Research Articles (Mercantile Law)

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Activation in the context of the unemployment insurance system in South Africa
(Juta Law Publishing, 2011-01) Govindjee, Avinash; Olivier, Marius; Dupper, Ockert
The main aim of labour market activation policies is to bring jobless people from unemployment or inactivity into work or, at the very least, to influence the employment prospects of the unemployed positively. Activation schemes typically make benefit receipt conditional upon job search activities, acceptance of available job offers and participation in training activities. This article addresses the appropriate role of the Unemployment Insurance Fund (UIF) in the establishment of activation in South Africa. It focuses on a number of principled and practical considerations and constraints that challenge the use of activation mechanisms, such as the fragmentation of the existing legal and institutional frameworks, the lack of available employment opportunities and human rights considerations. It is argued that the limited and short-term impact of the UIF, its strong labour-market orientation and its inability to appropriately contribute to preventing and combating unemployment or to reintegrate the unemployed into the labour market all point to the urgent need to reform the UIF. The gaps in the current unemployment insurance system are highlighted, as is the need to enhance the relationship between the unemployment insurance system and (appropriate) activation measures. The role of existing social security and employment creation initiatives in this dynamic is also considered. In particular, the absence of a link between those excluded from the UIF and the activation mechanisms introduced by the Skills Development Act 97 of 1998 is underscored. Proposals contained in the Employment Services Bill are also evaluated. It is suggested that an expanded form of employment services provision, incorporating a network of labour centres, ought to receive prioritisation in the South African context. This must be coupled with a move to consolidate the various available governmental databases in terms of which unemployed persons may register as job-seekers. The creation of an enabling framework to achieve such goals would require a variety of legislative changes, some of which are discussed in the article.
Affirmative” (measures in) action? revising the lawfulness of racial quotas (in South African (professional) team sports)
(University of Pretoria, 2019) Louw, Andre M.
This contribution critically examines the lawfulness of the use of race quotas in the selection of South African (professional) sports teams. These quotas purportedly function as affirmative action measures, and their legitimacy in this light is considered with reference to relevant case law on affirmative action and, more specifically, on the use of quotas in the application of affirmative action (as this has featured in other contexts in the case law to date). In the process, the author evaluates the constitutionality of such quotas (with specific reference to their apparent irrationality in the specific context of (professional) sport and its nature and characteristics). The piece further considers the legitimacy of these quotas at the domestic level in light of the application of the applicable labour legislation (specifically the Employment Equity Act, 1998), and at the international level in light of the applicable rules of international sports governing bodies in the relevant sporting codes. The author concludes that these race quotas are unconstitutional and have no legitimate place in South African sport and in the continuing process of sports transformation, and calls for their abolishment as a matter of urgency.
Die aftrekbaarheid van rente en huurgeld vir inkomstebelastingdoeleindes
(Juta Law, 2007-01) Taljaard, C.; Du Plessis, I.
In die onderhawige saak het BP Suid-Afrika (Edms) Beperk ("BPSA") op 'n kwartaallikse grondslag dividende aan sy houermaatskappy, BP Plc, verklaar. Sodanige verklarings is deur die houermaatskappy vereis. BPSA het in die betrokke jaar van aanslag oor verdeelbare reserwes van R683 miljoen beskik welke reserwes die maatskappy volgens getuienis sou wou behou. BP plc het egter sy belegging in Suid-Afrika op daardie stadium as riskant beskou en wou die fondse uit die land neem. Die gevolg was die verklaring van 'n dividend van R683 miljoen.
Alternative strategies to protect the existing view from a property
(Juta Law, 2016-03) Kriek, C. A.; Van Der Walt, A. J.
In terms of the common law, a South African property owner does not have an inherent right to the existing view from her property over adjoining properties, although the existing view from her property can be protected with a servitude that prevents or restricts building works on adjoining land. Furthermore, there are (weak and inconclusive) indications that the view from a specific property may be protected as an inherent part of landownership in exceptional circumstances, where the view forms an integral part of the use and enjoyment of the property and where the protection of that view was an important consideration in the development of land in that area. Apart from these rather limited circumstances, landowners can generally not claim an inherent right, as part of their ownership, to uphold the undisturbed prospect from their land against the wish of neighbouring owners to develop and build on their land.
