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- Volume 25, Issue 2, 2013
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 25, Issue 2, 2013
Volume 25, Issue 2, 2013
Author R.G. EvansSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 119 –147 (2013)More Less
Some jurisdictions refer to the sequestration of a debtor's estate as bankruptcy, but, for the purpose of this article, insolvency and bankruptcy will refer to the same debt collection procedure. The sequestration of a debtor's estate, or insolvency, relates to what is known as a collective debt collection procedure. The individual debt collection procedure relates to the attempt by a creditor or creditors to collect their debts 'individually' prior to the sequestration of the debtor's estate.
Gradual relaxation or gradual tightening of exchange controls? A review of South Africa's obligations under Article VIII(2) of the IMF ArticlesAuthor Phumudzo S. MunyaiSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 148 –167 (2013)More Less
Since the dawn of democracy in South Africa, the policy on exchange control bandied about by the government has been one of gradual relaxation of exchange controls. If recent legal developments are anything to go by, though, it can no longer be asserted with any degree of certainty that the government intends continuing this policy of gradual relaxation. The uncertainty has become more apparent from the decisions in Couve and Another v Reddot International (Pty) Ltd and Others (Couve); Oilwell (Pty) Ltd v Protec International Ltd and Others (Oilwell) and, perhaps most worryingly, from the recent amendment to regulation 10(1)(c) of the Exchange Control Regulations (the regulations), dated 8 June 2012. The amendment to regulation 10(1)(c) has the effect that the term 'capital', for the purposes of that regulation, will now include any intellectual property right, whether registered or unregistered. The unfortunate implication of this amendment is that transfers of intellectual property rights from a South African resident to a non-resident abroad will not be allowed, unless prior Treasury approval is obtained. This result affects South Africa's obligations under the Articles of Agreement of the International Monetary Fund (IMF).
When companies are harmed by their own directors : the defects in the statutory derivative action and the cures (Part 1)Author Maleka Femida CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 168 –183 (2013)More Less
At the heart of any sophisticated system of corporate law lies the proper protection of minority shareholders. A chief safeguard for them is the statutory derivative action. A derivative action is brought on behalf of a company, to redress a wrong done to the company. In other words, the minority shareholder is seeking to protect not his own rights but the company's rights. A derivative action may be pursued on behalf of the company by a shareholder, director or prescribed officer of the company, or any other person with standing1 under the Companies Act 71 of 2008 ('the Act'), but only with the leave of the court. This judicial screening mechanism is essential, because the company itself has chosen not to sue and the institution of a derivative action would involve the company in litigation against its corporate will. The requirement of the leave of the court provides a buffer against interference by disgruntled shareholders and other stakeholders in the internal management of the company, and prevents them from improperly arrogating the management function that is vested in the board of directors.
Author Fareed MoosaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 184 –196 (2013)More Less
Section 23 of the Income Tax Act prohibits, in relation to any year of assessment, a deduction of 'the cost incurred in the maintenance of any taxpayer, his family or establishment' as well as any 'domestic or private expenses'. The cumulative effect of these prohibitions is that, for income tax purposes, it renders non-deductible such expenses as are in the nature of, for example, medical costs incurred by a taxpayer in respect of himself or his spouse or child or on behalf of any other dependant.
Trade marks for tobacco products as constitutional property : Australian plain packaging legislationAuthor Mikhalien Du BoisSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 197 –222 (2013)More Less
The South African case British American Tobacco South Africa (Pty) Ltd v Minister of Health (National Council against Smoking as Amicus Curiae) (BATSA) dealt with the interpretation of section 3(1)(a) of the Tobacco Products Control Act 83 of 1993. The Supreme Court of Appeal held that the 'promotion' of tobacco products would not be allowed under this Act. The arguments of the tobacco company were based on the right to freedom of expression afforded to advertisements and not on the property clause or trade-mark rights. None the less, the decision has led to speculation about the possible expropriation or deprivation of trade-mark rights if Parliament were to introduce plain packaging legislation for tobacco products as was recently done in Australia. In JT International SA v Commonwealth of Australia (JT International), the High Court of Australia considered the constitutional property right to trade marks for tobacco products, and the right to public health and safety requiring the plain packaging of tobacco products. The court decided that there had been no acquisition of the plaintiffs' property as meant in section 51(xxxi) of the Constitution, which guarantees just terms for compulsory acquisitions of property.
Employees' right to freedom of religion versus employers' commercial interests : a balancing act in favour of religious diversity : a decade of cases : analysesAuthor Marie McGregorSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 223 –244 (2013)More Less
Many people regard religion as central to their lives, including their activities at work. (See generally, David Bilchitz & Shaun De Freitas 'Introduction: The right to freedom of religion in South Africa and related challenges' (2012) 28 SAJHR 141; David Bilchitz & Alistair Williams 'Religion and the public sphere: Towards a model that positively recognises diversity' (2012) 28 SAJHR 146.) Moreover, it is common to encounter different religions (and, of course, different cultures, languages and social strata) in South African workplaces. And, although employees are entitled to practise their different religious beliefs in the workplace, a balance has to be struck between the right to freedom of religion, other relevant rights of co-employees, and the commercial interests of the workplace. This analysis explores the circumstances in which employees' right to freedom of religion should be reasonably accommodated and when it may be limited.
Author Stella VettoriSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 245 –254 (2013)More Less
The centrepiece of South African labour legislation is the Labour Relations Act 66 of 1995 (LRA). Its section 1 envisages the noble though ambitious purpose of the LRA as the advancement of 'economic development, social justice, labour peace and the democratisation of the workplace'. The dispute resolution system established by the LRA provides parties with easily accessible remedies. Speedy dispute resolution is core to one of the LRA's primary objects, the effective resolution of labour disputes. This is one of the ways in which the LRA seeks to advance economic development, social justice and labour peace (Chillibush Communications (Pty) Ltd v Gericke and Others (2010) 31 ILJ 1350 (LC) para 19 (Chillibush)).
The place-of-supply rules in value-added tax : Commissioner, South African Revenue Service v De Beers Consolidated Mines Ltd : case noteAuthor S.P. Van ZylSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 255 –265 (2013)More Less
The Value-Added Tax Act 89 of 1991 (VAT Act) does not provide for specific place-of-supply rules. Where these rules have been incorporated in the Act, they have been expressed in vague general terms (Charles de Wet & Riana du Plessis (2004) 'Taxation (VAT)' in Reinhardt Buys & Francis Cronjé Cyberlaw@SA II: The Law of the Internet in South Africa 2 ed (2004) 279; M Botes 'South African VAT and non-resident business' (2011) 22 International VAT Monitor 396; Gregory Johnston & Sare Pienaar 'Value-Added tax on virtual world transactions: A South African perspective' (2013) 12(1) International Business and Economic Research Journal 71, available at http://journals.cluteonline.com/index.php/IBER/article/view/7513, accessed on 12 April 2013).