A critical analysis of the judicial review procedures under section 71 of the Companies Act 71 of 2008

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

A critical analysis of the judicial review procedures under section 71 of the Companies Act 71 of 2008

Authors Rehana Cassim

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, School of Law, University of South Africa, Attorney and Notary Public of the High Court of South Africa
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 302 – 329

Abstract

Section 71(5) of the Companies Act 71 of 2008 provides that a director who has been removed from office by the board of directors may apply to court to review the board’s decision. If the board of directors decides not to remove a director from office, any director who voted in favour of the removal, may, under section 71(6) of the Companies Act 71 of 2008, apply to court to review the board’s decision. This article critically examines: the powers of a court under the judicial review processes; the permissible court orders which may be made; the locus standi to apply to court for a judicial review under section 71(5) and 71(6); the time period within which an application for judicial review must be instituted; the costs of the judicial review procedures; and the discretion of a court in granting or dismissing such applications. It is argued that the judicial review processes in section 71(5) and 71(6) are unclear and ambiguous in certain respects. Recommendations to amend and modify section 71(5) and 71(6) are made with a view to removing ambiguities in these provisions, and to improving and strengthening the judicial review processes under these provisions.

An argument for necessary amendments to the legislative provisions regulating the sharing of retirement savings upon divorce in South Africa

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

An argument for necessary amendments to the legislative provisions regulating the sharing of retirement savings upon divorce in South Africa

Authors Clement Marumoagae

ISSN: 1996-2185
Affiliations: Practising Attorney of the High Court at Marumoagae Attorneys; Senior Lecturer, University of the Witwatersrand, School of Law
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 280 – 301

Abstract

This article advocates for critical legislative changes in the Divorce Act 70 of 1979 and other pension law related statutes regarding retirement fund members savings that are vulnerable to be shared upon divorce. It argues that the phrase ‘pension interest’ should be replaced by the phrase ‘retirement savings’ to avoid unnecessary confusion that arises in the categorisation and quantification of the amount that the non-member spouse should be paid when he or she divorces a retirement fund member. This article also argues for the deletion of the deeming requirements in section 7(7) of the Divorce Act. Further that there is no need for some special legislative mechanism which empowers non-member spouses to claim portions of their member spouses’ retirement savings, as this amounts to an unnecessary complication in the law regulating the sharing of retirement savings when the parties divorce.

Bio-economy, patents, and the commercialisation of traditional knowledge on the medicinal uses of plants in South Africa

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

Bio-economy, patents, and the commercialisation of traditional knowledge on the medicinal uses of plants in South Africa

Authors Emeka Amechi

ISSN: 1996-2185
Affiliations: Former postdoctoral fellow, College of Law, University of South Africa, Pretoria; Senior Lecturer, University of Port Harcourt
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 251 – 279

Abstract

South Africa has identified the promotion of a vibrant bio-economy as integral to its quest to transit from a resource-based to a knowledge-based economy. Towards achieving this end, the Department of Science and Technology (DST) adopted the Bio-economy Strategy. The strategy recognises that South Africa’s unique natural capital of biological diversity combined with its wealth of traditional knowledge (TK), forms one of the country’s greatest assets, and hence, seeks to utilise resources towards advancing South Africa in the global economy. The strategy further recognises that the economic value of these resources can be enhanced by the use of intellectual property, particularly patents, in commercialising innovative products or inventions based on or derived from biodiverse TK. This article explores the use of patents in promoting the commercial use of TK on the medicinal uses of plants (TKMUP) in South Africa. Specifically, it focuses on the links as well as the challenges involved in using patents in promoting the commercial utilisation of knowledge in the country.

Trade unions as suppliers of goods and service

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

Trade unions as suppliers of goods and service

Authors Jacolien Barnard, Monray Botha

ISSN: 1996-2185
Affiliations: Associate Professor, Department of Mercantile Law, University of Pretoria; Professor and Head of Department, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 216 – 250

Abstract

Trade unions are important vehicles through which social justice is achieved in the South African society. They play a role in the social, political, and economic spheres. Trade unions are powerful institutions and many provide a wide variety of services and goods to their members, having extended their activities to financial services such as insurance, pension funds, and health products. Some unions have questioned the constitutionality of limiting workers to a particular pension fund which has the effect of impinging on their freedom of association.1 Section 5(6) of the Consumer Protection Act 68 of 2008 (‘the CPA’) forms part of the application provisions of the Act. The aim of the section is to provide ‘greater certainty’ regarding the scope of application of the CPA. It provides that the supply of any goods or services in the ordinary course of business to any of its members by a club, trade union, association, society, or other collective entity, whether incorporated or not, of persons voluntarily associated and organised for a common purpose or purposes, whether for fair value consideration or otherwise, irrespective of whether there is a charge or economic contribution demanded or expected in order to become or remain a member of that entity, will fall under the Act. This section implies that the goods and services provided by trade unions to their members are subject to the Act, and has fundamental implications for trade unions and their members. This contribution illustrates the development and extended role that trade unions play, not only with regard to labour relations, but also as the suppliers of goods and services to their members.

Lessons from America? A South African perspective on the Draft Restatement of the Law, Consumer Contracts

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

Lessons from America? A South African perspective on the Draft Restatement of the Law, Consumer Contracts

Authors Jacques du Plessis

ISSN: 1996-2185
Affiliations: Distinguished Professor of Law, Stellenbosch University
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 189 – 215

Abstract

The American Law Institute is drafting a Restatement of the Law, Consumer Contracts. It deals at a very broad level with various requirements for the formation, validity, and proof of consumer contracts and terms, and especially with how they are to be applied in modern commercial environments, characterised by the widespread use of standard terms in online contracting. At the heart of the Draft Restatement lies the notion that it reflects a ‘grand bargain’ or trade-off in American consumer contract law. While its rules follow a ‘permissive’ approach to assent, through granting businesses significant freedom to draft contract terms, the effect of these rules is balanced by greater ex post substantive control, through imposing mandatory restrictions on terms. The purpose of this paper is to view this central idea of the Draft Restatement, as well as some related features, from the perspective of South African consumer contract law. Aspects that enjoy attention include the treatment of standard contracts, rules on actual or deemed assent, various forms of substantive control, the relationship between common-law and statutory regulation of consumer contracts, restrictions on adducing evidence, and the most appropriate institutions for granting consumers effective relief.