- A-Z Publications
- SA Mercantile Law Journal = SA Tydskrif vir Handelsreg
- Previous Issues
- Volume 24, Issue 3, 2012
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 24, Issue 3, 2012
Volume 24, Issue 3, 2012
Author Charnelle Van der BijlSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 257 –272 (2012)More Less
Account aggregation is a relatively new form of technological advancement that enables consumers to consolidate information not only between accounts on the Internet, but also across financial institutions. This function acts like a 'financial dashboard': customers can view their financial information from multiple sources rather than having to flit between one Internet account and another. In other words, web aggregation involves the 'process of gathering information from multiple websites and delivering it to a consumer from a single website'. Aggregation services can take the form of an online viewing service, where customers are able to view their accounts from multiple sources, or they may also provide electronic fund transfer services.
Die aanspreeklikheid van 'n insolvente maatskappy en die likwidateur van 'n insolvente maatskappy vir vergoeding as gevolg van omgewingsbenadelingAuthor A.L. StanderSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 273 –297 (2012)More Less
With regard to environmental harm by an insolvent company, the concern with the liquidator of the insolvent company is usually the extent to which he or she shall personally be held liable for environmental harm caused while operating the business of the company in performing the duty to liquidate the business properly. It is necessary to distinguish between damage that occurred prior to the winding-up by the harmful activity itself and damage that occurred during the winding-up. Damage during liquidation could again result from activities prior to liquidation or damage flowing from the activities of the liquidator while operating the business of the insolvent company with a view to the proper liquidation and settlement of the business and affairs of the company. The liability for damages by the harmful activity itself should also be distinguished from the reimbursement or payment of costs under the liability to take certain steps such as cleaning up, remediation, prevention and limiting of any environmental damage. Again, it can be a failure by the company before the liquidation or a failure by the liquidator after the liquidation. It is submitted that the liability of the liquidator will probably depend on the degree of skill that the courts believe will reasonably be expected from the liquidator. The answer lies in the liquidator's duty of care. It is possible that, unlike the trend in English law, the courts will not expect the same level of skill or knowledge as expected from company management. The liquidator will not be held liable unless the harm resulting from an act or an omission is unreasonable, even for a liquidator. However, in each case the courts will require appropriate management skills. It is therefore recommended that the liquidator ensures that he or she has adequate 'tools' in place for performing environmental obligations, with duties delegated to appropriate persons.
Author Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 298 –322 (2012)More Less
The National Credit Act provides full protection to natural persons who stood surety for credit agreements entered into on or after 1 June 2007 by other natural persons, stokvels, or trusts where there are only one or two individual trustees and that are governed by the Act, irrespective of the amounts involved. The Act provides limited protection to natural persons who have provided surety for small and intermediate credit agreements concluded with certain juristic persons, as defined in s 1 of the Act, whose asset value or annual turnover, together with the combined asset value or annual turnover of all related juristic persons, at the time the agreement is made is below the threshold value determined by the Minister in terms of s 7(1) of the Act (currently set at R1 million) (considered to be 'small juristic persons'). However, a natural person who stood surety for a credit agreement that constitutes a large credit agreement (eg, a mortgage agreement) in terms of which the consumer (ie, the principal debtor) is one of these small juristic persons (ie, whose asset value or annual turnover at the time the agreement is made is below R1 million) will not have any protection in terms of the National Credit Act. Nor does the Act protect a natural person who provided surety for a credit agreement concluded by a juristic person, as defined in s 1 of the Act, whose asset value or annual turnover, together with the combined asset value or annual turnover of all related juristic persons, at the time the agreement is made, is equal to or exceeds R1 million (considered to be a 'large juristic person'), since such an agreement (principal obligation) is considered to be totally exempt from the provisions of the Act.
Security cessions and beneficiary appointments : a belated but necessary footnote to Nienaber's analysis?Author Susan ScottSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 323 –337 (2012)More Less
This is the conclusion of a previous Ombudsman for Long-term Insurance in an interesting and stimulating article dealing with security cessions and life insurance policies. I thoroughly agree with Nienaber on the truth of the first sentence, although this conclusion is not a revelation that comes as a surprise. The rest of his conclusion (in fact, the whole article), however, leaves me with a sense of unease. It compels me to mount my favourite hobby-horse: the role of academics in this development - in legal development in South Africa in general.
Author Fareed MoosaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 338 –345 (2012)More Less
The controversial Tax Administration Act (TAA) was passed by the National Assembly in November 2011 and came into effect on 1 October 2012. It is designed to align into a single piece of legislation the administration of various tax Acts and promote their efficient and effective administration. It imposes obligations on a wide range of persons - taxpayers, non-taxpayers, representative taxpayers, registered tax practitioners, withholding agents, a responsible third party, shareholders, employers, vendors, and, generally, any person in possession or control of information or relevant material pertaining to a taxpayer's affairs. In certain defined instances, ss 62 and 63 of the TAA empower the South African Revenue Service (SARS) to conduct search and seizure operations without a warrant. This it can do with the assistance of the South African Police Service (SAPS). The TAA makes no provision for judicial or other oversight relating to the exercise of this power vested in the hands of an administrative functionary within an organ of state.
Author A.H. DekkerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 346 –354 (2012)More Less
The concept of a constructive dismissal was imported into our law from English law. Initially, the employee's resignation because of the employer's wrongdoing was compared with the common-law termination of a contract by one party because of the other's wrongful repudiation (Woods v WM Car Services (Peterborough)  IRLR 347 (EAT); Mafomane v Rustenburg Platinum Mines  10 BLLR 999 (LC) in par 47).
Author Kathy IdensohnSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 355 –360 (2012)More Less
There has been much commentary on, and criticism of, the common-law rule in Foss v Harbottle ('the rule') and the restrictions it imposed on the bringing of derivative actions on behalf of companies. (See, eg, KW Wedderburn 'Shareholders' Rights and the Rule in Foss v. Harbottle' (1957) Cambridge LJ 93, (1958) Cambridge LJ 93; OC Schreiner 'The Shareholder's Derivative Action - A Comparative Study of Procedures' (1979) 96 SALJ 203; MS Blackman 'Companies' in: WA Joubert (founding editor) The Law of South Africa vol 4, part 1 First Reissue (1997) in pars 189-216. For a useful overview of English case law on the rule, see the judgment of Vinelott J at first instance in Prudential Assurance Co Ltd v Newman Industries Ltd (No. 2)  Ch 257.)
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 361 –370 (2012)More Less
Now that the National Credit Act 34 of 2005 (NCA) has been in force for several years, one would generally expect it to be quite easy to ascertain whether a contract is a credit agreement under this statute. But in practice there are still some uncertainties about the applicability of the NCA, among other things, to what are called 'rental agreements'. These contracts are often used in industries such as engineering, office automation and information technology. We have examined a few practical examples to identify and analyse the nature of typical 'rental agreements'. In this note, a practical example containing the clauses generally used in this context is analysed to determine whether the NCA applies to these 'rental agreements'.