Retirement Funds Rivalry, Voluntary Withdrawal of Membership, and Transfer of Assets During the Period of Employment

by | Feb 26, 2021 | SAMLJ, SAMLJ V32 I2

Retirement Funds Rivalry, Voluntary Withdrawal of Membership, and Transfer of Assets During the Period of Employment

Author: Clement Marumoagae

ISSN: 1996-2185
Affiliations: Senior lecturer, School of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 205 – 233
https://doi.org/10.47348/SAMLJ/v32/i2a2

Abstract

In Municipal Employees Pension Fund v Natal Joint Municipal Pension Fund (Superannuation) & others [2016] 4 All SA 761 (SCA) para 2, Theron JA described the competition for members by different retirement funds associated with the same employer as a ‘turf war’. The Office of the Pension Funds Adjudicator and the South African courts are continually required to adjudicate disputes that arise when retirement funds wrestle each other for members. This article shows that the Pension Funds Act 24 of 1956 does not provide the necessary legal framework that can assist courts to resolve these disputes, which usually turn on the interpretation of individual retirement funds’ rules that are often ambiguous. Further, there is no legislative provision that adequately deals with the circumstances where actively employed members voluntarily initiate a process that will lead to their fund credits being transferred to rival retirement funds. It argues that there is a need for legislative clarity on how voluntary transfer of fund credits impact on the membership of retirement funds, particularly given the fact that, strictly speaking, members cannot be transferred from one fund to the next, whereas their fund credits can, in terms of section 14 of the PFA. Since members cannot be transferred, this article evaluates whether it is sound in law for actively employed employees to remain members of one fund but contribute to a rival fund.

The Role and Nature of the Public Interest in South African Competition Law

by | Feb 26, 2021 | SAMLJ, SAMLJ V32 I2

The Role and Nature of the Public Interest in South African Competition Law

Author: Quentin du Plessis

ISSN: 1996-2185
Affiliations: Pupil member of the Johannesburg Bar
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 234 – 252
https://doi.org/10.47348/SAMLJ/v32/i2a3

Abstract

The Competition Act 89 of 1998 requires consideration of the ‘public interest’ when considering mergers. Whereas public interest considerations are generally assumed not to be cognisable in competition terms, in this article I argue the opposite. Specifically, I argue that if the underlying policy goal of the Act is accepted to be economic efficiency as opposed to allocative efficiency, and if ‘public interest’ as it is used in the Act is understood to be concerned mainly with the reduction of inequality, then it follows that the public interest is cognisable in competition terms, since inequality hurts economic efficiency.

Appraising the Scope and Application of the Market-Price Rule in Upheld Contracts

by | Feb 26, 2021 | SAMLJ, SAMLJ V32 I2

Appraising the Scope and Application of the Market-Price Rule in Upheld Contracts

Author: Paul Nkoane

ISSN: 1996-2185
Affiliations: Lecturer in Criminal and Procedural Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 253 – 276
https://doi.org/10.47348/SAMLJ/v32/i2a4

Abstract

The use of the market price for determining liability in contract lacks dedicated attention in South African law. Even far scanter is the holistic literature on the use of the market-price rule in contracts that are not terminated on breach of contract. Although, there has been suggestions that the market-price rule can be used to determine damages in upheld contracts, this was never technically demonstrated. Thus, the argument that the market-price rule can be used in contracts that are not terminated remains moot. This article presents various methods that illustrate how the market-price rule should apply in upheld contracts. The article undertakes a comprehensive analysis of the market-price rule to determine its efficacy in contracts that are not terminated, with the focus on the determination of the degree of liability. Regarding the determination of liability, the article to some extent discusses contracts with latent defects and those with items of questionable quality. Various methods and techniques are discussed to enlighten about how the market price can affect the determination of liability in upheld contracts, and to illustrate that this principle is suitable for determining damages in contracts that are not terminated.

Analysis: Accommodation Establishments and the Cancellation of Advance Bookings: The Challenge of Determining a Reasonable Cancellation Fee

by | Feb 26, 2021 | SAMLJ, SAMLJ V32 I2

Accommodation Establishments and the Cancellation of Advance Bookings: The Challenge of Determining a Reasonable Cancellation Fee

Authors: AM Tait

ISSN: 1996-2185
Affiliations: Nelson Mandela University
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 277 – 294
https://doi.org/10.47348/SAMLJ/v32/i2a5

Abstract

None

Tax Legislation and the Right to Equality: Does Section 23(m) of the Income Tax Act 58 of 1962 Rationally Differentiate Between Salaried Individuals and Individuals Who Earn Their Income Mainly from Commission?

by | Jan 19, 2021 | SAMLJ, SAMLJ V32 I1

Tax Legislation and the Right to Equality: Does Section 23(m) of the Income Tax Act 58 of 1962 Rationally Differentiate Between Salaried Individuals and Individuals Who Earn Their Income Mainly from Commission?

Authors Louis Botha, Zoë Meyer & Anton Kok

ISSN: 1996-2185
Affiliations: Senior Associate, Cliffe Dekker Hofmeyr (Tax and Exchange Control); Research assistant in the Department of Jurisprudence, University of Pretoria; Professor in the Department of Jurisprudence, University of Pretoria
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 1 – 21

Abstract

The authors speculate how a court should deal with a tax matter that implicates the right to equality. Section 23(m) of the Income Tax Act 58 of 1962 squarely raises an equality dispute — in the context of rational/irrational differentiation, not fair/unfair discrimination. The aim of this article is to evaluate if section 23(m) rationally differentiates between salaried and non-salaried individuals — if the differentiation created by section 23(m) is constitutionally permissible. First, the authors discuss the influence of the Constitution of the Republic of South Africa, 1996 on tax legislation with reference to selected cases where provisions in tax legislation came under constitutional scrutiny. Secondly, the operation of section 9 of the Constitution is explained. Thereafter, the authors interpret section 23(m) in considering whether the differentiation therein falls foul of section 9 of the Constitution. Having regard to those deductions which are not available to a salaried individual in terms of section 23(m) and to the number of individuals who are listed by SARS as salaried and non-salaried individuals in SARS’s statistics from 2015 to 2018, the conclusion is reached that the differentiation between salaried and non-salaried individuals appears to be rational as it might lead to a significant increase in the administrative burden of SARS and of the salaried individuals in question.