scholarly journals Evolving Statutory Derivative Action Principles in South Africa: The Good Faith Criterion and Other Legal Grounds

2021 ◽  
pp. 1-19
Author(s):  
Brighton M Mupangavanhu
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
Good Faith ◽  
Best Interests ◽  
Australian Case ◽  
A Company ◽  
Court Of Appeal ◽  
Legal Grounds

Abstract The recent Supreme Court of Appeal (SCA) judgment in Lazarus Mbethe v United Manganese of Kalahari raises jurisprudential questions regarding statutory derivative actions in South Africa. For example, the SCA did not agree with the court a quo's ruling that the discretion to be exercised by the court is limited by provisions of section 165(5). The SCA also questioned whether it is necessary for South African courts to follow the good faith criterion in the Australian case of Swansson v Pratt as adopted into South African law through Mouritzen v Greystones Enterprises (Pty) Ltd & Another. This article contributes to these questions, and proposes possible criteria for other requirements in section 165(5)(b) of the Companies Act 71 of 2008. These other requirements are that the statutory derivative action proceedings must involve “a trial of a serious question of material consequence to a company” and that proceedings be “in the best interests of the company”.

scholarly journals A SPRING WITHOUT WATER: THE CONUNDRUM OF ANTI-DUMPING DUTIES IN SOUTH AFRICAN LAW

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Clive Vinti
Keyword(s):  
South Africa ◽  
International Trade ◽  
Supreme Court ◽  
South African ◽  
Case Analysis ◽  
The Supreme Court ◽  
The Impact ◽  
Court Of Appeal

The Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), permits the imposition of anti-dumping duties for as long and to the extent necessary to counteract dumping which is causing injury subject to the proviso that they must be terminated after five years unless a sunset review has been initiated. Sunset review has the purpose of either permitting or terminating the continuation of an anti-dumping duty. This is significant because if the sunset review is not initiated prior to the expiry of the five year period, the anti-dumping duties will be terminated.Therefore, this places a greater emphasis on the determination of the precise date of commencement of the anti-dumping duties. This is because an incorrect determination of the date of imposition of the anti-dumping duty has obvious financial implications for the interested parties. To this end, the Supreme Court of Appeal in South Africa has delivered two salient judgments in this regard: firstly, in Progress Office Machines CC v SARS, and then more recently, in Association of Meat Importers v ITAC. These two cases hinge on the interpretation of the date of 'imposition' of definitive anti-dumping duties particularly where provisional measures are involved, which invariably determines the date of expiry of the duties as espoused by Regulations 38 and 53 of the International Trade Administration Commission Anti-Dumping Regulations.This paper contends that these two judgments are conflicting and riddled with inconsistencies. Secondly, the paper contends that the SCA has in the recent AMIE case, virtually rewritten its earlier judgment of Progress Office Machines. Lastly, the paper shows that the approach of South African courts on whether the Anti-Dumping Agreement is binding on South African law, is fraught with uncertainty and an ambivalence .The case analysis also reflects on the impact of the newly minted but yet to be implemented, Customs Duty Act, with a view to assess the impact of the new legislation on the issues currently plaguing the anti-dumping regime of South Africa. 

scholarly journals The Contours of Profit-Making Activities of Non-Profit Companies: An Analysis of the New South African Companies Act

2012 ◽  
Vol 56 (2) ◽  
pp. 243-267 ◽  
Author(s):  
Maleka Femida Cassim
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
New South ◽  
Practical Importance ◽  
Recent Case ◽  
Non Profit ◽  
For Profit ◽  
The Supreme Court ◽  
Court Of Appeal

AbstractWhile for-profit companies regularly embark on non-profit activities, the converse issue has recently come to attention, namely whether non-profit companies may embark on profit-making activities. This has given rise to a confusing conundrum of practical importance, not only in South Africa but also in other jurisdictions. This article discusses whether non-profit companies, under the South African Companies Act of 2008, may have purely commercial objects. It also addresses the intertwined question of the contours of permissible profit-making activities. Since the non-profit company is the modern successor to the section 21 company under the previous Companies Act of 1973, this article considers the recent case of Cuninghame v First Ready Development 249, in which the Supreme Court of Appeal was faced with the problem of a section 21 company with a commercial object. The article also explores the administration of rental pool agreements by non-profit companies, which arose in the Cuninghame case.

scholarly journals Disqualification for non-compliance with public tender conditions

2014 ◽  
Vol 17 (6) ◽  
pp. 2314
Author(s):  
P Bolton
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
Public Procurement ◽  
Limpopo Province ◽  
Equal Treatment ◽  
The Supreme Court ◽  
International Instruments ◽  
Tender Evaluation ◽  
Court Of Appeal

When government entities procure goods or services, they generally  consider and award contracts only to bidders who complied with the  specifications and conditions of tender as laid down in the tender invitation. Tenders received must in other words be conforming, compliant or  responsive. This enables procuring entities to compare tenders on an equal footing and ensures equal treatment amongst bidders. In South Africa the extent to which bidders must comply with tender specifications and  conditions is a thorny issue in practice. In 2008 the Supreme Court of Appeal in Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province confirmed the views of the courts in South Africa regarding compliance with tender conditions and the amendment of tenders before award. The recent 2013 decision of the Supreme Court of Appeal in Dr JS Moroka Municipality v The Chairperson of the Tender Evaluation Committee of the Dr JS Moroka Municipality, however, has  moved public procurement regulation in South Africa to a point where  procuring entities have very limited discretionary powers when evaluating compliance with tender specifications and conditions. This paper argues for an approach that allows procuring entities in South Africa more discretion when evaluating compliance with tender specifications and conditions. In doing so, reliance is placed on the treatment of "responsiveness" in  international instruments as well as the views of the South African courts since first they were confronted with the issue.

scholarly journals BARGAINING IN BAD FAITH IN SOUTH AFRICAN LABOUR LAW: AN ANTIDOTE?

