Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

Author: Tshepo H Mongalo

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 3, p. 508-521
https://doi.org/10.47348/SALJ/v138/i3a3

Abstract

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.

Notes: Splitting hairs? Bwanya v The Master of the High Court

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: Splitting hairs? Bwanya v The Master of the High Court

Author: Fatima Osman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 3, p. 521-534
https://doi.org/10.47348/SALJ/v138/i3a4

Abstract

In Bwanya v The Master of the High Court 2021 (1) SA 138 (WCC), the Western Cape High Court ordered that the applicant, a partner in an opposite-sex partnership, was entitled to inherit from her deceased partner’s estate by ordering an amendment of the Intestate Succession Act 81 of 1987 to cater for unmarried opposite-sex partners. The court distinguished the case from Volks NO v Robinson 2005 (5) BCLR 446 (CC) — which precludes an unmarried partner from claiming maintenance from the deceased partner’s estate — on the basis that the case involved an inheritance claim as opposed to maintenance. The note argues that the failure of the court to deal with the central argument in Volks in respect of inheritance rights undermines the strength of the judgment. The Constitutional Court in confirmation proceedings should address this matter, and consider a softening of the doctrine of stare decisis to overrule the Volks case. Furthermore, the case opens the door to claims by other unmarried partners in polygamous relationships. While such claims involve policy considerations that are best addressed by the legislature, they are likely to come before the courts in the near future. Courts should recognise such claims in acknowledgment of the diversity in family formations in South Africa.

Blood and breath alcohol test results: Uncertainty at the interface of science and law

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Blood and breath alcohol test results: Uncertainty at the interface of science and law

Authors: J B Laurens, P A Carstens, J B Laurens & L G Curlewis

ISSN: 1996-2177
Affiliations: Senior Lecturer, Forensic Toxicology Laboratory, Department of Chemistry, Faculty of Agriculture and Natural Sciences, University of Pretoria; Professor, Centre for Law and Medicine, Department of Public Law, Faculty of Law, University of Pretoria; Legal Consultant, Forensic Toxicology Laboratory, Department of Chemistry, Faculty of Agriculture and Natural Sciences, University of Pretoria; Senior Lecturer, Department of Procedural Law, Faculty of Law, University of Pretoria
Source: South African Law Journal, Volume 138 Issue 3, p. 535-568
https://doi.org/10.47348/SALJ/v138/i3a5

Abstract

Alcohol is well known for its ability to impair human faculties, which creates risks when driving a vehicle or when performing safety- and risk-sensitive tasks in workplaces. The article aims to highlight some shortcomings in the legal-scientific approach for alcohol testing in South Africa. In particular, we investigate the measurement uncertainty of blood alcohol test results, which is critical in adjudicating over-the-limit cases. The South African regulatory framework for alcohol testing in the criminal- and private-law environments is examined from an analytical due-process perspective, considering measurement uncertainty and other well-established scientific principles which are essential at the interface of science and law. Special attention is paid to the National Road Traffic Amendment Bill, which aims to decrease the alcohol limit to zero. We found that the measurement uncertainty concept has not yet been received into the South African legal system, even though it is a well-established scientific principle. We suggest changes to the current alcohol legislation to accommodate the measurement uncertainty principle and the related likelihood ratio, which we believe could assist in quantifying the odds of compliance. In particular, we believe that our suggestions regarding quantification and reporting of measurement uncertainty can assist the courts and tribunals to avoid false-positive errors that may have a devastating effect on innocent subjects.

Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

Author: Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: Professor of Jurisprudence, Department of Private Law, University of Cape Town, BCom LLB LLD (Pretoria) MA (Cape Town).
Source: South African Law Journal, Volume 138 Issue 3, p. 569-598
https://doi.org/10.47348/SALJ/v138/i3a6

Abstract

This article enquires into commitments of substance and form in contract law after apartheid. The argument begins with an overview of the substance and form argument as presented by Duncan Kennedy in 1976 and applied to the South African law of contract by Alfred Cockrell in 1992. Kennedy and Cockrell’s argument that commitments of form follow commitments of substance in private-law adjudication generally, and in contract-law adjudication specifically, is mapped onto Karl Klare’s 1998 argument that transformative constitutionalism necessitates a commitment to the ‘postliberal’ in both formal and substantive terms. The argument then proceeds to a reading of the majority judgment in the Constitutional Court in Beadica 231 CC & others v Trustees for the time being of the Oregon Trust & others. The discussion illustrates how form still follows substance in the South African law of contract in a constitutional era, and how the privileged policy position remains that of rule-based formal commitments and individualist substantive commitments. The article concludes with the assertion that the dominance of the individualism/rules position is inconsistent with transformative constitutionalism’s commitment to a postliberal legal order.

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

Author: Pieter Badenhorst

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Honorary Professor of Law, Nelson Mandela University
Source: South African Law Journal, Volume 138 Issue 3, p. 599-616
https://doi.org/10.47348/SALJ/v138/i3a7

Abstract

This article examines the nature and features of ‘unused old order rights’ (‘UOORs’) under item 8 of Schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 in light of the recent decision by the Constitutional Court in Magnificent Mile Trading 30 (Pty) Ltd v Celliers 2020 (4) SA 375 (CC). At issue was: (a) whether an UOOR was transmissible to heirs upon the death of its holder; and (b) the applicability of the Oudekraal principle to the award of an unlawful prospecting right to an applicant, contrary to the rights enjoyed by the holder of an UOOR. The article analyses the constituent elements of an UOOR, rights ancillary to the UOOR’s and the nature and features of UOORs and ancillary rights. The article also considers the possible loss of an UOOR by application of the Oudekraal principle due to the unlawful grant of a prospecting right by the state, as custodian of mineral resources. The article illustrates that the CC ensured in Magnificent Mile that the Oudekraal principle does not undermine the security of tenure and statutory priority afforded to holders of UOORs by ultra vires grants of inconsistent rights to opportunistic applicants. Concern is also expressed about the poor administration of mineral resources by the Department of Mineral Resources and Energy.

A critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

A critique on privately prosecuting the holder of ‘after the fact’ environmental authorisations: Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd

Author: Melissa Strydom

ISSN: 1996-2177
Affiliations: LLB (UJ) LLM (Wits), PhD candidate, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 3, p. 617-648
https://doi.org/10.47348/SALJ/v138/i3a8

Abstract

There has been much debate about ‘after the fact’ environmental authorisations and the ability to privately prosecute environmental-law offences in South Africa. These two issues came to a head in Uzani Environmental Advocacy CC v BP Southern Africa (Pty) Ltd. This case is the first known private prosecution of environmental-law contraventions in South Africa. BP Southern Africa (Pty) Ltd (‘BPSA’) was privately prosecuted for constructing filling stations without environmental authorisations, allegedly between 1998 and 2005. BPSA submitted ‘rectification’ applications in 2005, paid administrative fines, and was issued with ‘after the fact’ environmental authorisations. Nevertheless, in 2019 BPSA was convicted for contravening the related environmental-law requirement. This article discusses the applicable legislative context, the complex and frequently changing environmental laws, and their interpretation and application in a criminal context. Criticisms of the Uzani judgment include that the court did not sufficiently deliberate or determine the applicable law at the time of the offences for which BPSA was indicted; the public or environmental interest served by the private prosecution; strict liability in relation to the offence; policy and other considerations for not prosecuting these offences; constitutionality and admissibility of the evidence; and the potentially far-reaching consequences of such prosecutions. These issues all act as reminders of the importance of clear and precise legislative drafting, and contextual interpretation.