South African Law Research Articles

SOME NOTABLE DIVERGENCES IN THE DEVELOPMENT OF SOUTH AFRICAN AND NAMIBIAN INSOLVENCY LAW

It is a well-known fact that the legal systems of South Africa and Namibia, or rather the former South West Africa, were rather identical until the advent of independence of the latter on 21 March 1990. This note thus deals with aspects of the development of insolvency law in South Africa and Namibia since Namibia became independent. What is also important is the fact that both Namibia and South Africa adopted a constitution that is based on a Bill of Rights (see the Constitution of the Republic of Namibia of 1990 and the South African Constitution of 1996). Some developments in insolvency law based on these features are therefore also considered in this note. As indicated, upon independence Namibia retained significant portions of South African law including its legislation. Owing to the shared background of Roman-Dutch-law and English-law influences, both Namibia and South Africa can still be classified as having mixed legal systems. Like South Africa, Namibian insolvency law is not contained in one single statute although it is still largely regulated by the South African inherited Insolvency Act 24 of 1936 (hereinafter “the Insolvency Act”), which deals first and foremost with the sequestration of individuals and related matters. Namibia also inherited the South African Companies Act 61 of 1973 but the South African Close Corporations Act 69 of 1984 was largely adopted as the Close Corporation Act 26 of 1988 that came into operation on 25 July 1994. These pieces of legislation, amongst others, deal with the liquidation or winding-up of companies and close corporations respectively. Apart from these statutory enactments, precedents and common-law principles also apply in the absence of specific statutory provisions. The Insolvency Act of 1936, however, remains the principal source of both South African and Namibian insolvency law and the other enactments render certain provisions of the Insolvency Act applicable. At present and as far as the principles are still comparable, precedents set by South African and Namibian courts remain relevant in both jurisdictions. In order to align some of the terminology with structures and developments in Namibia, the 1936 Insolvency Act was amended in a number of respects by the Namibian Insolvency Amendment Act 12 of 2005. The wording of the Insolvency Act was also thereby amended to make it gender-friendly. However, when dealing with either system it is important to ascertain to what extent statutes that applied in both jurisdictions have been adopted, subsequently amended and/or replaced. The Namibian government has for instance introduced a new Companies Act 28 of 2004 that is bound to replace the South African-based Companies Act of 1973. Although a new insolvency statute is not in the pipeline in Namibia, an amendment act to the 1936 Insolvency Act has been published during 2005 (the 2004 Companies Act was assented to on 19 December 2004 but it will only come into operation once so proclaimed). In South Africa a new Companies Act 71 of 2008 has been introduced but it is also still due to come into operation. New insolvency legislation that will unify the insolvency of individuals and companies is on the table in South Africa but it is not clear when this process will come to fruition. Another general feature is that judgments of the South African and Namibian high courts are clearly still influential in both jurisdictions but as amendments and separate legal developments will deviate from the former common norm, judgments will clearly have to be treated with circumspect in future. In the absence of a comprehensive textbook dealing with the Namibian version of insolvency law, South African textbooks will remain of some use to that jurisdictions but also subject to the same qualifications expressed above.

ASSESSING THE WTO COMPLIANCE OF SELECTED ASPECTS OF SOUTH AFRICA’S INTERNATIONAL TRADE ADMINISTRATION AMENDMENT BILL

This article argues that while South Africa’s International Trade Administration Amendment Bill and the attendant proposed regulations may generally be regarded as a positive legislative intervention, to a large extent, the new regulatory regime goes against the spirit, object and purport of the World Trade Organization (WTO) anti-dumping agreement and is even in conflict with South Africa’s International Trade Administration Act itself. In order to substantiate the above reservations, this article first outlines the basics of WTO dumping and anti-dumping law before proceeding to point out aspects of South Africa’s anti-dumping law and practicewhich incorporate WTO tenets. With the aid of selected WTO disputes and examples from comparative WTO member states, this article also comments on selected impugned changes likely to be introduced by the Bill and the new regulations and concludes that the proposed new law is unlikely to be WTO compliant. This conclusion is premised on the fact that South African dumping and anti-dumping law relating to confidentiality, the process of conducting investigations, termination of investigations based on de minimis margins and interested party hearings does not always mimic the legal position as espoused in the WTO anti-dumping agreementand interpreted in selected WTO disputes.

