Letteratura scientifica selezionata sul tema "South Africa. Supreme Court. Transvaal Provincial Division"

The National Credit Regulator approached the then Transvaal Provincial Division of the High Court in 2008 by way of a notice of motion. In this application the Regulator prayed in terms of section 16(1)(b) of the National Credit Act 34 of 2005 (the "NCA") for the proper interpretation of mainly sections 86 and 87 of the same Act. Due to uncertainty and confusion the Regulator lodged an application to obtain clarity on some of the difficulties that debt counsellors experience in practice. The matter was heard in the High Court (TPD) on 02/03/2009 and judgment was handed down by Du Plessis J on 21/08/2009. This article discusses the fifteen prayers and the impact of the orders granted by the Court under three logical headings, namely: those that deal with the NCA and the Magistrate’s Court; Order 1 (on section 86(7)(c)), order 2 (an obligation to conduct a hearing), order 3 (the judicial role of the Magistrate’s Court) and order 4 (the application procedure of the Magistrate’s Court) defined the interaction between the NCA and the Magistrate’s Court Act (the “MCA”) very clearly. Since there is no sui generis procedure provided for in the NCA, it is submitted that the Court’s approach is correct. However, the end result is that the over-indebted consumer is not supported to the degree the NCA envisages. For example: a rule 55 procedure of the MCA can be cumbersome and costly, while the NCA envisaged a fast and relatively inexpensive process. those that deal with the role of the debt counsellor in debt restructuring; Order 5 (costs), order 6 (statutory function) and order 8 (the unique role of the debt counsellor), granted under this heading, are important. They define the role of the debt counsellor to be different from the run-of-the-mill applicant in terms of rule 55. He/she is even protected against some cost orders due to a statutory function. Because of this special function a question arises: should this difference in treatment not be even greater than custom presently permits or proposes? Since this function brings great responsibility and much paper work, should it not affect the fees that a debt counsellor may charge? those that deal with the court procedures. Orders 7, 9, 10 and 11 in this section are welcomed, namely those that deal with the service of documents, the geographical jurisdiction and monetary limit of the court, reckless credit and the in duplum rule. However, the Court preferred to stay on the safe side with respect to emoluments attachments orders and the application of section 86(2) to section 129(1). The lack of direction on the question when formal debt enforcement in fact begins, is regrettable. However, the declarator is a milestone in the history of the NCA. The orders impact significantly on the practice of debt review and will continue to shape the credit industry. Despite some disappointments it can be concluded that the declarator on the whole adds value to the practice of debt counselling in South Africa. It is now for the industry, the NCR, the legislators and scholars to take matters further.

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.

To date, few South African doctors have been found guilty of medical negligence in a criminal court (see e.g. R v Van Schoor 1948 4 SA 349; S v Mkwetshana 1965 2 SA 493 (N)). In the field of gynaecology and obstetrics, the unreported case of S v Nell 1987 TPD (see Strauss 1991:280–1) is relevant. In this case, a general practitioner was found guilty of culpable homicide on the ground of negligence during a birth process for attempting to remove the patient’s placenta without the assistance of an obstetrician. The court a quo’s sentence of five years imprisonment, of which three years were conditionally suspended, was changed by the full bench of the Transvaal Provincial Division (TPD; to which the accused appealed) to a fine of R5 000 or to two years’ imprisonment. In Van der Walt v S 2019-4-11, case no. A13/2018, the High Court dismissed an appeal against the merits and the sentence of the Regional Court and sentenced the gynaecologist-obstetrician to five years imprisonment after he was found guilty of culpable homicide. An appeal to the Supreme Court of Appeal was dismissed, but the Constitutional Court in Van der Walt v S [2020] ZACC 19 allowed the doctor’s appeal against the judgment on the ground of alleged irregularities in the handling of the case in the court a quo. His contention was that his right to a fair trial, as protected in section 35(3)(i) of the Constitution, was violated in that the magistrate pronounced on the admissibility of only certain exhibits during her judgment. She had also relied on medical textbooks in her judgment that were not disclosed during the trial. His appeal against his sentence was moreover based on the fact that it violated section 12(1)(a) of the Constitution. The Constitutional Court subsequently allowed the appeal against the fairness of the trial but dismissed the appeal against the sentence. In order to better contextualise the judgment of the Constitutional Court, the judgment of the High Court requires closer inspection. The High Court judgment detailed the specialist’s negligence towards one of his patients, whose death after giving birth was found to have been caused by severe blood loss not being attended to by the specialist. Both the Regional Court and the High Court (sitting as a court of appeal) found him guilty on a charge of criminal negligence. Regrettably, the Constitutional Court’s focus was limited to the alleged irregularities by the court a quo and not the context in which said irregularities occurred. The Constitutional Court therefore upheld the appeal and directed that the case be referred back to the Director of Public Prosecutions for a decision on whether or not to reinstitute action in a Regional Court in front of another magistrate. As a consequence, the specialist’s sentence fell away following the Constitutional Court’s declaration that the trial in the Regional Court was unfair.

Richard Feetham was Judge President of the Natal Provincial Division from 1 May 1930 to 18 July 1939. He succeeded Dove Wilson who was an able but not a very learned or dynamic Judge President. Thus, at the time of his appointment the Natal Court and its judgments were treated with little respect by the other provincial divisions. Feetham JP, unlike his predecessor, was not only a scholar with a towering intellect but a man endowed with outstanding leadership qualities. He was thus ideally suited to bring about a change for the better in the status of the Natal Court. He did this by taking a dynamic lead and presided over and delivered a high proportion of the courts' judgments. He also set his brethren an excellent example by the high standard he set for himself and his court and which they emulated. This thesis thus also covers the careers of these puisne and acting puisne judges and their contribution towards the better administration of justice in Natal. In 1930 there existed in Natal a disinct system of dual practice with a de facto Bar. This system had been a vexed question in the minds of Natal lawyers for two decades but when Feetham JP was confronted with it he immediately addressed the controversial issue and brought about the necessary reforms to divide the legal profession and bring Natal into line with the rest of South Africa. This reform raised the quality of pleading and manner in which the law was presented. It also provided the Natal Bench with able personnel for the future from within Natal. Accordingly this thesis also assesses the careers of the main legal practitioners of that period and their contribution towards the development of the administration of justice in Natal. In less than ten years Feetham JP thus transformed the Natal Provincial Division from being weak and ineffectual to a position where it became a division respected for its Bench, judgments and legal profession. During the course of time history has confirmed the overall significance of Richard Feetham's Judge Presidency.
Thesis (LL.M.)-University of Natal, Durban, 1988.