South African Court Research Articles

SENTENCING OF PATHOLOGICAL GAMBLERS IN CANADA. LESSONS FOR SOUTH AFRICA?

The focus of this note is on one specific type of sentencing, what is called “conditional sentence” in Canada, and “correctional supervision” in South Africa. The principles relating to this form of punishment in the two legal systems are again similar. It is a community-based punishment aimed at keeping the offender out of prison, and within society under strict conditions. The conditions in each case obviously depend on the circumstances of the case. In South Africa the measures mostly include house arrest, community service, monitoring and treatment. The choice of conditions in the Canadian legislation is wider, but includes a report to a supervisor, community service and attendance of a treatment programme (s 742.3 of the Canadian Criminal Code). The importance of this type of sentence for pathological gamblers is borne out by the fact that there is generally no need for these offenders to be removed from society. They are seldom violent, are susceptible to treatment outside the prison system and as such are capable of being rehabilitated. It is suggested that pathological gamblers in South Africa should, unless the seriousness of the crime demands otherwise, be sentenced to correctional supervision. This is the approach of the Canadian courts and should be the approach adopted by the South African courts.

The status of the African Charter on Human and Peoples’ Rights under the South African legal system

The relationship between international law and South African legal order has been much examined. However, that of the African Charter on Human and Peoples’ Rights and the South African legal system has not been seriously explored. Therefore, this article examines the status of the African Charter under the South African legal system. It adopts a doctrinal approach and analyses ss 231(4), 231(5) and 232 of the Constitution of the Republic of South Africa, 1996 within the context of South African law and international human rights norms in Africa; and how South African courts have treated the African Charter. It finds that the African Charter has not been enacted into law under s 231(4), implying that it does not operate in South Africa and that South African courts have not seriously regarded the African Charter. Nonetheless, it argues that the Charter directly operates in South Africa under s 231(5) as a deemed Act and as customary international law under s 232. It further argues that the Charter as a deemed Act is inferior to the Constitution, maintains a co-ordinate status with other Acts implementing human rights treaties, higher in status than other Acts implementing other treaties and ordinary Acts. As customary international law, the Charter is inferior to the Constitution and statutes but higher than common law. Both the Charter as a deemed Act and as customary international law operate at the same time in South Africa. It concludes that the African Charter is a statute in South Africa and that South African courts have no choice but to apply it when required.

Transitioning Old Order Mining Rights into New Mining Rights: A Critical Analysis

The transformation of the mining industry has been a recurrent issue since the drafting of the Freedom Charter of 1955 and the dawn of democracy. Transformation had to be promoted through the development of the law, including the transitioning of the old mining rights into the new mining rights by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This paper focusses on the transition from the previous South African mining law in its historical context to the MPRDA, and the developments which brought it about, including various developments in law which assist in understanding the scope and limitations of the transition. The analysis clarifies the present position in our law associated with mining rights as well as how to deal with disputes arising out of it. The South African courts are critical in the interpretation of the transitional law and how it should apply. The judicial perspective on the development of the transitional law is empirically analysed.

The abuse of the beneficial ownership of trusts to conceal assets in insolvency and divorce proceedings: a South African study

PurposePrevious research has indicated that trusts are used to commit various economic crimes, but limited studies examine the exact method of how trusts are abused. This paper aims to determine how trusts are abused to conceal assets in insolvency and divorce proceedings. Apart from discussing how fraudulent trusts are evaluated by South African courts, two court cases will also be analysed to determine how trusts have been abused in the past to conceal assets in insolvency and divorce proceedings.Design/methodology/approachThe methodology used is a literature study, predominantly using court cases and relevant statutes as the primary sources of information. The difference between a sham and alter ego trust is discussed, whereafter two court cases are dissected to identify how trusts have been abused to conceal assets.FindingsThe study found that trusts can be abused in different ways to conceal assets in insolvency and divorce proceedings. This can vary from the way the trust is established to the way the trust is used. But trusts are particularly susceptible to abuse when there is no separation between the ownership and enjoyment of trust assets, and the trust lacks independent trustees.Originality/valueThe research finding can be used to better understand how trusts are abused in divorce and insolvency proceedings.

