Notes: Perspectives on the juridical basis for taking (the value of) trust assets of alter-ego trusts into account for the purposes of accrual claims at divorce: REM v VM

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Notes: Perspectives on the juridical basis for taking (the value of) trust assets of alter-ego trusts into account for the purposes of accrual claims at divorce: REM v VM

Authors Bradley S Smith

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Free State
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 715 – 728

Abstract

None

Twin Peaks: South Africa’s financial sector regulatory framework

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

Twin Peaks: South Africa’s financial sector regulatory framework

Authors Andrew Godwin, Timothy Howse, Ian Ramsay

ISSN: 1996-2177
Affiliations: Associate Professor, Melbourne Law School, The University of Melbourne; Research Associate, Melbourne Law School, The University of Melbourne; Harold Ford Professor of Commercial Law, Melbourne Law School, The University of Melbourne
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 665 – 702

Abstract

The National Assembly of South Africa has passed a Bill adopting the ‘twin-peaks’ model of financial regulation, which sees regulation split into two broad functions: market conduct regulation and prudential regulation. This article compares the structure of the twin-peaks model in South Africa with the structure in other jurisdictions. In doing so, it identifies the strengths and possible weaknesses of the model in South Africa, and the extent to which it reflects international experience. The evolution of the legislation reveals that South Africa has drawn increasingly on international experience, particularly the experience in the UK. However, it also reveals characteristics that might be regarded as unique to South Africa. Two areas are particularly noteworthy in this regard. First, the regulatory framework attempts to achieve a balance between the need to ensure operational independence on the part of the regulators, and the need to recognise the role and involvement of the executive government. Secondly, by comparison with international experience (even that in the UK) the design of the regulatory co-ordination framework appears to involve a high level of potential overlap between the co-ordinating bodies, and also a highly prescriptive approach to achieving effective co-ordination.

The authority of company representatives and the Turquand rule revisited

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

The authority of company representatives and the Turquand rule revisited

Authors Farouk H I Cassim, Maleka Femida Cassim

ISSN: 1996-2177
Affiliations: Former Professor of Law, University of the Witwatersrand; Former Visiting Professor, University of Johannesburg; Associate Professor, Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 639 – 664

Abstract

It has become necessary to re-examine the issue of authority and representation in the sphere of company law as a result of the judgment of the Constitutional Court in Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC), and consequent to the enactment of the Companies Act 71 of 2008. This article analyses the authority of, and representation by, agents on behalf of companies in general, with a specific focus on the burning question of the juristic nature of ostensible authority and the Turquand rule, and their relationship to the doctrine of estoppel.

The duty of the state to act fairly in litigation

by | Oct 20, 2019 | SALJ, SALJ V134 I3 2017

The duty of the state to act fairly in litigation

Authors Abraham Klaasen

ISSN: 1996-2177
Affiliations: Lecturer, Faculty of Law, North-West University
Source: South African Law Journal, Volume 134 Issue 3, 2017, p. 616 – 638

Abstract

South African organs of state are obliged to act fairly, justly and honestly when litigating. These obligations are derived from the Constitution of the Republic of South Africa, 1996, which places positive constitutional duties on an organ of state when it engages in litigation. Organs of state frequently ignore these constitutionally imposed duties, and thereby abuse the court process. Existing control mechanisms in place to ensure compliance are clearly not effective in holding organs of state constitutionally accountable. A punitive costs order granted against the state is paid for by the taxpayer. A costs order de bonis propriis is not always possible or indeed desirable in the circumstances. Accordingly, a change to the current law of civil procedure and professional legal ethics may be necessary. Enforceable guidelines that could provide legal clarity on the constitutional obligation imposed on organs of state during litigation are needed. Such guidelines, known as the model-litigant obligations, are used in Australia to force the state litigant to behave ethically and honestly. This article proposes the adoption of the model-litigant obligations in South African law.