Academic literature on the topic 'South Africa. Supreme Court. Appellate Division'

This article analyses the South African case of Ochberg v CIR, which dealt with the question whether shares issued by a company to Ochberg, who was, for all intents and purposes, the sole shareholder, in consideration for services rendered and an asset provided to the company, constituted “income” in terms of the definition of “gross income” in section 7(1) of the Income Tax Act No. 40 of 1925 (as it then applied). Ochberg’s contention was that he had received no benefit from the additional shares issued as the value of all the shares issued had been the same both before and after the issue of the shares. Accordingly, there had been no increase in his wealth and thus no income had been received. The majority decision (two of the five judges dissenting) of the Appellate Division of the Supreme Court held that the shares were “income” and had to be valued at their nominal value. The article first provides a glimpse into the life of Isaac Ochberg, who was a substantial benefactor to charitable causes. It then presents a thematic analysis of the four separate judgments set down in the case, and finally, discusses certain tax principles arising from the judgments. In conclusion, the article considers to what extent Ochberg benefited from the transaction in terms of the Haig-Simons model of taxation and the economic reality of the transaction. The lasting value of the decision is demonstrated with reference to citations of Ochberg v CIR in a number of more recent landmark cases.

The tragic results of incompetent police conduct – the court gives (too) short shrift to weak excuses The facts of the Sitali judgment provide a good example of how the incompetent conduct of police officials under unnerving conditions for the plaintiff gave rise to state liability. The plaintiff, Sitali, was surprised late one afternoon when his premises were invaded by a large, aggressive crowd wielding sticks, pangas and axes, three of whom approached and started attacking him, inter alia by firing shots at him with a handgun. Having fortunately escaped harm, the plaintiff thereupon attacked the three with a spear, causing them to flee and one of them even to drop and abandon a firearm. On departing from the scene they threatened the plaintiff that they would later return to deal with him. Sitali then picked up the firearm and concealed it on his property before summoning the police. A police vehicle with four occupants arrived sometime later. After the plaintiff had explained the situation to the policemen, their only reaction was to arrest him on suspicion of possession of an unlicensed firearm. His explanations as to how the firearm came to be on his premises and the information divulged to them about the threatening attack by the three ruffians were to no avail. He was forthwith transported to the nearest police station and locked up. That evening his house was set alight and his wife killed. All evidence presented by the police officials regarding their alleged search for the three culprits and offer to provide a temporary safe haven for the plaintiff’s family was rejected on account of their untrustworthy performance in court. The court therefore found that they had failed to take effective steps to protect the person and property of the plaintiff and his family members. The court then proceeded to evaluate the conduct of the police officials implicated to determine whether it conformed to the requirements of the delictual elements of wrongfulness, negligence and causation. Regarding wrongfulness, the court decided on the authority of the old case of Minister van Polisie v Ewels (1975) that the policemen’s failure to lodge a search for the thugs had been wrongful, because by such failure they breached a legal duty resting on them in terms of the legal convictions of the community. With respect to the determination of a legal duty under similar circumstances, it has on several occasions been authoritatively pronounced in various judgments since the dawn of our new constitutional dispensation that constitutional imperatives have a major role to play. Unfortunately the court failed utterly in invoking such principles in this judgment. The court could at least have referred to the judgment of the Supreme Court of Appeal in Minister of Safety and Security v Van Duivenboden (2002), and could also have found guidance in the recent judgment of the Constitutional Court in AK v Minister of Police (2021). Strangely enough, the court failed to arrive at an express finding of wrongfulness in respect of the policemen’s dereliction of their duties, although it was in later paragraphs accepted that their omissions had been wrongful. In respect of negligence the court merely referred to and quoted the classical formulation of the diligens paterfamilias test from the famous judgment in Kruger v Coetzee (1966), without even the faintest attempt to apply the relevant principles to the facts of the case. The court should in any event have referred to the developed negligence test in the context of state liability, to wit the “organ of state test” recognised by the Constitutional Court in Mashongwa v Passenger Rail Agency of South Africa (2016) in combination with the more stringent test for experts in their field of police work. Here the court also failed to come to an express finding of negligence on the part of the policemen, although such negligence was in later paragraphs merely accepted. Concerning causation, the court only referred to that part of the Van Duivenboden case in which that court in turn referred to the judgment of our erstwhile Appellate Division in International Shipping Co (Pty) Ltd v Bentley (1990) in which the trite distinction between factual and legal causation had been explained. Unbelievably, the court here also failed to apply normal delictual principles to the facts before it and simply declared that the facts and circumstances of the case pointed towards the existence of the required legal causal link between the police officials’ omissions and the plaintiff’s harm. It is worth mentioning that the court spent only one brief paragraph on each of the cardinal delictual requirements. Although the court’s final verdict was that the state is vicariously liable, it never referred to the requirements for that type of strict liability for the obvious reason that it had never been in contention. This judgment is a prime example of an instance where the court underestimated the complexity of the issues it had to decide and as a result failed to apply its mind to important new legal principles developed since the inception of our new constitutional dispensation. It is in fact incredible that the court was willing, on such flimsy authority, to deliver a judgment which as a valid precedent could predict great detriment for the state in the context of future civil claims flowing from defective police conduct. Keywords: causation; delict; expert evidence; negligence; state liability; vicarious liability; wrongfulness

