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- Volume 19, Issue 4, 2007
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 19, Issue 4, 2007
Volume 19, Issue 4, 2007
Atrader's primary business activities and incidental activities under Sections 2 and 34(1) of the Insolvency Act 24 of 1936Author Alastair SmithSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 407 –426 (2007)More Less
Section 34 of the Insolvency Act 24 of 1936 continues to generate litigation. In McCarthy Ltd v Gore NO, the dispute centred on whether the company in question was a 'trader' within the definition in s 2 of the Insolvency Act, and thus had to publish the required notices under s 34(1).
Author W.G. SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 427 –443 (2007)More Less
The notion of bank default charges is clouded in controversy. It is one of a number of aspects of the bank-client relationship currently being reviewed by the South African Competition Commissioner. Before I explain the legal nature of bank default charges under South African law, I will first consider two foreign jurisdictions in which a similar investigation was undertaken in the recent past.
Defining the unincorporated business in financial distress : should it be treated as a business or as a consumer? : analysesAuthor Anneli LoubserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 444 –461 (2007)More Less
This analysis will briefly explain some of the reasons for and implications of the classification of debtors in insolvency law, and the difficulties in finding the appropriate classification system for small unincorporated businesses, particularly sole proprietorships. I will then consider the classification system in South African insolvency law, and compare it to those in a number of other jurisdictions. In conclusion, I will deal with the current developments in South African corporate and insolvency law and the extent to which these developments may improve the situation of small unincorporated businesses experiencing financial difficulties.
The application of the promotion of access to Information Act 2 of 2000 in consumer protection : analysesAuthor Natania LockeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 461 –472 (2007)More Less
Author Kathleen Van der LindeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 473 –486 (2007)More Less
In this analysis it will be argued that although certain consequences are perhaps more commonly associated with either par-value or no-par-value shares, the regulation of each of these types of share can differ substantially between jurisdictions. The ultimate choice between par-value and no-parvalue shares thus becomes almost inconsequential. A comparison of par-value and no-par-value shares as they are currently regulated in the Companies Act, is nevertheless a useful way of identifying certain key considerations that should inform the design of the preferred system.
The 'seven-year clause' defence and the limited operation, under Section 70(1) of the Trade Marks Act 194 of 1993, of Section 42 of the Trade Marks Act 62 of 1963 : analysesAuthor Stuart GardinerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 486 –491 (2007)More Less
The provisions of s 42 of the Trade Marks Act 62 of 1963 (the '1963 Act'), in which the 'seven-year clause' is included, has been relied upon in a number of cases decided after the enactment of the Trade Marks Act 194 of 1993 (the '1993 Act'), as providing an absolute defence to applications for the expungement of registered trade marks from the Trade Marks Register of marks with a registration date seven years or more prior to the date of the enactment of the 1993 Act (see Luster Products Inc v Magic Style Sales CC 1997 (3) SA 13 (A); Mars Inc v Cadbury (Swaziland) (Pty) Ltd 2004 (4) SA 1010 (SCA); Reckitt Benckiser SA (Pty) Ltd v Adcock Ingram Healthcare (Pty) Ltd unreported, TPD, case no 15717/2004, 11 Mar 2003; Die Bergkelder Bpk v Vredendal Koöp Wynmakery & Others 2006 (4) SA 275 (SCA)). This note considers the parameters of the defence currently provided by s 42 of the 1963 Act.
Auditor independence : an analysis of the legislation in the United States of America and South Africa : analysesAuthor Jane BourneSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 492 –501 (2007)More Less
In this contribution, I will review the legislation introduced in the United States of America, in the form of the Sarbanes-Oxley Act of 2002, and the relevant South African legislation, namely the Auditing Profession Act 26 of 2005 and the Corporate Laws Amendment Act 24 of 2006, in so far as these measures pertain to the independence of auditors. I will further consider whether they adequately address the issue of auditor independence.
Author J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 502 –517 (2007)More Less
Like all triangular legal relationships, the legal position of insurer, insured and third party in the traditional subrogation situation can become rather complicated. Still, underlying the legal doctrine of subrogation in insurance law are a few fundamental principles, in themselves fairly straightforward and undisputed (for a discussion of these principles, see MFB Reinecke, Schalk van der Merwe, JP van Niekerk & Peter Havenga General Principles of Insurance Law (2002) in pars 373-402).
Once more beneficiary appointments and security cessions : Mulaudzi v First Rand Bank Ltd : case commentsAuthor Susan ScottSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 517 –527 (2007)More Less
The legal issues requiring attention in this discussion are: the nature of beneficiary appointments and security cessions, as well as the effect they have on the legal position of the parties involved. I shall also briefly refer to some aspects of the documents involved in the case.
Legality and income tax - is SARS 'entitled to' levy income tax on illegal amounts 'received by' a taxpayer? : case commentsAuthor L.G. ClassenSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 534 –553 (2007)More Less
The purpose of this analysis is to evaluate the principles applied by the courts to determine whether an amount obtained in an illegal manner, is included in the gross income of a taxpayer. The meaning of the phrase 'received by' in the definition of gross income (see s 1 of the Income Tax Act 58 of 1961 ('the Act')), its judicial interpretation, and the latest decision of the Supreme Court of Appeal in MP Finance Group CC (In Liquidation) v Commissioner, South African Revenue Service (2007 (5) SA 521 (SCA)) will be examined.
The debate on the meaning and application of 'arrangement' : before and after Senwes v Van Heerden & Sons : case commentsAuthor P.M. LehloenyaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 534 –553 (2007)More Less
The recent decision in Senwes v Van Heerden & Sons ( 3 All SA 24 (SCA)) concerned the application of s 169A of the now defunct Co-operatives Act 91 of 1981 (it was replaced by the Co-operatives Act 14 of 2005 as from May 2007). The section, which amongst other things sets out the procedure for implementing an 'arrangement' between a co-operative and its members or creditors, was the equivalent s 311 of the Companies Act 61 of 1973 (where s 169A referred to co-operatives, s 311 speaks of companies). The consequence of this similarity is that cases dealing with s 311 almost invariably applied to s 169A and the other way around. It also means that despite s 169A having ceased to be operational, cases interpreting it will continue to be relevant for purposes of s 311. It is for these reasons that an examination of Senwes v Van Heerden & Sons remains relevant. It should further be observed that, although both s 169A and s 311 concern arrangements involving either members or creditors, the scheme under consideration in this note concerned members only.
Value-added tax on insurance indemnity payments : Luxor Paints (Pty) Ltd v Heritage Insurance Brokers and Subsection 8(8) of the Value-added Tax Act 89 of 1991 : case commentsAuthor W. JacobsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 19, pp 554 –566 (2007)More Less
This note will attempt to explain the principles relating to the payment of VAT on insurance indemnity payments, and the importance for both insured and insurance brokers to take account of VAT. It will do so with reference to Luxor v Heritage Insurance Brokers. It concerns the pressing and moot question whether an insured may recover from the insurer the VAT payable on an indemnity payment received from the latter. (It may just be mentioned in passing that as a vendor an insurer is not allowed to advertise a price (that is, an insurance premium) which does not reflect the VAT fraction or which does not stipulate that the price is not VAT inclusive (see s 65 of the VAT Act).