Mercantile Law

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Open Access
Ontslag van maatskappydirekteure in die Suid-Afrikaanse reg
(University of the Free State, 1986-01) Du Plessis, Jean Jacques; Henning, J. J.
Afrikaans: Daar bestaan heelwat onsekerhede aangaande die ontslag van maatskappydirekteure in die Suid-Afrikaanse reg. Hierdie onsekerhede spruit hoofsaaklik voort uit die gebrek aan 'n konsekwente onderskeid tussen die verskillende hoedanighede waarin 'n enkele persoon teenoor die maatskappy kan staan en dié waarin hy kan staan teenoor ander individue wat by die intrakorporatiewe verhoudingstruktuur betrokke is. 'n Faktor wat gewis 'n verdere verwarrende invloed het, is die feit dat daar aan 'n begrip soos "besturende direkteur" tans geen vaste regsinhoud gekoppel kan word nie. Juis daarom word die regsposisie van die direkteur en besturende direkteur in die besonder oorweeg en word daar gewys op aspekte soos die begripsverwarring tussen die Engelse en Suid-Afrikaanse reg, probleme ten opsigte van die onderskeid tussen werknemerskap, direkteurskap en besturende direkteurskap, en word die nie-kontraktuele verhouding tussen die direkteur en die maatskappyook oorweeg. As gevolg van ontslag kan daar in sekere gevalle 'n reg op skadeloosstelling of skadevergoeding bestaan. Alhoewel die grondslag van die reg op skadevergoeding nie al tyd konsekwent verklaar word nie, kan die aanwending van gewone kontraktuele beginsels 'n belangrike rol speel in die oplossing van bestaande probleme rondom die reg op skadevergoeding. Indien kontraktuele beginsels suiwer toegepas word en die besondere posisie waarin die direkteur hom bevind, in ag geneem word is daar geen klaarblyklike rede waarom die ontwikkeling op hierdie gebied nie op 'n behoorlike beginselgrondslag geplaas kan word nie. Faktore wat egter ongetwyfeld in samehang met die kontraktuele oorwegings beskou moet word, is onder andere dat ontslag ingevolge bepalings in die maatskappykonstitusie of ingevolge die statutêre middel kan geskied, dat die reg op skadevergoeding die direkteur in bepaalde gevalle ontneem kan word en dat daar besondere oorwegings ter sprake kan kom in die geval van die besturende direkteur met 'n dienskontrak. Alhoewel die ontslag van direkteure 'n aangeleentheid is wat volledig in die maatskappykonstitusie gereël kan word, is 'n statutêre middel steeds nodig om die lede in die finale instansie beheer te gee oor die bestuur van die maatskappy. Enige statutêre middel wat die beskerming van die lede as oogmerk het en wat hierdie oogmerk wil bereik deur voorsiening daarvoor te maak dat 'n direkteur wat nie meer die belange van die maatskappy (en daarmee saam ook nie die belange van die lede nie) op die hart dra nie, ontslaanbaar moet wees, moet vir 'n verskeidenheid van gevalle voorsiening maak. Die huidige statutêre middel wat ontslag van maatskappydirekteure in die Suid-Afrikaanse reg reël (art 220 van die Maatskappywet 61 van 1973), voldoen wel aan sommige van die vereistes wat nodig is om gevolg aan die ware oogmerk van so 'n middel te gee. Daar bestaan egter ook heelwat leemtes wat vandag gebruik word en ook somtyds misbruik word om direkteure onontslaanbaar te maak. Hierdie gevalle het hoofsaaklik betrekking op ooreenkomste tussen die maatskappy en 'n derde, die feit dat langtermynkontrakte van direkteure nie noodwendig deur die algemene vergadering goedgekeur hoef te word nie en dat daar geen duidelikheid in die Suid-Afrikaanse reg bestaan oor die vraag of 'n belading van stemme wat net by ontslag-besluite ter sprake kom, geldig is nie. Gevolglik word wetswysigings voorgestelom hierdie leemtes uit die weg te ruim. Selfs al word die voorgestelde wetswysiging deurgevoer, sal gevalle van ex lege-beskerming teen ontslag steeds behoue bly (onder andere deur die ontslagprosedure soos vervat in die statutêre reëling en deur die feit dat die te ontslane direkteur die maatskappy met likwidasie ingevolge art 344(h) van die Wet kan dreig). Daar sal ook steeds maatreëls bestaan waardeur ontslag voorkom kan word (onder andere deur die aangaan van stemooreenkomste). Die ex lege-beskerming teen ontslag en maatreëls ter voorkoming van ontslag wat dan nog bestaan, sal egter ongetwyfeld wettig en geregverdig wees.
