South African Mercantile Law Journal最新文献_第2页

Case Notes: An Exploratory Analysis of Central Bank Digital Currencies — Some Considerations 案例说明:中央银行数字货币的探索性分析——一些考虑

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v34/i1a5

Vivienne Lawack

{"title":"Case Notes: An Exploratory Analysis of Central Bank Digital Currencies — Some Considerations","authors":"Vivienne Lawack","doi":"10.47348/samlj/v34/i1a5","DOIUrl":"https://doi.org/10.47348/samlj/v34/i1a5","url":null,"abstract":"The history of central banking began with payment services. Ever since then, payment-related innovation has always been an integral part of central banking (BIS Committee on Payments and Market Infrastructures and Markets Committee Report, ‘Central Bank Digital Currencies’ (2018) iii). Payments have evolved extensively over the years with the emergence of various technologies, from the development of real-time gross settlement (‘RTGS’) systems, to electronic money and mobile money, to name a few. The arrival of financial technologies or ‘fintech’ has led to cryptocurrencies and now central bank digital currency (‘CBDC’) (on cryptocurrencies, see Reddy & Lawack, ‘An overview of the regulatory developments in South Africa regarding the use of cryptocurrencies’ (2019) 31 SA Merc LJ 1–28; see also Deloitte, ‘Are Central Bank Digital Currencies (CBDCs) the money of tomorrow?’, available at https://www2.deloitte.com/ie/en/pages/financial-services/ articles/central-bank-digital-currencies-money-tomorrow.html, accessed on 3 May 2021). A CBDC represents another potential innovation in the area of an evolving branch of the law called ‘fintech law’. This exploratory analysis provides an overview of the meaning of CBDC and the legal nature of money and CBDC. In addition, it provides a broad overview of some legal implications, policy considerations and regulatory issues. Challenges and risks are also highlighted.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"9 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":"134422838","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}

引用次数: 0

Accountability in the twin peaks model of financial regulation in South Africa 南非金融监管双峰模式中的问责制

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v34/i3a4

Gerda van Niekerk, H. Nyane

{"title":"Accountability in the twin peaks model of financial regulation in South Africa","authors":"Gerda van Niekerk, H. Nyane","doi":"10.47348/samlj/v34/i3a4","DOIUrl":"https://doi.org/10.47348/samlj/v34/i3a4","url":null,"abstract":"The Financial Sector Regulation (FSR) Act 9 of 2017 implemented the first stage of the Twin Peaks model of financial regulation in South Africa. The Act established the Prudential Authority and the Financial Sector Conduct Authority to make the financial sector safer by using a more robust prudential and market conduct framework. The South African Reserve Bank received an enhanced mandate to promote and maintain financial stability. Since accountability is a core goal in financial regulation, this paper analyses the notion of accountability and specifically the accountability of the regulators in a Twin Peaks model of financial regulation. The legislative framework put in place by the FSR Act goes a long way in adhering to principles of accountability. The financial sector regulators are obliged to consult with various stakeholders such as the Minister of Finance and financial institutions. The regulators are subject to control measures, and Parliament holds them accountable. Nevertheless, the authors suggest that one more step is necessary. There should be more debate and engagement by the regulators with the general public to increase public knowledge of financial sector regulation in South Africa.","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":"115864328","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}

引用次数: 0

The Impact of Cryptocurrencies on the General Powers and Duties of South African Insolvency Practitioners 加密货币对南非破产从业人员一般权力和职责的影响

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v33/i2a6

Sidasha Singh, J. Calitz

引用次数: 0

Regulating against False Corporate Accounting: Does the Companies Act 71 of 2008 Have Sufficient Teeth? 监管虚假公司会计:2008年第71号公司法有足够的效力吗?

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v33/i1a1

E. Olivier

{"title":"Regulating against False Corporate Accounting: Does the Companies Act 71 of 2008 Have Sufficient Teeth?","authors":"E. Olivier","doi":"10.47348/samlj/v33/i1a1","DOIUrl":"https://doi.org/10.47348/samlj/v33/i1a1","url":null,"abstract":"This article questions whether the enforcement mechanisms in the Companies Act 71 of 2008 (the Act) are adequate deterrents to financial reporting misconduct and whether they provide suitable sanctions to punish wrongdoers. The South African regulatory approach to company directors and financial reporting compliance places great emphasis on stakeholder protection and board accountability. By criminalising the publication of false financial statements, providing civil remedies to prejudiced stakeholders and robust protection for whistleblowers, empowering regulatory agencies to investigate allegations of accounting fraud and penalise transgressors, and by creating a broad net of liability for corporate decision-makers who allow or cause the publication of false financial reporting, the Act takes a firm stance that accounting fraud must be discouraged. The Act’s enforcement mechanisms in respect of financial reporting are commendable, but detection and enforcement will likely remain challenging unless a concerted effort is made to educate the public about financial reporting misconduct and its dangers, sufficient funding is provided to the regulatory agencies, consistent use is made of the available criminal, civil, and administrative remedies, and Parliament reconsiders the appropriateness of the maximum penalties for accounting fraud.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"91 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":"121957854","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}

引用次数: 0

An analysis of the causes of violence during strike action in South Africa: A psychological perspective 从心理学角度分析南非罢工中暴力的原因

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v34/i3a5

C. J. T. Mbiada

引用次数: 0

Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG 在假冒索赔中颜色耗尽:柯尼跨国品牌有限公司诉拜尔斯道夫股份有限公司

