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- Volume 19, Issue 3, 2007
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 19, Issue 3, 2007
Volume 19, Issue 3, 2007
Author Jonathan CampbellSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 251 –271 (2007)More Less
The National Credit Act 34 of 2005 has introduced a new era of consumer credit regulation and practice, bringing about wholesale changes to the consumer credit industry. It is an extremely complex and lengthy piece of legislation which seeks to include within its ambit, and to regulate in a concise manner, all conceivable sectors of the consumer credit market. An important aspect of the legislation is the placing of limits on the cost of credit, which is a significant new development in the case of the micro-lending industry.
This article will begin with a brief discussion of the micro-lending industry prior to the Act : its growth and size with no interest-rate limits; the impact of excessive interest rates; and possible legal recourse for consumers. The article will then focus squarely on the cost of credit provisions : the legislative framework for the cost of credit; the prescribed limits on the cost of credit; and a thorough analysis of the new cost of credit. The full implications of the maximum prescribed interest rates, initiation fee and service fee will be considered separately. The combined impact of these credit costs will then be demonstrated and comprehensively analysed, and their socio-economic impact reviewed. Finally, suggested amendments to the National Credit Regulations will be proposed in order to address their shortcomings in regard to the cost of credit.
Suggestions for the protection of star athletes and other famous persons against unauthorised celebrity merchandising in South African lawAuthor Andre M. LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 272 –301 (2007)More Less
While the South African public seems to be 'sports-mad' and the FIFA World Cup 2010 continues to dominate headlines and grab popular attention, it may be time to revisit an issue in our law that has largely been neglected thus far. South African law has not had much occasion to grapple with the issue of unauthorized celebrity merchandising, a practice that has increasingly occupied the minds of judges and writers in other jurisdictions in recent years. In fact, the term 'celebrity merchandising' seems not to be recognized under South African law as having any special meaning or validity. I will argue that this is an oversight and a mistake, and that our law needs to come to grips with a commercial reality that will, sooner or later, enter the mainstream of South Africa's burgeoning entertainment and professional sports industries.
Author J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 302 –326 (2007)More Less
Despite their usefulness, generalisations are often misleading and, at times, simply wrong. That applies particularly to legal matters and therefore also to the topic of this analysis, namely life insurance contracts. For regulatory, descriptive and even definitional purposes, generalisations about the nature of life insurance are commonplace. They are especially relied on when it is sought to distinguish life insurance from other forms of (non-life) insurance, a distinction once regarded as so fundamental that the distinguishable term 'assurance' was used for life insurances. (In The National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxes (1959) 102 CLR 29 (HC, Aus) at 43, it was explained, though, that '[i]t is conventional to use "assurance" in connexion with life contracts and "insurance" in connexion with marine, fire and other insurances; and this it has been suggested helps to point [out] some of the essential differences between them. But it is a usage which can become pedantic, and which has had no uniform observance'. This lack of uniformity is apparent in that the terms 'assurance' and 'assured' have also been employed in connection with marine insurance : see, eg, the Marine Insurance Act 1906 (6 Edw VII, c 41) which refers throughout to the 'assured'.)
Author E. JonesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 326 –336 (2007)More Less
The business judgment rule originated in the United States as a common-law rule relating to directors' duty of care and skill. After considerable deliberation, going as far back as 1989, a statutory version of the rule has now been adopted in Australia (as s 180(2) of the Corporations Act 2001; see A Finlay 'CLERP: Non-Executive Directors' Duty of Care, Monitoring and the Business Judgment Rule' (1999) 27 Australian Business LR 98).
In South Africa the King Reports in 1994 and 2002 (published by the Institute of Directors in Southern Africa) recommended that the Standing Advisory Committee on Company Law investigate the necessity for the business judgment rule in South Africa. Now, and contrary to the views of most South African legal authors, a statutory version of the rule has been included in of the Companies Bill of 2007 (as cl 91(2)).
Author Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 337 –345 (2007)More Less
The common-law in duplum rule, as it is generally known in South African law, provides that interest stops running when unpaid interest equals the outstanding capital amount. If the total amount of unpaid interest (both contractual and default interest: our courts apply the limitation to both kinds of interest: see Stroebel v Stroebel 1973 (2) SA 137 (T) and Administrasie van Transvaal v Oosthuizen & 'n Ander 1990 (3) SA 387 (W)) has accrued to an amount equal to the outstanding capital sum, the defaulting debtor (ie, the borrower of the money) must first start making payments on his loan again (and so decrease the interest amount), after which interest may once again accrue to an amount equal to the outstanding capital sum. The rule thus effectively prevents unpaid interest from accruing further once it reaches the unpaid capital sum. Even if interest is capitalised (and interest is therefore charged on interest), the capitalised interest does not lose its character as interest and become part of the capital amount for purposes of applying the in duplum rule (see Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd 1995 (4) SA 510 (C), in particular at 560 and 566-72; confirmed on appeal in Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811 SCA; unless otherwise indicated, all further references to Standard Bank v Oneanate Investments will be to the decision on appeal).
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 346 –363 (2007)More Less
It is usually said that a company is a legal entity separate from its management and shareholders and that the business and affairs of a company must be managed by or under the direction of its board. This implies various duties and responsibilities for directors.
Directors' duties traditionally include onerous fiduciary duties and obligations of care, skill and diligence in terms of the common law, various statutory provisions in the Companies Act 61 of 1973 requiring certain things of directors or preventing them from doing certain things (see, eg, ss 221-227 and 234-246 of the Act), and possible duties imposed by the articles of association or even separate agreements between directors and their companies.
