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- Volume 18, Issue 4, 2006
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 18, Issue 4, 2006
Volume 18, Issue 4, 2006
Author Susan ScottSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 329 –344 (2006)More Less
Extracted from text ... 329 (c) 2006. All rights reserved. Cite as: (2006) 18 SA Merc LJ 329-344. Articles An Introduction to the Securitisation of Claims Incorporating a Collective Security Arrangement SUSAN SCOTT* University of South Africa 1 Introduction A collective security arrangement is one in terms of which security is held for the common benefi t of a number of lenders (creditors).1 This security may be in the form of a suretyship, pledge, mortgage or security cession of the assets (property) of the borrower (debtor) or of a third party. In this article I will discuss only a specifi c instance of securitisation ..
Author Marlize ConroySource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 345 –354 (2006)More Less
Extracted from text ... (c) 2006. All rights reserved. Cite as: (2006) 18 SA Merc LJ 345-355. 345 Access to Works Protected by Copyright: Right or Privilege? MARLIZE CONROY* University of South Africa 1 Introduction Copyright law protects the rights of an author of an original work by granting a monopoly to the author.1 This monopoly consists of a bundle of exclusive rights that may be exercised only by the author himself, or by another person acting under his authority.2 These exclusive rights usually include the right to make a reproduction of the work, to distribute the work, and to adapt it. A person ..
Author M.I. Van JaarsveldSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 355 –367 (2006)More Less
Extracted from text ... 355 (c) 2006. All rights reserved. Cite as: (2006) 18 SA Merc LJ 355-367. Contractual Autonomy, Legislative Intervention and Recruitment in Employment: What Remains? MI VAN JAARSVELD* University of South Africa 1 Introduction A few years ago Cameron JA considered the role of contractual freedom in a South African society where all legal principles, including those of the common law of contract, are subject to constitutional control.1 His Lordship observed: '[C]ontractual autonomy is part of freedom. Shorn of its obscene excesses, contractual autonomy informs also the constitutional value of dignity.'2 Cameron JA explained that our courts have for years considered ..
Uncertainty 'sucks' : an analysis of selected panel decisions under the Uniform Dispute Resolution Policy regarding gripe site domain names : analysesAuthor Eddie HurterSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 368 –381 (2006)More Less
Extracted from text ... (c) 2006. All rights reserved. Cite as: (2006) 18 SA Merc LJ 368-381. 368 Uncertainty 'sucks': An Analysis of Selected Panel Decisions under the Uniform Dispute Resolution Policy Regarding Gripe Site Domain Names EDDIE HURTER University of South Africa 1 Introduction The aim of this analysis is to canvass the out-of-court settlement of disputes involving domain names for websites that host criticism (known as 'gripe sites'). These sites incorporate trade marks in the domain name, because a domain name such as 'wellknowncompanysucks.com' is much more visible and more likely to be read or found by search engines. It is like ..
Author Tameshnie DeaneSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 381 –388 (2006)More Less
Extracted from text ... The Regulation of Affirmative Action in the Employment Equity Act 55 of 1998 TAMESHNIE DEANE University of South Africa 1 Overview Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed (see A Thomas A & D Robertshaw Achieving Employment Equity: A Guide to Effective Strategies (1999) in par 1 of the Foreword). Not only compelled to redress inequalities by s 9(5) of the Constitution of the Republic of South Africa, 1996, the South African Government was motivated by the International Labour Organisation ('ILO') Convention No 111 concerning Discrimination in ..
Considering the Legitimacy of Government measures to introduce Black Economic Empowerment Legislation : analysesAuthor J.L. LevinSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 388 –392 (2006)More Less
Extracted from text ... Considering the Legitimacy of Government Measures to Introduce Black Economic Empowerment Legislation JL LEVIN Corporate Finance, Standard Bank 1 Introduction In a survey conducted by the South Africa Foundation in 2004, business's second greatest concern was the potentially negative impact of legislation designed to compel companies to effect racial transformation (see the South Africa Foundation 'Business in Change: Corporate Citizenship in South Africa' (Jun 2004) no 2 Occasional Paper 14). Similarly, a survey undertaken of 23 banks by PricewaterhouseCoopers in 2005, showed that the banks' second greatest concern was the need to achieve black economic empowerment ('BEE') (see B Metcalfe ..
