Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd

Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd

Author: Ndivhuwo Ishmel Moleya

ISSN: 1996-2177
Affiliations: Attorney of the High Court of South Africa
Source: South African Law Journal, Volume 140 Issue 1, p. 170-193
https://doi.org/10.47348/SALJ/v140/i1a7

Abstract

This article analyses the adjudicative approaches adopted by the main judgment of Madlanga J and the concurring majority judgment of Moseneke DCJ in Paulsen & another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC). The point of divergence between the judgments concerns the discordant relationship between the doctrine of separation of powers and the powers of the courts to develop the common law under s 39(2) of the Constitution. The argument developed in this article is that the developmental powers of the courts should not be curtailed on the basis of a broadly and vaguely conceptualised doctrine of separation of powers, but on a clear and circumscribed doctrine that is congruent with the transformative objectives of s 39(2) of the Constitution. The article endeavours to set out the limited circumstances under which the developmental powers of the courts should be limited in terms of the doctrine of separation of powers.

The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

Authors: Amy Harpur Gevers & Vishal Surbun

ISSN: 1996-2177
Affiliations: Legal Practitioner of the High Court of South Africa; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 140 Issue 1, p. 194-219
https://doi.org/10.47348/SALJ/v140/i1a8

Abstract

The definition of ‘maritime claim’ in s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 is the gatekeeper to the exercise of admiralty jurisdiction. It is accordingly critical that the process of classifying a claim as a maritime claim is certain and predictable. However, the elasticity of the wording in the definition can create confusion for claimants in borderline cases. In Kuehne & Nagel (Pty) Ltd v Moncada Energy Group SRL 2016 JDR 0312 (GJ) the court formulated the ‘legally relevant connection’ test to assist it in classifying a claim to enforce a demand guarantee. The test was subsequently relied on in Twende Africa Group (Pty) Ltd v MFV Qavak 2018 JDR 0238 (ECP) in classifying a damages claim for unlawful contractual interference. This article examines the ‘legally relevant connection’ test in the context of both cases to assess whether it is consistent with the definition of ‘maritime claim’. We show that the reasoning followed in Kuehne & Nagel is flawed in several respects, revealing certain fundamental weaknesses of the test. However, the decision in Twende demonstrates that the test is capable of yielding results that align with the policy justification for the exercise of admiralty jurisdiction.

Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021)

Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021)

Author: Gerhard Lubbe

ISSN: 1996-2177
Affiliations: University of Stellenbosch
Source: South African Law Journal, Volume 140 Issue 1, p. 225-233
https://doi.org/10.47348/SALJ/v140/i1a10

Abstract

None

Notes: Confusion in the removal of directors by shareholders under the Companies Act 71 of 2008: Miller v Natmed Defence (Pty) Ltd

Notes: Confusion in the removal of directors by shareholders under the Companies Act 71 of 2008: Miller v Natmed Defence (Pty) Ltd

Authors: Rehana Cassim

ISSN: 1996-2177
Affiliations: Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 139 Issue 4, p. 741-756
https://doi.org/10.47348/SALJ/v139/i4a1

Abstract

This note critically analyses the judgment in Miller v Natmed Defence (Pty) Ltd 2022 (2) SA 554 (GJ), in which the court ruled on the validity of the removal of a director by the company’s sole shareholder. Three issues were in contention: whether a shareholder must furnish the director with reasons for the proposed resolution to remove a director from office under s 71 of the Companies Act 71 of 2008; whether a shorter notice period for the shareholders’ meeting was legally acceptable; and whether the meeting that was held telephonically was valid. The court ruled that the director’s removal from office was valid and dismissed his request to be reinstated as a director. This note critically analyses the judgment and argues that the court misinterpreted some aspects of s 71 of the Act.