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- Volume 20, Issue 2, 2008
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 20, Issue 2, 2008
Volume 20, Issue 2, 2008
The introduction of the statutory merger in South African corporate law : majority rule offset by the appraisal right (Part 2)Author Maleka Femida CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 147 –176 (2008)More Less
The reverse triangular merger procedure is similar in structure to the triangular merger, with the would-be acquirer, Company H, forming a wholly-owned subsidiary, Company S, to act as the acquisition vehicle for the merger with the target, Company T. The essential difference between the triangular merger and the reverse triangular merger structure is that in the former, Company T merges into Company S with Company S remaining in existence as the surviving company, while in the latter it is Company T that is the surviving company. Thus, paradoxically, the target company is the surviving company in a reverse triangular merger and the acquiring company disappears.
Author Rehana CassimSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 177 –199 (2008)More Less
Section 76(1) of the SSA prohibits disclosure-based market manipulation as follows :
'76 (1) No person may, directly or indirectly, make or publish in respect of listed securities, or in respect of the past or future performance of a public company -
(a) any statement, promise or forecast which is, at the time and in the light of the circumstances in which it is made, false or misleading or deceptive in respect of any material fact and which the person knows, or ought reasonably to know, is false, misleading or deceptive; or
(b) any statement, promise or forecast which is, by reason of the omission of a material fact, rendered false, misleading or deceptive and which the person knows, or ought reasonably to know, is rendered false, misleading or deceptive by reason of the omission of that fact.'
Author Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 200 –226 (2008)More Less
Current data on volumes of consumer credit extended in South Africa is unreliable and incomplete. This problem came about as there existed different authorities dealing with bank and non-bank credit. The South African Reserve Bank collected data from banks; Statistics SA collected data from retailers, which included sales on open account; and the Micro Finance Regulatory Council collected data from the micro-lenders. However, it is estimated that the size of the credit market is currently some R800b.
Author M.L. VessioSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 227 –242 (2008)More Less
The National Credit Act, 34 of 2005, replaced the previous consumer credit dispensation in South Africa established by the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. While the new Act is quite far-reaching, the administrative task of coordinating the implementation of this new piece of legislation is a rather mammoth one.
Author J.J. HenningSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 243 –267 (2008)More Less
The division of the proceeds of insolvent partnerships' and partners' estates has been strongly influenced by the so-called dual priorities rule : 'Partnership estate to partnership creditors, private estate to private creditors, anything left over from either go to the other'.
As its name signifies, the dual priorities rule basically embodies two components. The first acknowledges the priority of partnership creditors on partnership assets; this will be referred to as 'entity shielding'. The second component creates a priority of private creditors on the assets in a particular partner's private estate; this will be referred to as 'owner shielding'.
Author Judith GeldenhuysSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 268 –279 (2008)More Less
It has become increasingly common to appoint employees on a temporary basis as an alternative to permanent employment (see Clive Thompson 'The Changing Nature of Employment : What has Changed?' (2003) 24 Industrial LJ 1793). An employer would in so doing escape being subjected to the onerous duties and obligations imposed on employers by the Labour Relations Act 66 of 1995 (the 'LRA') (see Cremark, a Division of Triple P Chemical Ventures (Pty) Ltd v SA Chemical Workers Union & Others (1994) 15 ILJ 289 (LAC)).
However, bona fide operational reasons may call for the appointment of employees on a temporary basis. Temporary employees are for instance utilized where permanent employees are on leave or to cope with temporary increases or fluctuations in production.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 280 –290 (2008)More Less
Insurance fraud in the form of fraudulent claims upon insurers remains in the news. Estimates vary, but it may be that at least one-third and as much as one-half of all insurance claims submitted to South African insurers are fraudulent in one way or another.
The main victims are, of course, insurance companies. Quite rightly, though, they warn that unless the incidence of fraud upon them is reduced drastically, they will have no choice but to pass the increased costs of underwriting on to policyholders in the form of increased premiums. As always, then, the innocent majority of insured will have to pay for the misdemeanours of a small minority.
Electronic fund transfers and the bank's right to reverse a credit transfer : one big step (backwards) for banking law, one huge leap (forward) for potential fraud : Pestana v Nedbank (act one, scene two) : case commentsAuthor W.G. SchulzeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 290 –297 (2008)More Less
It has been argued that to a large extent any research on the legal principles underlying electronic credit transfers is no more than an exercise 'in search of law where little is to be found at present' (see Melanie L Fein Law of Electronic Banking (2000) at xxi). Today this still holds true for South African banking lawyers. For this reason any new case law dealing with credit transfers (or electronic transfers, for that matter) is to be welcomed as it would hopefully not only contribute to our understanding of the topic, but also provides the opportunity for comment and reflection.
Dismissal based on an unfounded allegation of racism against a colleague : SACWU v NCP Chlorchem : case commentsAuthor M.E. ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 298 –303 (2008)More Less
An employer has a common-law right to maintain and enforce discipline in the workplace. This is an implied term in the contract of employment. Anderman (SD Anderman Labour Law : Management Decisions and Workers' Rights (1992) at 62) explains the origin of this right as follows :
'Employer's disciplinary powers... are well developed in the terms implied in employment contracts. Even if nothing is put into express terms of employment contracts, the employer's disciplinary control is carefully preserved in the employee's duty to obey as an implied fundamental term of the contract.'
Contract. General principles, Schalk van der Merwe, L.F. van Huyssteen, M.F.B. Reinecke & G.F. Lubbe : book reviewSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 304 –305 (2008)More Less
Companies Act 61 of 1973 & Close Corporations Act 69 of 1984 with Regulations, J.T. Pretorius (ed) : book reviewSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20 (2008)More Less
Author Marlize Van JaarsveldSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 20, pp 305 –306 (2008)More Less
Labour law remains one of the most dynamic fields of South African law, and many first-rate textbooks are available that cover various aspects of this often complicated field in various degrees of depth. John Grogan is a well-known academic and writer of a number of textbooks on the topic.