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- Volume 25, Issue 4, 2013
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 25, Issue 4, 2013
Volume 25, Issue 4, 2013
Author Anneli LoubserSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 437 –457 (2013)More Less
When Don Quixote set off on his quest to slay the 'monstrous giants', he did so with the best possible intentions. However, it was clear - even to his faithful squire, Sancho Panza - that this quest was not going to end well, mainly because the giants were not giants at all, but merely windmills: big, sturdy windmills performing a useful and necessary function in the community. It was only in Don Quixote's imagination that the harmless windmills appeared to be enemies that had to be fought and eliminated. This brings me to the question addressed in this article: is South Africa's quest for an effective and successful corporate rescue procedure to fight or even replace company liquidations perhaps destined to remain largely unsuccessful because we are using it to fight something that we only imagine to be an enemy?
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 458 –491 (2013)More Less
A review of the regulation of financial markets in South Africa has culminated in a new Financial Markets Act 19 of 2012 (FMA), which replaced the Securities Services Act 36 of 2004 (SSA) with effect from 3 June 2013. No major new policy issues were identified in this review, but the idea was to expand the implementation of existing policy. A new Act was preferred over complex amendments to the SSA, to enhance legal certainty and simplicity.
Author Johann De JagerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 492 –512 (2013)More Less
The first part of this article appeared in (2013) 25 SA Merc LJ 342-361.
The global financial crisis, which started in about August 2007 and appears to have peaked in September 2008, could be regarded as a phase of the evolution of financial markets under the radical financial deregulation process that began in the late 1970s, predominantly in overseas countries.
Author Susan ScottSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 513 –533 (2013)More Less
At the end of a long and rewarding career in academia, I wish to reflect on one of my favourite topics, security cession, in the light of three significant decisions on the issue. I have consistently researched this fascinating topic since completing my doctoral thesis on the law of cession in South Africa in 1977, and I intend continuing to do so in my retirement. As this is my farewell lecture to you, colleagues, I feel free to speak my mind on issues which are close to my heart and which over the years have shaped my legal thinking. I also take the liberty of making some observations of a more personal nature. In this overview of a period stretching roughly over a hundred years, I briefly relate the historical background to a recent crucial judgment on the issue, Grobler v Oosthuizen, compare three judgments, and draw some conclusions. The judgments that I compare are National Bank of SA Ltd v Cohen's Trustee, Grobler v Oosthuizen, and Vanden Avenne-Ooigem v Landbouwkrediet en andere - a recent decision of the Belgian appeal court (Hof van Cassatie). I utilise this comparison to state my views briefly on aspects of South African law such as the value and relevance of Latin, Roman law, legal history and comparative law; on case law as a source of law; on the tension between the judiciary and academia (the bench and the chair); and the interaction between theory and practice.
Determining the place of supply or the place of use and consumption of imported services for Value-Added Tax purposes : some lessons for South Africa from the European UnionAuthor S.P. Van ZylSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 534 –554 (2013)More Less
The Value-Added Tax Act does not provide for specific place-of-supply-rules. Where these rules have been incorporated into the Act, they have been couched in vague general terms not designed to meet the requirements of an electronic era. In terms of section 7(1)(c) of the VAT Act read with the definition of 'imported services' in section 1, VAT must be levied and accounted for on imported services in so far as the services are 'utilised and consumed' in the Republic.
Pledge of movables under the National Credit Act : secured loans, pawn transactions and summary execution clausesAuthor Reghard BritsSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 555 –577 (2013)More Less
A summary execution (parate executie) clause can be defined, in the words of Scott, as a provision 'in a pledge contract to the effect that the creditor may on default by the debtor sell the pledged article without recourse to a court of law'. The position at common law regarding the validity of summary execution clauses in pledge agreements was set out in Osry v Hirsch, Loubser & Co Ltd.
