference between these grounds is not always found in the fact that misconduct is accompanied by an element of fault from the employee’s side, while generally incapacity and operational requirements are not. This has in certain instances, correctly or incorrectly, led to most cases that have the potential of affecting an employer’s operations, either directly or indirectly, being dealt with as dismissals for operational requirements. This begs two questions: whether operational requirements has become an easy-to-use ground for most dismissals; and whether it has always been the intention of the legislature that the three grounds of dismissal should not be applied rigidly.
FROM BEING IN THE AUDIENCE TO WAITING IN THE WINGS: CAN THE IUS EXPECTATI DOMINII IMPROVE THE UNENVIABLE POSITION OF THE TRUST BENEFICIARY IN THE OWNERSHIP TRUST?
Authors: Eben Nel
Published: September 2021

In the development of South African trust law, the courts have often attempted to identify a basis in Roman-Dutch law for the trust figure, with the inter vivos trust being seen as a contract akin to a stipulatio alteri. The ownership of trust assets, and in particular the legal position of the trust beneficiary, has proved to be closely interwoven with the legal nature of the trust figure.It is submitted that the emphasis on the contractual aspect of the living trust has in the past overshadowed its sui generis nature. In this article, both the acceptance requirement placed on beneficiaries of ownership trusts as manifested in Potgieter v Potgieter NO 2012 (1) SA 637 (SCA), and the trust-relationship theory proposed by JP Coetzee, are discussed. The lack of real rights vesting in the discretionary beneficiary is evaluated, from both a contractual and a sui generis perspective, with the writer proposing the application of the Roman-Dutch principle of ius expectati dominii as a mechanism for developing beneficiary rights. It is submitted that the recognition of a right of  expectant ownership will not only address the anomalous position of beneficiaries in ownership trusts but also impact the behaviour of trustees, inhibit alter ego trusts and contribute towards the maturation of the trust figure. In a contractual context, the existence of an enforceable right will allow the courts to apply applicable public policy principles to the evaluation of trustee decisions.
PRESIDENTIAL POWERS IN SOUTH AFRICA – MORE QUESTIONS THAN ANSWERS
Authors: George Barrie
Published: September 2021

This note attempts to analyse the essence of presidential powers in South Africa. These powers are in essence found in sections 83−85 of the Constitution, which relate to “The President”, “Powers and functions of President” and “Executive authority of the Republic” respectively. After being in operation for close to two-and-a-half decades, questions still remain as to the precise meaning of the Constitution’s reference to the President as “head of state”, “head of the national executive” and being vested with “executive authority”. The existence of such questions, it is submitted, should be of some concern. Since the role of the President is critical in ensuring effective executive government, is it not imperative that, by this time, there should be a consensus as to the meaning of the terms “head of state”, “head of the national executive” and “executive authority”? The role of the President can be extremely politically demanding. Executive aggrandisement must be averted. Because our system of executive government is relatively unexplored given that the Constitution only dates from 1996, it needs to be developed in a truly democratic context with a keen sense of constitutionalism. This implies that the executive must be “unable to employ the strong arm tactics that an autocratic executive is by its very nature able to do”.The dilemma facing the South African President as head of state and head of the national executive and being vested with executive authority (sections 83, 84 and 85 of the Constitution) is similar to that faced by Abraham Lincoln on 4 July 1861 in his historic address to the United States Congress after the outbreak of the Civil War. Lincoln posed this question: “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”.In discussing the terms “head of state” and “head of the national executive”, the terms as they feature in the Constitution are referred to; the terms as interpreted and applied in practice are analysed and lastly the myriad questions raised by the terms are highlighted. It will emerge that when it comes to analysing these terms, there appear to be more questions than answers. It is submitted that these unanswered questions are not consonant with good governance and can only result in constant litigation.
REMOVING DIRECTORS OF STATE-OWNED COMPANIES SOS Support Public Broadcasting Coalition v South African Broadcasting Corporation SOC Limited (81056/14) [2017] ZAGPJHC 289
Authors: Rehana Cassim
Published: September 2021

