Civil prospectus liability under the laws of Germany and South Africa

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Civil prospectus liability under the laws of Germany and South Africa

Author: Damian Schmidt

ISSN: 1996-2177
Affiliations: Attorney, Oppenländer Rechtsanwälte, Stuttgart, Germany
Source: South African Law Journal, Volume 139 Issue 2, p. 407-431
https://doi.org/10.47348/SALJ/v139/i2a7

Abstract

Civil prospectus liability is the liability for a prospectus which is published in the  context of issued securities on the primary market. Both the German and South  African legal systems protect investors who are induced into investing by incorrect  prospectuses. Chapter 4 of the Companies Act 71 of 2008 contains rules, in  s 104 and s 105, which set out the prospectus liability of directors, experts, and  others. German law provides comparable provisions. The differences between the two  systems become apparent in the detail. South Africa’s statutory prospectus liability  clearly sets out the liability of experts and focuses mainly on the personal liability of  directors. The German law has traditionally referred to unwritten legal principles  in respect of experts. What both legal systems have in common is that the mutual  interests of potential plaintiffs and defendants are not exclusively regulated by statute  law, and that both pursue a balanced form of investor protection. This article aims  to contribute to the future harmonisation of both legal systems in order to facilitate  cross-border investments. 

Compartmentalised data protection in South Africa: The right to privacy in the Protection of Personal Information Act

by | May 1, 2022 | SALJ, SALJ V139 I2 2022

Compartmentalised data protection in South Africa: The right to privacy in the Protection of Personal Information Act

Author: Gilad Katzav

ISSN: 1996-2177
Affiliations: BCom LLB LLM (Wits)
Source: South African Law Journal, Volume 139 Issue 2, p. 432-470
https://doi.org/10.47348/SALJ/v139/i2a8

Abstract

In European Union (‘EU’) law, the entrenched right to data protection is an  independent fundamental right. EU case law has gradually disconnected the right  to data protection from the right to a private life. South Africa’s first exclusive  data protection legislation, the Protection of Personal Information Act 4 of 2013  (‘POPIA’), is redolent of EU data protection legislation. However, the stated purpose  of the POPIA is to give effect to the right to privacy. This article examines whether  the laws of data protection can be wholly encapsulated within s 14 of the Constitution.  To this end, this article considers two main conceptions of privacy in our law.  The first is Neethling’s informational privacy and the reasonable expectation of privacy.  The second is Rautenbach’s theory of informational control over personal matters in  relation to other rights. On either approach, I argue that the substantive provisions  of the POPIA are irreducible to privacy protection alone. Ultimately, framing  the POPIA exclusively within the domain of privacy will either (i) unduly restrict  legislative interpretation; or (ii) the true meaning of privacy will be diluted, leading to  legal uncertainty. To avoid this, I suggest distinguishing between the value of privacy  in the POPIA and the actual loss of privacy.