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Centre for Foreign and Comparative Law

volume 36(1) march 2003

Current legal developments


Principal legislation

The following Acts have been adopted:

Tribal Land(Amendment) Act 2002, Act 1 of 2003; and Tribal Territories (Amendment) Act 2002, Act 2 of 2003

The following Bills have been published in the Government Gazette for submission to the National Assembly:

Appropriation (2003/2004) Bill 1 of 2003 and Supplementary Appropriation (2001/2002) Bill 2 of 2003
These Bills respectively appropriate money from the Consolidated and Development Funds for the financial year ending 31 March 2004; and provide for the appropriation of expenditure approved by the National Assembly by motion in terms of s 119(3) of the constitution, to meet expenditure incurred during the financial year ending 31 March 2002, in excess of the amount appropriated by the Appropriation (2001/2002) Act 2001.

Children's (Amendment) Bill 3 of 2003
The Bill gives the Minister of Local Government the power to make regulations for the better realisation of the purposes and provisions of the Children's Act 1981.

Immigration(Amendment) Bill 4 of 2003
Harsher penalties are proposed under the Bill for unlawful entry into Botswana and for aiding and abetting such unlawful entry.

Employment (Amendment) Bill 5 of 2003
The Bill amends the Employment Act to bring it in line with the Conventions of the International Labour Organisation (ILO). It seeks, for example, to accord protection to employees in the event of the insolvency of their employers by giving employees a preferential claim to the assets of the insolvent employer.

Trade Unions and Employers' Organizations (Amendment) Bill 6 of 2003
The Bill intends to amend the Trade Unions and Employers' Association Act to bring it in line with International Labour Organisation (ILO) Conventions. The Bill seeks, for example to extend the definition of `employee' to include public officers (except those in the Botswana police service, local police force, prison service and Botswana Defence Force) and persons employed by local authorities. It also seeks to remove the condition requiring more than thirty employees for a trade union to be formed, and removing the registrar's powers to disband a trade union or federation of trade unions without the consent of the responsible minister, if any of its officers, are non- citizens.

Trade Disputes Bill 7 of 2003
The Bill enacts, with substantial amendments, the Trade Disputes Act. It establishes a panel of full time and part time mediators and arbitrators, with the Commissioner of Labour as the Chairman. It also seeks to bar legal representation in arbitration proceedings except in cases where the parties to the dispute have so agreed or if at the request of a party to the dispute, the mediator or arbitrator is satisfied that the dispute is of such complexity that it is appropriate to allow legal representation, or the other party to the dispute is not prejudiced.

Legal Practitioners (Amendment) Bill 8 of 2003
The Bill amends the Legal Practitioners Act 1996 so as to reduce the period of practice required for a legal practitioner to qualify as a pupil master from seven to five years. It also recognises approved institutions as places where pupillage may be served.

Agreement on Technical and Economic Cooperation (Ratification) Bill 9 of 2003
The Act seeks to ratify the raising of an interest-free loan of some P18 million by the government of Botswana from the government of the Republic of China to finance, in part, a multipurpose youth centre in Gaborone.

Botswana Housing (Gaborone) Project Loan Agreement (Ratification) Bill 10 of 2003
This Bill seeks to ratify the raising of a P19 million loan from the Export-Import Bank of China to assist in financing the Botswana Housing (Gaborone) Project.

Botswana Housing (Palapye) Project Loan (Authorization) Bill 11 of 2003
The Bill seeks to authorise a loan agreement of some P10 million between the government of Botswana and the Export-Import Bank of China to finance a housing project in Palapye.

Transfer Duty (Amendment) Bill 12 of 2003
The five per cent transfer duty on property transactions is to be waived under this Bill where such transaction attracts VAT. The Bill also seeks to reduce transfer duty payable on sales of agricultural land to non-citizens from thirty per cent to twenty per cent where such transactions attract VAT. The Bill also increases the threshold of the amount on which a citizen shall not be charged transfer duty, from P20 000 to P200 000.

Letlhakeng-Kang (Section 1) Road Project Loan (Authorization) Bill 13 of 2003
The Bill seeks to authorise a loan agreement between the government of Botswana and the Export-Import Bank of China to finance the construction of the Letlhakeng to Kang road.

Agreement on Technical and Economic Cooperation (Ratification) (Loan) Bill 14 of 2003
The Bill is to ratify the raising of some P18 million loan by the Botswana government from the Export-Import Bank of China to finance a multi purpose youth centre in Gaborone.

Statutory instrument

Delimitation of Constituencies Proclamation 2003 SI 6 of 2003
This Proclamation by the State President redraws the boundaries of the present 40 parliamentary constituencies in line with the report of the Delimitation Commission. As a result there are now 57 parliamentary constituencies.

