scholarly journals The Appellate Division has spoken – Sequestration Proceedings do not Qualify as Proceedings to Enforce a Credit Agreement under The National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 4 SA 597 (SCA)

2017 ◽  
Vol 14 (2) ◽  
pp. 170
Author(s):  
Ngwaru Maghembe
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
Debt Restructuring ◽  
The Supreme Court ◽  
Financial Obligations ◽  
Credit Agreement ◽  
National Credit Act ◽  
Court Of Appeal

This case note aims to analyse the decision of the Supreme Court of Appeal in Naidoo v ABSA Bank 2010 4 SA 597 (SCA) and to spark some debate as to whether being under debt review in terms of the National Credit Act (NCA) should bar sequestration proceedings in the form of an application for the compulsory sequestration of a consumer’s estate. This decision held that a credit provider does not need to comply with the procedure provided for in section 129(1) of the NCA before instituting sequestration proceedings against a debtor, as such proceedings are not proceedings to enforce a credit agreement. The main issues discussed in this article are whether the court was correct in its interpretation of the relevant provisions of the NCA and whether this decision that allows a creditor to sequestrate a debtor who is attempting to meet his/her obligations under debt review, without informing him/her, is consistent with the principle urging consumers to satisfy all of their financial obligations under the NCA. It is submitted by the author that the court was correct in its interpretation of the relevant provisions of the NCA, but may have overlooked how this decision may impact the principle of satisfaction by the consumer of all of his/her financial obligations. It is suggested by the author that amendments be made to force the creditor to give a section 129 notice to the debtor before seeking sequestration of his/her estate. The author also suggests that once debt restructuring has been granted, credit providers should not be allowed to proceed with sequestration proceedings against the debtor.

scholarly journals Delivery of the Compulsory Section 129(1) Notice as required by the National Credit Act of 2005

2018 ◽  
Vol 21 ◽  
pp. 1-39
Author(s):  
Sarah Govender ◽  
Michelle Kelly-Louw
Keyword(s):  
Supreme Court ◽  
Consumer Credit ◽  
Constitutional Court ◽  
Legal Action ◽  
Legal Costs ◽  
Credit Agreement ◽  
National Credit Act ◽  
Court Of Appeal

In terms of section 129(1) of the National Credit Act 34 of 2005 (NCA), a credit provider first needs to provide a consumer with notice of his default and a list of possible remedies to overcome the default, before enforcing the agreement in a court of law. This ensures that the consumer is given the opportunity to remedy his default by, for example, undergoing debt counselling instead of having to incur legal costs when defending legal action brought against him by the credit provider. Before the National Credit Amendment Act 19 of 2014 came into operation, the NCA neglected to specify how this notice should be delivered to consumers, and this has led to various conflicting decisions. The matter was eventually settled by the Constitutional Court in two separate cases. After the Constitutional Court pronounced on the matter, the National Credit Amendment Act came into operation prescribing the manner in which the notice must be delivered. Consumer-credit legislation that existed prior to the NCA coming into operation generally also made provision for similar notices to be delivered to consumers. In this article we briefly look at how the previous consumer-credit legislation dealt with the delivery of similar notices and also consider how the delivery of notices is currently governed by the NCA. Most of the problematic issues surrounding the delivery of the section 129(1) notice have been resolved, but some still remain. One such example is found in a recent Supreme Court of Appeal case, where despite the correct delivery of the notice to the consumer, the notice caused unintended jurisdictional problems for a credit provider trying to enforce the credit agreement    

scholarly journals Bokolo v S 2014 (1)sacr 66 (sca): The practicality of challenging dna evidence in court

2015 ◽  
Author(s):  
Emma Charlene Lubaale
Keyword(s):  
Supreme Court ◽  
Active Role ◽  
Case Note ◽  
Scientific Validity ◽  
Dna Evidence ◽  
The Supreme Court ◽  
Appeal Decision ◽  
Court Of Appeal ◽  
The Ideal

