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volume 38(3) november 2005

Current legal developments

Botswana

Legislation
Principal legislation

Cattle Export and Slaughter Levy Act 10 of 2005
The Act reenacts, with amendments, the Cattle Export Tax Act 1983 to make provision for the imposition of a levy on cattle exported from Botswana, and on cattle slaughtered at the Botswana Meat Commission abattoir, municipal abattoirs, private abattoirs and butcheries and matters incidental thereto. A levy is imposed on every head of cattle exported from the country or slaughtered in the designated abattoirs. The rate of the levy is to be determined by the relevant sector Minister. A fine of P300 per head of cattle is imposed for exporting or attempting to export cattle without first paying the designated levy. Alternatively, a term of two months imprisonment may be imposed, or both the fine and imprisonment.

Stock, Bonds and Treasury Bills Act 13 of 2005
This Act reenacts with amendments, the provisions of the Stock, Bonds and Treasury Bills Act 1976.

Constitution (Amendment) (Consequential Provisions) Act 14 2005
This Act provides for sundry amendments to certain Acts as a consequence of the Amendment of the Constitution by the Constitution (Amendment) Act 9 of 2005. For example, the Electoral Act has been amended by substituting for the words `Attorney General' wherever they appear the words `Director of Public Prosecutions'.

Public Service (Amendment) Act 15 of 2005
The Act amends the principal Act by substituting a new section 2 (definition section) for the existing section. The new section defines a `Permanent Secretary' to include the holder of the public office of that designation responsible, subject to the direction and control of the minister, for the supervision of a ministry and holders of the following public offices, inter alia, Secretary to the Cabinet, Administrative secretary in the Office of the President, Attorney General and the Auditor General.

Precious and Semi Precious Stones (Protection) (Amendment) Act 16 of 2005
The Act amends the principal Act by, for example, substituting a new subsection (1) (a) to section 6 to provide that except as is otherwise provided by the Act, no person shall buy, deal in or receive by way of barter, pledge or otherwise, either as principal or agent, any rough or uncut precious stones, unless the person has been duly authorised in terms of the Act to deal in rough or uncut precious stones as a buyer or seller; or sell, pledge or barter or otherwise deal in any article purporting it to be a precious stone.

Judicial decisions
Constitutional law

Kenneth Good v The Attorney General Civ app 28 of 2005 27 July 2005 (unreported)
The appellant, an Australian citizen and a professor of political studies at the University of Botswana, had been declared an undesirable inhabitant of or visitor to Botswana by the President under section 7(f) of the Immigration Act 1966. The said section provides:

`Subject to this Act, the following persons shall be prohibited immigrants and their entry into or presence within Botswana is unlawful - any person who, in consequence of information received from any source deemed by the President to be reliable, is declared by the President to be an undesirable inhabitant of or visitor to Botswana.'

He was given three days to leave the country. His application to have the decision of the President set aside by the High Court was dismissed. (See misc 90 of 2005, 31 May 2005 unreported). He appealed to the Court of Appeal (coram: Tebbutt, JP, Korsah, JA, Akiwumi, JA, Grosskopf, JA and Lord Coulsfield, JA) on the grounds that (1) the President's declaration was a nullity because the President had acted unlawfully and irrationally; and (2) that sections 11(6) and 36 of the Immigration Act were unconstitutional. Sections 11(6) and 36 of the said Act provide respectively as follows:

No appeal shall lie under subsection (2) against any notice that a person is a prohibited immigrant by reason of any declaration by the President under section 7(f) and no court shall question the adequacy of the grounds for any such declaration.

(1) No person shall have the right to be heard before or after a decision is made by the President in relation to that person under this Act.

(2) No person affected by any such decision shall have the right to demand any information as to the grounds of such decision nor shall any such information be disclosed in any court.

