South Africa Mercantile Law Journal

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
1015-0099

Description:

The South African Mercantile Law Journal is a specialised journal published by Juta Law and the Faculty of Law, University of South Africa. It is devoted to publishing material in the field of mercantile and business law. This journal is not intended as a businessman’s journal. It is aimed at practitioners in these areas of law.

Issue Number

Latest documents

  • Perspectives on the Lapse of Integrity in Wealth Management and Financial Advisory Institutions in South Africa

    This paper explores the importance of promoting and sustaining integrity in financial institutions and among the personnel entrusted with the management of other people’s wealth, for example trustees. Fiduciary responsibilities and trusteeship are prevalent in many financial systems globally. As such, it is essential for financial institutions to promote good ethical conduct so as to maintain public trust, curb financial malpractice and safeguard the overall integrity of the financial markets. Prior to addressing the risks emanating from the lack of integrity in the financial sector, it is essential to identify the underpinning elements that contribute to the lapse of integrity. The lack of integrity in financial institutions and their relevant personnel often results in conflicts of interest, corruption, lack of transparency and regulatory oversight. This paper argues that promoting and maintaining integrity in the management of other people’s wealth is not merely a regulatory obligation but also a moral imperative. Robust regulatory mechanisms and fostering a culture of ethics and accountability in the financial sector could address the root causes of integrity breaches and financial malpractices. Considering the interconnectedness of the financial space, cross-border coordination and the establishment of international best practices to enhance integrity are indispensable. This paper proposes proactive international cooperation and collaboration to enable early identification of emerging risks and coordinated responses globally. An environment that motivates self-reporting of potential misconduct and protects whistleblowers, could rectify ethical lapses promptly. The author explores the potential of technologies such as artificial intelligence and block chain as measures to enhance transparency and security in wealth management.

  • Unilateral Amendments in E-Commerce B2C Contracts of Necessity: Legal and Ethical Implications for Vulnerable Consumers in South Africa

    This study examines the legal and ethical implications of unilateral amendments in e-commerce business-to-consumer (B2C) contracts of necessity in South Africa, with a focus on vulnerable consumers. As online transactions become increasingly prevalent, businesses often reserve the right to unilaterally modify contract terms, potentially disadvantaging consumers who rely on essential services. The research employs a qualitative approach, analysing relevant legislation, case law, and scholarly literature to assess the current regulatory framework governing such amendments. Findings reveal in consumer protection, particularly for vulnerable groups who may lack alternatives or the capacity to fully understand complex contractual changes. The study argues that existing laws inadequately address the power imbalance between businesses and consumers in the digital services. marketplace, safeguards, Recommendations and requirements enhancing implementing measures to ensure fair and reasonable changes to contract terms. This research contributes to the ongoing discourse on consumer for policymakers, legal practitioners, and businesses that seek to balance commercial interests with ethical considerations and consumer protection in South Africa’s evolving e-commerce landscape.

  • Mapping Moral Rights: An Analysis Of What We Do Not Know About Section 20 of the Copyright Act 98 of 1978

    South Africa implements art 6 bis of the Berne Convention through s 20 of the Copyright Act 98 of 1978. However, although the moral rights of authors have been part of the law since the Copyright Act came into force, there is no statutory guidance as to their nature, scope and duration, amongst other things, and the few reported cases do not offer insight. There is much uncertainty about the implications of enforcing the rights of paternity and integrity and the legal writing presents conflicting views. This paper maps the state of the law related to moral rights in South Africa to provide a comprehensive statement on the actual state of the law and its gaps. This is done in two parts. The first section presents a detailed examination and evaluation of how s 20 implements art 6 bis into South African law. The second section identifies and explores six aspects of moral rights which are not settled definitively; this includes the scope, duration and transferability of moral rights.

  • Case note: The Slippery Slope of Contractual Fairness Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd 2023 (6) SA 327 (CC)

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  • From Protection to Exclusion? The Paradox of Pre-Contractual Affordability Assessments for Low-Income Mortgage Applicants in South Africa

    This article examines the unintended exclusionary consequences of pre-contractual affordability assessments under the National Credit Act 34 of 2005 (NCA), with a particular focus on low-income consumers seeking mortgage finance. While the NCA aims to promote responsible lending and protect consumers from reckless credit, its implementation has produced structural barriers that limit access to housing finance for those most in need. The article demonstrates that affordability assessments, while protective in intent, often reproduce inequality by privileging consumers with formal income, established credit histories, and high levels of financial literacy. The central contribution of this article is to show that the current regime, although legally compliant, is substantively unjust because it systematically excludes low-income households from access to mortgage credit. It argues that this exclusion undermines s 26 of the Constitution and South Africa’s international obligations to progressively realise the right to adequate housing. To address these challenges, the article proposes reforms aimed at recalibrating affordability assessments toward substantive equity. These include recognition of informal income and collective household contributions, the development of inclusive credit scoring models, the integration of financial literacy into the lending process, shared-risk models between the state and private lenders, and strengthened transparency obligations. By advancing these reforms, the article contributes to debates on how consumer credit regulation can balance protection with inclusion, thereby aligning mortgage finance with South Africa’s constitutional and developmental objectives.

