Mercantile Lawhttp://hdl.handle.net/2263/26062024-03-28T08:22:18Z2024-03-28T08:22:18ZAccountability, estoppel and bypassing of the municipal finance Management Act : a note on Merifon (Pty) Ltd v Greater Letaba municipality trilogyMaloka, Tumo CharlesSefoka, Isaiah Mmatipehttp://hdl.handle.net/2263/930622023-10-26T04:26:05Z2022-01-01T00:00:00ZAccountability, estoppel and bypassing of the municipal finance Management Act : a note on Merifon (Pty) Ltd v Greater Letaba municipality trilogy
Maloka, Tumo Charles; Sefoka, Isaiah Mmatipe
Accountability and transparency reinforce the constitutional principles of governance, which constitute equality before the law, separation of powers, legality and the rule of law, which are central to the conception of modern constitutional order. The trilogy of Merifon (Pty) Ltd v Greater Letaba Municipality Limpopo Division, Case No 01/2014 (18 July 2019), Merifon (Pty) Ltd v Greater Letaba Municipality [2021] ZASCA 50 and Merifon (Pty) Ltd v Greater Letaba Municipality [2022] ZACC 25 poses fundamental questions regarding the failure of a municipal manager and incompetent council to comply with statutory prescripts. Although the narrow issue for determination concerned the seller’s reliance on estoppel and the Turquand Rule to hold a municipality to the unlawful and inflated sale of land agreement, the Merifon litigation invites consideration of the practical reality of malfeasance in the local government sphere. In this note the litigation history and the analytical framework as well as the Municipal Finance Management Act 56 of 2003 (MFMA) are examined. The critical aspects of the three judgments regarding the problematic reliance on estoppel and the Turquand Rule in the face of peremptory prescripts of MFMA are subsequently examined.
2022-01-01T00:00:00ZA comparative appraisal of debt relief measures for no income no assets (NINA) debtors in Nigeriahttp://hdl.handle.net/2263/929272023-10-17T09:57:24Z2019-10-01T00:00:00ZA comparative appraisal of debt relief measures for no income no assets (NINA) debtors in Nigeria
Nigeria currently has a non-functioning insolvency system; it is yet to record a
successful insolvency case. This failure principally is attributable to the weak laws and
enforcement policies in existence. The problem is exacerbated by burgeoning
consumer debt in the formal sector. The causal factors for this increase in debt are
negative economic growth indices such as rising inflation, interest rates and
unemployment. With these indices predicted to worsen, a new Bankruptcy and
Insolvency Act (BIA) was proposed in 2016. The BIA seeks to regulate individual
insolvency proceedings in Nigeria. However, the BIA (as currently conceptualized)
does not make provision for debtors with neither income nor assets, often referred to
as No Income No Assets (NINA) debtors who, it can be argued, are in the majority in
the Nigerian state.
The aim in this thesis is to propose debt relief measures that cater for NINA debtors in
Nigeria. This proposal aims to prevent further discrimination against these debtors in
terms of the current law and the proposed BIA. It envisages that catering for NINA
debtors in Nigeria will boost the Nigerian government’s drive to encourage
entrepreneurship. In providing for NINA debtors it will provide a safe landing for poor
debtors in the event of entrepreneurial failure.
The thesis achieves its stated aim by studying international principles and guidelines
as espoused by leading bodies. Furthermore, the thesis performs a comparative
analysis of relevant NINA provisions in South Africa, Sweden, France, Ireland and
Canada.
The thesis proposes amendments to the proposed BIA in light of the aforementioned
analysis and posits that procedures that are formal and extra-judicial, which have no
financial requirements and are easily accessible to debtors should be incorporated.
Thesis (LLD)--University of Pretoria, 2019.
2019-10-01T00:00:00ZShould magistrates take down confessions?Curlewis, Llewelyn GrayGravett, W.H. (Willem)http://hdl.handle.net/2263/925932024-03-06T04:44:42Z2022-01-01T00:00:00ZShould magistrates take down confessions?
Curlewis, Llewelyn Gray; Gravett, W.H. (Willem)
Section 217(1) of the Criminal Procedure Act 51 of 1977 (the Act) sets forth the requirements for the admissibility of a confession made by any person in relation to the commission of an offence. Section 217(1)(a) provides that where a confession is made to a peace officer who is not a magistrate or a justice of the peace, such a confession must be confirmed or reduced to writing in the presence of a magistrate. Pursuant to section 217(1)(b), where a confession has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate, it is deemed to be admissible in evidence upon mere production (ss (b)(i)); and presumed, unless the contrary is proved, that the accused made the confession freely and voluntarily, while she or he was in her or his sound and sober senses, and without having been unduly influenced in making it (ss (b)(ii)).
2022-01-01T00:00:00ZA new legal and regulatory framework for derivative actions in Nigeriahttp://hdl.handle.net/2263/917372023-10-10T09:10:54Z2022-01-01T00:00:00ZA new legal and regulatory framework for derivative actions in Nigeria
The enactment of the Companies and Allied Matters Act in August 2020(‘CAMA’), has birthed another legal framework for derivative actions in Nigeria. However, the mild reforms made in CAMA with respect to derivative actions appear to not be a substantial departure from what was obtainable under the Companies and Allied Matters Act 1990(‘Old CAMA’).This thesis therefore, argues for a reform of the statutory derivative action regime in Nigeria as contained in the Companies and Allied Matters Act 2020. The proposed reform is hinged on the removal of existing hurdles and obstacles to instituting derivative actions; and the enactment of an all inclusive framework, which it is argued, may only be made possible by the abrogation of the common law derivative action regime and its attendant limitations. In addition, it is suggested that there should be an overhaul of the procedure for commencement of derivative actions; and incidental matters such as cause of action and parties. Also, since the requirement of applying for leave has been known to constitute a
major hindrance to the commencement of derivative actions, this thesis argues for its simplification and modification. Thus, it is maintained that an applicant in a derivative action should only be required to prove that his application shows that there is a serious question to be tried. Meanwhile, in line with the elaborate remedies available under the unfair prejudice remedy, it is argued that additional remedies like judicial disqualification and removal of directors should be included in the remedies available under derivative actions. Furthermore, in order to address the problem of funding occasioned by the inadequacy of the system of costs and indemnification, this thesis argues for the adoption of the Contingency
Fee Arrangement in the Nigerian derivative actions framework. Finally, towards enhancing the enforcement of corporate governance beyond litigation, this thesis argues for a facilitative and regulatory - Private Public Partnership ‘PPP’ model approach to derivative actions. It is posited that ‘PPP’ model will not only encourage the settlement of derivative actions through contractual means but also explore regulatory and administrative solutions to breach of corporate rights.
Thesis (LLD)--University of Pretoria, 2022.
2022-01-01T00:00:00Z