Appellate Division Research Articles

DOES PARLIAMENTARY INTERVENTION MODEL OF JUDGES’ REMOVAL AFFECT THE INDEPENDENCE OF THE JUDICIARY? – A REVISIT TO THE 16TH AMENDMENT CASE

The Constitution Sixteenth Amendment revived the original provision in vesting the power of removal of Judges of the Supreme Court upon Parliament. The Appellate Division, however, declared the Amendment ultra vires in the Constitution 16th Amendment Case. The Government submitted, inter alia, that the Amendment ensured accountability of the Judges to the people. This article argues that the parliamentary removal mechanism of Judges furthers the system of ‘checks and balances’ and not the accountability of the Judges. The article thus holds that due to the faulty argument of the Government, the whole attention of the Court was misdirected towards ensuring accountability of the Judges instead of maintaining the balance of power between Parliament and Judiciary. The article, therefore, suggests an alternative interpretation of the Constitution Sixteenth Amendment revolving mainly around the idea of ‘checks and balances’. The alternative interpretation if properly presented by the Government, perhaps the Court would have put under more compulsion to save the Amendment following this principle of statutory interpretation: Between two interpretations, save the Act. The article has in view two main objectives: first, it would bring it to the attention of both the Bar and the Bench that they should take adequate care of venturing all the possible alternative interpretations of a constitutional provision especially when they are deciding the validity of a constitutional amendment; second, the knowledge it develops might prove beneficial in any future litigation of the Bangladesh constitutional law on issues concerning ‘separation of powers’ and ‘checks and balances’.

The East African Court of Justice: Weaving Jurisprudential Pathways, 2012–20

A reading of the decisions of the East African Court of Justice delivered during its early years portrays an orientation towards the application of common law doctrines. This is not surprising given that the initial litigants, legal Counsel and Judges originated from countries with legal systems sourced from common law; and so, they relied on judicial precedents of national courts and the Court’s predecessor, the Court of Appeal for East Africa. For over a decade now, there’s been a shift as the Court has charted a jurisprudential path reflecting its international character. This paper considers some of the decisions of the Appellate Division which have espoused the primacy of public international law principles and legal instruments; and the inspiration drawn from the jurisprudence of other international and regional courts in interpreting and applying the East African Community Treaty. Over the years, the Court has continued to uphold deference for rule of law, jurisdictional, procedural and evidential standards in the administration of justice and applied the seldom used dissenting opinion mechanism where necessary.

Schreiner family narratives: Written and oral sources in biographical research

This article reflects on the research required in biographical studies. The biographical focus is on the role of three generations of the Schreiner family: W.P. Schreiner (one-time Prime Minister of the Cape Colony), Justice O.D. Schreiner (judge of the Appellate Division of the Supreme Court) and Professor G.D.L. Schreiner (scientist, academic, liberal and early conceptualiser of alternative models to apartheid). All three were involved in developing, defending and sustaining liberal policies and values in South Africa from the late 19th century until the advent of democracy in 1994. The clarifications and contradictions within and between oral and written sources are examined, and individual cases are discussed in which they are highlighted. The research sources include family papers, official archives, publications and, crucially, oral testimony. The oral testimony includes formal and informal interviews. This study is a contribution to the history of a family, a university and a set of values. It covers a long period in South African history during which colonialism tightened into apartheid, resistance developed and the eventual vision of a democratic South Africa came to fruition.Contribution: The primary scientific contribution is the exploration of liberal policies and values in South African political and academic history through the prism of biography. Methodologically, the article discusses possible shortcomings with oral testimony when relied on as a sole source and examines how oral evidence can be utilised in conjunction with research based on archival and published sources to develop a fuller and more nuanced picture in biographical research.

