South Africa Mercantile Law Journal

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Latest documents

• The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration
• Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

  With a growth in cross-border employment, the territorial limitations placed on the adjudication of cross-border employment disputes is incongruent to the development of employment and the subsequent employment relationship. The question of adjudication in the Labour Court rests predominantly on the territorial scope of South Africa's employment statutes. Accordingly, this article exposes the uncertainty employees, who work outside their countries of residence, face when trying to utilise the Labour Court as a channel of legal relief. Reasons for this inconsistency lies in the approach the Labour Court has taken in determining the territorial reach of South Africa's employment statutes. Where the Labour Court has utilised methods of statutory interpretation and strictly imposed the presumption against extra-territoriality, the court has established a practice that, in light of the growing global nature of employment, deviates from the realities of the de-territorialised flow of labour. Important in this article is thus the endorsement of private international law principles and methods in establishing jurisdiction and choice of law in the adjudication of a cross-border employment dispute.

• Assessing the Legal and Regulatory Framework for Special Economic Zones in South Africa

  The previous industrial development zones (IDZs) programme did not generate the anticipated economic growth in South Africa. Thus, the recent special economic zones (SEZs) programme is aimed at addressing the deficiencies in the disappointing record of the IDZs. So, would the new SEZ programme succeed if the IDZs failed? Since the IDZ is considered to have failed to generate the expected levels of economic growth, it is important assess whether the new SEZ programme will be able to fulfil its intended objectives. Therefore, the purpose of this article is to provide an insightful analysis of the South African SEZ programme from a legal and policy perspective and to proffer some reforms in areas that may be pertinent for the success of the SEZ programme. It traces South Africa's experience with the IDZs and related industrial policies by assessing how the country has fared so far, looking at its transition from the IDZs to the SEZs and analyses the potential challenges it is likely to face in the future. It adopts a comparative method of analysis by examining key issues confronting SEZs in South Africa, India, and China. In particular, the article compares only the key aspects in the regulatory design of the SEZ as found in the SEZ Act. These aspects include: the governance and ownership structure of the SEZs; the incentives offered to investors; the establishment of one-stop shops and issues of infrastructure development.

• South African Governance Legal Framework for Corporate disclosures and reporting: Part 1 – Voluntary sustainability reporting

  The general dissatisfaction of shareholders and other users of financial statements with both voluntary sustainability and mandatory financial disclosure and reporting, prompt an appeal for increased government-commanded reporting requirements. State-based standard-setting and voluntary sustainability reporting within the corporate jurisprudence must therefore evolve, which includes, among others, the variety of legal and regulatory standards, their dynamism, and the manner in which standards can be imposed. Directors and auditors must act ethically to observe their various functions as regulated by the Companies Act 71 of 2008 and the Auditing Profession Act 26 of 2005. National and international companies persistently undermine good governance. Directors' and auditors' failure to comply with ethics can certainly not continue with impunity. The global trend in the use of voluntary sustainability reporting highlights the prominence that auditors play in good corporate governance, although compliance with voluntary sustainability reporting does not warrant good corporate governance. Independence of auditors remains contentious in the light of the funding model of the regulator, working of audit committees, the connection between directors and companies, and the corporate governance expectation gap.

• Case Note: The income tax position of a creditor on the insolvency and/or business rescue of a debtor
• The characterisation principle in South African competition law from a German law perspective

  The characterisation principle — or the concept of characterisation — is a modern achievement of the South African competition law, with its roots in United States jurisdiction from which it was originally transferred into the South African legal system. Several far-reaching South African court decisions refer to the characterisation principle and make it an essential part. However, the positioning of the characterisation principle in South African competition law is complex. This is shown by the fact that, for example, the concept of characterisation obviously conflicts with the rationale of the per se prohibitions implemented in the South African Competition Act 89 of 1998. This article attempts to analyse the characterisation principle from a German law perspective in order to define its relevance, impact and limitation more precisely in the South African legal system.

• Reinstatement in the Context of ‘Deemed Dismissal’: A Critical Analysis of Recent Case Law