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Fiona Leppan ◽  
Avinash Govindjee ◽  
Ben Cripps
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
South African ◽  
Good Faith ◽  
Bad Faith ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Legislation ◽  
The Many ◽  
Labour Organisation

While good-faith bargaining is recognized in many overseas jurisdictions and by the International Labour Organisation, such a duty has not been incorporated in South African labour legislation. Given the many recent examples of labour unrest in South Africa, it is time to consider whether there should be a duty to bargain in good faith when taking part in collective bargaining. Recognizing such a duty would arguably benefit both employers and employees and South Africa as a whole.

scholarly journals Strategic positioning of EAP in South African workplaces

2003 ◽  
Vol 3 (1) ◽  
Author(s):  
M. G. Matlhape
Keyword(s):  
South Africa ◽  
South African ◽  
Business Strategy ◽  
Employee Satisfaction ◽  
Business Processes ◽  
Chain Model ◽  
Employee Assistance ◽  
Strategic Positioning ◽  
And Performance ◽  
A Company

Two phenomena are having a profound effect on management and industry in the 21st century. The first one is the increasing rate and depth of competition locally, regionally, and globally, and the consequent increase in focus on achieving competitiveness by companies. The second phenomenon is the increasing appreciation of the importance of employees in assisting the company to gain a competitive advantage over its competitors. Employee Assistance Programmes have been used as part of the business strategy to enhance employee functioning, loyalty, and performance in organisations around the world for a good part of the 20th century. In South Africa this service did not gain much momentum until the 1980. Despite the growth of EAP in South Africa, however, in most cases it still remains on the periphery of real business activities and is often regarded as a "nice to have" rather than as a business imperative. The location of EAP within a company is very important in determining its impact within the organisation. Because of EAPs capacity to impact on both individual employees and the organisation as its primary client, it has potential to make a great impact in organisations' business processes, where these interface with individual output and wellbeing. A service-profit-chain model was introduced as a link between employee satisfaction and company profitability. This article gives an in-depth focus on EAP and the important role it can play in achieving employee satisfaction.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

A Digest of Recent Israeli Cases

1984 ◽  
Vol 19 (1) ◽  
pp. 154-157
Author(s):  
Paul Sharon
Keyword(s):  
Supreme Court ◽  
Standard Form ◽  
Good Faith ◽  
The Supreme Court ◽  
Company Directors ◽  
General Part ◽  
A Company

This was an Additional Hearing granted by leave of the President of the Supreme Court for the purpose of considering the incidence, ratione personae, of the good faith requirement established under sec. 12 of the Contracts (General Part) Law, 1973. The significance of the decision lay in the question of the liability of agents and company directors who negotiate contracts to which they are not themselves party. In particular, the Court was called upon to consider whether, on the basis of sec. 12, a company director negotiating a contract solely on the company's behalf could be held personally liable in relation to that contract, or whether he could seek refuge behind the corporate veil.The respondent, David Castro (hereafter: the Purchaser), had negotiated with Yosef Pnini (hereafter: the Appellant) for the purchase of an apartment to be built by Pnidar, Development and Building Investments Company, Ltd. (hereafter: the Company). The Appellant was manager of the Company, and he and his wife were the sole stockholders. The Appellant and the Purchaser signed a standard-form preliminary agreement which the Company used for the sale of apartments in buildings that it constructed, and the Purchaser made all payments due for the purchase of the apartment. During the course of negotiations it was not revealed to the Purchaser that neither the Company nor the Appellant owned the property upon which the apartment was to be constructed.

scholarly journals THE ROLE OF REMORSE IN SENTENCING

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Pieter du Toit
Keyword(s):  
Supreme Court ◽  
South African ◽  
Deterrent Effect ◽  
The South ◽  
The Supreme Court ◽  
Mitigating Factor ◽  
Court Of Appeal

It has become an established feature of the South African sentencing practice to consider the level of remorse displayed by the accused. Genuine contrition or remorse is generally regarded as a mitigating factor whilst the absence thereof is considered to be an aggravating factor. Our courts link the presence of remorse with the prospect of the rehabilitation of the offender. In S v Seegers (1970 (2) SA 506 (A) 512G–H) Rumpff JA held that remorse, as an indication that the offence will not be committed again, is an important consideration, in suitable cases, when the deterrent effect of a sentence on the accused is considered. This note considers the meaning of “remorse” in the eyes of our courts, the approach of South African courts (in particular the Supreme Court of Appeal) to the role of remorse in sentencing, as well as the question whether the presence or absence of remorse can truly be determined by a court.

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