The appellant contended that these sections violated his right to equal protection of the law in terms of section 3 of the Constitution. In relation to the first ground of appeal, the appellant contended that the fact that the President had referred to him as both a temporary inhabitant of or visitor to Botswana in his declaration meant that the President did not apply his mind to the matter. The court held that although the applicant may not have fallen within the definition of a `visitor' in terms of the Immigration Act, he was a foreign visitor to Botswana within the ordinary meaning of that term. In any event, even if the President erred in referring to the appellant as both a temporary inhabitant and a foreign visitor, it could not draw an inference from that fact that the President did not apply his mind properly to the matter. This was because the President had stated on oath that he carefully considered the matter and made his decision in the exercise of his own `deliberate judgment after taking advice and after the most careful consideration of the information provided to me.' The court, per Tebbutt, JP, held that it was satisfied that the President had applied his mind to the matter and accordingly, the first ground of appeal failed.

On the second ground of appeal, the appellant argued that the exclusion of the right to appeal and the right to a fair hearing violated his right to the protection of the law. He further argued that the protection of the law does not merely mean the domestic law of Botswana but encompasses the wider concept of the rule of law as embodied in international treaties and covenants to which Botswana was a signatory or a party. This right, in the submission of the appellant, meant that he could not be expelled from the country without being allowed to exercise the right to be heard. The court held, per Tebbutt JP, that international treaties to which Botswana is a party do not confer enforceable rights on persons until they have been incorporated into the domestic law by an Act of Parliament.( See Attorney General v Unity Dow [1992] BLR 119 at 170.) It further held that the `protection of the law' in section 3 of the Constitution is subject to such limitations as are contained in domestic laws of Botswana. These are limitations that are necessary in the public interest and the limitations contained in sections 11(6) and 36 of the Immigration Act can be counted among such public interests. Furthermore, the right to a fair hearing, whilst forming the bedrock of any civilised legal system, can be curtailed by express legislative enactment or implied therefrom. (See Arbi v Commissioner of Prisons [1992] BLR 246 (CA) at 251 and R v Brixton Prison: ex parte Soblem [1962] 3 All ER 641 at 658.)

Public interest include the peace and stability of the country, the well-being of its citizens and the national interest. The court concluded that it would not be in the public interest to disclose publicly the information and grounds relating to the desirability of a person remaining in Botswana. The failure of the President's declaration to disclose the reasons for the appellant being declared a prohibited inhabitant was not a violation of his right to equal protection of the law. Public interest dictated that such reasons should not be made public. Accordingly, sections 11(6) and 36 of the Immigration Act were held not to infringe the Constitution.

Company law

Muller Mmoloki David Keganne v The Law Society of Botswana, The Secretary of the Law Society of Botswana and The Secretary of the Board of Trustees of the Fidelity Guarantee Fund Misc 439 of 2004 15 March 2005 (unreported).
The applicant, an attorney and conveyancer, had brought review proceedings against the respondents' decision to refuse to issue him with a fidelity fund certificate entitling him to practise as an attorney. The respondents opposed the application and filed a counter application which sought, inter alia, to direct the applicant to state the nature of a transactions that had been performed with respect to a certain piece of land. The title deed to this piece of land was held by a company, in which the applicant and his wife had shares. The applicant contended that the order sought by the respondents was incompetent because the company was a separate and independent legal entity from the applicant. He further argued that the order could not be granted against the company when the company was itself not a party to the proceedings. The court held that the order was sought against the applicant and not the company. As a family company, the applicant and his wife could hold a meeting and decide to comply with the order. The court further held that given the applicant's intimate involvement in the affairs of the company, he could be regarded as its alter ego and consequently, the company's corporate personality was not totally inviolable. There are cognisable legislative and judicial inroads into the fiction of corporate personality and the court concluded that this was a circumstance in which it was entitled to pierce the corporate veil regard being had to the applicant's role in the transactions in question, and the fact that he attempted to escape his liability as a lawyer by hiding behind the corporate veil. Accordingly, the court granted the order sought by the respondents in their cross-application.