The application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements
(North-West University, Faculty of Law, 2019-11-15) Jansen van Rensburg, Enelia
General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context otherwise requires. All South African DTAs include such a clause. Many interpretational issues remain with regard to the application and interpretation of general renvoi clauses. This article considers four of these issues in the light of South African cases in which general renvoi clauses were referred to. The following cases are considered: ITC 789 (1954) 19 SATC 434, Baldwins (South Africa) Ltd v Commissioner for Inland Revenue (1961) 24 SATC 270 and Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA). The first of the issues considered in the article is relevant in those cases where a DTA includes a general renvoi clause based on the pre-1995 version of article 3(2) and where amendments were made to a relevant domestic meaning after the conclusion of the particular DTA. These clauses do not expressly state whether the relevant domestic meaning is the domestic meaning existing at the time of the conclusion of the DTA, or at the time of the application of the DTA. The second issue arises if the expression used in the domestic law is not identical to the undefined treaty term. The question is whether the expression in the domestic law can be used to give meaning to the treaty term under the general renvoi clause. Another interpretational issue considered in the article concerns deeming provisions in the domestic law. The issue is whether a meaning that a term is deemed to have under a provision in domestic legislation can be used under the general renvoi clause to give meaning to the undefined term in the DTA. The last issue deals with the meaning of the phrase "unless the context requires otherwise". The question raised is whether this phrase means that the domestic meaning should be given only as a "last resort", or whether it should apply unless "reasonably strong" arguments to the contrary are made.
Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1)
(Juta Law, 2014-04) Brits, R.; Van Der Walt, A. J.
Direct execution of a judgment debt against immovable property - including those burdened with mortgage bonds - is permissible in the high court on the condition that "where the property sought to be attached is the primary residence of the judgment debtor, no writ [of execution] shall be issued unless the court, having considered all the relevant circumstances, orders execution against such property." The amended rule is a result of section 26 of the Constitution of the Republic of South Africa, 1996 and reflects the principle that was established earlier in Jaftha v Schoeman; Van Rooyen v Stoltz with regard to the magistrates' courts' execution process. The housing clause provides as follows: "(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions." To give effect to debtors' rights under section 26(1), the constitutional court held in the Jaftha case that a clerk of the court may no longer grant judgments by default against primary residences. Rather, a magistrate must grant the order and may do so only after all the relevant circumstances have been considered. The case involved insignificant, unsecured debts that were enforced against vulnerable debtors' state-subsidised houses. It was therefore not immediately apparent that section 26 would apply also in the general context of mortgage bonds being enforced in the high courts.
Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 2)
(Juta Law, 2014-01) Brits, R.; Van Der Walt, A. J.
The proportionality test to determine the justification of execution against a home revolves around various contextual considerations. Yet, it appears that the enquiry will largely centre on the size of the outstanding debt and – significantly – of the actual arrears, as compared to alternative ways that are available to satisfy the claim for either or both of these amounts. For mortgage law to comply with the proportionality standard, the process must include a way to have recourse to reasonable, creative alternatives before a home is sold in execution. In terms of common law doctrine, a mortgage is a limited real right that the creditor holds in the debtor’s hypothecated land. The most prominent element of this property right is the creditor’s entitlement, when the debtor defaults, to call up the bond and insist on the sale of the burdened property to settle the debt. Because the mortgagee has a right to execute against that specific property on the basis of its limited real right in that property, it has no duty to first seek execution against other assets, such as movables or non-primary residences.
B & B establishments, hotels and the praetorian edictum de nautis cauponibus et stabulariis : cessante ratione legis cessat lex ipsa
(Juta Law, 2006-01) Van der Bijl, Charnelle
The most significant action in terms of which innkeepers could be held liable for the theft of their guests’ property can be traced back to the praetor’s edict de nautis cauponibus et stabulariis. The actio de recepto was a remedy granted to give effect to a form of guarantee known as the receptum, to protect a customer who had to deliver his possessions into the custody of mariners, innkeepers or stable-keepers, the so-called nautae, caupones and stabularii (see Davis v Lockstone 1921 AD 154 at 157; Gabriel & another v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C); Reinhard Zimmermann The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) 515).
The case in favour of substantive tenure reform in the landlord-tenant framework : the Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele; City of Johannesburg Metropolitan Municipality v Blue Moonlight
(Juta Law, 2011-01) Maass, Sue-Mari; Van Der Walt, A. J.
The tenure reform programme, which forms part of the land reform programme, consists of two strategies. These are, first, the transformation of weak tenure through the implementation of dedicated structural reforms, and secondly, the development of general anti-eviction provisions that prevent arbitrary forced removals, which were traditionally associated with apartheid land law (A J van der Walt Constitutional Property Law (2005) 309-10).
