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- Volume 22, Issue 3, 2010
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 22, Issue 3, 2010
Volume 22, Issue 3, 2010
Author R.D. SharrockSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 295 –325 (2010)More Less
Legal systems throughout the world, our own included, have had to find ways of dealing with the pervasive problem of unfair contract terms. The main cause of the problem, in a nutshell, is that many businesses use pre-formulated, non-negotiated contract terms and ensure that they are routinely incorporated into their transactions with customers. The terms are typically framed so as to be overly protective of the business concerned; to minimise its risks and to exempt it from as much liability as possible. A business derives substantial economic benefits from using standardised terms and will generally adopt a 'take-it-or-leave-it' stance if asked by a customer to make changes to the terms. The customer has the alternatives of not contracting at all or of taking his or her custom elsewhere, but very often going without is simply not feasible and shopping around for better standard terms is a waste of time and effort. For various reasons, customers tend to agree to pre-formulated terms without questioning them or attempting to bring about modifications. Their usual reaction on encountering such terms is to skip the small print and concentrate on the few matters that are negotiable, such as subject-matter, price, payment terms, delivery dates and warranties.
Author Kathy IdensohnSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 326 –345 (2010)More Less
There has been increasing concern about the need for effective measures to hold those who exercise a significant degree of actual influence or control over the management of companies accountable for their conduct. The formulation of appropriate mechanisms for doing so is particularly problematic where the influence or control is of an indirect nature.
'It takes a village to raise a child' : accessibility of social assistance benefits in indigenous African communitiesAuthor Gugulethu NkosiSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 346 –359 (2010)More Less
Deaths caused by AIDS and the escalating rate of unemployment in the adult sector of society impact dramatically on the degree of poverty and hardships endured by the majority of South African children. Children are increasingly becoming destitute as a result of parents dying of AIDS. Statistics show that in 2008 there were approximately 1,8 million AIDS orphans. Statistics further show that in 1996, 33 per cent adults of a working age were unemployed. In 2001 this rate had risen to 37 per cent and in 2002 to 41.8 per cent. On these figures, it is not surprising that six out of ten children grow up in poverty.
Author Sanette NelSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 360 –387 (2010)More Less
With its worldwide, instantaneous reach, the Internet has transformed the manner in which online users can communicate with each other and view information. However, it has also provided a platform for employees to defame their employers and for individuals to post false information on financial bulletin boards or stock-related chat rooms, often referred to as corporate cybersmear, which can cause real damage to a corporation and be potentially devastating to its stock value. No company wants to learn that its good name or that of a key employee is being attacked by unknown parties on the Internet. Today, many public and private companies face varied threats from individuals using the Internet in ways that harm these businesses or their management.
Author Adriette H. DekkerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 388 –404 (2010)More Less
In May 2008, South Africa was shocked by the violent xenophobic attacks on foreigners in informal settlements in and around Johannesburg. These events highlighted the vulnerability of non-citizens and migrant workers. Although the need for increased social security protection for these groups is evident, the question of how to do so remains a challenge because of the socio-economic climate in which unemployment is rising and social security benefits are limited. Where nationals and non-nationals feel that they must compete for scarce resources, it is inevitable that tempers flare and tension erupts.
Author Phumudzo S. MunyaiSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 405 –416 (2010)More Less
As the variable interest rate lending system has resulted in higher interest rates and therefore over-indebtedness in South Africa during the recession, a fixed and stable interest rate system in the debtor's repayments of his or her obligations can be mooted as more secure. The biggest problem to emerge as the single cause of over-indebtedness in South Africa after the National Credit Act (NCA) came into force is higher interest rates. The spate of interest rate hikes between 2006 and 2008 left consumers having to deal with higher monthly repayments. Those with small and fixed earnings found themselves incapable of making repayments because of their inability to deal with unforeseen changes. We have been inundated with reports of a significant number of consumers losing their homes and facing repossession of other valuable items purchased on credit, mainly cars. To protect themselves from continued default by borrowers, some lenders took drastic steps such as appropriating the debtor's entire salary to recover outstanding payments, a practice described by the Banking Ombudsman as 'morally repugnant'. The debt crisis during this period of higher interest hikes also led to a higher number of insolvencies for individuals. A report by Statistics South Africa indeed revealed a substantial increase in the total number of individual insolvencies recorded between 2007 and 2009, the period during which the effects of higher interest rates were greatly felt by consumers.
Author Tamara CohenSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 417 –428 (2010)More Less
Jurisdictional uncertainty, evidenced in a plethora of conflicting judicial decisions, has sabotaged the coherent development of labour law jurisprudence in recent years. Judicial attention has focused on the meaning and scope of ss 157(1) and (2) of the Labour Relations Act 66 of 1995 (LRA) and the extent of the civil courts' jurisdiction to regulate breaches of employment contracts, with little evidence of consensus. In many of these decisions the distinction between considerations of lawfulness and fairness was eroded and a parallel remedy for the resolution of labour disputes in the civil courts recognised - providing lamentable scope for forum shopping. This analysis aims to outline the judicial interpretations that contributed to this uncertainty and consider whether the recent decisions of the Constitutional Court in Gcaba v Minister for Safety & Security & Others ((2010) 31 ILJ 296 (CC)) and the Supreme Court of Appeal in SA Maritime Safety Authority v McKenzie ((2010) 31 ILJ 529 (SCA)) finally provide some light at the end of a very long and winding tunnel.
Author Tukishi ManamelaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 429 –442 (2010)More Less
The South African courts and tribunals often have to determine whether prescription applies in certain circumstances. The Prescription Act 68 of 1969 refers exclusively to debts, and this usually raises the question of which claims would qualify as debts in terms of the Act. Section 11(a)-(c) of the Act provides different prescription periods for different categories of debts, while s 11(d) caters for other debts in terms of which any other Act of Parliament provides otherwise. The Act sets out a prescription period of three years for any other debt not provided for under s 11(d).
Author Stephanie LuizSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 443 –452 (2010)More Less
Where an arrangement is proposed between a company and its members (or between the company and any class of members) and an application is made, the court is authorised to direct that a meeting be called to consider the arrangement (s 311(1) of the Companies Act 61 of 1973 ('the 1973 Act')). If, at the meeting, the arrangement is approved by a majority of at least 'three-fourths of the votes exercisable by the members or class of members (as the case may be) present and voting either in person or proxy at the meeting', a further application may be made to the court for a sanctioning of this arrangement (s 311(2)). The sanctioning by the court is necessary to make the arrangement binding on all the members of the company or on all the members of the particular class (as the case may be) (ibid).
The scope of application of section 156 of the insolvency act : within or beyond the realm of indemnity (liability) insurance contracts? Venfin Investments (Pty) Ltd v KZN Resins (Pty) Ltd t/a KZN ResinsAuthor J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 453 –463 (2010)More Less
Venfin Investments (Pty) Ltd v KZN Resins (Pty) Ltd t/a KZN Resins (KZD, 24 March 2010 (case no 5814/2002) unreported) concerned the scope of application of s 156 of the Insolvency Act 24 of 1936, and more particularly whether its operation was restricted to (liability) insurance contracts or extended also to indemnities generally.