Case Notes: When the letter cannot speak: Determining the duration of the contract and whether dismissal has taken place: Mamelodi Sundowns Football Club (Pty) Ltd v Ngomane & Council for Conciliation, Mediation and Arbitration (unreported case no JR 2710/10) [2015] ZALCJHB 53

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

Case Notes: When the letter cannot speak: Determining the duration of the contract and whether dismissal has taken place: Mamelodi Sundowns Football Club (Pty) Ltd v Ngomane & Council for Conciliation, Mediation and Arbitration (unreported case no JR 2710/10) [2015] ZALCJHB 53

Authors Lux Kubjana

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 368 – 376

Abstract

None

Case Notes: Executing a judgment debt against immovable property occupied as a family home in customary law: Nedbank Limited v Molebaloa

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

Case Notes: Executing a judgment debt against immovable property occupied as a family home in customary law: Nedbank Limited v Molebaloa

Authors Reghard Brits

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 348 – 367

Abstract

None

Access to redress for consumers: A tale of the effect of a notice of non-referral by the National Consumer Commission

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

Access to redress for consumers: A tale of the effect of a notice of non-referral by the National Consumer Commission

Authors M A (Riette) du Plessis

ISSN: 1996-2185
Affiliations: Associate Professor, School of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 330 – 347

Abstract

The National Consumer Commission issued a notice of non-referral, whereafter the National Consumer Tribunal, in its judgment, misdirected itself on the applicability and interpretation of the CPA. This was corrected during a second hearing by a different panel of the Tribunal. The Tribunal’s arguments at the first hearing are discussed, with reference to both the CPA and common law. Referrals for assistance under sections 69, 70, 72 and 73, the inability of certain ombuds to enforce their decisions and the restrictions placed on provincial consumer protection authorities and consumer courts by section 84 are discussed. The consequences of the Commission’s decision no longer to investigate individual consumer complaints and its issuing of notices of non-referral may have the effect of matters not being escalated to the Tribunal. Consumers may as a result not be able to proceed with a civil action for damages because they will lack the necessary locus standi to bring such actions, as they may be denied access to the courts if they have not exhausted all other remedies as required by section 69(d) of the CPA.

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.