De Jure

Publisher:
Sabinet African Journals
Publication date:
2021-07-19
ISBN:
2225-7160

Description:

De Jure is a general law journal, accredited by the Department of Higher Education & Training. It publishes original research concerned with the development and dissemination of cutting-edge legal research, both national and international. The scope of the journal is wide and supports legal academics, practitioners and scholars.

Issue Number

Latest documents

  • Association of Meat Importers and Exporters v International Trade Administration Commission (9233/2022) [2023] ZAGPPHC 1790 (12 October 2023)

    The High Court had occasion to establish the decision-making process in respect of the imposition of tariffs in South Africa under section 48(1)(b) of the Customs and Excise Act 91 of 1964 (CEA) in South Africa Sugar Association v the Minister of Trade and Industry [2017] 4 All SA 555 (GP) (30 August 2017) (hereafter, SASA) and Pioneer Foods (Pty) Ltd v Minister of Finance (15797/17) [2017] ZAWCHC 110 (29 September 2017) (hereafter, Pioneer Foods). In particular, the decisions in Pioneer Foods and SASA explained the scope of the powers of the Minister of Trade, Industry and Competition (Minister of Trade) and the Minister of Finance in respect of the amendment of Schedule 1 to the CEA to impose a tariff. Tariffs or duties are taxes on products imposed at the border. The High Court in both Pioneer Foods and SASA rejected the argument that the Minister of Finance merely “rubberstamps” the decision of the Minister of Trade to impose tariffs on a product (SASA para 37; Pioneer Foods para 30). Thus, both courts conclusively held that the final decision maker in respect of the imposition of tariffs is the Minister of Finance. This is because the High Court saw section 48(1)(b) of the CEA as employing directory language that conferred a discretion on the Minister of Finance upon receipt of the “request” of the Minister of Trade to impose a tariff. These decisions have been criticized as incorrect in law since they essentially arrogate the power to make trade policy from the Minister of Trade to the Minister of Finance (Vinti “The scope of the powers of the Minister of Finance in terms of section 48(1)(b) of the Customs and Excise Act 91 of 1964: An appraisal of recent developments in Case Law” 2018 Potchefstroom Electronic Law Journal 1-25). The High Court also remarked that it saw the same approach applying to the imposition of the trade remedies of dumping, safeguards and countervailing measures under Chapter VI of the CEA (SASA para 39). ' The High Court decisions also affirmed that the three decision makers for the imposition of trade remedies as being the International Trade Administration Commission (ITAC), the trade investigative body in South Africa established under section 7 of the International Trade Administration Act 71 of 2002 (ITAA), the Minister of Trade as conferred by section 4 of the Board on Tariffs and Trade Act 107 of 1986 (BTTA) and the Minister of Finance as bestowed by section 48(1)(b) of the CEA (SASA paras 33-34; Pioneer Foods paras 30-31).

  • Using Margaret Archer's sociological concepts of structure, culture, and agency to investigate the dissemination of customary marriage literature in South African Higher Education Institutions

    Before colonialism, apartheid, and democracy, customary marriages were regulated by customs and practices under living customary law. The advent of these systems introduced official customary law. This introduction brought about changes to customary marriages, which are known and understood by the people of South Africa who subscribe to living customary law. The existence of official customary law as a result of actions from colonialism, apartheid, and democracy impacted the literature of customary marriages that is disseminated by South African Higher Education Institutions (HEIs). These institutions disseminate customary marriage literature that often fails to capture the lived realities of African South African people. This led to the subjugation and marginalisation of the literature of customary marriages as practised by most South African people under living customary law. Unavoidably, the status quo concerns epistemological access to customary marriage literature based on living customary law. Against this backdrop, this paper adopts a multidisciplinary approach to investigate what led to the status quo and how the status quo could be changed. This will be done using Margaret Archer's sociological concepts of structure, culture, and agency, typically known as Margaret Archer's Morphogenesis Theory. In this contribution, this theory mainly denotes the relationship between the systems and interactions through systemic conditioning.

  • Appraising the regulatory framework for insider trading in mergers and acquisitions in South Africa

    The prevalence of mergers and acquisitions (M&A) leads to increased insider trading. This negatively affects companies' chances of generating more capital and the liquidity of financial markets, thereby affecting the country's economy due to a lack of investor confidence. Insider trading activity is more likely in M&A because it involves many insiders from the target and acquiring companies. According to the Financial Markets Act, the term “insider” would encompass officers, executives, board members, shareholders or employees directly involved in M&A, and persons such as negotiators who come into possession of the information intentionally or unintentionally during their duties. Inside information is sometimes leaked by financial and legal advisors, investment bankers, and business consultants who are retained by one of the parties to the transaction to assist in due diligence and complex negotiations. South Africa is one of the leading economies in the emerging financial markets. Therefore, effective regulation of insider trading in South Africa will promote stable and reliable economic growth through investment. This article addresses the following: (a) Is South Africa's current legislative and regulatory framework adequate to curb the problem of insider trading in M&A? (b) Are there any identifiable strengths and weaknesses in the legislation of insider trading in M&A in South Africa? (c) Is there a need to enact laws specifically dealing with insider trading in mergers and acquisitions? (d) Are there any useful lessons South Africa can learn from the approach adopted in the United States? (e) To the extent that the South African regulatory framework on insider trading is inadequate, how can South Africa enhance its legal framework in combating insider trading in mergers and acquisitions? Ndadza Beneficiaries of Mergers and Acquisitions in South Africa (Master of Management in Finance and Investment dissertation 2014 University of Witwatersrand) 13. As above.

