ISSN: 1996-2177
Affiliations: Director: International Tax, AJM Tax
Source: South African Law Journal, Volume 138 Issue 2, p. 462-469
https://doi.org/10.47348/SALJ/v138/i2a8
None
ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 138 Issue 2, p. 469-478
https://doi.org/10.47348/SALJ/v138/i2a9
None
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
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.
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
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.
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
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.
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
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.