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• Considering the ownership of house property in customary law

  The Recognition of Customary Marriages Amendment Act 1 of 2021 was enacted to address the proprietary consequences of customary marriages. This note examines the implications of the Amendment Act in light of the Mshengu v Estate Mshengu 9223/2016P judgment, which was decided shortly after the Amendment Act came into effect. Three key issues are analysed: first the potential conflict between the Amendment Act and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 in relation to the ownership of house property; second the challenges in classifying property as house or family property; and third the impact of the devolution of property on the rights of other family members. The analysis emphasises the importance of soliciting input from communities who live according to customary law and highlights the need for legislation that is flexibly drafted to accommodate nuanced customary law practices and provide avenues for redress in cases where statutory provisions yield unfair outcomes.

• Revisiting the no reflective loss principle under the South African company law regulation: A reflective assessment through the lens of Hlumisa Investment Holdings (RF) Ltd v Kirkinis 2020 3 All SA 650 (SCA)

  One of the central concepts in company law is that a company is a juristic person with a separate legal personality. Several consequences flow from the doctrine of separate legal personality, among other things, that a company owns its property and assets and may sue or be sued in its name. Therefore, shareholders do not have a direct right of action for a company's loss. The company itself should institute such a claim save for certain exceptional circumstances like derivative actions. Both the High Court (court a quo) and the Supreme Court of Appeal in Hlumisa Investment Holdings (RF) Ltd v Kirkinis (the Hlumisa case) confirmed that shareholders cannot claim diminution of share value that is linked to the misconduct of company directors and auditors. This article concurs with the court a quo and the Supreme Court of Appeal's interpretations that as a general rule, directors owe fiduciary duty only to the company and that shareholders cannot rely on a claim for reflective loss in company law. This article assesses the proper plaintiff and reflective loss rules against the backdrop of the Hlumisa case.

• An analysis s 5A of the Divorce Act 70 of 1979 and its application to marriages concluded in terms of Islamic law

  There has (to date) been no legislation enacted by the South African government that fully recognises marriages concluded in terms of Islamic law (Islamic marriages) as well as the Islamic law consequences that flow from these marriages. Some South African Muslims have opted to conclude marriages in terms of South African law (civil marriages) in addition to their Islamic marriages. This could be referred to as dual marriages. The civil marriages as well as its consequences (not the Islamic law consequences) would then be fully protected in terms of South African law. It is quite interesting to note that s 5A of the Divorce 70 of 1979 authorises a court to refuse the granting of a civil divorce if either of the parties would not be free to remarry subsequent to the granting of the civil divorce. This article analyses how s 5A of the Divorce Act 70 of 1979 applies to dual marriages. It looks at the impact of s 5 A of the Divorce Act on dissolution of dual marriages concluded by Muslims within the South African legal context. The dissolution of Islamic marriages within the South African legal context is looked at by way of introduction. The dissolution of a civil marriage within the context of a dual marriage (couple married in terms of Islamic law and civil law) is then looked at. The article concludes with an overall analysis of the findings and makes recommendations.

• Monareng v Dr JS Moroka Municipality 2022 43 ILJ 1855 (LC)

  Affirmation that resignation by an employee constitutes a point of no return: or does it? Viewed from a common-law perspective, an employment relationship can be terminated for various reasons, such as the passing of time or by mutual agreement between an employer and employee (Strachan v Lloyd Levy 1923 AD 670; October v Rowe 1898 SC 110). The tendering of an unambiguous resignation by an employee constitutes a unilateral action with the clear intention of terminating the employment relationship (see Mafika v SABC Ltd 2010 5 BLLR 542 (LC) para 13; and ANC v Municipal Manager George Local Municipality 2010 2 ALL SA 108 SCA para 15).

• NCA Plant Hire CC v Blackfield Group Holdings (Pty) Limited [2021] JOL 51810 (GJ)

  The facts and judgment in NCA Plant Hire CC v Blackfield Group Holdings (Pty) Limited [2021] JOL 51810 (GJ) raises some interesting questions in relation to the legal effect of a provisional winding-up order on the power and authority of the board of a company to conclude agreements on behalf of the company after such an order is made. A company is a separate juristic person from the date of its registration in terms of the Companies Act 71 of 2008 (the 2008 Companies Act) (s 19). Unless its capacity to do so is restricted in its Memorandum of Incorporation, a company has the capacity to enter into all agreements to which a juristic person can be a party (s 19 read with s 20 of the 2008 Companies Act; see also the commentary of Delport et al on s 19 in Henochsberg on the Companies Act 71 of 2008 (May 2022 - SI 28)). The power to manage the business and affairs of a company vests in the board of directors (s 66 of the 2008 Companies Act). Because a company cannot act by itself it must be represented by its board or a duly authorised agent in agreements that bind the company. Consideration will be given in this case note specifically to the legal status of agreements concluded by a company represented by its board in the time between the granting of a provisional winding-up order and prior to the appointment of a liquidator. One of the implications of the judgment in NCA Plant Hire CC v Blackfield Group Holdings is that the board has the authority to enter into an agreement to settle the claim of one of the company's creditors after a provisional winding-up order is granted, but prior to the appointment of a provisional liquidator. In short, the court found that because the creditor who brought the application for the provisional winding-up of the company is dominus litis such creditor may enter a settlement agreement, which may include a condition that the provisional liquidation order be discharged, with the company in provisional liquidation. The approach of the court, in this case, is evaluated against the general legal principles applicable, namely the power of the board to manage the business and affairs of a company, the legal effect of a provisional winding-up order, and the concursus creditorum which begins as from the moment of liquidation but effectively backdated to the date of the filing of the application of liquidation by the Registrar of the High Court (s 348 of the 1973 Companies Act).