  • Development, Innovation and the Fourth Industrial Revolution (4IR): An Ethno-Legal Analysis

    Scholarly views diverge on how the law or legal rules should satisfactorily regulate the 4IR or 4IR technologies and algorithms. Some scholars postulate that because the 4IR develops rapidly the law should consequently be tightened to control the ever-changing character of these innovations. This exists because of the propensity of the technologies developing beyond state or government control. With this development, legal rules prove to be insufficient to manage the 4IR and control its algorithmic outcomes. Accordingly, regulators will often resort to, amongst others, over-regulations and dumb regulatory structures. The latter signifies frameworks which are not established from the proper understanding of the technologies to be regulated. They fail to provide adequate solutions to the whole technology regulatory agenda. Therefore, the contribution hypothesises that legal rules are not the solitary mechanism to the overall study of technology regulations. The way the 4IR intersects with ethics is essential to the creation of a smart way of regulating, that is, Smart Regulations. Smart Regulations accept that the essence of regulating is not championed though a single state actor. Instead, regulations are a collaborative (consumers, state, and stakeholders) process that enjoins regulators to scrutinise the ethical behaviour of the 4IR and 4IR technologies.

  • Case note: The Abuse of Sick Leave and the Employer’s Right to Establish the Veracity of Medical Certificates in South Africa: Woolworths (Pty) Ltd v CCMA and others (JA90/2022) [2024] ZALAC 29 (13 June 2024)

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  • The Regulation of Burial Societies: Is the Regulatory Framework Fit for Purpose?

    Burial societies are types of mutual rotating schemes (stokvels) that are integral in indigenous communities in South Africa, providing funeral assistance to members and operating on the periphery of society. They are a necessity given the financial needs to upkeep burial rites in these communities. Burial societies are founded on sui generis contracts that are characterised by flexibility, cultural norms, ubuntu-based dispute resolution and innovative risk mitigation mechanisms. The existing regulatory framework perceives burial societies as entities offering funeral insurance products. Accordingly, this article examines the regulatory frameworks within which burial societies could operate and assesses their suitability. It interrogates their legal personality and contracts which is necessary because the framework applies to entities offering funeral insurance.

  • Expropriation Without Compensation constitutionality debacle and Foreign Investment Protection in South Africa

    The issue of expropriation of property especially land without compensation and the amendment of s 25 of the Constitution has been topical, notably under the Government of National Unity (GNU). Many leaders, both local and international, have challenged the newly signed Expropriation Act into law. Accordingly, both local and foreign investors are protected mainly by the Constitution of the Republic, the Protection of Investment Act, and the Expropriation Act. Despite the debate on the issue of expropriation of property without compensation, laws in the country, particularly the Expropriation Act, ensure that properties are expropriated with just and equitable compensation, and this position is consistent with both s 25 of the Constitution and international there may be instances where property may be expropriated without compensation under the Expropriation Act, especially where the property has been abandoned. This article examines whether the international law rules governing foreign investment are consistent with the Protection of Investment Act, the Expropriation Act, and s 25 of the Constitution and relevant case law. It argues that the Expropriation Act and the international law rules for foreign investment are consistent with s 25 of the Constitution of the Republic of South Africa despite the disputes.

  • The Road Ahead? Transforming South Africa’s Minibus Taxi Industry Through Digital Technology

    The Covid-19 pandemic significantly disrupted businesses across all sectors, including public transportation. In response, the Taxi Association Management Service (TAMS) has been working to revitalise the South African taxi industry through technology. The goal is to reduce transportation costs and increase accessibility by automating the back-office operations of taxi associations, streamlining taxi levy collection, managing demand, and creating databases for stakeholders such as owners, drivers, marshals, and taxis. This technological shift aims to change perceptions of the South African taxi industry. However, the transformation of the sector is hindered by a lack of political will and conflicts of interest, particularly with political leaders allegedly being taxi owners. While the African National Congress (ANC) government has adopted developmental state principles and targeted economic interventions, its efforts to formalise the taxi industry have often been ineffective, marked by frequent policy shifts and dead-ends. A significant policy shift occurred in 1999 when the government moved from an ambitious Taxi Recapitalisation Programme (TRP) to a focus on restructuring the industry. Moreover, the government’s efforts to transform public transport, such as the Bus Rapid Transit (BRT) system, have been reactive rather than proactive, often failing to integrate urban planning with transportation. Cities like Johannesburg, Cape Town, and Tshwane introduced BRT systems in response to congestion and taxi inefficiencies, without a long-term vision for a cohesive transport network. Similarly, interventions like TRP have not tackled the industry’s structural issues, such as informality and lack of regulation. The frequent changes in transport policies, often driven by public outcry, highlight the government’s reactive approach. This has resulted in a transport system that leaves the working poor vulnerable to poor service, high fares, and unsafe conditions. Despite these challenges, technological advances in the sector may offer renewed hope for the future.

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