scholarly journals STRICT CONFORMITY OF DOCUMENTS UNDER A PERFORMANCE GUARANTEE. DOES A SIGNED COPY OF A DOCUMENT QUALIFY AS AN ORIGINAL? Stefanutti & Bressan (Pty) Ltd v Nedbank Ltd (unreported judgment delivered on 30 July 2008) (case no 5311/2008) (D&CLD)

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
WG Schulze
Keyword(s):  
South African ◽  
Case Law ◽  
Performance Guarantee ◽  
High Court ◽  
Bond Performance ◽  
Performance Guarantees ◽  
Kwazulu Natal ◽  
Letters Of Credit ◽  
And Performance

Unlike in many overseas jurisdictions, there is a paucity of South African reported case law dealing with certain instruments of payment and guarantees for payment such as documentary letters of credit and performance guarantees, to mention but two examples of instruments prevalent in the field of payment and financing. For this reason any new case law dealing with either letters of credit or performance guarantees is to be welcomed as it would hopefully not only contribute to our understanding of this area of the law, but also provide an opportunity for comment and reflection. This holds especially true since the International Chamber of Commerce has recently (in July 2007) accepted and introduced a new version of the Uniform Customs and Practices for Documentary Credits (hereinafter “the UCP”): UCP 600. In passing: Apart from the main distinction between direct (three-party) and indirect (four-party) demand guarantees, they (ie, demand guarantees) may also be classified by reference to the phase or part of performance theyare designed to secure, hence the following classification of the different types of demand guarantees: tender guarantee (tender bond); performance guarantee (performance bond); advance payment guarantee (repayment guarantee); retention guarantee; and maintenance guarantee (warranty guarantee). In what follows below the author will use the concept of “guarantee”, being a genericterm, when referring to demand and/or performance guarantees in general. The recent decision in Stefanutti & Bressan (Pty) Ltd v Nedbank Ltd (unreported judgment delivered on 30 July 2008 (case no 5311/2008) by the Durban & Coast Local Division of the High Court (now: KwaZulu-Natal High Court, Durban) is a rare and welcome addition to the rather modest collection of South African decisions dealing with performance guarantees.

scholarly journals Efficiency Analysis of Government Subsidy and Performance Guarantee Policies in Relation to PPP Infrastructure Projects

2018 ◽  
Vol 2018 ◽  
pp. 1-11 ◽  
Author(s):  
Lei Shi ◽  
Yujia He ◽  
Masamitsu Onishi ◽  
Kiyoshi Kobayashi
Keyword(s):  
Government Subsidy ◽  
Performance Guarantee ◽  
Infrastructure Projects ◽  
Special Purpose Vehicle ◽  
Performance Guarantees ◽  
Sustainable Operation ◽  
Integrated Policy ◽  
The Government ◽  
And Performance ◽  
Liquidity Shock

Sustainable operation of public-private partnership (PPP) infrastructure projects that are characterized by considerable external benefits is of vital importance. However, a liquidity shock might trigger an inefficient liquidation of a project by the special purpose vehicle (SPV) and the bank, whose objectives are to maximize the profits generated by the project. This study argues that performance guarantee and subsidy policies implemented by the government play a role in encouraging socially efficient decision-making by the SPV and the bank to ensure the continuation of socially valuable projects. The results show that both government subsidy and performance guarantee policies are effective in avoiding the inefficient liquidation of PPP infrastructure projects when the external benefits are large and certain. However, a performance guarantee policy might lead to inefficient continuation when the external benefits of a project are uncertain. Finally, we discuss the possibility that an integrated policy combining performance guarantees and government subsidies improves the efficiency of a PPP infrastructure project.

scholarly journals “DUPED” SHAREHOLDERS MAY APPLY FOR WINDING-UP ORDER – SECTION 81(1)(e) OF THE COMPANIES ACT 71 OF 2008 Pinfold v Edge to Edge Global Investments Ltd 2014 (1) SA 206 KZD

Obiter ◽  
2014 ◽  
Author(s):  
Darren Subramanien
Keyword(s):  
South African ◽  
The South ◽  
High Court ◽  
First Case ◽  
Public Company ◽  
Kwazulu Natal ◽  
A Company

In what is the first case of its kind that to have come before the South African courts the shareholders in Pinfold v Edge to Edge Global Investments Ltd (2014 (1) SA 206 KZD) were granted permission by the KwaZulu Natal High Court (Durban) to wind up Edge to Edge Global Investments, a public company on allegations of fraud committed by the directors of the company. The application was brought before the court in terms of section 81(1)(e) of the Companies Act 71 of 2008. The decision is significant as it provides insight as to what the courts would consider to be fraudulent, illegal and a misuse or waste of the company's assets by the directors of a company, and what the shareholders of a company need to prove in order to be successful in an application based on section 81(1)(e) of the Act.

scholarly journals Re-partnering as a Contingency Deduction in Claims for Loss of Support Comparing South African and Australian Law