PRIVATE INTERNATIONAL LAW / CONFLICT OF LAWS AND DIAMOND TRADE

Any researcher of South African diamond laws would find it inevitable that such research discusses the relationship between international diamond transactions and conflict of laws. This is particularly evident in cases where legal disputes have arisen pertaining to such transactions. This article will make reference to the terms “private international law” and “conflict of laws” interchangeably, although “conflict of laws” will be preferred for reasons of taste rather than logic. The aim of this paper is to illustrate the concept of conflict of laws in general and how it significantly impacts the manner in which courts will ultimately decide on the law to be applied in a matter possibly involving inter alia international diamond transactions. This demonstrates the consistent relevance of conflict of laws particularly in light of the global economy. The correct identification and understanding of conflict of laws’ principles can be stretched to accommodate all other areas of international trade. However, for the purposes of understanding how diamond trade is impacted by conflict of laws in South Africa, this paper will be limited to the legal context of diamond-relevant trade and the latest guidelines provided by our courts in relation to the choice of law in matters where conflict of laws has arisen.

THE INFLUENCE OF PLAIN LANGUAGE AND STRUCTURE ON THE READABILITY OF CONTRACTS

Contracts form an integral part of our existence, both in our work and personal environments. They are an unavoidable consequence of our participation in the commercial world. As such they are important since they will determine the distribution of wealth and power in society. South African law has always stuck religiously to the principles of freedom of contract and pacta sunt servanda. That is to say, everyone should have the utmost freedom to enter into contracts with whomever they please and once that agreement has been struck it must be adhered to. Through the application of these principles the law of contract obtained a high degree of certainty which is important for the parties to a contract because they know what their rights and obligations are. Furthermore they are safe in theknowledge that the contract is enforceable. While this may be an ideal situation we do not live in an ideal world. A large percentage of our society has had little contractual experience and even those that have are still regularly involved in contacts over which they have no control. Whilst consumers supposedly have freedom to contract, they very often have no leverage to negotiate the terms of the contract since a business will often make use of a standard form contract. As a consequence of this lack of bargaining power, consumers entering into contracts may not bother to read the terms since they are bound by them no matter what. Another reason is that they may be drafted and set out in such a way as to dissuade consumers from reading them.

A SHORT DISCUSSION ON THE EFFECTS OF THE IN DUPLUM RULE UPON COMMENCEMENT OF LITIGATION AND AFTER JUDGMENT: A VIEW BOTH “INSIDE” AND “OUTSIDE” THE NATIONAL CREDIT ACT

It has repeatedly been confirmed by the courts that the in duplum rule forms part of South African law, and more recently section 103(5) of the National Credit Act 34 of 2005 (hereinafter “the Act”) has concretized the rule into statutory form. This note examines the effects of the in duplum rule once the litigation process has been initiated by the creditor and the implications of the rule after judgment is granted against the debtor. Preceding such discussion, however, one needs first to consider whether South Africa still has a common-law in duplum rule, or whether the statutory in duplum rule has ousted the “old” rule in toto (for ease of reference andpracticality the rule as developed by the courts shall be referred to as the “common law rule” and the rule as set out in s 103(5) of the Act shall be referred to as the “statutory rule”). It is submitted that while the statutory rule has superseded the common law rule in terms of all credit agreements that fall within the jurisdiction or ambit of the Act there are those credit agreements that are not regulated by the Act and it is those credit agreements where the (“old”) common-law rule shall apply and regulate the interest component collectable by the creditor vis-a-vis the debtor. Thus the two rules must now operate together; both rules applying to different sectors of society; at least society whilst it wears its consumer cap. The codified in duplum rule as will be seen below – affects only natural persons and the juristic entity, as defined by the Act, remains to be protected by the common-law rule. Furthermore, the common-law rule will be applicable to those credit agreements which fall outside the auspices of the Act.

DIE MOONTLIKHEID VAN VERPLIGTE MIV-TOETSING VIR SEKSWERKERS IN SUID-AFRIKA NA DEKRIMINALISERING

At present, the possibility of the decriminalization of the sex trade enjoys serious consideration by the South African Law Commission. With the spread of HIV still a big concern in South Africa, this article investigates the constitutionality of compelling sex workers to undergo HIV-testing, should the sex trade be decriminalized. This is done by examining existing South African case law and legislation in the field of compulsory HIV-testing. The South African position is followed by a comparative study with Nevada (USA) and Victoria (Australia) where sex work has been practised as a legal occupation for several years. Authors are of the opinion that the legislationof both these countries set a good example for South Africa in combating the spread of HIV through the sex industry, once decriminalized.

