1,720,971 research outputs found
NSPCA HAS STATUTORY POWER TO INSTITUTE PRIVATE PROSECUTIONS – A TRIUMPH FOR ANIMALS AND HUMAN MORALITY National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development [2016] ZACC 46
No full textIn this case note, the decision of the Constitutional Court in National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development ([2016] ZACC 46) will be discussed, where it was held that the National Society for the Prevention of Cruelty to Animals (NSPCA) has the statutory power of private prosecution conferred upon it by section 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act 169 of 1993 (SPCA Act) read with section 8 of the Criminal Procedure Act 51 of 1977 (CPA) (par 65). From the ancient Khoisan reverence of the eland to the contemporary conception of the dog as “man’s best friend”, humans and animals have a storied relationship, one that is a part of the fabric of our society, homes and lives (par 1). Animals have shifted from being “mere brutes or beasts” to “fellow beasts, fellow mortals or fellow creatures” and finally to “companions, friends and brothers”. Many animal activists and animal anti-cruelty supporters argue that animals just as human beings deserve to live their lives free from violence, suffering and exploitation. It is essential that individuals or organisations intervene where necessary to protect these voiceless companions when they are mistreated. Many organisations and societies that exist around the world, similar to the NSPCA work hard to defend the welfare of animals (par 1). These organisations have for many years been the champion of the norm that we do not accept acts of cruelty against those who cannot defend themselves (par 1)
GROUND-BREAKING JUDGMENT AS COURT CLARIFIES THE PROCEDURAL REQUIREMENTS IN SECTION 129 OF THE COMPANIES ACT 71 OF 2008 Panamo Properties v Nel NNO 2015 (5) SA 63 (SCA)
No full textThe judgment of the Supreme Court of Appeal (SCA) in Panamo Properties v Nel NNO (2015 (5) SA 63 (SCA)) is important because it clarifies certain controversial provisions of the Companies Act 71 of 2008 regarding the interpretation and application of section 129(1) of the Act, and the non-compliance by a company with the further requirements of sections 129(3) and (4), as well as the effect of section 129(5). In a number of cases in the various divisions of the High Court, it has been held that, where a company is placed in business rescue pursuant to a resolution of its board of directors, but thereafter fails to comply with the procedural requirements of section 129, the effect is to cause the business-rescue proceedings to terminate. The reason for this was said to flow from the provisions of section 129(5), which provide that non-compliance with procedural formality, in terms of sections 129(3) and (4), results in the resolution placing the company under business rescue lapsing and becoming a nullity. The SCA held that non-compliance does not automatically result in the business rescue being terminated. Non-compliance is a ground for applying to court to set aside the resolution in terms of section 130(1)(a)(iii). But such resolution will be set aside only if it is otherwise just and equitable to do so, in terms of section 130(5), and the business rescue terminates in terms of section 132(2)(a)(i) once an order setting aside the resolution has been granted
SARS LIABLE FOR CHEQUES LOST OR STOLEN IN THE POST Stabilpave v SARS (615/12) [2013] ZASCA 128
No full textThe Supreme Court of Appeal (SCA) in Stabilpave v SARS (615/12) [2013] ZASCA 128 was asked to decide on the assumption of risk where a cheque issued by the South African Revenue Services was intercepted through the post and subsequently misappropriated by thieves. The judgment of the court is significant as it stated clearly that any agreement “about the particular mode of performance” or “as to the manner of payment” will only be reached if the creditor stipulates (or requests orauthorizes) a particular mode of payment and the debtor accedes to the request. According to the court, due to the fact that the appellant had not requested the refund by cheque, SARS carried the risk of theft or loss of the cheque
NOWHERE TO HIDE FOR EXECUTIVES Fourie v FirstRand Bank Ltd (578/2012) [2012] ZASCA 19 (18 September 2012)
No full textThe personal liability of managers and executives for damages arising out of fraudulent and reckless conduct of their employees is an emotive and important issue. The prestige that was once associated with holding a position in top management in a company is now overshadowed by the potential of increased personal vulnerability. The case of Fourie v FirstRand Bank Ltd ((578/2012) [2012] ZASCA 119 (18 September 2012)) sends out a strong message to those who occupy management positions and who conduct the affairs of a company in a fraudulent or reckless manner that such conduct will not be tolerated and that should they produce false and misleading financial statements regarding the affairs of their company they run the risk of being held personally liable for any damages that may be incurred. The Supreme Court of Appeal (SCA) stated that any damages that arise from such managers’ fraud or recklessness under section 424 of theCompanies Act 61 of 1973 will be paid by the perpetrators in their personal capacity. 