Open Access
Gesamentlike en afsonderlike aanspreeklikheid as 'n statutere sanksie in die maatskappyereg en die beslote korporasiereg
(University of the Free State, 1989-10) De Koker, Louis; Henning, J. J.
Abstract not available
Open Access
The protection of minority shareholders in affected transactions: a comparative study
(University of the Free State, 2000-11) Du Toit, Sandra; Henning, J. J.
Open Access
Die multilaterale beleggingsooreenkoms (MAI): 'n kruispad vir internasionale beleggingsregulering?: kroniek
(Faculty of Law, University of the Free State, 2001) Wandrag, R.; Snyman, E.
Abstract not available
Open Access
Plea-bargaining in South Africa: the need for a formalised trial run: chronicles
(Faculty of Law, University of the Free State, 2001) Du Toit, S.; Snyman, E.
Abstract not available
Open Access
Internet related commercial crimes
(University of the Free State, 2001-11) Ebersöhn, Gerhardus Johannes; Henning, J. J.; Verschoor, T.
English: The purpose of this study was to determine whether these exists a need for legislation in South Africa criminalising Internet related commercial crimes and specifically computer-related crimes, which for all purposes refer to instances where computer experts (hackers) gain access to third parties' computers without authorisation or unlawfully interfere with the latter's computer systems as well as to instances where computer experts disseminate malicious computer programs that do the above. Collectively these instances are referred to as hacking and virus instances. The selling and/or distributing of hackers' tools (used to gain access to computer system or to interfere with the functioning of computer systems) and illegally obtained passwords are also examples of a computer-related crime, studied in this dissertation. In search for an answer to the above-mentioned question, this study assessed whether computer-related crimes can be accommodated by the current definitions of common law as well as statutory offences, with specific reference to the offences of theft, receiving stolen property knowing it to be stolen, fraud, theft by false pretences, malicious injury to property and crimen iniuria. After a thorough analysis of the current law obtaining in South Africa it was concluded that should local courts be willing to extend the application as well as the definitions of common law offences to computer-related crimes, then virtually all instances of computer-related crimes would be encompassed by the above-mentioned common law offences. Only the creation and possession of hackers' tools and illegally obtained passwords would not constitute offences in terms of the South African criminal law. It was further noted that should local courts refuse to extend the application of common law offences to computer-related crimes, then thirteen cyber-"transgression" have to be criminalised. Further note was taken of the South African Law Commission's draft bill, the Computer Misuse Bill, as a proposal to criminalise computer-related crimes. In order to assess whether such proposed legislation is in line with foreign legislation criminalising the above-mentioned aspects, this study also scrutinised the legislation of the United States, the United Kingdom, Singapore, the Netherlands as well as the newly enacted European Convention on Cybercrime. Certain recommendations were also made to the South African Law Commission with regard to the type of conduct that should be criminalised to bring foreseen South African legislation, dealing with cyber-related crimes, in line with foreign legislation.
Open Access
Tax laws harmonisation between Lesotho and the Republic of South Africa
(Faculty of Law, University of the Free State, 2001-12) Thabane, K. S.; Dednam, M. J.
English: Lesotho is geographically landlocked within the Republic of South Africa. Research has been done at border gates whereat Basotho shoppers are able to claim and gain reimbursement of the value-added tax amounts paid against shopping in South Africa. Basotho have to pay 10% general sales tax due on sales at the Lesotho side of the border. This arrangement is administratively difficult to implement and has therefore led to massive losses of sales tax revenue for Lesotho. Also, having acquired their trading stock free of value-added tax, branches of South African businesses are liable to commodity tax in Lesotho. Research has however revealed contrary practices as indicated. It is submitted that the existence of different laws governing economic activities in countries that cannot avoid interacting with one another leads to skewed distribution of resources amongst these countries. It remains unclear whether the provisions of the Lesotho valueadded tax law will address the widespread abuse of the system as well as the glaring evasion of the tax being experienced by Lesotho today. It is in the light of the abovementioned that the hypothesis of this article was formulated: that the efficient collection of tax revenue, the decline in the abuse of the tax system and the evasion of sales tax, will all occur to some significant extent if, amongst others, the Lesotho value-added tax legislation is in harmony with its South African equivalent. In conclusion the harmonisation of the tax rates provided for by statutes of the two countries is recommended.
