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- SA Mercantile Law Journal = SA Tydskrif vir Handelsreg
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- Volume 20, Issue 4, 2008
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 20, Issue 4, 2008
Volume 20, Issue 4, 2008
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 439 –461 (2008)More Less
The increased focus on good corporate governance has led to a renewed interest in the duties of company directors. The gradual extension of directors' responsibilities and the serious consequences of breach of these duties are often alluded to in general terms. However, there has not been a systematic study of the nature and scope of directors' personal liability for corporate conduct. In Australia, the Corporations and Markets Advisory Committee (CAMAC) conducted an enquiry into the personal liability of directors for corporate fault under both federal and state legislation. The report revealed a lack of coherence between the requirements and justifications for different instances of derivative liability imposed and directors. The purpose of this article is to explore the different areas and bases of liability applicable to company directors in South Africa.
The challenges that e-commerce poses to international tax laws : 'controlled foreign company legislation' from a South African perspective (part 2)Author Annet Wanyana OguttuSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 462 –478 (2008)More Less
In terms of s 9D(12) of the Income Tax Act, a South African shareholder who together with connected persons holds 10 per cent to 25 per cent of the participation rights or voting rights in a CFC can elect to treat all his pro rata share of CFC income as taxable under s 9D even if he would have been granted an exemption under s 9D(9).
Section 9D(13) provides that any resident who, together with connected persons, holds 10 per cent up to 25 per cent of the participation rights or voting rights of a foreign company may elect that this foreign company be deemed to be a CFC in relation to him for any of its foreign tax years.
An introduction to the appraisal remedy as proposed in the Companies Bill : triggering actions and the differences between the appraisal remedy and existing shareholder remediesAuthor H.G.J. BeukesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 479 –495 (2008)More Less
It is widely known that the affairs of a company are decided by the majority of shareholder votes in that company. Although some matters that are voted on may be inconsequential, others may involve changes disadvantageous to dissenting shareholders. The obvious solution for these shareholders, once majority rule prevails, is to sell their shares, but there is not always a ready market. In some jurisdictions, therefore, minority shareholders are given the right to be bought out by their companies if they disagree with resolutions approving certain fundamental changes. This right to be bought out is known as an appraisal right, a dissent right or a buy-out right, and will be referred to in this article as the appraisal remedy. Consequently, the appraisal remedy is defined as the right of a dissenting shareholder to force his company to purchase his shares at either a mutually satisfactory or a judicially set fair price if his company takes certain triggering actions.
The current status of the enforceability of contractual exemption clauses for the exclusion of liability in the South African law of contractAuthor Philip N. StoopSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 496 –509 (2008)More Less
Exemption clauses are contractual terms that exclude, alter or limit the liability that normally flows from contractual relations. These clauses are used in nearly all standard contracts and are continually investigated because they are misapplied. When courts consider the status of the enforceability of exemption clauses, they normally approach it from the bases of consensus, public policy, limiting legislation and / or interpretation. The purpose of this article is to address concisely the status of the enforceability of exemption clauses in the South African law of contract.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 510 –521 (2008)More Less
In South Africa, the term 'pre-emptive rights' is known in the context of private companies as a common form of restriction on the transfer of shares (see Piet Delport 'Pre-emption Rights and the Sale of Shares' (2003) 15 SA Merc LJ 264; Smuts v Booyens; Markplaas (Edms) Bpk en 'n Ander v Booyens 2001 (4) SA 15 (SCA)).
Author N.L. ParseeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 522 –529 (2008)More Less
This analysis will concentrate on cases where the employee disappears for a long period, leaving the employer unsure of his whereabouts or his intention to return. This is called desertion and constitutes misconduct. Where an employee habitually stays away because of illness, though, the employer needs to deal with the situation under the category of incapacity, not misconduct (National Union of Metalworkers of SA on behalf of Ivasen and Whirlpool SA (Pty) Ltd (2005) 26 ILJ 985 (BCA)).
Representation, cession in securitatem debiti and notice : bankers and insurers beware! Van Staden NO & Another v Firstrand Ltd & Another : case commentsAuthor Susan ScottSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 530 –543 (2008)More Less
The judgment in Van Staden NO & Another v Firstrand Ltd & Another (2008 (3) SA 530 (T)) is very important for bankers and insurers: it deals with representation, cession in securitatem debiti and the role of notice of the cession to the debtor (an insurer in this case).
Unexecuted contract or merely a stay of execution? : Warricker NO & Another v Senekal : case commentsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 544 –553 (2008)More Less
The judgment in Warricker NO & Another v Senekal (2008 JOL 21161 (W); 2007 JDR 1190 (W)) deals, among other things, with the treatment of unexecuted (unperformed) contracts of sales in execution of immovable property of a judgment debtor by the sheriff subsequent to the sequestration of the judgment debtor's estate. Since the facts agreed upon by the parties are not comprehensively reported, some had to be obtained from an enquiry at the Deeds Registry. (See in general M Kelly 'Proceeding with Transfer Where an Execution Sale Took Place Prior to Sequestration or Liquidation' (2000) 12 SA Merc LJ 369 for a discussion of the relevant case law prior to Warricker v Senekal (supra).)
Author J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 554 –555 (2008)More Less
The South African financial services industry is being regulated to a standstill. That is inexcusable, even if the increasing control being exercised is said to be in the name of consumerism. Financial service providers are gradually finding it more and more difficult to bear the administrative and financial burden that is the inevitable result of compliance with this over-regulation. And similarly their clients, the consumers themselves, to whom the costs involved are invariably passed on.