Facilitating Trade and Strengthening Market Access in the Southern African Customs Union: A Focus on South Africa’s Customs Reform

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Facilitating Trade and Strengthening Market Access in the Southern African Customs Union: A Focus on South Africa’s Customs Reform

Authors: Victor T Amadi & Patricia Lenaghan

ISSN: 1996-2185
Affiliations: Postdoctoral Research Fellow, Centre for Comparative Law in Africa, University of Cape Town; Associate Professor, Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 309 – 333
https://doi.org/10.47348/SAMLJ/v32/i3a1

Abstract

In the modern business environment, emphasis is placed on timely production, requiring timely delivery and fast and predictable release of goods at the borders. Experiencing delays in the supply chain of goods increases transaction costs, which can, in consequence, raise the price of export and import products. South Africa is a developing state that needs to be competitive on every front to secure economic growth considering the current push towards the African Continental Free Trade Area (AfCFTA). This article aims to tackle the issue of non-tariff barriers to trade, particularly restrictive customs and administrative procedures at border crossings in the Southern region, by exploring trade facilitation measures which can be crucial for integration and development. Trade facilitation regulates behind-the-border measures and encompasses reform of a country’s customs policies and infrastructure as customs operations can be characterised by a complex array of requirements for traders, including documentation requirements. This article accordingly examines how South Africa is evolving its customs environment to facilitate trade further and to enhance market access of goods into the country and the Southern region. South Africa has adopted a Custom Modernisation Programme (CMP) under the guidance of the South African Revenue Services (SARS). The adoption of this programme can potentially reduce the delays in trade transactions at border points.

Securing Shareholder Information in the Digital Age – An Analysis of the Proposed Amendments to Section 26 of the Companies Act

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Securing Shareholder Information in the Digital Age – An Analysis of the Proposed Amendments to Section 26 of the Companies Act

Author: Mzukisi Njotini

ISSN: 1996-2185
Affiliations:Vice Dean (Teaching and Learning), Faculty of Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 334 – 359
https://doi.org/10.47348/SAMLJ/v32/i3a2

Abstract

Amending company legislation has become a common occurrence in South Africa. The legislature has passed a number of statutes to alter the principles regulating corporate entities. It is noteworthy that the Companies Act 71 of 2008 is the most substantial of these amending statutes. This Act harmonised the legal principles governing the operation of companies, and brought companies closer to the developmental needs of society. It sought to promote economic grown, investor confidence and foreign investment, and accelerate the transportation of goods and services globally. Because of the need for companies to continue to promote innovation, the legislature proposed measures to repeal certain provisions of the Companies Act. Clause 4 of the Companies Amendment Bill of 2018 contains the proposed changes. The provision supports one of the cardinal ideals of an information society — to improve the free flow of information. However, the challenge with the section 4 provisions is that they are likely to endanger the sanctity of personal information stored online. Specifically, it is not completely clear to what extent the proposed amendments will enhance the integrity of online information, as opposed to weakening it.

Residual Goodwill – A Case of Discontinued Marks: Beiersdorf AG v Koni Multinational Brands (Pty) Ltd

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Residual Goodwill – A Case of Discontinued Marks: Beiersdorf AG v Koni Multinational Brands (Pty) Ltd

Author: Nomthandazo Mahlangu

ISSN: 1996-2185
Affiliations: Postgraduate assistant, Department of Mercantile Law,
University of South Africa
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 360 – 388
https://doi.org/10.47348/SAMLJ/v32/i3a3

Abstract

The remedy in passing-off is directed against a representation made by the respondent that amounts to a misrepresentation that damages the goodwill of a business. The applicant in a passing-off claim must successfully establish its existing goodwill. In circumstances where the applicant’s business is abandoned, the accumulated goodwill may continue to subsist in the form of residual goodwill that is retained in the distinctive mark long after the business has ceased to exist. This article aims to explore whether the discontinued use of the get-up amounts to the abandonment of goodwill where the business continues, and whether residual goodwill subsists in the abandoned get-up, in the light of Beiersdorf AG v Koni Multinational Brands (Pty) Ltd 2019 BIP 23 (GJ). The article further examines the underlying challenges surrounding the application of the concept of residual goodwill, in particular where the applicant has abandoned the use of the mark or get-up, and the consequences that arise.

A Reflective Assessment of Selected Problematic Aspects of South Africa’s Appraisal Remedy Regime Against the Backdrop of Cilliers v La Concorde Holdings Ltd

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

A Reflective Assessment of Selected Problematic Aspects of South Africa’s Appraisal Remedy Regime Against the Backdrop of Cilliers v La Concorde Holdings Ltd

Authors: J Mudzamiri & PC Osode

ISSN: 1996-2185
Affiliations: LLD candidate, Nelson R Mandela School of Law, University of Fort Hare; Professor of Commercial Law and Regulation, Nelson R Mandela School of Law, University of Fort Hare
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 389 – 406
https://doi.org/10.47348/SAMLJ/v32/i3a4

Abstract

Several policy rationales have been offered as justifications for the new appraisal remedy, including its functioning as a credible exit vehicle for disgruntled shareholders upon receipt of payment of a ‘fair value’ for their shares. However, against the backdrop of the High Court decision in Cilliers v LA Concorde Holdings Ltd, this article explores two problematic issues regarding the practical application of the appraisal remedy. The first issue relates to who may access the remedy, while the second relates to the complexity, costs, and rigidity of the procedure that must be followed to access successfully the inherent benefits of the appraisal remedy. The paper argues, in the first instance, that the court’s decision in Cilliers to allow disgruntled shareholders in a holding company to access appraisal rights in relation to a subsidiary is salutary; and, secondly, that the complexity, costs, and rigidity of the appraisal procedure can be alleviated through the revision of some of the underlying statutory provisions.

The Impact of Deepfakes on the Right to Identity: A South African Perspective

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

The Impact of Deepfakes on the Right to Identity: A South African Perspective

Author: Nomalanga Mashinini

ISSN: 1996-2185
Affiliations: Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 407 – 436
https://doi.org/10.47348/SAMLJ/v32/i3a5

Abstract

The right to identity aims to protect the subjective interests of individuals in their likeness, image, voice, and other distinctive personality attributes. The right to identity is legally recognised in South Africa, but deepfakes have a tendency to devalue this right. Deepfakes are created with deep learning software that enables users to create deceptive videos, sound recordings, and photographs of events and people that are indistinct from reality. This goes against a person’s right to control the use of their likeness. South African law does not directly regulate the creation and publication of deepfakes. Liability for the publication of deepfakes may be established using principles in different fields of law, such as the law of delict and criminal law. However, the dissemination of deepfakes on the internet continues to evolve, as they become more difficult to detect, and this necessitates a new perspective on how to provide sufficient remedies for victims whose right to identity is violated through deepfakes. It also calls for the refinement of establishing the liability of people who are tagged to deepfakes posted on social media. This article aims to highlight the challenges in protecting the right to identity and establishing liability under South African law in the context of deepfakes.