South African Mercantile Law Journal最新文献

{"title":"The Role and Nature of the Public Interest in South African Competition Law","authors":"Q. du Plessis","doi":"10.47348/samlj/v32/i2a3","DOIUrl":"https://doi.org/10.47348/samlj/v32/i2a3","url":null,"abstract":"The Competition Act 89 of 1998 requires consideration of the ‘public interest’ when considering mergers. Whereas public interest considerations are generally assumed not to be cognisable in competition terms, in this article I argue the opposite. Specifically, I argue that if the underlying policy goal of the Act is accepted to be economic efficiency as opposed to allocative efficiency, and if ‘public interest’ as it is used in the Act is understood to be concerned mainly with the reduction of inequality, then it follows that the public interest is cognisable in competition terms, since inequality hurts economic efficiency.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123634441","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited","authors":"V. Peach","doi":"10.47348/samlj/v34/i3a6","DOIUrl":"https://doi.org/10.47348/samlj/v34/i3a6","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114220339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Regulation of False Advertising in South Africa: An Analysis of the Consumer Protection Act 68 of 2008 and Self-Regulation","authors":"Y. Mupangavanhu, Dominique Kerchhoff","doi":"10.47348/samlj/v33/i2a5","DOIUrl":"https://doi.org/10.47348/samlj/v33/i2a5","url":null,"abstract":"The Consumer Protection Act 68 of 2008 (CPA) regulates the provision of goods and services, the conclusion of consumer contracts as well as the promotion and marketing of goods and services. It also protects consumers from unscrupulous advertisers who use false and misleading advertisements to induce consumers to enter into contracts which they would otherwise not have concluded. This article seeks to critically analyse the legislative provisions relating to false, misleading, and deceptive advertising, and the seemingly accessible and efficient legal redress mechanism created under the CPA. Self-regulation by bodies such as the Advertising Regulatory Board, which is responsible for the regulation of the advertising industry in South Africa, is also discussed in detail. The article concludes that the co-existence of the CPA and self-regulation is pertinent to ensure that consumers are adequately protected from unscrupulous advertisements. This is because self-regulation provides an additional layer of protection to consumers. It is also argued that the forums created under the CPA should be given powers to declare certain promotional activities and advertisements unfair, unjust or unreasonable.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114142530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"I ‘Notice’ You ‘Noticing’ Me: A Critical Analysis of the Section 129 Notice of the National Credit Act, and Recomendations for the Implementation of a ‘Specialised’ Foreclosure Notice","authors":"Ciresh Singh","doi":"10.47348/samlj/v33/i1a3","DOIUrl":"https://doi.org/10.47348/samlj/v33/i1a3","url":null,"abstract":"Section 129 of the National Credit Act provides that a creditor may not commence any legal proceedings to enforce a credit agreement before first issuing a section 129(1)(a) notice to the debtor. Thus, in a foreclosure context, should a mortgagee wish to enforce a mortgage agreement, he must first comply with section 129(1) and deliver a section 129 notice to the mortgagor. Should this not be done, any ensuing foreclosure proceedings could potentially be excipiable. Accordingly, section 129 has been described as the gateway to litigation and compliance with this section is paramount for debt enforcement. Unfortunately, section 129 has been the subject of much criticism and uncertainty due to its ambiguous wording and the resulting interpretation. Much of the uncertainty relates to the way in which the notice must be delivered and the contents of the notice. With specific regard to foreclosure proceedings, section 129 fails to alert the debtor about his rights and remedies and fails to notify the debtor of the full consequences of foreclosure. Consequently, the section has been amended several times. Unfortunately, the amendments have not resolved all the loopholes in section 129, and some of these amendments have created more uncertainty and ambiguity. Case law has, however, provided some direction as to the interpretation of section 129. Despite the amendments and case law developments, uncertainty still exists, and clarity is urgently required in relation to the interpretation and application of section 129 during foreclosure proceedings. It is accordingly suggested that certainty can only be achieved by implementing a specialised ‘foreclosure notice’.