Vonnisbespreking: Die tragiese gevolge van onbevoegde polisie-optrede – die hof maak (te) korte mette met flou verskonings

Vonnisbespreking: Die tragiese gevolge van onbevoegde polisie-optrede – die hof maak (te) korte mette met flou verskonings

Analytical Study of the Existing Law and Reported Case Decision Regarding Deceptive Similarity of Trademark Infringement

The write up basically deals with the existing law and reported case decision regarding infringement of a trademark for deceptive similarity and confusion among the consumers. The Trademark Act 2009 provides that a mark should be distinctive and it will not be deceptively similar to other trademarks and it does not provide any test to measure deceptive similarity. At the time of deciding the dispute between two parties in respect of infringement for deceptive similarity how the court take their decision by considering what circumstances? Through this write up I have tried to find out whether there is any ambiguity or not in the decision of the court, and whether the decision of the court varies in same situation or not. If varies on what circumstances it is varied. At the time of taking the decision on whether the court considers all the possible facts to measure deceptiveness or not. After analyzing the cases, which are in respect of deceptive similarity filed before the High Court Division and Appellate Division of the Supreme Court of Bangladesh and also the cases of other countries, I found that there is no scale to test the deceptiveness. Deceptiveness is measured by considering the factual circumstances and it varies from case to case even if the same situation arises. Finally, I recommend that there must have a guideline to test the deceptiveness. All the possible factors should be included in this list so that the court can consider all the facts at the time of taking their decision.

Analytical Study of the Existing Law and Reported Case Decision Regarding Deceptive Similarity of Trademark Infringement

The write up basically deals with the existing law and reported case decision regarding infringement of a trademark for deceptive similarity and confusion among the consumers. The Trademark Act 2009 provides that a mark should be distinctive and it will not be deceptively similar with other trademark and it does not provide any test to measure deceptive similarity. At the time of deciding the dispute between two parties in respect of infringement for deceptive similarity how the court take their decision by considering what circumstances. Through this write up I have tried to find out whether there is any ambiguity or not in the decision of the court, whether the decision of the court varies in same situation or not. If varies on what circumstances it is varied. At the time of taking decision whether the court consider all the possible facts to measure deceptiveness or not. After analyzing the cases, which are in respect of deceptive similarity filed before the high Court Division and Appellate division of Supreme Court of Bangladesh and also the cases of others countries, I found that there is no scale to test the deceptiveness. The deceptiveness is measured by considering the factual circumstances and it varies case to case even if same situation arises. Finally I recommend that there must have a guideline to test the deceptiveness. All the possible factors should be included in this list so that the court can consider all the facts at the time of taking their decision.

LEGAL PLURALISM IN SOUTH AFRICA: THE RESILIENCE OF TRANSKEI’S SEPARATE LEGAL STATUS IN THE FIELD OF CRIMINAL LAW

The Transkei Penal Code was enacted by the parliament of the Cape of Good Hope as Act 24 of 1886. It was part of the mechanisms devised for governance of the area between the Kei River in the west and the Mtamvuma river on the Natal border, and to which the name Transkei was given. It was drawn up by lawyers trained in English law and it therefore watered down the influence of Roman-Dutch law in the Transkei region of South Africa.The code exerted enormous influence on South African law itself. As a result the judges of the Supreme Court of South Africa (as it then was) in numerous cases heard in different parts of South Africa, repeatedly said that the South African law on a point in issue was as laid down in the Transkei Penal Code. The power of the Penal Code continued to be evident in Appellate Division decisions as recently as 1988. When Transkei became independent (in 1976) she revised the code and passed the Transkei Penal Code Act 9 of 1983. More than ten years after the reincorporation of Transkei into the new South Africa this Code remains of full force and effect. In 2004 an effort by the National Directorate of Public Prosecutions to have criminal charges in Transkei framed under the common law and no longer under the Code, was thwarted by the Transkei High Court which ruled that only an Act of Parliament could alter the position.

