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- Volume 23, Issue 3, 2011
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 23, Issue 3, 2011
Volume 23, Issue 3, 2011
Author Irene-Marie EsserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 317 –335 (2011)More Less
According to Bakan, 'the corporation is a pathological institution, a dangerous possessor of the great power it wields over people and societies'. Its sole purpose is, according to him, to make profits, no matter what.
By contrast, the editors of the Economist have stated that the company is 'the most important organisation in the world', 'the basis for the prosperity of the West and the best hope for the future of the rest of the world'.
Companies can accordingly be good and evil, responsible and irresponsible. Whatever one's perspective of the character of a company, its activities will be scrutinized. It has to act in a socially responsible manner. Corporate social responsibility (CSR) is based upon the concept 'good citizenship'. A company has a duty to society beyond that of an ordinary citizen as a result of its power and size, and the benefits associated with its status as a separate legal entity. Bad corporate citizenship and actions based on pure (especially short-term) profit maximisation have a negative effect on a company's long-term profits.
The consumer's right to safe, good quality goods and the implied warranty of quality under Sections 55 and 56 of the Consumer Protection Act 68 of 2008Author Tjakie NaudeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 336 –351 (2011)More Less
Chapter 2 Part H of the Consumer Protection Act, 68 of 2008 ('the CPA') protects the consumer's 'right to fair value, good quality and safety'. This contribution focuses on two sections in this part of the Act, namely section 55, headed 'Consumer's right to safe, good quality goods' and section 56, headed 'Implied warranty of quality'. In the course of explaining the contents of these sections, problematic aspects will be identified. Some brief comparisons will also be drawn with the EC Consumer Sales Directive and the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law ('CESL') Reference will also be made to proposals made by the Law Commissions of England and Wales and of Scotland on consumer remedies for faulty goods.
Author Michele Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 352 –375 (2011)More Less
In 2007 it was estimated that the size of the South African consumer-credit market was some R800 billion. At the end of June 2008 it was estimated that consumers owed credit providers about R1,12 trillion in household debt. Two years later, at the end of June 2010, the total outstanding consumer credit balances (or gross debtors' book) was R1,15 trillion. The number of applications received for credit increased by 503,500 from 6,04 million in March 2010 to 6,54 million in June 2010, representing an increase of 8,34 per cent (an increase of 17,13 per cent when compared to the same period in 2009). At the end of June 2011 credit bureaux had the records of 18,84 million credit-active consumers. These statistics illustrate the sheer size of the South African consumer-credit industry and show a steady growth in the size thereof.
Motor-vehicle insurance and discrimination : a comparative analysis of the acceptability of actuarial evidenceAuthor Anthea Natalie WagenerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 376 –391 (2011)More Less
South African insurers have recently been alerted to the possibility that they may not inevitably be allowed to discriminate based on age and gender to determine insurance premiums. A recent decision of the European Court of Justice found that from 12 December 2012 the countries of the European Union will be prohibited from using gender as an insurance-rating variable. It is unknown whether a South African court would come to a similar conclusion, as this matter has not yet been decided by a South African court.
An analysis and exposition of dispute settlement forum shopping for SADC member states in the light of the suspension of the SADC TribunalAuthor Amos SaurombeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 392 –406 (2011)More Less
The Southern African Development Community ('SADC') Tribunal was suspended by the Summit Heads of State and Government in August 2010. Its reinstatement was made subject to a review of its operations. As from the 2010 suspension, the Tribunal could rule on matters already before it at the time, but it could not accept new cases until the Summit was satisfied with the findings of the review process. The review process subsequently exonerated the Tribunal by finding that it had acted within the powers it derived from the SADC Treaty and the Protocol on the Tribunal.
Author Andre ThomashausenSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 407 –419 (2011)More Less
Since 2009, export taxation for ferrochrome and ferrochrome ore has been high on the agenda of consultations between the vast majority of South African ferrochrome producers and the Department of Minerals and Energy (DMR). The industry seeks the adoption of two comprehensive government measures, in order to protect and enhance the continuing beneficiation of ferrochrome ore and exports of ferrochrome, namely: (i) a quota to be applied on chromite ore exports, restricting integrated producers to 30 per cent of their 'ore-equivalent' Ferrochrome production capacity; and (ii) a tariff or duty of $100 per ton of ore to be payable on chromite ore exported.
Contractus trinus and murabaha offshoots for usury : a theoretical and practical approach with regard to Islamic case law on home loansAuthor Nico P. SwartzSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 420 –431 (2011)More Less
In the research methodology, a text-analytical reading of contractus trinus and murabaha will be undertaken. Islamic judicature (court cases) serves as a practical forum or playground in which the influence of the financial implication of murabaha can be tested.
