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- Volume 24, Issue 1, 2012
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 24, Issue 1, 2012
Volume 24, Issue 1, 2012
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 1 –15 (2012)More Less
The Consumer Protection Act (CPA) introduced a new era of legislated and enhanced consumer rights in South Africa. One of its aims is to provide efficient protection for consumers who are subject to abuse or exploitation in the marketplace. Section 61 of the CPA provides this protection through provisions on strict product liability. These hold producers, importers, distributors and retailers liable for supplying goods that are unsafe, defective, hazardous, mechanically unsound, or accompanied by inadequate end-user instructions or warnings, without the consumer's needing to prove negligence. Section 61 increases the group of entities potentially liable in the supply chain of goods or services. As the CPA is fledgling legislation, though, some provisions may have unintended consequences. For example, it is anticipated that those caught in this widened net of liability will require protection against this risk in the form of new or additional product liability insurance. This additional insurance will potentially increase the costs of goods and services.
Author O.H. DeanSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 16 –30 (2012)More Less
A major sporting event such as the 2010 FIFA World Cup, which took place in South Africa under the auspices of Fédération Internationale de Football Association (FIFA), is a significant marketing opportunity for producers of goods and services to promote their business activities and the brands or trade marks by which they are identified. A select group of producers use the occasion by becoming sponsors of the event or licensees of the trade marks and other insignia by which the event is characterised. Becoming a sponsor or licensee is usually expensive, but those who do so obviously believe that they obtain value for what they pay in fees, since these events are always fully subscribed.
Author I. Du PlessisSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 31 –52 (2012)More Less
South Africa is a party to approximately 70 bilateral treaties for the prevention of double taxation on different types of income. Most of South Africa's treaties are based in some way on the Model Tax Convention drafted by the Organisation for Economic Co-operation and Development (OECD MTC). The OECD MTC is by far the most influential of the model tax conventions and is used widely, not only by OECD members, but also by non-OECD members (such as South Africa). It is important to note, though, that the OECD MTC is not an international treaty that is binding on its members. As a model tax convention, it is used by countries as a basis from which to negotiate tax treaties. Thus, although an actual treaty between two countries (eg, South Africa and another country) may not be worded exactly like the OECD MTC, many of the terms used in the actual treaty may adopt the wording of the model or contain its wording with some adjustments. The OECD MTC is updated every two to three years, and is accompanied by commentary drafted by the OECD.
Consumer debt relief in South Africa; lessons from America and England; and suggestions for the way forwardSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 53 –76 (2012)More Less
In Ex parte Ford and Two Similar Cases the Court, in response to the argument advanced on behalf of the applicants that they had a 'constitutional right' to the acceptance of the surrender of their estates, confirmed that the primary object of the South African Insolvency Act is to benefit creditors and not to grant debt relief to harassed debtors. The Court also pointed out that there is a consonance between the objects of the relevant provisions of the National Credit Act and the Insolvency Act, namely, 'not to deprive creditors of their claims but merely to regulate the manner and extent of their payment'.
Author Vivienne Lawack-DavidsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 77 –92 (2012)More Less
Continuing technological innovation and competition among existing banks and new market entrants has introduced a much wider array of banking products and services for retail and wholesale banking customers. These include traditional activities such as accessing financial information, obtaining loans and opening deposit accounts, as well as relatively new products and services such as electronic account payment services, personalised financial 'portals', account aggregation and business-to-business market exchanges. Mobile banking and, consequently, mobile payments, are the latest in a myriad of emerging technological innovations in the banking industry.
South Africa's is a developing economy, and one of its problems is that of the 'unbanked': a large segment of the population does not have bank accounts, and 'banking' happens through informal means. Yet recent figures show that an increasing number of South Africans have mobile phones. The recent rise in mobile banking, particularly by means of mobile phones, thus has important legal and regulatory implications. In this analysis, I shall examine the legal and regulatory framework of mobile banking, and in particular, mobile payments in South Africa, highlight regulatory gaps and areas for improvement, and suggest a more flexible approach to regulation in South Africa to enhance the development of mobile payments here.