Emmanual Quansah
University of Botswana


Principal legislation

For the four month ending May 2002, the following principal statutes were enacted:

Private Security Officers Act 11 of 2002
The Act came into force on 20 March 2002. It sets up the Private Security Officers Board headed by the principal secretary of the Ministry of Home Affairs. The board shall regulate and exercise control over private security officers and private security guards. It shall prescribe the types and number of firearms to be used in the private security industry, types of uniform and badges of rank for private security guards and conditions for training of such guards. It shall draw up a code of conduct for them and screen applications by prospective private security officers and guards. All private security officers and all private security service providers must be registered with the board. Non-compliance shall constitute an offence.

Tourism Act 4 of 2002
This Act repeals the Lesotho Tourist Board Act 12 of 1983 to set up a new Lesotho Tourism Development Corporation in which the government shall have 51% of non-transferable shares. It is not clear who would hold the remainder. While the chairman shall be the Director of Tourism, a government official, the Chief Executive will be appointed on contract for a period of four years. The board shall have a representative of the Hotels and Hospitality Association and four other members, appointed by the Minister for Tourism. Section 4 lists the functions of the corporation. These include the development, improvement and encouragement of tourism; promotion of the revival and development of traditional handicrafts, popular arts, festivals and culture; preservation and development of tourist and historic sites; running or establishment of tourist undertakings; grading and classification of accommodation, liquor and tourism-related establishments and assistance in the creation of markets for Lesotho products. The corporation shall manage its affairs in a prudent manner in accordance with the high standards prevailing in a commercial undertaking. All the profits shall be applied exclusively to promote the functions of the corporation and no dividend shall be paid. The Act authorises the Minister for Tourism to designate specified areas as tourism development areas, which would be eligible for financial assistance from the government. The corporation shall have regard to national and international environmental standards and consult with NGOs. The Act shall enter into force on a date determined by the minister and published in the Government Gazette.

Other statutes, enacted were:

Judges' Pensions Act 5 of 2002 came into force on 6 March 2002 and provides a formula for the calculation of pension to citizen judges of the High Court and Court of Appeal.

Criminal Procedure and Evidence (Amendment) Act 10 of 2002 came into force on 23 April 2002. It inserts a new section 109A which requires a court to detain an accused in custody until he or she is dealt with in accordance with the law, if such accused is charged with the planned or premeditated murder of a law enforcement officer or anyone who gave or was likely to give material evidence to any offence referred to in Part II of Schedule I of the parent Act (which lists serious offences); or the death of the victim was caused in committing or attempting to commit rape, robbery, stock theft, theft of a motor vehicle or indecent assault on a person under the age of 16; or the crime was committed by a person, group of persons or syndicated acting in the execution or furtherance of a common purpose or conspiracy; or the accused is charged with rape and the victim was raped more than once, or by a person who is charged with two or more offences of rape or by a person knowing that he is HIV positive or the victim is under the age of 16, or is particularly vulnerable because of his or her disability or is mentally incapacitated, or the rape involves infliction of grievous bodily harm; or the accused is charged with robbery involving use of a firearm or the infliction of grievous bodily injury or theft or attempted theft of a motor vehicle; or the accused is charged with indecent assault on a person under the age of 16 and the offence involved infliction of serious bodily harm; or the accused is charged with committing a offence listed in Part II of Schedule I a second time or when the offence was committed the accused was on bail charged with an offence listed in Part II of Schedule I. The amendment also adds stock theft and theft of a motor vehicle in Part II of Schedule I.

Subsidiary legislation

The following deserve mention:

Road Traffic (Amendment) Regulations Legal Notice 47 of 2002 came into force on 26 April 2002. They revise the amount payable for a driver's licence and provide for a credit card-type licence. The regulations do not prescribe any deadline for obtaining these and old driver's licences are replaced by the credit card type when they expire.

Hire Purchase Regulations Legal Notice 78 of 2002 came into force on 29 April 2002 to define a lay-by agreement as an agreement where ownership and possession of the goods is suspended until the buyer has paid all instalments. No hire-purchase sale is valid unless the buyer has paid 10% of the cash price, the period of the transaction is not less than six months and the chargeable interest rate is not more than the prime rate set by the Central Bank of Lesotho. The regulations also provide for the obligation of the seller to furnish information to buyer, reduction of instalments for accelerated payments, obligation to provide information to the public officer responsible for the administration of the Hire Purchase Act, no repossession without a court order, rules as to finance charges and offences and penalties.

Public Service (Amendment) Regulations Legal Notice 83 of 2002 came into force retrospectively on 8 October 2001. They repeal and replace regulations 831 to 840 of the principal regulations of 1969 and provide for the conditions for a motor vehicle loan.

High Court (Amendment) Rules Legal Notice 103 of 2002 came into force on 27 May 2002. They amend the principal rules published in legal notice 9 of 1980 to replace the definitions of `registrar' and `sheriff' to provide that the word registrar will include deputy registrar and assistant registrar and the word sheriff will include deputy sheriffs. Rule 3A has been added to provide that the registrar may appoint one or more deputy sheriffs to perform the functions of a sheriff under his directions. Sub-rule (7) has been added to rule 7 to authorise default judgment in certain cases.

