scholarly journals GROUND-BREAKING JUDGMENT AS COURT CLARIFIES THE PROCEDURAL REQUIREMENTS IN SECTION 129 OF THE COMPANIES ACT 71 OF 2008 Panamo Properties v Nel NNO 2015 (5) SA 63 (SCA)

Obiter ◽  
2017 ◽  
Vol 38 (1) ◽  
Author(s):  
Darren Subramanien
Keyword(s):  
Supreme Court ◽  
Board Of Directors ◽  
High Court ◽  
The Supreme Court ◽  
A Company ◽  
Court Of Appeal ◽  
Do So

The judgment of the Supreme Court of Appeal (SCA) in Panamo Properties v Nel NNO (2015 (5) SA 63 (SCA)) is important because it clarifies certain controversial provisions of the Companies Act 71 of 2008 regarding the interpretation and application of section 129(1) of the Act, and the non-compliance by a company with the further requirements of sections 129(3) and (4), as well as the effect of section 129(5). In a number of cases in the various divisions of the High Court, it has been held that, where a company is placed in business rescue pursuant to a resolution of its board of directors, but thereafter fails to comply with the procedural requirements of section 129, the effect is to cause the business-rescue proceedings to terminate.  The reason for this was said to flow from the provisions of section 129(5), which provide that non-compliance with procedural formality, in terms of sections 129(3) and (4), results in the resolution placing the company under business rescue lapsing and becoming a nullity. The SCA held that non-compliance does not automatically result in the business rescue being terminated. Non-compliance is a ground for applying to court to set aside the resolution in terms of section 130(1)(a)(iii). But such resolution will be set aside only if it is otherwise just and equitable to do so, in terms of section 130(5), and the business rescue terminates in terms of section 132(2)(a)(i) once an order setting aside the resolution has been granted.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

scholarly journals PERSONAL LIABILITY OF A DIRECTOR IN TERMS OF SECTION 424(1) OF THE COMPANIES ACT 61 OF 1973 IN RELATION TO DEFAULT JUDGMENT IN TERMS OF RULE 39 OF THE UNIFORM RULES OF THE HIGH COURT: AN ANALYSIS OF Minnaar v Van Rooyen NO [2015] ZASCA 114

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Simphiwe Phungula
Keyword(s):  
Supreme Court ◽  
Application Process ◽  
High Court ◽  
First Case ◽  
Litigation Process ◽  
The Supreme Court ◽  
Action Process ◽  
Default Judgment ◽  
A Company ◽  
Court Of Appeal

The Uniform Rules of the High Court regulate procedure to be followed from the beginning of the matter until it is settled or decided by the courts. The Rules provide for the procedure to be followed prior to the litigation process when the court is not yet involved. During the litigation process, when the court is involved, the court establishes whether proper procedure has been followed before the matter is heard. The court will then conduct the litigation process, either the application process or the action process, and make a determination. The Rules may again provide guidance to the court when granting an order in that specific matter. However, complications may arise when the Uniform Rules clash with the procedures to be followed by the court in terms of the Statute.In Minnaar v Van Rooyen NO ([2015] ZASCA 114) the Supreme Court of Appeal was called upon to interpret section 424(1) of the Companies Act of 1973, in order to determine whether section 39(1) of the Uniform Rules allowed the court to grant a default judgment for a relief under section 424(1). The Supreme Court of Appeal upheld the appeal against the decision of the court a quo, that the court has the discretion to grant a default judgment for a relief under section 424(1), without evidence. The SCA held that there must be evidence establishing – on a balance of probabilities – that a former director of a company has acted recklessly before such an order can be granted. In the absence of that evidence an order granted under section 424(1) of the Companies Act is erroneously made, and had to be set aside. Since this is the first case decided by the Supreme Court of Appeal regarding the interpretation of Rule 39(1) and section 424(1), it is imperative that attention is drawn to the decision and how it has impacted on the Uniform Rules of the High Court. The aim of this paper is to interpret and determine how the court reached this conclusion, and how this conclusion has set out a new approach of interpreting Rule 39(1) of the Uniform Rules of the High Court and section 424(1) of the Companies Act.

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.

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. 

