Securing Shareholder Information in the Digital Age – An Analysis of the Proposed Amendments to Section 26 of the Companies Act

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Securing Shareholder Information in the Digital Age – An Analysis of the Proposed Amendments to Section 26 of the Companies Act

Author: Mzukisi Njotini

ISSN: 1996-2185
Affiliations:Vice Dean (Teaching and Learning), Faculty of Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 334 – 359
https://doi.org/10.47348/SAMLJ/v32/i3a2

Abstract

Amending company legislation has become a common occurrence in South Africa. The legislature has passed a number of statutes to alter the principles regulating corporate entities. It is noteworthy that the Companies Act 71 of 2008 is the most substantial of these amending statutes. This Act harmonised the legal principles governing the operation of companies, and brought companies closer to the developmental needs of society. It sought to promote economic grown, investor confidence and foreign investment, and accelerate the transportation of goods and services globally. Because of the need for companies to continue to promote innovation, the legislature proposed measures to repeal certain provisions of the Companies Act. Clause 4 of the Companies Amendment Bill of 2018 contains the proposed changes. The provision supports one of the cardinal ideals of an information society — to improve the free flow of information. However, the challenge with the section 4 provisions is that they are likely to endanger the sanctity of personal information stored online. Specifically, it is not completely clear to what extent the proposed amendments will enhance the integrity of online information, as opposed to weakening it.

Residual Goodwill – A Case of Discontinued Marks: Beiersdorf AG v Koni Multinational Brands (Pty) Ltd

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Residual Goodwill – A Case of Discontinued Marks: Beiersdorf AG v Koni Multinational Brands (Pty) Ltd

Author: Nomthandazo Mahlangu

ISSN: 1996-2185
Affiliations: Postgraduate assistant, Department of Mercantile Law,
University of South Africa
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 360 – 388
https://doi.org/10.47348/SAMLJ/v32/i3a3

Abstract

The remedy in passing-off is directed against a representation made by the respondent that amounts to a misrepresentation that damages the goodwill of a business. The applicant in a passing-off claim must successfully establish its existing goodwill. In circumstances where the applicant’s business is abandoned, the accumulated goodwill may continue to subsist in the form of residual goodwill that is retained in the distinctive mark long after the business has ceased to exist. This article aims to explore whether the discontinued use of the get-up amounts to the abandonment of goodwill where the business continues, and whether residual goodwill subsists in the abandoned get-up, in the light of Beiersdorf AG v Koni Multinational Brands (Pty) Ltd 2019 BIP 23 (GJ). The article further examines the underlying challenges surrounding the application of the concept of residual goodwill, in particular where the applicant has abandoned the use of the mark or get-up, and the consequences that arise.

A Reflective Assessment of Selected Problematic Aspects of South Africa’s Appraisal Remedy Regime Against the Backdrop of Cilliers v La Concorde Holdings Ltd

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

A Reflective Assessment of Selected Problematic Aspects of South Africa’s Appraisal Remedy Regime Against the Backdrop of Cilliers v La Concorde Holdings Ltd

Authors: J Mudzamiri & PC Osode

ISSN: 1996-2185
Affiliations: LLD candidate, Nelson R Mandela School of Law, University of Fort Hare; Professor of Commercial Law and Regulation, Nelson R Mandela School of Law, University of Fort Hare
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 389 – 406
https://doi.org/10.47348/SAMLJ/v32/i3a4

Abstract

Several policy rationales have been offered as justifications for the new appraisal remedy, including its functioning as a credible exit vehicle for disgruntled shareholders upon receipt of payment of a ‘fair value’ for their shares. However, against the backdrop of the High Court decision in Cilliers v LA Concorde Holdings Ltd, this article explores two problematic issues regarding the practical application of the appraisal remedy. The first issue relates to who may access the remedy, while the second relates to the complexity, costs, and rigidity of the procedure that must be followed to access successfully the inherent benefits of the appraisal remedy. The paper argues, in the first instance, that the court’s decision in Cilliers to allow disgruntled shareholders in a holding company to access appraisal rights in relation to a subsidiary is salutary; and, secondly, that the complexity, costs, and rigidity of the appraisal procedure can be alleviated through the revision of some of the underlying statutory provisions.

The Impact of Deepfakes on the Right to Identity: A South African Perspective

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

The Impact of Deepfakes on the Right to Identity: A South African Perspective

Author: Nomalanga Mashinini

ISSN: 1996-2185
Affiliations: Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 407 – 436
https://doi.org/10.47348/SAMLJ/v32/i3a5

Abstract

The right to identity aims to protect the subjective interests of individuals in their likeness, image, voice, and other distinctive personality attributes. The right to identity is legally recognised in South Africa, but deepfakes have a tendency to devalue this right. Deepfakes are created with deep learning software that enables users to create deceptive videos, sound recordings, and photographs of events and people that are indistinct from reality. This goes against a person’s right to control the use of their likeness. South African law does not directly regulate the creation and publication of deepfakes. Liability for the publication of deepfakes may be established using principles in different fields of law, such as the law of delict and criminal law. However, the dissemination of deepfakes on the internet continues to evolve, as they become more difficult to detect, and this necessitates a new perspective on how to provide sufficient remedies for victims whose right to identity is violated through deepfakes. It also calls for the refinement of establishing the liability of people who are tagged to deepfakes posted on social media. This article aims to highlight the challenges in protecting the right to identity and establishing liability under South African law in the context of deepfakes.

The Future of Robo-Advisors in the South African Insurance Industry: Is the South African Regulatory Framework Ready?

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

The Future of Robo-Advisors in the South African Insurance Industry: Is the South African Regulatory Framework Ready?

Author: Samantha Huneberg

ISSN: 1996-2185
Affiliations: Lecturer in Mercantile Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 175 – 204
https://doi.org/10.47348/SAMLJ/v32/i2a1

Abstract

Insurance industries worldwide currently face disruption in many forms. Technology and artificial intelligence are changing the way we know and transact insurance. One way that technology is impacting insurance is through the use of robo-advisors. Robo-advisors provide automated advice to customers based on algorithms built into the software. This means that many people can now access insurance products at the click of a button. The previous dominant role of intermediaries and advisors in the insurance industry are not as significant in the procuring of insurance products as they used to be. Robo-advisors are able to provide on-demand advice at a lower price and with greater efficacy than their human counterpart. Many industry professionals welcome this change but there is a fear that the technology may render humans obsolete. The current regulatory framework in South Africa is relatively open to the use of automated advice and the future regulations appear to be pro-technology and innovation. This should allow for substantial growth in the insurance industry. Robo-advising should, therefore, play a more active role in procuring insurance products and maintaining these products. In terms of the current regulatory framework in South African insurance law, the question arises as to whether the regulatory framework accommodates the use of robo-advisors.

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.