Regspraak: Troosgeld is deel van ’n reghebbende se afsonderlike boedelbates en nie deel van die gemeenskaplike boedel nie – verpligte deling troos nie

2022 ◽  
Vol 2022 (1) ◽  
pp. 159-170
Author(s):  
JC Sonnekus
Keyword(s):  
Supreme Court ◽  
South African ◽  
Legal Systems ◽  
Plain Language ◽  
Personality Rights ◽  
The Supreme Court ◽  
Form Part ◽  
Separate Property ◽  
The Common ◽  
Court Of Appeal

Although a husband and wife married in community of property share by default, if not design, all their patrimonial assets in the common estate, the solatium or compensation received by an injured person as satisfaction for the unjustified injury to his or her personality rights is not supposed to form part of the common estate – simply because it happened to be received in the form of a patrimonial asset. It is meant to be private or separate and for the comfort of the injured only. The purpose of the compensation received as solatium is not to fill a vacuum left by the delict in the injured party’s assets, but to serve as the only mode of solace available to law to provide redress for the wrong. Other than the position where a patrimonial asset of the claimant had been damaged, eg by the negligent car accident caused by the respondent, and where the awarded damages neatly compensate the wronged party for the damage caused, thereby placing the total estate in the same position where it was before the intervening delict, the solatium paid to the injured for the non-patrimonial damages suffered by the delictual inroad on his/her personality rights is not supposed to redress a negative impact on the total estate of the wronged. The spouse of the injured party, even where they are married in community of property, would never have been able to lay claim to those personality traits or attributes of the other spouse. Personality rights, per definition, never form part of the assets of any patrimonial estate and should not be shared simply because the matrimonial property regime happens to be community of property. The legislature correctly stipulated in section 18(a) of the Matrimonial Property Act 88 of 1984: “Notwithstanding the fact that a spouse is married in community of property – (a) any amount recovered by him or her by way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her, does not fall into the joint estate but becomes his or her separate property” – emphasis added. This formulation echoes what has been the legal position for ages. Along those lines Hiemstra J in Potgieter v Potgieter correctly held that the amount awarded as contumelia to the injured husband for the harm done to his personality rights by the adultery of his wife and the third party, would not form part of the joint estate but would be his separate property. In so doing, the court precluded the adulteress from further sharing in the spoils of her doing. In the underlying decision by the majority of the supreme court of appeal, however, it was held that section 18(a) should be read to be limited: “The context of s 18 must be read in its entirety, and apparent therefrom is the plain language and words used. [This] … section highlights that delictual damages received by a spouse during the course of a marriage in community of property, which are nonpatrimonial in nature (s 18(a)); and damages for bodily injuries owing to the fault of one’s spouse in terms of s 18(b) must be excluded from the division of the joint estate on divorce” (par 9 – emphasis added). In this case a very significant amount was received by the lady for the non-patrimonial loss suffered by her more than four years before the marriage had been concluded. According to the reading-in exercise of the supreme court of appeal it was not received “during the course of the marriage” and not ringfenced. As a consequence, the court upheld the appeal of the erstwhile husband after a marriage of very short duration (barely two years). He consequently successfully laid claim to fifty per cent of the more than half a million paid as non-patrimonial compensation to his wife, more than four years before he married her in community of property and only after becoming aware of the significant amount of that compensation invested by her. This decision not only flies in the face of logic and the legal principles underlying South African common law; it is in conflict with the latest developments in comparable Continental legal systems sharing the same historical and societal foundations as the South African law. This judgment provides poor consolation and it leaves a deeply imbedded discomfort, because the result is vehemently contrary to the outcome in comparable legal systems for a similar scenario. Dividing the solatium under the pretext of a division of the joint estate diminishes the solace intended for the injured.

scholarly journals The Unilateral Determination of Price – a Question of Certainty or Public Policy?

2017 ◽  
Vol 16 (3) ◽  
pp. 66
Author(s):  
Hanri M Du Plessis
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
South African ◽  
Extended Period ◽  
Objective Standard ◽  
Bargaining Position ◽  
The Supreme Court ◽  
Form Part ◽  
Court Of Appeal

The unilateral determination of price has been a controversial issue for an extended period of time. During the 1990s the Supreme Court of Appeal asked if the rule should still form part of South African law. Specifically, the court raised a few questions in respect of the rule and commented that the rule as applied in South African law is illogical. The court also remarked that public policy, bona fides and contractual equity might also be employed when considering such issues. Despite the criticisms of the Supreme Court of Appeal, it would seem that the rule still forms part of our law. This article investigates whether or not the rule should be retained in the South African common law. The answer will depend on two separate questions: Is the rule a manifestation of the requirement of certainty of price? If not, does public policy require that the rule be retained? The article shows that the rule prohibiting the unilateral determination of price should not be seen as a manifestation of the requirement of certainty of price. This is because there are various circumstances where the unilateral determination of the price results in certainty of price or can be applied in such a way as to arrive at certainty of price. Most of these arguments require that the discretion to determine the price should not be unfettered and should be subject to some objective standard. This can be done expressly or tacitly in the contract, or an objective standard (in the form of reasonableness) will be implied by law. Thereafter, the article considers various public policy considerations that could be used to determine if a discretion to determine the price should be enforced. The article argues that public policy may dictate that such a discretion should be valid and enforceable provided that it is not unfettered and subject to an external objective standard or reasonableness. However, in cases where an unfair bargaining position is present, public policy may dictate otherwise. The article accepts that whether a term providing for the unilateral determination of the price would be contrary to public policy or not will depend on the facts of the case. However, it is submitted that, at a minimum, the considerations and factors discussed in the article should be taken into account when making such an assessment.

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 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. 

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

2021 ◽  
Vol 2021 (2) ◽  
pp. 215-233
Author(s):  
EJ Marais
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Fundamental Rights ◽  
Electricity Supply ◽  
Constitutional Rights ◽  
Single System ◽  
The Supreme Court ◽  
The Common ◽  
The Right ◽  
Court Of Appeal

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

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 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.

Non-pathological criminal incapacity relating to provocation or emotional stress – an overview of developments in South African law

2019 ◽  
Vol 49 (2) ◽  
pp. 177-187
Author(s):  
Shannon Hoctor
Keyword(s):  
Supreme Court ◽  
South African ◽  
Emotional Stress ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Court Of Appeal

The development of the defence of non-pathological incapacity reflects a movement towards recognizing that an accused person should not be punished unless he or she is indeed blameworthy. This is furthermore consistent with the rights to dignity, and freedom and security of the person, set out in the Bill of Rights. However, policy concerns about the availability of a defence based on provocation or emotional stress have been raised. The development of the defence in this context and its apparent, but as yet uncertain, demise in the wake of the judgement of the Supreme Court of Appeal in S v Eadie is examined in this article, which provides an overview of the issues animating this area of law.

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.

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