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.

The Reversal of Electronic Payments Under South African Law: Possible Guidance from Recent Developments in European Union Law

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

The Reversal of Electronic Payments Under South African Law: Possible Guidance from Recent Developments in European Union Law

Author WG Schulze

ISSN: 1996-2185
Affiliations: Professor in Banking Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 22 – 50

Abstract

It is generally accepted that the development of and growth in electronic banking, and particularly the growth in electronic payments, has raised a number of burning legal issues in South African banking law. One of the hitherto unresolved issues concerns the circumstances under which an electronic transfer can be reversed. In terms of the standard bank–client agreement, a credit transfer can be reversed only with the consent of the recipient of the money. Such an arrangement is clearly flawed and impractical. With fraud, for example, it is not fair towards the party who has been defrauded for it, or its bank, first to obtain the fraudulent recipient’s consent before the transfer can be reversed. This article considers South African case law in which the reversal of an electronic payment was scrutinised. It further considers recent developments in European Union law regarding the notification and rectification of unauthorised, or incorrectly executed, payment transactions. Some observations are made about the possible guiding role that European Union law may play in formalising the South African law regarding electronic payments, should such initiative be undertaken by either the banking and payment community or the South African legislature.