Umesh Kumar
National University of Lesotho


Proclamations of the President

Proc 7 of 2002 in terms of s 3(1) of the Social Security Act 34 of 1994 caters for the establishment of a commission of inquiry into the activities, affairs, management and operation of the Social Security Commission.

Acts of the National Assembly

Communal Land Reform Act 5 of 2002 provides for the allocation of rights in respect of communal land; the powers of chiefs and traditional authorities and boards in relation to communal land; and makes provision for incidental matters.

Income Tax Amendment Act 7 of 2002 prescribes inter alia amendments to the Income Tax Act 24 of 1981, so as to include in the definition of 'gross income' certain amounts accrued from a pension preservation fund.

Development Bank of Namibia Act 8 of 2002 provides for the establishment of the Development Bank of Namibia the purpose of which is to contribute to the economic growth and social development of Namibia by providing financing in support of key development activities. It provides inter alia for the objects and powers of the bank, shareholding, special development fund, directors and matters incidental thereto.

Lotteries Act 15 of 2002 establishes a Lotteries Board for the promotion and conduct of the national lottery and the administration of the National Lotteries Trust Fund and the Social Upliftment Fund; it also provides for the authorisation, supervision and control of benevolent lotteries and matters incidental thereto.

Aquaculture Act 18 of 2002 regulates and controls aquaculture activities and provides for the sustainable development of aquaculture resources and related matters.

Government notices

GN 184 of 2002 determines the regulations for the municipal police services in terms of the Police Act 19 of 1990.

GN 5 of 2003 determines the regulations for the limitations on the liability of the fund in terms of the Motor Vehicle Accidents Fund Act 4 of 2001.

GN 10 of 2003 determines irregular or undesirable practices in terms of the Short-Term Insurance Act 4 of 1998.

GN 11 of 2003 determines irregular or undesirable practices in terms of the Long-Term Insurance Act 5 of 1998.


Northbank Diamonds Ltd v FTK Holland BV and Others 2003 1 SA 189 (NmS)
The supreme court of Namibia held that the court in its exercise of its discretion in an application for security for costs must decide each case upon a consideration of all the relevant features. The applicants in casu had made common cause and it was clear that if the respondent was successful in its defence, an order jointly and severally for the payment of costs would be made. These were features which the court had to consider in the exercise of its discretion. Where one or more of the applicants was able to pay an order for costs made jointly and severally, any possible prejudice to the respondent of not being compensated for its costs if it were successful would be removed. The court on appeal held that the court a quo had been entitled to consider the overall financial position of the applicants and their pooled financial resources in declining to order payment of security for costs. The court of appeal held that the same facts, concerning a joint and several order for costs, which applied to the incola companies, also applied to the peregrinus company, and there was no basis to interfere with the exercise of its discretion by the court a quo.

Kesiree Moodley
University of South Africa

South Africa

Principal legislation

Forty-four Acts were passed during the period under review. These include the Reinstatement of Enrolment of Certain Legal Practitioners Act 32 of 2002; Insolvency Amendment Act 33 of 2002; Export Credit and Foreign Investments Insurance Amendment Act 34 of 2002; Probation Services Amendment Act 35 of 2002; Planning Profession Act 36 of 2002; Financial Advisory and Intermediary Services Act 37 of 2002; State Information Technology Agency Amendment Act 38 of 2002; Corporate Laws Amendment Act 39 of 2002; Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002; Road Accident Fund Amendment Act 43 of 2002; South African Maritime and Aeronautical Search and Rescue Act 44 of 2002; Collective Investment Schemes Control Act 45 of 2002; South African Revenue Service Amendment Act 46 of 2002; Administration of Estates Amendment Act 47 of 2002; Finance Act 48 of 2002; Agricultural Debt Management Amendment Act 49 of 2002; Education Laws Amendment Act 50 of 2002; Local Government Laws Amendment Act 51 of 2002; Promotion of Equality and Prevention of Unfair Discrimination Amendment Act 52 of 2002; Promotion of Access to Information Act 54 of 2002; Judicial Matters Amendment Act 55 of 2002; National Environmental Management Amendment Act 56 of 2002; Disaster Management Act 57 of 2002; Patents Amendment Act 58 of 2002; Medicines and Related Substances Amendment Act 59 of 2002; Occupational Diseases in Mines and Works Amendment Act 60 of 2002; Merchandise Marks Amendment Act 61 of 2002; Medical Schemes Amendment Act 62 of 2002; Higher Education Amendment Act 63 of 2002; Insolvency Second Amendment Act 69 of 2002; Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002; International Trade Administration Act 71 of 2002; Adjustments Appropriation Act 73 of 2002; Revenue Laws Amendment Act 74 of 2002; and Gas Regulator Levies Act 75 of 2002.