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v34/i3a1

Nomthandazo Mahlangu

引用次数: 0

Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases 当代南非不公平解雇法中的不相容作为解雇的理由——以泽达汽车租赁等近期案件为例

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v33/i2a4

C. Okpaluba, T. Maloka

{"title":"Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases","authors":"C. Okpaluba, T. Maloka","doi":"10.47348/samlj/v33/i2a4","DOIUrl":"https://doi.org/10.47348/samlj/v33/i2a4","url":null,"abstract":"Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case law abound to bear witness to this assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC, Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd v Padayachee [2018] ZALCJHB 307 and Watson v South African Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility was approached respectively, from the prism of operational requirements; incapacity and misconduct; coupled with some recent cases discussed herein, clearly indicate that incompatibility has not only covered the field, it has also acquired a pride of place in contemporary South African law of unfair dismissal. Given these circumstances, the authors recommend the insertion into s 188(1)(a)(i) by way of an amendment such that the subsection will include a fair reason ‘related to the employee’s conduct, incapacity or ‘‘incompatibility’’ ’. This will definitely clear any lingering doubts surrounding the role of incompatibility and empower the arbitrator and the Labour Court to adjudicate with a level of clarity in the law of unfair dismissal.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"83 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":"128169117","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}

引用次数: 0

Retirement Funds Rivalry, Voluntary Withdrawal of Membership, and Transfer of Assets During the Period of Employment 退休基金竞争、自愿退出会员及在受雇期间转移资产

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/SAMLJ/V32/I2A2

Clement Marumoagae

{"title":"Retirement Funds Rivalry, Voluntary Withdrawal of Membership, and Transfer of Assets During the Period of Employment","authors":"Clement Marumoagae","doi":"10.47348/SAMLJ/V32/I2A2","DOIUrl":"https://doi.org/10.47348/SAMLJ/V32/I2A2","url":null,"abstract":"In Municipal Employees Pension Fund v Natal Joint Municipal Pension Fund (Superannuation) & others [2016] 4 All SA 761 (SCA) para 2, Theron JA described the competition for members by different retirement funds associated with the same employer as a ‘turf war’. The Office of the Pension Funds Adjudicator and the South African courts are continually required to adjudicate disputes that arise when retirement funds wrestle each other for members. This article shows that the Pension Funds Act 24 of 1956 does not provide the necessary legal framework that can assist courts to resolve these disputes, which usually turn on the interpretation of individual retirement funds’ rules that are often ambiguous. Further, there is no legislative provision that adequately deals with the circumstances where actively employed members voluntarily initiate a process that will lead to their fund credits being transferred to rival retirement funds. It argues that there is a need for legislative clarity on how voluntary transfer of fund credits impact on the membership of retirement funds, particularly given the fact that, strictly speaking, members cannot be transferred from one fund to the next, whereas their fund credits can, in terms of section 14 of the PFA. Since members cannot be transferred, this article evaluates whether it is sound in law for actively employed employees to remain members of one fund but contribute to a rival fund.","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":"128696038","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}

引用次数: 0

Investigating the Need to Introduce Compulsory Interest Arbitration as a Method to Prevent Lengthy Strikes in South Africa 探讨南非引入强制性利益仲裁以防止长时间罢工的必要性

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v33/i2a2

M. Tenza

{"title":"Investigating the Need to Introduce Compulsory Interest Arbitration as a Method to Prevent Lengthy Strikes in South Africa","authors":"M. Tenza","doi":"10.47348/samlj/v33/i2a2","DOIUrl":"https://doi.org/10.47348/samlj/v33/i2a2","url":null,"abstract":"The issue of lengthy strikes in South Africa has been a cause for concern since it destabilises the economy and can result in a loss of employment if it is not managed properly. A strike that takes too long to be resolved causes anger towards strikers, so creating a fertile environment for the eruption of violence between striking and non-striking workers. Damage to property and harm to civilians has been reported where striking workers have become violent during a strike. It appears that the existing remedies fail to curb long strikes and resultant violence, as unions and members continue with their action despite the granting of an order of interdict to stop the conduct. To solve the problem of long and consequently violent strikes, the article advocates the introduction of a compulsory interest arbitration in the labour relations law of South Africa. A compulsory interest arbitration will force the parties into arbitration once it is established that the strike has continued for an unreasonably long period without a solution. The use of compulsory interest arbitration will not be unique to South Africa, as other countries such as Canada and Australia use it in their labour relations systems – which helps them deal with long and possibly harmful or violent strikes. The article argues that lessons can be learned from these countries on how South Africa can deal with its own protracted strikes. The article further proposes that the LRA be amended to include a provision that will enable the Minister to intervene where the parties fail to reach agreement on disputed issues, and where it is in the public interest to do so. Introducing a compulsory interest arbitration in the labour relations system could limit the right to strike. However, the article argues that such a limitation may be justified in terms of s 36 of the Constitution.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"251 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":"128707653","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}

引用次数: 0

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229(30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ) 案件说明:不安的头戴皇冠:Moyo诉Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229(2019年7月30日)及Old Mutual Limited诉Moyo (2020) 41 ILJ 1985 (GJ)

South African Mercantile Law Journal Pub Date : 1900-01-01 DOI: 10.47348/samlj/v33/i1a6

Marius van Staden, K. E. Van der Linde

引用次数: 0