Journal articles 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.

The Lehane matter wound its way through the Cape Provincial Division of the High Court and reached the Supreme Court of Appeal. Mr Dunne, the debtor, lived in the United States of America and ran an international web of companies. One of these companies, Lagoon Beach Hotel, operated a Cape Town hotel. Mr Dunne later filed for chapter 7 bankruptcy in the United States and soon was also bankrupted by the Irish High Court. The Irish official trustee, Lehane, applied to the Cape court for the recognition of his status as a foreign trustee and for an anti-dissipation order preventing the disposal of South African property to which Mr Dunne was connected. Lehane succeeded at every stage of the South African proceedings.Initially, Steyn J recognised Lehane as the trustee as though a sequestration order had been granted against Mr Dunne in terms of the Insolvency Act 1936, thus diverging from the approach taken by the Judicial Committee of the Privy Council in Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda). Subsequently, Yekiso J's approach to applying the Insolvency Act without derogating from its generality opens up the possibility of applying section 21 of the Insolvency Act to significant effect against Mrs Dunne's South African property. Yet the territorialist restriction in Yekiso J's order that only creditors with causes of action which arose in South Africa were entitled to claim against the insolvent estate excluded many foreign creditors, even those from Ireland.Of the many issues raised by the Lagoon Beach Hotel company, two that are chosen for discussion in this case note are the possible application of the automatic stay under section 362 of the United States Bankruptcy Code 1978 to the South African proceedings, and the standing of Lehane because of the litigants' dispute whether Mr Dunne was domiciled in the United States or Ireland.Yekiso J and subsequently Leach JA held that the American automatic stay did not govern the South African proceedings. Significantly, the American and the Irish trustees were co-operating with respect to proceedings in Ireland and South Africa that involved Mr Dunne. And Leach JA deftly deferred to the Irish court the decision regarding the application of the American automatic stay and its relevance to the Irish proceedings.As for the disputed domicile of Mr Dunne, Yekiso J and Leach JA both considered that Mr Dunne had retained his Irish domicile. The established principles of recognising a foreign domiciliary trustee before he might deal with South African property, whether movable or immovable, were confirmed. Leach JA, however, went on to discuss the assistance that might cautiously be accorded to Lehane if Mr Dunne were domiciled elsewhere than in Ireland. Even then, the relevance of domicile could not be gainsaid.In the comments, it is pointed out that trustees appointed in countries other than the insolvent's domicile may still be recognised by South African courts. The insolvent's submitting to the jurisdiction of a court that is not the court of his domicile is discussed; on its facts, the cited authority does not bear out the relevant principle. And the possibility of recognising non-domiciliary trustees in exceptional circumstances and for exceptional convenience is explored. The cases cited in support of this principle are shown to yield differing results.

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).

The principal focus of this contribution concerns five cases involving questions of public law, namely the meaning of discrimination; the meaning of public power and its control; whether administrative actions may be reviewed for unreasonableness; the rights of prisoners; and the control of emergency powers in the face of an ouster clause. All five cases were decided in the Appellate Division of the Supreme Court of South Africa, now known as the Supreme Court of Appeal, and all were decided prior to 1994: in 1934, 1958, 1976, 1979 and 1988. In each, a dissenting judgment was delivered that articulated values that we today associate with our present democratic Constitution. Before dealing with those cases in detail, it is necessary to say something about the connection between the pre- and post-1994 law, and then to consider the role of some dissenting judgments in the development of the law.

The Transkei Penal Code was enacted by the parliament of the Cape of Good Hope as Act 24 of 1886. It was part of the mechanisms devised for governance of the area between the Kei River in the west and the Mtamvuma river on the Natal border, and to which the name Transkei was given. It was drawn up by lawyers trained in English law and it therefore watered down the influence of Roman-Dutch law in the Transkei region of South Africa.The code exerted enormous influence on South African law itself. As a result the judges of the Supreme Court of South Africa (as it then was) in numerous cases heard in different parts of South Africa, repeatedly said that the South African law on a point in issue was as laid down in the Transkei Penal Code. The power of the Penal Code continued to be evident in Appellate Division decisions as recently as 1988. When Transkei became independent (in 1976) she revised the code and passed the Transkei Penal Code Act 9 of 1983. More than ten years after the reincorporation of Transkei into the new South Africa this Code remains of full force and effect. In 2004 an effort by the National Directorate of Public Prosecutions to have criminal charges in Transkei framed under the common law and no longer under the Code, was thwarted by the Transkei High Court which ruled that only an Act of Parliament could alter the position.

