Court Of Appeal Research Articles

THE COMPANIES ACT 71 OF 2008 DOES NOT OUST THE COMMON-LAW DERIVATIVE ACTION FOR CLOSE CORPORATIONS Naidoo v The Dube Tradeport Corporation [2022] ZASCA 14

The Companies Act 71 of 2008 (2008 Act) abolished the common-law derivative action for companies; section 165 of the 2008 Act replaced it with the statutory derivative action (Griggs “The Statutory Derivative Action: Lessons That May Be Learnt From the Past!” 2002 University of Western Sydney Law Review par 1.2; Coetzee “A Comparative Analysis of the Derivative Litigation Proceedings Under the Companies Act 61 of 1973 and the Companies Act 71 of 2008” 2010 Acta Juridica 298). The question that remained was what impact this would have on common-law rights for close corporations that had been incorporated before the commencement of the 2008 Act but which have not converted to companies under that Act. The Supreme Court of Appeal (SCA) judgment in Naidoo v The Dube Tradeport Corporation ([2022] ZASCA 1) provides much-needed clarity on the status of the common-law derivative action for close corporations. The case also provides guidance on how a court will assess whether knowledge of information can be imputed to a third party in their dealings with a close corporation.

ESORFRANKI PIPELINES (PTY) LTD v MOPANI DISTRICT MUNICIPALITY [2022] ZACC 41

The Constitutional Court, in the recent case of Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality ([2022] ZACC 41), had to decide whether a tenderer, whose tender failed as a result of the intentional misconduct of the State, could claim damages in delict from the State for loss of profits (par 1). The High Court and the Supreme Court of Appeal both applied the res iudicata rule, holding that the matter had already been raised. In both instances the courts also found that wrongfulness and causation had not been proven. The Constitutional Court, in applying the principle of subsidiarity, held that wrongfulness had not been proven. The purpose of the case note is to show that the reasons advanced by the courts for not allowing the delictual claim, are based on incorrect applications of the legal principles.

Lessons from Australian family law appeals jurisdiction

ABSTRACT Much has been researched, written about, and subjected to public enquiry with respect to the content of Australian family law arrangements. This study adds to current understanding by the examination of the records of all successful appeals of parenting orders under the recently adopted regime of the Federal Circuit and Family Court of Australia Division 1 Appellate Jurisdiction. Drawing on transcripts from this Court to the date of writing, 35% of applications to appeal parenting orders were successful in being granted a rehearing or variation by the Appellate Jurisdiction. It is these cases which form the basis for this analysis. Employing an inductive thematic analysis, it has been possible to identify the pattern of circumstances most likely to lead to the compromise of the delivery of the declared principles of clear, predictable, and accessible law. Learning from the record of successful appeals, it becomes evident that the Appeals Court plays a relatively unappreciated critical role in identifying the context and nature of risks in the delivery of these core principles and what should be a central focus for attention.

Is There a Right to Newsgathering in Hong Kong? Putting the CFA Judgment of Choy Yuk Ling in Context

In Hong Kong, the Court of Final Appeal in HKSAR v Choy Yuk Ling (CFA 2023) quashed the convictions of a journalist who was accused of knowingly making false statements in her search requests of a government-maintained vehicles register containing personal data crucial to newsgathering. The Court held that the relevant search purposes should not be narrowly construed to exclude bona fide journalism; regard has to be given to freedom of speech and of the press; and data protection law permits disclosures of personal data in the public interest for news activity purposes. However, this decision was soon overturned by the Government’s new measures which in effect prevent any search of the register for journalistic purposes. In early 2024, the enactment of the Safeguarding National Security Ordinance by the Government has further eroded the right to newsgathering of Hong Kong journalists. Keywords: Hong Kong; Court of Final Appeal; newsgathering; freedom of speech and of the press; protection of personal data; Safeguarding National Security Ordinance 2024.

The British Courts and Compulsory ADR—How Did That Happen?

