A critical analysis of the State Capture Commission recommendations to protect whistleblowers in South Africa

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

A critical analysis of the State Capture Commission recommendations to protect whistleblowers in South Africa

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: BA LLB LLM (Witwatersrand) LLD (Unisa)
Source: South African Law Journal, Volume 140 Issue 4, p. 862-892
https://doi.org/10.47348/SALJ/v140/i4a8

Abstract

This article critically analyses the whistleblower recommendations of the State Capture Commission and the President of the Republic of South Africa’s response to implementing these recommendations. Three recommendations are made: ensuring that whistleblowers receive the protections afforded by art 32(2) of the United Nations Convention against Corruption; possibly awarding whistleblowers a proportion of funds recovered, provided the information disclosed has been material to recovering funds; and affording whistleblowers immunity from criminal or civil action arising from their honest disclosures. This article argues that, although these whistleblower recommendations are laudable and will both protect and incentivise whistleblowers to disclose wrongdoing, South Africa should have a consolidated legislative framework to govern whistleblowing in the various sectors rather than the current approach, which scatters the regulation of whistleblowing across many statutes. The article recommends enhancing the protection of whistleblowers and suggests how to structure South Africa’s whistleblower award programme so that it is clear, fair, transparent and efficient. It also argues that to avoid abuse, whistleblowers should not receive blanket immunity from criminal and civil proceedings but that this should be determined on a case-by-case basis.

Mervyn Dendy & Cheryl Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa (2021)

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

BOOK REVIEW

Mervyn Dendy & Cheryl Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa (2021)

Author: Mohamed Paleker

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 4, p. 893-902
https://doi.org/10.47348/SALJ/v140/i4a9

Abstract

None

André du Toit Amnesty Chronicles: The Inner History of the Amnesty Negotiations During the South African Transition, and the Origins of the TRC’s Amnesty Process (2022)

by | Nov 5, 2023 | SALJ, SALJ V140 I4 2023

BOOK REVIEW

André du Toit Amnesty Chronicles: The Inner History of the Amnesty Negotiations During the South African Transition, and the Origins of the TRC’s Amnesty Process (2022)

Author: Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 4, p. 903-911
https://doi.org/10.47348/SALJ/v140/i4a10

Abstract

None

Murder and fraud for inheritance: Smit v The Master of the High Court, Western Cape

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

NOTES

Murder and fraud for inheritance: Smit v The Master of the High Court, Western Cape

Author: Mohamed Paleker

ISSN: 1996-2177
Affiliations: Professor, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 3, p. 465-480
https://doi.org/10.47348/SALJ/v140/i3a1

Abstract

In South African law, a beneficiary may be disqualified from inheriting for killing the deceased, forging the deceased’s will, or acting in a morally reprehensible manner towards the deceased. In Smit v The Master of the High Court, Western Cape [2022] 4 All SA 146 (WCC), the court disqualified a wife from inheriting from her deceased husband because she had conspired to kill him. The court also disqualified her for forging his testamentary documents and his mother’s will. In addition, the court held that she was not entitled to claim maintenance and other benefits from his estate. This note critically evaluates the theoretical underpinnings of the court’s findings, with regard to the facts and the evidence in the case.

A call for specialised foreclosure courts and a separate foreclosure roll — An analysis of South African Human Rights Commission v Standard Bank of South Africa Ltd (CC)

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

NOTES

A call for specialised foreclosure courts and a separate foreclosure roll — An analysis of South African Human Rights Commission v Standard Bank of South Africa Ltd (CC)

Author: Ciresh Singh

ISSN: 1996-2177
Affiliations: Associate Professor, University of South Africa
Source: South African Law Journal, Volume 140 Issue 3, p. 481-494
https://doi.org/10.47348/SALJ/v140/i3a2

Abstract

In South African Human Rights Commission v Standard Bank of South Africa Ltd 2023 (3) SA 36 (CC), the Constitutional Court held that a bank is not obliged to take a foreclosure matter to the magistrate’s court, even if the magistrate’s court has jurisdiction over the matter. The apex court confirmed that a court is not entitled to decline to hear a matter properly brought before it because another court has concurrent jurisdiction. Before this decision, the Gauteng and Eastern Cape Divisions of the High Court both found that the High Court was entitled to decline to hear a matter if the matter fell within the jurisdiction of a magistrate’s court. These decisions were taken on appeal to the Supreme Court of Appeal, which upheld the appeal and found that the High Court has no power to refuse to hear a matter falling within its jurisdiction on the ground that another court has concurrent jurisdiction. The Constitutional Court has now confirmed the decision by the Supreme Court of Appeal, finding that complex matters such as foreclosure applications deserve more judicial scrutiny, and ought to be heard by the High Court.