Overriding Mandatory Rules Applicable to International Sales of Goods: Evidence from South Africa

In private international law of contract, the law regulating the rights and obligations of contracting parties may (whether objectively determined or chosen by the parties), in some instances, be limited by either public policy considerations or other relevant mandatory rules. In this regard, the public policy and the overriding mandatory rules of three places – that of the forum state, the applicable law (if different from the lex fori) and the law of the place of performance (or a third state with relevant connection to the contract) – have been considered by both jurists and scholars as being important. However, this article is limited to matters concerning choice of law rules on overriding mandatory provisions (but not public policy considerations). This article assesses the various private international law rules utilised by the South African courts in ascertaining which overriding mandatory provisions must apply to international contracts for the sale of goods. The aim is to adopt a general private international law of contract rule that effectively addresses the difficulty in determining the state, whose overriding mandatory provisions may legitimately claim application over certain relevant issues in international sales contracts. To this end, the article considers the general application of the overriding mandatory rules of the forum and that of the applicable law state (lex causae) to determine if these laws may legitimately by applied to contracts as it is practiced by some courts. Thereafter, the article considers the application of the overriding mandatory rules of the place of performance (locus solutionis) or other relevant third states and demonstrate that it is the overriding mandatory provisions of “a relevant state” that may legitimately derogate the application of certain provisions of the proper law of an international contract.

Rights claims of citizen children of foreign national parents in South Africa, the UK, and the European Court of Human Rights: hierarchies of ‘illegality’ and deservingness

Abstract This article examines the South African High Court judgement in TR & others v Minister of Home Affairs & others, which is the first time that a South African court has addressed the constitutional rights of children in the immigration context. In this case, constitutional rights claims were made by South African citizen children because South African immigration law deemed a foreign national parent to be an ‘illegal alien’, subject to expulsion, as soon their spousal relationship with a South African citizen had broken down. The law allowed no other outcome, other than expulsion, regardless of the impact on the affected children. We argue, therefore, that although the High Court deployed the language of children’s dignity and best interests, TR is not really a decision about children at all. Instead, it is a judgement about whether the parents’ deserved the status of ‘illegality’, and its consequences, which had been imposed by South African immigration law. This focus on the deservingness of the parents, rather than the best interests of the children, can be found in other jurisdictions and this article explores how the law deals with similar circumstances in the UK and the European Court of Human Rights. This article concludes by arguing that Article 3 CRC requires that ‘the sins and traumas of fathers and mothers should not be visited on their children’ and that this should be foundational to the best interests of the child provision in the South African constitution in the immigration context.

CERTAINTY ESTABLISHED: MAJORITARIANISM TRUMPS MINORITY, PASSES CONSTITUTIONAL MUSTER, AND ACCORDS WITH INTERNATIONAL STANDARDS Association of Mineworkers and Construction v Royal Bafokeng Platinum Limited [2020] ZAAC 1

South African courts have recognised majoritarianism to mean that the will of the majority is favoured over the will of the minority in serving the legislative goals of advancing labour peace, orderly collective bargaining, and the democratisation of the workplace. Yet a fundamental problem arising from majoritarianism is the possibility that the rights of the minority could be violated. This case involves the retrenchments in South Africa when a firm elects to dismiss part of its labour force for operational reasons. This procedure frequently arises without warning. Generally, it has devastating consequences and leaves certain employees out of work through no fault of their own. That is exactly what happened in Association of Mineworkers and Construction v Royal Bafokeng Platinum Limited [2020] ZACC 1.Against this backdrop, this case note addresses two issues. First, it explores the constitutionality of procedural fairness during retrenchments; second, it assesses the International Labour Organisation’s Committee of the Freedom of Association (ILO-CFA) Report on this matter against the decision of the Committee.

Customary international law is law in South Africa — Now what? Analysing the courts’ identification and application of customary international law over the last decade

Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.