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

Die matigende rol van die waardes onderliggend aan die grondwet in die Suid-Afrikaanse kontraktereg

With the adoption of the interim constitution in 1993, much was made of the transformative function which the new constitution, and more particularly, the bill of rights, would fulfil. There were calls to reform the law of contract, whether by means of codification, piecemeal legislation or judicial reform. This contribution focuses on judicial reform of the law of contract and the apparent lack of change since the advent of the new constitutional dispensation. The search for a means to mitigate the strict application of the law of contract is not new. The Romans found that strict application of the law of contract could sometimes lead to unfair results. Eventually, Roman law developed a remedy, known as the exceptio doli, to mitigate the strict application of the law of contract. The courts in South Africa, from the outset, had to deal with instances where strict application of the law of contract would apparently lead to harsh results. To this end, the courts also turned to the Roman exceptio doli, but eventually, the appellate division ruled in Bank of Lisbon and South Africa Ltd v De Ornelas (1988 3 SA 580 (A)) that the exceptio doli is not part of the South African law of contract. Since then, and particularly since the advent of the new constitutional dispensation, parties have sought to rely on the values underlying the constitution, good faith, reasonableness and equity, in an attempt to seek redress from what they viewed as the harsh effects of the law of contract. Some trends began to develop: firstly, in some instances, judges displayed a shocking lack of knowledge of the law of contract; secondly, parties or the courts sometimes unnecessarily invoked the constitution when the common law of contract would have produced the same result; thirdly, a clear pattern of conservative majority and liberal minority opinions emerged in judgments of the courts; and lastly, the courts have tended to follow an all-or-nothing approach to matters dealing with contracts. However, in a minority opinion in Beadica 231 CC v Trustees, Oregon Trust (2020 5 SA 247 (CC)), Froneman J proposed a more nuanced approach in terms of which contractual matters can be resolved by proportionate adjustment of the contract. This kind of approach has been followed in Germany and it is proposed that the German concept of ergänzende Vertragsauslegung can guide the courts in South Africa to give greater effect to the values underlying the constitution, good faith, reasonableness and equity.

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

Since the advent of the constitutional era, the law of contract and the maxim pacta sunt servanda have been the subject of much jurisprudential discourse. Restraint of trade agreements have, on occasion, been regarded by our courts as distinct from other contracts, with some judges believing that such contracts should be treated with more circumspection and outside the confines of the principles applicable in our law of contract. In Magna Alloys the Appellate Division laid down the general principle that, prima facie, contracts in restraint of trade are valid and enforceable. The employee bears the onus of showing that the restraint is unreasonable and contrary to public policy. Some jurists believe, however, that the application of constitutional principles requires a revision of our jurisprudence in relation to contracts in restraint of trade. This article analyses some of the judgments dealing with the concept of pacta sunt servanda and the application of constitutional values in the decision-making process, and shows that there is no need to cavil against the existing jurisprudence and to treat contracts in restraint of trade as sui generis or more stringently. Although most of the authorities quoted in this article deal with our law of contract in general, such principles have been held by the Supreme Court of Appeal and the Constitutional Court to apply equally to contracts in restraint of trade.

Brief for Amici Curiae, Shanghai Yongrun Investment Management Co., Ltd. v. Kashi Galaxy Venture Capital Co., Ltd.

This amicus brief argues that New York’s Appellate Division should reverse the Supreme Court’s decision to deny recognition and enforcement of a Chinese judgment on the ground that China lacks impartial tribunals and procedures compatible with due process. The brief makes three main arguments. First, the reasoning of the decision below would end the recognition and enforcement of Chinese judgments in New York State because it indicates that Chinese courts can never produce judgments entitled to recognition. Because other states adopting the Uniform Acts have the same ground for non-recognition in their laws, the effect of the Supreme Court’s decision may extend beyond New York. Second, the reasoning of the decision below applies to countries other than China. Country Reports on 141 other countries express concerns about judicial independence or corruption similar to those on which the Supreme Court relied. Third, the decision below would likely end the recognition and enforcement of U.S. judgments in China. China has recognized U.S. judgments based on reciprocity, but such reciprocity will be difficult to maintain in the face of a decision condemning the Chinese judicial system as incapable of ever producing a judgment entitled to recognition.

INCOME TAX: GROSS INCOME – CAPITAL VERSUS REVENUE, PROFIT-MAKING SCHEME OR FIXED/FLOATING-CAPITAL TEST?