THE BASIS OF COMMON ERROR

Not being one of the simplest areas of the law of contract, mistake has had somewhat of a chequered past. Although more recently commentators have noted that the legal position has by and large been settled, there remain anomalies surrounding the ascription of contractual responsibility in certain circumstances, such as whether liability should lie where a third party has caused a material mistake between contracting parties. What is further apparent is that the courts still at times have difficulty in applying the principles pertaining to error. But a type of mistake that evidently still poses conceptual and practical difficulties is common error. This note attempts to shed some light on the underpinnings of this doctrine against the backdrop of English law, which had a marked effect on its development in South African law.

SOME ADMINISTRATIVE LAW ASPECTS OF STATE REGULATION OF INSOLVENCY LAW REVISITED Musenwa v Master of the North Gauteng High Court (Unreported 54849/10) [2010] ZAGPPHC 190 (5 November 2010)

A general analysis of the global norms recognised by international institutions worldwide yields the conclusion that the essential proposition of insolvency practitioners in all systems is the same: that every effective insolvency system requires competent and ethical insolvency practitioners who should have the experience and expertise necessary to deal with the range of business and legal issues which arise in insolvency matters. In Standard Bank v The Master of the High Court (2010 4 SA 405 (SCA)) the Supreme Court of Appeal also held that liquidators occupy a position of trust towards creditors and companies in liquidation and that they are required to beindependent, to regard equally the interests of all creditors, and to carry out their duties without fear, favour or prejudice. This contribution is a discussion of the recent decision in Musenwa v Master of the North Gauteng High Court ((Unreported) 54849/10) [2010]ZAGPPHC 190 (5 November 2010)) in which the core issue was to decide on the competence and integrity of an insolvency practitioner in order to decide whether the Master of the High Court (Master) acted lawfully in removing the practitioner from its panel. The note will attempt to underline the importance of a fresh approach by policy and law makers to the concept of regulation of South African insolvency law.

DIE REGSTEORETIESE GRONDSLAG VAN DIE INTEGRASIEREËL IN DIE SUID-AFRIKAANSE KONTRAKTEREG

This article focuses on an extensive critical analysis of the legal-theoretical basis of the parol evidence rule in the South African law of contract. Certain conclusions will be made from such an analysis in terms of which it will be argued that the parol evidence rule qualifies as a legal rule and that it can therefore be validly abolished or modified by the legislature.

OF IMPLICATION, INSINUATION AND INCITEMENT R v Jones [2010] 3 All ER 1186 (CA)

Can the crime of incitement be committed by insinuation? Can a conversation about growing tomatoes by implication actually be aconversation about the crime of producing cannabis? These are the questions which arise from the recent English case of R v Jones ([2010] 3 All ER 1186 (CA)). Although the English law relating to the way in which encouraging crime is criminalised has recently changed, the similarities between the previous (common-law) position in England (which was the law to be applied in Jones) and the current South African law make for a useful comparison between these systems, and it is to this that we now turn.

Indigenous beliefs and customs, the South African criminal law, and human rights: identifying the issues*

ABSTRACT African Customary law and the South African common law enjoy equal recognition in the South African legal system. However, their equal status results in various conflict situations between them, especially in the South African criminal law. This paper shows that the indigenous belief in witchcraft (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the indigenous custom of ukuthwala, can result in the commission of common law and statutory crimes in South Africa. These are then known as “culturally motivated” crimes. In addition, this paper shows that the indigenous beliefs and custom above can also violate fundamental human rights entrenched in the South African Constitution. In this regard, this paper also outlines the consequences that an accused can face for infringing upon a victim’s fundamental human rights through the commission of a culturally motivated crime.

