Pledge, conditional sales and the pledgor’s right to redeem: Mapenduka v Ashington and Graf v Buechel revisited

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

NOTES

Pledge, conditional sales and the pledgor’s right to redeem: Mapenduka v Ashington and Graf v Buechel revisited law

Author: Kevin Mulligan

ISSN: 1996-2177
Affiliations: Arbitrator and Consultant, Johannesburg
Source: South African Law Journal, Volume 142 Issue 1, p. 1-13
https://doi.org/10.47348/SALJ/v142/i1a1

Abstract

The principle that, in pledge, the debtor has the right to redeem the pledged property by paying the debt, even after default and up to the moment that the property passes into the ownership of another upon realization, was affirmed in 1919 by the Appellate Division in Mapenduka v Ashington. However, in 2003, some doubt emerged as to whether the principle applies in the context of the conditional sale, which has long been regarded as a valid alternative to the invalid pactum commissorium. This doubt arose due to interpretations of a somewhat cryptic obiter dictum in Graf v Buechel to the effect that Mapenduka should not be seen as authority for the proposition that the debtor should still be willing to proceed with the sale after default. This note examines these dicta in their correct doctrinal context and proposes an interpretation of the Graf dictum that reconciles the apparent conflict between the two.

An analysis of security rights to secure the repayment of loans in South African law

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

NOTES

An analysis of security rights to secure the repayment of loans in South African law

Author: Adnaan Kariem

ISSN: 1996-2177
Affiliations: N/A
Source: South African Law Journal, Volume 142 Issue 1, p. 14-27
https://doi.org/10.47348/SALJ/v142/i1a2

Abstract

In South African law, a borrower’s obligation to repay a loan for consumption, which is typically a loan of money, can be secured using a myriad of common-law and statutory security rights created in favour of the lender. If, applying the pledge theory of cession in securitatem debiti, the security right takes the form of a pledge and cession in securitatem debiti of a personal right, the borrower or other security provider retains its dominium in the right. At the same time, the lender temporarily acquires and holds, for as long as the loan remains unpaid, a limited security interest therein. The lender’s right to repayment of its loan is thereby secured in that the lender can exercise its security rights if the borrower defaults on its loan repayment obligation. Complex issues regarding certain security rights available to lenders are analysed, including their purpose, function, classification, nature and operation. It is recommended that the UNCITRAL Model Law on Secured Transactions could be drawn on to streamline South Africa’s current piecemeal approach to security rights.

Transferring a controlling interest under the Mineral and Petroleum Resources Development Act: A note on Vantage Goldfields SA (Pty) Ltd v Arqomanzi (Pty) Ltd

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

NOTES

Transferring a controlling interest under the Mineral and Petroleum Resources Development Act: A note on Vantage Goldfields SA (Pty) Ltd v Arqomanzi (Pty) Ltd

Author: Daniel Hertog

ISSN: 1996-2177
Affiliations: Doctoral Research Assistant, DST/NRF South African Research Chair: Mineral Law in Africa, University of Cape Town
Source: South African Law Journal, Volume 142 Issue 1, p. 28-37
https://doi.org/10.47348/SALJ/v142/i1a3

Abstract

This note analyses the Supreme Court of Appeal judgment in Vantage Goldfields SA (Pty) Ltd & another v Arqomanzi (Pty) Ltd & others 2023 (3) All SA 667 (SCA) (‘Goldfields’). It does so with a particular focus on indirectly transferring a controlling interest under s 11 of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘the MPRDA’). After putting s 11 of the MPRDA into context, the note considers previous pronouncements on the transfer of a controlling interest, such as that in the case of Mogale Alloys (Pty) Ltd v Nuco Chrome Bophuthatswana (Pty) Ltd 2011 (6) SA 96 (GSJ). This is followed by a discussion of the facts and law in Goldfields and an analytical commentary on the judgment. The note concludes that the Goldfields judgment is a welcome development that deserves praise for its pronouncements on the transfer of a controlling interest under s 11 of the MPRDA.

The Labour Court’s jurisdiction to order the payment of just and equitable compensation for loss attributable to strikes: An analysis of SACCAWU v Massmart Holding Ltd

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

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The Labour Court’s jurisdiction to order the payment of just and equitable compensation for loss attributable to strikes: An analysis of SACCAWU v Massmart Holding Ltd

Author: M E Manamela

ISSN: 1996-2177
Affiliations: Professor of Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 1, p. 38-50
https://doi.org/10.47348/SALJ/v142/i1a4

Abstract

Chapter IV of the Labour Relations Act 66 of 1995 gives effect to the right to strike and provides for protected and unprotected strikes. In terms of s 68(1)(b), the Labour Court has exclusive jurisdiction to order the payment of just and equitable compensation for loss attributable to a strike or conduct that does not comply with chap IV. This note analyses the Labour Appeal Court’s findings in SACCAWU v Massmart Holding Ltd (2024) 45 ILJ 1610 (LAC), in which the union raised an exception that the Labour Court did not have jurisdiction to order the payment of a just and equitable compensation for loss attributable to a protected strike or conduct. The Labour Appeal Court also found that the Labour Court has exclusive jurisdiction in this regard. The note asserts that the judgment has far-reaching implications, as it affirms that the Labour Court is a specialist court that deals with labour disputes.

Integrated energy planning in South Africa: Teetering on feet of clay

by | Feb 20, 2025 | SALJ, SALJ V142 I1 2025

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Integrated energy planning in South Africa: Teetering on feet of clay

Author: Tracy-Lynn Field

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand & Claude Leon Chair in Earth Justice and Stewardship
Source: South African Law Journal, Volume 142 Issue 1, p. 51-68
https://doi.org/10.47348/SALJ/v142/i1a5

Abstract

This note argues that integrated energy planning in South Africa should urgently proceed in terms of s 6 of the National Energy Act 34 of 2008, which only commenced on 1 April 2024. The note defines the concept of integrated energy planning and explains how Integrated Resource Plans and s 34 determinations under the Electricity Regulation Act 4 of 2006 have appropriated integrated energy planning. This has put the entire edifice of energy planning on an unstable base. Instead, an Integrated Energy Plan under the National Energy Act should serve as the participatory roadmap to chart South Africa’s energy future.