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123932568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Case Notes: Jurisdictional Quandaries Triggered by a New Variant for Dismissal","authors":"T. Maloka","doi":"10.47348/samlj/v34/i1a6","DOIUrl":"https://doi.org/10.47348/samlj/v34/i1a6","url":null,"abstract":"While the imperative tone of the Constitutional Court (CC) in Steenkamp v Edcon Ltd (2016) 37 ILJ 564 (CC) (Steenkamp I) leaves no doubt that the Labour Relations Act 66 of 1995 (LRA) does not contemplate invalid dismissals or an order declaring a dismissal invalid, or of no force or effect, the extent of the Labour Court’s (LC) jurisdiction to grant appropriate relief declaring dismissals unlawful and invalid because they constitute encroachment of the applicants’ fundamental rights is a vexed question. In Steenkamp I it was decided that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA. What this means is that the LC lacks jurisdiction to make any determination of unlawfulness. A multi-layered and complex jurisdictional problem arose in Chubisi v SABC (SOC) Ltd (2021) 42 ILJ 395 (LC) (Chubisi) where the question was whether Ms Chubisi could obtain a declaratory order that the termination of her contract of employment was unconstitutional, unlawful, invalid and of no force and effect. At issue was the termination of employment pursuant to non-recognition of the employee’s contract by the public broadcaster ostensibly to give effect to the Public Protector’s remedial actions. There is no doubt that the remedial actions of the Public Protector have a binding effect, unless, of course, they are reviewed and set aside (EFF v Speaker of the National Assembly 2016 (3) SA 580 (CC); see also Mhango & Dyani-Mhango, ‘The powers of the South African Public Protector: A note on Economic Freedom Fighters v Speaker of the National Assembly’ 2020 African Journal of Legal Studies 1). The court held in Chubisi that the termination of the applicant’s contract of employment by the South African Broadcasting Corporation (SABC) was unlawful, invalid and of no force and effect. The question that arises, therefore, is whether the LC in granting a declaratory order to the effect that the termination of employment was unlawful and invalid misinterpreted and misconstrued the ratio of Steenkamp I. To answer this question, the reasoning of Tlhotlhalemaje J in addressing jurisdictional difficulties requires close scrutiny and analysis. In effect, the resolution of the issues emerging from Chubisi allows for a detailed examination of the import of Steenkamp I. This also provides a platform for examining the fundamental but somewhat tenuous distinction between the jurisdiction and the powers of the LC. In legal parlance, the critical task for the court in any given case is to decide whether the statutory provision on which an applicant relies to found jurisdiction is indeed one that confers jurisdiction. At a more general level, Chubisi implicates corporate governance malaise at the SABC with the unfortunate reality of retrenchments. Therefore, a concise discussion of the corporate governance challenges is merited.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"14 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121009296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"South African Governance Legal Framework for Corporate disclosures and reporting: Part 1 – Voluntary sustainability reporting","authors":"W. Schoeman","doi":"10.47348/samlj/v34/i2a5","DOIUrl":"https://doi.org/10.47348/samlj/v34/i2a5","url":null,"abstract":"The general dissatisfaction of shareholders and other users of financial statements with both voluntary sustainability and mandatory financial disclosure and reporting, prompt an appeal for increased government-commanded reporting requirements. State-based standardsetting and voluntary sustainability reporting within the corporate jurisprudence must therefore evolve, which includes, among others, the variety of legal and regulatory standards, their dynamism, and the manner in which standards can be imposed. Directors and auditors must act ethically to observe their various functions as regulated by the Companies Act 71 of 2008 and the Auditing Profession Act 26 of 2005. National and international companies persistently undermine good governance. Directors’ and auditors’ failure to comply with ethics can certainly not continue with impunity. The global trend in the use of voluntary sustainability reporting highlights the prominence that auditors play in good corporate governance, although compliance with voluntary sustainability reporting does not warrant good corporate governance. Independence of auditors remains contentious in the light of the funding model of the regulator, working of audit committees, the connection between directors and companies, and the corporate governance expectation gap.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124822791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"South Africa’s Exchange Control Regulations and ‘Loop Structures’: The Income Tax Implications of the Removal of the Restrictions with Effect from 1 January 2021","authors":"Annet Oguttu","doi":"10.47348/samlj/v34/i1a4","DOIUrl":"https://doi.org/10.47348/samlj/v34/i1a4","url":null,"abstract":"This article analyses the implications of the income tax provisions introduced to address the potential tax avoidance that could arise from the lifting of the exchange control restrictions on ‘loop structures’ which were effected from 1 January 2021. Most South Africans and foreign investors do not quite understand the operation and implications of exchange controls due to the complexity of these regulations, and the perception that it is difficult to move money in and out of South Africa. Since the removal of exchange control restrictions on loop structures does not apply to existing unauthorised loop structures, this paper also provides a broader understanding of the operation of exchange controls regarding loop structures. The article first explains the administration of exchange controls and how the restrictions of exchange controls on loop structures have been relaxed over the years, and then it explains the 2021 removal of the restriction on loop structures as well as the amendments to the Income Tax Act to curtail tax avoidance risks.