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- Volume 27, Issue 1, 2015
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 27, Issue 1, 2015
Volume 27, Issue 1, 2015
Author Karin CalitzSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 1 –31 (2015)More Less
One of the purposes of the Labour Relations Act (LRA) is to promote collective bargaining at sectoral level. Bargaining councils and the extension of their agreements are indispensable to central bargaining, but during the past few years these extensions to non-parties have come under increased pressure from different angles. It was first argued in the courts that specific extensions were invalid and unlawful; secondly that the provisions of the LRA regarding extensions are unconstitutional; and thirdly, as part of the broader debate, that these extensions are detrimental to the economy.
The aim of this article is to examine the arguments against the extension of bargaining council agreements and to propose certain recommendations. The movement in European countries away from central bargaining to decentralised bargaining in order to promote economic stability in the wake of the financial crisis will also be discussed to establish whether there is any guidance to be found in the measures taken in these countries.
Author Mihlali MagaqaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 32 –57 (2015)More Less
In September 2011, there was an air of great anticipation as the National Consumer Commission (NCC) reported to the parliamentary Portfolio Committee on Trade and Industry. This was only a few months after the Consumer Protection Act (CPA) had come into force. The presence of the media intensified the sense of expectation, as Deputy Director-General of the parliamentary committee praised the NCC for having achieved much in a very short period of time. It appeared that within its few months in existence, the NCC had lived up to its mandate to investigate and to enforce the provisions of the CPA in a manner that is cost-effective and efficient. The question however is whether this body has maintained its momentum in ensuring a market place that effectively protects consumers in South Africa.
The purpose of the CPA is to promote and advance the social and economic welfare of consumers. The majority of consumers in South Africa are vulnerable to exploitation and abuse in the marketplace because of illiteracy or lack of access to information. The preamble of the CPA recognises South Africa's historical background which gave rise to the country's social and economic inequality. The CPA came into effect on 31 March 2011 with the aim to protect consumers from exploitation in the market place. For this reason, the CPA provides consumers with a 'Bill of Rights' to ensure the protection of economic, educational, health and the social interests of consumers. This Bill of Rights is found in Chapter 2.
Traditional knowledge relating to medical uses of plants and the patent regime in South Africa : whither the traditional healers?Author Emeka Polycarp AmechiSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 58 –91 (2015)More Less
South Africa as a biologically resource-rich and mega-diverse country boasts of a unique biodiversity that has been described as an asset of international, national and local value and significance. For instance, its Cape floral region, a United Nations Educational, Scientific and Cultural Organisation (UNESCO) world heritage site and a global biodiversity hotspot, is reputedly one of only six in the whole world to boast of an entire plant kingdom. Known as the Cape floral kingdom, this area has the highest recorded species diversity for any similarly sized temperate or tropical region in the world. The Table Mountain National Park within the floral kingdom, reportedly has more plant species within its 22 000 hectares than the whole British Isles or New Zealand. Presently, South Africa ranks third amongst the world's most biologically diverse countries with over 24 000 plant species. The richness in biological resources naturally translates to abundance of customary knowledge, innovations, and practices towards the conservation and sustainable utilisation of such resources including for medicinal purposes, developed and nurtured over many generations by indigenous communities, who traditionally are custodians of biological resources.
The origins and development of the general deduction formula in income tax legislation of the Cape ColonyAuthor Enelia Jansen van RensburgSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 92 –127 (2015)More Less
In 2014 comprehensive income tax legislation is a hundred years old in South Africa. In light of this milestone, the origins of one of the important cornerstones of this legislation, the general deduction formula, is reflected upon here.
The general deduction formula plays a prominent role in the calculation of a taxpayer's liability for income tax. Currently, this calculation requires from the taxpayer to deduct certain expenditure and losses from his 'income' (which refers to his gross receipts or accruals, from which certain amounts are exempt). However, only those expenses and losses provided for in the act, and not under, for example, accounting principles, may be so deducted. Some of these deductible expenses and losses are specifically listed in the act itself, whereas others, although not specifically listed, are deductible if they meet a set of general requirements set out in ss 11(a) and 23(g). These sections are collectively known as 'the general deduction formula', with s 11(a) often being referred to as the 'positive leg' (since it sets out the criteria which, if met, will allow for a deduction) and s 23(g) as the 'negative leg' (since it places prohibitions against the deduction of certain expenses) of the formula.
This article considers the origins of the wording of the general deduction formula as incorporated in legislation promulgated by the Colony of the Cape of Good Hope ('the Cape') before the Union of South Africa was formed, as well as the role that case law played in the understanding of the formula during these early years. This Cape legislation would later form the basis of the Union's first comprehensive income tax act, promulgated in 1914 ('the 1914 Act') and, since all subsequent South African income tax acts were substantially based on the preceding one, the general deduction formula found in the current income tax legislation of South Africa can be traced back to the Cape legislation. Understanding the heritage of the formula in the Cape legislation thus also gives insight into the current formula.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 128 –144 (2015)More Less
Commercial advertising plays a very important role with regard to the promotion of goods and services by plastic surgeons that are available in the market. However, the practice of commercial advertising is being distorted to such an extent that people engage in misleading advertising. This includes plastic surgeons that provide misleading and false information in their advertisement campaigns with the sole aim of drawing the public to their respective practices. This can put members of the public in great danger and it is clear that the practice of commercial advertising is used inappropriately by some suppliers of goods and services.
