An overview of the regulatory developments in south africa regarding the use of cryptocurrencies

by | Jul 22, 2020 | SAMLJ, SAMLJ V31 I1

An overview of the regulatory developments in South Africa regarding the use of cryptocurrencies

Authors Eveshnie Reddy & Vivienne Lawack

ISSN: 1996-2185
Affiliations: Lecturer, University of South Africa, BCrim BCrim Hons (UKZN) (UNISA) PhD candidate (UWC). This article forms part of research undertaken towards the author’s PhD study; Professor, University of the Western Cape,  BJuris LLB LLM (NMMU) LLD (UNISA).
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 1 – 28

Abstract

This article provides an overview of some of the key regulatory developments in South Africa regarding the use of cryptocurrencies. Developments have to date been limited to government-issued notices warning the public of the risks associated with the use of cryptocurrencies, the legal status of cryptocurrencies within the wider paradigm of money, and a recent notice by the South African Revenue Services (‘SARS’) regarding the taxation of cryptocurrencies. A recent consultation paper published by the South African Reserve Bank (‘SARB’) proposed a three-phase regulatory approach to cryptocurrencies, starting with the licensing and registration of all cryptocurrency service providers. Albeit an incremental step in the right direction, this article argues that the regulatory developments have thus far been segmented and do not address the issues emerging from the use of cryptocurrency such as consumer protection, and reparation for loss and fraud. This article argues that although cryptocurrencies are not a widespread medium of exchange, their use in South Africa is gaining traction and calls for some level of regulatory oversight.

Establishing jurisdiction in respect of unfair labour practices relating to the provision of ‘benefits’

by | Jul 22, 2020 | SAMLJ, SAMLJ V31 I1

Establishing jurisdiction in respect of unfair labour practices relating to the provision of ‘benefits’

Author K Newaj

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of Pretoria, BCom (Law) NMMU HDip (Labour Law) WITS LLB UNISA, LLM University of Pretoria, LLD University of Pretoria. Lecturer, Department of Mercantile Law, University of Pretoria.
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 29 – 53

Abstract

This article considers the factors to be taken into account by arbitrators in determining whether or not they have jurisdiction to consider disputes referred to the Commission for Conciliation, Mediation and Arbitration as cases of unfair labour practices relating to the provision of benefits. While the Labour Appeal Court’s decision in Apollo Tyres South Africa (Pty) Ltd v CCMA sought to resolve the controversy surrounding benefits disputes, it is opined that the court erred in merging the enquiry into establishing whether the subject matter of the dispute constitutes a ‘benefit’ with the enquiry into fairness of the employer’s conduct. This article delineates these two enquiries, and provides a clear indication of the factors that must be considered by arbitrators in establishing whether the matter at issue constitutes a ‘benefits’ dispute as envisaged by section 186(2)(a) of the Labour Relations Act 66 of 1995. The article further seeks to provide a definition of ‘benefits’. In order to address these objectives, three fundamental principles which have dominated the inquiry by the judiciary in its attempt to resolve the uncertainties surrounding this area of the law, are discussed. These are: whether ‘benefits’ fall within the statutory definition of ‘remuneration’; whether a wide interpretation of the term ‘benefits’ will erode the divide between disputes of right and disputes of interest; and an evaluation of what constitutes a pre-existing benefit.

Making your bed as an independent contractor but refusing ‘to lie on it’: freelancer opportunism

by | Jul 22, 2020 | SAMLJ, SAMLJ V31 I1

Making your bed as an independent contractor but refusing ‘to lie on it’: freelancer opportunism

Authors Tumo Charles Maloka & Chuks Okpaluba

ISSN: 1996-2185
Affiliations: Associate Professor, Department of Mercantile and Labour Law, University of Limpopo, BA LLB LLM (UCT) LLD (UFH); Research Fellow, Centre for Human Rights, University of the Free State, LLB LLM (London) PhD (West Indies).
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 54 – 75

Abstract

The ‘freelancer migraine’ demonstrates that the long-standing and deeply embedded distinction between employment and independent contracting (self-employment) is challenged by the reality of the contemporary work environment which does not readily conform to such binary categories. The inescapable inference from the freelancer jurisprudence is that a significant number of the self-employed are in a position of economic dependence analogous to subordinate employees in that many, if not all, lack distinguishing features of entrepreneurship: ownership, autonomy, or control overproduction. Somewhere in between genuinely subordinate workers and genuinely independent entrepreneurs, a third category is emerging — that of workers who are legally independent (ie, self-employed) but economically dependent. The freelancer decisions provocatively raise fundamental questions about the opacities of form engendered by the fragile boundary between genuine entrepreneurial self-employment, dependent self-employment, and disguised employment. Rather than ushering in the fabled entrepreneurial independence, for many of the recruits into the ranks of freelancers, self-employment often heralds a descent into a state of precarity.

