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- Volume 21, Issue 2, 2009
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 21, Issue 2, 2009
Volume 21, Issue 2, 2009
Safeguarding the Crown Jewels : immunities of foreign central banks and the South African Reserve Bank in South AfricaAuthor Johann De JagerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 145 –158 (2009)More Less
In modern times, the architecture of financial institutions has undergone significant changes. Functional divisions between kinds of intermediaries have become blurred, and financial intermediation has increasingly become global in operation. Central banks, once the de facto captives of political authorities in many countries, have gained significant independence and in modern times operate as centres of autonomy in the management of the domestic financial systems of their respective countries.
Author Charnelle Van der BijlSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 159 –173 (2009)More Less
SIM ('Subscriber Identity Module')-card swapping and mobile phone banking fraud are forms of fraud encountered in the use of mobile banking services. Mobile banking is a form of wireless electronic banking that does not require a client to bank within traditional banking premises. Electronic banking is a generic term that denotes banking services provided through different access devices. Electronic banking incorporates the use of ATMs, telephone or mobile phone transactions and the Internet. Wireless banking in the form of mobile phone banking may be seen as the next step after Internet banking on a fixed telephone line, and it allows a client to access his accounts via a cellular phone after the mobile banking menu is downloaded onto the SIM-card. Mobile phone banking entails that an application will be loaded onto the SIM-card so that the client can access certain banking services.
The enforceability of open source software licences : can copyright licences be granted non-contractually?Author Jeremy SperesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 174 –187 (2009)More Less
The birth of the Internet brought with it the ability to share information with anyone, quickly and easily, anywhere in the world. In the Internet's fledgling years, this ability was embraced, with computer programmers and scientists freely sharing information with one another in furtherance of their science. Inevitably, proprietary interests soon took hold, however, and the software that was once shared became the object of great wealth. Enter intellectual property law. Software was soon brought under the protection offered by copyrights, trademarks and patents, with the consequence that its underlying source code was closed off to the public. Ever since, however, there has been a virile backlash movement seeking a return to the open sharing of electronic information. This movement finds expression in the move towards open source software that is growing rapidly in the software industry, with great success in challenging traditional proprietary software houses.
The protection of stakeholder interests in terms of the South African King III Report on Corporate Governance: an improvement on King II?Author Irene-Marie EsserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 188 –201 (2009)More Less
Author Wenette JacobsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 202 –227 (2009)More Less
In reading a liability insurance contract, one may at first glance be inclined to underestimate the complexities of this form of insurance. However, this is a deceptive simplicity as liability insurance is a complex branch of the law of insurance. The reasons for the complex and somewhat confusing nature of liability insurance are entrenched in the possible multiple legal relationships involved, and in the sometimes complicated or lengthy chain of events that may occur when liability insurance comes into play.
Author W.G. SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 228 –248 (2009)More Less
Documentary letters of credit (also known as 'letters of credit' or simply, 'credits', and referred to as such below) are essential to international trade, often being described as its 'lifeblood' or 'backbone'. However, the use of letters of credit has been somewhat decreasing worldwide for the last couple of years, in spite of an upsurge in their use after the economic crises in Southeast Asia a decade ago. Many reasons have been advanced to explain this decline, including increasingly costly bank charges, divergent interpretations by banks in different jurisdictions, and the incidence in documentary rejections by banks. Some surveys have indicated that as many as 70 per cent of letters of credit are rejected by banks on their first presentation by the beneficiary. In spite of the relative decrease in the use of letters of credit, international trade and commerce remains dependent upon it.
The persistent meanness of banks transforms judge into praetor : First Rand Bank Ltd v Soni : case commentsAuthor Susan ScottSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 249 –259 (2009)More Less
The judgment in FirstRand Bank Ltd v Soni (2008 (4) SA 71 (N)) demonstrates once again the recurring demands on the South African courts to come to the rescue of debtors. (For other examples, see Jaftha v Schoeman & Others; Van Rooyen v Stolz & Others 2005 (2) SA 140 (CC); Nedbank Ltd v Mortinson 2005 (6) SA 462 (W); Standard Bank of South Africa Ltd v Saunderson & Others 2006 (2) SA 264 (SCA); ABSA Bank Ltd v Ntsane & Another 2007 (3) SA 554 (T); Nedbank Ltd v Mashiya & Another 2006 (4) SA 422 (T); Herselman v Nedcor Bank Ltd & another  JOL 22136 (SE); 2008 JDR 0536 (SE); Campbell v Botha & Others 2009 (1) SA 238 (SCA).) Although there are statutory protection measures (eg, the Constitution of the Republic of South Africa, 1996 (the Constitution) and the National Credit Act 34 of 2005 (the NCA)), the task has fallen largely on the shoulders of the courts to protect debtors who suffer at the hands of unscrupulous creditors (often, but not only, banks). Examples of unacceptable conduct by creditors are Jaftha v Schoeman (supra); Nedbank Ltd v Mortinson (supra); ABSA Bank Ltd v Ntsane (supra); Nedbank Ltd v Mashiya (supra); Herselman v Nedcor Bank Ltd (supra); and Campbell v Botha (supra).