If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.

This decision of the supreme court of appeal to which two acting judges of appeal have made undisclosed contributions and with which the other members of the bench concurred, is not a model of precise formulation nor a clear application of the legal principles that should have been applied. Instead of a determinable careful breakdown of the various legal principles involved, the judgment dismissed the appeal of the bank. Consequently, the Spar claim for presumably more than R10 million was upheld provided that all the costs involved in the litigation through three levels of the high court were totalled. This was done without a clear indication of the remedy or remedies applied, because all the requirements for the potentially applicable remedies were not shown to have been met. In this civil matter, reference is made to claims founded on theft, unjustified enrichment, and breach of a duty to take care, apart from the apparent reliance on a presumed perfected general notarial bond and a perceived short-term business lease for the lessor’s own account. Spar entered into a franchise agreement with Umtshingo, a company represented by Paulo in Nelspruit, and as a consequence provided the three outlets doing business under the Spar banner with all the applicable stock under a credit agreement. Spar was not aware of the fact that the Kwik Spar was never part of the Umtshingo company but was a close corporation, and as such, a separate legal entity. Any agreements, including the purported general notarial bond entered into between the company and Spar, were res inter alios acta as far as the close corporation was concerned. The supreme court of appeal, notwithstanding the clear position stated in section 29(1) of Act 69 of 1984, held that the close corporation was “de facto, a division of the whole business” of the company. This is clearly wrong. Each outlet had its own separate bank account with the appellant. Spar was under the impression that it had safeguarded its risk as credit provider with a registered general notarial bond, which was enhanced with a perfection clause over Umtshingo’s movable property. When Umtshingo defaulted on its performance liability, Spar applied for and obtained an interim perfection order and presumed that it was consequently entitled to immediately manage the outlets for its own account and benefit. In reality, the interim perfection order was never confirmed; instead it was dismissed at a later stage. Even if it had been confirmed, the outcome of a perfection order is merely to put the mortgagee in the position of pledgee. The latter is never entitled to dispose of the objects of the pledge. This is the usual business of an outlet that sells groceries or liquor. Because the perfection order was never finalised, the mortgagee had no limited real right to the movables of its debtor and it could at most claim preference to the free residue on liquidation of the mortgagor as debtor. The judgment does not refer to these consequences of section 102 of the Insolvency Act nor to the requirements for a special notarial bond over movables as prescribed in Act 57 of 1993. The supreme court of appeal, however, did not distance itself from the premise which underlies the decision of the full bench that Spar was the mortgagee of a special notarial bond in this matter. Spar presumed that it had also entered into a short-term business lease agreement with Paulo, but the court of first instance had already found that, based on the facts, there never was a signed agreement. The supreme court of appeal ignored this finding of the factual position and premised its judgment on the perceived agreement. Spar was under the impression that, as a consequence of the perfection order and/or the business lease agreement, it was entitled to expect performance from Paulo and from the bank, notwithstanding the fact that Spar was not the account holder of the applicable accounts reflecting the sums credited to the accounts of Umtshingo via the available speed point card machines in the outlets. In reality, in the absence of any binding agreement with Paulo as effective director of Umtshingo as the debtor of Spar or a binding court order to this effect, Spar had no claim to performance in this regard to compel either Paulo or the bank where Umtshingo held its accounts, to ringfence the accounts of Umtshingo at any stage. Because Spar neglected to inform itself of the factual position after having taken control of the outlets regarding the legal position of the close corporation, Spar never applied for a court order against the close corporation before it was too late. But for exceptional legislation, all legal subjects can only have a single estate; the same competencies and entitlements of the legal subject apply to all assets forming part of this estate. Neither by means of a mere unilateral act nor by means of an agreement can an additional separate estate be created for any legal subject. The so-called perceived demand to ringfence some assets of Umtshingo had no legal effect unless it was confirmed by a valid court order as eg during preliminary liquidation proceedings or under business rescue proceedings as governed by the Insolvency Act or the Companies Act. On the premise that there was a perceived valid agreement and/or a valid perfection order, Spar expected to benefit from all sales conducted under its management of the three outlets. In reality, the credit channelled via the old speed point machines went straight into the dedicated accounts of the account holders. Paulo, in accordance with his entitlement as sole director of the company and sole member of the close corporation, made disbursements from these accounts. The bank set off the major portion of its customers’ indebtedness to the bank against the credit in the customers’ account that derived from the deposits. According to the judgment, in so doing, Paulo was guilty of theft and the bank was not entitled to the set-off. Although South African law adheres to the presumption of innocence until found guilty by a criminal court, no reference is made in the decision indicating that Paulo has already been found guilty of theft or that a criminal process has even been instigated against him. It is submitted that theft can only apply to the unlawful intentional appropriation of movable corporeal property of another from the latter’s possession. The credit, which was created via the speed point machines at the cashier’s check-out points in the shops, was at no stage movable corporeal property in possession of Spar. It was immediately reflected on deduction from the account of the buyer in the account of the relevant account holder – Umtshingo or Central Route. Spar could have prevented this by removing the old speed point machines and by providing alternative card readers linked to Spar’s own bank account. By neglecting to do so, Spar created its own prejudice. At no stage was the bank unjustifiably enriched by the set-off performed. There was no acknowledged source for a perceived legal duty of the bank to safeguard the interests of Spar as a third party. In the absence of an agreement with Umtshingo or Paulo, Spar had no contractual right to performance that the bank was not supposed to infringe on by permitting his client in the absence of an applicable court order to disburse funds standing to its credit or to set-off its client’s liabilities against the credit available. No bank is under legal obligation or duty to safeguard the interest of third parties; even a public authority needs to rely on applicable legislation if it wants to compel a bank to put a hold on credit in an account suspected to be the fruits of criminal activity. For this reason, eg Act 121 of 1998 makes provision in section 50 to apply for a forfeiture order because, without it, no bank is deemed to be the guardian angel of an unconnected third party’s interests regarding assets held in its client’s accounts. In view of this judgment, some old adages have regained significance – Roma locuta; causa finita est … ex Africa semper aliquid novi.

