Research Articles (Mercantile Law)

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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
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
Is die essentialia van die vennootskap ondergeskik aan die bedoeling van die partye? 'n Oorsig oor die Suid-Afrikaanse reg
(Faculty of Law, University of the Free State, 2007-06) Snyman-Van Deventer, E.; Henning, J. J.
English: When determining the existence of partnership, it is necessary to establish whether the essentialia of a partnership are present. However, apart from the essentialia, the intention of the parties is regularly referred to and it is stated that the intention of the parties shall be conclusive, even in the presence of all the essentials. This article will attempt to illustrate that only the essentials are determinants for the existence of a partnership and that the intention of the parties can only refer to the intention to comply with the essentialia. The essentialia of partnership are: the making of a contribution by each partner; the business must be conducted to the joint benefit of all the parties; and the objective of the partnership should be to make and distribute profit. Although the essentials of the partnership seem cut and dried at first glance, the whole issue is clouded by a series of court rulings in which a further requirement, viz. the intention of the parties to create a partnership was added to the essentials by reference to contrary evidence that the agreement between the parties may not be a partnership agreement. With all due respect, this view cannot be concurred. The question that has to be asked is if the intention referred to is the intention to comply with all the requirements of the partnership or the intention to specifically create a partnership?
Open Access
Trade mark parody in South Africa - the last laugh!
(Faculty of Law, University of the Free State, 2007-12) Deacon, J.; Govender, I.
English: This article endeavours to find the balance (if any) in South African law between the rights of trade mark owners from infringement of their trade marks, and the constitutional right to free expression (with particular reference to parody) in a society that advocates the values of democracy and freedom. As intellectual property, registered trade marks deserve the protection of the law, a careful balancing act between property rights and fundamental freedoms must be performed to determine if one outweighs the other. In this regard Laugh It Off Promotions CC v South African Breweries International will be discussed. The position of parody in South African trade mark law desperately needs to have a last laugh, once and for all.
Open Access
Prosedurele billikheid by ontslag weens wangedrag: hoe "billik" moet 'n werkgewer wees?: kroniek
(Faculty of Law, University of the Free State, 2008-12) Deacon, H. J.
Afrikaans: In terme van die Grondwet het elkeen die reg op billike arbeidspraktyke. Die reg word in die Wet op Arbeidsverhoudinge herhaal in die sin dat elkeen die reg het om nie onbillik ontslaan te word nie.
Open Access
To suspend or not to suspend
(Faculty of Law, University of the Free State, 2009-06) Conradie, Maralize; Deacon, Jaco
English: For many employers, the suspension of an employee literally amounts to a headache. The question which usually comes to mind is: What do I have to do before I can suspend an employee? This article investigates the nature of the suspension, the courts' application thereof and makes recommendations on procedural aspects.
Open Access
Die statutêre raamwerk van taalbeleid in openbare skole en die implikasies van die twee Ermelo-uitsprake: kroniek
(Faculty of Law, University of the Free State, 2010) Colditz, Paul; Deacon, Jaco
Afrikaans: ale is die stambome van volkere. Hierdie woorde onderstreep die diep gewortelde emosie en sterk standpunte oor taal. Met hierdie agtergrond en binne die raamwerk van 'n land met 11 amptelike landstale en 'n grondwetlike bedeling met fundamentele regte, is die tafel gedek vir een van die mees omstrede aspekte binne onderwys: taalbeleid binne skole.
Open Access
Sexual harassment in the education sector
(Academy of Science of South Africa (ASSAf), 2011) Smit, D.; Du Plessis, V.
No abstract available
Open Access
‘Kylie’ and the Jurisdiction of the Commission for Conciliation, Mediation and Arbitration
(University of South Africa, 2011) Smit, Denine; Du Plessis, Voet
No abstract is available