- A-Z Publications
- SA Mercantile Law Journal = SA Tydskrif vir Handelsreg
- Previous Issues
- Volume 24, Issue 4, 2012
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 24, Issue 4, 2012
Volume 24, Issue 4, 2012
Author Marc CookeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 371 –384 (2012)More Less
Lord Halsbury LC, in The Ooregum Gold Mining Company of India Ltd v Roper, declared that '[a company's] capital is fixed and certain, and every creditor of the company is entitled to look to that capital as his security'. Although no longer premised on capital maintenance, it is this level of creditor and shareholder protection that the Companies Act 71 of 2008 (the Act) seeks to achieve in regulating the distributions made by companies. Such regulation is, as it rightly should be, highly regarded in the protection of company creditors as well as minority shareholders from the exploitation they may suffer as a result of mala fide distributions made by a company.
Challenges in taxing derivative financial instruments : international views and South Africa's approachAuthor Annet Wanyana OguttuSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 385 –415 (2012)More Less
Before an investment is made, taxpayers often consider the appropriate funding method since there are tax consequences that flow from the method selected. International investments are often financed by financial instruments, which are contractual rights and obligations to transfer a specific amount of money at a specific point in time. Traditionally there are two main financial instruments that have been used to finance investments: debt and equity. However, over the years, the financial industry developed hybrid financial instruments, which possess characteristics of both debt and equity. As tax authorities internationally were trying to cope with the taxation of hybrid financial instruments, over the last two decades, the financial markets developed yet another category of financial instruments referred to as derivatives.
Not the lesser evil : amending the regulations for the resolution of domain name disputes in the '.za' domain to combat reverse domain name hijackingAuthor Eddie HurterSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 416 –423 (2012)More Less
'Cybersquatting' is 'the term most frequently used to describe the deliberate, bad faith abusive registration of a domain name in violation of rights in trade-marks or service marks'. This predatory and undesirable practice was the single most significant source of frustration and concern for trade-mark proprietors created by the exponential growth of the Internet and Internet-related commerce. By dint of necessity, to provide trade mark proprietors with an effective remedy against cybersquatting the novel concept of domain name dispute resolution was devised through the WIPO Domain Name Processes in the late 1990s. These processes resulted in the adoption of the Uniform Dispute Resolution Policy (UDRP) by the Internet Corporation for Assigned Names and Numbers (ICANN). This corporation oversees the architecture of the international domain name system (DNS), and the processes were designed as a viable alternative to jurisdictionally troublesome, expensive and lengthy court litigation. Since the adoption of the UDRP in 1999, domain name dispute resolution has matured into a notable field of theoretical discourse and practical application.
Has recent United Kingdom case law affected the interplay between 'place of effective management' and 'controlled foreign companies'? : analysisAuthor Tracy GutuzaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 424 –437 (2012)More Less
The approach to locating the 'place of effective management' as the test for the tax residency of a company in the South African context has yet to be determined, simply because the phrase is not defined in the Income Tax Act and its interpretation in the context of a company has not come before a South African court.
Will the 2012 amendments to the Labour Relations Act solve the problems with minimum service agreements in Eskom Holdings Ltd v NUM? : case commentsAuthor Karin CalitzSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 438 –448 (2012)More Less
During the past number of years some South African employees who are prohibited from striking because they perform essential services have participated in disruptive strikes (Dhaya Pillay 'Essential Services: Developing Tools for Minimum Service Agreements' (2012) 33 ILJ 801 at 801). One of the causes of this behaviour has been identified as frustration with the lack of minimum service agreements (ibid) in terms of which only certain employees are obliged to perform core functions and other employees within the wider essential service are free to strike. Only two minimum service agreements have been ratified in the 15 years since the inception of the Employment Service Commission (ESC) (ibid).
A confusion of third parties in insurance law : Hollard Insurance Co Ltd v Unitrans Fuel and Chemicals (Pty) Ltd and AnotherAuthor J. P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 449 –455 (2012)More Less
Apart from the insurer and the insured, third persons are often involved with the insurance contract. Sometimes their involvement is such that, strictly speaking, they are third parties to the contract. This involvement may be the result either of some contractual arrangement or other, or of a particular statutory measure. Examples of third persons include, on either side, an intermediary, cessionary or assignee; on the insurer's side, a reinsurer; or on the insured's side, a beneficiary or a third-party insured. When more than one third party is involved, in different capacities, things may become tricky and confusion likely. This is nicely illustrated by the decision in Hollard Insurance Company Ltd v Unitrans Fuel and Chemical (Pty) Ltd and Another ((A5052/2010) 2012 ZAGPJHC 87 (8 May 2012)).
Of liability for patent infringement, public interest, and effective patent terms : Cipla Medpro v Aventis Pharma; Aventis Pharma SA v Cipla Life SciencesAuthor Coenraad VisserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 456 –466 (2012)More Less
Cipla Medpro v Aventis Pharma (139/12); Aventis Pharma SA v Cipla Life Sciences (138/12)  ZASCA 108 (26 July 2012) concerned two appeals. The protagonists in each appeal were one or more companies within the Aventis group ('Aventis') arranged against one or more companies within the Cipla group ('Cipla'). Both appeals concern South African Patent 93/8936, registered in the name of Aventis Pharma SA, a French corporation. The patent will expire on 30 November 2013.
Blurring the dividing line between the oppression remedy and the derivative action : Kudumane Investment Holdings Ltd v Northern Cape Manganese Company (Pty) Ltd and OthersSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 24, pp 467 –472 (2012)More Less
Kudumane Investment Holdings Ltd v Northern Cape Manganese Company (Pty) Ltd and Others ( 4 All SA 203 (GSJ)) is the first reported judgment to deal with s 163 (the oppression remedy) of the Companies Act 71 of 2008 (the Act). Satchwell J does not deal directly or in much detail with the differences between s 163 of the Act and its predecessor, s 252 of the Companies Act 61 of 1973 (the previous Act). But her judgment is the first to illustrate, by implication, the much wider application of s 163 compared to s 252, specifically regarding the person(s) whose conduct results in oppression or unfair prejudice. It also compels one to consider the result requirement of s 163, and exemplifies how the interests of a company can be mistaken for those of a shareholder.