Notes: Investigations, natural justice and reviewability: Msiza v Motau NO & another

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

Investigations, natural justice and reviewability: Msiza v Motau NO & another

Author: D M Pretorius

ISSN: 1996-2177
Affiliations: Bowmans, Johannesburg
Source: South African Law Journal, Volume 138 Issue 1, p. 20-39
https://doi.org/10.47348/SALJ/v138/i1a2

Abstract

The case of Msiza v Motau NO & another 2020 (6) SA 604 (GP) dealt with a report prepared by the first respondent pursuant to an investigation into the VBS Bank looting scandal. The investigation was conducted on behalf of the second respondent, the Prudential Authority. The applicant applied for, and was granted, an order reviewing and setting aside aspects of the report that reflected adversely on him. This was because the first respondent had not afforded the applicant an opportunity to be heard before he wrote the report and submitted it to the second respondent. As such, the case raised questions about the applicability of the right to procedural fairness in investigative proceedings and about the reviewability of reports produced by investigators. This note explores whether (and, if so, in what circumstances) investigations conducted by or on behalf of public bodies constitute administrative action that must be performed in accordance with the audi alteram partem rule. It concludes that the reasoning for the court’s view (that it is incumbent on an investigator who should foresee that his findings will have adverse consequences for another person to hear that person before making such findings) lacked depth and nuance. In determining whether there is a right to be heard in an investigative context, due attention should be given to the applicable statutory framework, the powers of the investigator, the potential impact on affected persons, and relevant precedent.

Notes: To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

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

To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

Authors: Dusty-Lee Donnelly & Seshni Govindasamy

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, University of KwaZulu-Natal; Faculty of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 138 Issue 1, p. 40-57
https://doi.org/10.47348/SALJ/v138/i1a3

Abstract

The decision in Atakas Ticaret Ve Nakliyat AS v Glencore International AG 2019 (5) SA 379 (SCA) made important remarks to the effect that the discretion to effect a joinder to admiralty proceedings under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, and the discretion to refuse a stay of proceedings under s 7(1)(b) of the Act, are ‘untouched’ by art 8 of the UNCITRAL Model Law on International Arbitration that is incorporated under the International Arbitration Act 15 of 2017. The court reached this decision on the basis that, in terms of art 1(5), the Model Law does not affect other laws of the Republic under which matters may not be referred to arbitration, or may only be so referred subject to conditions. This case note analyses the nature and extent of the court’s discretion under art 8(1) of the Model Law, the argument for an implied repeal of s 7(1)(b) of the Admiralty Jurisdiction Regulation Act, the interpretation of art 1(5) of the Model Law, and the questions left unanswered by the judgment. It argues that although the Model Law does not automatically oust the jurisdiction of the high court exercising admiralty jurisdiction to hear a maritime claim, the court only retains a narrow discretion to refuse a stay of those proceedings when an international commercial arbitration agreement exists in respect of the dispute.

Practical implications for the electoral system: New Nation Movement NPC v President of the Republic of South Africa

Practical implications for the electoral system: New Nation Movement NPC v President of the Republic of South Africa

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

Practical implications for the electoral system: New Nation Movement NPC v President of the Republic of South Africa

Author: Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Advisor, UFS Centre for Human Rights, University of the Free State
Source: South African Law Journal, Volume 138 Issue 1, p. 58-87
https://doi.org/10.47348/SALJ/v138/i1a4

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Wolf, L
Practical implications for the electoral system: New Nation Movement NPC v President of the Republic of South Africa
South African Law Journal, Volume 138 Issue 1, p. 58-87
https://doi.org/10.47348/SALJ/v138/i1a4

Abstract

In New Nation Movement NPC v President of the Republic of South Africa, the Constitutional Court declared parts of the Electoral Act 73 of 1998 unconstitutional in so far as the Act does not provide for independent candidates to stand for political office in the national and provincial legislatures. The court has given the National Assembly two years to redesign the electoral system. Given the constitutional and logistical constraints, the legislature will probably not be able to avoid a major electoral reform. It will be very hard to justify that voters may select a candidate of their choice only when such a candidate runs as an independent but not when a candidate elects to run on a party ticket. The best option would therefore be to introduce a mixed electoral system which combines constituency-based elections with proportional representation of political parties. To keep ballots manageable it would be appropriate to use other electoral design tools such as an entrance hurdle for political parties and deposits and/or nominations by registered voters supporting independent candidates as well. Such a reform might contribute to weed out candidates tainted by corruption because the capacity of political parties to shield them from the electorate in closed lists where the voters have no say about which candidates get elected will be constrained.

