scholarly journals Disqualification for non-compliance with public tender conditions

2014 ◽  
Vol 17 (6) ◽  
pp. 2314
Author(s):  
P Bolton
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
Public Procurement ◽  
Limpopo Province ◽  
Equal Treatment ◽  
The Supreme Court ◽  
International Instruments ◽  
Tender Evaluation ◽  
Court Of Appeal

When government entities procure goods or services, they generally  consider and award contracts only to bidders who complied with the  specifications and conditions of tender as laid down in the tender invitation. Tenders received must in other words be conforming, compliant or  responsive. This enables procuring entities to compare tenders on an equal footing and ensures equal treatment amongst bidders. In South Africa the extent to which bidders must comply with tender specifications and  conditions is a thorny issue in practice. In 2008 the Supreme Court of Appeal in Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province confirmed the views of the courts in South Africa regarding compliance with tender conditions and the amendment of tenders before award. The recent 2013 decision of the Supreme Court of Appeal in Dr JS Moroka Municipality v The Chairperson of the Tender Evaluation Committee of the Dr JS Moroka Municipality, however, has  moved public procurement regulation in South Africa to a point where  procuring entities have very limited discretionary powers when evaluating compliance with tender specifications and conditions. This paper argues for an approach that allows procuring entities in South Africa more discretion when evaluating compliance with tender specifications and conditions. In doing so, reliance is placed on the treatment of "responsiveness" in  international instruments as well as the views of the South African courts since first they were confronted with the issue.

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. 

scholarly journals The Contours of Profit-Making Activities of Non-Profit Companies: An Analysis of the New South African Companies Act

2012 ◽  
Vol 56 (2) ◽  
pp. 243-267 ◽  
Author(s):  
Maleka Femida Cassim
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
South African ◽  
New South ◽  
Practical Importance ◽  
Recent Case ◽  
Non Profit ◽  
For Profit ◽  
The Supreme Court ◽  
Court Of Appeal

AbstractWhile for-profit companies regularly embark on non-profit activities, the converse issue has recently come to attention, namely whether non-profit companies may embark on profit-making activities. This has given rise to a confusing conundrum of practical importance, not only in South Africa but also in other jurisdictions. This article discusses whether non-profit companies, under the South African Companies Act of 2008, may have purely commercial objects. It also addresses the intertwined question of the contours of permissible profit-making activities. Since the non-profit company is the modern successor to the section 21 company under the previous Companies Act of 1973, this article considers the recent case of Cuninghame v First Ready Development 249, in which the Supreme Court of Appeal was faced with the problem of a section 21 company with a commercial object. The article also explores the administration of rental pool agreements by non-profit companies, which arose in the Cuninghame case.

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. 

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.

scholarly journals DOCTRINAL SANCTION AND THE PROTECTION OF THE RIGHTS OF RELIGIOUS ASSOCIATIONS: ECCLESIA DE LANGE v THE PRESIDING BISHOP OF THE METHODIST CHURCH OF SOUTHERN AFRICA (726/13) [2014] ZASCA

2016 ◽  
Vol 19 ◽  
Author(s):  
Shaun De Freitas
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Southern Africa ◽  
Religious Institutions ◽  
Methodist Church ◽  
Religious Doctrine ◽  
The Supreme Court ◽  
Religious Associations ◽  
Sexual Conduct ◽  
Court Of Appeal

Scholarship on the protection of religious rights and freedoms in the context of religious associations in South Africa has gained in momentum since the decision by the Equality Court in Johan Daniel Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park some years ago. Emanating from this were diverse scholarly insights on what the parameters of religious associations should be, with specific focus on sexual conduct, religious doctrine and membership of religious associations. The South African judiciary has not been confronted with a similar challenge since the decision. However, with the advent of the judgment by the Supreme Court of Appeal in Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa in 2014, questions as to the parameters of the rights of religious associations in the context of sexual conduct and religious doctrine again present themselves. This article consequently analyses the mentioned judgment by the Supreme Court of Appeal to further an understanding of the parameters of associational rights of religious institutions against the background of a truly plural and democratic society, as supported by the Constitution of South Africa.

scholarly journals The evasion of Section 187(1)(c) of the Labour Relations Act: National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) (JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC)

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 642-650
Author(s):  
Rasheed Keith-Bandath
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
National Union ◽  
Labour Relations ◽  
Appeal Court ◽  
The Supreme Court ◽  
First Time ◽  
Court Of Appeal ◽  
Conditions Of Employment

Section 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA), has over the years proven to be a controversial section. At the heart of the controversy is the question as to whether an employer may terminate employees’ contracts of employment based on operational requirements in circumstances where they refuse to accept changes to terms and conditions of employment. This question came before the courts on a number of occasions and answered in the affirmative by the Labour Appeal Court in Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA ((2003) 21 ILJ 133 (LAC)), and confirmed on appeal by the Supreme Court of Appeal in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005 (5) SA 433 (SCA)). However, the LRA has since been amended with the Labour Relations Amendment Act 6 of 2014 (LRAA). Whether an employer may, in light of the amendments, adopt this approach, was recently considered by the LabourAppeal Court in National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) ((JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019) (Aveng case (LAC)). The judgment is noteworthy as it is the first time that the Labour Appeal Court (LAC) delivered judgment relating to section 187(1)(c) of the LRA post-amendment, thus providing a degree of judicial certainty on the interpretation to be accorded to the amended section.

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