- A-Z Publications
- SA Mercantile Law Journal = SA Tydskrif vir Handelsreg
- Previous Issues
- Volume 20, Issue 1, 2008
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 20, Issue 1, 2008
Volume 20, Issue 1, 2008
The introduction of the statutory merger in South African corporate law : majority rule offset by the appraisal right (part 1)Author Maleka Femida CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 1 –32 (2008)More Less
A fundamental and radically new concept of the statutory merger, borrowed from the United States of America, is to be introduced into South African law by the new draft Companies Bill, 2007. The statutory merger, in essence, is a simple, uncomplicated and effective procedure by which two or more companies may merge by agreement, with the approval of the prescribed majority of their shareholders, and without the need for any court approval. Instead of recourse to a court, dissenting shareholders have the right to opt out, by withdrawing the fair value of their shares in cash. This they do by exercising their appraisal rights.
Author Rehana CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 33 –60 (2008)More Less
It is disturbing to observe that South African financial markets have weakened considerably in recent years, posing a danger to the local African economy. One reason for this state of affairs is that international banks and other speculators with unlimited financial resources have been engaging in market manipulation. Market manipulation generally involves an attempt to interfere with the operation of the market.
Author Christian SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 61 –73 (2008)More Less
A foreign judgment is a judgment pronounced by a foreign court, that is to say, by a court other than a South African court. Following from the principle of territorial sovereignty, a foreign judgment cannot, in terms of the common law, have a direct operation of its own force within South Africa. When municipal courts in South Africa and elsewhere therefore follow the long established practice of recognising and enforcing foreign judgments, they do so by virtue and on the strength of their own national law and not on the basis of some pre-existing obligation imposed upon them by public international law.
Author M.A. Du PlessisSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 74 –88 (2008)More Less
The constitutional impact on the burden of proof in restraint of trade covenants - a need for exercising restraint : analysesAuthor J. NeethlingSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 89 –94 (2008)More Less
Before the decision in Magna Alloys and Research (SA) (Pty) Ltd v Ellis (1984 (4) SA 874 (A)), the traditional approach of the courts, developed under the influence of English law, was that contracts in restraint of trade were prima facie void and hence unenforceable.
An historical overview of the director's duty of care and skill : from the nineteenth century to the Companies Bill of 2007 : analysesAuthor Mildred BekinkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 95 –116 (2008)More Less
The title 'director' is highly valued by many people and is seen as eminent and prestigious. Those that run large companies and whose management is distinguished and influential in the business world, are even more so regarded. Significant powers are conferred upon directors and by law they are obliged to exercise such powers as fiduciaries (see D Arsalidou The Impact of Modern Influences on the Traditional Duties of Care, Skill and Diligence of Company Directors (2001) at 4-5).
Author J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 117 –125 (2008)More Less
The development of the principles governing the pre-contractual misrepresentation of facts by an insured to an insurer over the past few decades has been piecemeal, slow, infuriating and, to the uninitiated, confusing. While the process can by no stretch of the imagination be said be approaching a satisfactory conclusion, the decision in Hollely v Auto & General Insurance Co Ltd (unreported, WLD, November 2007, case no 04/31731) provides an opportune moment for taking stock.
An examination of the accurate application of the dependency test under the Pension Funds Act 24 of 1956 : case commentsAuthor Mtendeweka Owen MhangoSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 126 –135 (2008)More Less
In 1976 the Pension Funds Act 24 of 1956 was amended with the inclusion of s 37C. This section regulates the payment of any benefit payable upon the death of a member of a pension fund organization. It overrides the freedom of testation and confers that power to the trustees of a pension fund. Effectively, in terms of s 37C, the needs of dependants of the deceased member of a pension fund are the prime consideration in deciding how his or her retirement savings should be distributed. The aim was to prevent dependants of a deceased pension fund member from being left destitute and without financial support (for a discussion of the purpose and rationale of s 37C, see, eg, Tukishi Manamela 'Chasing Away the Ghost in Death Benefits: A Closer Look at Section 37C of the Pension Funds Act 24 of 1956' (2005) 15 SA Merc LJ 276).
Author Irene-marie EsserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 135 –145 (2008)More Less
In Greaves v Barnard (2007 (2) SA 593 (C)) the question arose whether a director was entitled to a spoliation remedy if the company prevented him from entering its premises and accessing his office.
A spoliation order may be granted only if the applicant was in possession of property with the intention of securing a benefit for himself. The Court thus had to decide whether the director performed his work and occupied his office to secure a benefit for himself. In the course of deciding this question, it made a number of interesting remarks on directors and their duties to a company. The purpose of this note is to analyse these remarks from the perspective of company law. But first a brief overview of the facts and the judgment.