SECTION 4(1)(b) OF THE DEEDS REGISTRIES ACT 47 OF 1937 AS A REMEDY FOR THE MISTAKEN TRANSFER OF LAND Bester NNO v Schmidt Bou Ontwikkelings CC [2012] ZASCA 125 (21 September 2012)

The deeds office practice was recently (dis)honoured by the Supreme Court of Appeal’s (SCA) decision in Bester NNO v Schmidt Bou Ontwikkelings CC, which was expected to address an “interpretative dearth” with regard to the application of section 4(1)(b) of the Deeds Registries Act 47 of 1937 (DRA). The main issue (for the purpose of this note) in this case related to two questions. The first question before the court was the applicability of the abstract theory of ownership to immovable property and how it impacts on the registration of such ownership in the deeds office. The second question dealt with the correct procedure in terms of the DRA to rectify a mistaken transferarising from an incorrect property description in the title deed. With reference to the second question, the SCA applied section 4(1)(b) as a remedy to rectify the mistaken transfer of the property. This note analyses the decision in Bester v Schmidt Bou with regard to the manner in which the respondent, Schmidt Bou Ontwikkellings CC (Schmidt Bou), applied for an order for rectification of the mistaken transfer of an incorrect property, and the court’s application of the relevant provisions of the DRA. The note will conclude with a discussion of alternative provisions of the DRA which could be applied to remedy the dispute in this case.

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KEWENANGAN MENGADILI PENGADILAN HUBUNGAN INDUSTRIAL DALAM PERKARA DIREKSI MELAWAN PERUSAHAAN

Jurnal Yudisial ◽

10.29123/jy.v12i2.349 ◽

2019 ◽

Vol 12 (2) ◽

pp. 179

Author(s):

Nindry Sulistya Widiastiani

Keyword(s):

Supreme Court ◽

Industrial Relations ◽

Civil Law ◽

Main Issue ◽

District Court ◽

The Supreme Court

ABSTRAKPenelitian ini menganalisis Putusan Peninjauan Kembali Mahkamah Agung Nomor 521 PK/Pdt/2017, dalam perkara gugatan uang jasa pengabdian dan penghargaan oleh direksi melawan perusahaannya. Pada putusan peninjauan kembali, Mahkamah Agung berpendapat bahwa perkara ini merupakan yurisdiksi dari pengadilan hubungan industrial, bukan pengadilan negeri. Pokok permasalahan dalam penelitian ini ialah mengenai apakah pengadilan hubungan industrial mempunyai yurisdiksi atas perkara a quo sebagaimana dikemukakan Mahkamah Agung. Penelitian ini bersifat normatif untuk menelaah prinsip-prinsip yang berkaitan dengan permasalahan secara mendalam. Hasil penelitian menunjukkan bahwa pengadilan hubungan industrial tidak berwenang mengadili perkara ini. Direksi di perusahaan berkedudukan sebagai perwakilan pengusaha, bukan pekerja, sehingga perselisihan antara direksi dengan perusahaan bukanlah termasuk perselisihan hubungan industrial sebagaimana diatur dalam Undang-Undang Nomor 2 Tahun 2004. Oleh karena itu, perkara ini adalah sengketa keperdataan biasa yang merupakan yurisdiksi dari pengadilan negeri.Kata kunci: kewenangan mengadili, direksi, pengadilan hubungan industrial, pengadilan negeri. ABSTRACT This research aims to analyze the Supreme Court's civil request Decision Number 521 PK/Pdt/2017, in the case of honorarium devotion lawsuit and reward of the directors against his company. In this decision, the Supreme Court believes that this case is in the jurisdiction of the industrial relations court, not in the district court. The main issue in this research is whether the industrial relations court has jurisdiction over the case as stated by the Supreme Court. This normative research is to examine deeply about the principles that relate to the problem. The author concludes that the industrial relations court theoretically has no jurisdiction to handle this case. In any companies, directors are the representatives, not their workers, so that the dispute between the company and its directors is not an industrial relations dispute as stipulated in Law Number 2 of 2004. Therefore, the case is just a regular civil law dispute under which the district court has jurisdiction. Keywords: jurisdiction, director, industrial relations court, district court.

