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- Volume 21, Issue 4, 2009
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 21, Issue 4, 2009
Volume 21, Issue 4, 2009
Author Andre BoraineSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 435 –469 (2009)More Less
In administering a bankrupt estate, the insolvency representative will examine transactions in which the debtor was involved before the onset of bankruptcy, to ascertain whether any of the debtor's property or assets that should be available for distribution among all creditors were disposed of improperly. These transactions may usually be contested with the aim of reclaiming those assets from the recipient or beneficiary for the benefit of the creditors as a group - hence the notion of claw-back provisions or the swelling of the assets of the estate.
Author Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 470 –485 (2009)More Less
The UCP 600, as well as their predecessors, the UCP 500, contain a number of provisions that aim to relax the requirements of strict conformity. Therefore, by incorporating one of these versions of the UCP into their contract, either expressly or tacitly, the applicant (or the principal in the case of a demand guarantee) and the beneficiary agree to a certain relaxation of the required degree of compliance regarding the documents.
Although the UCP 500 were replaced with the UCP 600 on 1 July 2007, there are still letters of credit in operation that are subject to the UCP 500, and some banks are also still issuing letters of credit subject to the UCP 500. Therefore, a discussion of the positions under both the UCP 500 and the UCP 600 is necessary.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 486 –508 (2009)More Less
The National Credit Act 2005 ('the Act') came into full operation on 1 June 2007. It enjoyed huge publicity and much has been written about its content, impact on the economy, interaction with other areas of law, and so forth. Little has been written so far, though, about its impact on specific credit agreements in or by a company.
Here we will examine whether such agreements will come within the ambit of the Act and, if so, how it will affect them. We will not examine all credit agreements to which a company is a party, but only those that deserve particular attention from a company-law perspective, being expressly regulated in terms of the Companies Act 1973 ('the Companies Act'). These include loans or security regulated in terms of ss 37, 38 and 226 of the Companies Act, and the issue of debentures by a company.
Author Natasha BouwmanSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 509 –534 (2009)More Less
Prior to the Companies Act ('the 2008 Act'), directors' rights and duties were derived principally from contracts entered into with the company, the memorandum and articles of association, the Companies Act ('the 1973 Act) and the common law. The common law imposes on directors both a fiduciary duty and a duty of care and skill. The 2007 Companies Bill (the '2007 Bill') initially proposed to codify directors duties, and now the 2008 Act partially codifies both the fiduciary duties and the duty of care and skill.
I will concentrate on the duty of care and skill and not deal with the fiduciary duties. I will discuss the existing duty of care and skill in terms of the common law, the business judgment rule, the influence of the King Codes on Corporate Governance on the duty of care and skill in South Africa, and the proposed codification of directors' duties, including the duty of care and skill, introduced by the 2007 Bill and contained in the 2008 Act. Finally, I will consider whether the South African duty of care and skill should have been partially codified and whether the business judgment rule should have been incorporated into South African law.
Author Roshana KelbrickSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 535 –545 (2009)More Less
Wine and wine glasses are not similar goods, but medicine and cool-drinks may be. Clothes and suntan lotions are similar goods, but toffee-flavoured spread and toffee-flavoured ice-cream toppings are not. Are these findings of similarity (or dissimilarity) the results of the facts of each case, or of the terminology used in the legislation of the different jurisdictions? Here I shall discuss the terminology used in the European Community Directive, and the South African and the United Kingdom legislation, and then analyse relevant decisions in these jurisdictions. (For the sake of brevity, I shall refer only to similar goods, unless a service mark is in issue.)
The classification system is an essential component of trade-mark law. All marks are applied for and registered in one or more of a variety of goods and services classes. The classification system and the contents of each class are the same worldwide and determined by the International Classification of Goods and Services drawn up under the Nice Agreement of 1957. In most jurisdictions, infringement protection used to be limited to the goods for which the mark was registered, and so marks were registered with broad specifications to expand this protection as far as possible. But the fact that protection was limited to the specific goods for which the mark was registered meant that the same mark could be used by different proprietors, provided that this was in respect of different goods.