The question of whether a receipt or accrual is of a capital nature or not has vexed the courts, legal minds and tax advisors for years. Simplifying or limiting the tests would provide greater certainty. According to some writers, the case of CIR v Pick ’n PayEmployee Share Purchase Trust (1992 4 SA 39 (A), 54 SATC 271, hereinafter “Pick ’n Pay”) seems to have finally limited the test incapital/revenue cases to the “profit-making scheme” test. However, in subsequent cases there is no suggestion that the scheme ofprofit-making test is the sole test. In Berea Park Avenue Properties (Pty) Ltd v CIR (1995 2 SA 11, 57 SATC 167) it is clear that the Appellate Division (as it then was) considered a profit-making scheme and trading stock in one breath, so to speak. In SARS v Knuth and Industrial Mouldings (Pty) Ltd (1999 62 SATC 65), a case heard in the Eastern Cape Provincial Division of the High Court dealt with the proceeds of the sale of shares. The case was concerned with the floating versus fixed-capital test, and Leach J opined (72) that the distinction“is often referred to in tax cases and can now be regarded as entrenched in our law”. Leach J referred to Pick ’n Pay, but only to the extent that sound commercial and good sense should prevail in selecting the tests applicable. It was held in Pick ’n Pay that if there is no trading then there can be no floating capital. The trading stock definition was not considered in the majority judgment. The profit-making scheme test is only one way of establishing that an asset is trading stock. An asset acquired for the purpose of sale is tradingstock and the proceeds are gross income. That should, it is submitted, be the basis on which capital/revenue cases are decided. The scheme of the profit-making test is but one method of establishing intention at acquisition. It is submitted that the intention to make a profit, inherent in the concept of a profit-making scheme, is not essential to establish trading. “Gross income” is receipts and accruals, not profits. The majority judgment in this case is, it is submitted, flawed in that it did not consider this reality. For years the courts have vacillated between the “floating capital/fixed capital” and “profit-making scheme” tests to establish whether the proceeds of the disposal of an asset is of a capital or revenue nature for the purpose of establishing gross income as defined in the Income Tax Act 58 of 1962. Pick ’n Pay seems to have finally limited the test of whether proceeds are of a capital or revenue nature to the “profit-making scheme” test. This note questions that submission by examining the concepts and application of the two tests, trading stock, Pick ’n Pay and subsequent capital/revenue cases.

JUDICIAL RECOGNITION OF THE APPLICATION OF THE MAXIM RES IPSA LOQUITUR TO A CASE OF MEDICAL NEGLIGENCE Lungile Ntsele v MEC for Health, Gauteng Provincial Government (unreported as yet, Case Number: 2009/52394 (GSJ) dated 24 October 2012)

It is trite law, in context of medical negligence, that the onus of establishing civil liability on the doctor’s part lies with the patient and liability must be established on a preponderance of probabilities. It is to be noted that, should the plaintiff be unable to prove his/her case on a preponderance of probabilities, judgment will be given in favour of the defendant; a court may, however, also order absolution fromthe instance. In delict, the plaintiff bears the onus to prove a wrongful act/omission on the part of the physician, as well as the element of fault (in the form of negligence) and that the act or omission caused him to suffer damages or personal injury. Where a defendant raises a special defence such as consent, contributory negligence or prescription, the onus of proof will be on the defendant. Generally, however, the application of the maxim of res ipsa loquitur is treated by the courts as a particular form of inferential reason, requiring careful scrutiny and giving rise to an inference of negligence rather than a presumption of negligence. The South African courts thus far have been reluctant to apply the maxim to cases of medical negligence, despite persuasive legal arguments that have been put forward that the maxim should be applied in specific circumstances with regard to the proof of medical negligence. In this respect general principles for the effective application of the maxim in cases of medical negligence, are, inter alia, that principles of procedural equality and constitutional considerations dictate that the maxim be applied in cases of medical negligence. It is for this reason that the present judgment under discussion (in tandem with s 27 of the Constitution) is instructive, despite the majority judgment of the Appellate Division (as it wasthen) in 1924, in Van Wyk v Lewis (supra), where it was held that the maxim does not find application in cases of medical negligence.