'You break, you pay' : pension benefits deductions for damage caused to the employer by the employee : analysisAuthor M.E. ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 578 –588 (2013)More Less
Several provisions of the Pension Funds Act 24 of 1956 (PFA) protect pension benefits. Thus section 37A prohibits the reduction, transfer, cession, pledge, hypothecation, and attachment of benefits or the right to benefits, except to the extent permitted by the PFA itself, the Income Tax Act 58 of 1962, and the Maintenance Act 99 of 1998. Once a benefit is paid out, it no longer has the status of a benefit (see Ehlers v Nedcor Defined Contribution Provident Fund and Another  4 BPLR 1825 (PFA) para 15) and loses the protection provided by section 37A (see Government Employees Pension Fund v Naidoo and Another 2006 (6) SA 304 (SCA)). Furthermore, section 37B of the PFA protects pension benefits against creditors where the member becomes insolvent; while section 37C protects pension benefits by stating that they do not form part of the estate of the deceased member (see Mashazi v African Products Retirement Benefit Provident Fund and Another 2003 (1) SA 629 (W) 632H-J). The reason behind this protection is that pension benefits should be used to provide benefits for members on their retirement and for dependants on the member's death. Section 37C serves a social function because it relieves the state of the burden of providing social security to its citizens (see Lisa Shrosbree 'To what extent does section 37D of the Pension Funds Act protect employers from dishonest conduct by their employees?' (2005) 26 ILJ 17 at 24). A benefit is defined by section 1 of the PFA as 'any amount payable to a member or beneficiary in terms of the rules of [the] fund' (see also National Tertiary Retirement Fund v Registrar of Pension Funds 2009 (5) SA 366 (SCA) paras 22-3).
The use of stolen funds to discharge a debt and enrichment : Absa Bank Ltd v Lombard Insurance Co Ltd : case noteAuthor Chris PretoriusSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 589 –605 (2013)More Less
The decision in Absa Bank Ltd v Lombard Insurance Co Ltd 2012 (6) SA 569 (SCA) (Lombard) deals with the contentious situation of whether a bank may appropriate stolen funds received from its client to discharge the debts of the client towards the bank. Generally, the true owner of property that has been stolen or misappropriated by way of fraud may recover it from a recipient other than the fraudster with the rei vindicatio or an enrichment action where ownership has passed. But in Lombard the Supreme Court of Appeal found that a bank is not unjustifiably enriched when in good faith it retains money to discharge the debts of its client towards it, even though the client obtained the funds through fraud or theft. This note analyses some of the implications of this decision for the law of unjustified enrichment and the extinguishing of obligations.
When ancestors call an employee : Kievits Kroon Country Estate (Pty) Ltd v Johanna Mmoledi And Others : case noteSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 606 –618 (2013)More Less
Once in a while, even the most industrious employee will fall sick and not be able to honour the contractual obligations owed to the employer. Sickness is something over which human beings do not have control. Sickness and its treatment are culturally dependent. South Africa is a multicultural society. Not all people in this country understand sickness in the same way; let alone how to treat it. The diverse views on what sickness is and how to treat it will inevitably come to the fore in the workplace, which in our view constitutes a microcosm of South Africa's multicultural society. Inevitably, not all the challenges that arise in a multicultural society will have solutions that fall within the legislative regulatory environment. In the absence of this regulatory framework, a response to such challenges will largely depend on the cultural sensitivity of the particular employer.
Patent exhaustion, self-replicating inventions, and farmers' rights : reflections on Bowman v Monsanto Co et al : case noteSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 619 –625 (2013)More Less
Since the 1980s, Monsanto has been an active participant and innovator in the field of agricultural biotechnology. The decision by the Supreme Court of the United States in Vernon Hugh Bowman v Monsanto Company et al 569 US (2013) (Bowman) concerns patents issued to Monsanto for genetically engineered soybean seeds, called 'Roundup Ready'. (All page references in this case note are to the slip opinion, available at www.supremecourt.gov/opinions/12pdf/11-796_c07d.pdf, last accessed on 20 November 2013.) Roundup Ready soybean seeds can survive exposure to glyphosate (N-phosophonomethylglysine), an ingredient found in many herbicides. Monsanto itself produces such a herbicide, called 'Roundup'. Farmers benefit from this tolerance to glyphosate, most obviously in that they can kill weeds in their crops by using herbicides that contain glyphosate, without ruining their crops.