In SOS Support Public Broadcasting Coalition v South African Broadcasting Corporation SOC Limited; SOS Support Public Broadcasting Coalition v South African Broadcasting Corporation SOC Limited ((81056/14) [2017] ZAGPJHC 289 (17 October 2017)) (SOS Support Public Broadcasting Coalition v SABC), the Gauteng Local Division, Johannesburg was faced with two applications brought against the South African Broadcasting Corporation SOC Limited (the SABC) by the SOS: Support Public Broadcasting Coalition, the Freedom of Expression Institute and the Trustees of the Media Monitoring Project Benefit Trust. The Minister of Communications (the Minister) and Mr Hlaudi Motsoeneng (the former chief operations officer of the SABC) were, inter alia, joined as respondents. Both applications related to the constitutionality and lawfulness of the powers exercised by the Minister in respect of the directors of the SABC board. The applications were instituted against a “background of systematic and repeated failures in the governance and management of the SABC”.The first application concerned the lawfulness of the powers vested in the Minister by virtue of the amended Memorandum of Incorporation (MOI) of the SABC (the amended MOI) and the SABC Board Charter (the Charter) in respect of the appointment, discipline and suspension of the executive directors of the SABC. The second application concerned the power of the Minister to remove the executive and non-executive directors of the SABC board from office. The focus of this note is on the second application, although the first application will also be addressed, albeit briefly. This note evaluates the judgment in this case, and its implications for state-owned companies.
ROAD ACCIDENT FUND STEPS INTO THE SHOES OF THE INSURED OWNER: Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49 (29 March 2018)
Authors: Darren Subramanien  , Tamera Govender
Published: September 2021

The Supreme Court of Appeal (SCA) in Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49 (29 March 2018) had to decide whether a driver involved in a single motor vehicle accident and who was not an employee of the owner of the insured vehicle was entitled to claim compensation from the Road Accident Fund (the Fund). The facts in the case differed from the usual scenario where two vehicles collide. In the present case, it was the negligent or wrongful conduct of the owner of the vehicle that the party relied upon to sue the Fund. As such, in this case, the focus of liability was not on the driver‚ but on the insured owner.
THE UNQUALIFIED RIGHT OF ACCESS TO COMPANY RECORDS BY NON-HOLDERS OF THE COMPANY’S SECURITIES UNDER SOUTH AFRICAN COMPANY LAW Nova Property Group Holdings Ltd v Cobbett (MandG Centre for Investigative Journalism NPC as amicus curiae) 2016 (4) SA 317 (SCA)
Authors: Vela Madlela
Published: September 2021

This note, therefore, discusses the Nova case with a focus on the approach of the court regarding the proper interpretation and the ambit of the right of access to a company’s records by any person as conferred by section 26(2) of the Companies Act 71 of 2008. It provides some critical comments on the main issues that this judgment raises, including the impact of the Constitution in this area of South African company law, the interpretation of section 26(2) in light of the role and impact of companies in society, the interpretation of section 26(2) in light of the purposes of the Companies Act 71 of 2008, the interface between section 26(2) and PAIA as well as the potential for abuse of the right of access to company records enshrined in section 26(2). This is followed by some concluding remarks.
Comparing Self-Defence and Necessity in English and South African Law – R v Riddell [2018] 1 All ER 62; [2017] EWCA Crim 413
Authors: Samantha Goosen  , Shannon Hoctor
Published: September 2021

Although a motor vehicle has been held not to be a “dangerous weapon” in terms of the dangerous weapon legislation, a motor vehicle can certainly be used as a “weapon of death”. Can a motor vehicle then also be used as a means of defending one’s interests that are under attack? This is the issue that arose in the English case of R v Riddell [2018] 1 All ER 62; [2017] EWCA Crim 413, which is examined below in the broader context of a comparison between English and South African law on the defences of self-defence and duress, and private defence and necessity, respectively. (As is customarily the case, in this contribution the person accused of a crime is referred to as “the accused” where South African law is under discussion, and as “the defendant” where English law is discussed.)
The Centrality of Customary Law in the Judicial Resolution of Disputes that Emanate from it – Dalisile v Mgoduka (5056/2018) [2018] ZAECMHC
Authors: Nomthandazo Ntlama
Published: September 2021

