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

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

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

Author: Andreas Coutsoudis

ISSN: 1996-2177
Affiliations: Advocate, KwaZulu-Natal Bar; Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Law Journal, Volume 140 Issue 1, p. 53-94
https://doi.org/10.47348/SALJ/v140/i1a4

Abstract

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.

Intervention in South African municipalities: Dangers and remedies

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

Intervention in South African municipalities: Dangers and remedies

Authors: Victoria Bronstein & Daryl Glaser

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand; Professor of Political Studies, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 1, p. 95-125
https://doi.org/10.47348/SALJ/v140/i1a5

Abstract

South Africa’s Constitution guarantees municipal autonomy; at the same time it enjoins the different elements of the state to co-ordinate their efforts through ‘co-operative government’ and, in conjunction with legislation, it under some circumstances permits (or even requires) provincial and national government to intervene in local government affairs to secure effective government and oversight. These powers of intervention, justified by reference to s 139 of the Constitution, range from disciplining errant councillors to the forced dissolution of non-performing municipalities. Some welcome such intervention as a counterweight to local-level corruption and inefficiency, but in a partisan environment, especially where different spheres are controlled by different parties or coalitions accountable to distinctive electorates, these powers of intervention are, we argue, open to political abuse. This abuse is likely to become more prevalent as unstable local coalition governments become more common, providing more pretexts for intervention and opportunities for councillors in political minorities to subvert their own councils in the hope of inviting intervention by higher-tier actors associated with their own party. In line with the 2021 Constitutional Court case censuring the dissolution of Tshwane Municipality by the Gauteng government, we argue for restricting grounds for intervention, especially more radical forms of intervention. As far as possible, the task of removing corrupt and inefficient local councils and councillors should be left to local voters.

A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa

Author: Vela Madlela

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 140 Issue 1, p. 126-169
https://doi.org/10.47348/SALJ/v140/i1a6

Abstract

Political donations and expenditure by companies raise serious concerns due to poor corporate governance practices, which include the lack of accountability of directors to shareholders. The shareholders’ right to vote is one of the company-law mechanisms that may be used to control the directors’ discretion regarding political donations and expenditure. However, the Companies Act 71 of 2008 does not give shareholders the right to approve a company’s political donations or expenditure. Consequently, the directors enjoy a wide general discretion regarding a company’s political donations and expenditure. The article examines certain key policy considerations concerning the introduction of prior shareholder approval of political donations and expenditure by companies in South Africa. It examines the legislative requirements regarding shareholder approval of political donations and expenditure in the UK under Part 14 of the Companies Act, 2006, the philosophical rationale underpinning these legislative requirements, and the extent to which the introduction of shareholder approval of political donations and expenditure in the UK has achieved the underlying objectives of promoting transparency and accountability. The article then advocates for the introduction of the requirement for prior shareholder approval of political donations and expenditure under the South African Companies Act, and provides detailed recommendations on how such requirements could be implemented.

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

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

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

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

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.