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- Volume 21, Issue 3, 2009
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 21, Issue 3, 2009
Volume 21, Issue 3, 2009
Author Stella VettoriSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 291 –305 (2009)More Less
The existence of legislation making certain employer conduct illegal is no guarantee that these laws will not be broken. Trevor Manuel agrees that the law alone is not enough to ensure fiduciary responsibility on the part of employers and to prevent exploitative labour practices. This, he added, is the case even with the expansion of corporate statutes and the increased codification of rights and responsibilities. Since employees are the ones who are most likely to be aware of illegal conduct on the part of employers, the traditional system of enforcement, through the courts, depends on employee monitoring and reporting. Employees may be reluctant to take their employers to task, however, for fear of reprisal.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 306 –321 (2009)More Less
A 'demand guarantee' is usually a concise and simple instrument issued by a bank (or other financial institution) under which the obligation to pay a beneficiary a fixed or maximum sum of money arises merely upon the making of a demand for payment in the prescribed form and sometimes also the presentation of documents as stipulated in the guarantee within the period of validity of the guarantee. Many demand guarantees are payable on first demand without any additional documents, which reflects their origin in replacing cash deposits, although increasingly guarantees require at least a statement indicating that the principal is in breach. Therefore, a demand guarantee is like a substitute for cash and must be honoured on presentation of a written demand that complies with the provisions of the guarantee.
Author Izelle Du PlessisSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 322 –343 (2009)More Less
Generally speaking, since 2002 South African residents are taxed on their world-wide receipts and accruals, but non-residents are taxed only on their receipts and accruals from a South African source. Hence, determining whether a person can be classified as a 'resident' has become of primary importance to taxpayers.
Author Justin KalimaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 344 –364 (2009)More Less
Much has been written about the role and impact of corporations and bodies corporate in the environmental sphere. Attempts have long been made to fix them with environmental liability for their actions, because, among other things, they contribute greatly to environmental degradation, handle the most dangerous types of pollutants, cause environmental degradation that is relatively concentrated and extensive compared to the activities of individuals, and have considerable resources with which to reduce pollution.
South African consumer credit policy : measures indirectly aimed at preventing consumer over-indebtednessAuthor Philip N. StoopSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 365 –386 (2009)More Less
The global economy boomed during the last two decades, largely because credit was easy to grant and to access. But this boom came at a price: the unprecedented number of individuals and businesses that are over-indebted. Legislation protecting debtors and directly or indirectly aimed at preventing the problems of overspending is now an international phenomenon, though differing from country to country, depending on local needs. Generally, though, it seeks to address the imbalance between the bargaining power of credit providers and consumers, to combat malpractices by identifying and prohibiting such malpractices, and to limit the free exercise of legal remedies.
Remedies for misrepresentation inducing a long-term insurance contract : the Didcott principle : analysesAuthor MFB ReineckeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 387 –395 (2009)More Less
In 1991 Didcott J (as he then was) recommended that the existing insurance legislation should be amended to provide that an insurer could cancel a policy on the grounds of misrepresentation or breach of warranty only if it would not have entered into the contract had it not been misled by the insured (see Pillay v South African Life Assurance Co Ltd 1991 (1) SA 363 (D)). He suggested that if the insurer would have contracted on different terms if it had not been misled, alternative remedies should be made available to the insurer. This is what is meant by the Didcott principle.
A final curtain call, but perhaps not the last word on the reversal of credit transfers : Nedbank Ltd v Pestana : case commentsAuthor W.G. SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 396 –404 (2009)More Less
In Pestana v Nedbank Limited (2007 JDR 0353 (W)), Mathopo J at first instance held that Nedbank was entitled to reverse the credit in the second Pestana's account since the employee at the Carletonville branch who had passed the credit had done so erroneously or in the mistaken belief that there was no prior claim on the money (in par 21).
The evergreen topic of Locus Standi and Security Cessions : Thekweni Properties (Pty)Ltd v Picardi Hotels Ltd and Picardi Hotels Ltd v Thekwini Properties (Pty) Ltd : case commentsAuthor Susan ScottSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 405 –419 (2009)More Less
Should Levinsohn DJP and Boruchowitz AJA stoop to read this discussion of their respective judgments in Thekweni Properties (Pty) Ltd v Picardi Hotels Ltd (and Others as Third Parties) (2008 (2) SA 156 (D)) and Picardi Hotels Ltd v Thekwini Properties (Pty) Ltd (2009 (1) SA 493 (SCA)), the former would, I hope, say that I am a clever academic, and the latter probably: 'well, [s]he's a pampoen' (cf PM Nienaber & Ellison Kahn (eds) 'Reminiscences of Bench and Bar Mainly of the Free State' (2002) 119 SALJ 561 at 576). More likely, however, they will not read it. In these two reported judgments the evergreen topic of locus standi in security cessions reared its ugly head again with, to my mind, disastrous consequences in the Supreme Court of Appeal.
Mass resignation of the board and social responsibility of the company : Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd : case commentsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 420 –425 (2009)More Less
Just as one might accept an appointment as a director, so one can also resign as a director. When a person becomes a director of a company, it is commonly accepted that he or she owes a fiduciary duty to the company to act bona fide and in the best interests of the company (see generally, Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168; S v De Jager & Another 1965 (2) SA 616 (A); Howard v Herrigel NO 1991 (2) SA 660 (A); Phillips v Fieldstone Africa (Pty) Ltd 2004 (3) SA 465 (SCA)).
Blurring the lines between incapacity, misconduct and operational requirements : Zililo v Maletswai Municipality : case commentsAuthor Alan RycroftSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 426 –432 (2009)More Less
It is now required and accepted that an employer seeking to dismiss an employee has to fit the dismissal into one of three categories. Section 188 of the Labour Relations Act 66 of 1995 ('the LRA') requires the employer to show that the reason for dismissal is a fair reason related to the employee's conduct or capacity or based on the employer's operational requirements.
The Law of International Trade : Cross-Border Commercial Transactions, fourth edition, Jason C.T. Chuah : book reviewSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 433 –434 (2009)More Less
This book contains a theoretical discussion of all the relevant legal principles, and necessary practical examples aiding the reader in fully understanding the whole framework and workings of international trade law in a political, economic, business and legal context.