The recent judgment by the Mthatha High Court in Dalisile v Mgoduka ((5056/2018) [2018] ZAECMHC (Dalisile)) has elicited much jubilation over the permeation of customary-law principles into the judicial resolution of disputes that emanate from a customary-law context. The judgment comes at a time when common-law principles appear to have infiltrated the resolution of disputes that originate from customary law. This case paves the way and provides a foundation for the resolution of customary-law disputes within their own context. It reinforces arguments that have long been canvassed to constitutionalise customary law within its own framework. It endorses the envisioned commitment to translate into reality the “healing of the divisions of the past” as envisaged in the preamble of the Constitution of the Republic of South Africa 1996. Section 211(3) of the Constitution is distinct and prescriptive on the obligations of the courts relating to the application of customary law. Section 211(3) is in the context of pursuing the advancement of a constitutionalised system of customary law that seeks to equate the applicable laws of the Republic.This case has filled a lacuna in the application and interpretation of customary law, which has been clouded by the prism of common law. The gap was acknowledged by the court in Alexkor Ltd v Richtersveld Community (2003 (12) BLCR 1301 (CC).

In Alexkor, customary law was affirmed as an independent and legitimate source of law that is empowered to regulate its own affairs within the framework of the Constitution. It does not have to be legitimised and validated by common-law principles in addition to the Constitution.Resolving disputes arising from customary law has been a great cause for concern. The courts have delivered many disappointing judgments in the area of resolving customary-law disputes. These judgments appear to lean towards importing common-law principles into the resolution of disputes that arise from the system of customary law. This case note does not intend to discuss these judgments in any depth as they have been dealt with elsewhere.It is thus not the purpose of this case discussion to delve into the history of customary law. Its intended focus is limited to the significant stride made by the court in Dalisile in uprooting the dominance of the application of common-law principles in the resolution of disputes that arise from the system of customary law. The objective is to generate debate on the contribution that the judgment makes to the incorporation of Africanised principles into the broader constitutional framework of the jurisprudence of our courts. The note argues that it is the Constitution that is the dominant authority over all the legal systems that are applicable in the Republic, including customary law.
The Developer’s Right to Enforce a Reversionary Right due to the Failure of the Buyer to Erect Dwellings Within a Prescribed Period: A Real or Personal Right? Bondev Midrand (Pty) Ltd v Puling and Another and a Similar Case 2017 (6) SA 373 (SCA)
Authors: Maphuti Tuba
Published: September 2021

The SCA, in Bondev Midrand (Pty) Ltd v Puling and Another and a Similar Case (2017 (6) SA 373 (SCA)) (Bondev v Puling), made significant pronouncements on whether a right to claim a re-transfer of immovable property (commonly known as a reversionary right) has prescribed in terms of the Prescription Act (68 of 1969) in circumstances where a buyer has failed to erect dwellings within a prescribed period. In response to one of the defences to this claim, it had to decide whether such a reversionary right is a real or personal right. In order to come to its decision, the SCA also referred to the question whether the reversionary right violates the constitutional right not to be arbitrarily deprived of property as well as of the right to have access to adequate housing. More importantly, it had to determine whether a condition incorporating a right to claim a re-transfer of immovable property could be separated into two rights, one constituting a real right, and another a personal right. The purpose of this note is to critically discuss the case in Bondev v Puling. The discussion seeks to critically analyse the correctness of the court’s decision in applying the established test for registration of conditions in terms of section 3(1)(r) read with section 63(1) of the Deeds Registries Act (47 of 1937) (DRA). This note also questions the SCA’s decision that it is possible to separate a condition in the title in order to determine whether parts thereof are real or personal. Before embarking on this discussion, the facts of the case, as well as the issues and decision will be discussed.
The Powers of the Court in terms of Section 7(2) of the Domestic Violence Act 116 of 1998: KS v AM 2018 (1) SACR 240 (GJ)
Authors: Moffat Maitele Ndou
Published: September 2021

