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

NOTES

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

NOTES

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.

Procedural fairness in executive decision-making: A different take

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

ARTICLE

Procedural fairness in executive decision-making: A different take

Author: Michael Tsele

ISSN: 1996-2177
Affiliations: Advocate, Cape and Johannesburg Bars; Honorary Research Associate, Rhodes University
Source: South African Law Journal, Volume 142 Issue 1, p. 69-98
https://doi.org/10.47348/SALJ/v142/i1a6

Abstract

This article considers two issues. The first continues to cause controversy nearly two decades after the decision which gave rise to it was handed down. It relates to whether executive decisions are (or should be) constrained by procedural-fairness requirements and, if so, when and how. At the centre of this debate is the Constitutional Court’s decision in Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC), in which the apex court held that it was ‘inappropriate to constrain the exercise of executive power to the requirements of procedural fairness’. I consider the common criticisms of Masetlha and argue, contrary to other commentators, that the decision was neither ‘unprecedented’ nor so untenable as to justify statements to the effect that it is ‘obviously wrong’ and ‘at odds with the Constitution’. I further argue that there are sound reasons to justify the reasoning in Masetlha. The second issue I consider has not been squarely decided by the Constitutional Court: whether the effect of Masetlha is that an executive decision made by an executive functionary is not constrained by the rule against bias. Surprisingly, this has received limited academic interrogation in the wake of Masetlha. I argue that a High Court decision that addressed the issue did so without proffering a jurisprudentially clear and sound basis for its conclusions.

The trade requirement is obsolete for tax purposes

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

ARTICLE

The trade requirement is obsolete for tax purposes

Author: Thabo Legwaila

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 142 Issue 1, p. 99-128
https://doi.org/10.47348/SALJ/v142/i1a7

Abstract

The Income Tax Act 59 of 1962 requires that a taxpayer should be carrying on a trade to be able to deduct expenses in terms of the general deductions formula, to deduct interest in terms of the specific provisions applicable to interest, or to set off assessed losses. The meaning of ‘trade’ has been the subject of many court cases. These cases have assigned varied and divergent meanings to the term ‘trade’. The result has been that it has become a complex term that complicates the deductibility rules without adding much value to the rules. This article considers this trade requirement’s continued relevance and importance and concludes that it is obsolete and ineffective, and adds no value to the deductibility provisions. The essence of the trade requirement is a duplication of the ‘production of the income’ requirement in the general deduction formula. It is also too broad for interest deductibility provisions, meaning that it lacks effect and is too restrictive in the assessed losses provisions. This disadvantages struggling businesses. The article recommends removing the trade requirement from the Income Tax Act.

Tax judgments and company law: Evidence of corporate governance concerns

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

ARTICLE

Tax judgments and company law: Evidence of corporate governance concerns

Author: Tracy Gutuza

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 142 Issue 1, p. 129-150
https://doi.org/10.47348/SALJ/v142/i1a8

Abstract

The article considers the role of tax disputes as a signal of a company’s approach to corporate governance by considering two tax disputes between the South African Revenue Service and the Steinhoff group. It seeks to illustrate the role of tax disputes as a signal of corporate governance concerns through an analysis of the two cases, namely CSARS v Capstone 556 (Pty) Ltd and CSARS v Kluh Investments (Pty) Ltd. The tests used in determining tax liability can be difficult to navigate where the respective roles of the board of directors, the directors and the shareholders are not clear, with de facto and de jure ownership and control shifting between the various parties. This may create uncertainty about who is actually in control of the company and who is legally in control of the company. An in-depth analysis of these two cases shows that tax disputes can alert stakeholders and serve as a warning that something is amiss in the governance of the company.

Aiding and abetting, and bringing about a pattern of criminal gang activity under the Prevention of Organised Crime Act

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

ARTICLE

Aiding and abetting, and bringing about a pattern of criminal gang activity under the Prevention of Organised Crime Act

Author: D C van der Linde

ISSN: 1996-2177
Affiliations: Associate Professor, Stellenbosch University
Source: South African Law Journal, Volume 142 Issue 1, p. 151-174
https://doi.org/10.47348/SALJ/v142/i1a9

Abstract

The Prevention of Organised Crime Act 121 of 1998 (‘POCA’) introduced six new offences aimed at combating criminal gang activities around the country, and especially in the Cape Flats area in Cape Town. Despite the state’s ambitious efforts to criminalise certain conduct associated with criminal gang activities, only two offences under POCA have been commonly employed against those who have committed gang-related offences, namely aiding and abetting a criminal gang under s 9(1)(a) and bringing about a pattern of criminal gang activity under s 9(2)(a), respectively. The legal framework has also raised several interpretative complexities that have led to legal uncertainty. This article examines and deconstructs the offences contained in POCA, in light of established common-law principles and significant judgments dealing with the provisions, in an attempt to clarify some of the ambiguity. Finally, the article makes suggestions for legislative intervention.

Ownership of personal information?

Ownership of personal information?

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

ARTICLE

Ownership of personal information?

Author: Donrich Thaldar

ISSN: 1996-2177
Affiliations: Professor of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 142 Issue 1, p. 175-198
https://doi.org/10.47348/SALJ/v142/i1a10

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Donrich Thaldar
Ownership of personal information?
South African Law Journal, Volume 142 Issue 1, p. 175-142 https://doi.org/10.47348/SALJ/v142/i1a10

Abstract

This article explores whether personal information can be owned and, if so, by whom. It begins with an overview of fluctuating judicial attitudes toward personal information ownership, highlighting the need for a thorough analysis of how the foundational tenets of ownership apply to personal information, particularly in digital form. The analysis clarifies that ownership is a concept rooted in property law, necessitating that questions of personal information ownership be answered within the ambit of property law, rather than informational privacy law. Building on this theoretical base, it becomes clear that while personal information in general does not meet the criteria for ownership, a specific digital instance of such information — that is, a computer file containing personal information — indeed meets the criteria and is therefore susceptible of ownership. When a new instance of information is generated, property law dictates that the first person to exercise control over it with the intent of ownership thereby becomes its owner. However, the data subject’s informational privacy rights impose limitations on the owner’s property rights. This interplay between informational privacy law and property law lays a crucial foundation for the legal governance of personal information in the digital age.