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- Volume 22, Issue 1, 2010
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 22, Issue 1, 2010
Volume 22, Issue 1, 2010
The in duplum rule : relief for consumers of excessively priced small credit legitimised by the National Credit ActAuthor Jonathan CampbellSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 1 –11 (2010)More Less
The National Credit Act 34 of 2005 as read with the National Credit Regulations prescribes limits on the cost of credit that may be charged by credit providers. The limits on interest rates are cold comfort for consumers of small credit, because the combined impact of interest and the newly-introduced initiation and service fees cause the cost of small credit to be potentially exorbitant.
Establishing when a franchise is actually a franchise - 'if it looks like a duck, smells like a duck and quacks like a duck, it is usually a duck'Author Tanya WokerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 12 –26 (2010)More Less
For some time now there have been calls for the introduction of legislation to regulate the franchise relationship. At one stage it was expected that the legislature would introduce franchise-specific legislation, but the Department of Trade and Industry (DTI) has chosen to bring franchising within the ambit of the Consumer Protection Act.
Author Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 27 –49 (2010)More Less
Various interest rate hikes from 2006 to 2008 have had a negative financial effect, particularly on low-income homeowners. These and the worldwide financial crisis have led to an increase in levels of consumer debt, and many consumers have since lost their mortgaged homes, while others are still fighting to keep them. Although the National Credit Act ('the Act') was implemented in June 2006 to protect consumers, it did little to curb the detrimental effect of the rising interest rates. Under the Act, a credit provider may conclude a credit agreement with a consumer only after he has made a proper financial assessment and concluded that the consumer will be able to satisfy all his obligations under all his credit agreements. This affordability assessment will depend on the prevailing interest rates at the time. Therefore, the determination of loans allowed to be made to a consumer is based on financial data available when that determination is made. However, there has been a failure to consider what happens if the interest rate increases significantly after the agreement is concluded, causing the consumer no longer to be able to meet his obligations under his credit agreement. The increase in interest rates may also cause the consumer to become over-indebted, and he may even end up losing his mortgaged home. If the consumer is in the middle- or high-income group, he can cut down on his living costs, sell his home and buy a cheaper home in a different (poorer) area; and still be able to afford to buy or own a home. But the low-income consumer who just managed to meet the instalments on his housing loan cannot lower his living standard any further and will possibly never be able to buy or own his own home again. He has neither negligently nor intentionally caused this situation, which seems to be unfair.
Has ombudsmania reached South Africa? The burgeoning role of ombudsmen in commercial dispute resolutionAuthor Neville MelvilleSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 50 –78 (2010)More Less
The word 'ombudsman' is derived from the Old Norse word 'umbodhsmadhr', meaning deputy, agent or plenipotentiary. Originally, '[a]mongst the early Germanic tribes, the ombudsman ... had the role of recovering compensation from the family of a wrongdoer on behalf of the family affected by a wrongdoing'. The term later broadened to denote a representative agent or proxy generally.
Author Antony O. NwaforSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 66 –78 (2010)More Less
It is a well-established principle of law that a company does not exist as a legal entity until incorporated. For all practical purposes, however, prior to incorporation someone must act on behalf of the company. Formalities of incorporation need to be attended to; professionals must be instructed and paid to prepare the necessary incorporation documents; the business proposal needs to be appraised and initial finances raised. Getting through these rigours of incorporation involves entering into contracts with third parties. These contracts could not only relate to the process of incorporation but could also further the company's objects in the memorandum. As the company does not yet exist in the eyes of the law, there is always the problem of the assumption of liability and of enforcing the contract, either by the company when formed or the person who entered into these contracts on its behalf. The person engaging in these functions for the company under formation is often associated with the term 'promoter' or 'trustee'. This article seeks, first, to identify the promoter of the company and the legal duties of the promoter, and, second, to investigate the capacity of this promoter and/or the company when formed to take the benefit and assume the liability for a contract concluded before the company is formed.
A consumer's right to disclosure and information : comments on the plain language provisions of the Consumer Protection ActAuthor Morne GouwsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 79 –94 (2010)More Less
The Consumer Protection Act 68 of 2008 ('the Act'), signed into law on 24 April 2009, ushers in a new era for consumer protection in South Africa. When it takes effect on 24 October 2010, it will repeal and replace the country's outdated and fragmented consumer protection laws with a single consolidated statute.
Author M.B. MasukuSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 95 –103 (2010)More Less
The media, in particular television broadcasting, is not only a platform for communication and the exchange of ideas, but also a way of influencing the public and the development of the community. The public is given the opportunity to make value judgments on current issues and so to form its opinion. It is a good source of information for educational, social, political, economic and entertainment purposes. So its regulation and availability is of great importance to the SA public.