Reinstatement of Enrolment of Certain Legal Practitioners Act 32 of 2002
This Act provides for the reinstatement of the enrolment of certain deceased legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to the previous political dispensation of apartheid or their assistance to persons who were opposed to apartheid. It also provides for matters connected therewith.

Planning Profession Act 4 36 of 2002
The purpose of this Act is to provide for the establishment of the South African Council of Planners as a juristic person; to provide for different categories of planners and the registration of planners; to authorise the identification of areas of work for planners; to recognise certain voluntary associations; to protect the public from unethical planning practices; to maintain a high standard of professional conduct and integrity; to establish disciplinary mechanisms and an Appeal Board; and to provide for incidental matters.

Financial Advisory and Intermediary Services Act 37 of 2002
This Act regulates the rendering of financial advisory and intermediary services to clients by financial services providers.

Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002
The purpose of this Act is to regulate the prescription and to harmonise the periods of prescription of debts for which certain organs of state are liable. It also makes provision for notice requirements in connection with the institution of legal proceedings against certain organs of state in respect of the recovery of debt.

Promotion of Access to Information Act 54 of 2002
This Act amends the Promotion of Access to Information Act 2 of 2002, so as to amend the definition of `court'; to provide for the training of presiding officers in the magistrates' courts for purposes of the Act; and to provide for matters connected therewith.

Patents Amendment Act 58 of 2002
This Act amends the Patents Act 57 of 1978, so as to bring certain provisions in line with the Agreement on Trade-related Aspects of Intellectual Property Rights; to bring provisions regarding the processing and amendment of applications under the Patent Co-operation Treaty in line with other applications; to effect technical corrections to some provisions and clarify others; to provide for the non-infringement of a patent under certain circumstances; and to provide for matters incidental thereto.

Medical Schemes Amendment Act 62 of 2002
This Act amends the Medical Schemes Act 131 of 1998 by broadening the definition of `broker' and the circumstances under which such a person must be accredited in terms of this Act. The Act also provides for incidental matters.


Twenty-five Bills were tabled during the period under review. These include the Promotion of Administrative Justice Amendment Bill 46 of 2002; Gas Regulator Levies Bill 47 of 2002; Finance Bill 48 of 2002; Child Justice Bill 49 of 2002; Intelligence Services Control Amendment Bill 50 of 2002; Regulation of Interception of Communications and Provision of Communication-Related Information Bill 50 of 2002; National Strategic Intelligence Amendment Bill 51 of 2002; Insurance Amendment Bill 52 of 2002; Insolvency Second Amendment Bill 53 of 2002; Administration of Estates Amendment Bill 54 of 2002; Judicial Matters Amendment Bill 55 of 2002; Criminal Procedure Amendment Bill 57 of 2002; Intelligence Services Bill 58 of 2002; Electronic Communications Security (Pty) Ltd Bill 59 of 2002; Promotion of Access to Information Amendment Bill 60 of 2002; Local Government Laws Amendment Bill 61 of 2002; National Environmental Management Amendment Bill 62 of 2002; Merchandise Marks Amendment Bill 63 of 2002; Patents Amendment Bill 64 of 2002; Animal Health Bill 64 of 2002; Deeds Registries Amendment Bill 65 of 2002; Adjustments Appropriation Bill 66 of 2002; Revenue Laws Amendment Bill 67 of 2002; Local Government: Municipal Structures Second Amendment Bill 68 of 2002; Constitution of the Republic of South Africa Fourth Amendment Bill 69 of 2002; and National Development Agency Amendment Bill 70 of 2002.

Child Justice Bill 49 of 2002
This Bill proposes the establishment of a criminal justice process for those children accused of committing offences so as to protect the rights of children entrenched in the constitution and provided for in international instruments. The objects of the Bill are to provide for the minimum age of criminal capacity of such children; to incorporate diversion of cases away from formal court procedures as a central feature of the process; to establish assessment of children and a preliminary inquiry as compulsory procedures; to provide that children must be tried in child justice courts; to extend the sentencing options available in respect of children; and finally to entrench the notion of restorative justice in respect of children.

Intelligence Services Control Amendment Bill 50 of 2002
This Bill seeks to amend the Intelligence Services Control Act 40 of 1994. The objects of the Bill are to change the name of the Act to Intelligence Services Oversight Act, 1994; to give the Joint Standing Committee on Intelligence (the `JSCI') sole responsibility for the financial oversight of Intelligence Services; to provide security clearance for the chairperson of the JSCI; to clearly define `minister' as the `Minister of Intelligence'; to extend the power of the minister to make regulations; to provide for the appointment of one inspector-general for all the services; to re-regulate the functions, the termination of service and the removal of office of the inspector-general; to provide for the appointment of personnel to the office of the inspector-general; and to provide for matters connected therewith.