The preamble of the Domestic Violence Act (116 of 1998) (DVA) recognises that domestic violence is a serious social evil and that there are high incidences of domestic violence in South Africa. The preamble further recognises that:a) victims of domestic violence are among the most vulnerable members of society;b) domestic violence takes many forms and may be committed in a wide range of domestic relationships; andc) the remedies previously available to victims of domestic violence have proved to be ineffective.The Constitution of the Republic of South Africa, 1996 (the Constitution) provides various rights that are also applicable to victims of domestic violence. The Constitution guarantees the right to dignity and to freedom and security of the person (see ss 10 and 12 of the Constitution respectively). Domestic violence against any person is a violation of these rights. The DVA further recognises that South Africa has international commitments to end violence against women and children in terms of the United Nations Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child. A right not to be subjected to domestic violence may not be specifically mentioned in international human rights law instruments, but freedom from all kinds of violence and the right to equality and human dignity is generally emphasised.The purpose of the DVA is to provide a legal remedy in the form of an interdict that prohibits a person from violating the rights of the complainant. In order to give effect to this purpose, section 7(1) of the DVA provides that the court may grant a protection order to protect the rights of the complainant. Section 7(2) of the DVA further grants the court the power to impose any additional conditions that it deems reasonably necessary to protect and provide for the safety, health or well-being of the complainant.In KS v AM (2018 (1) SACR 240 (GJ)), the court found that section 7(2) of the DVA empowered the court to order the seizure of the respondent’s digital equipment to remove any photograph, video, audio and/or records relating to the complainant. This case note examines the decision in KS v AM (supra) and determines whether the decision is justifiable in law. The definition of domestic violence is discussed first and thereafter the remedies available in terms of the DVA are examined. A discussion of the judgment in KS v AM (supra) follows.
(Mis)Understanding The Once-and-For-All Rule Member of The Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC)
Authors: André Mukheibir
Published: September 2021

The “once-and-for-all” rule (OAFA rule) originated in English law. This rule entails that a plaintiff may not bring more than one action for damages, insofar as this action is based on the same cause of action. The rule has particular significance for prospective loss because where a prospective loss is based on the same cause of action as past loss, the claim for the prospective loss has to be brought at the same time as the claim for past loss. It stands to reason, therefore, that a claim cannot be instituted too soon because the damage arising from the delictual conduct has to be assessed properly. On the other hand, because all delictual claims prescribe after three years, the action for damages has to be brought before three years have passed. Between the OAFA rule and the prescription of a delictual claim, there is not much opportunity for a plaintiff to become aware of the true extent of his or her future loss.The Constitutional Court in Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ (2018 (1) SA 335 (CC) (MEC Health)) recently had to consider whether the common law, insofar as it relates to the OAFA rule, should be developed to make provision for instalment or periodic payments. The majority, per Froneman J, held that the law did not make provision for instalment payments but that any amendment to the rule should be left to the legislature. Jafta J, in his minority decision, held that it was not necessary to develop the common law, as it already made provision for instalment payments.The purpose of this note is to show that the majority decision in MEC Health is based on an incorrect understanding of the nature and purpose of the rule, and that the rule does not necessarily exclude periodic or instalment payments. Awarding periodic payments in the case of prospective loss will, furthermore, result in a fairer dispensation, which is also, as is shown below, more aligned with the fundamental principles of the law of delictual damages. Provision is already made for periodic payments in the case of compensation schemes such as the Road Accident Fund Act (56 of 1996) and the Road Accident Benefit Scheme Bill (B17 2017, which will replace the Road Accident Fund Act) and the Compensation for Occupational Injuries and Diseases Act (30 of 1993).
SALES EFFECT OF DIGITAL MARKETING IN SMALL AND MEDIUM-SIZED ACCOMMODATION ENTERPRISES IN CORE CAPPADOCIA
Authors: ERDOĞAN Yakup , GÜNEREN ÖZDEMİR Ebru
Published: September 2021

