scholarly journals SARS LIABLE FOR CHEQUES LOST OR STOLEN IN THE POST Stabilpave v SARS (615/12) [2013] ZASCA 128

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
Darren Subramanien
Keyword(s):  
Supreme Court ◽  
South African ◽  
The South ◽  
The Supreme Court ◽  
Court Of Appeal

The Supreme Court of Appeal (SCA) in Stabilpave v SARS (615/12) [2013] ZASCA 128 was asked to decide on the assumption of risk where a cheque issued by the South African Revenue Services was intercepted through the post and subsequently misappropriated by thieves. The judgment of the court is significant as it stated clearly that any agreement “about the particular mode of performance” or “as to the manner of payment” will only be reached if the creditor stipulates (or requests orauthorizes) a particular mode of payment and the debtor accedes to the request. According to the court, due to the fact that the appellant had not requested the refund by cheque, SARS carried the risk of theft or loss of the cheque.

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.

Judicial Answer to the Application of a Market Level Adjuster and the Broad Construction of a Complaint under the South African Pension Funds Act

2015 ◽  
Vol 59 (2) ◽  
pp. 317-328
Author(s):  
Mtendeweka Mhango
Keyword(s):  
Supreme Court ◽  
South African ◽  
Pension Fund ◽  
Pension Funds ◽  
Recent Case ◽  
The South ◽  
The Supreme Court ◽  
Court Of Appeal

AbstractThe jurisdiction of the Adjudicator is one of the most litigated and academically debated subjects in modern South African pension law. This note adds to the debate by discussing a recent case decided by the Supreme Court of Appeal in Mungal. In this case, the court construed the Adjudicator's jurisdiction broadly and, in the process, made some important pronouncements which warrant academic commentary. This article argues that Mungal should be welcomed because it clarified that the Adjudicator has jurisdiction to determine disputes against insurers of underwritten pension fund organizations. The author maintains that, by construing the Adjudicator's jurisdiction broadly, the court empowered the Adjudicator to achieve its mandate of disposing of complaints in a procedurally fair, economical and expeditious manner, and to extend services to lay complainants.

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)

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.

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

2021 ◽  
Vol 8 (2) ◽  
pp. 149-174
Author(s):  
Paul Nkoane
Keyword(s):  
United States ◽  
Supreme Court ◽  
South African ◽  
General Public ◽  
The United States ◽  
Constitutional Court ◽  
United States Supreme ◽  
The South ◽  
Case Selection ◽  
The Supreme Court

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

scholarly journals Ex parte Somers (1927) 48 NPD 1: A story of racial exclusion in the South African legal profession

2019 ◽  
Vol 23 ◽  
Author(s):  
Salona Lutchman
Keyword(s):  
Supreme Court ◽  
Racial Discrimination ◽  
South African ◽  
Legal Profession ◽  
Personal Perspective ◽  
The South ◽  
Law Schools ◽  
The Supreme Court ◽  
Racial Exclusion ◽  
University College

ABSTRACT The article critically examines the judgment in ex parte Somers (1927) 48 NPD 1 from both a legal and personal perspective. The judgment details the case of an Indian South African who requested the Court to grant his admission as a candidate attorney. The Court refused his application on the basis that he could not complete the set of courses required by the Supreme Court Rules, as his admission to Natal University College had been denied. Without detailing the reasons for the College's refusal, the Court reinforced the College's racial discriminatory policies. The article examines the judgment from two perspectives: courtrooms as a space of protest; and racial exclusion at law schools and the legal profession. Keywords: Racial discrimination, courtroom as a space of protest, law schools, legal profession

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. 

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