Intellectual Property Rights from Publicly Financed Research : the way to research hell is paved with good intentionsAuthor Coenraad VisserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 363 –371 (2007)More Less
The Intellectual Property Rights from Publicly Financed Research Bill ('the Bill') proposes to define the rights of the 'State in Intellectual Property derived from Publicly Financed Research' (the long title of the Bill). In particular, the Bill proposes (a) to introduce a first ownership rule in respect of Publicly Financed Research; (b) to create a new government bureaucracy headed by the centralized National Intellectual Property Management Office; (c) to impose wide-ranging disclosure obligations on Publicly Financed Institutions; (d) to provide for benefit sharing between inventors and Publicly Financed Institutions; and (e) to create 'walk-in' rights for the State.
Author A.H. DekkerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 372 –378 (2007)More Less
Resignations, dismissals and new appointments are all normal elements of the modern workplace. When an employee leaves a workplace, the vacant position is normally filled. For the employee, on the one hand, a new job is normally a very positive experience. The employer, on the other hand, views a new employee as a stranger who enters the workplace, often only on the basis of a curriculum vitae and a single interview. This case discussion illustrates why the appointment of new employees may become such a terrifying experience for some employers.
Electronic fund transfers and the bank's right to reverse a credit transfer : one small step for banking law, one huge leap for banks : case commentSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 379 –387 (2007)More Less
After cash, the electronic transfer of funds is fast becoming the most popular method of payment.
The proliferation of electronic transfer transactions in South Africa stands in stark contrast with the decline in the use of some of the more conventional methods of payment, such as cheques.
The choice of law rule for goods in transit : Bominflot Ltd v Kien Hung Shipping Co Ltd : case commentAuthor J.M. MendelsohnSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 387 –393 (2007)More Less
The decision of Davis J in Bominflot Ltd v Kien Hung Shipping Co Ltd (Central Leasing Corporation & Another Intervening) (2004 (2) SA 556 (C)) reawakens an old academic debate on the choice of law rule governing the ownership of movables that are in transit. The debate confines itself to the choice of law rule for goods in transit : courts and academics are at one that the rule governing questions of ownership of stationary movables is the law of the site of the movable at the time of the ownership-affecting transaction.
Should a peregrine plaintiff furnish security for costs for the counterclaim of an incola defendant? : case commentAuthor Christian SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 393 –399 (2007)More Less
The position in our law used to be that a foreigner (a peregrinus) who initiates proceedings in our courts must, as a general rule, provide security to the defendant for his costs, unless he has within the area of jurisdiction of the court immovable property with a sufficient margin unburdened to satisfy any costs that may arise (see Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa (now the High Courts and the Supreme Court of Appeal) 4 ed (1997) by Louis de Villiers van Winsen, Andries Charl Cilliers & Cheryl Loots (edited by Mervyn Dendy) at 328).
Author Tshepo DookaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 400 –401 (2007)More Less
Author M.E. ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 401 –402 (2007)More Less
John Grogan is a well-known and respected author on labour law and has extensive practical experience. His latest work, Collective Labour Law, first appeared in 1993 as a companion to Riekert's Basic Employment Law. In 1996, both were merged into Workplace Law. The author has once more decided to separate the two labour-law components (individual and collective labour law) in order to produce a comprehensive work on each of them. Collective Labour Law, which is in its first edition, therefore serves as a second volume to Dismissal, Discrimination and Unfair Labour Practices, published in 2005.
Author Moseki MalekaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 402 –403 (2007)More Less
It has been six years now since the Legislature introduced capital gains tax in South Africa. The main reason was to bring South Africa's tax system into line with the international standards similar to those found in the United States of America, the United Kingdom, Canada and Australia. The other reason was to regulate taxpayers, both corporate and personal, who convert income that would ordinarily be taxable into tax-free capital gains. The author, RC Williams, a well respected academic and a tax practitioner, has produced a manual that will serve as an important guide to this involved area of the law.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 403 –405 (2007)More Less
Seldom before have so many waited for so long for such a far-reaching piece of legislation as was the case with the National Credit Act 34 of 2005 ('the Act'). And low and behold, seldom before have those who have waited so patiently, been so bewildered if not by the excesses of the Legislature, then by the sheer volume of the Act and the Regulations promulgated in terms of it. Given the severe bout of outdated legislative constipation that the South African credit industry has suffered from (the two Acts which previously dominated the statutory aspects of the South African law of credit - the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980 - were both in active service longer than most credit lawyers could care to remember for), one should probably excuse the extent of the Legislature's outpourings in this regard. The Act alone consists of 173 sections and three Schedules. In addition, a voluminous set of Regulations were promulgated in terms of the Act.
Author Marlize Van JaarsveldSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 405 –406 (2007)More Less
Labour law is arguably at present one of the most dynamic fields of law, and various publications, purposely aiming to enlighten the less knowledgeable about its numerous intricacies, see the light on a regular basis. But it is often those well-known publications, trusted by many and used repeatedly, that never seem to disappoint when a new edition is introduced. A publication in point is the latest edition of Workplace Law by the prolific academic and versatile practitioner John Grogan. This ninth edition is, as its predecessors, aimed at a wide audience and students and practitioners alike should benefit from its more practical approach to contemporary issues of labour law.