A customary insurance law?

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I1

A customary insurance law?

Authors Andrew Hutchison

ISSN: 1996-2185
Affiliations: Associate Professor in the Department of Commercial Law, University of Cape Town
Source: South African Mercantile Law Journal, Volume 29 Issue 1, 2017, p. 17 – 42

Abstract

This paper will explore risk-spreading practices in the so-called popular economy in South Africa. Concepts like ‘insurance’, ‘insurance law’ and ‘customary law’ will be interrogated, with the analysis falling on traditional and more modern informal responses to risk, as well as more formal responses resulting from the increased penetration of private insurance in the democratic era. This contribution aims to address concerns expressed about both informal and formal risk-spreading practices, to argue towards a conclusion that a pluralistic notion of ‘insurance’ should not necessarily be sacrificed in service of corporate profit aims. Value remains in customary insurance law, and these cultural responses may provide evidence of a broader contract value system to be used in the service of developing the South African laws of contract and insurance. At the very least, this value system should inform concepts like ‘consumer insurance law’ and should be foregrounded in developing a notion of micro-insurance. South Africa has the potential to be a world leader in the field of customary insurance law, as the failings of a comparable system—funeral insurance in Australia—demonstrate.

Evaluating the role of the National Consumer Commission in ensuring that consumers have access to redress

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I1

Evaluating the role of the National Consumer Commission in ensuring that consumers have access to redress

Authors Tanya Woker

ISSN: 1996-2185
Affiliations: Professor of Law, University of KwaZulu-Natal (Durban)
Source: South African Mercantile Law Journal, Volume 29 Issue 1, 2017, p. 1 – 16

Abstract

An important aim of the Consumer Protection Act (CPA) is to ensure that consumers have access to accessible, transparent and efficient redress. In order to achieve this aim, a number of different dispute resolution forums have been introduced to assist consumers. Having an array of different forums for consumers to turn to may theoretically be very appealing, but in practice the picture is turning out to be quite different. This article seeks to shed some light on the reasons why consumers are experiencing such difficulties when it comes to enforcing their rights under the CPA and it makes some suggestions for improving the process. The article focuses on the role of the Consumer Commission because the Commission is primarily responsible for the administration of the CPA. It is argued that it is necessary for the Commission to take charge of the dispute resolution process, because whether or not the CPA succeeds in its aim of ensuring that consumers have access to redress, rests largely on the role undertaken by the Commission in this process.

Case Notes: The right of a director to participate in the management of a company: Kaimowitz v Delahunt 2017 (3) SA 201 (WCC)

by | Oct 23, 2019 | SAMLJ, SAMLJ V30 I1

Case Notes: The right of a director to participate in the management of a company: Kaimowitz v Delahunt 2017 (3) SA 201 (WCC)

Authors Rehana Cassim

ISSN: 1996-2185
Affiliations: Senior Lecturer in Law, University of South Africa, Pretoria; Attorney and Notary Public of the High Court of South Africa
Source: South African Mercantile Law Journal, Volume 30 Issue 1, 2018, p. 172 – 187

Abstract

None

Case Notes: The removal of directors in state-owned companies: shareholders’ franchise in jeopardy? Molefe & others v Minister of Transport & others

by | Oct 23, 2019 | SAMLJ, SAMLJ V30 I1

Case Notes: The removal of directors in state-owned companies: shareholders’ franchise in jeopardy? Molefe & others v Minister of Transport & others

Authors Tebello Thabane

ISSN: 1996-2185
Affiliations: Senior lecturer, Commercial Law Department, University of Cape Town
Source: South African Mercantile Law Journal, Volume 30 Issue 1, 2018, p. 155 – 171

Abstract

None

The conflicts rule in respect of contractual capacity in the preliminary Draft Uniform Act on the Law of Obligations in the OHADA region

by | Oct 23, 2019 | SAMLJ, SAMLJ V30 I1

The conflicts rule in respect of contractual capacity in the preliminary Draft Uniform Act on the Law of Obligations in the OHADA region

Authors Eesa A Fredericks

ISSN: 1996-2185
Affiliations: Senior lecturer, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 30 Issue 1, 2018, p. 138 – 154

Abstract

None

Resolving the ‘benefits’ dilemma

by | Oct 23, 2019 | SAMLJ, SAMLJ V30 I1

Resolving the ‘benefits’ dilemma

Authors K Newaj

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria; Principal Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 30 Issue 1, 2018, p. 91 – 114

Abstract

This article considers whether the ambiguities that have existed in labour law for some time now, in respect of the unfair labour practice relating to the provision of benefits, have been resolved following the Labour Appeal Court decision in Apollo Tyres. This unfair labour practice has been widely discussed, based on the varying interpretations of what constitutes ‘benefits’. The courts initially adopted a narrow approach to defining the term ‘benefits’, a term that is not defined in the Labour Relations Act 66 of 1995. However, this approach was replaced by an expansive and wide-ranging interpretation. This article seeks to assess the suitability of the Apollo Tyres judgment in view of the fact that it appears to be reverting to the broad approach adopted under the Industrial Court dispensation in its quest to interpret and apply the general right to unfair labour practices. The question that arises is whether this is an appropriate approach considering the codification effected by the Labour Relations Act, which has undoubtedly resulted in an altered manifestation of the unfair labour practice concept.