This article reflects on the research required in biographical studies. The biographical focus is on the role of three generations of the Schreiner family: W.P. Schreiner (one-time Prime Minister of the Cape Colony), Justice O.D. Schreiner (judge of the Appellate Division of the Supreme Court) and Professor G.D.L. Schreiner (scientist, academic, liberal and early conceptualiser of alternative models to apartheid). All three were involved in developing, defending and sustaining liberal policies and values in South Africa from the late 19th century until the advent of democracy in 1994. The clarifications and contradictions within and between oral and written sources are examined, and individual cases are discussed in which they are highlighted. The research sources include family papers, official archives, publications and, crucially, oral testimony. The oral testimony includes formal and informal interviews. This study is a contribution to the history of a family, a university and a set of values. It covers a long period in South African history during which colonialism tightened into apartheid, resistance developed and the eventual vision of a democratic South Africa came to fruition.Contribution: The primary scientific contribution is the exploration of liberal policies and values in South African political and academic history through the prism of biography. Methodologically, the article discusses possible shortcomings with oral testimony when relied on as a sole source and examines how oral evidence can be utilised in conjunction with research based on archival and published sources to develop a fuller and more nuanced picture in biographical research.

The right of a creditor to realise the property of its debtor without first obtaining the permission of the court is clouded in controversy. This type of extra-judicial execution is known in Roman-Dutch law as parate executie (literally: “immediate execution”). The essence of parate executie is that it allows the creditor to self-help in the event of default by the debtor. The tenability of parate executie has come under judicial scrutiny in the recent past, not least because of its potential infringement of the provisions contained in section 34 of the Constitution of the Republic of South Africa, 1996. Section 34 provides that “[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum” (see in this regard, First National Bank of South Africa Ltd v Land and Agricultural Bank of South Africa; Sheard v Land and Agricultural Bank of South Africa 2000 3 SA 626 (CC); (2000 8 BCLR 876); Chief Lesapo v North West Agricultural Bank 2001 1 SA 409 (CC); Findevco (Pty) Ltd v Faceformat SA (Pty) Ltd 2001 1 SA 251 (E); De Beer v Keyser 2002 1 SA 827 (SCA); Senwes Ltd v Muller 2002 4 SA 134 (T); Shoprite Checkers (Pty) Ltd t/a OK Franchise Division v Juglal NO (unreported case no 6049/01, 13 Sep 2002 (D)) (which was endorsed on appeal in Juglal NO and another v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division 2004 5 SA 248 (SCA)); Graf v Buechel 2003 4 SA 378 (SCA) (which dealt with a forfeiture clause (ie, pactum commissorium) and therefore falls outside the direct scope of the present note); and Bock v Dubororo Investments (Pty) Ltd 2004 2 SA 242 (SCA)).These cases have further been discussed in a number of case notes (see Scott “Summary Execution Clauses in Pledge and Perfecting Clauses in Notarial Bonds” 2002 65 THRHR 656 et seq; Steyn “Perfection Clauses, Summary Execution (Parate Executie) Clauses, Forfeiture Clauses (Pacta Commissoria) and Conditional Sales in Pledge Agreements and Notarial Bonds – The Position Clarified” 2004 Obiter 443 et seq; and Schulze “Parate Executie, Pacta Commissoria, Banks and Mortgage Bonds” 2004 37 De Jure 256 et seq).Although parate executie is employed by many creditors to realise the security that they hold, commercial banks, being the prime example of money lenders in modern times, have a particular vested interest in retaining parate executie as a valid instrument to realise movables that were given to the bank as security.In the recently reported decision in SA Bank of Athens Ltd v Van Zyl (2005 5 SA 93 (SCA)) the court was asked to pronounce on the validity of a clause that provides for parate executie on the movable property (in the present case: four investment policies) of a defaulting debtor which were held by a bank. The court was further asked to determine whether a parate executie clause is in conflict with public policy.