The objectives or hypotheses of this research is aiming at academicians, economists, bankers, financial advisors, and the like in order to enable them to make positive contributions (solutions) at policy level for financial contracts such as housing loans. This research is about the discussion of the two concepts - contractus trinus and murabaha - and their application in Islamic case law on housing loans. The question, would the Islamic model been a better alternative than the Conventional model regarding home-loans, is answered successfully in this research.
Interim relief jurisprudence in South African competition law : a critical review of the Competition Tribunal's approachAuthor Phumudzo S. MunyaiSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 432 –447 (2011)More Less
Some anti-competitive conducts are so egregious that the need to prevent their continuance becomes immediate. In crude cases where prohibited practices are alleged to have occurred and immediate relief is required, an interim order can be the speediest and the most effective of all remedies available in law. The South African Competition Act makes provision for a complainant to apply to the Competition Tribunal for an interim order in respect of the alleged prohibited practice. The implication of the word complainant is that the right to apply for an interim order under the Competition Act is exclusively reserved for someone who has already filed a complaint with the Competition Commission. And the expression prohibited practice, it is submitted, further indicates that the remedy of interim relief under the Act is only available in instances of practices prohibited under Chapter 2, like price fixing, implying that the remedy is not available in merger proceedings. Section 49C of the Competition Act gives the Competition Tribunal authority to grant an interim order to a complainant, if the requirements of section 49C(2) are met, pending the final determination of the applicant's complaint filed with the Competition Commission. Section 49C repealed the old section 59(1) of the same Act which also had similar provisions enabling a complainant to apply to the Tribunal for an interim order and for the Tribunal to grant the order if circumstances so required.
Can inaccurate benefit statements lead to pension fund liability under the South African Pension Funds Act : analysesAuthor Mtendeweka MhangoSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 448 –463 (2011)More Less
Imagine that a pension member has received inaccurate annual pension benefit statements from a pension fund for a period of more than ten years. He relies on the financial information contained in the benefits statements to plan his retirement and retire early from his pension fund (without which he would not have retired early), only to find out after his retirement that the benefit statements were inaccurate. If this member sued the pension fund, should the fund be held liable for maladministration in having sent inaccurate benefit statements to this member? This question has received conflicting rulings from the Pension Funds Adjudicator (Adjudicator) in two cases: Bona v South African Local Authority Fund & Another ( 1)  10 BPLR 2563 (PFA) and Naicker v Orion Money Purchase Pension Fund  3 BPLR 3218 (PFA).
Legal protection insurance in the context of liability insurance : possible solutions in English law? : analysesAuthor Wenette JacobsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 464 –475 (2011)More Less
Liability insurance policies in South Africa generally include the insurer's contractual duty to indemnify the insured under the insurance contract, and the insurer's contractual right to conduct the insured's defence against the third-party plaintiff, or to negotiate a settlement on behalf of the insured with the third party in the name of the insured. (See JP van Niekerk 'Liability Insurance: Successive but Overlapping 'claims-made' Policies and a Question of Quantum' (2006) 18 SA Merc LJ 382 ('Van Niekerk Liability Insurance') at 382-3 where he comments on the complex multiple relationships involved in liability insurance; and see in general as regards South African law on liability insurance, MFB Reinecke, Schalk Van der Merwe, JP van Niekerk % Peter Havenga General Principles of Insurance Law (2002) ('Reinecke et al') ¶¶ 9-10, 12, 53, 55, 63, 75, 77, 79, 100, 129, 299-380, 398, 451 and 582; Norman Atkins Are You Covered? A South African Guide to Short-term Insurance (1984) ('Atkins') 105-13; N Benetton The South African Guide to Short-term Insurance (loose-leaf) ('Benetton') at 3-60-7; Gordon and Getz on The South African Law of Insurance 4 ed (1997) by DM Davis ('Gordon and Getz') at 482-3; and Wenette Jacobs 'Liability Insurance in a Nutshell: Simplified Complexities or Complex Simplicities?'(2009) 21 SA Merc LJ 202 ('Jacobs').)
'Kylie' and the jurisdiction of the Commission for Conciliation, Mediation and Arbitration : analysesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 476 –487 (2011)More Less
The resolution of labour disputes is primarily founded on the premises that the parties to the dispute are an employer and employee respectively, and that an employment relationship was in existence when the dispute originated. However, what would the legal position on jurisdiction be if an employment relationship can indeed be proven, but the applicant's 'job' is criminally sanctioned by South African law? Would the applicant in such a matter be protected by the South African labour laws, or would the courts and tribunals refrain from assuming jurisdiction in order not to advance criminal conduct in the country, based on the common-law principle of ex turpi causa non oritur actio (the non-advancement of criminal activity by the courts)?
