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- Volume 22, Issue 2, 2010
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 22, Issue 2, 2010
Volume 22, Issue 2, 2010
Author F.H.I. CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 157 –175 (2010)More Less
Company law has a significant impact on the economy in general and on commercial activity in particular. It can promote and facilitate commercial enterprise and economic growth or it can restrict and retard it. It is consequently vital for corporate law to be clear, certain and accessible. But our current corporate law regime is bulky, complex and full of conflict in its underlying philosophy and policy, and this is due directly to the fact that the Companies Act 61 of 1973 has been amended some forty-two times in the thirty-five years of its existence. This sort of patchwork and piecemeal reform has inevitably led to conflict in the policy and the objectives underpinning our company law regime.
An introduction to the appraisal remedy in the Companies Act 2008 : standing and the appraisal procedureAuthor H.G.J. BeukesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 176 –194 (2010)More Less
If a company takes a triggering action, a dissenting shareholder may employ the appraisal remedy to have his shares purchased by the company at either a mutually satisfactory price or a judicially set fair price, if all the necessary requirements have been met.
This appraisal remedy is contained in s 164 of the Companies Act. (Unless otherwise specified, all references to sections, subsections and paragraphs in this article will be to those of the Companies Act 2008.) Subsection (2)(a) provides for a specific action that triggers the remedy and par (b) refers to the fundamental transactions that trigger it ('triggering actions'). The greater part of s 164 lays down the procedure ('the appraisal procedure') to be followed if a dissenting shareholder wishes to employ the appraisal remedy. So this shareholder must follow this procedure if a company gives notice of a meeting at which a resolution will be considered to amend its memorandum of incorporation by altering share rights, or to dispose of all or the greater part of its assets or undertaking, or to merge or amalgamate with another company, or to enter into a scheme of arrangement.
The leak in the Chapter 6 lifeboat : inadequate regulation of business rescue practitioners may adversely affect lenders' willingness and the growth of the economyAuthor Richard BradstreetSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 195 –213 (2010)More Less
The Companies Act 71 of 2008 ('Companies Act 2008') provides in its Chapter 6 ('Chapter 6') for 'business rescue'. This procedure is intended to provide for temporary measures to facilitate the rehabilitation of financially distressed companies. During business rescue, the company's management will be under supervision and a moratorium on the rights of claimants against the company will operate. The rescue itself will be effected by a 'business rescue plan' provided for in the Act, in terms of which the company's affairs, business, property, debt and other liabilities and equity will be restructured 'in a manner that maximises the likelihood of the company continuing in existence on a solvent basis or, [if this is not possible], results in a better return for the company's creditors or shareholders than would result from the immediate liquidation of the company ...'.
Author Theo SteynSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 230 –258 (2010)More Less
In an information-driven era, taxpayers conducting business electronically realise that they face not only the risk of multiple taxation but also the serious risk of new or increased taxes. Tax authorities, on the other hand, believe that their tax bases are at risk of erosion because of new difficulties in administration and enforcement. The Organisation for Economic Cooperation and Development (OECD) has described the global spread of Value-Added Tax (VAT) as 'the most important development in taxation over the last half-century'. VAT has spread from less than ten countries in the late 1960s to more than 136 countries, where it typically accounts for one fifth of the total tax revenues.
The requirement of a causal link between the insured's breach of a term in the insurance contract and the insured's loss : an 'attractive feature' of South African insurance law? : analysesAuthor J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 259 –271 (2010)More Less
A moot question in South African insurance law and practice is whether there is any legal requirement of a causal link between an insured's breach of a term in an insurance contract and the loss giving rise to a claim by the insured under that contract. Put differently, does an insurer have to establish such a link before it may rely on such a breach in order either to avoid liability for the particular claim or, more generally, to resile from and cancel the relevant insurance contract?
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 272 –278 (2010)More Less
Here we will analyse the Consumer Protection Act of 68 of 2008 (CPA) to see which of its provisions govern transactions that fall within the National Credit Act 34 of 2005 (NCA).We will do so by examining s 5(2)(d) of the CPA, which excludes transactions that constitute credit agreements from the ambit of the CPA, and then by considering which provisions of the CPA this exclusion would affect.
'Till age do us part' : an automatically unfair dismissal based on an employee's age : Datt v Gunnebo Industries (Pty) Ltd : case commentsAuthor M.E. ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 279 –286 (2010)More Less
A dismissal is automatically unfair if the employer unfairly discriminates against an employee on the basis of any of the grounds listed in s 187(1)(f) of the Labour Relations Act 66 of 1995 (LRA). In other words, the employer cannot raise a defence for such a dismissal. This is a form of dismissal that cannot be categorised as misconduct, incapacity or a dismissal based on operational requirements of a business. But s 187(2)(b) provides an 'escape clause' stating that :
'(2) Despite subsection (1)(f)-
(b) a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.'
This exception has proved problematic, for it does not apply in all circumstances. This was illustrated in Datt v Gunnebo Industries (Pty) Ltd ( 5 BLLR 449 (LC) (Datt)), where, after an employee reached the normal or agreed retirement age, his contract was extended to an unspecified date but later terminated unilaterally by the employer because of the employee's age. The employee then challenged his dismissal on the ground that it was an automatically unfair dismissal.
Here I will interpret s 187(2)(b) and evaluate the Court's decision.
Passing off by the seller of a business, the passing-off action, and the right to the distinctive mark and the right to goodwill : Incledon Cape (Pty) Ltd v DPI Plastics (Pty) Ltd : case commentsAuthor J. NeethlingSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 287 –293 (2010)More Less
The facts of Incledon Cape (Pty) Ltd v DPI Plastics (Pty) Ltd ( JOL 24748 (WCC) (Incledon)) were briefly as follows. The respondent sold its business, Incledon Cape, to the applicant in 2001. It remained a direct competitor of the applicant under the name DPI Phumela as it was entitled to do. After five years the respondent renamed its business Incledon DPI, intending to trade under a style of business similar to that which was sold. The applicant sought an interdict restraining the respondent from passing off its business as that of the applicant, or as being associated with the applicant in the course of trade by using the trade name, mark and trading style Incledon or any derivative thereof.
Author Sanette NelSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 360 –387 (2010)More Less
With its worldwide, instantaneous reach, the Internet has transformed the manner in which online users can communicate with each other and view information. However, it has also provided a platform for employees to defame their employers and for individuals to post false information on financial bulletin boards or stock-related chat rooms, often referred to as corporate cybersmear, which can cause real damage to a corporation and be potentially devastating to its stock value. No company wants to learn that its good name or that of a key employee is being attacked by unknown parties on the Internet. Today, many public and private companies face varied threats from individuals using the Internet in ways that harm these businesses or their management.