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- Volume 22, Issue 4, 2010
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 22, Issue 4, 2010
Volume 22, Issue 4, 2010
Author Roger G. EvansSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 465 –483 (2010)More Less
In its report on the review of the law of insolvency in South Africa, the South African Law Commission states that the principal Insolvency Act dealing with insolvency in South Africa has been amended more than twenty times, but it has never been reviewed as a whole. The Commission then recognises that insolvency law has become a dynamic part of the law, subject to constant change and having to adjust to new circumstances, and that its report is an important first step to modernise insolvency law.
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 484 –516 (2010)More Less
It is well known that 'all-risk' policies do not actually cover all perils. The liability of the insurer in such cases is consequently not absolute. Certain 'self-evident' exclusions, in fact, exist in the case of the liability of the insurer in an 'all risk' policy. Despite the fact that the insured procured an 'all-risk' policy, an insurer would not be liable to compensate the insured for damages resulting from all occurrences. It is crucial that the precise content and meaning of terms and especially 'wear and tear', 'leakage', 'breakage', 'inherent vice', 'latent defect' and 'defective packaging' be clear. It appears that the South African law of insurance blindly follows the English law. As a result, the potentially problematic interpretation incidental to English law is incorporated into South African insurance law. An example of this problem situation is the current interpretation of 'inherent vice' and 'defective packaging'. In English law, these terms are interpreted as being the same. It is submitted, however, that the defective packaging of a product should not be construed as an inherent vice of that product. The implication of this submission is not that an insurer should be held liable, but that the combination of these concepts as having the same meaning is not technically correct in law. In similar vein, the South African courts also follow the English courts in their superfluous distinction between 'normal' and 'abnormal' wear and tear, as well as 'normal' and 'abnormal' leakage.
Author M.A. Du PlessisSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 517 –531 (2010)More Less
The Consumer Protection Act 68 of 2008 (CPA) is taking effect in stages. The sections governing the establishment of the National Consumer Commission (NCC) became effective on 29 April 2010. The remainder of the Act has been deferred to 31 March 2011 (see GN 917 in Government Gazette 33581 of 23 September 2010). The Minister is also given the discretion to defer the effect of specified provisions for a period of not more than six additional months, on the grounds that additional time is required for adequate preparation of the administrative systems necessary to ensure efficient and effective implementation of that provision (Items 2(2) and 2(3) of Schedule 2 to the Act).
Author C.R. ShooterSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 532 –540 (2010)More Less
The notion of 'prerogative' is not defined by statute but in the employment arena has come to denote an employer's right to organise its work arrangements so as to ensure the most efficient operation of its business. Basic to this understanding is the employer's right to take decisions in furtherance of operational objectives and to determine how these objectives will be executed.
Author Benjamin KujingaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 541 –567 (2010)More Less
Auditors perform a very important function because they are the only independent examiners of corporate financial statements before they are released to the public. Audited financial statements are somewhat reassuring to interested parties who may well be tempted, on the strength of an unqualified audit report, to believe that they are true and fair in all material respects. When such financial statements are subsequently found to be materially misstated, auditors frequently get the blame for alleged misrepresentation. The perception that auditors are there to ensure the absolute correctness of financial statements is no doubt one of the major reasons for litigation against auditors.
Author Michelle Kelly-LouwSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 568 –594 (2010)More Less
The National Credit Act has significantly limited a credit provider's right to enforce the credit agreement where a consumer (ie, a debtor) defaults under his agreement or where the credit provider wishes to cancel the agreement and claim for the repossession of goods. The Act has drastically changed the customary legal debt-collection procedures. There is now a new prescribed procedure set out in Part C of Chapter 6 of the Act that a credit provider has to follow when he wishes to collect a debt from a defaulting consumer, and before he may institute legal action in a court of law.
Notices in terms of the National Credit Act : wholesale national confusion. Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors; Munien v BMW Financial Services; Starita v Absa Bank Ltd; FirstRand Bank Ltd v Dhlamini : analysesAuthor J.M. OttoSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 595 –607 (2010)More Less
Breach of contract, like mosquitoes, naughty children and goalless soccer, is a fact of life. Should one ask a layperson what a creditor's right is if breach of contract occurs, he or she will invariably and very confidently answer that the creditor may cancel the contract. In fact, many lawyers who are not regularly involved with contracts will provide the same response. This is, of course, not correct. Cancellation of a contract is an extraordinary remedy. Broadly speaking, cancellation is allowed only when the breach is material enough to justify termination or when the creditor can rely on a lex commissoria in the contract (DJ Joubert General Principles of the Law of Contract (1987) at 236; S van der Merwe et al Kontraktereg: Algemene Beginsels 3 uitg (2007) at 424).
