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- Volume 23, Issue 1, 2011
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 23, Issue 1, 2011
Volume 23, Issue 1, 2011
Author Thabo LegwailaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 1 –15 (2011)More Less
The South African government announced in the 2010 Budget Review that it intends to promote South Africa as a gateway to investment into Africa. During the years 2010 and 2011, government intends to undertake investigations as to what steps it should take in order 'to enhance our attractiveness as a viable and effective location from which businesses can extend their African operations'. It is envisioned that some '[r]elief from exchange control and taxation for various types of headquarter companies located in South Africa will be considered'.
Curbing tax avoidance - investments in offshore 'protected cell companies and cell trusts' : the American and British approach - what is South Africa's view?Author Annet Wanyana OguttuSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 16 –44 (2011)More Less
In order to minimise their global tax exposure, taxpayers active in international trade often get involved in tax-avoidance schemes. The ensuing fiscal advantages are often achieved when investments are made in low-tax or tax-haven jurisdictions. Most of the tax-planning schemes used to avoid taxes, employ some kind of company or trust structure. One such structure that appears relatively new on the offshore-investment market, and whose characteristics and diverse use baffle many tax authorities, is the 'protected cell company' (the 'PCC'). This structure can sometimes be in a trust form - 'protected cell trusts', commonly referred to as unit trusts. In 2009, the Tax Justice NetWork, released a report in which it noted that investments in PCCs contributed to the global financial crisis that begun in 2007.
The conundrum of the non-compulsory compulsory notice in terms of Section 129(1)(a) of the National Credit ActSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 45 –63 (2011)More Less
Section 129(1)(a) of the National Credit Act1 plays a pivotal role in the enforcement of credit agreements. Section 129(1)(b), read together with ss 130(1) and 130(3)(a) of the Act, essentially compels a credit provider to deliver a notice in terms of s 129(1)(a) to the consumer prior to enforcement of a credit agreement to which the NCA applies. These provisions are cast in mandatory terms.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 64 –81 (2011)More Less
It is trite that after cash, the electronic transfer of funds is fast becoming the most popular method of paying debts. By way of a general background to the present discussion, it is necessary to distinguish between an electronic transfer of funds in the wide sense, on the one hand, and, incorporated in it, an electronic transfer of funds in the narrow sense, on the other hand.
Author Brenda GrantSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 82 –87 (2011)More Less
In the context of the employment relationship, the courts have had ample opportunity to validate the protection of employees against sex and gender discrimination. This has usually been in the context of maternity protection (see, eg, Wallace v Du Toit  8 BLLR 757, (2006) 27 ILJ 1754 (LC) and Mashava v Cuzen & Woods Attorneys  6 BLLR 691, (2000) 21 ILJ 402 (LC)) and sexual harassment (see, eg, Ntsabo v Real Security CC  1 BLLR 58, (2003) 24 ILJ 234 (LC) and Media 24 Ltd & Another v Grobler  7 BLLR 649, (2005) 20 ILJ 1007 (SCA)).
Indemnification and aspects of directors' and officers' liability insurance in terms of Section 78 of the Companies Act 71 of 2008 : analysisAuthor Mildred BekinkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 88 –105 (2011)More Less
It is trite law that the directors of a company stand in a unique relationship to that company. Not only are their rights and duties primarily determined by their contracts, if any, with the company, but are they also obliged to act in accordance with any applicable statute, the common law and company's constitution and (see HS Cilliers, ML Benade, JJ Henning, JJ du Plessis, PA Delport, L de Koker & JT Pretorius Corporate Law 3ed (2000) (hereafter 'Celliers et al') at 139-48 and 160). Significant discretionary powers are conferred upon directors and, as such, they have a fundamental influence on the success or failure of a company. This is particularly true of the modern corporate environment, where directors play an active role in the management of a company.