Author Nazreen Shaik-PeremanovSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 546 –554 (2009)More Less
Bankers owe their clients a general duty not to disclose information about their clients' affairs. But this duty is qualified: one exception is that the banker may be compelled by law to disclose such information (see AJ Itzikowitz & SF du Toit 'Banking and Currency' in: WA Joubert (founding editor) The Law of South Africa vol 2 pt 1 2 ed (2003) in par 345; see also WG Schulze 'Big Sister Is Watching You: Banking Confidentiality and Secrecy under Siege' (2001) 13 SA Merc LJ 601).
In this analysis, I will discuss duties on bankers imposed by the requirements of the Basel II Accord ('the Accord' or 'Basel II'). These requirements may compel South African bankers to disclose information about their clients' affairs, and so they add to the set of provisions that affect the bankers' general duty not to disclose such information.
Insurance subrogation : not always in the name of the insured? Rand Mutual Assurance Co Ltd v Road Accident Fund : case commentsAuthor J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 555 –575 (2009)More Less
In recent times the doctrine of subrogation has become one of the most litigated aspects of our insurance law. Often procedural at heart, the issues arising for decision have tested our understanding of a doctrine taken over in our insurance law from English law (see my contributions 'Subrogation and Cession in Insurance Law: A Basic Distinction Confounded' (1998) 10 SA Merc LJ 58; 'Subrogation to an Enrichment Claim and the Subrogating Insurer's Duties: Some General Observations on Obiter Remarks' (2006) 18 SA Merc LJ 508; 'Insurance Subrogation, Implied or Expressed: In the Name of the Insured, Always' (2007) 19 SA Merc LJ 502; and 'Subrogation in Terms of a Marine Insurance Contract Governed by Foreign Law: The Untraceable or No Longer Existing Insured Creates a Dilemma for Insurers' 2008 Tydskrif vir die Suid-Afrikaanse Reg 575).
Manufacture, sell and be liable for latent defects : D & H Piping Systems (Pty) Ltd v Trans Hex Group Ltd : case commentsAuthor Moseki MalekaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 576 –590 (2009)More Less
As the seller is obliged to deliver the thing sold without any defects, the purchaser's remedies may include a claim for damages if the seller was fraudulent, or was a manufacturer or dealer, or gave an express warranty at the conclusion of the contract against the existence of such a defect (JTR Gibson South African Mercantile and Company Law 8 ed (2003) by Coenraad Visser (gen ed), JT Pretorius, Robert Sharrock & Marlize van Jaarsveld at 133 and 140 ff). If the seller is either a manufacturer or else a dealer who publicly professes to have expert skill and knowledge concerning the thing sold, he is presumed to be aware of latent defect in the articles that he manufactures or sells (idem at 143). His liability does not depend on whether he was aware of the latent defect. If the property is latently defective, he faces liability ex empto for consequential damages (ibid). His liability, as a naturale of the sale contract, can be excluded by the contractants in a voetstoots clause, if he did not intentionally conceal the latent defects to induce the purchaser to conclude the contract (idem at 144).
Copyright in works created in the course of employment : the Supreme Court of Appeal gives guidance. King v South African Weather Service : case commentsAuthor Coenraad VisserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 591 –597 (2009)More Less
Labour Dispute Resolution, John Brand, Casper Lötter, Felicity Steadman & Tembeka Ngcukaitobi : book reviewAuthor Marlize Van JaarsveldSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 21, pp 598 –600 (2009)More Less
Labour Dispute Resolution is the second edition of a well-known 1997 edition. This book is written by practitioners who are clearly conversant with the practical dilemmas and challenges emerging from dispute resolution in the employment context. What should strike the reader from the onset is the fluent interface between pivotal theoretical legal principles and practical guidelines bearing on the topic. Another admirable feature of this book is the incorporation of important yet often overlooked principles of labour relations that pertain to dispute resolution. These principles are not commonly known by legal practitioners, culminating simply in a distinct disadvantage during the dispute resolution process.