  The 'deemed dismissal' or 'discharge' clause is not mentioned either in the reinstatement provisions of section 193 of the Labour Relations Act 66 of 1995 ('LRA'), or indeed, in any other provision of that Act. Such an expression can be traced to several public sector employment statutes such as: section 14(1)(a) of the Employment of Educators Act 76 of 1998; section 59(3) of the Defence Act 42 of 2002; and section 17(3)(a)(i) and (b) of the Public Service Act 103 of 1994 ('PSA'). Notwithstanding that the substance and process of the 'deemed dismissal' disputes are quite different from those encountered in the law of unfair dismissal under the LRA, the determination whether reinstatement would be made in such a circumstance has been guided by the provisions of section 193(2)(a)–(d) of the LRA. After discussing the important South African cases of Phenithi v Minister of Education 2008 (1) SA 420 (SCA); Minister of Defence and Military Veterans v Mamasedi 2018 (2) SA 305 (SCA); and Ramonetha v Department of Roads and Transport, Limpopo [2018] 1 BLLR 16 (LAC), and those from the Botswana and Namibian jurisdictions, it becomes obvious that the Ramonetha case was quite different from the others. The conclusion, therefore, is that the judgment of the Labour Appeal Court sends a clear message to the employer that the statutory discretion invested in it by the PSA requires it to act within a space of time; the PSA does not give the employer the unbridled power to literally approbate and reprobate at the same time.

• Case Note: An Exploratory Analysis of Central Bank Digital Currencies — Some Considerations
• Good Faith is not Dead: It still Lives after Beadica 231 CC v Trustees, Oregon Trust

  In Beadica 231 CC v Trustees, Oregon Trust, the Constitutional Court provided much-needed clarity on the role of equity principles (fairness, reasonableness and good faith) in contracts, in that the abstract principles found in equity principles will not apply directly to contractual engagements but will apply indirectly by means of public policy considerations. This article illustrates that this default position, as articulated by the Constitutional Court, does not completely exclude good faith in contractual engagements. In fact, good faith is infused in the entire contract lifecycle, starting from negotiation and presenting itself even in certain remedial action. In addition, there are a number of exceptions to the default position in that equity principles can be established by means of express incidentalia (in the form of good faith clauses), and could even be imported ex lege in consumer contracts by means of the Consumer Protection Act 68 of 2008. It can therefore be said that the operation of equity principles, such as good faith, in South African contractual engagements is neither dead nor obsolete. Rather, good faith has survived the Constitutional Court's decision and continues to manifest itself in different ways in contracts reaffirming the place of good faith as a cornerstone principle in the operation of the law of contract.

• South Africa’s Exchange Control Regulations and ‘Loop Structures’: The Income Tax Implications of the Removal of the Restrictions with Effect from 1 January 2021

  This article analyses the implications of the income tax provisions introduced to address the potential tax avoidance that could arise from the lifting of the exchange control restrictions on 'loop structures' which were effected from 1 January 2021. Most South Africans and foreign investors do not quite understand the operation and implications of exchange controls due to the complexity of these regulations, and the perception that it is difficult to move money in and out of South Africa. Since the removal of exchange control restrictions on loop structures does not apply to existing unauthorised loop structures, this paper also provides a broader understanding of the operation of exchange controls regarding loop structures. The article first explains the administration of exchange controls and how the restrictions of exchange controls on loop structures have been relaxed over the years, and then it explains the 2021 removal of the restriction on loop structures as well as the amendments to the Income Tax Act to curtail tax avoidance risks.

Featured documents

• Plain-language contracts: challenges and opportunities

  South African consumers have had the right to plain-language consumer contracts since 2011. However, five years later, the approach to drafting plain-language, consumer-facing legal documents is often still superficial and formulaic. The result is that consumers are still made vulnerable by poverty,...

• Judicial Control of Unfair Contract Terms: The Implications of the Consumer Protection Act
• Towards a unanimous global remedy for breach of athlete contracts: A comparative analysis

  The problem of the repudiation of professional athlete-contracts is significant not only in South Africa, but globally. One need only daily media reports to confirm that while academics have raised the issue of the repudiation of athlete-contracts, the problem persists and is increasing. One of the ...

• A credit provider’s complete defence against a consumer’s allegation of reckless lending
• Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Africa

  The idea that contracting parties should be afforded the freedom to determine the content of their contract and regulate their private legal arrangements not only advances efficient international trade and commerce, but also, to a very large extent, affords the parties the opportunity to mitigate...

• Reinstatement in the Context of ‘Deemed Dismissal’: A Critical Analysis of Recent Case Law

  The 'deemed dismissal' or 'discharge' clause is not mentioned either in the reinstatement provisions of section 193 of the Labour Relations Act 66 of 1995 ('LRA'), or indeed, in any other provision of that Act. Such an expression can be traced to several public sector employment statutes such as:...

• Initiatives of the International Chamber of Commerce to Prevent Fraudulent Calls on Demand Guarantees and Standby Letters of Credit
• Fraudulent Insurance Claims
• Incompatibility as a ground for dismissal in Contemporary South African Law of Unfair Dismissal: A review of Zeda Car Leasing and other recent cases

  Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case...

• Die kapitaal van 'n beslote korporasie en die beskerming van skuldeisers