The techniques used in DNA profiling are well established and scientifically validated. The scientific validity of DNA evidence can, however, be so persuasive that such evidence risks being reduced to proof of guilt or innocence. Thus, the incorrect use of DNA evidence could lead to a miscarriage of justice where the innocent are convicted and the guilty are acquitted. Drawing from the Supreme Court of Appeal decision in Bokolo v S (Bokolo case), this case note discusses how DNA evidence can be placed in its proper forensic context. The article sets out the ideal role of expert witnesses, the role of opposing or neutral experts, and the active role of judicial officers in evaluating DNA evidence.

scholarly journals A Fresh Perspective on Historical Sexual Abuse: The Case of Hewitt v S 2017 1 SACR 309 (SCA)

2017 ◽  
Vol 20 ◽  
pp. 1-21
Author(s):  
Windell Nortje ◽  
Pieter Du Toit
Keyword(s):  
South Africa ◽  
Sexual Abuse ◽  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Sexual Offences ◽  
Sexual Crimes ◽  
The Supreme Court ◽  
Fresh Perspective ◽  
Court Of Appeal

Sexual crimes continues to be a scourge in our society. It is therefore not surprising that the prevention and criminalisation of sexual crimes in South Africa has received a large amount of attention over the last few years. Contrarily, the matter of historical sexual abuse has received only occasional consideration. Cases of historical sexual abuse present numerous challenges to all parties involved. The victims of historical sexual abuse, often children at the time, are now adults. Some of these victims might not want to relive the experience or confront the offender. On the other hand, the offender might have been rehabilitated and become a respected citizen. In Hewitt v S 2017 1 SACR 309 (SCA) the Supreme Court of Appeal heard the appeal against the sentence of Bob Hewitt, a retired tennis champion. He was convicted of committing numerous sexual offences against young girls. The first of these crimes was committed more than three decades ago. This case note analyses the decision by the SCA while it also examines historical sexual abuse more generally in South Africa as well as in England and Wales, in order to establish whether any lessons can be learned from previous cases and laws as implemented in these countries.     

scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

scholarly journals CONSTRUCTIVE DISMISSAL: A TRICKY HORSE TO RIDE Jordaan v CCMA 2010 31 ILJ 2331 (LAC)

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
N Whitear-Nel ◽  
Matthew Rudling
Keyword(s):  
Supreme Court ◽  
Job Security ◽  
Case Note ◽  
Group Schemes ◽  
Appeal Court ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

The concept of constructive dismissal is flexible because the circumstances that may give rise to it are “so infinitely various” (Minister of Home Affairs v Hambidge 1999 20 ILJ 2632 (LC) par 12). As such, there are no clear rules defining precisely when a constructive dismissal has taken place. The facts of each case must be established, interpreted and measured against general principles to determine whether the requirements for constructive dismissal have been met. The Labour Appeal Court (LAC), in the case of Jordaan v CCMA (2010 31 ILJ 2331 (LAC) 2335), made the point that the law has attained more certainty since Hambidge’s case. This is partially true. However, this case note shows that it remains difficult to set down hard and fast rules to determine the existence of a constructive dismissal. The Supreme Court of Appeal (SCA) has held that very strict proof of constructive dismissal is required, and it has not readily found that circumstances complained of by employees constitute such a dismissal. In the case of Old Mutual Group Schemes v Dreyer (1999 20 ILJ 2030 (LAC)) Conradie JA cautioned that constructive dismissal is not for the asking. He held that generally it will be difficult for an employee who resigns to show that he has actually been constructively dismissed, because the onus of proof on the employee in this regard is a heavy one. Jordaan’s case highlights just how hard it is to establish a viable claim of constructive dismissal. It shows that even where an employee experiences a loss of job security as a result of attempts by the employer to protect his business, and this leads to the employee’s resignation, it will not rise to the standard of constructive dismissal. The LAC saw Jordaan’s case as an attempt to “stretch the law relating to constructive dismissal” and held that this was not only inappropriate but that such an attempt “should not be contemplated” by future courts.