Abstract Courts around the world today are empowered to strike down unconstitutional constitutional amendments. But can a court strike down amendments that restore parts of the original constitution? The Appellate Division of the Bangladesh Supreme Court did precisely this in Bangladesh v. Asaduzzaman Siddiqui (2017), holding unconstitutional an amendment that restored the judicial removal provision that existed in the original 1972 Constitution. This article analyzes Siddiqui within the comparative constitutional amendment literature and the broader South Asian context. Despite the apparent incongruity of applying the basic structure doctrine to an original constitutional provision, we argue that Siddiqui is defensible on both theoretical and pragmatic grounds. The amendment that was invalidated in this case represented an unconstitutional departure from the judicial removal practice that had existed for several decades and was entrenched by a previous amendment, which “dismembered” the original constitution and safeguarded constitutional democracy in Bangladesh. At a regional level, Siddiqui is similar to recent judgments in India and Pakistan in which apex courts assert their control and limit political influence in judicial appointment and removal proceedings. Such judicial self-dealing, we argue, is more justified in Bangladesh and Pakistan than in India due to their checkered histories with democracy and political interference with judicial functions.

In February 2005 the Supreme Court of Appeal of South Africa ruled that in deciding whether firms have contravened section 4(1)(b) of the Competition Act 89 of 1998, as amended, by engaging in, for example, ‘per se’ illegal price fixing, the Competition Tribunal must admit evidence relating to the nature, purpose and effect of the horizontal agreement or practice in question. This article examines the economic and legal rationale, as well as the implications, for allowing an appropriate characterisation of conduct to determine whether such conduct falls within the per se prohibition. Firstly, we comment on the rationale behind the per se rule as a standard for the adjudication of certain types of conduct. We analyse a number of cases in the United States, which, post 1979, revolutionised the approach to the strict per se rule. Secondly, we examine how the per se standard is reflected in the particular structure found in section 4(1) of the Competition Act and evaluate whether it makes for a sufficiently robust application of the per se rule. Thirdly, the content of the Supreme Court decision regarding characterisation is critically examined with a view to assessing whether such characterisation is consistent with the policy objective of achieving maximum deterrence of hard core cartel behaviour like price fixing and market division. Finally, we explore and suggest (in the absence of a Tribunal decision) a possible framework, based on decision theory, for determining a method of characterisation that is consistent with the robust application of the per se standard and is in line with the Supreme Court ruling.

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.