The purpose of this article is to look at the role of commercial advertising in the field of plastic surgery. Specific focus is placed on the extent to which plastic surgeons market their services and the impact of such advertising on the public. Focus is placed on the manner in which bodies such as the Health Professions Council of South Africa (HPCSA) and the Association for Plastic and Reconstructive Surgeons of Southern Africa (APRSSA) influence advertising by plastic surgeons, as well as the type of sanctions imposed by these bodies when plastic surgeons - through their advertising - contravene the law. Mention is also made of the Advertising Standards Authority (ASA). In addition, reference is made to the Consumer Protection Act, which plays a very important role in regulating the conduct of surgeons who engage in advertising. Despite the risks and complexities, plastic surgery remains a very important medical practice with advantages that are changing the lives of people for the better all over the world.
Implications of the re-enacted discretionary power to grant judicial relief to directors in section 77(9) of the Companies Act 2008 : analysesAuthor Richard S. BradstreetSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 145 –152 (2015)More Less
Directors of a company have always been bound by certain duties which are owed by each director to the company to which they stand in a fiduciary relationship by virtue of their office (Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 at 314). In addition to the delictual liability that a company's directors may incur as a result of their negligent conduct (in terms of the duty of reasonable care, skill and diligence), the common law has also imposed a number of 'fiduciary' duties on directors that arise by virtue of their relationship with the company. A director's fiduciary duties at common law include the duties to not exceed their powers, to exercise their powers for a proper purpose, to not fetter their discretion, and to avoid conflicts of interest. The divisions between these duties are by no means precise, and they often overlap in substance. The latter duty may also be broken down into a number of sub-duties prohibiting directors from activities such as competing with the company, making secret profits, and taking so-called 'corporate opportunities'.
The meaning of 'solvent' for purposes of liquidation in terms of the Companies Act 71 of 2008 : Boschpoort Ondernemings (Pty) Ltd v ABSA Bank Ltd : case noteAuthor Natania LockeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 153 –162 (2015)More Less
The Companies Act 71 of 2008 ('the new Act') repealed most of the Companies Act 61 of 1973 ('the previous Act'). The notable exception is chapter 14 of the previous Act, which continues to apply with respect to the winding-up and liquidation of companies (item 9(1) of Schedule 5 of the new Act). However, ss 343, 344, 346 and 348-353 do not apply to the winding-up of solvent companies, except to the extent necessary to give full effect to the provisions of the new Act dealing with the winding-up and deregistration of solvent companies (Part G of chapter 2 of the new Act; see item 9(2) of Schedule 5). As is evident from its omission from this list, s 345 of the previous Act applies to the solvent winding-up of companies.
When ancestors call an employee : reflections on the judgment of the Supreme Court of Appeal in the Kievits Kroon Country Estate v Mmoledi case : case noteSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 163 –173 (2015)More Less
This is a labour dispute which for a period of about seven years, has been moving from one forum to another (The Disciplinary Hearing of 2007, the CCMA hearing, Kievits Kroon Country Estate (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others  3 BLLR 241 (LC); Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2012) 33 ILJ 2812 (LAC); Kievits Kroon Country Estate v Mmoledi (875/12)  ZASCA 189 (29 November 2013)). Legally, there is nothing untoward about this as the Constitution provides everyone with the right to have their dispute decided in a court of law, tribunal or forum (see s 34 of the Constitution, 1996). This provision implies that a party not happy with the decision of one forum or another can apply for a review or appeal to the next forum, which in this case, is what Kievits Kroon has done. Notwithstanding this constitutional provision, courts are alert to the fact that rich and powerful litigants can use their superior and dominant position as an attempt to wear off a litigant in a less controlling position (see Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others 2010 (5) BCLR 422 (CC) para 52). Though this issue did not arise in the Kievits Kroon case, the Supreme Court of Appeal seems to have been keen to bring this matter to finality when it ordered that "following the CCMA hearing, two courts told the appellant that its appeal had no merit, although no cost order was made against it. But the appellant persisted with a further appeal to this court. In these circumstances it is appropriate that costs should now follow the result" (Kievits Kroon Country Estate v Mmoledi para 33).
Unfair enforcement of a contract : a step in the right direction? Botha v Rich and Combined Developers v Arun Holdings : case noteAuthor Robert SharrockSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 27, pp 174 –190 (2015)More Less
It is well-established that a contractual provision that is not, per se, illegal will not be enforced if the enforcement would be contrary to public policy (see e.g. Nyandeni Local Municipality v Hlazo 2010 (4) SA 261 (ECM) paras 81-4; Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) para 47; GF v SH 2011 (3) SA 25 (GNP) paras 18-22). In applying this principle, the Supreme Court of Appeal has adopted the somewhat dogmatic position that merely because enforcement of a contractual provision would produce an unfair or unreasonable result does not make the enforcement offensive to public policy (see e.g. Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) paras 50-52 ; Maphango v Aengus Lifestyle Properties (Pty) Ltd 2011 (5) SA 19 (SCA) paras 22-25; Potgieter v Potgieter 2012 (1) SA 637 (SCA) paras 31-34; cf also Brisley v Drotsky 2002 (4) SA 1 (SCA) paras 11-12). In Botha v Rich 2014 (4) SA 124 (CC), the Constitutional Court effectively rejected this approach by accepting that, on the facts of that case, unfairness or unreasonableness was, in itself, a sufficient ground for declining to enforce a contractual provision. The judgment in Botha's case is unsatisfactory in certain respects (not least of which its failure to mention, let alone consider, the appeal court cases referred to above) but, being a judgment of the Constitutional Court, it may well be regarded as marking the beginning of a new judicial attitude to unfair enforcement of contractual terms.