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Briefly Noted

International Legal Materials ◽

10.1017/ilm.2021.37 ◽

2021 ◽

Vol 60 (5) ◽

pp. 966-967

Keyword(s):

Human Rights ◽

Supreme Court ◽

Majority Vote ◽

Main Issue ◽

Executive Power ◽

American Democracy ◽

Presidential Candidates ◽

Court Of Justice ◽

Primary Responsibility ◽

The Supreme Court

On June 2, 2021, the Intern-American Court of Human Rights was referred a case from the Inter-American Commission of Human Rights concerning Fabio Gadea Mantilla, a former candidate in the 2011 Nicaraguan presidential race. According to a press release from the OAS, it was contested that the country possessed the primary responsibility of securing and upholding Gadea Mantilla's right to become an electoral candidate, which it failed to accomplish. This is in reference to his past participation in 2011, where he was listed as a prime candidate for the presidency. In March of 2011, the presidential seat was occupied by Daniel Ortega, and despite the illegality of Ortega seeking re-election, he won by a majority vote of over 62%. This was addressed and argued before the Supreme Electoral Council by both Gadea Mantilla and other competing parties, which was dismissed, and the decision finalized. According to constitutional precedent, the Council has the last word on these matters and appeals are simply not possible. The main issue to be determined was whether executive power was being overextended, impeding on democratic processes as outlined in Article 147 of the Constitution, which limits presidential candidates to two terms. The Constitutional Chamber of the Supreme Court of Justice failed to see any validity in referencing this, but the IACHR asserted its stance on this practice being a direct contradiction to foundational principles of inter-American democracy.

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The arbitrability of civil fraud in India: analysing the Supreme Court of India’s decision in Avitel Post Studioz Ltd

Arbitration International ◽

10.1093/arbint/aiaa042 ◽

2020 ◽

Author(s):

Sayantan Bhattacharyya ◽

Moksh Ranawat

Keyword(s):

Supreme Court ◽

Civil Law ◽

Criminal Proceedings ◽

The Public ◽

Supreme Court Of India ◽

It Impacts ◽

The Supreme Court ◽

The Impact ◽

Considerable Period

ABSTRACT The arbitrability of civil fraud under Indian jurisprudence had been a victim of vaguely worded and scattered tests for a considerable period of time. In its recent decision in Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd., the Supreme Court of India finally put the uncertainties regarding the matter to rest by harmonizing the existing law on it and crystallizing the ‘public flavour’ standard. According to this standard, allegations of fraud which find their roots in civil law and have no public considerations shall now be considered arbitrable in India. The judgment also clarified the impact that parallel criminal proceedings based on the same set of facts would have on the arbitrability of the civil aspects of such fraud, bringing necessary clarity to the erstwhile regime. In this article, we explore the implications of this judgment in detail, highlighting its relevance for arbitration in India, and how it impacts the jurisprudential position on the arbitrability of fraud in the country.

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The Msiza-case: the perpetuation of injustices by the miscalculation of “just and equitable” compensation

European Property Law Journal ◽

10.1515/eplj-2019-0009 ◽

2019 ◽

Vol 8 (2) ◽

pp. 211-226

Author(s):

Elmien Du Plessis

Keyword(s):