2017 ◽  
Vol 10 (3) ◽  
pp. 121
Author(s):  
L Steynberg
Keyword(s):  
South African ◽  
Case Law ◽  
Traditional Concept ◽  
High Court ◽  
Future Events ◽  
Australian Case ◽  
Uncertain Future ◽  
Northern Territories ◽  
The Right ◽  
High Court Of Australia

In a claim for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the probable remarriage of the surviving spouse. In light of the recent extension of the traditional concept of family and ‘husband and wife’, the wider term ‘re-partnering’ is suggested, instead of remarriage. If the widow has already entered into a new relationship during the course of the trial, it is taken into account as a proven fact and not as a contingency, according to the theory on compensating advantages. The right to a claim for loss of support is not automatically lost due to the re-partnering. The income and life expectancy of the new partner will be taken into account in calculating the extent of the claim. In three Australian jurisdictions, the Northern Territories, Victoria and Queensland, the legislature has promulgated legislation forbidding the use of remarriage as a contingency deduction in a claim for loss of support, irrespective of whether the re-partnering is a reality or just a probability. In general it can be stated that South African courts tend to over-emphasize the influence of probable re-partnering by a widow. In contrast to this, the manner in which re-partnering as a contingency is handled in Australian case law can be recommended as realistic and appropriate. In the recent decision in De Sales v 1Ingrilli, the High Court of Australia held that in cases where remarriage has not yet occurred, it should only be taken into consideration as part of the ‘standard’ adjustment (general contingency adjustment) for uncertain future events, and could no longer be applied as a specific contingency, which tends to be higher than the mentioned general contingency adjustment. The court determined that the general contingency adjustment, which incorporated the remarriage of the widow, should only be five percent. 

scholarly journals Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law

2017 ◽  
Vol 12 (4) ◽  
pp. 9 ◽  
Author(s):  
Lourens Du Plessis
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Contribution ◽  
Case Law ◽  
Constitutional Court ◽  
Significant Development ◽  
Cultural Rights ◽  
Kwazulu Natal ◽  
Minority Religion ◽  
The Right

This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly) eccentric claims of (assumedly) idiosyncratic 'religious Others'. Developments in this regard have, for the time being at least, culminated in the Constitutional Court's landmark judgment in MEC for Education: KwaZulu Natal v Pillay 2008 (2) BCLR 99 (CC), 2008 (1) SA 474 (CC)(hereafter Pillay). Constitutional Court judgments since 1997 manifesting the adjudication of such unconventional claims are assessed, eventually getting to Pillay as benchmark. This remarkable judgment, dealing with a deceptively mundane issue, has played a considerable role in fleshing out a jurisprudence of difference, putting an adherent of a vulnerable, minority religion in the right. This is not just a high point in the adjudication of constitutional entitlements of the religious (and cultural) Other in South Africa, but also a significant contribution to the growth of a jurisprudence sensitive to the predicaments and constitutional entitlements of unconventional, 'non-mainstream' claimants of religious (and cultural) rights. Finally Pillay illustrates that the constitutional guarantee of the right to freedom of religion, conscience, belief and opinion (entrenched in section 15(1) of the Constitution of Republic of South Africa 1996) can be crucially dependent upon due effect being given to the proscription of unfair discrimination on the grounds of religion, conscience, belief and opinion elsewhere (namely in section 9(3)) of the Constitution.

scholarly journals 'n Leë dop is soms beter as 'n halwe eier / An empty shell is sometimes better than half an egg – Gounden v Master of the High Court [2015] JOL 32896 (KZD) and Govender v Gounden 2019 2 SA 262 (KZN)

2020 ◽  
Vol 23 ◽  
pp. 1-39
Author(s):  
Anel Gildenhuys
Keyword(s):  
South African ◽  
The Other ◽  
Empty Shell ◽  
The South ◽  
High Court ◽  
Kwazulu Natal ◽  
Law Of Succession ◽  
Better Than

The KwaZulu-Natal High Court, Durban, recently had the opportunity to interpret section 15(3)(b)(iii) of the Matrimonial Property Act 88 of 1984 within the context of the South African law of succession. This section states that: "A spouse shall not without the consent of the other spouse … receive any money due or accruing to that other spouse or the joint estate by way of … inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse." The question before the court was whether a person who is married in community of property requires the consent of his or her spouse in order to repudiate an intestate inheritance. The following aspects were considered by both the court a quo (Gounden v Master of the High Court [2015] JOL 32896 (KZD)) as well as the full bench on appeal (Govender v Gounden 2019 2 SA 262 (KZN)): the distinction between dies cedit and dies venit; the importance of this distinction in electing to either adiate or to repudiate an inheritance; and the implications for the joint estate of spouses married in community of property. The purpose of this contribution is to analyse and critically discuss the reasoning in the judgments in relation to these three aspects.

scholarly journals Understanding the Performance Guarantee of Physical Topology Design for Optical Circuit Switched Data Centers