Summary judgment — Quo vadis?

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

Summary judgment — Quo vadis?

Author: Thino Bekker

ISSN: 1996-2177
Affiliations: Associate Professor in Law, University of Pretoria
Source: South African Law Journal, Volume 138 Issue 1, p. 88-114
https://doi.org/10.47348/SALJ/v138/i1a5

Abstract

The summary judgment procedure in South African law provides for a speedy judgment in favour of a deserving plaintiff where it can be shown that the defendant does not have a triable defence. In 2019 the Rules Board made certain drastic amendments to the procedure of summary judgment in the high court. In this article the historical development of the procedure of summary judgment will be discussed, and the new amendments to rule 32 of the Uniform Rules of Court critically evaluated. It will be argued that the amendments to rule 32 were unnecessary and that it may diminish the right to access to justice in civil disputes. It will, however, also be argued that there are some merits in the critique raised by the Rules Board in relation to rule 32 and that the Rules Board missed a golden opportunity to overhaul the entire summary judgment procedure in a more sensible manner and in line with the core constitutional values of s 34 of the Constitution. It will be argued that rule 32 should be replaced in its entirety by a new, more streamlined procedure, and some recommendations for legal reform will be made in this regard.

Sources of legal indeterminacy

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

Sources of legal indeterminacy

Author: Quentin du Plessis

ISSN: 1996-2177
Affiliations: Johannesburg Bar
Source: South African Law Journal, Volume 138 Issue 1, p. 115-151
https://doi.org/10.47348/SALJ/v138/i1a6

Abstract

Traditional analyses characterise or identify vagueness and ambiguity as the sole or primary sources of legal indeterminacy. In this article, I identify and characterise various other sources of legal indeterminacy. In addition to the semantic indeterminacy of vagueness and ambiguity, philosophers of language have identified conversational, pragmatic, and contextual indeterminacy, each of which is capable of generating a ‘hard case’ as applied to the legal sphere. Nor is all legal indeterminacy linguistic in nature. Following Henry Prakken, I identify non-monotonicity, or the fact that legal inferences are defeasible, as a final source of legal indeterminacy. Each source of legal indeterminacy thus identified includes case-law examples to aid in the discussion.

The Insolvency Act’s deviation from the common law: Juristic ghost or aggregate approach?

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

The Insolvency Act’s deviation from the common law: Juristic ghost or aggregate approach?

Author: Liesl Hager

ISSN: 1996-2177
Affiliations: Research Assistant, Faculty of Law, University of Pretoria
Source: South African Law Journal, Volume 138 Issue 1, p. 152-170
https://doi.org/10.47348/SALJ/v138/i1a7

Abstract

In this article I engage with the provisions of the Insolvency Act 24 of 1936 regulating the dissolution of the universal partnership upon insolvency. Our common law prefers an aggregate approach to partnerships, meaning that a partnership enjoys no separate legal personality distinct from its composing partners. The lack of separate legal personality of a partnership is described by some academics as a ‘remarkable defect’. The Insolvency Act however creates an exception to this general rule by deeming a partnership to be a separate legal entity. The Insolvency Act’s deviation from the common-law rule and creation of a ‘juristic ghost’ is explored in this article. The ‘dual priorities’ rule, the aggregate theory and the entity theory are explained in this article. Furthermore, the judicial debates about the Act’s deviation are discussed. In conclusion, it is suggested that the presumption that legislation does not intend to change existing law should not apply when dealing with the Insolvency Act, as the legislature has expressly deviated from the common-law aggregate approach.