The balancing act continues: Recommendations for reform of the National Credit Act 34 of 2005

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

The balancing act continues: Recommendations for reform of the National Credit Act 34 of 2005

Author: Bronwyn Le-Ann Batchelor

ISSN: 1996-2185
Affiliations: Head of Faculty: Law at the Independent Institute of Education
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 241 – 272
https://doi.org/10.47348/SAMLJ/v35/i3a1

Abstract

Through the enactment of the National Credit Act 34 of 2005 (‘NCA’), the government has focused on the protection of consumers with regard to credit agreements. Legislative protection is necessary due to the parties’ unequal bargaining power at the agreement’s conclusion. Despite these endeavours, there is still the common occurrence of a breach of the agreement by consumers and the ensuing recovery process by credit providers. The equitable balancing of the rights and responsibilities of the parties is essential to the well-being of the parties, the credit industry and the economy. The pre-enforcement procedure is at the centre of the tug of war between the parties. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines the balancing of the parties’ rights and responsibilities through its interpretation and application. The section falls short in a number of areas and has resulted in disputes, interpretations and two subsequent amendment acts. This article critically analyses section 129 and determines if the rights of both parties have been equally protected, with reference to the burden of bringing the section 129 notice to the consumer’s attention, based on two schools of thought. The article then contributes to the balanced interpretation of the section by way of amendment recommendations.

The application of the Compensation for Occupational Injuries and Diseases Act on impairment caused by sexual harassment

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

The application of the Compensation for Occupational Injuries and Diseases Act on impairment caused by sexual harassment

Author: Kamalesh Newaj

ISSN: 1996-2185
Affiliations: Associate Professor: University of Pretoria
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 273 – 297
https://doi.org/10.47348/SAMLJ/v35/i3a2

Abstract

This article addresses the question of whether a sexually harassed employee has recourse to the Compensation for Occupational Injuries and Diseases Act 130 of 1993. This is dependent on whether injuries or diseases sustained as a result of sexual harassment can be regarded as injuries or diseases that arise out of and in the course of employment. A very restrictive test has been developed to answer this question, which is whether the act giving rise to the injury or disease, in this context sexual harassment, can be regarded as a risk inherent to the work performed by the employee. The test focuses on the duties performed by the employee and the risks that are ordinarily inherent in the performance of those duties. Sexual harassment will generally not be regarded as a risk inherent to the performance of a job and is therefore discounted as an occupational injury or occupational disease. However, the courts’ approach is criticised for failing to interpret important social security legislation in line with international standards and in a purposive manner that gives effect to the constitutional right afforded to everyone to access social security.

Evaluating South Africa’s maternity protection legal regime applicable to non-standard female workers’ compliance with the Maternity Protection Convention 183 of 2000

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

Evaluating South Africa’s maternity protection legal regime applicable to non-standard female workers’ compliance with the Maternity Protection Convention 183 of 2000

Authors: Mpho Mhlongo & Clarence Itumeleng Tshoose

ISSN: 1996-2185
Affiliations: Lecturer, School of Law, University of Limpopo; Professor of Labour and Social Security Law, School of Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 298 – 326
https://doi.org/10.47348/SAMLJ/v35/i3a3

Abstract

This article scrutinises maternity protection for women engaged in non-standard employment relationships in South Africa. It examines the current employment laws that provide maternity protection to females engaged in non-standard work. It is submitted that the insufficient protection afforded to these employees means that they do not enjoy the four-month maternity leave afforded to female employees in terms of section 25(1) of the Basic Conditions of Employment Act 75 of 1997. To alleviate this challenge facing female non-standard workers, the International Labour Organization introduced the Maternity Convention 183 of 2000 (‘the Convention’). This Convention accommodates and protects females engaged in non-standard work. However, the challenge lies in the failure to ratify the Convention, which has resulted in the provisions of the Convention not being operationalised in South Africa. It is submitted that its ratification could enhance the maternity protection of workers engaged non-standard work. For example, Article 4 of the Convention provides for inclusive access to maternity leave for all women, regardless of their employment contract. This provision calls for access to maternity leave of at least 14 weeks, and a compulsory leave period of six weeks after childbirth should be made accessible to the mother, in order to give her sufficient time to rest and recover before going back to work.

Using market inquiries: A sharper tool for competition authorities?

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

Using market inquiries: A sharper tool for competition authorities?

Authors: Itumeleng Lesofe & Siphosethu Tetani

ISSN: 1996-2185
Affiliations: Principal Analyst, Competition Commission SA; Senior Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 327 – 369
https://doi.org/10.47348/SAMLJ/v35/i3a4

Abstract

The emergence of new markets, especially in the digital sector where business models are complex and innovation is constantly changing the competition landscape, has brought about new regulatory challenges for competition agencies across the world. These challenges may require a departure from the traditional tools of enforcement and the development of a somewhat new regulatory approach. In middle-income countries, the need for the adjustment of enforcement tools is further necessitated by persistent and stubbornly high levels of concentration in key sectors that have a potential to contribute to the realisation of an inclusive and growing economy. For example, in South Africa, the Competition Commission of South Africa (CCSA) has recorded unquestionable successes in cartel enforcement in the past two decades, with hefty fines imposed against those found to have participated in cartel conduct. However, the application of traditional tools of enforcement in abuse of dominance cases has borne little success and, as a result, key industries such as steel and agriculture remain highly concentrated. This has prompted government, through the Department of Trade, Industry and Competition, to strengthen the powers of the CCSA by, among other things, adding to its toolbox the power to conduct market inquiries. This article examines whether market inquiries are best suited, and a more effective enforcement tool used to address market concentration challenges in South Africa. The article draws from market inquiries conducted by the CCSA in banking, data, and digital sectors. It also critiques the CCSA’s powers to conduct market inquiries.

Does a settlement agreement between litigants in a civil dispute terminate the jurisdiction of the court?

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

Does a settlement agreement between litigants in a civil dispute terminate the jurisdiction of the court?

Author: R C Williams

ISSN: 1996-2185
Affiliations: Professor Emeritus, University of KwaZulu-Natal Pietermaritzburg
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 370 – 389
https://doi.org/10.47348/SAMLJ/v35/i3a5

Abstract

This article addresses the legal consequences of a settlement agreement concluded, prior to judgment, between litigants engaged in a civil dispute, with a particular focus on the effect of such an agreement on the jurisdiction of the adjudicating court. Does the settlement agreement terminate the jurisdiction of the court in respect of the litigated issues? Or does the court have the power to ignore the settlement agreement if it does not reflect the equities of the dispute between the litigants and give a judgment based on its own assessment of the equities of the claim and the defence? Or if the court takes the view that the settlement agreement is an attempt by the litigants to avoid the judicial scrutiny of improper conduct û in which event can the court give an order that will prevent the litigants from carrying out the agreement? The focus of this article is the conflict, in this regard, between two recent decisions of the Supreme Court of Appeal.

Case Note: A discussion of penalties for non-compliance with picketing rules: Clover SA (Pty) Ltd v General Industries Workers Union of South Africa & others [2021] 4 BLLR 419 (LC)

by | Oct 13, 2024 | SAMLJ, SAMLJ V35 I3

Case Note: A discussion of penalties for non-compliance with picketing rules: Clover SA (Pty) Ltd v General Industries Workers Union of South Africa & others [2021] 4 BLLR 419 (LC)

Author: Mashudu Monica Mulaudzi

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 35 Issue 3, 2023, p. 390 – 407
https://doi.org/10.47348/SAMLJ/v35/i3a6

Abstract

None