No double-dipping: Rethinking the tests for duplication of convictions

by | Jan 5, 2020 | SALJ, SALJ V136 I3 2019

No double-dipping: Rethinking the tests for duplication of convictions

Author Scott Roberts

ISSN: 1996-2177
Affiliations: Teaching Assistant, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 136 Issue 3, p. 489-512

Abstract

South African courts have long recognised duplication of convictions (or ‘splitting of charges’) as unacceptable. However, determining when a duplication of convictions has occurred is a troublesome matter that has led to much confusion and disagreement. This uncertainty has led to our courts’ prescribing reliance on the standard of ‘common sense’ to ascertain whether there has been a duplication of convictions in a given case, both to guide the application of other legal tests and as a principle to fall back on when those tests yield indeterminate outcomes. The reasons for the rule against duplication of convictions relate to moral concerns about the justifications for an act of punishment. Retributivist theories of punishment require the identification of a desert basis for punishment, to render punishment justified. It is possible to identify unique desert bases for punishment, both in a temporal sense and according to the nature of the interest of the victim violated by the criminal act. Identifying unique interest violations is a more effective means of identifying duplications of convictions than the flawed method currently employed by our criminal courts.

A critical analysis of the grounds of removal of a director by the board of directors under the Companies Act

by | Jan 5, 2020 | SALJ, SALJ V136 I3 2019

A critical analysis of the grounds of removal of a director by the board of directors under the Companies Act

Author Rehana Cassim

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 136 Issue 3, p. 513-549

Abstract

This article critically analyses the grounds for the removal from office of a director by the board of directors under s 71(3) of the Companies Act 71 of 2008. These grounds of removal are ineligibility, disqualification, incapacity, neglect and dereliction in the performance of the functions of a director. It is argued that certain grounds of removal are ambiguous while other grounds have the potential to be abused. For instance, there is much scope for the ground of incapacity to be abused; there are no provisions guarding against the introduction of new qualification requirements being improperly used to remove directors; the meaning of the term ‘derelict’ is not clear; an objective standard rather than a subjective standard has been imposed to ascertain whether a director has properly performed his or her functions; and it is not clear whether negligence is an additional ground for the removal of a director, nor is it clear whether additional grounds of removal may be explicitly inserted in a company’s Memorandum of Incorporation. This article recommends that s 71(3) of the Companies Act be amended with a view to removing ambiguities in this provision and to improve and strengthen the grounds for the removal of directors by the board of directors.

Sham trusts in South Africa: Tempora mutantur, nos et mutamur in illis (times change, and we change with them)

by | Jan 5, 2020 | SALJ, SALJ V136 I3 2019

Sham trusts in South Africa: Tempora mutantur, nos et mutamur in illis (times change, and we change with them)

Author Bradley S Smith

ISSN: 1996-2177
Affiliations: Professor, University of the Free State
Source: South African Law Journal, Volume 136 Issue 3, p. 550-580

Abstract

Although it is trite that five essentialia are prescribed for valid trust formation, the possibility of a court holding a ‘trust’ to be a ‘sham’ due to a finding that a trust founder never truly intended to create the trust is a relatively new feature of South African trust-law jurisprudence. While early attempts to define and characterise the sham trust concept may justifiably be criticised for conflating it with a situation where it is necessary to ‘pierce the veneer’ of a validly created trust, pioneering legal scholarship has contributed to an authoritative body of case law in which its theoretical underpinnings have become crystallised. However, only two (unreported) judgments have thus far dealt with the sham trust in practice. This article uses the latest of these (the unreported decision in Humansdorp Co-op v Wait) as a platform from which to interrogate the intention requirement and its inter-relationship with the requirement of sufficient trustee independence. The authority relied on in Wait is also utilised to develop conceptual linkages between the sham scenario, the ‘control test’ that is used in the veneer-piercing context, and the ‘core idea’ of the trust as articulated in the seminal judgment of Land and Agricultural Bank of SA v Parker 2005 (2) SA 77 (SCA). The article concludes that although Wait is not a model of clarity, it is a ground-breaking judgment that has elevated the ‘sham trust’ concept from theoretical possibility to practical reality.

Book Review: Commercial Litigation in Anglophone Africa — The Law Relating to Civil Jurisdiction, Enforcement of Foreign Judgments and Interim Remedies

by | Jan 5, 2020 | SALJ, SALJ V136 I3 2019

Book Review: Commercial Litigation in Anglophone Africa — The Law Relating to Civil Jurisdiction, Enforcement of Foreign Judgments and Interim Remedies

Author Ada Ordor

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 136 Issue 3, p. 587-593

Abstract

None