National Strategic Intelligence Amendment Bill 51 of 2002
This Bill proposes the amendment of the National Strategic Intelligence Act 39 of 1994, so as to exclude the minister as a member of Nicoc; to redefine counter-intelligence; to provide for security screening by the relevant members of the national intelligence structures; to further define the functions of the minister pertaining to the coordination of intelligence; to regulate the functions of the National Intelligence Structures; and to provide for matters connected therewith.

Criminal Procedure Amendment Bill 57 of 2002
This Bill aims to amend the Criminal Procedure Act 51 of 1977, so as to further regulate appeals against decisions of lower courts; and to provide for matters connected therewith.

Intelligence Services Bill 58 of 2002
This Bill seeks the establishment, administration, organisation and control of the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. It also aims to establish and regulate the Intelligence Services Council on Conditions of Service.

Electronic Communications Security (Pty) Ltd Bill 59 of 2002
This Bill provides for the establishment of a company, Comsec, that will provide electronic communications security products and services to organs of state. It also provides for matters connected therewith.

Animal Health Bill 64 of 2002
This Bill seeks to provide for measures to promote animal health and to control animal diseases. It therefore aims to assign executive authority with regard to certain provisions of the Bill to provinces; to regulate the importation and exportation of animals and things; to establish animal health schemes; and to provide for matters connected therewith.

Deeds Registries Amendment Bill 65 of 2002
This Bill aims to amend the Deeds Registries Act 47 of 1937, so as to make further provision regarding the registration of immovable property in the name of persons married under the Recognition of Customary Marriages Act 120 of 1998; to endow a trust with legal personality; and to provide for matters connected therewith.


Stellenbosch Farmers' Winery Group Ltd v Martell et cie 2003 1 SA 11 (SCA)
When courts are faced with two irreconcilable versions in a factual dispute they generally use the following technique. In order to come to a conclusion on the disputed issues the court must make findings on the credibility of the various factual witnesses; their reliability; and the probabilities. The court's finding on the credibility of a particular witness will depend on its impression of the truthfulness of the witness. This will in turn depend on a variety of other factors, such as the witness's candour and demeanour in giving evidence, his/her latent and blatant bias, internal contradictions in the evidence, external contradictions, the probability of particular aspects of his/her version, the calibre and cogency of the performance compared of other witnesses.

The reliability of a witness will depend, apart from the above factors, on the opportunities (s)he had to experience and observe the event in question and the quality, integrity and independence of his/her recall. To make a finding on the probabilities will entail an analysis and evaluation of each party's version on each of the disputed issues. In the light of these findings the court will determine whether the party who bears the onus of proof has succeeded in discharging it.

The most difficult finding is when the court's credibility findings point in one direction and its evaluation of the general probabilities in another direction. The more convincing the credibility, the less convincing the probabilities. However, when all is equal, probabilities prevail.


Coetzee v Attorneys' Insurance Indemnity Fund 2003 1 SA 1 (SCA)
The appellant had engaged an attorney to act for him in an action for damages. Due to the attorney's negligence the claim had prescribed. The appellant sued the attorney for damages, but before the trial started the attorney was finally sequestrated and the respondent was substituted as the defendant. As there was a limitation on the claim in terms of the policy the attorney has with the respondent, the appellant adjusted his claim accordingly. However, he claimed costs in addition to the claim for damages. The respondent argued that the indemnity included its liability for costs.

The indemnity was described in the policy as the insured's legal liability to any third party arising out of the conduct of his profession and approved legal and similar costs and expenses incurred with the insurer's written consent. Limit of the indemnity was described in the policy as the liability of the insurers for all claims and claimants' costs and expenses arising out of one event which will not exceed the limit of the indemnity. The appellant argued that, as his costs were not recoverable from the attorney who was limited by the policy, but from a new defendant (introduced by the Insolvency Act), the Act allowed him to recover the costs since the new defendant was not limited.

The majority of the court held that as far as the indemnity went the appellant's costs were part of the attorney's legal liability as a liability for potential costs flowed out of a liability in delict. The court argued that it would have been very surprising if the attorney had been indemnified against damages which did not include indemnity for accompanying costs. The court also held that in terms of the limit, the words `and claimant's costs and expenses' clearly included costs. The liability of the insurer arose out of the policy including all its terms and conditions. Any other interpretation would increase the insurer's liability.

In his minority judgment Marais JA argued that the appellant was obliged to pursue the action because the insurer wrongfully refused to pay even the R1m it was liable to pay in terms of the policy. These costs did not represent the costs with which the policy deals. They are extraneous to it. The costs which the policy refers to are costs incurred by the attorney in defending a claim and costs ordered to be paid by him if the claim succeeds. Once insolvency intervenes and the Fund is called upon to pay in terms of the Act, its position is the same as any other litigant. If it is liable, it must pay what the policy obliges it to pay. If it contests the claim and is unsuccessful, it should pay the costs.