• 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.

• The regulation of cryptocurrencies to combat money laundering crimes in South African banking institutions

  Cryptocurrencies have become an increasingly popular means of conducting financial transactions globally, and South African banking institutions have not been immune to this trend. However, the pseudonymous nature of cryptocurrency transactions has made it an attractive tool for money laundering activities. In response, there is a growing need for South African regulators to establish a legal framework to regulate the use of cryptocurrency to combat money laundering crimes by banking institutions. While the recent amendments to the Financial Intelligence Centre Act 38 of 2001 (as amended) regarding cryptocurrencies are commendable, it is not without deficiencies. The purpose of this article is threefold. First, it examines the current state of cryptocurrency regulation in South Africa. Second, it explores the vulnerabilities that expose the banking system to money laundering using cryptocurrencies. Third, it highlights the need for further development and implementation of regulatory measures to address vulnerabilities identified in this article. This article argues that the current lack of a comprehensive regulatory framework for cryptocurrencies in South Africa leaves the banking system open to potential abuse. The article suggests that South African regulators should focus on three key areas to combat money laundering activities related to cryptocurrency. First, regulatory measures should be implemented to identify and verify the identities of cryptocurrency traders and investors. Second, measures should be put in place to monitor the flow of cryptocurrency transactions and detect suspicious activities. Third, the digital wallets of crypto users should be managed by South African banking institutions.

• Small companies and regulatory tiering: a legal and economic analysis of Zambia's new regime

  In 2017, Zambia adopted a new Companies Act. The main purpose of the new Act is to promote the development of Zambia's economy through efficient regulation of companies. This article focuses on the small companies regime that the new Act introduces. More specifically, the article explores the extent to which the new small companies regime is fit for purpose by conducting a comparative analysis of that regime with the United Kingdom's (UK's) small companies regime in light of relevant literature, particularly literature in the field of regulatory economics. Overall, the analysis suggests that Zambia's small companies regime is largely inapt to achieving its intended purpose. The article's main argument in this connection is threefold. First, the new Act is somewhat at odds with its intended purpose insofar as it requires small companies to appoint a secretary. Exempting small companies from this requirement, as does the UK Companies Act of 2006, could better serve the purpose of the new Act. Second, whilst the exemption of small companies from the requirement to appoint auditors may be desirable, the 50 per cent shareholding threshold required for shareholders to demand an audit could inhibit controlling shareholder accountability and thus undermine the purpose of the new Act. A lower threshold such as the one applicable under the UK Companies Act, that is to say, ten per cent, could better serve the purpose of the new Act. Third, the lack of any special treatment for small companies as such vis-à-vis bookkeeping and financial reporting requirements could undermine the purpose of the new Act. Imposing lighter bookkeeping and financial reporting requirements on small companies, as does the UK Companies Act, could better serve the purpose of the new Act.

• The Constitutional disqualification for unrehabilitated insolvents from being members of Parliament

  In South Africa, the status of being an unrehabilitated insolvent has many effects and one of them is the disqualification from being a member of parliament (MP). This article considers the constitutional disqualification of unrehabilitated insolvents to serve as MPs within the context of statutory restrictions that apply to such insolvents. It further discusses the rationale for the constitutional disqualification of unrehabilitated insolvents to serve as MPs in light of international guidelines that advocate for the protection of the income of the debtor that is necessary for the insolvent and his dependents to live decent lives taking into account possible changing living standards. The pertinent question is whether such reasons are still justifiable considering international policy considerations *This article derives from my PhD doctoral thesis. The words “insolvent person” and “bankrupt person” are used interchangeably. Bertelsmann et al Mars The law of insolvency in South Africa (2019) 189; Sharrock, Van der Linde and Smith Hockly's insolvency law (2012) 63; Wille, Du Bois and Bradfield Wille's principles of South African law (2007) 387. Spencer v Standard Building Society 1931 TPD 481 (hereinafter Spencer v Standard Building Society) 484; Wille, Du Bois and Bradfield (2007) 387. S 2 of the Insolvency Act 24 of 1936 (Insolvency Act or the Act). Bertelsmann et al (2019) 3; Sharrock, Van der Linde and Smith (2012) 3.

• LH v ZH 2022 (1) SA 384 (SCA) Should section 18(a) of Matrimonial Property Act 88 of 1984 apply to all spouses in a marriage in community of property, irrespective of when the non-patrimonial damages were received?

  Should section 18(a) of Matrimonial Property Act 88 of 1984 apply to all spouses in a marriage in community of property, irrespective of when the non-patrimonial damages were received? South Africa has three statutes that regulate marriages, namely the Marriage Act 25 of 1961 which regulates monogamous civil marriages that are entered into by spouses of the opposite sex, irrespective of their race; the Recognition of Customary Marriages Act 120 of 1998 which regulates monogamous and polygynous customary marriages entered into by South African black spouses, and lastly the Civil Union Act 17 of 2006 which regulates monogamous unions between spouses of the same sex or opposite sex, irrespective of their race, and the unions are registered either as a marriage or a civil partnership.

Featured documents

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