EK Quansah
University of Botswana

Lesotho

Legislation
Principal legislation

There was very little legislative activity for the four months ending July 2004. Only one piece of principal legislation was enacted during this period.

National Identity Cards Act 3 of 2004 provides that both citizens and non-citizens shall hold identity cards having the prescribed information. Non-production of the identity card within 48 hours' demand, amounts to an offence and is punishable, on conviction, with a fine of not less than R10 000 or to imprisonment for not less than five years or both. Furnishing false information on applying for an identity card is punishable, on conviction, with a fine of not less than R25 000 or imprisonment of not less than fifteen years or both. Mutilating an identity card or acquiring an identity card dishonestly may lead to similar consequences. The Act shall enter into force on a date to be fixed by the Minister by notice in the Gazette.

Subsidiary legislation

The following deserve mention:
Precious Stones (Prescription of Forms and License Fees) Regulations Legal Notice 64 of 2004 raise the diamond dealers licence fees for Basotho dealers to R25 000 and R50 000 for non-Basotho dealers. They prescribe a new form for applying for rough or uncut diamonds/export permit and repeals the Precious Stones (Prescription of Forms and License Fees) Regulations 206 of 2002.

Financial (Amendment) Regulations 65 of 2004 made under the Finance Order 6 of 1988 amend the Financial Regulations 1973 by repealing and replacing regulation 2101(1)(i) to (iii) to provide that contracts for stores, works and services not exceeding R10 000 in value could be procured by local purchase order; those exceeding R10 000 but not exceeding R30 000 only after obtaining quotations from at least three firms; and those exceeding R30 000 only after a public tender. It is further provided that the Central Tender Board shall meet every Tuesday morning and afternoon unless the volume of business to be dealt with is insufficient.

Financial (Amendment) Regulations Legal Notice 147 of 2003 have been repealed.

Aliens Control (Amendment of Schedule) Regulations Legal Notice 104 of 2004 increase the single entry visa fee to R500 and the multiple entry to R700.

Air Navigation Fees (Amendment) Regulations Legal Notice 86 of 2004 repeal and replace the Schedules to Legal Notice 148 of 1993 and provide for a new schedule of fees in respect of obtaining a certificate of registration and duplicates, air operatorís certificate and exemptions, certificate of airworthiness, fight crew licences, technical examinations, traffic controller and aerodrome flight information services licences, air transport licences and permits and landing and other aerodrome charges.

Lesotho Telecommunications Authority (Broadcasting) Rules Legal Notice 71 of 2004 repeal and replace Lesotho Telecommunications Authority (Broadcasting) Rules Legal Notice 194 of 2002. Briefly the rules provide for the kind of records that a holder of a sound or TV broadcasting licence must retain for the duration of the licence period; the code of practice it must observe; ensure that the broadcast of advertisements conform to the principles of fair competition in business; that such advertisements are not misleading about the product advertised or its suitability for the particular purpose recommended; and that descriptions and claims made by the advertiser have been adequately substantiated. The licencee may accept sponsorship for news bulletins, weather, financial, traffic reports or any other programme provided it retains ultimate editorial control. Lastly, the regulations lay down how complaints should be handled.

Lesotho Mounted Police Service (Administration) (Amendment) Regulations Legal Notice 95 of 2004 have been made under the Police Service Act 5 of 1998 and amend the principal regulations (Lesotho Mounted Police Service (Administration) (Amendment) Regulations, Legal Notice 202 of 2003). They increase the age of retirement by ten years for senior officers to fifty-five and for subordinate officers to fifty years. They also enable a police officer to retire from service after giving a notice of prescribed length under certain circumstances. Regulation 23A has been added which provides for disciplinary offences, such offences being listed in the Schedule to the regulations.