Land reform

Ndlovu v Ngcobo; Bekker and another v Jika 2003 1 SA 113 (SCA)
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) gives `unlawful occupiers' some procedural and substantive protection against eviction from land. In these two matters, heard together as a matter of convenience, the issue centred around the interpretation of `unlawful occupiers'. Did the term cover only those who had unlawfully taken possession of land, ie squatters, or did it include persons who at some stage had had lawful possession but whose possession had become unlawful. In casu, this had happened because a tenant, whose lease had been lawfully terminated, refused to vacate the premises. In the second matter a mortgagor had fallen in arrears, the property had been sold in execution and transferred to the purchaser and the former owner refused to vacate. Both matters were therefore cases of holding over. Both occupiers were therefore in terms of the ordinary meaning of the Act `unlawful occupiers', as they occupied the land without consent.

In a majority decision of three to two, the court felt that to hold otherwise would require an amendment to the definition and that there were no indications in the Act that this was the interpretation envisaged. The court was therefore unwilling to depart from the ordinary meaning of the text. The arguments that there were external factors that indicated that parliament could not have intended to cast the net so wide, were dismissed. The inclusion of including cases of holding over within the definition of `unlawful occupier' in PIE did not imply `that the owners concerned would not be entitled to apply for and obtain eviction orders. It only means that the procedures of PIE have to be followed'. The only real consequence of the judgment would be to impose the legislation's procedural requirements.

In terms of Olivier J's minority judgment ownership of land has in terms of the common law always been the most extensive and absolute real right, protecting the owner against all unwanted intrusions and affording him an absolute right of eviction against those whom he did not want on his property. According to the minority view the Constitution has not changed this position with regard to defaulters and the class of persons under consideration as against the lawful owners, landlords or other persons with similar rights. The contrary view not only results in a change of procedure, it allows a judge a discretion whether to grant an eviction order (`if it is just and equitable', with a number of factors to be taken into account). Nienaber J concurred in the minority judgment, adding that PIE, in his opinion, was applicable to squatters and not to other unlawful occupiers.


Body Corporate of Geovy Villa v Sheriff, Pretoria Central Magistrate's Court and Another 2003 1 SA 69 (T)
The body corporate of a sectional title scheme sought a declaratory order that the bond held by the bank (the second respondent) over a unit in a sectional title scheme does not rank higher in preference than the applicant's claim for overdue levies and costs. Specifically, it sought an order that s 66(2) of the Magistrates' Courts Act 32 of 1944 does not apply to the unit. The respondents argued that the practice had for years been that the bondholder's right outranked that of the body corporate.

The court held that the issue was part of a larger socio-economic problem unit-owners are often employees of the state, parastatal enterprises or large private enterprises, entitled to housing subsidies. 100% bonds are granted by financial institutions and registered against the units. The bond repayments are often automatically paid over to the bondholder by the employer and in many cases the owners of the units were not aware of the obligation to pay a levy and made no provision for such payment in their financial planning. The result is easily foreseeable. The bond repayments are up to date and the other arrears and costs increase monthly. The bodies corporate are hampered in their functioning and rely on other owners to carry the defaulters. The more of these, the more impossible becomes the task of the bodies corporate leading eventually to the deterioration of the building and slum conditions where financial institutions are no longer willing to grant loans. The interests, not only the bodies corporate but also the other unit-owners in the scheme, bondholders and the community as a whole required that bodies corporate should act against defaulters as quickly as possible.

Two Supreme Court of Appeal judgments authoritatively held that the claim of the body corporate outranked that of the bondholder. It was therefore unnecessary for notice to be given to the bondholder in terms of s 66(2) of the Act, nor was the bondholder's consent required for the sale of the unit by the body corporate.

Because of the negative effects such a ruling might have on the value of sectional title units and the difficulty of obtaining loans for such units, which in turn could affect property values, it may be advisable for the legislature to provide specifically for notice to be given to the bondholder in the event of a sale to recover arrear levies.

Annalize Jacobs
Isabeau Southwood
University of South Africa


Principal legislation

National Social Security Authority Amendment Act 8 of 2002
This Act gives the National Social Security Authority additional powers to extract social security contributions from recalcitrant employers. The authority can now estimate the contributions payable by an employer and compel him to pay the estimated amount, subject to a right of appeal to the Administrative Court. The authority can also compel an employer's bank, or anyone else who holds money on behalf of an employer, to pay the employer's contributions out of the money so held.