The unfortunate dearth of judicial precedent in transfer pricing continues

Despite what could be hailed as the first two transfer pricing cases in South Africa, the unfortunate dearth of judicial precedent in South Africa regrettably continues. Transfer pricing is one of the most complex areas of tax alongside provisions dealing with controlled foreign companies, foreign exchange gains and losses, currency conversions, financial instruments, and corporate reorganisations. In fact, as the list goes on, it is just more apposite to say ‘tax is complex’, period. With regard to transfer pricing in particular, the complexity is amplified by the fact that transfer pricing is not even tax per se. It is an economic allocation of contribution through the value chain. It is through transfer pricing that each contributor in the value chain gets an adequate return for their contribution in the value chain. Once that allocation is complete, the tax provisions are applied to the returns of each contributor according to the tax laws of the countries in which they are taxable. A transfer price is a price set by a taxpayer when selling to, buying from or sharing resources with a related person. A transfer price is contrasted with a market price, which is the price set in the marketplace for the transfer of goods and services between unrelated persons where each party strives to get the utmost possible benefit from the transaction (see Arnold & McIntyre, International Tax Primer (Kluwer Law International 2002) 55; Danzinger, International Income Tax (Butterworths 1991) 303–307). Transfer prices are not negotiated in a free open market and as such have the propensity to deviate from prices agreed upon by non-related trading partners in comparable transactions under the same circumstances (Oguttu, International Tax Law: Offshore Tax Avoidance in South Africa (Juta 2015) 213). Unless prevented from doing so, related persons engaged in cross-border transactions can avoid the income taxes of a country through a manipulation of prices, mainly by shifting profits to low tax countries and expenses to high tax countries. To combat this, tax authorities across the globe have the power to adjust, in appropriate cases, the transfer prices set by related persons (Arnold & McIntyre, (Kluwer 2002) 55. In what can be welcomed as the first transfer pricing case in the South African courts, the South Johannesburg High Court had an opportunity to decide on the applicability of s 31(7) of the Income Tax Act 58 of 1962 (‘the Act’; any reference to a section or subsection are to the Act, unless otherwise stated, or the context indicates otherwise) to a debt owed by a foreign company to a South African company. The applicable provision excludes debt instruments that contain core characteristics of debt instruments from the application of transfer pricing provisions. In the second case, the same court missed out on an opportunity to gauge the legitimacy of the revenue collector to use s 31(2) of the Act to adjust prices charged between a taxpayer and third parties that are not related to the taxpayer.

Transitioning Old Order Mining Rights into New Mining Rights: A Critical Analysis

The transformation of the mining industry has been a recurrent issue since the drafting of the Freedom Charter of 1955 and the dawn of democracy. Transformation had to be promoted through the development of the law, including the transitioning of the old mining rights into the new mining rights by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This paper focusses on the transition from the previous South African mining law in its historical context to the MPRDA, and the developments which brought it about, including various developments in law which assist in understanding the scope and limitations of the transition. The analysis clarifies the present position in our law associated with mining rights as well as how to deal with disputes arising out of it. The South African courts are critical in the interpretation of the transitional law and how it should apply. The judicial perspective on the development of the transitional law is empirically analysed. Keywords: Mining law; transition; transitional law; mining rights; Minerals and Petroleum Resources Development Act

Aantekeninge: An update of recent labour law developments from South African courts 2023

Aantekeninge: An update of recent labour law developments from South African courts 2023

Policing the Onion Router (Tor) crypto-markets on the dark web: An analysis of South African investigatory powers

Emerging financial technology (fintech), such as cryptocurrencies and privacy-enhancing technology (pets) such as the Onion Router (Tor), enable varying levels of anonymity or pseudonymity based on underlying encryption algorithms. These technologies are increasingly exploited by cybercriminals for nefarious purposes on the dark web. This has resulted in the so-called tor crypto-markets that facilitate ‘digital organised crime.’ Thus, albeit not inherently criminogenic, encryption constitutes a barrier to criminal investigation. This article discusses two specific methods that police use to investigate and prosecute criminals operating on the dark web, through the use of hacking tools in the context of: (1) online undercover cybersurveillance operations; and (2) remote search and seizure. These methods differ in both scope and complexity and, importantly, bear distinct legal, technical, and ethical consequences that have yet to confront South African courts. As a result, these methods, in the context of dark web investigations, have not previously been considered in South African literature, but have received significant analysis in the United States, the Netherlands, and Australia. These methods will be discussed in the context of South African investigatory powers in order to determine whether there is a legal basis for its operation.