Supreme Court ◽

Land Reform ◽

Market Value ◽

Land Claims ◽

The Past ◽

Reform Legislation ◽

The Supreme Court ◽

Title Deed ◽

History Of ◽

Court Of Appeal

Abstract In 1998 Mr Msiza, a labour tenant, successfully instituted a claim in terms of land reform legislation (the Land Reform (Labour Tenant) Act) for ownership of the land that he and his father occupied for six decades. In terms of this legislation, when the labour tenant is awarding the land, the owner of the land must be compensated for the loss of the land. In 2004, the Land Claims Court confirmed the award of land and ordered the state to make sure that Mr Msiza gets a title deed for the land. The case was heard again in 2016 in the Land Claims Court, where the court this time examined the question of compensation to be paid to the owner. The Land Claims Court ruled that the Constitutional compensation requirement is “just and equitable” compensation, and awarded less-than-market-value compensation by subtracting a seemingly arbitrary amount from the market value of the land. This decision was overturned in 2017 when the Supreme Court of Appeal ruled that the the just and equitable question were already considered in the calculation of market value, and therefore ruled that no amount be deducted from what the valuers calculated to be market value. The handling of the case, and the different approaches from the two courts, is a symptom of the uncertainty that judges are confronted with when they have to calculate “just and equitable” compensation. A history of the case will reveal that the inability to properly valuate the land, perpetuated the injustice that Mr Msiza is facing, of not having the land registered in his name, despite a valid award in terms of land reform legislation. This paper will show how the compensation requirement is a hurdle to Mr Msiza receiving the title deed to his land. By making use of the valuation reports and the court materials, the paper will endeavour to indicate what a better outcome would be, by focussing on the calculation of “just and equitable” compensation. The paper will argue for a purposive approach when interpreting legislation dealing with compensation, where the Constitutional purpose to “heal the divisions of the past” should play a central role in land reform cases.

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Some views from the South African Constitutional Court on patent revocation and infringement matters: Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC)

South African Intellectual Property Law Journal ◽

10.47348/saipl/v9/a1 ◽

2021 ◽

Vol 9 ◽

pp. 1-17

Author(s):

Mikhalien Du Bois

Keyword(s):

Supreme Court ◽

South African ◽

Animal Health ◽

Main Issue ◽

Constitutional Court ◽

The South ◽

Res Judicata ◽

The Supreme Court ◽

Court Of Appeal ◽

The Way

In South African law, the substantive requirements for a patent may be scrutinised during infringement proceedings or revocation proceedings. Lack of novelty (or anticipation) is a ground for revocation of a patent but can also serve as a defense in an infringement matter. After a series of decisions by the Commissioner of Patents and the Supreme Court of Appeal on infringement and revocation matters relating to Merck’s Patent 98/10975 and its alleged infringement by Cipla (now Ascendis), the Constitutional Court was asked to deliberate the matter in Ascendis Animal Health (Pty) Limited v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC). The main issue related to the principle of res judicata, and whether invalidity of a patent may be considered as a defense during infringement matters after the validity of the patent was already determined during revocation proceedings between the same parties. The decisions also considered whether each revocation ground constituted a separate issue or whether revocation is the issue for purposes of determining whether a matter is res judicata. A review of all the preceding decisions also indicate that the Supreme Court of Appeal may have developed the way in which lack of novelty is determined in South African law, but without explicitly acknowledging that the approach is different. The Constitutional Court’s evenly split decisions (per Khampepe J and Cameron J) indicate different approaches to reaching just and fair outcomes in patent matters. While Khampepe J’s decision focuses more on the need to remove invalid patents from the register, Cameron J’s decision focuses on preventing harm from piecemeal litigation.

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PERLINDUNGAN HUKUM TERHADAP MEREK TERKENAL ASING DI INDONESIA (STUDI KASUS PUTUSAN MAHKAMA AGUNG NOMOR: 165/Pdt.Sus-Hki/2016 DAN PUTUSAN MAHKAMA AGUNG NOMOR: 557K/Pdt.sus-HKI/2015)

Jurnal Hukum Adigama ◽

10.24912/adigama.v2i2.6702 ◽

2019 ◽

Vol 2 (2) ◽

pp. 1026

Author(s):

Ronald Kurniawan ◽

Simona Bustani

Keyword(s):