The third-party plaintiff's exceptional direct claim against the insured defendant's liability insurer : some lessons to be learnt from the Third Parties (Rights Against Insurers) Act 2010 in English law? : analysesAuthor Jacobs WenetteSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 608 –616 (2010)More Less
As a rule, there is no contractual relationship between the third-party plaintiff and the insured defendant's liability insurer. The complex multiple relationships involved in liability insurance have been discussed in MFB Reinecke, Schalk van der Merwe, JP van Niekerk & Peter Havenga General Principles of Insurance Law (2002) ('Reinecke et al') in par 582; and JP van Niekerk 'Liability Insurance: Successive but Overlapping "claims-made" Policies and a Question of Quantum' (2006) 18 SA Merc LJ 382 ('Van Niekerk Liability Insurance') at 382-3. And the complexities of the multi-party relationships in liability insurance with specific reference to s 156 of the Insolvency Act 24 of 1936 ('the Insolvency Act 1936') are dealt with in JP van Niekerk 'The Liability Insurer, the Insolvent Insured and Section 156 of the Insolvency Act' (1999) 11 SA Merc LJ 59 ('Van Niekerk S 156 of the Insolvency Act'). (For more details on the application of s 156 in regard to environmental damage, see AL Stander 'Skadevergoeding Betaalbaar deur die Insolvente Versekerde in die Geval van Omgewingsbenadeling' (2004) 16 SA Merc LJ 327 ('Stander').)
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 617 –618 (2010)More Less
Workplace Labour Law was first published in 1996 and is now in its tenth edition, which was published in 2009. The book is an update on the developments in the law governing the workplace. The author of this book, John Grogan, is a respected writer on labour law with extensive practical experience in the field. In this edition he again attempts to link the discussion of rules and principles to practical examples, to provide the reader with a better understanding of labour law, which is one of the most dynamic and fascinating areas of law.
Author Amelia CostaSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 618 –619 (2010)More Less
Morris SC was described as meticulous, methodical and thoughtful in the preparation and presentation of his cases. Technique in Litigation was first published in 1969 and twice revised by Morris SC before his death in 1989. In the October 1989 In Memoriam section of the journal Consultus, he was commended as having been the 'ideal advocate' described in his book. More than forty years since the first publication, this book has not lost relevance to what constitutes the ideal practitioner.
Collective Bargaining in South Africa : Past, Present and Future? Shane Godfrey, Johann Maree, Darcy du Toit and Jan Theron : book reviewSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 619 –620 (2010)More Less
This book deals with collective bargaining and in particular the centralised bargaining system that has been in existence in South Africa for many years. The system first operated in the form of industrial councils until they were renamed bargaining councils under the Labour Relations Act 66 of 1995 ('the LRA'). Given the changes brought by the LRA, the book is an attempt to update the two research projects undertaken by the authors on the industrial council system in the early 1990s. The first project was an overview of the centralised bargaining system and its transformation after the Wiehahn reforms from 1979 onwards, and the second was an examination of whether industrial councils were constraining the viability of small firms. Through this book the authors also present a survey of the bargaining council system and how it relates to the legislative framework and the labour market with regard to representivity, extensions and exemptions.
Author S.P. Van ZylSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 621 –622 (2010)More Less
In a society in which consumers are regularly reminded of their rights and in which consumer rights are protected at every cost, a constant question seems to be whether taxpayers, when dealing with revenue authorities, can be classified as consumers. Consumers may freely choose which suppliers they wish to support on the basis of client service, quality of goods and the type of consumer rights available to them.
Environmental Compliance and Enforcement in South Africa : Legal Perspectives, Alexander Paterson and Louis J. Kotzé : book reviewAuthor Emile RaubenheimerSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 22, pp 622 –624 (2010)More Less
Contributing authors: Elmene Bray, Frances Craigie, Anél du Plessis, Willemien du Plessis, Loretta Feris, Melissa Fourie, Michael Kidd, Louis J Kotzé, Karin Lehmann, Alexander Paterson, Phil Snijman, Richard Summers and Terry Winstanley
At first glance the striking cover and title of the book promise the reader a fresh focus on environmental law in South Africa, namely environmental compliance and enforcement. This is amplified by the foreword of Albie Sachs, who formed part of a group of farsighted people instrumental in the inclusion of an environmental right in the Constitution of the Republic of South Africa, 1996. The book focuses on the implementation of this environmental right, moving from the abstract to the practical realm of environmental law; ie, examining the domestic environmental compliance and enforcement system.