A comparative overview of the legal reform of non-possessory real security rights over movables in South Africa and Belgium with specific reference to the legal nature of the security object and court intervention

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

A comparative overview of the legal reform of non-possessory real security rights over movables in South Africa and Belgium with specific reference to the legal nature of the security object and court intervention

Authors Lefa Ntsoane, Mitzi Wiese

ISSN: 1996-2185
Affiliations: Lecturer, Department of Private Law, University of South Africa; Senior Lecturer, Department of Private Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 325 – 352

Abstract

South Africa and Belgium have acknowledged the economic need for legal reform of the law regulating real security rights over movable property. South Africa enacted the Security by Means of Movable Property Act 53 of 1993 (SMPA), which provides for a fictitious pledge, and Belgium enacted the new Belgian Pledge Act 11 of 2013, which provides for a registerpand. This article examines the historical background, development and legal reform of non-possessory real security rights over movables in both legal systems. The research focuses on the difference in the legal position regarding the security object of the non-possessory real security right and court intervention in realising the security. South African law excludes incorporeal property, revolving assets, and future property from the strong legal protection offered to debtors and creditors by the SMPA. Belgian law, by contrast, has an inclusive as opposed to exclusive approach to the legal nature of the security object. The new Belgian Pledge Act is applicable to all corporeal and incorporeal movable property. The position of summary execution clauses under the new Belgian Pledge Act is the opposite of that under South African law. The South African summary execution clauses principle, as developed in Roman-Dutch law, has in recent years been interpreted more strictly with the result that its application is limited. The aim of the Belgian reform is to simplify the creation and realisation of a ‘pledge without possession’. The Belgian Pledge Act now grants the pledgee the right to sell, rent, or appropriate the security object without court intervention. Court intervention is only required if the pledgor is a consumer.

The appraisal remedy and the oppression remedy under the Companies Act of 2008, and the overlap between them

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

The appraisal remedy and the oppression remedy under the Companies Act of 2008, and the overlap between them

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 2, 2017, p. 305 – 324

Abstract

The appraisal right of dissenting shareholders is a new remedy introduced to South African corporate law by the Companies Act 71 of 2008, which is aimed at maintaining the equilibrium between minority shareholders and controlling shareholders. The fundamental question must thus arise whether there is an overlap between the appraisal remedy and the oppression remedy, or whether the two remedies are mutually exclusive. Are minority shareholders entitled to rely on both remedies, or should a minority shareholder’s exercise of the appraisal right preclude his or her recourse to the oppression remedy? This burning question is the focus of this article, and is discussed with reference to both Canadian and United States law, as well as the South African case of Juspoint Nominees (Pty) Ltd v Sovereign Food Investments Ltd in which the High Court recently had the opportunity to consider this issue. Other important and related aspects of the appraisal remedy and the oppression remedy are also discussed in this article.

Towards a unanimous global remedy for breach of athlete contracts: A comparative analysis

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

Towards a unanimous global remedy for breach of athlete contracts: A comparative analysis

Authors Kenneth Mould

ISSN: 1996-2185
Affiliations: Senior Lecturer in Law of Contract in the Department of Private Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 270 – 304

Abstract

The problem of the repudiation of professional athlete-contracts is significant not only in South Africa, but globally. One need only daily media reports to confirm that while academics have raised the issue of the repudiation of athlete-contracts, the problem persists and is increasing. One of the primary reasons for this is that there is little or no unanimity among jurisdictions across the world as to not only the most suitable, but, more importantly, the most effective remedy for a breach of athlete-contract. This article aims to address this ongoing problem from a fresh perspective by analysing the approaches taken by different jurisdictions to the most suitable remedy for breach of this type of contract, in order finally to suggest the most effective single remedy that is most likely to limit or reduce the prevalence of repudiation of an athlete-contract not only in South Africa, but globally.

Income tax-related search and seizure in South Africa: Lessons from Canada and New Zealand

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

Income tax-related search and seizure in South Africa: Lessons from Canada and New Zealand

Authors Carika Fritz

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 240 – 269

Abstract

The article identifies certain aspects that prevent the current search-and seizure provisions in the Tax Administration Act 28 of 2011 from achieving a balance between effective tax administration, on the one hand, and respect for the fundamental rights of taxpayers, on the other. It is shown that, whilst obtaining a warrant on an ex parte basis achieves this required balance, the same cannot be said for not requiring specific details with regard to what items may be searched for in terms of a warrant and allowing warrantless searches based on the subjective discretion of a South African Revenue Service (SARS) official. The article further considers the income tax-related search-and-seizure provisions in Canada and New Zealand in order to address the identified imbalances. From this comparative analysis, it is apparent that it is unnecessary for the SARS to be permitted to conduct warrantless searches based on its subjective discretion in the current search-and-seizure framework, together with certain provisions found in these two jurisdictions, would provide a more suitable alternative.

Franchise disclosure documents through the lens of the CPA and the Regulations

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

Franchise disclosure documents through the lens of the CPA and the Regulations

Authors Lynn Biggs

ISSN: 1996-2185
Affiliations: Lecturer, Mercantile Law Department, Nelson Mandela University
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 219 – 239

Abstract

The promulgation of the Consumer Protection Act 68 of 2008 and Consumer Protection Regulations has resulted in the introduction of the right to disclosure of information for franchisees and the obligation to disclose information on the part of franchisors in terms of section 7 and regulations 2 and 3. The article examines whether and to what extent regulation 3 provides clarity regarding the information to be disclosed. Regulation 3 requires that every franchisor must provide a prospective franchisee with a disclosure document and lists the type of information the disclosure document must contain. It is submitted that regulation 3 contributes to overcoming lack of pre-disclosure and formal regulation experienced in franchise relationships in the past. However, the wording of regulation 3 requires clarification. This article proposes amendments to some of the provisions of regulation 3, with the aim to further enhance the disclosure requirements. The article furthermore identifies and examines concerns regarding the confidentiality of the information contained in the disclosure document especially during the negotiation stages and the section 7(2) cooling-off period. The signature of a confidentiality agreement is proposed as a solution to overcoming these concerns.

Excessive pricing in South African competition law: Elucidating the nature and implications of the consumer-detriment requirement

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

Excessive pricing in South African competition law: Elucidating the nature and implications of the consumer-detriment requirement

Authors Ryan David McKerrow

ISSN: 1996-2185
Affiliations: None
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 173 – 218

Abstract

Section 8(a) of the Competition Act prohibits dominant firms from charging excessive prices to the detriment of consumers. In Harmony v Mittal the Competition Tribunal took the position that the provision’s reference to consumer detriment was ‘simply a superfluous description of an excessive price rather than a qualifier of its likely effects’. This article challenges the Tribunal’s relatively static approach to consumer detriment. It acknowledges that the incorporation of a consumer-detriment requirement into section 8(a) not only safeguards dominant firms from prejudice, but also gives rise to a contextually appropriate consumer-welfare standard. The article argues that consumer detriment must be evaluated by means of an analysis which adequately accounts for market dynamics. Following a critical analysis of three pertinent arguments in favour of non-intervention—the self-correction, innovation, and error-costs arguments—it concludes that the welfare interests of current and future consumers are not always aligned. As such, net consumer detriment and an interventionist outcome cannot be the invariable fate of an excessive price. The appropriate outcome must therefore be determined on a case-by-case basis.