- A-Z Publications
- SA Mercantile Law Journal = SA Tydskrif vir Handelsreg
- Previous Issues
- Volume 25, Issue 3, 2013
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 25, Issue 3, 2013
Volume 25, Issue 3, 2013
Author Stephanie LuizSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 267 –300 (2013)More Less
The issue of excessive executive remuneration does not go away. Whether it caused the financial crises or simply contributed to it, this remuneration became the focus of attention after the economic meltdown caused by the banking crisis a few years ago. It always raises its head when there is talk about cutbacks and lay-offs of lower-level employees. People get angry when they see large sums of money being paid to executives, especially when in some instances the company has not performed well. The growing gap between the levels of executive remuneration and the remuneration of the average worker is another issue that heightens the levels of outrage.
When companies are harmed by their own directors : the defects in the statutory derivative action and the cures (Part 2)Author Maleka Femida CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 301 –322 (2013)More Less
Until the Act is amended (or failing amendment), the courts will have to engage more intimately with the business judgment rule. As explained above (in part 1 of this article), the business judgment rule is incorporated, in modified form, in the derivative action through the third limb of the rebuttable presumption. Paragraphs IV and V of the present article focus on the application of the business judgment rule and the rebuttable presumption in the context of derivative actions.
The interface between competition and constitutional law : integrating constitutional norms into South African competition law proceedingsAuthor Phumudzo S. MunyaiSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 323 –341 (2013)More Less
Since the Competition Act (the Act) came into force, competition law has become one of the most important areas of compliance for South African companies. Companies must now carefully consider the Act in a variety of contexts, such as when formulating their business strategies and dealing with customers and other businesses, whether associates or rivals. The prominent place held by the Act in companies' compliance priorities has been enhanced by the widely reported works of competition authorities in recent years during which several major competition transgressions in critical markets were uncovered and successfully prosecuted.
Author Johann De JagerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 342 –361 (2013)More Less
Since the early twentieth century, the South African Reserve Bank ('SARB' or 'Bank'), a creature of statute, has functioned as the central bank of the Republic of South Africa (RSA). In this capacity, it has served and been subjected to the ever-changing needs and demands of the financial system in the RSA. These circumstances require a measure of flexibility, since the Bank needs to grow and change like a living organism in response to the needs and demands of the financial system and the economy it serves. This process of continuous evolution in response to the needs and demands of the financial system in the RSA is inevitable in order to ensure and maintain broadly based public support for the operations of the Bank. It is similar to other central banks that have evolved for centuries in matters such as their assigned tasks, their relationships to their respective governments, their interaction with financial markets, and their internal management and decision-making processes.
Overselling and overbooking in terms of the Consumer Protection Act 68 of 2008 : a comparison with Australian law : analysesAuthor Philip N. StoopSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 362 –376 (2013)More Less
In layman's language, overselling and overbooking is the sale of goods or services in excess of their actual capacity. Unfortunately, this is a common practice in many industries locally and internationally. Many jurisdictions have adopted regulations protecting consumers against overbooking and overselling of flight tickets (see, for example, European Council Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the event of being denied boarding and of cancellation or long delay of flights (available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:046:0001:0007:EN:PDF, accessed on 1 July 2013). In practice, overselling and overbooking usually occurs intentionally as a strategy where suppliers expect that some consumers will not consume all the goods or services they are entitled to, or that some consumers will cancel their bookings. This ensures that all available goods and services will be used, resulting in the maximum return on investment. Often, though, consumers do not receive what they are entitled to.
The unreasonable refusal of consent orders by the National Consumer Tribunal under the National Credit Act : Barnes v ABSA Bank Ltd and Others confirming Motitsoe v Standard Bank Ltd : case noteAuthor Sieg EiselenSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 377 –386 (2013)More Less
The National Credit Act 34 of 2005 (NCA) has had a major impact on banking practice and the protection of consumers. More than 100 reported cases, many of them conflicting, and as many academic comments on the cases or journal articles, bear some testimony to this fact. Nine cases have already reached the Supreme Court of Appeal, and two cases have made it all the way to the Constitutional Court. This is partly because the NCA is poorly drafted in many respects (Nedbank Ltd and Others v National Credit Regulator and Another 2011 (3) SA 581 (SCA) para 2), its uncertainties and gaps leaving credit providers and consumers to flounder in many instances. This is particularly unfortunate for all the various stakeholders under the Consumer Protection Act 68 of 2008 - consumers seeking advice or redress, credit counsellors giving advice and assistance, the National Consumer Regulator and its staff, and the staff of credit providers that deal directly with consumers.
The exit tax consequences of the migration of companies from South Africa : Commissioner for the South African Revenue Service v Tradehold Ltd : case noteAuthor Liezel G. ClassenSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 387 –403 (2013)More Less
The recent emergence of global markets, e-commerce and cross-border corporate structures has caused many companies to revise their strategies to enhance trade. A strong international presence and a multinational structure have become essential to achieving commercial success and worthwhile profit margins, and to attracting suitable investors. In order to improve competition and create an international profile, company migration to other tax jurisdictions is necessary and can be achieved with relative administrative ease by South African companies.
Construction of demand guarantees gone awry : Minister of Transport and Public Works v Zanbuild Construction : case noteAuthor Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 404 –417 (2013)More Less
The term 'construction guarantee' is generally used to describe a primary (independent) undertaking given by a guarantor (often a bank) to a third party (beneficiary) in respect of obligations of a principal (bank's customer) to that third party (beneficiary). The guarantor of this type of undertaking promises or gives a primary (independent) or direct undertaking to perform in accordance with the guarantee, irrespective of whether or not the principal's (customer's) obligation is enforceable. However, in Minister of Transport and Public Works, Western Cape, and Another v Zanbuild Construction (Pty) Ltd and Another 2011 (5) SA 528 (SCA), a case involving 'two construction guarantees' - one for R1 181 104, 80 and the other for R1 106 500 - the Supreme Court of Appeal illustrated that it is not the name or label (title or heading) that is given to a payment obligation or undertaking (instrument) that determines whether it is accessory or independent in nature, but rather its substance and construction that does.
Failure to obey employer's lawful and reasonable instruction : operational perspective in the case of a dismissal : Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd : case noteAuthor Tukishi ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 418 –435 (2013)More Less
The duties of an employee at common law include acting in good faith, putting one's services (labour potential) and time at the employer's disposal, and following all the latter's lawful and reasonable instructions. Although it might be easy to determine whether the employer's instruction to an employee is lawful, it might still be difficult, depending on the circumstances of each case, to determine whether the instruction is reasonable.
Employees who fail to obey lawful and reasonable instructions of their employers may be charged with 'insubordination', which if serious can even lead to a dismissal. Insubordination may result from a deliberate disregard of authority without valid reasons. Thus, what might look like an act of insubordination might actually not be, should the employee's reasons for not obeying the employer's instruction show that the employee's conduct is justifiable, considering the circumstances that prevailed at the time the instruction was issued.