Author Marie McGregorSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 488 –503 (2011)More Less
South African equality laws, different to other countries such as the United States of America and the United Kingdom, do not explicitly regulate equal remuneration claims.
This note will investigate the notion of equal remuneration for the same work or work of equal value in South Africa, and, in particular, its application by and frequency before the courts.
The interpretation and application of Section 191(12) of the Labour Relations Act : Bracks NO v Rand Water : case commentsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 504 –512 (2011)More Less
In Bracks NO and Another v Rand Water and Another (2010) 31 ILJ 897 (LAC) the Labour Appeal Court ('LAC') had an opportunity to provide guidance and clarity for the proper interpretation of section 191(12) of the Labour Relations Act 66 of 1995 ('LRA'). The question to be answered was whether the Commission for Conciliation Mediation and Arbitration ('CCMA') has jurisdiction to hear a dispute concerning retrenchment of a single employee for want of compliance with procedural requirements of section 189 of the LRA.
Geographical names : has Century City changed the landscape? Century City Apartments Property Services CC v Century City Property Owners' Association : case commentsAuthor Roshana KelbrickSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 513 –520 (2011)More Less
The traditional, and still usual, approach to trade-mark litigation, in South Africa and the United Kingdom, has been based on precedent - allege infringement, find a similar decision, quote copiously from it, and then decide whether the facts of that decision are sufficiently similar to those of the case in hand to justify an order. In South Africa, United Kingdom decisions were frequently referred to as authority, as South African legislation was based on British counterparts, despite the fact that substantial differences have developed over time (CE Webster & GE Morley Webster and Page South African Law of Trade Marks 4 ed (loose-leaf service issue 14) 1-4).
'To meet is to part' : resignation by SMS constitutes notice in writing as required by the Basic Conditions of Employment Act : Mafika v SA Broadcasting Corporation Ltd : case commentsAuthor M.E. ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 521 –528 (2011)More Less
An employment contract can be terminated in different ways by either the employer or the employee. An employment contract for an indefinite period may be terminated by one party giving another notice of intention to terminate the contract (A Basson et al Essential Labour Law 5 ed (2009) 56; PAK le Roux 'Resignations - an Update: the Final, Unilateral Act of an Employee' (2010) 19(6) Contemporary Labour Law 51). A fixed-term contract may also be terminated this way, if the contract contains a provision to that effect (John Grogan Workplace Law 10 ed (2009) 68). If termination is done by the employer, it is termed dismissal (s 186(1)(a) of the Labour Relations Act 66 of 1995 ('LRA'). If termination is voluntarily done by the employee, it is termed resignation (see Bosch v Brick Centre t/a Brick Marketing  1 BALR (CCMA) at 3). If termination is involuntarily done by the employee, it is termed constructive dismissal (s 186(1)(e) of the LRA)). Section 37(4)(a) of the Basic Conditions of Employment Act 75 of 1997 ('BCEA') requires that notice of termination of an employment contract be given in writing, except when it is given by an illiterate employee.
Jurisdiction in respect of claims of extraterritorial copyright infringement : Gallo Africa v Sting Music : case commentsAuthor Coenraad VisserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 529 –532 (2011)More Less
In Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others 2010 (6) SA 329 (SCA), the appellants (the plaintiffs in the court below) alleged that they were, by assignment or as original authors, the owners of the copyright in the musical and literary works that comprise the musical Umoja. They further alleged that the defendants had infringed their copyright by performing the whole, or a part of, Umoja, by making recordings and cinematograph films of it, and by having it broadcast. The acts of infringement were alleged to have been committed in nineteen other countries, from Japan in the east to the United States of America in the west. Harms DP stressed that, in relation to these infringements, the appellants did not rely only on the South African Copyright Act 98 of 1978. Instead, they framed their claims with reference to each of these countries (para ; see the example given by the judge with reference to the United Kingdom (ibid)).
Sex workers and the right to fair labour practices : Kylie v Commissioner for Conciliation Mediation and Arbitration : case commentsAuthor Linda MuswakaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 23, pp 533 –541 (2011)More Less
In South Africa, sex work is criminalised by section 20(1A)(a) of the Sexual Offences Act 23 of 1957, as amended by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This provision states that '[a]ny person 18 years or older who ... has unlawful carnal intercourse, or commits an act of indecency, with any other person for reward ... shall be guilty of an offence'. Archaically, section 1 of the Sexual Offences Act still defines 'unlawful carnal intercourse' as 'carnal intercourse other than between husband and wife'. The Sexual Offences Act has been amended to explicitly include penalties for people (the clients) who use the services of sex workers.