Open Access
Inkwisatoriese en akkusatoriese elemente in die Amerikaanse pleitonderhandelingsproses: rigtingwyser of waarskuwingsteken?
(Faculty of Law, University of the Free State, 2002-06) Fick, C. v.d. M.; Snyman-Van Deventer, E.
No abstract available
Open Access
Financial markets in the Southern African development community: the harmonisation and approximation of commercial laws
(Faculty of Law, University of the Free State, 2003) Henning, J.; Du Toit, S.
English: The free flow of capital has been identified as a critical factor in the process of reducing poverty in the SADC region, along with the lowering of trade barriers. While the trade protocols have been adopted and much has been made of the harmonisation of stock exchange listing requirements and central banking regulation, it is an effort at harmonising corporate law that is noticeably absent. This article focuses on the harmonisation of business law including the supporting financial markets and the process of corporate law reform in South Africa, Botswana and Zimbabwe.
Open Access
Trade in services: examples for SADC
(Faculty of Law, University of the Free State, 2003) Lehloenya, P. M.
English: Over the last few decades, the services sector has become an important component of world trade and the main income earner for many countries. Accelerated by the process of liberalisation, the effects of trade in services now traverse all countries. The main participants and beneficiaries, however, remain developed countries, while developing countries continue to play a marginal role. This comes as a result of a variety of factors ranging from developing countries' inexperience in producing services for export purposes, to trade rules that are more favourable to developed countries, to the complexity and cost of the measures necessary for developing countries to make a successful transition to the new arrangements under liberalisation. Notwithstanding the adverse conditions, opportunities exist in the legal framework developed under the WTO for developing countries to participate more meaningfully in trade in service. These include, inter alia, the possibility of collaborating with foreign firms and benefiting from their experience, as well as establishing regional joint ventures that can compete more effectively at the international level. In the end, the success of developing countries in penetrating the international services market will be determined by the extent to which their domestic service providers manage to adapt to the new trade environment, how all these countries exercise their options in choosing which services to liberalize and their timing in doing so, as well as their ability to resist pressure from developed countries to act against their better judgement.
Open Access
Regime on foreign direct investment within the Southern African Development Community (SADC): a comparative study of foreign direct investment (FDI) laws of select Southern African countries
(Faculty of Law, University of the Free State, 2003) Baloro, J.; Nulliah, Q.
English: This paper has as its emphasis the cogent need for the effective implementation of a general but uniform legal framework or environment for the treatment of foreign direct investment by the recipient African States. Hence its purpose, namely, the need to move towards the development of a harmonised legal regime on foreign direct investment within the Southern African Development Community. This necessitates a comparative study of the FDI laws of select South African countries, examining and analysing the principal features of the legal regimes of some of these countries with the aim of illustrating the areas of commonality and highlighting the differences. It also assesses the feasibility of developing or adopting an already existing model legislation on direct foreign investment by contracting parties to the SADC treaty. It thus proves instructive not to confine this paper to Southern African countries, but rather to draw from the experiences of various other countries on the African continent.
Open Access
Dispute resolution in NAFTA and the WTO: a useful guide for SADC?
(Faculty of Law, University of the Free State, 2003) Snyman-Van Deventer, E.
English: In the process of developing, structuring and formalising the mechanism for settlement of trade disputes in the SADC region, the system for the settlement of disputes in both NAFTA and the WTO can serve as a useful guide for SADC and even more so for the African Union. The swift, fair and just settlement of especially trade disputes will be a major factor in the economic development of the region and it is therefore necessary that a mechanism for the settlement of disputes is established that will serve the aims of SADC and its member states. This article provides an overview of the mechanisms for trade dispute resolution in the WTO and NAFTA as guide for SADC.
Open Access
Die vennootskap: goeie huweliksmaat met huwelik of konkubinaat?
(Faculty of Law, University of the Free State, 2003-06) Snyman-Van Deventer, E.; Henning, J. J.
English: In this article the legal position of people in a concubinate relationship after the breakup or dissolution of the relationship in the American, Dutch and South African law is compared. Various attempts in the American law failed to solve the problems that originate with the dissolution of marriages and concubinates or to establish a just and equitable system. In the Netherlands attempts were made to solve problems with living-together relationships, especially between members of the same sex. The South African courts have solved these problems by application of the partnership principles on these relationships through recognition of the universal partnership and its use as a just and equitable remedy.