GOING GENTLY INTO THAT GOOD NIGHT: THE CONSTITUTIONALITY OF CONSENT IN CASES OF EUTHANASIA

Although consent is a justification ground in South African law, its applicability to cases of euthanasia has been the subject of controversy. It is submitted that relying on the distinction between omission and commission, or causation or intent will not prove useful in justifying mercy killing. In terms of the South African Constitution (and various human rights guaranteed therein), there may be compelling arguments for legalizing euthanasia. For instance, section 10 of the Constitution guarantees the right to dignity. A lack of control over your destiny essentially involves a loss of dignity. Further, the right to dignity and the qualified right to personal autonomy inform section 14: the right to privacy. This right holds that an individual can make certain fundamental private choices without state interference. Surely this would extend to how to end one’s life? This article advocates that a rights-based approach be used to inform the doctrine of consent. This would entail taking the victim’s shared responsibility into account thereby reducing the perpetrator’s fault.

THE NEED FOR A LEGAL-WRITING COURSE IN THE SOUTH AFRICAN LLB CURRICULUM

Students are generally unprepared to study law. Unpreparedness includes language and writing deficiencies. Legal-writing courses at law school only lay the foundation for these skills that have to be developed and improved over many years of practice. Law schools and the organized profession should accept joint responsibility for laying this foundation. A substantial part of most legal-writing courses must include language training. Legal writing is generally not regarded as necessary by many South African law faculties. The main challenge in the area of developing legal-writing courses in South Africa involves the fact that legal academics have not beenformally trained to teach language and writing. It is proposed that a course is introduced for law teachers in and that they undergo training that will enable law lecturers to present these courses themselves.

DEFINING THE RIGHT TO STRIKE: A COMPARATIVE ANALYSIS OF INTERNATIONAL LABOUR ORGANIZATION STANDARDS AND SOUTH AFRICAN LAW

The right to strike is a fundamental human right recognized in international law and the South African Constitution. If “strike” is defined too narrowly it would deny protection that would normally be given to employees who would otherwise be participating in a strike. On the other hand if “strike” were defined too broadly it would categorize as strike action that would not normally be regarded as a strike: thus subjecting these employees to serious consequences that result from participating in an unprotected strike. These may include dismissals, interdicts and claims for compensation. South Africa has a constitutional obligation to comply with international law when interpreting human rights. The purpose of this article is to determine whether South African law defines “strike” in compliance with International Labour Organisation standards and to make suggestions for amendments to the lawwhere it fails to do so.

STATE REGULATION OF SOUTH AFRICAN INSOLVENCY LAW – AN ADMINISTRATIVE LAW APPROACH

Although the Constitution must inform the way legislation is interpreted by the courts, there is currently no Constitutional Court decision or secondary source which deals directly with the application of the Constitution to state regulation in South African insolvency law. With regard to the role and function of the Master as well as any future state regulation in insolvency law, certainly the most significant development within the context of the Constitution is the enactment of the Promotion of Administrative Justice Act (PAJA) which gives effect to the principles envisaged in section 33 of the Constitution. The aim of this article is not to provide a detailedexposition or comprehensive overview of constitutional and administrative law, but rather to highlight the relevance and potential impact of certain administrative law aspects on the functioning and day-to-day operation of a regulatory institution in South African insolvency law.

THE STATUS OF A POST-DATED CHEQUE PRIOR TO THE POST-DATE

Electronic payment seems to be taking over but cheques are still used for valid reasons. Post-dated cheques are used for reasons such as making an advance payment, securing future payment at a future time, etcetera. However, the status of post-dated cheques prior to the post-date has been questionable since many years ago. The consumers who were affected by this situation were for decades placed in a quandary since the courts had been unable to resolve the uncertainty. This article is an analysis of the status of post-dated cheques prior to the post-date according to the South African law of negotiable instruments. A comparative study of English law is undertaken since the South African law of negotiable instruments is derived from the English law; hence the English law position is imperative and influential in regard to the South African law of negotiable instruments. Consideration is given to the South African and English legislation for the definitions of concepts such as a bill of exchange, cheque, payable on demand, etcetera. It will be shownthat post-dated cheques are regarded as demand instruments and thus valid cheques in both South African law and English law.