  • Re-thinking Ex Post Facto Environmental Authorisation in South Africa: Insights from 2022 NEMA Amendment

    In 2004, section 24G on ex post facto environmental authorisation was introduced into the National Environmental Management Act (NEMA) of 1998 (as amended) to enable developers to get back into the regulatory loop. However, this introduction raised controversies among South African scholars and practitioners alike, despite some adjustments in subsequent amendments - 2008, 2013, and 2014. The argument has been that section 24G is a fait accompli, provides leverage for abuse by potential developers, facilitates environmental non-compliance, and therefore should be considered an anomaly to the constitutional right to an environment that is not harmful to health and well-being. In 2022, the National Environmental Management Laws (NEMAL) Amendment Bill, introduced significant changes to section 24G to drive South Africa's environmental compliance and enforcement regime. In this article, I revisit the question of ex post facto environmental authorisation under section 24G to advance substantive normative and theoretical insight that will attempt to clarify 'the controversial' debate about section 24G. This unique insight is achieved through the methodological combination of systemic analysis of the 2022 amendment of section 24G against previous criticisms of section 24G in tandem with existing literature. I articulate these controversies to provide conceptual direction in academic discourse that earlier criticisms about section 24G are no longer tenable. From these theoretical and analytical understandings, I argue that, unlike previous amendments, the 2022 amendment provides a fundamental radical shift in South Africa's environmental law. Along this line, I advocate for rethinking the “contentious” debate about section 24G and the issue of ex post facto environmental authorisation underpinning it. The legal doctrinal research methodology is used in this article.

  • Secondary strikes and their proportional impact on both the primary and secondary employer

    The right to strike is protected in terms of section 23(2)(c) of the Constitution of the Republic of South Africa, 1996 (the Constitution). The Labour Relations Act 66 of 1995 (the LRA) regulates this right in terms of its section 64. The LRA defines a strike in section 213 and goes further to provide for a secondary strike (also known as a “sympathy strike”) in section 66. Given the concept of secondary strike as provided for in the LRA, an ordinary strike is usually referred to as a “primary strike” (Du Toit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law: A Comprehensive Guide 6ed (2015) 361; Van Niekerk, Smit (eds), Christianson, McGregor and van Eck Lawwork (2019) 465). A primary strike is by employees who have a dispute with their employer, which relates to “matters of mutual interest or terms and conditions of employment” (Manamela “Matters of mutual interest for purposes of a strike - Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa 2014 9 BLLR 923 (LC)” 2015 Obiter 791-800; NUMSA obo Members v SAA 2017 38 ILJ 1994 (LAC)). These employees engage in strike action to pursue their demands or grievances which are directed against their employer (Grogan Collective Labour Law 3ed (2019) 292). A secondary strike is by employees in support of other employees who are engaged in a strike against their employer. Employees of the secondary employer therefore support striking employees of the primary employer, even though they have no material interest in the matter that gives rise to the primary strike. This is based on the assumption that if a business is connected to another one, then if employees of the former engage in strike action, the strike will have an impact on the functioning of the latter, which will be forced to accede to demands by its employees.

  • Appraising the regulatory framework of the new South African Deposit Insurance System

    South Africa has recently established its first deposit insurance body, the Corporation for Deposit Insurance (the Corporation), as part of the Twin Peaks regulatory reforms following the 2008/09 Global Financial Crisis (Crisis). The primary responsibilities of the Corporation are to establish, maintain and administer a deposit insurance fund to protect the banks' covered depositors and inform the depositors of its benefits and limitations, should a bank be placed into resolution. The rationale behind the protection of depositors is premised on the need to maintain confidence and financial stability in the banking sector. This article appraises the features of the new deposit insurance system as enshrined in the Financial Sector Laws Amendment Act 2021 (FSLA Act). The article evaluates whether the new framework for the protection of depositors aligns with international standards, particularly the International Association of Deposit Insurers' Core Principles for Effective Deposit Insurance Systems. The pertinent question is whether the current features of South Africa's deposit insurance are optimally designed to ensure its effectiveness. The article ends with practical suggestions for strengthening the South African deposit insurance framework to ensure its optimal alignment with international good practice.