“UNCONSCIONABLE ABUSE” – SECTION 20(9) OF THE COMPANIES ACT 71 OF 2008 Ex Parte Gore NNO 2013 (3) SA 382 (WCC)
No full textThe remedy provided for in company law of “piercing of the corporate veil” was a remedy that only existed in the common law but has now been expressly incorporated into legislation under the Companies Act 71 of 2008. The “piercing of the corporate veil” statutory provision is contained in section 20 (9) of the Act. This provision does raise an important question as to how the courts will interpret the term “unconscionable abuse”. The term “unconscionable abuse” is not defined in the Act and the section fails to provide any guidance on the facts or circumstances that would constitute an “unconscionable abuse” of the separate juristic personality of the company. This paper discusses the interpretation of the term “unconscionable abuse” in light of the judgment in Ex parte Gore NNO (2013 (3) SA 382 (WCC)) and seeks to provide clarity with regard to the implication of section 20(9) of the Act on the common-law grounds of piercing the corporate veil
ONE FOR THE ASYLUM SEEKER Bula v Minister of Home Affairs (589/11) [2011] ZASCA 209
No full textSouth Africa has a large refugee population. In its 2010 report the United Nations High Commissioner for Refugees stated that South Africa received more than 222,000 new asylum requests. This made South Africa the number-one asylum destination in the world, ahead of the United States, Sweden, France, and Germany. People across the African continent go to South Africa to escapeviolence and poverty because it is a beacon of stability and economic growth on the continent. They arrive by bus and by foot after journeys that last for weeks from countries such as Ethiopia, Uganda, Burundi, Rwanda, Sudan, Somalia and Tanzania. Whenthey get close to the border, those without legal papers walk through the bush and swim across rivers to avoid being sent back. In a strongly-worded judgment, the Supreme Court of Appeal has affirmed the principles governing legal protection for asylum seekers in South Africa (SA) and censured a High Court acting judge for flouting the “fundamental rules of litigation”. Navsa JA went on to set out the approach that ought to have been followed. He said the laws governing asylum specifically required that a person who wanted to apply for asylum status should be allowed to apply, even if he had been arrested prior. 
“PAY DAY” FOR ILLEGAL FOREIGNERS Rahim v The Minister of Home Affairs (965/2013) [2015] ZASCA 92 (29 May 2015)
No full textPeople from across the African continent continue to make their way to South Africa to escape violence and poverty in their own countries. South Africa is also seen as a beacon of stability and economic growth on the continent. There has been growing concern that the illegal influx of foreigners in search of a better life, and the failure by the South African Government to control its porous borders, have led to a high degree of animosity and resentment, directed at foreigners. International law and South African law affirm that South Africa is a constitutional state that subscribes to the principle of legality, an incident of the rule of law. It is against this backdrop that The Supreme Court of Appeal (SCA) handed down a landmark ruling in Rahim v The Minister of Home Affairs ((965/2013) [2015] ZASCA 92 (29 May 2015)), where the Court awarded damages to illegal immigrants who were illegally held by the Department of Home Affairs, following a failure by the Department to designate a proper holding facility for non-citizens in South Africa. One of the implications of this judgment is that the Department will have to conduct a proper determination of holding facilities so as not to be liable for claims such as the one in the present case
SECTION 86(10) OF THE NATIONAL CREDIT ACT 34 OF 2005 Firstrand Bank v Raheman (5345/2010) [2012] ZAKZDHC 3 (10 February 2012)
No full textThe purpose of the National Credit Act 34 of 2005 (hereinafter “the Act”) is not only to protect the interests of consumers but to regulate the interests of credit providers as well. There have been a number of views expressed by our courts in dealing with the debt-review process. The debt-review process is found in Part D of Chapter 4 of the Act. The Act makes provision for a consumer who is over-indebted or where he or she is experiencing financial strain to have his or her affairs rearranged by a debt counsellor. Thequestion as to when a creditor may interrupt these affairs is discussed in the case of Firstrand Bank v Raheman (supra)