2021 ◽  
Vol 5 (3) ◽  
pp. 1-24
Author(s):  
Shizhen Zhao ◽  
Peirui Cao ◽  
Xinbing Wang
Keyword(s):  
Data Centers ◽  
Topology Design ◽  
Performance Guarantee ◽  
Performance Limit ◽  
Coupling Technique ◽  
Performance Guarantees ◽  
Performance Metric ◽  
Optical Circuit ◽  
And Performance ◽  
The Ideal

As a first step of designing O ptical-circuit-switched D ata C enters (ODC), physical topology design is critical as it determines the scalability and the performance limit of the entire ODC. However, prior works on ODC have not yet paid much attention to physical topology design, and the adopted physical topologies either scale poorly, or lack performance guarantee. We offer a mathematical foundation for the design and performance analysis of ODC physical topologies in this paper. We introduce a new performance metric β(G ) to evaluate the gap between a physical topology G and the ideal physical topology. We develop a coupling technique that bypasses a significant amount of computational complexity of calculating β(G). Using β(G ) and the coupling technique, we study four physical topologies that are representative of those in literature, analyze their scalabilities and prove their performance guarantees. Our analysis may provide new guidance for network operators to design better physical topologies for their ODCs.

PROPERTY TAX: THE SOUTH AFRICAN AND KWAZULU-NATAL EXPERIENCE

2014 ◽  
Author(s):  
Joey Krishnan ◽  
Roshinee Naidoo ◽  
Greg Cowden
Keyword(s):  
South African ◽  
Property Tax ◽  
The South ◽  
Kwazulu Natal

Transforming the Rural Agricultural Landscape Through Groundwater Optimisation: Exploring A Chinese-South African Partnership

2018 ◽  
Vol 15 (1) ◽  
Author(s):  
Nirmala Dorasamy ◽  
Olayemi Bakre
Keyword(s):  
South Africa ◽  
South African ◽  
Agricultural Landscape ◽  
Agricultural Practices ◽  
Subsistence Farming ◽  
Water Shortages ◽  
Subsistence Farmers ◽  
Farming Communities ◽  
Standards Of Living ◽  
Kwazulu Natal

The majority of the South African rural populace is directly or indirectly engaged in agricultural practices to earn a livelihood. However, impediments such as climate change, water shortages, and inadequacy of institutional support have undermined these once thriving subsistence farming communities. Furthermore, poor leadership in hydrology, coupled with a lack of depth in skills at all government levels to facilitate the understanding of the importance of groundwater, has made it near impossible for subsistence farmers to benefit optimally from groundwater. The 2012 drought experienced in South Africa paralysed several subsistence farming communities in KwaZulu-Natal. To revamp subsistence farming and assist these farmers across South Africa, the Department of Water and Sanitation launched interventions, but despite the enormous resources expended, indicators (e.g. unsustainable farming practices, poor crop yield, pitiable living conditions, and poor standards of living) provide evidence that these interventions have not yielded the desired results. This paper seeks to suggest practicable interventions aimed at reducing the vulnerability of subsistence farmers in KwaZulu-Natal. The study pursued a qualitative approach in that it solicited the views of experts on groundwater and in related fields to gain an in-depth perspective. Some of the core challenges undermining the sustainability and growth of subsistence farming in the study area were found to be the inadequacy of experts on groundwater, water shortages, institutional deficiencies, lack of political will, and lack of coordination among stakeholders. Pragmatic recommendations are made to address these challenges, among other things to encourage a South African-Chinese partnership in the hydrology sector.

Management of indiscipline among secondary school students in Ilembe District, KwaZulu-Natal, South Africa

2020 ◽  
Vol 9 (4) ◽  
pp. 139-156
Author(s):  
Ntombizandile Gcelu ◽  
◽  
Amy Sarah Padayachee ◽  
Sekitla Daniel Makhasane
Keyword(s):  
Secondary Schools ◽  
South African ◽  
School Administrators ◽  
Code Of Conduct ◽  
Structured Interview ◽  
School Students ◽  
Whole School ◽  
Kwazulu Natal ◽  
Whole School Approach ◽  
Meaningful Relationships

South African schools are faced with a serious problem of indiscipline. The available literature reveals that despite the efforts of school administrators and teachers to instil discipline among learners, indiscipline still abounds to the extent of getting out of hand. Based on the intention of this study, a qualitative study was adopted. A qualitative-based study underpinned by the interpretive research paradigm was employed to explore the perspectives of educators in their collaborative roles in managing discipline. The sample comprised twelve educators who were purposively selected from four secondary schools in the Ilembe District, KwaZulu-Natal. A semi-structured interview schedule was used to collect the data. The findings revealed that educators should apply the school code of conduct as a whole-school approach to managing discipline to create meaningful relationships with parents as stakeholders and communicate expected behaviours with learners. It is recommended that in implementing strategies to manage discipline, learners, educators, school managers and the school governing boards of all schools should take a collaborative approach to the management of discipline in secondary schools

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