ISSN: 1996-2185
Affiliations: Attorney, Socio-Economic Rights Institute
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 403 – 417
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ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 390 – 402
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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
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.
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
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.
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
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.
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
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.