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.

Section 45 of the Tax Administration Act: An unconstitutional limitation on taxpayer privacy?

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

Section 45 of the Tax Administration Act: An unconstitutional limitation on taxpayer privacy?

Author: Fareed Moosa

ISSN: 1996-2177
Affiliations: Associate Professor, Faculty of Law, University of the Western Cape
Source: South African Law Journal, Volume 138 Issue 1, p. 171-196
https://doi.org/10.47348/SALJ/v138/i1a8

Abstract

The Tax Administration Act 28 of 2011 is a law of general application. Section 45 of the Act empowers a SARS official to enter, without a warrant, premises where a trade or enterprise is reasonably believed to be carried on in order to conduct an inspection aimed at gathering information that will aide SARS in determining whether the business operator is compliant with tax obligations. In a constitutional democracy, the enjoyment of fundamental rights has a high premium. Accordingly, every lawful exercise of the power conferred by s 45 must take place in an orderly fashion, with decency and respect for taxpayers and their privacy. The state may not unduly interfere with this right, whether by withdrawing it altogether, abridging it, or diminishing its scope and ambit. This article hypothesises that inspections undertaken in terms of s 45 limit taxpayers’ privacy in a manner that may not pass muster under s 36(1) of the Constitution of the Republic of South Africa, 1996. On this basis, it is argued that, to cure its deficiencies, s 45 ought to be amended by the introduction of the provisions proposed in this article.