Open Access
'n Verkenning van die soorte vennootskappe in die Amerikaanse reg
(Faculty of Law, University of the Free State, 2003-12) Snyman-Van Deventer, E.; Henning, J. J.
English: This article briefly comments on the various types of partnerships encountered in American law. The types of ordinary as well as extraordinary partnerships are identified. Ordinary partnerships are only analyzed to the extent that they differ from the standard ordinary partnership. In American literature reference is made to the mining partnership, the family partnership, the partnership in real estate and the farming partnership. This differentiation is primarily based on the type of business with which the partnership is concerned. However, the mining partnership and the farming partnership differ from the ordinary partnership in a number of ways, and, as a result of their unique attributes, are discussed in detail. A brief discussion of the types of extraordinary partnerships is necessitated in order to highlight their differences. The limited partnership is discussed briefly and only the main characteristics are named.
Open Access
Regsverteenwoordiging tydens dissiplinêre optredes en arbitrasies - 'n kort oorsig oor die huidige regsposisie
(Faculty of Law, University of the Free State, 2004) Deacon, J.
English: With the recent amendments to the Labour Relations Act 66 of 1995 the question of legal representation was raised again. This article deals with the current legal position and explains the advantages and disadvantages of legal representation during disciplinary action and arbitrations. In conclusion legal representation should always be an option for any party during any disciplinary action. The presiding officer should, however, have a discretion not to allow legal representation if circumstances allow it. Legal representation will definitely enhance and promote just and fair dispute resolution and disciplinary action. Legal practitioners can play a meaningful role in maintaining good labour relations and ensuring fairness between the employer and employee. There is little justification for summarily excluding legal representation.
Open Access
Seksuele teistering in die werkplek: 'n Suid-Afrikaanse perspektief
(Faculty of Law, University of the Free State, 2004) Snyman-Van Deventer, E.; Du Plessis, J. V.; De Bruin, J. H.
English: Sexual harassment in the workplace is a grave problem and it significantly impedes on a person's entrance into many sectors of the wage labour market. The number of sexual harassment complaints increases dramatically every year, although researchers estimate that 80 to 90% of sexual harassment cases go unreported. Despite the high figures, few South African court cases and legal literature deal with sexual harassment. The reason for this is that few persons who are harassed report a case for fear that they will lose their jobs or that they will become sources of ridicule. Sexual harassment is an infringement upon a person's personality and thus an iniurandi. The South African Constitution determines that there shall not be discriminated against any person and that includes a person's right to work without harassment and discrimination. It is therefore necessary that all employers ensure a safe environment without discrimination for all employees. Employers must adopt a policy on sexual harassment, communicate it to all employees and ensure that the policy be adhered to. If harassment does take place, the procedure and disciplinary process prescribed in the policy must be enforced.
Open Access
Die aanspreeklikheid van die lede van 'n bestuursraad en die administrateurs van aftreefondse
(Faculty of Law, University of the Free State, 2005) Du Plessis, J. V.
English: The liability for the non-compliance with fiduciary and statutory duties towards a retirement fund and the members or beneficiaries of such a fund is in many ways not clear for the members of the board or the third party administrator. The question that must be answered is under which circumstances the members of the board or the third party administrator will be held liable? This question is discussed in this article with reference to the duties prescribed by law as well as the determinations made by the adjudicator. The determinations of the adjudicator, although they do not constitute binding precedent, provide clear guidelines for the circumstances under which the different parties may be held liable.
Open Access
Special and differential treatment under the WTO with specific reference to the application of the Agreement on Agriculture
(University of the Free State, 2005-06) Monyakane, ’Mampolokeng ’Mathuso Mary-Elizabeth; Snyman-van Deventer, E.
When engaged in multilateral trade discourse developing countries have to take heed of involved principles and the general impact of the enforcement of such principles to their economic trade background. The principle of special and differential treatment is one of the principles that directly affect this category of states. It is therefore essential to know its proper interpretation and the ensued implementation. There is also the need for both the developed and developing countries alike to take special and differential treatment seriously in order to achieve indiscriminately the best system suitable for fair-trade practices.
Open Access
Dumping and antidumping regulations with specific reference to the legal framework in South Africa and China
(University of the Free State, 2006-05) Tao, Meng; Snyman-van Deventer, E.