scholarly journals EFFECT OF A NOTICE TO SURRENDER ON AN INSOLVENT’S ESTATE SUBSEQUENT TO A SALE IN EXECUTION Fourie v Edkins (740/12) [2013] ZASCA 117 (19 September 2013)

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
Tshegofatso Kgarabjang
Keyword(s):  
Supreme Court ◽  
Debt Relief ◽  
The Other ◽  
Major Portion ◽  
Full Disclosure ◽  
The Supreme Court ◽  
Contractual Obligations ◽  
National Credit Act ◽  
Court Of Appeal ◽  
Credit Granting

A debtor who is unable to meet his or her contractual obligations may resort to the debt-relief measures provided by the Insolvency Act 24 of 1936 and National Credit Act 34 of 2005. The Insolvency Act provides sequestration as one of the debt-relief measures because following the sequestration order the debtor may be rehabilitated. In one hand, a debtor may apply for sequestration process by way of voluntary surrender while on the other it is also possible for a creditor to sequestrate a debtor’s estate by way of compulsory sequestration. The NCA also provides debt-relief measures because it contains provisions that are aimed at the protection of consumers who are over-indebted, and further contains measures that are aimed at preventing reckless credit granting. In Ex Parte (2009 (3) SA 376 (WCC)) the applicants applied for voluntary surrender, whereas the major portion of each of the applicants’ debts arose out of “credit agreements” as intended in the NCA. The court enquired as to why the over-indebtedness of the applicants should not be more appropriately addressed instead of the voluntary surrender under the Insolvency Act. The court refused the application for voluntary surrender and held that an applicant has to make a full disclosure of his or her other assets and liabilities in terms of section 4 of the Insolvency Act, and the court must be fully informed of the applicant’s proprietary situation. The decision in Ex Parte Ford indicates that an applicant, who brings an application for voluntary surrender instead of using remedies under the NCA such as over-indebtedness, will have to explain to the court as to why he has not resorted to the debt-relief measures provided by the NCA.According to the Insolvency Act the main aim of the sequestration process is to provide for a collective debt-collecting process that will ensure an orderly and fair distribution of the debtor’s assets in the circumstances where these assets are insufficient to satisfy all the creditors’ claims. Therefore the rights of creditors as a group will be preferred over the rights of a single creditor (concursus creditorum). The former comes into operation after a sequestration order has been granted by a court. The effect of sequestration is that the insolvent will be divested of his estate and vest in the Master at least until a trustee has been appointed. More pertinently, section 20(1)(c) of the Insolvency Act provides that one of the effects of sequestration of the estate of an insolvent is that, as soon as any sheriff or messenger, whose duty is to execute judgment given against the insolvent, becomes aware of the sequestration should stay that execution, unless the court directs otherwise.In the matter between Fourie v Edkins the Supreme Court of Appeal had to consider circumstances in which a court could exercise its discretion in terms of section 20(1)(c) of the Insolvency Act, to stay the execution in the instance where a sheriff had sold immovable property in the execution of judgment, pursuant to a sale agreement concluded before the insolvent applied for sequestration of his or her estate and also prior to the registration of the transfer of the property in the name of the execution purchaser. The aim of this note is to analyse the decision in Fourie v Edkins in light of section 20(1)(c) of the Insolvency Act which deals with the effects of sequestration. Brief reference will also be made to other cases relating to section 20(1).

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

scholarly journals Deservingness in Judicial Discourse. An Analysis of the Legal Reasoning Adopted in Dutch Case Law on Irregular Migrant Families’ Access to Shelter

2021 ◽  
pp. 1-10
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Supreme Court ◽  
Legal Reasoning ◽  
Migrant Families ◽  
The Supreme Court ◽  
Judicial Discourse ◽  
Major Shift ◽  
New Interpretation ◽  
Irregular Migrant ◽  
Court Of Appeal

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy. This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

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