The challenging relationship between contemporary art and copyright
(Juta Law, 2019) Sawyer, Matthew; Karjiker, Sadulla
This article seeks to address the current wording of the definition of ‘artistic work’ in the Copyright Act 98 of 1978. It is argued that such wording has failed to aid courts in interpreting it in a way that allows for a broadening of its scope so as to include new art forms — most importantly, for this article, multimedia installations. Analysis of the Copyright Act’s definition of ‘artistic work’ is applied to four contemporary and prominent multimedia installation artworks to determine whether such creations would fall within this definition. The outcome of this analysis shows that, although certain multimedia installation creations are provided protection under the current definition, there are artworks that do not satisfy the requirements under this definition. It is thus proposed in this article that certain amendments should be made to the Copyright Act that will afford such excluded artistic works copyright protection. Finally, this article conducts an analysis of the possible adverse effects that could arise should such amendments be effected to the wording of the Copyright Act in terms of the requirements of materiality and originality. Through the application of these two requirements to further examples of multimedia installation artworks, the conclusion is reached that these requirements would not render the proposed amendments superfluous or problematic.
Circumventing veil piercing: possible delictual ability of a holding company to a creditor of its insolvent subsidiary
(Juta, 2013) Stevens, Richard
A holding company often issues a letter of comfort to a creditor of its subsidiary company. The subsidiary company often then defaults on its obligations to that creditor. The courts generally have held that a letter of comfort does not create binding contractual obligations between the holding company and the creditor. This article investigates whether the creditor could hold the holding company liable in delict for the losses that the creditor suffered due to the default of the contractual obligations by the subsidiary company to that creditor. The article specifically considers the element of wrongfulness and whether there could be a legal duty on the holding company not to cause pure economic loss to the creditor of its subsidiary in circumstances where the holding company issued a letter of comfort to the creditor. This article investigates the requirements of a legal duty in cases of pure economic loss as well as the nature of a letter of comfort. The article concludes that a legal duty could be placed on a holding company not to cause pure economic loss to the creditor of its subsidiary depending on the wording of the letter of comfort and without sacrificing the principle of separate juristic personality that exist between the holding company and subsidiary company.
CISG and regional sales law : friends or foes
(Unisa Press, 2015-07) Coetzee, Juana
Economic co-operation and integration brings with it a need to harmonise mechanisms for the regulation of international trade, not only at a public-law level between states but also at a private-law level between traders inter partes. It is often forgotten that differences in the substantive law applicable to a contract function as a non-tariff barrier to trade. Because international trade facilitates economic development, the focus in this article is on the harmonisation of sales laws. Traditionally, private law harmonisation has been conducted by international private or inter-state organisations that specialise in the harmonising of law ata global level. Today, private organisations and groups devoted to harmonising business laws, as well as regional economic integration organisations, are also pursuing legal harmonisation. Global, regional and domestic laws now all exist in the same area of the law, which can give rise to duplication of efforts and problems with the co-existence of global and regional sales law. This article will discuss these issues with reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG) and selected regional laws in considering whether regional harmonisation can act as a stepping stone towards increased harmonisation at a global level or whether it is to be viewed as a threat to global integration and harmonisation.
The cloning of credit cards: the Dolly of the electronic era
(Juta Law Publishing, 2007-02) Van der Bijl, Charnelle
INTRODUCTION: The long-awaited and much-anticipated EMV (Europay, Mastercard and Visa) system aimed at combating credit and debit card fraud has recently been launched by ABSA. VISA branded debit cards will contain a special chip and transactions will be verified, using a four-digit personal identification number, which will be keyed in instead of the signing of receipts. The introduction of the EMV bank chip smart card system, which is to replace magnetic stripe cards with microchip cards, is aimed at eliminating the risks of unauthorised use. A smart card is a plastic card based on cryptography with a microcomputer chip in it, which is swiped at a payment terminal, or smart card reader that verifies the smart card as being genuine by sending a random code. This code in turn is responded to by the microchip, which together with a security access code such as a PIN (Personal Identification Number), acts as a type of secret key. Smart card technology therefore refers to the microcomputer-embedded technology linked to the card rather than to the purpose of the card.
The close connection test for vicarious liability
(Juta Law Publishing, 2007-01) Calitz, Karin
The requirements for the vicarious liability of an employer are threefold : an employment relationship, the commission of a delict, and that the delict must have been committed within the scope (sometimes course and scope) of employment. The last requirement ensures that there is a measure of fairness towards the employer who is held strictly liable. Hierdie artikel ondersoek die toets vir middellike aanspreeklikheid wat deur die Konstitusionele Hof in NK v Minister of Safety and Security ontwikkel is vir gevalle van opsetlike wangedrag deur 'n werknemer. In hierdie saak het drie polisiemanne 'n jong vrou verkrag terwyl hulle aan diens was. In die verlede was hierdie tipe gevalle problematies omdat sodanige gedrag as buite die diensbestek beskou is. Die hof hang egter nie 'n eng siening van diensbestek aan nie en steun op die noue verbandtoets (close connection test) wat onlangs in verskeie ander gemeenregtelike jurisdiksies toegepas is. Dis 'n objektiewe toets wat 'n noue verband tussen die gedrag van die werknemer en sy pligte vereis. Die Konstitusionele Hof het egter in hierdie saak die noue verbandtoets ontwikkel om konstitusionele norme te reflekteer. In die NK saak is bevind dat die werkgewer aanspreeklik is omdat daar 'n noue verband tussen die dade van die polisiemanne en hulle konstitusionele pligte bestaan. Die probleem met hierdie toets is dat die hof 'n algemene toets vir middellike aanspreeklikheid by opsetlike wangedrag neergelê het, maar nie 'n aanduiding gegee het oor hoe dit aangewend moet word in gevalle waar konstitusionele regte en pligte minder prominent is nie. Daar word aan die hand gedoen dat die opsetlike verbreking van 'n plig teenoor 'n sekere persoon of persone die noue verband tussen plig en daad daar sal stel. Om die noue verbandtoets deur 'n konstitusionele bril te beskou is verwarrend en bring nie noodwendig meer gewensde resultate mee nie.
