Notes: ‘Observations’ on the State Capture judgment

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: ‘Observations’ on the State Capture judgment

Author: Michael Tsele

ISSN: 1996-2177
Affiliations: Member of the Cape and Johannesburg Bars
Source: South African Law Journal, Volume 138 Issue 3, p. 477-500
https://doi.org/10.47348/SALJ/v138/i3a1

Abstract

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

Notes: Children, autonomy and statements: The need for a bright-line rule

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: Children, autonomy and statements: The need for a bright-line rule

Author: Salona Lutchman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 3, p. 500-508
https://doi.org/10.47348/SALJ/v138/i3a2

Abstract

Currently, a child cannot provide a statement without parental or guardian consent. This limits the child’s right to participate fully in matters which affect the child. Indeed, it also impacts the fact-finding process of an investigation. In terms of international conventions and the Children’s Act 38 of 2005, child participation is a cornerstone of children’s rights. This note proposes that South African law recognise adolescent autonomy — specifically, an adolescent’s competence to provide a statement in matters affecting the child. An adolescent’s stage of growth (physical and mental) makes the child capable of understanding the consequences of such conduct, and the child’s developing agency and cognitive abilities mean that the child may wish to do so. The note proposes that the law recognise the autonomy of a child who is twelve years or older to provide an unassisted statement in legal fora.

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

Author: Tshepo H Mongalo

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 138 Issue 3, p. 508-521
https://doi.org/10.47348/SALJ/v138/i3a3

Abstract

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.

Notes: Splitting hairs? Bwanya v The Master of the High Court

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Notes: Splitting hairs? Bwanya v The Master of the High Court

Author: Fatima Osman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 3, p. 521-534
https://doi.org/10.47348/SALJ/v138/i3a4

Abstract

In Bwanya v The Master of the High Court 2021 (1) SA 138 (WCC), the Western Cape High Court ordered that the applicant, a partner in an opposite-sex partnership, was entitled to inherit from her deceased partner’s estate by ordering an amendment of the Intestate Succession Act 81 of 1987 to cater for unmarried opposite-sex partners. The court distinguished the case from Volks NO v Robinson 2005 (5) BCLR 446 (CC) — which precludes an unmarried partner from claiming maintenance from the deceased partner’s estate — on the basis that the case involved an inheritance claim as opposed to maintenance. The note argues that the failure of the court to deal with the central argument in Volks in respect of inheritance rights undermines the strength of the judgment. The Constitutional Court in confirmation proceedings should address this matter, and consider a softening of the doctrine of stare decisis to overrule the Volks case. Furthermore, the case opens the door to claims by other unmarried partners in polygamous relationships. While such claims involve policy considerations that are best addressed by the legislature, they are likely to come before the courts in the near future. Courts should recognise such claims in acknowledgment of the diversity in family formations in South Africa.

Blood and breath alcohol test results: Uncertainty at the interface of science and law

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Blood and breath alcohol test results: Uncertainty at the interface of science and law

Authors: J B Laurens, P A Carstens, J B Laurens & L G Curlewis

ISSN: 1996-2177
Affiliations: Senior Lecturer, Forensic Toxicology Laboratory, Department of Chemistry, Faculty of Agriculture and Natural Sciences, University of Pretoria; Professor, Centre for Law and Medicine, Department of Public Law, Faculty of Law, University of Pretoria; Legal Consultant, Forensic Toxicology Laboratory, Department of Chemistry, Faculty of Agriculture and Natural Sciences, University of Pretoria; Senior Lecturer, Department of Procedural Law, Faculty of Law, University of Pretoria
Source: South African Law Journal, Volume 138 Issue 3, p. 535-568
https://doi.org/10.47348/SALJ/v138/i3a5

Abstract

Alcohol is well known for its ability to impair human faculties, which creates risks when driving a vehicle or when performing safety- and risk-sensitive tasks in workplaces. The article aims to highlight some shortcomings in the legal-scientific approach for alcohol testing in South Africa. In particular, we investigate the measurement uncertainty of blood alcohol test results, which is critical in adjudicating over-the-limit cases. The South African regulatory framework for alcohol testing in the criminal- and private-law environments is examined from an analytical due-process perspective, considering measurement uncertainty and other well-established scientific principles which are essential at the interface of science and law. Special attention is paid to the National Road Traffic Amendment Bill, which aims to decrease the alcohol limit to zero. We found that the measurement uncertainty concept has not yet been received into the South African legal system, even though it is a well-established scientific principle. We suggest changes to the current alcohol legislation to accommodate the measurement uncertainty principle and the related likelihood ratio, which we believe could assist in quantifying the odds of compliance. In particular, we believe that our suggestions regarding quantification and reporting of measurement uncertainty can assist the courts and tribunals to avoid false-positive errors that may have a devastating effect on innocent subjects.

Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

by | Sep 1, 2021 | SALJ, SALJ V138 I3 2021

Form and substance in the Constitutional Court: Whither contract law’s policy after apartheid?

Author: Jaco Barnard-Naudé

ISSN: 1996-2177
Affiliations: Professor of Jurisprudence, Department of Private Law, University of Cape Town, BCom LLB LLD (Pretoria) MA (Cape Town).
Source: South African Law Journal, Volume 138 Issue 3, p. 569-598
https://doi.org/10.47348/SALJ/v138/i3a6

Abstract

This article enquires into commitments of substance and form in contract law after apartheid. The argument begins with an overview of the substance and form argument as presented by Duncan Kennedy in 1976 and applied to the South African law of contract by Alfred Cockrell in 1992. Kennedy and Cockrell’s argument that commitments of form follow commitments of substance in private-law adjudication generally, and in contract-law adjudication specifically, is mapped onto Karl Klare’s 1998 argument that transformative constitutionalism necessitates a commitment to the ‘postliberal’ in both formal and substantive terms. The argument then proceeds to a reading of the majority judgment in the Constitutional Court in Beadica 231 CC & others v Trustees for the time being of the Oregon Trust & others. The discussion illustrates how form still follows substance in the South African law of contract in a constitutional era, and how the privileged policy position remains that of rule-based formal commitments and individualist substantive commitments. The article concludes with the assertion that the dominance of the individualism/rules position is inconsistent with transformative constitutionalism’s commitment to a postliberal legal order.