The enforcement of credit agreements through set-off: Evaluating the impact of the National Credit Act 34 of 2005

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

The enforcement of credit agreements through set-off: Evaluating the impact of the National Credit Act 34 of 2005

Authors Sanmarie van Deventer

ISSN: 1996-2177
Affiliations: Stellenbosch University
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 415 – 440

Abstract

This article examines the impact of ss 90(2)(n) and 124 of the National Credit Act 34 of 2005 (‘NCA’) on the common-law right of credit providers to invoke set-off. It focuses on the interpretation of these sections and considers whether, and if so, to what extent, a limitation on a credit provider’s right to invoke set-off is desirable. An analysis of the policy documents prepared during the drafting of the NCA indicates that insufficient consideration was given to the consequences of limiting a credit provider’s right to set-off. It is concluded that ss 90 (2)(n) and 124 of the NCA are unclear and lead to an outcome which either completely excludes a credit provider’s common-law right to set-off, or creates an anomalous situation where a credit provider must refrain from stipulating such a right in the credit agreement in order to retain it. After a brief investigation of the provisions regarding set-off contained in consumer legislation of other jurisdictions, it is argued that, although certain limitations of a credit provider’s right to invoke set-off are justified, the conditions set by the NCA are too stringent. Legislative reforms are suggested to clarify and improve the protection granted by the NCA.

Disclosure of directors’ remuneration under South African company law: Is it adequate?

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

Disclosure of directors’ remuneration under South African company law: Is it adequate?

Authors Vela Madlela, Rehana Cassim

ISSN: 1996-2177
Affiliations: Lecturer, Department of Mercantile Law, University of South Africa; Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 383 – 414

Abstract

The remuneration of directors is a controversial issue in many jurisdictions in the light of the global financial crisis and the escalating remuneration packages of directors. One way of managing the escalating levels of directors’ remuneration is to compel companies to disclose the details of directors’ remuneration packages. Full disclosure of the remuneration of directors would increase transparency and accountability in the remuneration-setting process of directors. This article explores the adequacy of the Companies Act 71 of 2008 in relation to the disclosure of directors’ remuneration. It further examines the disclosure requirements of directors’ remuneration under the JSE Listings Requirements and the King Report on Governance for South Africa, 2016 (‘King IV’). It compares South Africa’s remuneration disclosure requirements with the legislative standards for remuneration disclosure under the Companies Act 2006 of the United Kingdom, and examines whether our disclosure requirements meet the standards of the UK Companies Act, 2006. This article concludes that the minimum standards of remuneration disclosure set by the Companies Act are too low to satisfy enhanced transparency, and suggests various proposals for strengthening the disclosure requirements of directors’ remuneration under the Companies Act.

The nature of new order prospecting rights and mining rights: A can of worms?

by | Oct 20, 2019 | SALJ, SALJ V134 I2 2017

The nature of new order prospecting rights and mining rights: A can of worms?

Authors P J Badenhorst

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor of Law, Nelson Mandela Metropolitan University
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 361 – 382

Abstract

New order prospecting rights and mining rights are labelled as ‘limited real rights’ in s 5(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’). The use of this label is questioned in this article, and it is shown that the prospecting rights and mining rights are not fully compatible with the common-law notion of a limited real right. The nature of prospecting or mining rights is analysed by drawing a comparison with limited real rights or property in terms of property theory, equivalent rights which existed during the previous mineral dispensation, other rights to minerals issued under the MPRDA, public-law instruments, and the nature of ‘property’ in terms of s 25(1) of the Constitution of the Republic of South Africa, 1996. It is shown that rights which differ in nature and origin arise at different moments in time. It is concluded that a limited real right under the MPRDA is rather a right sui generis or a right that is separate from the dominium of land or minerals in situ.