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- Volume 26, Issue 1, 2014
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 26, Issue 1, 2014
Volume 26, Issue 1, 2014
Costs orders, obstacles and barriers to the derivative action under section 165 of the Companies Act 71 of 2008 (part 1)Author Maleka Femida CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 1 –23 (2014)More Less
The greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. The chief barriers are, first, the risk of the minority shareholder being burdened with liability for the costs of the derivative proceedings and, secondly, the lack of access to corporate information. As long ago as 1970 the Van Wyk De Vries Commission of Inquiry into the Companies Act1 declared that one of the worst anomalies of the derivative action is the risk of the plaintiff shareholder having to bear the costs of an action in which he is 'in effect not the real plaintiff'. In the light of this progressive and enlightened finding, it is disappointing that the legislature has failed to adopt a more resolute approach under the Companies Act 71 of 2008 ('the Act') to the vexed issue of costs. If the new liberalised derivative action is to be a success, the courts must face this obstacle head on. It is vital that the remedy is not unwittingly suffocated by the courts, through the imposition of adverse costs orders on shareholder litigants.
Author Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 24 –59 (2014)More Less
'It is universally accepted that moneylending transactions are susceptible to abuse mainly because borrowers are usually in a much weaker position than lenders. Moneylenders can therefore easily exploit this vulnerability of the borrower, and some have been guilty of serious impropriety so frequently as to give rise to considerable concern. Moneylending transactions are therefore legitimately subject to legislative control in most parts of the world.' South Africa is no exception, and moneylending to consumers is strictly regulated by the National Credit Act (NCA). The Act applies, with only a few exclusions, to all consumer credit agreements concluded between parties dealing at arm's length and made, or having an effect within, South Africa.
Author Marie McGregorSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 60 –92 (2014)More Less
In South Africa, affirmative action is part of national policy to redress the effects of centuries of systemic discrimination against (mainly) Blacks and women, resulting in extreme inequality in all areas of society, with the workplace the focus of this article. Inequality is a socio-economic and structural problem that deals with the way in which income is distributed in society. This, in turn, affects economic growth and the ability to achieve equality and solve socio-economic problems.
Author Marlene M. Wethmar-LemmerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 93 –109 (2014)More Less
Global and regional harmonisation or unification of international trade law forms the subject of a vast and ever-growing body of legal literature. The need for regional harmonisation in this field is universally acknowledged, the main arguments in favour thereof centring on the reduction of transaction, compliance and enforcement costs, on the one hand, and improved regional economic growth, on the other. This article will address one of most important constituent parts of the harmonisation of international trade law - the harmonisation or unification of international sales law.
Answers to the questions? A critical analysis of the amendments to the Labour Relations Act 66 of 1995 with regard to labour brokersAuthor A. BotesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 110 –137 (2014)More Less
Temporary employment services (TESs), or labour brokers as they are more commonly known, have been used in South Africa since the 1950s, but they were not regulated by the Labour Relations Act 28 of 1956 (1956 LRA) in force during that time. This Act did not contain a definition for these services, thereby not even acknowledging their existence. Yet TESs became more popular in the 1980s, and it was only when the Labour Relations Amendment Act 2 of 1983 (the Amendment Act) commenced that TESs were granted legal recognition by means of a statutory definition. The definition in the Amendment Act has remained in section 198 of the more recent Labour Relations Act 66 of 1995 (1995 LRA), apart from a slight change in formulation and the replacement of the word 'labour broker' with 'temporary employment service'. Not only did the Amendment Act insert a definition within the framework of the 1956 LRA, referring to it as a 'labour broker's office', but it also addressed various other relevant aspects.
Author Henk DelportSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 138 –149 (2014)More Less
In terms of section 2(1) of the Alienation of Land Act 68 of 1981, an agreement of sale of land ('deed of alienation') must be signed by the parties thereto or their agents acting on their written authority. Thus two categories of signatories are permitted - (a) the parties themselves, or (b) the parties' agents, acting on the written authority of their principals. A company, being a legal entity, cannot itself sign any agreement as such (category (a)), and cannot give its functionaries written authority to sign (category (b) - see Potchefstroom Dairies and Industries Co Ltd v Standard Fresh Milk Supply Co 1913 TPD 506; African Peach Growers (Edms) Bpk v Bouwer en 'n Ander 1973 (4) SA 654 (T)). How then does a company, acting through its functionaries, enter into an agreement of sale of land?
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 150 –161 (2014)More Less
The decision of D Pillay J in Standard Bank of South Africa Ltd v Dlamini 2013 (1) SA 219 (KZD) underlines the need for courts to adopt a clear and principled approach to the problem of an illiterate person who signs a written contract without being misled in any way by the other party and without requesting any explanation of the contents of the document.
A Man of Principle: The Life and Legacy of JC de Wet. 'n Man van Beginsel: Die Lewe en Nalatenskap van JC de Wet, Jacques du Plessis and Gerhard Lubbe (Eds.) : book reviewAuthor W.G. SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 26, pp 162 –165 (2014)More Less
The second half of the twentieth century witnessed the golden age of festschriften for lawyers, here and abroad. During this period, legal festschriften came a dime a dozen. In some instances, the subject was probably as surprised as the broader legal community at the publication of the volume in his (but seldom her) honour. The editors of the work under review are adamant that it is not intended to be a Gedächtnisschrift to honour Professor JC de Wet posthumously. It should rather be seen, so they suggest, as a collection of essays to provide a more comprehensive examination of the life and work of De Wet. For the purposes of the present review, I will refer to it as a festschrift. Nothing hinges on this.