Presumption of Marriage in Uganda

2020 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
African Countries ◽  
High Court ◽  
The Supreme Court ◽  
Living Together ◽  
Law And Legislation ◽  
Court Of Appeal

Abstract Case law, amongst other sources, shows that many people in Uganda are living together as husband and wife although they are not married. Unlike legislation in other African countries such as Tanzania and Malawi, in Uganda, the pieces of legislation governing marriages are silent on the issue of presumption of marriage. Likewise, unlike in Kenya and South Africa where legislation does not provide for presumption of marriage but courts have held that such a presumption exists based on long cohabitation, Ugandan courts, the High Court, and the Court of Appeal, have held that Ugandan law does not recognise marriage based on long cohabitation (marriage by repute). However, courts will presume the existence of a marriage where a marriage ceremony took place. Since 2003, attempts to enact legislation to provide for the presumption of marriage in Uganda have not been successful. In this article, the author argues that there is still room for the Supreme Court to hold, on the basis of common law, that Ugandan law recognises the principle of presumption of marriage. This recognition would also be in line with Uganda’s international law obligation as the Committee on the Elimination of Discrimination against Women has called upon States Parties to CEDAW to enact legislation giving effect to de facto unions. The author relies on case law and legislation from some African countries to suggest ways in which the Supreme Court could deal with the issue of presumption of marriage.

Chieftaincy jurisdication and the muddle of constitutional interpretation in Ghana

1998 ◽  
Vol 42 (1) ◽  
pp. 37-63 ◽  
Author(s):  
A. K. P. Kludze
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Constitutional Interpretation ◽  
High Court ◽  
The Supreme Court ◽  
Bar Association ◽  
Court Of Appeal

The Supreme Court of Ghana, in The Ghana Bar Association v. The Attorney General, has unanimously decided that, even under the 1992 Constitution, High Court and the Court of Appeal have no jurisdiction in chieftaincy matters. Even if this decision itself is correct, it is nevertheless premised on highly questionable legal propositions and dicta which strike at the foundations of several otherwise settled principles and canons of construction.

Singapore

2015 ◽  
Author(s):  
Claire van Overdijk ◽  
Terence Seah
Keyword(s):  
Supreme Court ◽  
Mental Capacity ◽  
State Courts ◽  
District Court ◽  
District Courts ◽  
Court Order ◽  
High Court ◽  
The Supreme Court ◽  
Mental Capacity Act ◽  
Court Of Appeal

Singapore is a common law country. Judicial power is vested in the Supreme Court (High Court and Court of Appeal) and the State Courts (District Courts and Magistrates’ Courts). Pursuant to the Supreme Court of Judicature (Transfer of Mental Capacity Proceedings to District Court) Order 2010, proceedings under the Mental Capacity Act (cap 177A, 2010 Rev Ed) (‘MCA’) are now first heard by the District Court.

scholarly journals DEFAMATION OF SCHOOL TEACHERS BY LEARNERS Le Roux v Dey 2011 3 SA 274 (CC)

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
J Neethling ◽  
JM Potgieter
Keyword(s):  
Secondary School ◽  
Supreme Court ◽  
Sexual Activity ◽  
Constitutional Court ◽  
School Teachers ◽  
High Court ◽  
The Supreme Court ◽  
Vice Principal ◽  
Court Of Appeal

In Le Roux v Dey a vice-principal at a well-known secondary school in Pretoria instituted two separate claims for sentimental damages under the actio iniuriarum for insult (infringement of dignity) and defamation (infringement of reputation) against three school learners. The defendants published manipulated pictures of the plaintiff and the principal of the school depicting them both naked and sitting alongside each other with their hands indicative of sexual activity or stimulation. The school crests were superimposed over their genital areas. The plaintiff succeeded with both claims in the High Court (Dey v Le Roux 2008-10-28 case no 21377/06 (GNP)) butthe Supreme Court of Appeal (Le Roux v Dey 2010 4 SA 210 (SCA)) held that the separate claim for insult was ill-founded because in assessing damages for defamation, the court should also take the plaintiff’s humiliation into account. The Supreme Court of Appeal nevertheless confirmed the trial court’s award of R45 000. The defendants appealed to the Constitutional Court.

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