The actuary as amicus curiae

The role of an amicus curiae as a party to litigation is closely linked to promoting constitutional values and protecting the public interest. There is no question that interventions by amici curiae have played a critical role in aiding the judiciary in many public interest cases. The Actuarial Society of South Africa is prioritising its focus on advancing issues of public interest and serving a broader spectrum of the populace. However, it has yet to utilise this specific mechanism to manifest this mandate. The Actuarial Society of South Africa can provide a numerical perspective on various rights disputes deriving from the Constitution. In contrast, the courts have asked other professional bodies, such as the South African Institute of Chartered Accountants, to join proceedings. Actuarial bodies, particularly those in the United States of America, are actively involved in public interest matters and occasionally join amicus curiae proceedings. Following an exploration of the use of amici curiae in South African and African courts, this paper seeks to identify a test case where the Actuarial Society of South Africa may join proceedings as a friend of the court. The mechanism and procedure for joining the court as an amicus curiae and the risks and benefits of joining proceedings are examined.

Scope of Protection: A retrospective and prospective overview of the Protected Disclosures Act 2000

Following South Africa’s transition to democratic rule, numerous whistle-blowers have raised the alarm regarding corruption and improprieties at work, in both the private and public sectors. To prevent the negative consequences of whistleblowing, the Protected Disclosure Act, 2000 came into force in February 2001 and was subsequently amended in 2017. However, despite the existence of this law, the sometimes-devastating consequences that have followed disclosures have led to debates on legal protection or rather, the lack thereof of whistle-blowers. This article therefore aims to reflect on how South African courts, have interpreted the protection provided by this Act for whistle-blowers. More particularly, issues concerning the meaning of disclosure, meaning of good faith and the nature of compensation that the courts have awarded are highlighted.

Recognition of Language Rights in South Africa: Innovation or Dismal Failure?

One of the main goals of the Constitution of the Republic of South Africa, 1996 is to bring about transformation within South African society. The new Constitution recognised no less than eleven languages as official languages, including various previously neglected indigenous languages. Where only two languages were previously recognised as official languages under the apartheid regime, this was replaced with a range of languages. However, South African government bodies do not always follow the Constitution’s language obligations; public higher education institutions have nearly all eliminated tuition in languages other than English; and legislation is rarely (if ever) issued in other official languages. The present paper shows how the recognition and use of languages in South Africa differs significantly in theory and in practice. The paper highlights this disparity by first laying out South Africa’s constitutional and legislative framework for official language recognition and use with regard to two issues, namely translation of legislation and the use of languages in higher education. Second, the paper looks at various rulings from South African courts that shows how official languages are used in practice and how language issues have been resolved by the courts. Third, the paper concludes that, rather than becoming a beacon of innovation, the South African Constitution’s language provisions have become a terrible failure. Finally, the paper offers several suggestions for dealing with this sad predicament.

The Promotion of Access to Justice through the Constitutional Development of the Doctrine of Forum Non Conveniens

South African jurisdictional principles governing cross-border litigation have seen minor development in recent years and as such, remained feudal and anachronistic. It is essential for South African courts to be equipped with the necessary jurisdictional powers to assume and exercise jurisdiction in disputes concerning its own citizens against foreign multinational corporations. This article aims to propose a way forward, centred around the constitutional reform of the South African doctrine of forum non conveniens, in a manner that advances sustainable and equitable legal development, while also simultaneously promoting the principle of transformative constitutionalism and the right of access to courts. To produce sustainable and viable solutions, a comparative analysis of both the principles of private international law and the proposed reform of the doctrine in comparable jurisdictions is undertaken. The effect of any associated international agreements and instruments applicable to these jurisdictions that may have an impact on or insight into the way forward is also examined. It is hoped that this article will result in a meaningful contribution to the discourse on the development of the jurisdictional principles of South African law, to achieve access to justice for all within Southern Africa and the African continent as a whole.

