The Income of an Insolvent and Sequestration under the Insolvency Act 24 of 1936

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I3

The Income of an Insolvent and Sequestration under the Insolvency Act 24 of 1936

Authors M Roestoff

ISSN: 1996-2185
Affiliations: Professor, Department of Mercantile Law, Faculty of Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 478 – 514

Abstract

In a recent case, the question arose as to whether the applicant in an application for the voluntary surrender of his or her estate may forfeit his or her salary with a view to establishing the requirement of advantage for creditors as envisaged by the Insolvency Act. Such forfeiture is impermissible, for example, because of the constitutional challenges that may arise should the insolvent in future require the forfeited amount for his or her basic needs. However, to exclude debtors from a debt relief measure because they do not have sufficient assets to prove advantage, may also be unconstitutional. It is argued in this article that the current system must be reviewed in order to afford these debtors relief in terms of an alternative discharge procedure. A comparative investigation into the manner in which certain foreign consumer insolvency systems deal with income contributions indicates that the Act does not regulate this issue fairly or adequately. However, income contributions as part of the sequestration process are not truly appropriate and it is submitted that the American approach, which provides for an exclusively asset-liquidation procedure and a separate income-restructuring procedure should be followed. It is concluded that an unconditional exclusion of an insolvent’s income from his or her insolvent estate could provide a mechanism through which the insolvent could be assisted to rebuild a new estate and eventually return to economic productivity.

Forum Shopping: Finding the Right Balance between the Enforcement of Competition Law and the Protection of Intellectual Property Rights

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I3

Forum Shopping: Finding the Right Balance between the Enforcement of Competition Law and the Protection of Intellectual Property Rights

Authors Itumeleng Lesofe

ISSN: 1996-2185
Affiliations: Principal Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 450 – 477

Abstract

Much has been said and written about forum shopping of late. Some courts and scholars have even recognised and, to some extent, endorsed the practice. This phenomenon also appears to have surfaced in disputes relating to the protection of intellectual property rights (IPRs). In this regard, there appears to be a growing trend among litigants with disputes relating to patents, to use forums and institutions that are not necessarily designed to resolve such disputes. This is notable in a recent decision by the Competition Commission of South Africa to prosecute two firms accused of abusing their dominant positions by enforcing IPRs beyond their period of protection. While there may be benefits associated with the practice, pervasive forum shopping can also lead to the concentration of cases in one or very few forums which, in the eyes of litigants, are likely to make favourable determinations. Thus, forum shopping may encourage litigants to make an outcome-determinative choice when selecting an appropriate forum. This in turn can create inefficiencies. The aim of this article is to determine how best to approach the quandary of forum shopping in cases relating to the protection of IPRs. The article focuses on the interplay between intellectual property law and competition law, and determines whether the intervention by competition agencies in intellectual property matters is necessary.

The Effect of the Moratorium on Property Owners during Business Rescue

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I3

The Effect of the Moratorium on Property Owners during Business Rescue

Authors Maleka Femida Cassim

ISSN: 1996-2185
Affiliations: Associate Professor, Mercantile Law Department, University of Pretoria; Attorney and Notary Public of the High Court of South Africa.
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 419 – 449

Abstract

A burning issue in South African company law is the encroachment of the business rescue provisions of the new Companies Act 71 of 2008 on the rights of landlords and other property owners. A landlord who has concluded a contract of lease with a company, frequently finds himself in an unenviable position if the company goes into business rescue. The company often remains in occupation of the leased premises during business rescue and, if this is done without the payment of rent, the business rescue endeavour is effectively driven at the landlord’s expense. The focus of this two-part series of articles is on the two chief predicaments facing the property owner who finds its property in the possession of a company under business rescue, namely, the recovery of the property by the property owner; and the ongoing payment of rent and other recurring charges. This article discusses the moratorium in business rescue with a specific focus on its effect on the property owner. A critical analysis of recent judicial decisions on the moratorium is included, together with a discussion of the legal position in comparable foreign jurisdictions. The second article will focus on the safeguards and protective measures for property owners during the business rescue process. It will be published in the following issue of this journal.

The role of comparative law in consumer protection law: A South African perspective

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

The role of comparative law in consumer protection law: A South African perspective

Authors Jacolien Barnard

ISSN: 1996-2185
Affiliations: Associate Professor, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 353 – 389

Abstract

This article illustrates the role of comparative law as a possible law reform mechanism in consumer protection law from a South African perspective. The South African legislature introduced very comprehensive legislation in the area of consumer protection law in the form of the Consumer Protection Act 68 of 2008. Certain provisions in the Act mimic core European Union (EU) directives on consumer protection. This article aims to establish why elements of a foreign law model were introduced as part of law reform in South African consumer law, how this was done, and whether it could assist in the effective interpretation and enforcement of consumer protection measures. The focus is on a general discussion of unfair commercial practices regulated by the EU Unfair Commercial Practices Directive 2005/29/EC. It is argued that comparative law plays a significant role in the effective interpretation and enforcement of consumer protection law in South Africa. However, cognisance must be taken of South Africa’s unique position, as well as its societal and economic needs.