Supreme Court ◽

Main Issue ◽

District Court ◽

Legal Remedies ◽

The Supreme Court ◽

Case Number

The first dispute with Case Number MA Decree 557 K / Pdt.Sus-HKI / 2015 that occurred between the designer clothing (designer) from France, Pierre Cardin owner of the Brand Business Pierre Cardin as the claimant, whose brand is a popular brand and has been used since the beginning In March 1974, in this matter the prosecutor against the defendant Alexander Satryo Wibowo, was a local businessman who owned the Trademark Pierre Cardin, who had registered his trademark since July 29, 1977 in Indonesia, where there were similarities in essence or overall in the use of the trademark between the claimant and defendant. Therefore Pierre Cardin, hereby as the prosecutor, demanded the cancellation of the registered mark Card Pierre Cardin used by the defendant, against this demand the Commercial Court at the Central Jakarta District Court has determined the determination of Ms. 15 / Pdt.Sus-Trademark / 2015 / PN.Niaga.Jkt .Pst., Dated June 9, 2015 which in the main issue rejected the claim of the prosecutor for the whole. Furthermore, the Plaintiff requested the appeal of the appeal to the Supreme Court. Legal remedies requested by the claimant in accordance with the provisions of Chapter 6 point (3) letter b of Law Number 15 of 2001 concerning Trademarks. In carrying out the appeal appeal law, the Supreme Court has decided on decision number 557 K / Pdt.Sus-HKI / 2015 which in its stipulation stipulates rejecting an appeal request from the appealer Pierre Cardin.

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Malpractice & Negligence: Cal. Supreme Court Clarifies Negligence Provisions under State’s Elder Abuse Act

The Journal of Law Medicine & Ethics ◽

10.1017/s1073110500012973 ◽

1999 ◽

Vol 27 (2) ◽

pp. 203-203

Author(s):

Kendra Carlson

Keyword(s):

Health Care ◽

Supreme Court ◽

Health Care Providers ◽

Elder Abuse ◽

Skilled Nursing Facility ◽

Pressure Sores ◽

Care Providers ◽

Nursing Facility ◽

Skilled Nursing ◽

The Supreme Court

The Supreme Court of California held, in Delaney v. Baker, 82 Cal. Rptr. 2d 610 (1999), that the heightened remedies available under the Elder Abuse Act (Act), Cal. Welf. & Inst. Code, §§ 15657,15657.2 (West 1998), apply to health care providers who engage in reckless neglect of an elder adult. The court interpreted two sections of the Act: (1) section 15657, which provides for enhanced remedies for reckless neglect; and (2) section 15657.2, which limits recovery for actions based on “professional negligence.” The court held that reckless neglect is distinct from professional negligence and therefore the restrictions on remedies against health care providers for professional negligence are inapplicable.Kay Delaney sued Meadowood, a skilled nursing facility (SNF), after a resident, her mother, died. Evidence at trial indicated that Rose Wallien, the decedent, was left lying in her own urine and feces for extended periods of time and had stage I11 and IV pressure sores on her ankles, feet, and buttocks at the time of her death.

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Medical and Legal Issues Raised by the Protz Decision Issued by the Pennsylvania Supreme Court

Guides Newsletter ◽

10.1001/amaguidesnewsletters.2017.julaug03 ◽

2017 ◽

Vol 22 (4) ◽

pp. 12-13

Author(s):

LuAnn Haley ◽

Marjorie Eskay-Auerbach

Keyword(s):

Supreme Court ◽

Scientific Evidence ◽

Workers Compensation ◽

Sixth Edition ◽

Complex Concept ◽

The Supreme Court ◽

Compensation Claims ◽

Recent Edition ◽

Impairment Ratings ◽

Definition Of

Abstract Pennsylvania adopted the impairment rating provisions described in the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) in 1996 as an exposure cap for employers seeking predictability and cost control in workers’ compensation claims. In 2017, the Supreme Court of Pennsylvania handed down the Protz decision, which held that requiring physicians to apply the methodology set forth in the most recent edition of the AMA Guides reflected an unconstitutional delegation of legislative power to the American Medical Association. The decision eliminates the impairment-rating evaluation (IRE) mechanism under which claimants were assigned an impairment rating under the most recent edition of the AMA Guides. The AMA Guides periodically are revised to include the most recent scientific evidence regarding impairment ratings, and the AMA Guides, Sixth Edition, acknowledges that impairment is a complex concept that is not yet defined in a way that readily permits an evidence-based definition of assessment. The AMA Guides should not be considered standards frozen in time simply to withstand future scrutiny by the courts; instead, workers’ compensation acts could state that when a new edition of the AMA Guides is published, the legislature shall review and consider adopting the new edition. It appears unlikely that the Protz decision will be followed in other jurisdictions: Challenges to using the AMA Guides in assessing workers’ compensation claims have been attempted in three states, and all attempts failed.

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