PER: 2011 Volume 14 No 2
http://hdl.handle.net/10394/4656
2024-03-19T01:05:25ZThe Appellate Division has spoken - Sequestration Proceedings do not Qualify as Proceedings to Enforce a Credit Agreement under The National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 4 SA 597 (SCA)
http://hdl.handle.net/10394/4663
The Appellate Division has spoken - Sequestration Proceedings do not Qualify as Proceedings to Enforce a Credit Agreement under The National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 4 SA 597 (SCA)
Maghembe, N
This case note aims to analyse the decision of the Supreme Court of Appeal in
Naidoo v ABSA Bank 2010 4 SA 597 (SCA) and to spark some debate as to whether
being under debt review in terms of the National Credit Act (NCA) should bar
sequestration proceedings in the form of an application for the compulsory
sequestration of a consumer’s estate. This decision held that a credit provider does
not need to comply with the procedure provided for in section 129(1) of the NCA
before instituting sequestration proceedings against a debtor, as such proceedings
are not proceedings to enforce a credit agreement. The main issues discussed in
this article are whether the court was correct in its interpretation of the relevant
provisions of the NCA and whether this decision that allows a creditor to sequestrate
a debtor who is attempting to meet his/her obligations under debt review, without
informing him/her, is consistent with the principle urging consumers to satisfy all of
their financial obligations under the NCA.
It is submitted by the author that the court was correct in its interpretation of the
relevant provisions of the NCA, but may have overlooked how this decision may
impact the principle of satisfaction by the consumer of all of his/her financial
obligations. It is suggested by the author that amendments be made to force the
creditor to give a section 129 notice to the debtor before seeking sequestration of
his/her estate. The author also suggests that once debt restructuring has been granted, credit providers should not be allowed to proceed with sequestration
proceedings against the debtor.
2011-01-01T00:00:00ZKorporatiewe Identiteit as die Basis van Strafregtelike Aanspreeklikheid van Regspersone (1): Teoretiese Grondbeginsels
http://hdl.handle.net/10394/4660
Korporatiewe Identiteit as die Basis van Strafregtelike Aanspreeklikheid van Regspersone (1): Teoretiese Grondbeginsels
Du Toit, P; Pienaar, Gerrit
The different models for the criminal liability of juristic persons reveal a tension
between individualist and realistic approaches. For individualists a corporation is the
product of a union of individuals. This means that a juristic person can only be held
criminally responsible if the conduct and fault of an individual involved in the entity
are attributed to the juristic person. For realists a corporate entity has an existence
independent of its individual members. The juristic person is blameworthy because
its corporate identity or corporate ethos encouraged the criminal conduct. A study of
organisational theory reveals that corporate crime may not necessarily be traced to
the fault of specific individuals. Corporate criminality often is the result of complex
decisions on different levels of the corporate hierarchy and furthermore is
encouraged by the manner in which the organisation is structured. Prominent
scholars such as the American philosopher Peter A French and the Australian Brent
Fisse rejected an individualist approach and attempted to develop models of
corporate fault based on the corporate identity idea. The failure of a corporation to
take preventative or corrective measures in reaction to corporate criminal conduct is
regarded as the basis for corporate fault by these authors. French calls this the
"principle of responsive adjustment" whilst Fisse names it the concept of "reactive
fault." A more sophisticated model (the "corporate ethos" model), which is also more
reconcilable with the basic notions of criminal law, was developed by the American
legal scholar Pamela Bucy. A corporation will be held criminally responsible if its corporate ethos has
encouraged the criminal conduct. The corporate ethos can be established with
reference to numerous factors such as the corporate hierarchy, corporate goals, the
existing monitoring and compliance systems and the question whether employees
are rewarded or indemnified for inappropriate behavior.
2011-01-01T00:00:00ZCommercial Appropriation of a Person's Image: Wells V Atoll Media (Pty) Ltd (Unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009)
http://hdl.handle.net/10394/4664
Commercial Appropriation of a Person's Image: Wells V Atoll Media (Pty) Ltd (Unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009)
Cornelius, S J
Our modern society has become transfixed with celebrity. Business people and
marketers also endeavour to cash in on the popularity enjoyed by the stars and
realise the value of associating merchandise or trademarks with the rich and famous.
This leads to difficulties when the attributes of a person are apparently used without
consent, which poses new questions to the law: should the law protect the individual
against the unlawful use of his or her image? If so, to what extent should such
protection be granted? These were some of the questions which the court had to
answer in Wells v Atoll Media (Pty). The judgment in Wells has redefined the right to
identity and provided some clarity on what the infringement of that right would
amount to. When the attributes of a person are used without consent, the right to
identity can be violated in one of four ways. A person's right to identity can be
infringed upon if the attributes of that person are used without permission in a way
which cannot be reconciled with the true image of the individual concerned, if the use
amounts to the commercial exploitation of the individual, if it cannot be reconciled
with generally accepted norms of decency, or if it violates the privacy of that person.
2011-01-01T00:00:00ZAlignment of Student Discipline Design and Administration to Constitutional and National Law Imperatives in South Africa
http://hdl.handle.net/10394/4661
Alignment of Student Discipline Design and Administration to Constitutional and National Law Imperatives in South Africa
Mupangavanhu, B M; Mupangavanhu, Y
Higher Learning Institutions (HEIs) have an important role to play in the promotion of
respect for fundamental human rights and other constitutional imperatives. This article
will demonstrate that the design and administration of student discipline at HEIs
qualifies to be administrative action. As such, the article will identify the constitutional
and other legislative principles which can help student discipline to be aligned to the
requirements of just administrative action, which are lawfulness, procedural fairness and
reasonableness. The article will explore challenges faced by student discipline and
proffer recommendations and suggestions for improved regulation and practice.
2011-01-01T00:00:00Z