In 2015 the South African judiciary was confronted with the issue of the so-called "right to die", when Robin Stransham-Ford applied to the High Court of South Africa (the North Gauteng Division) for an order to have his life terminated. Although the Supreme Court of Appeal set aside the order (on procedural grounds), the High Court's judgment paved the way towards renewed attention regarding the possible legalisation of euthanasia. A pertinent question arising from this is whether a medical practitioner may be compelled to participate in the administering of euthanasia. Bearing this in mind, this article argues for the protection of the rights of medical practitioners who conscientiously object to participating in the administering of euthanasia, especially where such an objection is based on religious beliefs. From this arises the necessity to investigate the rights applicable both to the medical practitioner and the patient (which focusses on the right to freedom of religion and personal autonomy), the weighing up against one another of the different meanings ascribed to such rights, as well as the postulation of a substantively competitive rationale against the background of the importance and sacredness of human life. This also overlaps with the importance of the endeavour towards higher levels of religious freedoms and consequently of plurality in democratic societies. Applying the proportionality test in the analysis whether a medical practitioner's rights may be reasonably and justifiably limited against the background of administering euthanasia also strengthens the argument for the protection of the medical practitioner's right to object conscientiously to the administering of euthanasia. This, together with the vacuum there is in substantive human rights jurisprudence related to this topic, suggests the importance of this article both for the South African context and beyond.

Richard Feetham was Judge President of the Natal Provincial Division from 1 May 1930 to 18 July 1939. He succeeded Dove Wilson who was an able but not a very learned or dynamic Judge President. Thus, at the time of his appointment the Natal Court and its judgments were treated with little respect by the other provincial divisions. Feetham JP, unlike his predecessor, was not only a scholar with a towering intellect but a man endowed with outstanding leadership qualities. He was thus ideally suited to bring about a change for the better in the status of the Natal Court. He did this by taking a dynamic lead and presided over and delivered a high proportion of the courts' judgments. He also set his brethren an excellent example by the high standard he set for himself and his court and which they emulated. This thesis thus also covers the careers of these puisne and acting puisne judges and their contribution towards the better administration of justice in Natal. In 1930 there existed in Natal a disinct system of dual practice with a de facto Bar. This system had been a vexed question in the minds of Natal lawyers for two decades but when Feetham JP was confronted with it he immediately addressed the controversial issue and brought about the necessary reforms to divide the legal profession and bring Natal into line with the rest of South Africa. This reform raised the quality of pleading and manner in which the law was presented. It also provided the Natal Bench with able personnel for the future from within Natal. Accordingly this thesis also assesses the careers of the main legal practitioners of that period and their contribution towards the development of the administration of justice in Natal. In less than ten years Feetham JP thus transformed the Natal Provincial Division from being weak and ineffectual to a position where it became a division respected for its Bench, judgments and legal profession. During the course of time history has confirmed the overall significance of Richard Feetham's Judge Presidency.
Thesis (LL.M.)-University of Natal, Durban, 1988.

Abstract We must explain the actions of two courts-very similar in membership, but very different in performance. We have already seen the immediate sources of the difference between the two. The Rabie court, so far as the emergency was concerned, was decisively dominated by the five members of the emergency team. It is these judges’ jurisprudence, developed in a period of stern government repression directed against what was seen as total onslaught, that we must explain. The emergency jurisprudence of the Corbett court, on the other hand, is much more the work of the Appellate Division as a whole, and it is work carried on in a time of both continued government repression and hesitant, but gathering, hope of broad racial reconciliation in South Africa.

Abstract On 31 January 1989 Rabie ACJ retired. He was replaced as chief justice by Justice Michael Corbett. As his name suggests, Corbett CJ is a member of the English-speaking white South African community-though he speaks Afrikaans, and in some of his speeches he turns to Afrikaans with the apparent goal of communicating more fraternally with Afrikaners in his audience.2 At the age of 18 he enlisted in the South African armed forces, and served in Egypt and Italy during the Second World War. Educated at the University of Cape Town, one of the leading English-speaking universities of South Africa, he earned a second law degree at Trinity Hall, Cambridge, and then joined the Cape Bar in 1948. He became a senior counsel in 1961 and in 1963 was appointed to the bench of the Cape Provincial Division. In 1974 he joined the Appellate Division and so, in 1989, he was a very senior member of the court.3 Corbett CJ’s concern for human rights had been apparent for many years before his appointment as chief justice. In 1979 he gave the opening address at the First International Conference on Human Rights in South Africa, held at the University of Cape Town, and told his audience that two years earlier he had made his first visit to the United States and become acquainted with the Bill of Rights and the American system of judicial review. In his words, ‘I returned home a convert to that system.’4 A longtime member