The nature of new order prospecting rights and mining rights: A can of worms?

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

The nature of new order prospecting rights and mining rights: A can of worms?

Authors P J Badenhorst

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor of Law, Nelson Mandela Metropolitan University
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 361 – 382

Abstract

New order prospecting rights and mining rights are labelled as ‘limited real rights’ in s 5(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’). The use of this label is questioned in this article, and it is shown that the prospecting rights and mining rights are not fully compatible with the common-law notion of a limited real right. The nature of prospecting or mining rights is analysed by drawing a comparison with limited real rights or property in terms of property theory, equivalent rights which existed during the previous mineral dispensation, other rights to minerals issued under the MPRDA, public-law instruments, and the nature of ‘property’ in terms of s 25(1) of the Constitution of the Republic of South Africa, 1996. It is shown that rights which differ in nature and origin arise at different moments in time. It is concluded that a limited real right under the MPRDA is rather a right sui generis or a right that is separate from the dominium of land or minerals in situ.

Using eviction to combat housing-related crime and anti-social behaviour in South Africa and the Netherlands

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

Using eviction to combat housing-related crime and anti-social behaviour in South Africa and the Netherlands

Authors Michael Vols, Sarah Fick

ISSN: 1996-2177
Affiliations: Chair in Public Order Law, Faculty of Law, University of Groningen; Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 327 – 360

Abstract

This article focuses on eviction used by local authorities to combat crime and anti-social behaviour in the Netherlands and South Africa. It further analyses how these practices relate to the right of respect for the home of the evictees, as laid down in treaties and national legislation. The results of a functional comparative analysis indicate that both countries use eviction to address crime, and primarily apply this instrument to address drug-related crime. The analysis identifies three ways of using criminal activities as grounds for eviction. First, authorities refer to crime committed by the evictees themselves as a reason for the eviction. Secondly, they refer to crime committed by third parties as a reason to evict residents. Thirdly, criminal activity is used as a justification for mass evictions of residents. In both countries eviction is qualified as a serious interference with the right to respect for the home. The article concludes, however, that the use of eviction in cases regarding crime does not automatically result in a violation of this right. Local authorities and courts in both countries seem to have accepted the growing role of evictions to combat crime and anti-social behaviour.

Relational theory, context and commercial common sense: views on contract interpretation and adjudication

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

Relational theory, context and commercial common sense: views on contract interpretation and adjudication

Authors Andrew Hutchison

ISSN: 1996-2177
Affiliations: Associate Professor in the Department of Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 296 – 326

Abstract

One of the key insights of relational contract theory is that context matters — in all contracts, but particularly in long-term commercial ones. The use of context in the interpretation of contracts appears to be on the rise in South Africa, in line with increased subjectivity in contract adjudication. Interesting parallels can be drawn with the shifting sands of contract interpretation in the UK, where contextualism is on the rise, but remains controversial. Indeed, even the concept of good faith is under discussion in English law, particularly with regard to relational contracts. Appropriate construction of the agreement seems to be the favoured approach to achieve results which make ‘commercial common sense’. This article will also draw on the English reception of relational contract theory. These comparative insights will then be applied in a discussion of the proper approach to South African contract adjudication, using a case study of the Everfresh case, which is a leading example of a post-constitutional relational contract dispute.

‘Delinquent directors’ and ‘directors under probation’: A unique South African approach regarding disqualification of company directors

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

‘Delinquent directors’ and ‘directors under probation’: A unique South African approach regarding disqualification of company directors

Authors Jean du Plessis

ISSN: 1996-2177
Affiliations: Professor (Corporate Law) and Director, Centre for Comparative Corporate Governance, Deakin Law School, Deakin University, Australia
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 274 – 295

Abstract

This article explores the unique way in which the disqualification of company directors is provided for in the South African Companies Act 71 of 2008. Not only is the terminology of ‘delinquent director’ or ‘director under probation’ unique, but there are also several peculiar aspects regarding the orders that a court can make, and conditions that may be attached to these orders, when persons are declared ‘delinquent’ or put under ‘probation’ by a court. The article also explains in detail the rather complex nature of the disqualification provisions, and analyses all the cases dealing with ‘delinquency’. The focus is on the constitutionality of the delinquency orders that may be made by a court, which has been a pivotal aspect in most of the cases decided so far. The authors conclude that the core problem of the section providing for the disqualification of persons on application (s 162 of the Act) is its complexity. Different parties have standing to apply for delinquency or probation orders respectively, and the circumstances under which these parties can apply for such orders are also different and require careful interpretation to comprehend. It is unlikely that these provisions will be used to their full potential to achieve their ultimate goals, which are the protection of shareholders, creditors and the public against delinquent directors, and to provide opportunities for some directors to gain experience as directors in terms of court orders which place them ‘under probation’.

Notes: The admissibility of extra-curial admissions by a co-accused: A discussion in the light of the Ndhlovu, Litako and Mhlongo/Nkosi cases, and international law

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

Notes: The admissibility of extra-curial admissions by a co-accused: A discussion in the light of the Ndhlovu, Litako and Mhlongo/Nkosi cases, and international law

Authors Nicci Whitear

ISSN: 1996-2177
Affiliations: Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 244 – 262

Abstract

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