Patents Amendment Act 9 of 2002
This is the final piece of legislation intended to give effect in Zimbabwe to the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement), which was concluded in 1994 in the framework of the Uruguay Round of GATT. The other Acts are the Copyright and Neighbouring Rights Act 11 of 2000; the Intellectual Property Tribunal Act 5 of 2001; the Trade Marks Amendment Act 10 of 2001; the Plant Breeders Rights Amendment Act 11 of 2001; the Integrated Circuit Lay-out Designs Act 18 of 2001; the Geographical Indications Act 24 of 2001; and the Industrial Designs Amendment Act 25 of 2001, all of which have been dealt with in previous editions of CILSA. Amongst other things, the Act will prohibit the grant of patents for plants, animals, biological processes and methods of medical treatment; will extend the rights of patent-holders (though it will permit parallel importations of patented products, something that is expressly prohibited under the new Copyright and Neighbouring Rights Act); will allow courts to issue Anton Piller orders to enforce the rights of patent-holders; and will give effect to the Patent Co-operation Treaty of 1970, in relation to the filing and enforcement of international patents.

Land Acquisition Amendment 2 Act 10 of 2002
This is yet another Amendment to the Land Acquisition Act designed to facilitate the government's land resettlement policy. Before it acquires any land, the state is now required to give at least thirty days' notice of the acquisition of any land to bond-holders and holders of other real rights in the land, but where the land is being acquired for agricultural resettlement, the state is relieved of the obligation to prove that the land is suitable for that purpose if the land has been used for agriculture within the last fifty years. The Act also contains provision for the eviction of landowners from their land even before the Administrative Court has confirmed the state's acquisition of it. A landowner who refuses to vacate his land is liable to severe penalties. As in previous amending Acts, the Amendments effected by this Act are made retroactive to 23 May 2000.

Masvingo State University Act 11 of 2002
This Act establishes yet another state university, this time in Masvingo. There are now seven state universities including the Zimbabwe Open University.

Environmental Management Act 13 of 2003
This Act, which is not yet in operation, attempts to create a coordinated system for environmental protection and management. A National Environmental Council will be established with largely advisory functions, as well as an Environmental Management Agency which, amongst other things, will be responsible for formulating environmental standards, regulating and monitoring pollution and the control of invasive alien plant species, developing incentives for environmental protection, carrying out works to protect the environment, and helping to prepare national environmental plans and a five-yearly report to parliament. The agency will also manage an Environment Fund constituted from levies imposed by the responsible minister on `any person or class of persons whose activities impact on the environment' (a class so wide as to encompass every human being in Zimbabwe). The fund will be used to finance activities for the rehabilitation and conservation of the environment, including the paying of grants to local authorities for environmental purposes. Standards relating to water, air, waste materials, pesticides and toxic substances, noise, smells, litter and radioactivity will be determined by a committee established under the Act.

The responsible minister, in consultation with whatever agencies and persons he considers appropriate, will draw up one or more national environmental plans which, once in operation, will bind everyone, including the State, and will have to be considered in the implementation of all projects concerning the environment. On a local level, all local authorities will be obliged to prepare environmental action plans for their areas, and the Environmental Management Agency will have power to compel other authorities and persons to prepare environmental management plans.

Environmental impact assessments will be required for a great variety of projects (even some very small-scale ones), which will have to be approved by the agency's chief executive officer.

The responsible minister will have power to construct conservation works, issue orders for the protection of the environment, take measures for conserving biological diversity, and make regulations to control access to Zimbabwe's biological and genetic resources. Curiously, he will not have to consult the Environmental Management Agency in the exercise of many of these powers.

In a separate part based on the present Noxious Weeds Act, the Act deals with the removal of plants listed as `invasive alien species' in a schedule to the Act. Finally, it should be noted that there is a specific provision enjoining the minister, the agency and all other authorities to observe the rules of natural justice when exercising their powers under the Act.

General Laws Amendment 2 Act 14 of 2002
In a previous edition of CILSA it was noted that Zimbabwe's parliament had passed a General Laws Amendment Act 2 of 2002. In fact, parliament rejected the Act at its third reading but two days later, having resolved to rescind its vote and to suspend a standing order that forbade the introduction of the same Bill twice in the same session, parliament reversed its vote and passed the Bill. Subsequently, on the application of aggrieved members of parliament, the Supreme Court of Zimbabwe declared that the Act had not been validly passed. See Biti & Anor v Minister of Justice & Anor S102002 (unreported) 27 February 2002. This Act is a re-enactment of that earlier Act. Its contents are virtually unchanged, except that it omits the amendments to the Electoral Act, which were contained in separate legislation that was also dealt with in the previous edition of CILSA.

Finance Act 15 of 2002
The fiscal measures announced by the Minister of Finance in his budget speech are implemented by this Act.

Appropriation Act 16 of 2002
This Act appropriates a total of Z$580 380 672 000 for government expenditure during the 2003 fiscal year.

Published, but not yet in operation are the Valuers Act 5 of 1996; the Estate Agents Act 6 of 1999; the Copyright and Neighbouring Rights Act 11 of 2000; the Intellectual Property Tribunal Act 5 of 2001; the Social Workers Act 9 of 2001; the Rural Electrification Fund Act 3 of 2002; and the Electricity Act 4 of 2002.