Stock Theft (Livestock Registration and Markings) Regulations Legal Notice 96 of 2004 have been made under the Stock Theft Act 4 of 2000. The regulations establish the office of the Registrar of Livestock, whose duties, inter alia, include keeping a register of livestock, marks, stock numbers and groups, their identification, their location and movements, grazing areas, as well as, particulars of livestock owners and herdsmen and any other relevant matter pertaining to livestock. The minister shall prescribe marks in each group of livestock and the parts of the body on which marks have to be made or placed. Regulations prescribe the number of characters, their size, height, location and spacing in the case of large stock. Only tattoo marks can be put on small stock in their ears. Extensive powers of search have been conferred on the Registrar and members of the Lesotho Mounted Police to enforce the provisions of the regulations. The livestock owners have to notify the Registrar whenever they acquire or get possession of any additional stock or dispose of any stock or any stock that is missing, as well as, full particulars of herdsmen or herdboys, the specific area(s) in which they expect to herd, type, identification and number of livestock they expect to herd and their remuneration, among others. The burden of proof is reversed in regulation 18 wherein it is provided that if it is proved in any legal proceedings that any livestock bearing a tampered, altered, mutilated or cancelled mark was disposed of or offered for disposal, then unless contrary is proved it shall be presumed that such tampering, alteration, mutilation or cancellation was done by the person in whose possession the livestock is found. Again the onus of proving that the livestock, its produce or carcass, skin, hide, wool, mohair or a branding instrument or a certificate or document pertaining to livestock is on the person found with any of these that he had lawful reason for such possession. The regulations provide a wide range of offence for contravening the provisions of the regulations.

Umesh Kumar
National University of Lesotho

South Africa

Legislation
Principal legislation

Acts

Twelve Acts were passed during the period from June to November 2005. These Acts include the Sectional Titles Amendment Act 7 of 2005; South African Sports Commission Act Repeal Act 8 of 2005; Taxation Laws Amendment Act 9 of 2005; Taxation Laws Second Amendment Act 10 of 2005; Minerals and Energy Laws Amendment Act 11 of 2005; National Ports Act 12 of 2005; Intergovernmental Regulations Framework Act 13 of 2005; Cooperatives Act 14 of 2005; Constitutional Matters Amendment Act 15 of 2005; South African Abattoir Corporation Repeal Act 17 of 2005; and the Defence Special Account Amendment Act 18 of 2005.

South African Sports Commission Act Repeal Act 8 of 2005
This Act provides for the disestablishment of the South African Sports Commission established by section 3 of the South African Sports Commission Act 1998. The Act provides that when the Act takes effect, all assets, rights, liabilities and obligations of the Commission will without formal transfer be vested in the department responsible for sport and recreation at national level. The Act also repeals the South African Sports Commission Act 1998.

Minerals and Energy Laws Amendment Act 11 of 2005
This Act corrects amendments made to the Deeds Registries Act 1937, by the Mining Titles Registration Amendment Act 2003, and the Mineral and Petroleum Resources Development Act 2002, by substituting the Schedule to the Mining Titles Registration Amendment Act 2003, and by repealing certain expressions in Schedule I to the Mineral and Petroleum Resources Development Act 2002; and to provide for matters connected therewith.

Bills

Twenty bills were tabled during the period of June to November 2005. These bills include the Constitutional Matters Amendment Bill 22 of 2005; Education Laws Amendment Bill 23 of 2005; Forestry Laws Amendment Bill 24 of 2005; Repeal of Black Administration Act and Amendment of Certain Laws Bill 25 of 2005; Nursing Bill 26 of 2005; Diamonds Amendment Bill 27 of 2005; Special Pensions Amendment Bill 28 of 2005; Electricity Regulation Bill 29 of 2005; Precious Metals Bill 30 of 2005; Auditing Profession Bill 31 of 2005; Independent Communications Authority of South Africa Amendment Bill 32 of 2005; Genetically Modified Organisms Amendment Bill 34 of 2005; Foodstuffs, Cosmetics and Disinfectants Amendment Bill 35 of 2005; Cross-Boundary Municipalities Laws Repeal Bill 36 of 2005; Adjustments Appropriation Bill 37 of 2005; Diamonds Second Amendment Bill 39 of 2005; Revenue Laws Amendment Bill 40 of 2005; and the Revenue Laws Second Amendment Bill 41 of 2005.