Resolving Transfer-Pricing Disputes : are 'advance pricing agreements' the way forward for South Africa? : analysesAuthor Annet Wanyana OguttuSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 392 –405 (2006)More Less
Extracted from text ... Resolving Transfer-pricing Disputes: Are 'Advance Pricing Agreements' the Way Forward for South Africa? ANNET WANYANA OGUTTU University of South Africa 1 Introduction and Statement of the Problem Adam Smith in his famous work The Wealth of Nations (1776) pointed out that the subjects of every state ought to contribute towards the support of the government in proportion to the revenue which they respectively enjoy under the protection of the state. However, the tax (contribution) which each individual is bound to pay ought to be certain and not arbitrary. The time of payment, the manner of payment and the amount to ..
Broad-Based Black Economic Empowerment : some challenges in measuring ownership of companies : analysesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 405 –417 (2006)More Less
Extracted from text ... Broad-based Black Economic Empowerment: Some Challenges in Measuring Ownership of Companies STEPHANIE LUIZ KATHLEEN VAN DER LINDE University of South Africa 1 Introduction The Broad-Based Black Economic Empowerment Act 53 of 2003 was assented to by the President in January 2004. Although other legislative efforts, such as the Employment Equity Act 55 of 1998, the Preferential Procurement Policy Framework Act 5 of 2000, and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 contributed to redressing the imbalances of the past, they were not directly aimed at broad-based participation in the economy by black people. The ..
Author W.G. SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 418 –429 (2006)More Less
Extracted from text ... The in duplum Rule: A Short List of Some Unresolved Issues WG SCHULZE University of South Africa 1 Introduction Eight years ago the decision in the leading case of Standard Bank of SA v Oneanate Investments (in liquidation) (1998 (1) SA 811 (SCA)) recognised and explained the application and the operation of the in duplum rule. Since then, a number of further decisions dealing with and expounding the application of the rule have been reported (see Bellingham NO v Clive Ferreira & Associates CC 1998 (4) SA 382 (W); F & I Advisors (Edms) Bpk & 'n Ander v Eerste ..
Biodiversity, bioprospecting, and biopiracy : a prior informed consent requirement for patents : analysesAuthor Coenraad VisserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 429 –439 (2006)More Less
Extracted from text ... Biodiversity, Bioprospecting, and Biopiracy: A Prior Informed Consent Requirement for Patents COENRAAD VISSER University of South Africa 1 Introduction: The Problem of Biopiracy In the context of biodiversity and genetic resources, nature smiles on developing countries. It has been estimated that about 90 per cent of the world's genetic resources are situated in developing countries. At the same time, though, more than 90 per cent of the world's research and development activity occurs in the developed countries. So the international picture is one of a gene-rich but technology-poor South and a technology-rich but genedefi cient North. In Utopia, these two ..
Subrogation to an enrichment claim and the subrogating insurer's duties : some general observations on obiter remarks : case commentsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 440 –449 (2006)More Less
Extracted from text ... 440 Subrogation to an Enrichment Claim and the Subrogating Insurer's Duties: Some General Observations on Obiter Remarks JP VAN NIEKERK University of South Africa Despite its common occurrence in practice, many aspects of the law surrounding the doctrine of subrogation remain either undetermined or unsettled. The decision in St Helena Primary School & Another v MEC, Department of Education, Free State Province & Another ( JOL 15846 (O)) raised two further unresolved aspects, namely whether an insurer may be subrogated to an enrichment claim that the insured has against the third party, and whether the insurer may proceed against the ..
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 450 –455 (2006)More Less
Extracted from text ... The Role of the Registrar of Labour Relations in the Registration of Trade Unions ME MANAMELA University of South Africa 1 Introduction A trade union may exist independently of registration in terms of the Labour Relations Act 66 of 1995 ('LRA'). However, its viability and effi cacy will be limited should it not be able to gain registration. If not registered, a trade union will not be able to acquire certain legal and organisational benefi ts, such as organisational rights. Hence, a trade union which is refused registration, may appeal against such decision in terms of s 111 of the ..