On 29 November 2023, the Court of Appeal held in James Churchill v Merthyr Tydfil County Borough Council, that the courts of England and Wales are entitled lawfully to order parties to engage in non-court-based dispute resolution processes. This important decision should not come as a surprise. This article will argue by reference to case law, judicial commentary and the Civil Procedure Rules (CPR) that this decision is the most recent expression of an impulse the courts have long maintained: that a case can be dealt with justly by moving (by various means) litigants away from the judgment seat to one of negotiated, consensual outcomes. The decision corrects an anomaly within the CPR that obliges parties to further the overriding objective by considering alternative dispute resolution but deprives the court of a particular remedy to enforce that obligation. This article will trace the roots of the Court of Appeal decision and identify to what extent it is the natural progression in judicial thinking, and it truly breaks new ground. Keywords: ADR; justice; civil justice; court reforms; overriding objective; Halsey; CPR; Churchill v Merthyr Tydfil; Article 6; arbitration agreements.

APPRAISAL OF BANK’S LIABILITY ON AUTOMATED TELLER MACHINE (ATM) DEBIT-WITHOUT-DISPENSING TRANSACTION UNDER NIGERIAN LAW: JWAN V. ECOBANK & ANOR. IN PERSPECTIVE

Technological advancement has been adopted in the banking sector through the use of ATM and ATM cards issued by banks to ease saving and withdrawal of money by customers. Once a customer’s account is liquid, the insertion of an ATM card in an ATM and following the procedure, should lead to cash dispensation. However, there are instances where a customer’s account is debited but the money is not dispensed. This is an ATM debit-without-dispensing quagmire. Recently, the Nigerian Court of Appeal in Jwan v. Ecobank & Anor held that an ATM card is akin to a cheque, where it is inserted into an ATM by a customer whose account is funded, a debit-without-dispensing transaction equals to a dishonoured cheque which is breach of banker’s duty to the customer. This conclusion was reached based on the doctrine of res ipsa loquitur. This paper adopts doctrinal method in examining the propriety of making an ATM card akin to a cheque. It attenuates the nuances of the decision with particular reference to the ambit of banker’s duty of care. It seeks to evaluate whether the decision took cognisance of the vagaries of technological glitches in technology driven transaction like the ATM. It discusses the impact of the decision on Nigeria’s banker-customer jurisprudence. It makes vital recommendations as way-forward.

THE STATE AND FEDERAL HIGH COURTS’ JURISDICTION OVER BANKER-CUSTOMER DISPUTE FROM THE PRISM OF DECIDED CASES: WHITHER THE MAGISTRATE COURT’S JURISDICTION

The Magistrate Court Law of most States in Nigeria, (including Oyo State) gives themjurisdiction over tortious acts of which detinue is one. Thus, where a bank customer, mistakenly makes an intra or interbank transfers to a wrong account whereof the money is withheld by the bank, and the withheld amountis within the monetary jurisdiction of the Magistrate Court, the customer, usually brings an action in detinue for the bank to release the money to him/her. This is usually donenotwithstanding that both the Supreme Court of Nigeria (SCN) and Court of Appeal (CA) have held that the State and Federal High Courts’ have concurrent jurisdiction over banker-customer disputes.This paper, adopts desk-based method in interrogating the jurisdiction of the Magistrate Court of Oyo State under the Oyo State Magistrate Court Law, 2011 vis-à-vis the jurisdiction of the State and Federal High Courts over banker-customer dispute based on decided cases to determine whether there is any conflict. It argues that the cases in which the SCN and CA have held that the State and Federal High Courts have and exercises concurrent jurisdiction over banker-customer disputes, were decided without reference to the jurisdiction of other equally competent courts including the Magistrate Court of Oyo State (and other States as well).It found that there is not jurisdictional conflict between these courts in relation to banker-customer disputes but symbiotic. The paper makes vital recommendations before concluding.

Feedback and Learning: The Causal Effects of Reversals on Judicial Decision-Making

Abstract Do judges respond to reversals of their decisions? Using random assignment of cases across two stages of the criminal justice system in Norway and a novel dataset linking trial court decisions to reversals in appeals courts, we provide causal evidence on feedback effects in judicial decision-making. By exploiting differences in the tendencies of randomly assigned appeal panels to reverse trial court decisions, we show that trial court judges who receive a reversal of a sentence respond by updating the likelihood of imposing a prison sentence in the direction of the reversal in future cases. Consistent with a Bayesian learning model, we find that the responses are stronger for judges with weaker priors and for reversals corresponding to stronger signals. Our estimates, however, also indicate that judges overreact to reversals compared to Bayes’ rule.