Repeal of Black Administration Act and Amendment of Certain Laws Bill 25 of 2005
This Bill, which emanates from an investigation and report of the South African Law Reform Commission, seeks to repeal the Black Administration Act 1927 on an incremental basis. Although not all the provisions of the Act can be repealed immediately, the Bill envisages the immediate repeal of some of the provisions of the Act. These would include the provisions that could be repealed immediately without any implications. The Bill envisages the repeal of the other provisions which cannot be repealed immediately, on a particular date in the near future or on the date of implementation of substitute statutory provisions by different role players in the national and provincial spheres of government, whichever occurs earlier.

The Bill also seeks to amend the Administration of Estates Act 1965, so as to give the Masters of High Courts jurisdiction over the property of all orphans and minors, including those who are governed by the principles of customary law.

The Bill further seeks to amend the Traditional Leadership and Governance Framework Act 2003, so as to regulate the liability of a traditional community in respect of the obligations of, or those incurred by, its traditional leadership.

Nursing Bill 26 of 2005
The main aim of this Bill is to regulate the nursing profession. The Nursing Council is one of the statutory councils falling under the Department of Health and is currently regulated by the Nursing Act 1978. The Act currently regulates the practice of nursing and the education and training of nurses. The current law is premised largely on the principle that councils are there to protect the interests of the profession rather than those of the general public. The Minister of Health established a task team to, among other things, consider the transformation of the statutory councils falling under her jurisdiction in order to provide for the adequate protection of the interests of the public.

The Nursing Bill seeks to serve and protect the public in matters involving health services provided by the nursing profession; to ensure that the Nursing Council exercises its powers and discharges its responsibilities in the best interest of the public and according our national health policy; to promote the provision of acceptable nursing care to the population; to regulate the nursing profession and how nurses must conduct themselves in the profession; to promote the operations and functions of the Council and the Registrar; to promote liaison regarding health standards and standards of nursing education and training; to ensure that the Nursing Council advises the minister on matters affecting the profession; and to provide for the registration of nurses and keeping of registers.

The Bill also seeks to promote the constitutional requirement of access to health care services and the right to basic health care services. The Bill further seeks to make consequential amendments to other legislation in order to update outdated references.

Auditing Profession Bill 31 of 2005
The failures of many companies, both internationally and in South Africa, have raised concerns regarding the independence and conduct of auditors. In the light of these failures, countries around the world have taken legislative action to introduce stringent requirements for the conduct and discipline of auditors.

In South Africa the auditing profession is currently regulated under the Public Accountants' and Auditors' Act 1991. The need has arisen to replace this Act and improve the integrity of South Africa's financial sector and financial reporting by introducing a more comprehensive and modern legislative framework for overseeing and regulating the auditing profession.

The Auditing Profession Bill consists of seven chapters and a schedule which seeks to repeal the current Public Accountants' and Auditors' Act 1991. The Audit Profession Bill, 2005 must be read together with he Companies Amendment Bill, 2005 which is still to be introduced. The latter Bill entrenches and safeguards the independence of auditors within the corporate environment.

The Auditing Profession Bill seeks to contribute towards the protection of the public interest in the Republic of South Africa in respect of auditing services rendered by registered auditors; to establish a juristic person known as the Independent Regulatory Board for Auditors that will be responsible for overseeing and regulating the auditing profession; to provide for the education, training and professional development of registered auditors; to provide for the accreditation of professional bodies; to provide for the registration of auditors; to regulate the conduct of registered auditors; and to provide for matters connected therewith.

Annalize Jacobs
University of South Africa