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE KELLY AND POSTLE DECISIONS

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE <i>KELLY</i> AND <i>POSTLE</i> DECISIONS

Judicial self-dealing and unconstitutional constitutional amendments in South Asia

Abstract Courts around the world today are empowered to strike down unconstitutional constitutional amendments. But can a court strike down amendments that restore parts of the original constitution? The Appellate Division of the Bangladesh Supreme Court did precisely this in Bangladesh v. Asaduzzaman Siddiqui (2017), holding unconstitutional an amendment that restored the judicial removal provision that existed in the original 1972 Constitution. This article analyzes Siddiqui within the comparative constitutional amendment literature and the broader South Asian context. Despite the apparent incongruity of applying the basic structure doctrine to an original constitutional provision, we argue that Siddiqui is defensible on both theoretical and pragmatic grounds. The amendment that was invalidated in this case represented an unconstitutional departure from the judicial removal practice that had existed for several decades and was entrenched by a previous amendment, which “dismembered” the original constitution and safeguarded constitutional democracy in Bangladesh. At a regional level, Siddiqui is similar to recent judgments in India and Pakistan in which apex courts assert their control and limit political influence in judicial appointment and removal proceedings. Such judicial self-dealing, we argue, is more justified in Bangladesh and Pakistan than in India due to their checkered histories with democracy and political interference with judicial functions.

Insular State Tax Exemption Held Valid in Commerce Clause Challenge

The Supreme Court of New York, Appellate Division, by opinion dated February 10, held that a New York State tax exemption, available only to nonprofit organizations incorporated in the state, does not constitute a violation of dormant Commerce Clause constitutional law principles (Trenton Business Assistance Corp. v. O'Connell et al.).

Length of Emergency Department Confinement for Psychiatric Patients

In Massachusetts General Hospital v. C.R. , 142 N.E.3d 545 (Mass. 2020), the Massachusetts Supreme Judicial Court reversed the decision of the Appellate Division of the Boston Municipal Court. The appeal pertained to two separate provisions under Mass. Gen. Law ch. 123 § 12 (2018). The first

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

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

Planting Seeds for the Future: Dissenting Judgments and the Bridge from the Past to the Present

The principal focus of this contribution concerns five cases involving questions of public law, namely the meaning of discrimination; the meaning of public power and its control; whether administrative actions may be reviewed for unreasonableness; the rights of prisoners; and the control of emergency powers in the face of an ouster clause. All five cases were decided in the Appellate Division of the Supreme Court of South Africa, now known as the Supreme Court of Appeal, and all were decided prior to 1994: in 1934, 1958, 1976, 1979 and 1988. In each, a dissenting judgment was delivered that articulated values that we today associate with our present democratic Constitution. Before dealing with those cases in detail, it is necessary to say something about the connection between the pre- and post-1994 law, and then to consider the role of some dissenting judgments in the development of the law.

Judicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia

Courts around the world today are empowered to strike down unconstitutional constitutional amendments. But can a court strike down amendments that restore parts of the original constitution? The Appellate Division of the Bangladesh Supreme Court did precisely this in Bangladesh v. Asaduzzaman Siddiqui (2017), holding unconstitutional an amendment that restored the judicial removal provision that existed in the original 1972 Constitution. This article analyzes Siddiqui within the comparative constitutional amendment literature and the broader South Asian context. Despite the apparent incongruity of applying the basic structure doctrine to an original constitutional provision, we argue that Siddiqui is defensible on both theoretical and pragmatic grounds. The amendment that was invalidated in this case represented an unconstitutional departure from the judicial removal practice that had existed for several decades and was entrenched by a previous amendment, which “dismembered” the original constitution and safeguarded constitutional democracy in Bangladesh. At a regional level, Siddiqui is similar to recent judgments in India and Pakistan in which apex courts assert their control and limit political influence in judicial appointment and removal proceedings. Such judicial self-dealing, we argue, is more justified in Bangladesh and Pakistan than in India due to their checkered histories with democracy and political interference with judicial functions.