12Labour Appeal Court of South Africa, Association of Mineworkers and Construction Union v uasa and Others (2023) 44 ilj 2479 (lac), 17 August 2023

12Labour Appeal Court of South Africa, Association of Mineworkers and Construction Union v uasa and Others (2023) 44 ilj 2479 (lac), 17 August 2023

An examination of erroneous medical practices in circumcision surgery in light of supreme court decisions.

Global interest in circumcision, one of the oldest and most frequently performed surgical procedures worldwide, continues. There is a significant increase in cases regarding medical malpractice claims in the world and in our country. It is aimed to identify situations that lead to malpractice claims in circumcision surgery, which has question marks regarding its psychological and ethical aspects, to identify situations that are considered errors and professionally risky, and to contribute to eliminating these deficiencies. We examined the Supreme Court appeal decisions related to circumcision malpractice cases resolved between 2012 and 2022, using the keyword "circumcision" on the official website of the Republic of Turkiye Supreme Court. We examined 30 Supreme Court decisions that met our criteria. It was determined that the most common lawsuit was filed due to negligence (43.3%), followed by carelessness (20%) and faulty action (20%). Physical conditions must be appropriate and healthcare personnel must be adequately trained for circumcision, which is frequently performed especially in pediatric patients and is more frequently subject to malpractice lawsuits than other pediatric operations.

Editorial: Artifacts of judging: Justice Johan Froneman

Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the "rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right". He further argued for the Constitution "to become … a living document". In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman. Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal. In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases. Of particular interest is his careful deliberation on issues pertaining to transformation, legal interpretation, property and language. Justice Froneman in his many carefully argued judgements displayed not only the intellectual rigour that he was calling for, but also the emotional and very much personal crossing that he referred to in 1994.

Review of the IV scientific and practical seminar held at the First Court of Appeal of General Jurisdiction on December 1, 2023, on Copyright Protection and (or) Related Rights in Information and Telecommunications Networks, Including the Internet

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The Two‐Inquiry Rule for Service Animals and Free Speech

The Department of Justice's regulations for the Americans with Disabilities Act allow two inquiries about whether a dog is a service animal. These regulations have been in place for almost 15 years but have generated little litigation over what is plainly a content‐based speech prohibition. Most recently, in Stalder v. Colorado Mesa University, a Colorado court of appeals held that a Colorado Mesa University staff member's “reasonable suspicion” that a student's dog was not a genuine service animal did not justify an inquiry into the student's medical records or the dog's training history before the staff member authorized access to a campus gym (https://bit.ly/3yLEJnC).

PENETAPAN AHLI WARIS DALAM TINJAUAN YURIDIS NORMATIF

This study focused on disparities between decisions made by first-instance and appeal courts in handling the same case. Failure to register marriages and divorces leads to legal division of property and inheritance shares. First-instance judges prioritize legal certainty of marriage/divorce certificates and their legal implications. However, appeal courts lean towards sociological facts, disregarding the evidential value of authentic marriage certificates. Furthermore, their decisions conflict with the Marriage Registration Act, which mandates valid divorces to be confirmed by court-issued certificates. This study was normative research using case, legal, and conceptual approaches. The legal material was decision number 651/Pdt.G/2020/PA.Tgr and number 54/Pdt.G/2021/PTA.Smd, as well as legal provisions in the law of evidence. Based on these legal materials, legal analysis was conducted using deductive and inductive methods to strengthen the analysis of legal reasoning results of different judges hearing the same case. This study found that: firstly, the High Court of Religion in Samarinda's decision to disregard the divorce certificate did not uphold legal certainty, as certificates hold significant weight in inheritance cases, serving as conclusive evidence. Hence, there was ambiguity regarding the divorce status of Kasmawati binti Talle and Tajang bin Abu Bagenda in case number 54/Pdt.G/2021/PTA.Smd due to the absence of fully evidential documentation. Secondly, the legal ramifications of an unregistered divorce render it invalid and necessitate annulment, binding the wife to her former husband, a principle supported by Imam As-Syafi'i in Islamic jurisprudence, aligned with other scholarly opinions.