PROTECTING A WIFE FINANCIALLY AT THE TIME OF DIVORCE – A COMPARISON BETWEEN SOUTH AFRICAN WOMEN MARRIED IN TERMS OF SOUTH AFRICAN CIVIL LAW AND ISLAMIC LAW, WITH SPECIFIC REFERENCE TO THE MAHR

This article compares the South African civil-law and Islamic-law positions with regard to the financial protective measures available to a wife at the time of marriage and divorce. In this regard, the respective matrimonial property systems are discussed, with special emphasis on civil antenuptial and Muslim marriage contracts. In addition, other protective measures inherent to the two systems to prevent prejudice both during the marriage and at the time of divorce, are discussed. It is submitted that, although the provisions of Islamic law do not provide the same financial protection for wives compared to the South African civil law, the Islamic concept of mahr could potentially be used in the Muslim marriage contract to enhance financial security of a Muslim wife at the time of divorce. The article also considers dual marriages where the same spouses marry each other in terms of both civil and Islamic law. In particular, the incorporation of the Islamic concept of mahr into civil antenuptial contracts is discussed with reference to the legal position in Canada to illustrate potential legal problems.

Could Culling of Elephants Be Considered Inhumane and Illegal in South African Law?

Elephant culling is included in National Norms and Standards for the Management of Elephants in the Republic of South Africa, as a last-resort option to reduce elephant population size when required to meet reserve objectives. Recent judgments in South African courts have emphasised the importance of considering animal welfare in conservation. We assess the approved method of culling elephant family units, in terms of the legal and policy framework in South Africa, as well as considering elephant welfare and wellbeing. We find that the current culling method is likely to be inhumane, and potentially inconsistent with the Constitution, as interpreted by the judiciary. In addition, in certain circumstances, culling is illegal in terms of the Animals Protection and Meat Safety Acts, and contravenes World Organisation for Animal Health and global standards for the slaughter of animals. We recommend considering a moratorium on culling of elephant family units, as well as of lone bulls, until humane slaughter methods, and standard operation procedures that ensure an extremely high probability of instantaneous (“clean”) kill, are developed and approved. We recommend an ethics review process for conservation management interventions involving wellbeing risks to animals, such as is required for animal research. Notwithstanding other imperatives that need consideration, conservation practice should better balance welfare, to align with both South African legislation and global norms.

THE TRUST AS SPECIAL-PURPOSE INSTITUTION

The trust figure has undergone interesting developments in South African law during the last century. Due to its flexibility and multi-functionality it has developed as the legal institution of choice for many holistic business structures: from estate-planning and risk-protection, to financial-instrument entity. Particular financial innovations, such as securitization, required regulators to come up with fresh solutions within existing legal and regulatory systems. The traditional role of the inter vivos trust as a family wealth-transfer device became rather trivial as the importance of the financial and corporate roles of trusts increased. Trusts are not only prevalent in securitization and other investment roles, but also fulfil an increasingly important role in organizational law, which includes a variety of business-legal fields. The evolutionary process of the trust as collective investment-scheme vehicle to that of a legal entity in structured-finance programmes,such as a special purpose instrument, matured without any resistance in South Africa. It is submitted that, in the trust-development process, South Africa should not necessarily find its inspiration solely in developed nations, but should rather position itself in its real context of a developing Southern African democracy, with the potential of becoming an important financial innovator in a world of economic turmoil.It is submitted that a sound legal and regulatory framework for the application of trusts in the financial sphere is crucial. International best practice requires a definite and effective regulatory environment for economic expediency. It is submitted that a hybrid system, as found in South Africa, is better suited to adapt to the challenges of an ever-changing legal and economic reality. It is submitted that legislative interventions should be limited to the bare minimum and a holistic approach should be adopted, including the ratification of The HagueConvention on Trusts and some focused soft-law interventions.

The Continued Criminality of Selling Sex: A Trajectory of South African Sex Work Law Reform

AbstractThis article explores the regulation of sex work in South Africa and follows the trajectory of the South African Law Reform Commission (SALRC) in investigating whether sex work should be decriminalized. The legal regulation of sex work is a hotly contested topic. South Africa currently criminalizes the selling and buying of sex, but policy reform has been on the cards since the SALRC launched its project on the topic in the early 2000s. As most sex work policy responses are grounded in feminist theory, the article analyses the main theoretical ideologies and questions the influence of these ideologies in structuring sex work law reform in the South African context. The author calls for a more inclusive understanding of feminism and sex work, and the need to acknowledge the importance of rights discourse in furthering political growth and protecting sex workers’ constitutional rights.