When is an accident and health policy not an accident and health policy? Guardrisk Insurance Co Ltd v Registrar of Medical Schemes and Registrar of Medical Schemes v Guardrisk Insurance Company Limited : case commentsAuthor Stephanie LuizSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 260 –271 (2009)More Less
The legal battle between the Registrar of Medical Schemes ('the Registrar') and Guardrisk Insurance Co Ltd ('Guardrisk') in the cases of Guardrisk Insurance Co Ltd v Registrar of Medical Schemes & Another 2008 (4) SA 620 (SCA) and Registrar of Medical Schemes v Guardrisk Insurance Company Limited 2007 JDR 0868 (W) involved the AdmedGap and AdmedPulse insurance policies. These policies, known in the industry as gap cover, address the problem that arises when the medical aid scheme to which a person belongs does not pay the full cost of medical services. In the event of the insured being admitted to hospital and having to receive medical, surgical or other treatment, or the insured needing chemotherapy, radiotherapy or kidney dialysis as an outpatient, the policies would pay the 'gap' between the cost of the medical services and the amount actually paid by the medical scheme of which the insured was a member. In other words, in exchange for a premium, the policies would pay the difference to the insured.
Over-indebtedness and applications for debt review in terms of the National Credit Act : consumers beware! Firstrand Bank Ltd v Olivier : case commentsAuthor J.M. OttoSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 272 –278 (2009)More Less
The National Credit Act 34 of 2005 ('the Act') came into operation on 1 June 2007. One of the most important pieces of commercial legislation that Parliament has passed in recent years, it is in many ways an improvement on similar previous legislation such as the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980, both of which it repeals. It introduces many new concepts into South African law on consumer credit. One of them is the right of a consumer in need to apply for a debt review, to be declared over-indebted after his financial position has been evaluated and to have his debts rescheduled.
Author Lynette OlivierSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 279 –285 (2009)More Less
Although most people understand the need for imposing taxes, this does not mean that they do not find it a painful exercise when they have to pay tax. Paying tax is even more painful if a penalty is imposed. It is thus understandable that taxpayers will try all possible arguments to get the South African Revenue Service ('SARS') to waive the penalty. One such defence is the 'double jeopardy defence'. However, a recent decision by the Gauteng Tax Court poured cold water on such a defence. An analysis of the decision indicates that it raises more question than answers.
Author P.M. NienaberSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 288 –290 (2009)More Less
'n Nuwe uitgawe van 'n regsboek, veral 'n tweede uitgawe, kan soms, soos 'n tweede huwelik, vol verrassings wees. Maar 'n sesde uitgawe? Teen daardie tyd is redaksionele kreukels van vorige uitgawes lank reeds uitgestryk en is deugdes en ondeugdes deel van die boek se tradisie. Wat jy dan kry, is wat jy vantevore gehad het, maar met 'n bietjie meer. So ook hier.
The Credit Guide : Manage your Money with the National Credit Act, Nicky Campbell & Stephan Logan : book reviewAuthor Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 288 –286 (2009)More Less
Credit plays a vital role in our daily lives. Unless we have large amounts of cash and other savings, it is almost unimaginable that we will not at some time need to make use of credit. Most of us will one day have to apply for vehicle finance, or a home loan, or personal loan. Not many people can afford to pay cash for things, especially expensive things like houses, motor vehicles, and furniture. Consumers buying goods on credit are an everyday occurrence. Even businesses use credit to buy their stock, and people use credit to pay for their consumables such as clothing, food, and even school fees. Many people have credit cards or loans. Today all these type of credit agreements are regulated by the National Credit Act 34 of 2005 ('the NCA').