From 1904 the world’s first antidumping law was enacted by Canada, South Africa followed in 1914, the GATT in 1947, and China in 1994. Over time, antidumping law has become a potent weapon in most countries of the world. South Africa and China, as member states of the WTO, increasingly participate in international trade and must remain aware of their legal right in respect of antidumping law. The purpose of this study is to identify and analyse some problematic issues of antidumping regulations, with specific reference to the legal framework in South Africa and China. With this purpose in mind, firstly, the background information and a brief history of the development of antidumping legislations by the international community, South Africa and China are discussed. Then, the issues of antidumping substantive law (including normal value, export price, dumping margin, injury, and domestic industry), especially with the problem of a nonmarket economy country and captive production, price undertaking, price undertaking reviews, and anticircumvention are analysed. In order to come to a clear understanding of the problems and solutions, the antidumping laws of the U.S., the E.U., South Africa and China are compared. This study resulted in the following conclusions: • The provision for a nonmarket economy country in the South African Antidumping Regulation is not adequate. China has no stipulation about this problem. • Both South African and Chinese antidumping regulations have no captive production provisions. The E.U. model is recommended. • With respect to price undertaking, the South African Anti- dumping Regulation followed the stipulations of the WTO. The Chinese Antidumping Statute is only superficially compliant with the WTO Antidumping Agreement. • The South African Antidumping Regulation leaves a gap with regard to price undertaking reviews. China has definite provisions on it. • With respect to anticircumvention, both countries’ antidump- ing regulations are not adequate, especially for China. Recommendations are made with regard to South African and China’s antidumping laws. This research is hoped to contribute to the improvement of the legal framework of antidumping regulations in South Africa and China.
Open Access
Legal comparison between the South African Close Corporation and the German "Gesellschaft mit beschränkter Haftung"
(University of the Free State, 2006-05) Jaehne, Christoph; Henning, J. J.
The GmbH and the close corporation within their respective legal contexts provide alternative legal options for small and medium sized business entities, giving them a simpler and less expensive legal form, thus satisfying the need for flexibility while guaranteeing liability limitations and continuity. While the maximum number of members in the GmbH is unlimited, the close corporation is restricted to ten members. Membership in the GmbH is open to natural and juristic persons alike. The close corporation is, generally speaking, only open to natural persons. Membership as such is expressed through shares in the GmbH and members' interests in the close corporation. The transfer of a share and a member’s interest is allowed. The regulations for transfer and restrictions vary. In both entities the members as such are the highest decision making organ. Regarding organs, the GmbH is more formally structured and has, as mandatory organs, the managing director and the shareholders' meeting. Such a strict distinction is not embodied in the CCA; and while the GmbH-members must appoint a managing director to represent the GmbH, the close corporation uses the partnership principle of mutua praepositio. Each member of the close corporation has the right to participate in the management of the affairs of the corporation. While for the GmbH articles of association are compulsory, in the close corporation it is up to the members whether they conclude an association agreement or refrain from doing so. The applicable legislative measures provide differently for the protection of the financial well-being of the entities. The GmbH as 'Kapitalgesellschaft' requires strict compliance with specific obligations imposed by its members regarding their share capital contribution, while for the close corporation various aspects of liability and external relations are equally important. The innovative liability solution found in the CCA is remarkable. Concerning transparency of financial matters the close corporation requires the position of an accounting officer, and through this achieves some kind of control with regard to the financial matters, which are otherwise an internal affair of the corporation. The GmbH is 'forced' to make its financial matters more transparent. Subject to specific conditions, companies are required to have their financial results audited and approved by a certified public accountant. In the African context it is noteworthy that the principal objectives of the African Union aim at accelerating political and socio-economic integration. Given the success of the close corporation this legal form, a Societas Africaea, utilized for smaller entrepreneurs, can play a role in achieving these goals. The reform process initiated through the SA DTI must take into account that the creation of wealth in South Africa is achieved by companies in which the close corporation plays an important part. Necessary reforms must therefore be pursued with precaution. A possible one-Act approach for South African company law is to be viewed critically as the differentiation between various types of enterprises should not easily be put aside. It will be interesting to see how the GmbH takes on the challenge of the new legal forms within Germany and the competition with similar foreign business forms now entering the German market as a consequence of the ECJ’s recent judgements and how the close corporation will develop within the context of a company law in the process of reform. It is also of relevance for the South African reform process to follow the developments in Britain. The close corporation has been commented on positively not only within South Africa. The recent discussion in the USA on the close corporation approach and its legal structure is of relevance here.