Two recent Supreme Court of Appeal decisions on the common-law and contractual consequences of fraudulent insurance claims : case commentsAuthor Wenette JacobsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 456 –464 (2006)More Less
Extracted from text ... Two Recent Supreme Court of Appeal Decisions on the Common-Law and Contractual Consequences of Fraudulent Insurance Claims WENETTE JACOBS University of South Africa 1 Introduction This note concerns the different types of fraudulent insurance claim, namely fabricated claims, exaggerated claims and valid insurance claims enforced by fraudulent means; the divergent approaches by English and Roman-Dutch law; and the continued legal uncertainty in South African law as regards the common-law and contractual consequences of fraudulent insurance claims. This uncertainty culminated in two recent decisions by the Supreme Court Appeal. They provide the necessary framework for further analysis: fi rstly, SA Eagle ..
Author A.H. DekkerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 465 –469 (2006)More Less
Extracted from text ... The Status of Trainees in the Workplace: Dankie and Highveld Steel & Vanadium AH DEKKER University of South Africa 1 Introduction A recurring issue in the present labour dispensation is the diffi culty of drawing the line between an employee and other workers. Employers often prefer to conclude non-employment contracts with workers to avoid liability in terms of labour legislation. These contracts usually constitute independent contractor agreements. In the case to be considered here, a more innovative contract - a sponsorship agreement - was concluded. The effect of this agreement was that Dankie, the applicant, received a sponsorship for training ..
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 470 –471 (2006)More Less
Extracted from text ... 470 South African Ports Law Handbook. Compiled and edited by Rean C Botha. 2005. Juta & Co Ltd, Cape Town. R275, 00 (looseleaf). The title intrigued me. At last, I thought, another specialised work on one of my favourite areas of law: maritime and transport law. The picture of the colourful binder on the promotional leafl et added to my anticipation. So, what did I get? A bulky binder with rather meagre, uninspiring contents. South African Ports Law Handbook contains the following: ? A reproduction of the National Ports Act 12 of 2005 which will, when it comes into force, ..
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 471 –472 (2006)More Less
Extracted from text ... Dismissal, Discrimination & Unfair Labour Practices. By John Grogan. Juta & Co Ltd, Cape Town. 2005. lii & 549 pages. Price R395.00 (soft cover). Dismissal, Discrimination & Unfair Labour Practices, published in 2005, is an update and successor to Le Roux & Van Niekerk's The South African Law of Unfair Dismissal (1994). The author, John Grogan, is a respected writer on labour law with extensive practical experience. Although the chapters in the book on dismissal were again modelled on the predecessor, the author has now included new chapters on unfair discrimination and unfair labour practices. The work depicts pertinent and ..
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 472 –473 (2006)More Less
Extracted from text ... The Bill of Rights Handbook. By Iain Currie & Johan de Waal. 5th edition. 2005, reprinted 2006. Juta & Co Ltd. Cape Town. xxxv & pp 825. R365, 00 (soft cover). There can be few commercial lawyers who have not yet experienced the effect that the Constitution of the Republic of South Africa, 1996, and in particular its Chapter 2: Bill of Rights (ss 7-39), has had on their chosen fi eld of speciality or practice. Labour and employment; insurance and pensions; commercial arbitration and litigation; money-lending and banking; income tax and other forms of levies and duties; intellectual property ..
Author Pierre BrooksSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 18, pp 474 –475 (2006)More Less
Extracted from text ... 474 (2006) 18 SA Merc LJ IN MEMORIAM: PROF ALLEN JAMES CAREY COPELING (13 December 1933 - 21 May 2006) Allen Copeling was one of a group of young, bright and colourful lawyers that were attracted to the University of South Africa in the early 1960s when the late professor Willem Joubert was dean of the law faculty. At the time the university had entered into a period of rapid expansion. On account of the political situation in the country, the academic personnel was presented with a historic opportunity to tutor a number of students who were destined for important ..