Abstract

The Sengadi v Tsambo (“Sengadi”) judgment was a high-profile case that highlighted the difficulties experienced by courts adjudicating the existence of a customary marriage. The note argues that living customary law should be instructive in the enquiry and courts should ascertain and give effect to the living customary law on the matter. Previous court judgments may be a source of law but should not be used as precedent as it risks distorting and ossifying the law. Furthermore, courts should be cognisant of – and give effect to – the nuanced manners in which people experience customary law, such as the waiver of some requirements of a customary marriage. The note further explores whether ubuntu may be useful in determining whether to recognise a customary-law marriage.

Abstract

In this article, the focus falls on exclusive use rights in sectional title ownership. It investigates the nature of the changes brought about to rights of exclusive use after the commencement of the Sectional Title Schemes Management Act 8 of 2011 (“STSM Act”) and the Community Schemes Ombud Service Act 9 of 2011 (“CSOS Act”). It is submitted that the aforementioned legislation streamlined the position for the creation of rule-based exclusive use rights and also relieved uncertainty about the existence of these rights. The fact that rules need to be submitted to the Community Schemes Ombud Service (“the CSOS”) for examination, approval and custodianship, will in future, when the ombud service becomes fully operational, facilitate the tracing of and provide confirmation of the existence of rule-based exclusive use rights within sectional title schemes. The article furthermore explores the nature of the rules of a sectional title scheme. The current position held by courts, albeit referred to in connection with homeowner’s associations, is that these rules are contractual in nature, which is dogmatically unsound. It is submitted that Willow Waters Homeowners Association (Pty) Ltd v Koka could be used as authority for the argument that these rules are the objective law of an autonomous statutory association. Furthermore, the interpretation of the agreement between the parties is not an accurate measure to determine the nature of the right, but that the subtraction from the dominium test should be applied cautiously to prevent the creation of real rights in a haphazard fashion that will exacerbate legal uncertainty.

This article also investigates the distinction between rule-based exclusive use rights created in terms of section 10(7) and (8) of the STSM Act and exclusive use rights created in terms of section 27 of the Sectional Titles Act 95 of 1986 (“Sectional Titles Act”). The difficulty that this distinction leads to in practice is illustrated by a critical discussion of case law and common-law principles of property law. It is proposed that rule-based exclusive use rights should be clearly described as such in contracts of sale to alleviate uncertainty regarding their existence. This article proposes to paint a clearer picture of the different types of exclusive use rights found in practice and how new legislation influences these rights.

Abstract

The indigenous knowledge movement argues in favour of the recognition of the plurality of knowledge manifested in indigenous communities. However, this assumption presupposes a universal indigenous knowledge which asserts a manifestation of indigenous knowledge in counterpoint to that of “the West” as if all expressions of traditional knowledge form part of a single system of anti-European knowledge resources. The arguments in favour of the sui generis protection of indigenous knowledge base their demands on the assumption that ethnic group entities have lasting and comprehensive rights on cultural products and ideas, that the relationship of such group entities to their cultural assets are describable as forms of ownership to cultural identity, and that indigenous knowledge gathered by missionaries, anthropologists and film makers prior to the promulgation of laws protecting indigenous knowledge does not meet the required standards of informed consent. In this article, the authors argue that these assumptions undergirding the proposed South African legislation on the protection of indigenous knowledge are flawed. The authors voice their concerns about the continued expansion of intellectual property rights and the progressive invasion of knowledge in the public domain. In addition, the absence of an internationally acceptable definition of the indigenous entities qualifying for sui generis protection, harbours the potential of abuse by majority cultures appropriating the rights of indigenous minorities to their economic advantage. In the proposed South African legislative project such appropriation causes further marginalisation of the true indigenous peoples of the region. Regarding the envisaged protection of cultural expressions of indigenous peoples, the authors advocate the treatment of such expressions as part of the public domain, so that anyone may have access to them and contribute to their development and evolvement. The authors support the adoption of an approach that will help to protect the public domain without contributing to the progressive expansion of the scope of intellectual property rights on the one hand and provide indigenous people with the opportunity to reap economic benefit from their traditional cultural products on the other.

Abstract

South African courts are employing a novel instrument in the fight against corruption, such instrument being the imposition of a personal costs order against state officials. This article briefly discusses corruption and accountability in state institutions and argues that ordering personal cost orders against state officials is a promising prospect in the fight against corruption. Personal cost orders are then analysed by addressing eight concerns that arise when such orders are imposed. These concerns are: what the legal basis is for being held personally liable for costs; whether there is a uniform test to be applied when considering a personal cost order; whether such an order can be made on a punitive scale; the joinder of affected parties; whether it can be imposed without the matter being heard in open court; the power of courts to impose such an order; whether it infringes on the separation of powers doctrine; and lastly, whether it could lead to an ineffective system of public administration. The article concludes by finding that there is no legislative deficit in the fight against corruption and finds that until officials are held personally accountable for their misfeasance, they will continue to exploit their position as they are protected by their public office. This “protection” and inclination to misappropriate public funds might fall away if officials are ordered to pay legal costs in their personal capacity.

Abstract

One of the features of private equity investing is the private equity firm appointing individual(s) to serve on the board of directors of the underlying portfolio investee companies to manage the interest of the private equity fund and ultimately to act in the best interests of the fund’s investors. This article discusses the statutory and common-law duties of a director, including the specific issues related to the interrelation between private equity firms and the portfolio companies in which they invest. However, in the context of a private equity fund, this expectation can often be problematic because directors must exercise their duties with unfettered discretion. Directors cannot, without the consent of the company, fetter their discretion in relation to the exercise of their powers, and cannot bind themselves to vote in a particular way at future board meetings. Therefore, a director who is appointed to represent certain shareholders (albeit a private equity fund(s)), is still obliged to exercise his or her discretion and must act positively to protect the interests of the company even if they conflict with those of the people who elected him or her.

Abstract

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