Electronic wills with an aura of authenticity : Van der Merwe v Master of the High Court and Another : case commentsAuthor Sylvia PapadopoulosSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 93 –106 (2012)More Less
We live in what has been termed 'a quicksilver technological environment'. Regardless of perceived ethical or enforcement limitations, laws have become increasingly significant in applying general principles to the electronic environment. Some people will argue that 'technology can be just as powerful as the law in constraining or regulating digital activity' (F Fitzgerald et al Internet and E-Commerce Law: Technology, Law, and Policy (2007) at 1-2).
In line with our own 'quicksilver' technological environment, Van Staden and Rautenbach convincingly argue that the formality requirements of the Wills Act 7 of 1953 for validly executing a will have not kept up with technological advances, and that there is an increasing need for this statute to provide for electronic wills. This is relevant because technology such as electronic signatures significantly reduces the possibility of fraud. By using and understanding technology, the integrity and genuineness of an electronically executed will can be ensured (André R van Staden & Christa Rautenbach 'Enkele Gedagtes oor die Behoefte aan en die Toekoms van Elektroniese Testamente' (2006) 39 De Jure 586; cf DP van der Merwe 'How Standards (such as XML) Accomplish Electronic Authentication in Web Services' (2005) 26 Obiter 665). I support this view.
A dispute in respect of a matter of mutual interest in relation to a strike : City of Johannesburg Metropolitan Municipality v SAMWU : case commentAuthor M.E. ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 107 –114 (2012)More Less
The right to strike is derived from ILO Conventions 87 of 1948 (Freedom of Association and Protection of the Right to Organise Convention) and 98 of 1949 (Right to Organise and Collective Bargaining Convention), which were both ratified by South Africa. This right is also protected by s 23(2)(c) of the Constitution of the Republic of South Africa, 1996 ('the Constitution'), stating that 'every worker has the right to strike' (see also Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 (1996 (4) SA 744 (CC); (1996) 17 ILJ 821 (CC)). It is regarded as one of the fundamental rights for employees. The Labour Relations Act 66 of 1995 ('the LRA') gives effect to the right to strike and regulates it in terms of its Chapter IV. In terms of the definition of 'strike', in order to constitute a strike the refusal to work must be for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee (see s 213 of the LRA). The strikers must therefore intend their action to remedy a grievance or resolve a dispute which relates to matters of mutual interest. A strike must involve a desire by the strikers that the employer should do or refrain from doing something. As a result, the existence and continuance of a strike depend on the existence of a grievance or dispute. If a grievance is remedied or a dispute resolved, the purpose of the strike disappears and the strike therefore terminates (see Afrox Ltd v SA Chemical Workers & others (1) (1997) 18 ILJ 399 (LC) at 406).
Modernising the 'substance over form' doctrine : Commissioner for the South African Revenue Service v NWK Ltd : case commentAuthor Thabo LegwailaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 115 –127 (2012)More Less
Taxpayers are entitled to arrange their affairs so as to remain outside the provisions of taxing statutes. However, an attempt that harbours dishonesty can always be challenged by the tax authorities, and the courts will not be deceived by the form of such a transaction. They can examine the true nature of the transaction and attach adequate tax implications to it (WT Ramsay Ltd v Inland Revenue Commissioners  AC 300; 11 ATR 752; Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530; Commissioner of Inland Revenue v Saner 1927 TPD 162; Commissioner of Customs and Excise v Randles, Brothers & Hudson Ltd 1941 AD 369; Secretary for Inland Revenue v Hartzenberg 1966 (1) SA 405 (A)). This is the essence of the doctrine of substance over form ('the doctrine').
Introduction to the Law of Property, Andre J van der Walt and Gerrit J Pienaar
Inleiding tot die Sakereg, Andre J van der Walt en Gerrit J Pienaar : book reviewsAuthor Mitzi WieseSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 128 –130 (2012)More Less
Introduction to the Law of Property sixth edition is a revised edition of the fifth edition, 2006, and includes new developments until July 2009. The first edition of this textbook was published in 1996. The textbook was written for second-year students and adapted to new curriculum developments and needs over the last thirteen years.
Author J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 131 –132 (2012)More Less
It was with great sadness that I learnt of the death, after a period of illness, of Prof ADM Forte, Professor and, from 2010, Emeritus Professor of Commercial Law in the University of Aberdeen. Prof Forte has had a long and fruitful association with both the Department of Mercantile Law in the University of South Africa and the South African Mercantile Law Journal.