Transforming age-related capacity for fault in delict

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Transforming age-related capacity for fault in delict

Author: Emile Zitzke

ISSN: 1996-2177
Affiliations: LLB LLD (Pretoria)
Source: South African Law Journal, Volume 138 Issue 2, p. 369-398
https://doi.org/10.47348/SALJ/v138/i2a5

Abstract

For a wrongdoer to have ‘capacity for fault’ in the South African law of delict, it is widely accepted that the wrongdoer must possess the ability to distinguish between right and wrong (cognition) and the ability to act in accordance with that appreciation (conation). One factor that affects a person’s capacity for fault is youthfulness. There are two schools of thought on age-related capacity for fault in the South African law of delict. On the one hand, Van der Walt & Midgley are of the view that the common law stipulates the rules regulating this issue. In terms of this paradigm, the minimum age for capacity for fault is seven years. On the other hand, Neethling & Potgieter were, until very recently, of the view that the Child Justice Act should apply to the determination of a child’s capacity for fault. At the time of Neethling & Potgieter’s earlier writing, the minimum age for capacity for fault under the Act was ten years. Since June 2020, this age has been raised to twelve. In this article, the tension between these two schools of thought is analysed, and an attempt is made to resolve the tension through a proposal for a transformative, constitutional development of the common law of delict.

Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

Author: Lize Mills

ISSN: 1996-2177
Affiliations: BA LLB LLM LLD (Stellenbosch)
Source: South African Law Journal, Volume 138 Issue 2, p. 399-424
https://doi.org/10.47348/SALJ/v138/i2a6

Abstract

Two recent decisions by English courts have established that the man who gave birth to his child should be registered as the ‘mother’ of that child. The courts found that, despite the fact that the Gender Recognition Act provides that a person who had changed sex and received ‘a full gender recognition certificate’ is considered ‘for all purposes’ to be a person of ‘the acquired gender’, this person still has to be registered on his child’s birth certificate as belonging to the opposite sex. This article describes and evaluates the reasons for these decisions, and compares the English position to those of a number of jurisdictions, including that of South Africa. It argues that the legal context in this country provides for a more pragmatic and equitable approach to the rights of both trans parents and their children.

Third time lucky? Provincial intervention in the Makana Local Municipality

by | May 8, 2021 | SALJ, SALJ V138 I2 2021

Third time lucky? Provincial intervention in the Makana Local Municipality

Authors: Lisa Chamberlain & Thato Masiangoako

ISSN: 1996-2177
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand; Researcher, Socio-Economic Rights Institute of South Africa
Source: South African Law Journal, Volume 138 Issue 2, p. 425-461
https://doi.org/10.47348/SALJ/v138/i2a7

Abstract

South African local government is plagued by financial mismanagement and poor governance, resulting in widespread failure to realize socio-economic rights. One of the key mechanisms envisaged by the Constitution to address municipalities in crisis is provincial intervention in terms of s 139. However, although this mechanism is frequently used, its results have been underwhelming. This article discusses a recent case in which the Eastern Cape High Court, Grahamstown ordered the dissolution of the Makana Municipal Council as part of a provincial intervention. The article unpacks the law governing s 139 interventions and, drawing on the Makana example, questions the efficacy of provincial interventions. Further, a number of factors are identified which must be taken into consideration in order to maximise the chances that a provincial intervention might succeed. These include whether mandatory or discretionary intervention is appropriate; when the dissolution of a municipal council is an appropriate component of an intervention; the relationship between provincial intervention, stable governance and political influence; and the timing, funding and institutional arrangements of an intervention. The article concludes by highlighting the important role that community activism can play in catalysing intervention, but draws attention to the fact that such action can be dangerous for the activists involved.

Notes: Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni

by | Feb 25, 2021 | SALJ, SALJ V138 I1 2021

Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 138 Issue 1, p. 1-19
https://doi.org/10.47348/SALJ/v138/i1a1

Abstract

This note discusses and critically analyses the judgment in Organisation Undoing Tax Abuse v Myeni [2020] 3 All SA 578 (GP), in which the court declared a director delinquent for her lifetime in terms of s 162(5) of the Companies Act 71 of 2008. The basis of the application related to the director’s conduct while she was a nonexecutive director and chairperson of South African Airways SOC Ltd. The judgment is commendable for its strict stance against errant directors of state-owned companies. It is the first delinquency application brought by a party acting in the public interest, and the first judgment to impose a lifelong delinquency declaration on a director.