ISSN: 1996-2177
Affiliations: Lecturer, Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 222 – 226
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ISSN: 1996-2177
Affiliations: Associate Professor in Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 189 – 221
In Butters v Mncora 2012 (4) SA 1 (SCA), the Supreme Court of Appeal used principles of the societas universorum bonorum to award benefits to an unmarried life-partner. In RH v DE 2014 (6) SA 436 (SCA), the court abolished the civil action for adultery. This article argues that both judgments were weakened by the court’s misunderstanding and misuse of the old common-law sources. The judgments would have been more convincing if the court had researched the context and history of the common law more rigorously. An important weakness of both judgments was the court’s decision to ignore the Constitution. The court thus forfeited an opportunity to infuse the common law with constitutional values. Reliance on the Constitution could also have assisted the court when using historical sources. It is the Constitution which enables the courts to use old common-law sources persuasively and without resorting to teleological pragmatism. The Constitution provides authority for making radical changes to old institutions where this is necessary to promote the spirit, purport and objects of the Bill of Rights. It provides guidance and tools which make ‘the researches of antiquarians’ truly productive for the modern constitutional era.
ISSN: 1996-2177
Affiliations: Professor of Mercantile Law, University of Johannesburg
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 160 – 188
This article considers the provisions regarding the capacity and representation of companies in terms of the Companies Act 71 of 2008, with specific application to special purpose companies. Such companies must comply with the requirements for ring-fenced companies. The capacity of the company must be limited to its special purpose. The amendment of the restricting clause must either be prohibited or must be subject to the additional approval of, for instance, the trustee for debenture-holders. It is recommended that the authority of directors to transact outside the limited purpose of the company must be excluded in a clause in the memorandum of incorporation. The amendment of this clause must be prohibited or restricted. Such a provision would be a ‘restrictive condition’, but even if it were not, prohibition of amendment of the clause would give access to the ring-fence provisions of the Act. Constructive notice may be afforded to such clauses in this manner, thereby excluding the applicability of s 20(7), the common-law Turquand rule, and estoppel. The ratification of actions outside the limited capacity of the company or restricted authority of the directors may be excluded in the memorandum of incorporation. Rather than being an attempt at avoidance, this is a greater restriction than would otherwise apply to a company.
ISSN: 1996-2177
Affiliations: Attorney and Notary Public of the High Court of South Africa. Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 133 – 159
Section 71(3) of the Companies Act 71 of 2008 has introduced a novel power into our company law, which permits the board of directors of a company under certain circumstances to remove a director from office. While there may be merits in vesting a company’s board of directors with this power, concerns arise whether the fear of removal from office would stifle the actions of a director in managing the company’s affairs, whether the power would be abused, and whether the board of directors could act with ulterior motives in removing a diligent director from office. In Pretorius v PB Meat (Pty) Ltd [2013] ZAWCHC 89, the Western Cape High Court shed some light on the interpretation of s 71(4) of the Companies Act 71 of 2008 and on the power of a director to contest his removal from office. Although the Companies Act 71 of 2008 makes some provision for a director to contest his removal from office by the board of directors, a director who has been unfairly removed from office by the board of directors will nevertheless face certain difficulties. In light of these difficulties and as a result of the Pretorius decision, it is important to guard against the potential for abuse of this new power by boards of directors.
ISSN: 1996-2177
Affiliations: Assistant Professor, Vrije Universiteit Amsterdam; Professor of Constitutional and Administrative Law, Vrije Universiteit Amsterdam
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 102 – 132
The central aim of this article is to compare the legal position of semi-public entities in the Netherlands with those in South Africa. The performance of the public function in South Africa and the Netherlands is not restricted to the government. Both states are moving towards privatising services. This trend of privatisation means that public functions are increasingly being performed by private entities. This has resulted in the establishment of a special category of private bodies, which the authors refer to as semi-public entities. This article focuses on the question of the extent to which substantive public-law standards apply to semi-public entities and whether their conduct is susceptible to administrative judicial procedures. Furthermore, this article briefly considers the question to what extent mechanisms of public control and public accountability should be applicable to semi-public entities. The answers to these questions depend on how the public/private-law divide generally is understood. In this piece this fundamental distinction is approached as a multifunctional and context-dependent divide. The legal position of semi-public entities is considered as part of this framework. An important finding of this article is that in Dutch law the label ‘public law’ is used in fewer kinds of cases than in South African law, which is particularly expressed with regard to semi-public entities.
ISSN: 1996-2177
Affiliations: Lecturer in the School of Law, Deakin University; Associate Professor in the Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 133 Issue 1, 2016, p. 73 – 101
This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.