Gone with the wind and not giving a damn : problems and solutions in connection with dismissal based on desertionAuthor A.H. DekkerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 104 –113 (2010)More Less
Desertion takes place where an employee leaves the workplace and intends to terminate the employment relationship (A van Niekerk, MA Christianson, M McGregor, N Smit & BPS Van Eck Law@work (2008) at 239; Khulani Fidelity Services Group v CCMA & Others  7 BLLR 664 (LC) in pars 15-6). Various terms are used when an employee stays away from the workplace without notice and/or a reason : eg, absenteeism, abscondment, absence without leave (AWOL) and desertion. These terms do not necessarily have identical meanings. Absenteeism and absence without leave normally refer to cases where an employee stays away for short periods of time but with the clear intention to return to work. Desertion and abscondment refer to cases where an employee stays away from work for a longer period, but with the clear intention not to continue with employment, this intention being evident from the employee's conduct or communications (J Grogan Workplace Law 9 ed (2007) at 119). It remains puzzling why an employee would rather desert than resign. One possible explanation is that he retains his entitlement to unemployment insurance benefits when he deserts (and is dismissed), but not when he resigns (ss 16(1)(a)(i)-(ii) of the Unemployment Insurance Act 63 of 2001).
Much ado about nothing? Legal principles on money, banks and their clients after Joint Stock Company Varvarinskoye v ABSA Bank Ltd : case commentsAuthor Johann De JagerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 127 –140 (2010)More Less
Roman-Dutch law, broadly referred to as the common law of South Africa, constitutes an authoritative subsidiary source of law in our legal system and is utilised in the interpretation, explanation and application of legal principles, especially in private law. English law, on the other hand, has had a major influence in general on South African commercial law, particularly in banking law. (See WG Schulze 'The Sources of Southern African Banking Law - A Twenty-First Century Perspective (Part I)' ('Schulze Part I') (2002) 14 SA Merc LJ 438 at 458 and WG Schulze 'The Sources of South African Banking Law - ATwenty-First Century Perspective (Part II)' ('Schulze Part II') (2002) 14 SA Merc LJ 601; IPF Nominees (Pty) Ltd v Nedcor Bank Limited & Basfour 130 (Pty) Ltd 2002 (5) SA 101 (W); ABSA Bank Limited v IW Blumberg & Wilkinson 1997 (3) SA 669 (A); and First National Bank of Southern Africa Ltd v Perry NO  3 All SA 331 (A). See also Michael Blair QC, Ross Cranston MP, Christopher Ryan & Michael Taylor Blackstone's Guide to the Bank of England Act 1998 (1998) at 108 for similarities between the Banking Act 1987 (c. 37) in the United Kingdom and the Banks Act 94 of 1990 ('Banks Act') in South Africa.)
Herbstein & Van Winsen : the civil practice of the high courts of South Africa and the supreme court of appeal of South Africa, Andries C. Cilliers, Cheryl Loots & Hendrik C. Nel : book reviewsAuthor Fawzia CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 141 –142 (2010)More Less
Herbstein & Van Winsen : The Civil Practice of the High Courts of South Africa and the Supreme Court of Appeal of South Africa is the definitive text on civil procedure in the High Courts and Supreme Court of Appeal in South Africa. Since its first edition in 1954, it has established itself as a prime reference source on South African civil procedure. Over the years, the work has been enriched by the contributions and insights of various authors who have carried the work forward by updating and expanding it in view of new developments in this area of the law.
Recognition of various stakeholder interests in company management : corporate social responsibility and directors' duties, Irene-marié Esser : book reviewsAuthor Suzette LombardSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 142 –145 (2010)More Less
The protection of the interests of corporate stakeholders has been regarded as an important issue since at least the 1930s when Berle and Dodd entered into their famous debate (published in numbers 44 and 45 of the Harvard Law Review in 1931 and 1932). It is still regarded as an interesting and often vexing question today.
Author J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 146 –148 (2010)More Less
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 148 –153 (2010)More Less
Creating the framework for an adequate broadcasting system is full of significant challenges, and effective regulation is central to that process. The challenges of commercial pressure, technological innovation, popular culture and the forces that shape and direct it, and societal values in a conflicted society make the broadcasting environment complex. Media such as television and radio are central to political, social cultural and economic life and in this maelstrom it is difficult to create a discourse in which the ideals of public service broadcasting (PSB) can be effectively raised, let alone addressed. Locating public service broadcasting in the media spectrum, while enabling commercial development creates issues in every society, but when it is located in the troubled South African context, it becomes even more difficult.
Author W.J. HostenSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 154 –155 (2010)More Less