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133818532","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008","authors":"E. Olivier","doi":"10.47348/samlj/v34/i3a3","DOIUrl":"https://doi.org/10.47348/samlj/v34/i3a3","url":null,"abstract":"Section 20(9) of the Companies Act 71 of 2008 (the Act) is a statutory version of the common-law remedy of piercing the corporate veil. Unfortunately, the legislature, by leaving undefined the phrases ‘interested person’, ‘unconscionable abuse’ and ‘any further order necessary to give effect to the declaration’ in s 20(9) of the Act, has left room for uncertainty regarding the interpretation of the section. After discussing the purpose of s 20(9) of the Act, the article makes recommendations for how the statutory veil-piercing remedy should be interpreted. The article suggests the inclusion in the Act of an extensive and open-ended definition of ‘unconscionable abuse’ that describes categories of abuse sufficient to justify piercing of the corporate veil. It is argued that the term ‘interested person’ should be read to exclude a company’s controllers acting for their own benefit when the controllers themselves have committed the unconscionable abuse. It is argued further that a court’s power to grant ‘any further order’ in addition to a disregarding of separate legal personality should be limited to orders that are necessary to provide adequate relief for the litigant that invokes s 20(9), namely impositions of rights and liabilities.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132334694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Setting boundaries for image misappropriations through online catfishing","authors":"Lisa Ndyulo, N. Mashinini","doi":"10.47348/samlj/v34/i3a2","DOIUrl":"https://doi.org/10.47348/samlj/v34/i3a2","url":null,"abstract":"Social networking platforms have popularised catfishing, which entails creating and using a fake social media account to exploit other users. Catfishing involves acts of online misappropriation because the traits of a person’s identity, such as a name and photograph, can be used by a catfish to pose as another person to deceive other users. Image rights are frequently affected by such acts of impersonation. This article determines whether mere misappropriation of identity suffices as a cause of action for image rights violations. The South African courts must clarify whether mere misappropriation constitutes a ground for violating identity in catfishing cases. Thus, the courts should recognise mere misappropriation as sufficient to yield a claim when the falsification and commercial exploitation of identity cannot be proven. Such an approach will allow for the speedy resolution of disputes and will also ensure that justice is served before the plaintiff suffers irreparable harm as a result of image misappropriations on social media.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129635884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Re-Acquisition by a Company of Own Issued Shares under Sections 48 and 114(1) of the Companies Act 71 of 2008: A Critical Assessment through Capprec","authors":"S. Bidie","doi":"10.47348/samlj/v34/i1a3","DOIUrl":"https://doi.org/10.47348/samlj/v34/i1a3","url":null,"abstract":"Since the Companies Act 2008 came into being, there has been no clear direction regarding the interpretation to be given to the provisions regulating buy-back transactions. Recently, the provisions finally received some concrete attention in the judgment of Windell J in First National Nominees (Pty) Limited v Capital Appreciation Limited (Capprec). The judgment is important because it has since provided a measure of clarity on the potent interdependence between sections 48 and 114 of the 2008 Act, and how these must be interpreted. What is of interest is how Windell J set out and interpreted the operation and interdependence between section 48(2)(a), section 48(8)(b) and section 114 of the 2008 Act. Overall, the arguments from both parties in Capprec presented Windell J with a solid foundation that enabled the court to proffer a succinct and illuminating direction on the interpretation and operation of the provisions. This article attempts to extricate whether the course Windell J adopted in her judgment is consistent with what the 2008 Act contemplates, and if not, what would have been the appropriate course to take. The article demonstrates that Windell J did not seize the opportunity to thoroughly engage with section 114(1)(e) regulating buy-back schemes of arrangement and to ascertain what a scheme entails. This is despite the fact that in Capprec both parties’ arguments were underpinned by whether or not the proposed arrangement was a scheme. In this regard, Windell J’s approach is disappointing and is criticised because her interpretation means that the provisions of the 2008 Act have still not been clarified, although we have been waiting for 13 years for clarification. This is an unnecessary oversight by the judge.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126419868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}