Commissioner, South Afrikan Revenue Service v Brummeria Renaissance (PTY) LTD and others : does the judgement benefit an understanding of the concept amount
(Juta Law Publishing, 2008-01) Jansen van Rensburg, Enelia
INSTRODUCTION: It has been said that the decision by the Supreme Court of Appeal (SCA) in Commissioner, South African Revenue Service v Brummeria Renaissance (Pty) Ltd is the most important tax case decided in the past 30 years. The case has far-reaching consequences for the many retirement village developers who financed the construction of units in retirement villages by obtaining interest-free loans from retirees in return for granting occupation rights in respect of these units. Questions have also been raised regarding the possible application of the decision to other interest-free loans and even other areas of taxation law. The case deals with the question whether a borrower of money under an interest-free loan can be taxed on the “benefit” of not having to pay interest. This paper argues that this question should be answered in the negative, since the borrower does not acquire property and no amount accordingly accrues to or is received by her, as required by the definition of “gross income”.
The Common Law is not what it used to be : revisiting recognition of a constitutionally-inspired implied duty of Fair Dealing in the Common Law Contract of Employment (Part 1)
(North-West University, Faculty of Law, 2018) Louw, Andre M.
This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
The Common Law is not what it used to be : revisiting recognition of a constitutionally-inspired implied duty of fair dealing in the Common Law Contract of Employment (Part 2)
(North-West University, Faculty of Law, 2018) Louw, Andre M.
This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
The Common Law is not what it used to be : revisiting recognition of a constitutionally-inspired implied duty of fair dealing in the Common Law Contract of Employment (Part 3)
(North-West University, Faculty of Law, 2018) Louw, Andre M .
This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
A comparative perspective on the "joint-action rule" in the context of business trusts
(Juta Law Publishing, 2014-01) De Waal, M. J.; Du Plessis, I.
The "joint-action rule" in South African trust law entails that all trustees must act jointly in order to bind the trust. Non-compliance with the rule will most often lead to the invalidity of a contract between the trustees and an outsider. Hence, in the context of business trusts, the application of the rule may be particularly problematic. We submit that the main reason why the business trust remains a useful institution is that the trust brings with it, through the importation of certain standard features, important advantages that need not be specifically bargained for. However, normal rules of trust law, such as the joint-action rule, must also be complied with. Hence, mechanisms to ameliorate some of the problematical effects of this rule can be put in place, such as provisions stipulating that decisions can be taken by a majority of the trustees, or that the trustees can delegate certain defined duties or powers. It is clear, however, that difficulties remain and that South African courts are still facing challenges in developing this area of trust law. But South Africa is not the only trust jurisdiction where the joint-action rule applies and where mechanisms have been developed to address the difficulties experienced with this rule. Comparing the position in South Africa to that in England, Scotland and Canada (including Québec), a remarkable degree of similarity between South Africa, on the one hand, and the other jurisdictions, on the other, as far as the basic application of the joint-action rule is concerned, can be noted. However, there are a number of differences as well. In many of the other jurisdictions legislation generally plays a much bigger role than in South Africa and it may provide a rich source of ideas for the development of this area of South African trust law.
A comparative perspective on the application of domestic labour legislation in international employment disputes
(Juta Law Publishing, 2013-01) Calitz, Karin; Garbers, Christoph
An analysis of different methods of dealing with the application of domestic legislation in international employment disputes in the chosen jurisdictions indicates that two broad approaches are followed, namely a private international law approach and an interpretive approach. It is recommended that South Africa should follow a combination of these approaches, as is done in Britain, instead of the strict interpretive approach followed currently. This would entail that in deciding whether legislation is applicable, the court should take connecting factors into consideration. More specifically, it is further recommended that the definition of "employee" in the Code of Good Practice: Who is an Employee? be amended to provide guidelines to the Labour Court and the CCMA regarding connecting factors.

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