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Articles
15
Jul

Judicial Overreach

July 15, 2020,
In terms of the doctrine of separation of powers; specific functions, duties and responsibilities are allocated to and reserved for a distinctive sphere of government, namely, the Executive, Legislature or Judiciary. It is in terms of this doctrine, that it has been widely accepted that the judiciary cannot be involved in the formulation of policy,...
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15
Jul

Paja is not applicable to organs of state

July 15, 2020,
Case law: State Information Technology Agency SOC Limited (SITA) v Gijima Holdings (Pty) Limited [2017] ZACC 40 Before SITA judgment, it was accepted as legally correct for organs of the state to rely on the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) (PAJA) to ask courts to review...
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15
Jul

Does the decision by an organ of state to cancel a tender before adjudication amount to administrative action?

July 15, 2020,
The Promotion of Administrative Justice Act, 2000 (Act No 3 of 2000) [PAJA] gives effect to the right to just administrative action in terms of Section 33 of the Constitution of the Republic of South Africa. Most of the decisions taken by officials of the government institutions while performing their duties as government employees usually...
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15
Jul

Exhausting internal remedies in the municipal procurement – what does exhaust internal remedies mean in terms of Section 7(2) of Paja?

July 15, 2020,
In situations where a tenderer is aggrieved with the decision of the municipality in respect of a tender and wants to challenge it in the court law, what would, in law, be deemed as “exhausting all internal remedies”? The first point in establishing the legal position i.e. rights of the tenderer and powers of the...
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15
Jul

Suitable guarantees in construction projects

July 15, 2020,
Generally, a construction guarantee is required by the Employer from the contractor to provide the Employer with security in the event of default or non-performance by the contractor. The nature of construction guarantees can either be conditional or unconditional. The latter is referred to as an on-demand guarantee which is independent from the underlying construction...
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15
Jul

Can a shareholder claim damages, in his/her personal capacity, he/she has suffered as result of the wrong doing against a company?

July 15, 2020,
What happens when a company which suffered damages, chooses not to claim those damages against the wrongdoer? What are the rights of a shareholder whose share has suffered as a result? What is the legal position in such an instance? The Supreme Court of Appeal has brought clarity on this question in the case of...
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15
Jul

Letting out a state property – Does section 217 of the constitution apply?

July 15, 2020,
(Are you negotiating or about to sign that lease agreement with an organ of state? Make sure there is proper compliance with the law.) Section 217(1) of the Constitution provides that “When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for...
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