  • The best interests of the child and the right of interested third parties to parental responsibilities and rights: RC v HSC 2023 4 SA 231 (GJ)

    The South African post-constitutional era gave rise to the reframing of what was previously referred to as parental authority to parental responsibilities and rights. Throughout these developments, the best interests of the child remained a constant consideration, resulting in a move away from a parent-centred approach to a child-centred approach. In line with this child-centred approach, modern South African law recognises that children have the right to family or parental care. Recognition is also given to the subsequent fundamental principle that parents and the family perform a central role in a child's care and protection. However, analogous to global trends South African family structures have transformed and are no longer typically nuclear, but are characterised by a diversity of parental, family and community-based forms of caregiving. Children accordingly find themselves being cared for by persons who are not their biological parents. In this regard the position of the “interested third party” or so-called “co-holder of parental responsibilities and rights” is gaining increasing relevance. Although the role of interested third parties is recognised in domestic law, in the Children's Act, some uncertainty about the right of these parties to obtain parental responsibilities and rights over a child prevails. One such aspect is the right of a former life-partner to obtain parental responsibilities and rights over a non-biological child upon the dissolution of a life-partner relationship. A recent High Court case, RC v SC 2022 4 SA 308 (GJ) and its appeal namely, RC v HSC 2023 4 SA 231 (GJ) to a full bench of the High Court provides valuable insight into this regard and specifically on the approach taken by the courts about an application for parental rights and responsibilities to a non-biological child by an interested third party in terms of the Children's Act.

  • Powers of the Registrar of the Health Professions Council to institute investigations under the Health Professions Act 56 of 1974

    The Health Professions Council of South Africa (the HPCSA) is a statutory body established in terms of section 2 of the Health Professions Act 56 of 1974 (hereafter “the Act”). One of the objects of the HPCSA is “to ensure the investigation of complaints concerning persons registered in terms of the Act and to ensure that appropriate disciplinary action is taken against such persons in accordance with the Act” (s 3(n)). The powers to institute an inquiry into a complaint, charge or allegation of unprofessional conduct against registered practitioners are vested with the professional boards established in terms of section 15 of the Act (s 41(1) of the Act). The procedure to be followed by the professional board in instituting an inquiry is prescribed in the Regulations Relating to the Conduct of Inquiries into Alleged Unprofessional Conduct Under the Health Professions Act, 1974 (GNR102 in GG31859 of 6 February 2009, hereafter “the Regulations”).

  • “Reflecting back” on public participation in the judicial appointment of the South African Chief Justice?

    After more than two decades of South Africa's democracy, the significance of the reform of the judiciary is grounded in the process of judicial appointments to restore its public credibility from South Africa's tainted past. Such reform is now constitutionalised through the establishment of the Judicial Services Commission (JSC) which serves as a focal point in the restoration of such confidence in the judiciary. The JSC's processes seek to ensure the rebuilding of public confidence which entails, amongst others the legitimacy of judicial appointments that should be reflective of gender and racial composition as envisaged in the Constitution 1996. However, the public has since weighed heavily on the criteria and discretion exercised by the JSC on its judicial appointment processes. The debates were intensified by President Ramaphosa's unprecedented reform to involve public participation and establishment of the advisory panel in his constitutional role of the nomination process of the Chief Justice. The President opened an opportunity for a pool of eligible candidates to be recommended for his consideration after they were determined and sifted by the advisory panel. The last four candidates were recommended by the panel and after their interviews, the JSC recommended Justice Mandisa Maya as Chief Justice for appointment by the President. Instead, the President appointed Justice Raymond Zondo as Chief Justice and Justice Maya as Deputy Chief Justice which raised debates and questions on the exercise of this constitutional discretion. The purpose of this article and its focus and limitation is to examine the role of public participation and the establishment of the advisory panel in the nomination process of the Chief Justice. It raises questions about whether public participation does not amount to the representative form of democracy in judicial appointments. In addition, it will restore trust, credibility, and confidence and extend the protection of the judiciary from unjustified attacks from the members of the public. In turn, the value of the credibility of the recommendations of the JSC as a constitutional structure in the judicial appointment processes. Therefore, the paper argues that public participation in the nomination of the Chief Justice is an indirect intrusion of the representative form of democracy in judicial appointments.

  • Does the treatment of arrear maintenance claims of children under the Insolvency Act 24 of 1936 constitute a violation of their constitutionally protected rights to social welfare and human dignity? An exposition

    The time and space for the reformation of the Insolvency Act 24 of 1936 has presented itself through the introduction of a constitutional order in 1996. However, the legislature has thus far proven to fail in its responsibility to align consumer insolvency legislation with the values and rights that are contained in the Constitution of the Republic of South Africa, 1996. The Constitution appreciates the vulnerability of children and thus affords special protection to the rights of children, including their rights to social welfare. It further guarantees children that their best interest reign supreme in every matter concerning them. The Constitution also guarantees children the right to human dignity, which right is also a value underlying South African constitutional jurisprudence. These constitutionally guaranteed rights of children to social welfare and human dignity do not enjoy protection under South African consumer insolvency law, particularly in the treatment of arrear maintenance claims of children against the estate of an insolvent debtor. Children's maintenance arrear claims do not enjoy any preference as they are treated as concurrent claims. This also burdens them with the liability to contribute towards the costs of sequestration if they have successfully proven claims and where there are insufficient funds in the free residue account. Children's maintenance arrear debts are not exempt from the discharge of presequestration debt under South African consumer insolvency jurisprudence. The overall approach to the treatment of children's arrear maintenance claims compromises the rights of children to social welfare and human dignity as guaranteed in the Constitution.

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