Browsing by Author "Sutherland, P. J."

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    Deregistrasie sonder likwidasie van maatskappye en beslote korporasies ingevolge die 2008 Maatskappywet
    (Juta Law Publishing, 2014-01) De Lange, S.; Sutherland, P. J.
    It is practically desirable that inactive companies are removed from the companies register. This should also be the main reason for the deregistration of companies that have not gone through winding-up. However, procedures should be in place to ensure that active companies are not subject to this form of deregistration. The legislation provides that companies (and close corporations) can be deregistered as a result of a failure to submit annual returns and pay annual prescribed fees. This leads to the deregistration of numerous active companies. The consequence is that third parties and specifically creditors are prejudiced. This authority to deregister companies should therefore be carefully limited to situations where the non-submission of returns is an indication that they are not active. Moreover, it is imperative that the law should provide for effective remedies to place deregistered companies, which are still active, back on the register. The Companies Act 71 of 2008 ("2008 Act") provides for the reinstatement of the registration of a company by the Companies and Intellectual Property Commission ("Commission"). However this remedy is practically speaking not available to creditors as the Regulations to the Companies Act only allow for reinstatement of registration if the outstanding annual returns are submitted and the annual fees are paid. Creditors are just not in the position to submit such documents. The question therefore arises as to whether creditors can make use of section 83(4)(a) of the 2008 Act, which provides that the dissolution of a company can be declared void, in order to obtain a restoration of the company on the register. The courts have reached conflicting decisions in this regard. The view that section 83(4)(a) is available in these circumstances is preferred as it offers protection to creditors and other third parties. However, this view does not give effect to the central role which the 2008 Act ascribes to the Commission as the custodian of the register of companies. It would in addition entail that an aggrieved creditor will have to incur the substantial cost of approaching the court for restoration. It seems impossible to find solutions to these problems in the existing legislation. It is therefore proposed that the Regulations should be amended to provide that creditors and other third parties can apply to the Commission for the reinstatement of the registration of a company, without submitting the outstanding returns or paying the outstanding fees. Finally, the question whether restoration of registration is retrospective, is considered. In order to protect creditors and other third parties sufficiently, it is preferable that restoration operates retrospectively, but to make it subject to judicial supervision. Again it is explained that the 2008 Act is incapable of achieving these objectives and that amendments to the legislation are required.
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    Ensuring contractual fairness in consumer contracts after Barkhuizen v Napier 2007 5 SA 323 (CC) - part 2
    (Juta Law Publishing, 2009-02) Sutherland, P. J.
    Barkhuizen v Napier 2007 5 SA 323 (CC) has important implications for insurance law, contract law in general, and an understanding of the interface between private common law and the Bill of Rights. In this matter an insurance policy determined that a claim against the insurer would lapse if the insured failed to serve summons on the insurer within 90 days of being notified of the insurer's repudiation of the claim. The insured argued that this provision conflicted with the constitutional right of access to the courts set out in section 34 of the Bill of Rights The majority of the Constitutional Court, per Ngcobo J, considered the application of the Constitution of the Republic of South Africa, 1996 in private relationships. He eschewed direct application of the Bill of Rights to the contractual provision but preferred to apply it indirectly via the contract law concept of public policy. He considered the meaning of this form of public policy in the light of the Constitution, determined the manner in which the section 34 right as an expression of public policy applied to this contract and related this to broader contractual fairness. Part I of this article, which appeared in 2008 (3) Stellenbosch Law Review, focused on these aspects. The majority further considered the significance of the sanctity of contract under the Constitution and decided that it could only uphold the time-limitation clause if it was fair. Its test for determining fairness was derived from cases that determined whether statutory provisions were inconsistent with section 34. They upheld the clause on the basis that there was insufficient evidence to show that the provision was unreasonable or that it would be unreasonable to enforce it in the circumstances. Part II is dedicated to an analysis of these issues. The majority judgment is analyzed with reference to the trenchant criticism in the minority judgments of Sachs J and Moseneke DCJ, delivered in the same court, as well as the earlier judgments of the Transvaal Provincial Decision and Supreme Court of Appeal. Ultimately the majority judgment in the Constitutional Court is criticized for being too timid and in some respect unsystematic. However, the final conclusion is positive. These judgments can serve as a springboard for the development of a progressive contract law, built on the values and rights set out in the Constitution.
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    Ensuring contractual fairness in consumer contracts after Barkhuizen v Napier 2007 5 SA 323 (CC) – Part 1
    (Juta Law Publishing, 2008-03) Sutherland, P. J.
    Barkhuizen v Napier 2007 5 SA 323 (CC) has important implications for insurance law, contract law in general, and an understanding of the interface between private common law and the Bill of Rights. In this matter an insurance policy determined that a claim against the insurer would lapse if the insured failed to serve summons on the insurer within 90 days of being notified of the insurer’s repudiation of the claim. The insured argued that this provision conflicted with the constitutional right of access to the courts set out in section 34 of the Bill of Rights The majority of the Constitutional Court, per Ngcobo J, considered the application of the Constitution of the Republic of South Africa, 1996 in private relationships. He eschewed direct application of the Bill of Rights to the contractual provision, but preferred to apply it indirectly via the contract law concept of public policy. He considered the meaning of this form of public policy in the light of the Constitution, determined the manner in which the section 34 right as an expression of article focuses on these aspects. The majority further considered the significance of the sanctity of contract under the Constitution and decided that it could only uphold the time-limitation clause if it was fair. Its test for determining fairness was derived from cases that determined whether statutory provisions were inconsistent with section 34. The majority upheld the clause on the basis that there was insufficient evidence to show that the provision was unreasonable or that it would be unreasonable to enforce it in the circumstances. Part II, which is to be published in 2009 (1) Stellenbosch Law Review, is dedicated to an analysis of these issues. The majority judgment is analyzed with reference to the trenchant criticism in the minority judgments of Sachs J and Moseneke DCJ, delivered in the same court, as well as the earlier judgments of the Transvaal Provincial Decision and Supreme Court of Appeal. Ultimately the majority judgment in the Constitutional Court is criticized for being too timid and in some respects unsystematic. However, the final conclusion is positive. These judgments can serve as a springboard for the development of a progressive contract law, built on the values and rights set out in the Constitution.