Primary Connecting Factors Considered by South African Courts to Determine the Applicable Law of International Contracts on the Sale of Goods

Issues on choice of law are sometimes very complex, and the resulting outcome may be determinative of most litigations. This is especially true where the litigation concerns cross-border transactions involving states with diverse laws and different legal traditions. Thus, it is important for parties to be able to accurately predict the applicable law of their international sales contract in advance to enable them to plan the activities relating to their contracts with certainty. The existence of uncertainty with regard to the applicable law in most legal systems (especially at common law) makes it difficult for contracting parties to plan or resolve disputes that may arise from their commercial contracts, either by themselves or by the court. This situation is an unpleasant one which presents an undesirable state of affairs to the business world. At common law, although it is true that the legal certainty required with respect to the applicable law of international commercial contracts can be achieved by a choice of law clause, it should be noted that most of such contracts do not contain this clause. This article attempts to contribute to existing literature on choice of law for contract in South Africa and also provide solutions, based on the underlying principles of private international law of contract, that effectively address the uncertainty in this area of law. To achieve its task, the article examines the various connecting factors considered by the South African courts in determining the applicable law (also, the proper law or governing law) of international contracts in situations where the parties do not insert a choice of law clause in their international contracts for sale of goods. The factors considered in this regard include the place of conclusion of contract, domicile, habitual residence and place of performance. These factors, in most situations, serve as the primary connecting factors considered by the courts in arriving at an answer with regard to the objective proper law/applicable law of an international sale contract (and other international commercial contracts) in South Africa. Further, the article examines why it is important for South African courts, and common law courts in general, to even go through the exercise of determining the applicable law in matters of international commercial disputes and not simply rely on the lex fori in dealing with such litigations (since, a lex fori approach might be much easier).

The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South Africa – Part Two: Pragmatic Distinction between Real Rights and Personal Rights

The second part of this article deals with the pragmatic approach of the South African courts to determine whether a right is real and, therefore, registrable in the deeds registry. The courts use a two-fold test to distinguish between real and personal rights, namely the subtraction from the dominium test and the intention test. It is indicated that the first test focuses on the impact of the right under investigation upon ownership while the second test focuses on the intention of the parties regarding the nature of the right when it was created. The application of the subtraction from the dominium test by the courts is discussed against the backdrop of a newly suggested classification of entitlements of ownership of land that are relevant within the context of the registrability of real rights. It is concluded that the common law distinctions between personal and real rights, and between ownership and limited real rights, still provide a solid conceptual basis in post-apartheid South African property theory.

A review of judicial enforcement of arbitral awards in South Africa

AbstractThis article postulates the constitutional ethos of upholding contracts entered between parties on the principle of good faith in practice. This is aligned to the international principle of respecting party autonomy between parties in court. A party cannot easily negate upon a contract that stipulates that a dispute must be referred to arbitration and furthermore that the arbitration award is binding upon the parties and not subject to appeal. This article aims to discuss that there is judicial enforcement of arbitral awards in South African courts. There is no distinction between national and international enforcement of arbitral awards. The principle of party autonomy is the cornerstone of the enforcement of arbitral awards. From a South Africa perspective, both national and international legislation supports the recognition and enforcement of arbitral awards. This article elucidates the intricacies of the enforcement of arbitral awards and the protection of party's interests to the proceedings. This article explores the consequences of the antithetical approach to arbitration agreements and proceedings. The judiciary's practice is to uphold the contractual principle of consensus between the parties, as opposed to allowing parties to walk away from awards on frivolous reasons and renegading upon contractual terms.

A Culture of Exclusion: Re-Configuring Inclusive Education in South Africa

Abstract The realisation of the right to education under the South African Constitution remains complex despite progressive legislation and a supportive policy framework. The complexity has highlighted the continued cultural and structural inequality of the South African public schooling system. Specifically, inclusive education and its support for learners experiencing barriers to learning illustrate the contested nature of this right, with many of these learners remaining marginalised. This article explores the concept of inclusive education as it relates to the broader contextual framework of the South African right to education. It highlights the shortcomings of the South African Schools Act 84 of 1996, in supporting authoritarian management through School Governing Bodies that has eroded the intended purpose of the Act as a beacon of community participation and transparent decision making. Key to the analysis, is establishing how South African courts have assisted learners experiencing barriers to learning, and how litigating access to public schools in challenging the policy prescripts of School Governing Bodies have hindered the implementation of inclusive education.