The actio pro socio revisited

by | Jul 22, 2020 | SAMLJ, SAMLJ V31 I1

The actio pro socio revisited

Author Elizabeth Snyman-Van Deventer

ISSN: 1996-2185
Affiliations: Professor, Mercantile Law, Faculty of Law, University of the Free State, BIuris LLB LLM LLM LLD (UFS).
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 76 – 89

Abstract

The common-law actio pro socio has become part of the South African law of partnership as the action by which partners’ mutual rights and duties can be enforced. Although it is generally accepted that the actio pro socio can be instituted on the dissolution of the partnership, whether it can also be brought while the partnership still exists is less clear. In an attempt to bring greater clarity on the issue, this contribution defines the position of actio pro socio in South African law, and then takes the reader on a brief chronological journey through the South African case law which has crafted the country’s approach to this remedy. It emerges that the courts’ distinguish between bringing the actio pro socio while the partnership still exists and after its dissolution, and that it is indeed possible to institute the action during the existence of the partnership without automatically signalling its dissolution. This is also confirmed by Roman and Roman-Dutch law. Those instrumental in shaping the country’s law of partnership are therefore urged not to lose sight of the Roman and Roman-Dutch origins of this arm of the law in developing a generally empowering partnership law for South Africa.

Opening pandora’s box: the ‘confidentiality’ clause in the international trade administration commission’s amended tariff investigations regulations

by | Jul 22, 2020 | SAMLJ, SAMLJ V31 I1

Opening pandora’s box: the ‘confidentiality’ clause in the international trade administration commission’s amended tariff investigations regulations

Author Clive Vinti

ISSN: 1996-2185
Affiliations: Lecturer, Department of Public Law, University of the Free State, LLB (cum laude) (UFH) LLM (UCT).
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 90 – 106

Abstract

The Amended Tariff Investigations Regulations (‘ATR’) allow an applicant to apply for a tariff increase on a product so as to protect the local industry from the pressure exerted by imported products. This amendment of a tariff or customs duty is preceded by an investigation by the International Trade Administration Commission (‘ITAC’), which assesses the merits of this application. During this investigation, ITAC requires the party applying for the tariff increase (or amendment) to provide certain information that could either justify or controvert the merits for the amendment of the tariff. However, this information may contain ‘confidential’ information that coincidently justifies the tariff increase but at the same time, also divulges the competitive advantage of the applicant. The ATR permits the non-disclosure of this information if it finds it to be ‘confidential’. This paper then explores the ATR’s attempt at finding the balance between divulging enough information for interested parties to defend their interests and at the same time, to protect the ‘confidentiality’ of the competitive advantage of the applicant for a tariff increase. It is my view that the ATR fails to achieve this balance and thus, compels interested parties to defend their interests in the dark.

Diminution’ in share value and third-party claims for pure economic loss: the question of director liability to shareholders

by | Jul 22, 2020 | SAMLJ, SAMLJ V31 I1

Diminution’ in share value and third-party claims for pure economic loss: the question of director liability to shareholders

Author Brightonmmupangavanhu

ISSN: 1996-2185
Affiliations: Senior Lecturer in Law, University of the Western Cape, PhD Commercial Law (UCT), LLM Environmental Law (UKZN), LLB (Fort Hare)
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 107 – 128

Abstract

When a shareholder suffers pure economic loss as a consequence of a reduction in shareholding value, the natural temptation for a shareholder is to seek a remedy that includes a personal claim against a director. This is because directors, as agents of a company, are decision-makers in a company. However, the common law in South Africa and elsewhere holds that a shareholder does not have a cause of action to recover personal damages against a director simply because a company in which he or she holds shares, suffered damages. This article argues that the Supreme Court of Appeal (SCA) in Itzikowitz v Absa Bank Limited confirmed that this principle still applies in South African common law. Yet, despite the SCA clarifying the contours between delicts committed against a company and those committed against a shareholder, there are still cases in which shareholders seek damages against directors for pure economic losses suffered by him or her. This article identifies the ambiguity in section 218(2) of the Companies Act 71 of 2008 as part of the problem. Suggestions are made to adopt a judicial approach to the interpretation of section 218(2) in order to distinguish between instances where the general remedy under section 218(2) is applicable and instances when it is not. The focus first falls on the correct position at common law regarding a remedy for pure economic losses. Thereafter, the focus moves to the proper interpretation of section 218(2) in order to ensure that courts do not arrive at an absurd outcome—that is, to avoid an absurdity so glaring that it could never have been contemplated by the legislature.