Briefly Noted

On December 19, 2023, the Svea Court of Appeal in Sweden issued its judgment in the above case affirming the conviction and sentencing of Hossein Seyed Ahmadi, an Iranian citizen, for grave breaches of international humanitarian law and murder that took place in Iran in 1988. Specifically, he was charged with having executed prisoners associated with the People's Mojahedin Organization of Iran in the Gohardasht prison. Though the Court of Appeal dismissed the conviction of grave breaches of IHL with regard to some of the prisoners at issue, it found overall that the district court was correct in holding that the prosecutor substantiated the charges levied against Ahmadi. With regard to the murder charge, the Court of Appeal affirmed and noted that it should actually have been considered several acts of murder instead of just one single act. One judge dissented and argued that the defendant should have been found guilty of aiding and abetting murder rather than murder itself. The Court of Appeal also agreed with the district court's assessment that the acts took place in relation to the conflict between Iran and Iraq, thus triggering the application of IHL. Ahmadi's sentence to life in prison stands, and damages have been awarded to surviving plaintiffs and relatives of the deceased prisoners.

The standard of a tribunal established by law. The issue of temporary transfer of judges to the Supreme Court of Justice

The object of this study is the issue of temporary transfer of judges to the Supreme Court of Justice in the light of the standard of a tribunal established by law, established by Article 6(1) of the European Convention on Human Rights. The stated purpose of regulating the temporary transfer of judges to the Supreme Court of Justice is to ensure the proper functioning of the supreme court in the event of the resignation of most judges from that court. The importance of this issue lies in the fact that although in 2023, the legislative remedy in question passed the constitutionality test, in 2016, the Constitutional Court made a distinction between judges of courts and courts of appeal, on the one hand, and judges of the Supreme Court of Justice, on the other. Given that part of the legal community considered that this distinction was also applicable to the 2023 case, and that the courts must inspire public confidence, an investigation of the subject matter is required.

United States Court Of Appeals For The Ninth Circuit

United States Court Of Appeals For The Ninth Circuit

US Legal and Regulatory Update

This article presents an overview of Pfizer v. Sanofi Pasteur, a decision that continues the recent trend of Court of Appeals for the Federal Circuit (CAFC) toward tighter scrutiny of patent claims. The CAFC reaffirmed that an expectation of success in combining and modifying prior art need only be reasonable, not absolute. The results of Pfizer highlights a continued drift by the PTAB and courts toward stricter scrutiny of patent claims, both during prosecution of the claims and during later litigation of the claims. Such claims may be somewhat more difficult to procure, and more open to later invalidation during litigation.

Statistical Properties of the Department of Commerce’s Antidumping Duty Calculation Method with Implications for Current Trade Cases

The Department of Commerce (DOC) uses differential pricing analysis in order to detect whether a foreign exporter dumps goods in the U.S. market at prices lower than the exporter sells the goods for in its domestic market. A dumping duty is then levied on the exporter, the amount of which depends on the dumping margin. Several recent cases at the Federal Circuit Court of Appeals have challenged the DOC’s methodology on statistical grounds. In this article, the DOC’s procedure for calculating the dumping margin is described in detail, including the rules for the controversial zeroing policy. Several statistical issues with the DOC’s approach are identified and some potential improvements are proposed.

Women's rights under the Small House Policy in Hong Kong

AbstractThis article investigates how the legislature and courts in Hong Kong have been struggling to tackle the sex discrimination created by the Small House Policy (SHP). Initially introduced in 1972, the SHP provides every male indigenous villager in the New Territories with a once‐in‐a‐lifetime housing grant, thereby excluding women from this benefit. Despite its discrimination against women, the SHP was still exempted from the New Territories Land (Exemption) Ordinance in 1994 and the Sex Discrimination Ordinance in 1995. In 2019, the judicial review of Kwok Cheuk Kin and Lui Chi Hang v The Director of Land declared that part of the SHP was unconstitutional. Still, this decision was overturned in the Court of Appeal and the Court of Final Appeal, which ruled that the SHP was constitutional in its entirety. This article examines the historical context of the SHP, discusses how the court has been interpreting and defining the SHP and, more importantly, investigates how British's indirect rule created a hostile legal environment for women and further relegated them to the groups of ‘double‐ colonised’ and ‘triple‐colonised’.