The question whether the functions performed by the prosecutor in the criminal justice system are subject to judicial scrutiny has been a matter for concern in common-law jurisdictions for quite some time. The courts in the Commonwealth generally agree that prosecutors must function independently; act fairly and responsibly in the interests of the public; and must be free from political interference. Their role in the administration of justice is to uphold the rule of law. Therefore, the exercise of prosecutorial discretion should ordinarily not be interfered with by the courts except in rare cases. However, the extent to which the courts, in respective Commonwealth jurisdictions, review prosecutorial discretions differs. A comparative study of the Canadian experience and the South African approach, where the judicial approaches to the review of prosecutorial discretion significantly differ, is a clear illustration. In Canada, the courts hardly interfere with, or review the manner in which the prosecutor performs his or her duties, except that prosecutorial discretion is not immune from all judicial oversight, since it is reviewable for abuse of process (see R v Anderson [2014] 2 SCR 167). In South Africa on the other hand, the exercise of the powers of the prosecutor and their ramifications are, like every exercise of public power, subject to the constitutional principles of legality and rationality. The recent judgments of the Full Bench of the Gauteng Division, Pretoria in Democratic Alliance v Acting National Director of Public Prosecutions 2016 (2) SACR 1 (GP) as affirmed by the Supreme Court of Appeal in Zuma v Democratic Alliance 2018 (1) SA 200 (SCA)—the so-called ‘spy-tape’ saga—are the latest illustrations of this approach.

The pursuit of access to better economic opportunities such as decent jobs has resulted in an astronomic influx of people into the inner city of Johannesburg, South Africa. As a result there is a high demand for rental housing. This presents an opportunity to make profit for those who leasepremises in order to generate an income. The demand for rental housing has arguably caused the escalation of rental prices, thereby causing a shortage of affordable rental housing in the city centre. The Rental Housing Act 50 of 1999 was enacted to resolve disputes that may arise from any unfair practice or matters affecting the relationship between the landlord and his tenants in respect of the lease contract. In particular, the Rental Housing Act seeks inter alia to “create mechanisms to promote the provision of rental-housing property; promote access to adequate housing through creating mechanisms to ensure the proper functioning of the rental-housing market [and] to lay down general principles governing conflict resolution in the rental-housing sector” (Preamble to the Rental Housing Act). In terms of the Rental Housing Act, the landlord or a tenant may approach the RentalHousing Tribunal and complain about an unfair practice (s 13 of the Rental Housing Act). The Rental Housing Act defines an unfair practice as “a practice unreasonably prejudicing the rights or interests of a tenant or a landlord” (s 1 of the Rental Housing Act). Where the Tribunal, at the conclusion of the hearing, is of the view that an unfair practice exists, it may rule that the exploitative rental be discontinued. The Tribunal may also make a determination about the amount of rental that must be paid by a tenant taking into account inter alia “the need for a realistic return on investment for investors in rental housing”. The argument presented in this case is that the applicants ought to have made up their case in the court of first instance and not at the appellate stage. The paper isdivided into nine sections. Section 2 provides an overview of the facts of the case, section 3 discusses the case before the High Court, section 4 discusses the case before the Supreme Court of Appeal (SCA), section 5 discusses the case in the Constitutional Court, the issues, arguments, before the court, the findings and conclusions of the court. Section 6 evaluates the parties’ submissions in light of the Rental Housing Act, the Constitution, the Gauteng Unfair Practices Regulations, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIEA) (19 of 1998). Section 7 discusses the majority judgment. Section 8 discusses the minority judgment. Section 9 is a critique of both the minority and majority judgments. The conclusion made is that the applicants should stand or fall by the arguments contained in the founding documents.