The subject of the study is the effects on sales of the use of digital marketing tools by tourism SMEs in the Core Cappadocia region. The data obtained for the purpose of determining the uses and impacts were obtained as a result of the questionnaire applied to the owners or managers in 48 accommodation enterprises, which have been defined as SME in the Core Cappadocia region. The collected data were analysed with SPSS 21 package program. It has been determined that there is a positive significant relationship between the usage of digital marketing tools and their effects on sales, and there is no significant change in the annual turnover of the enterprises after the use of digital marketing tools. In addition, it has been determined that the use of digital marketing tools does not differ significantly according to the availability of a marketing department.
GÜLNAR (MERSİN) GEZENDE KANYON’UN TURİZM POTANSİYELİ
Authors: ATASOY Ahmet , ERCİK Cevat
Published: September 2021

Gezende Kanyonu, Mersin’in Gülnar İlçesi’nde yer almaktadır. Karst topografyasının genişlediği coğrafyada birbirinden ilginç yeryüzü şekilleri meydana gelmiştir. Kalker formasyonlarının önemli bir derinliğe ulaştığı Gülnar’da yer altı ve yer üstü karstı oldukça çeşitlidir. Doğal turizme konu olan objeler arasında mağara, kanyon vadi, polye, kör vadi gibi şekiller gelmektedir. Bu çalışmada Gezende kanyonu ile yatak çukurları (pothole) turizm açısından incelenmiştir.
Jeomorfolojik olarak Gezende Kanyonu, Ermenek Çayı’nın yarı graben sahasında yer almaktadır. Grabenin oluşmasında tektonizma etkili olurken, vadinin derine doğru aşındırmasında ise karstik süreçler etkili olmuştur. Fay hattına yerleşen Ermenek Çayı derine doğru yatağını aşındırırken dipteki Jura dönemine ait mermer ve kalkerlere saptanmıştır. Sel rejimli Ermenek Çayı sürüklediği kaya blokları ile çakıl taşları vasıtasıyla Gezende Kanyonunda girdap hareketine yol açmıştır. Milyonlarca yıldan beri devam eden bu girdap hareketiyle Gezende kanyonunda yatak çukurları meydana gelmiştir. Bu çukurlar 1 m çapın ve 2-3 metre derinlikte olup, vadinin 4 km’lik bölümünde birlerce örnekten oluşmaktadır. Tek ve birleşik örnekleri olan bu yatak çukurları asılı bir şekilde veya vadinin tabanına dağılmış bir şekilde bulunmaktadır. İlginç özellikleri nedeniyle merak konusu bu şekiller macera ve doğa turizmi açısından büyük önem arz etmektedir. Bu nedenle Gezende kanyonu alternatif turizm türleri açısından irdelenmiştir.
Bu amaçlarla Gezende kanyonu ile çevresinde yoğun arazi çalışmaları yapılmış ve görüşmeler tamamlanmıştır. Konunun somutlaştırılması için alana ait veriler toplanarak her biri turizm açısından açıklanmıştır. Saha ile ilgili fiziki haritalar, sıcaklık, yağış, litolojik ve jeoloji haritası çizilerek konu açıklanmıştır.
Çalışmanın sonuç kısmında kanyon ve yatak çukurları ile ilgili bir takım sorunlar tespit edilmiştir. Bu sorunlara yönelik bir takım öneri sunulmuştur. Bütün bu çalışmalardan sonra kanyon ve yatak çukurlarının turizme kazandırılması sonucuna varılmıştır. Kanyonda sürdürülebilir bir turizm faaliyetinin olabilmesi için yatak çukurları ile birlikte Gezende Kanyonunun tabiat parkı olarak ilan edilmesi gerekmektedir.