BREAKING THE SILENCE – FRIENDS OF THE COURT CAN ADDUCE EVIDENCE Children’s Institute v Presiding Officer of the Children’s Court District of Krugersdorp Case CCT 69/12 [2012] ZACC 25
No full textAn amicus curiae, literally friend of the court, is a person or organization with a strong interest or views on the subject matter of an action, but not a party to the action who may petition a court for permission to file an application on behalf of a party. Other definitions state that the amicus is able to advise the court on matters of fact. An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise overlook. Justice O’Connor of the United States Supreme Court has justified the amicus procedure on ground that “[t]he ‘friends’ who appear today usually file briefs calling our attention to points of law, policy considerations, or other points of view that the parties themselves have not discussed”. The participation of amicus curiae in litigation is a practice which has been entrenched in the common law and civil law of various jurisdictions. It is for this reason that an amicus has become versatile and is said to fulfil a wide range of important functions. The participation of amicus curiae in litigation is a well-established practice in South African legal history. Indeed, the South African courts “are increasingly recognizing that certain matters must necessarily involve the perspectives and voices of organizations or entities that may not have a direct legal interest in the matter”. Amicus curiae briefs have helped the courts to clarify and develop judicial approaches that would assist the courtsin handling intricate issues. The role of amicus curiae in South Africa must be viewed against the background of public-interest litigation which is largely the result of the “apartheid” era in which human-rights activists and civil society organizations sought to fight the inequalities of the “apartheid” regime. With the advent of the Constitution the challenge has now moved away from addressinginequalities of the past but towards ensuring that all persons benefit from the rights enshrined in the Constitution. This has been greatly helped due to the South African Constitution adopting a liberal position with regard to locus standi. This approach has been usefulespecially for those wishing to enforce the rights in the Bill of Rights of the Constitution by litigating in the public interest. Although, technically, locus standi can be distinguished from the amicus curiae procedure, the courts have applied the same locus standi flexibility to the amicus curiae procedure. In light of this, organizations sought to be admitted as amicus curiae in order to adduce statistical evidence, initiate court cases or have sought to be admitted as amicus curiae on behalf of individuals or groups in litigation. The Children’s Institute at the University of Cape Town in the case of Children’s Institute v Presiding Officer of the Children’s Court District of Krugersdorp (Case CCT 69/12 [2012] ZACC 25) is a classic example of such a case. The Children’s Institute sought to be admitted as amicus curiae in order to adduce statistical evidence demonstrating why orphaned children living with family members should receive the foster child grant. The Children’s Institute contended that the Children’s Court decision would lead to roughly 350 000 orphaned children (who live with family members) losing their foster grants
“DUPED” SHAREHOLDERS MAY APPLY FOR WINDING-UP ORDER – SECTION 81(1)(e) OF THE COMPANIES ACT 71 OF 2008 Pinfold v Edge to Edge Global Investments Ltd 2014 (1) SA 206 KZD
No full textIn what is the first case of its kind that to have come before the South African courts the shareholders in Pinfold v Edge to Edge Global Investments Ltd (2014 (1) SA 206 KZD) were granted permission by the KwaZulu Natal High Court (Durban) to wind up Edge to Edge Global Investments, a public company on allegations of fraud committed by the directors of the company. The application was brought before the court in terms of section 81(1)(e) of the Companies Act 71 of 2008. The decision is significant as it provides insight as to what the courts would consider to be fraudulent, illegal and a misuse or waste of the company's assets by the directors of a company, and what the shareholders of a company need to prove in order to be successful in an application based on section 81(1)(e) of the Act
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