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.
{"title":"The characterisation principle in South African competition law from a German law perspective","authors":"Damian Schmidt","doi":"10.47348/samlj/v34/i2a1","DOIUrl":"https://doi.org/10.47348/samlj/v34/i2a1","url":null,"abstract":"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.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117306557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Assessing the Legal and Regulatory Framework for Special Economic Zones in South Africa","authors":"Mmiselo Freedom Qumba","doi":"10.47348/samlj/v34/i2a4","DOIUrl":"https://doi.org/10.47348/samlj/v34/i2a4","url":null,"abstract":"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.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126553287","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Reinstatement in the Context of ‘Deemed Dismissal’: A Critical Analysis of Recent Case Law","authors":"C. Okpaluba, Mpfariseni Budeli-Nemakonde","doi":"10.47348/samlj/v34/i1a1","DOIUrl":"https://doi.org/10.47348/samlj/v34/i1a1","url":null,"abstract":"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.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115255625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
在Beadica 231 CC v Trustees, Oregon Trust一案中，宪法法院对衡平法原则(公平、合理和诚信)在合同中的作用提供了急需的明确说明，因为衡平法原则中的抽象原则不会直接适用于合同约定，而是通过公共政策考虑间接适用。本文说明，正如宪法法院所阐明的那样，这种默认立场并不完全排除合同约定中的诚信。事实上，诚信贯穿于合同的整个生命周期，从谈判开始，甚至在某些补救行动中也表现出来。此外，默认立场也有一些例外，即衡平法原则可以通过明确的偶然事件(以诚信条款的形式)确立，甚至可以通过2008年第68号消费者保护法(consumer Protection Act of 2008)在消费者合同中引入。因此，可以说，公平原则的运作，例如诚信，在南非的合同约定中既没有死亡，也没有过时。相反，诚信经受住了宪法法院的裁决，并继续以不同的方式在合同中表现出来，重申了诚信作为合同法运作中的基石原则的地位。
{"title":"Good Faith is not Dead: It still Lives after Beadica 231 CC v Trustees, Oregon Trust","authors":"M. Van Eck","doi":"10.47348/samlj/v34/i1a2","DOIUrl":"https://doi.org/10.47348/samlj/v34/i1a2","url":null,"abstract":"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.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132594583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Companies Amendment Bill, 2018 proposes certain changes to the social and ethics committee established in terms of s 72(4) of the Companies Act 71 of 2008 and reg 43 of the Companies Regulations, 2011. These new provisions are critically discussed in this article. Although some of these provisions are commendable, others give rise to certain concerns examined here: the lack of clarity in the functions of the social and ethics committee, the proposed amendments regarding its appointment and composition, and the ambiguity in the exemptions from the requirement to appoint this committee. This article also suggests further amendments to the current legislative provisions regarding this committee.
{"title":"A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018","authors":"D. Mahhumane, Rehana Cassim","doi":"10.47348/samlj/v33/i2a1","DOIUrl":"https://doi.org/10.47348/samlj/v33/i2a1","url":null,"abstract":"The Companies Amendment Bill, 2018 proposes certain changes to the social and ethics committee established in terms of s 72(4) of the Companies Act 71 of 2008 and reg 43 of the Companies Regulations, 2011. These new provisions are critically discussed in this article. Although some of these provisions are commendable, others give rise to certain concerns examined here: the lack of clarity in the functions of the social and ethics committee, the proposed amendments regarding its appointment and composition, and the ambiguity in the exemptions from the requirement to appoint this committee. This article also suggests further amendments to the current legislative provisions regarding this committee.","PeriodicalId":118675,"journal":{"name":"South African Mercantile Law Journal","volume":"07 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127216037","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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