Legal Aid Act 18 of 1996 was brought into operation from 1 January 2003.

Subsidiary legislation

Notable statutory instruments have been published under the following Acts:

Chartered Accountants Act
Regulations specified qualifications for the admission of affiliate members of the Institute of Chartered Accountants of Zimbabwe though it is doubtful if the enabling Act envisages affiliates being admitted to membership (SI 317/2002).

Civil Protection Act
A state of disaster arising out of the drought was extended to 2.1.2003 (it has not been further extended).

Competition Act
Regulations were published prescribing the procedure to be adopted by the Competition and Tariff Commission when investigating whether to recommend the imposition of anti-dumping duties or countervailing duties (ie import duties to protect domestic products against unfair foreign competition) (SI 266/2002).

Control of Goods Act
Regulations fixed new prices of agricultural seeds (SI 267/2002), and regulations fixing the prices of fencing materials were repealed (SI 272/2002). Subsequently regulations were published which imposed a freeze on the prices of virtually all goods; lengthy schedules to the regulations specified the maximum prices at which many goods could be sold, while the prices of other goods were pegged by reference to the prices prevailing on 15 November 2002 (SIs 302, 314, 314C, 343, 344, 346 and 347 of 2002). The regulations, however, were almost entirely ineffective in stemming runaway inflation, and merely exacerbated widespread shortages.

Customs and Excise Act
Customs duties on a wide range of goods originating in SADC countries were reduced (SI 345/2002).

Exchange Control Act
The maximum amounts that travellers may take out of Zimbabwe was increased to Z$50 000 in local currency and US $1 000 in foreign currency (SI 291A/2002)

Food and Food Standards Act
Regulations fixed the standards of bottled mineral water and drinking water (SI 263/2002). At least one of the requirements of the regulations that water must be sold in colourless bottles is largely ignored by manufacturers. New food-labelling regulations, in addition to requiring food to be accurately labelled, required food that had been irradiated or genetically modified to be identified as such (SI 265/2002). Most food labels now have to specify a `best before' or `use by' date.

Gold Trade Act
The right to purchase gold from small-scale miners and milling plants was restricted to permit-holders, who must sell the gold to the Reserve Bank and record their transactions in registers (SI 328/2002)

Legal Practitioners Act
New conveyancing fees were fixed (SI 277/2002).

Manpower Planning and Development Act
Non-governmental institutions that offer training in designated trades broadly, trades that require apprenticeship must be licensed annually by the Ministry for Higher Education, and comply with prescribed standards (SI 332/2002).

Mines and Minerals Act
Regulations required persons who mill gold-bearing ore for two or more miners to register their milling plants, to submit monthly returns of their output and to allow their mills to be inspected (SI 329/2002).

Parliamentary Salaries, Allowances and Benefits Act
New travelling and subsistence allowances were fixed for all members of parliament (SI 276/2002). It appears that they are to be paid mileage allowances whether or not they are using their vehicles on parliamentary business. Parliamentary salaries were also increased (SI 288/2002)

Precious Stones Trade Act
Regulations attempted, though in a regrettably garbled manner, to provide for the issue of certificates (`Kimberly Process Certificates') authenticating the origin of rough diamonds exported from Zimbabwe (SI 282/2002).

Presidential Salary and Allowances Act
The President's salary was fixed, from 1 July 2002, at Z$1 676 131 a year (SI 287/2002).

Public Health Act
Regulations (SI 264/2002) banned smoking and snuff-taking altogether in public transport and in theatres, cinemas, libraries, churches, halls and educational institutions (schoolchildren who smoke may now be imprisoned for up to six months). In other public places and restaurants small sections may be set aside for smokers, but otherwise smoking and snuff-taking is banned there as well. The sale of tobacco products to minors is prohibited, and packages containing tobacco products must bear warning labels. The regulations establish a committee to advise the responsible minister on measures to protect young people against tobacco and, generally, on measures to control tobacco consumption.

Road Traffic Act
Motorists must draw in to the side of the road and stop their vehicles when they encounter a State motorcade (ie a motorcade escorting the President or a visiting head of State) and must not `make any gesture or statement within the view of hearing of the State motorcade' with the intention of insulting the President or the visiting head of State, according to regulations published in SI 299/2002. The regulations also ban the use of cell-phones by motorists while driving their vehicles.

Urban Councils Act
Regulations fixed new fares for commuter transport services (SI 301/2002). Chipinge was established as a town, its area being excised from the surrounding rural district council (SI's 3102/2002).

Generally, many statutory instruments published during the period under review increased statutorily-imposed rents, fees and charges in order to keep pace with hyper-inflation (which reached over 200 per cent per annum by the end of the period).

BD Crozier