Accommodating religious or cultural beliefs in the workplace : Kieviets Kroon Country Estate v CCMA; Dlamini v Green Four Security; POPCRU v Department of Correctional Services : case notesAuthor Alan RycroftSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 106 –113 (2011)More Less
While litigation about Islamic head-scarves continues to occupy European and Turkish courts, South African courts are grappling to formulate a coherent jurisprudence on the rights of employees with other religious or cultural beliefs which conflict with employer regulations or operational requirements. The intensity of the head-scarf debate is in large measure about national identity (see P Lenta 'Muslim Headscarves in the Workplace and in Schools' (2007) 124 SALJ 296). In contrast, democratic South Africa's national identity is founded, as it says in the Preamble to the Constitution, on the principle that we are 'united in our diversity'. Is this diversity reflected in judicial decisions? What are the justifications for limiting the s 31 rights 'to enjoy their culture, practise their religion'?
The premier, the member of cabinet, and the commissioner : an evaluation of Income Tax Case No 1837 : case notesAuthor Arthur Van CollerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 114 –122 (2011)More Less
In Tax Case No 1837 (71 SATC 177 (2009)), Van Reenen J delivered a judgment in the Cape Tax Court in an appeal by a taxpayer against an assessment by the Commissioner of the South African Revenue Service. This assessment disallowed a claimed deduction from income of legal costs incurred by the taxpayer in resisting a civil claim of defamation.
The incorrect understanding of an incidental credit agreement leads to undesirable consequences : JMV Textiles Ltd v De Chalain Spareinvest : case notesAuthor Sarah-Lynn TennantSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 123 –134 (2011)More Less
The National Credit Act 34 of 2005 (the 'NCA'), which took effect on 1 June 2007, applies to 'every credit agreement' (s 4(1)), being a credit facility (s 8(1)(a)), credit transaction (s 8(1)(b)), credit guarantee (s 8(1)(c)), any combination of the above (s 8(1)(d)), and an altruistic agreement (ss 10 and 11). With regards to a 'credit transaction', s 8(4)(b) of the NCA states that an incidental credit agreement is a form of a credit transaction. From this it is clear that an incidental credit agreement is a credit transaction which, in turn, is a credit agreement under the NCA.
The insured's duties of disclosure : delictual and contractual; before the conclusion and during the currency of the insurance contract : Bruwer v Nova Risk Partners Ltd : case notesAuthor J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 135 –144 (2011)More Less
It is well known that as our insurance law currently stands, an insured bears a duty of disclosing to the insurer certain information prior to the conclusion or the renewal of his insurance contract. By reason of its pre-contractual nature, it is clear, this duty is not contractual but, probably, delictual in nature; in appropriate cases a breach of the duty amounts to the commission of the delict of misrepresentation. (There are also other - less satisfactory - explanations, such as that it is an ex lege duty (see Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A)) or that it derives from an underlying and generally applicable duty of good faith.)
Principles of Contemporary Corporate Governance, Jean Jacques du Plessis, Anil Hargovan & Mirko Bagaric : book reviewAuthor Irene-Marie EsserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 145 –146 (2011)More Less
Corporate governance is often described as a vague concept, with loose definitions and varied meanings. A book dealing with the topic therefore has to be very clear and practical. The work under review provides a concise presentation of vital topics relating to the core principles of corporate governance within the private sector. It focuses on the Australian position, but includes specific chapters addressing corporate-governance debates in several other jurisdictions. The OECD Principles of Corporate Governance are also included. The book is aimed at corporate regulators, management, judicial officers, lawyers, accountants, academics and students.
Government Liability : South Africa and the Commonwealth, Chuks Okpaluba and Patrick Osode : book reviewAuthor Maite ModibaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 146 –147 (2011)More Less
The law of government liability is complicated because there are no hard and fast rules the courts follow to decide whether liability should or should not be imposed upon the government. Yet this is an important and interesting area of the law. Prior to 1994, the judiciary used public-interest or public-policy disapproval of liability as a deciding factor that dominated the common law of government liability.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 148 –149 (2011)More Less
Peter Ramsden had a prolific year during 2009 when two new legal texts were published under his name. The first was his revised sixth edition of the stalwart McKenzie's The Law of Building and Engineering Contracts and Arbitration. Hot on the its heels followed Ramsden's new text on arbitration, The Law of Arbitration. South African and International Arbitration.