The Role and Nature of the Public Interest in South African Competition Law

by | Feb 26, 2021 | SAMLJ, SAMLJ V32 I2

The Role and Nature of the Public Interest in South African Competition Law

Author: Quentin du Plessis

ISSN: 1996-2185
Affiliations: Pupil member of the Johannesburg Bar
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 234 – 252
https://doi.org/10.47348/SAMLJ/v32/i2a3

Abstract

The Competition Act 89 of 1998 requires consideration of the ‘public interest’ when considering mergers. Whereas public interest considerations are generally assumed not to be cognisable in competition terms, in this article I argue the opposite. Specifically, I argue that if the underlying policy goal of the Act is accepted to be economic efficiency as opposed to allocative efficiency, and if ‘public interest’ as it is used in the Act is understood to be concerned mainly with the reduction of inequality, then it follows that the public interest is cognisable in competition terms, since inequality hurts economic efficiency.

Appraising the Scope and Application of the Market-Price Rule in Upheld Contracts

by | Feb 26, 2021 | SAMLJ, SAMLJ V32 I2

Appraising the Scope and Application of the Market-Price Rule in Upheld Contracts

Author: Paul Nkoane

ISSN: 1996-2185
Affiliations: Lecturer in Criminal and Procedural Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 253 – 276
https://doi.org/10.47348/SAMLJ/v32/i2a4

Abstract

The use of the market price for determining liability in contract lacks dedicated attention in South African law. Even far scanter is the holistic literature on the use of the market-price rule in contracts that are not terminated on breach of contract. Although, there has been suggestions that the market-price rule can be used to determine damages in upheld contracts, this was never technically demonstrated. Thus, the argument that the market-price rule can be used in contracts that are not terminated remains moot. This article presents various methods that illustrate how the market-price rule should apply in upheld contracts. The article undertakes a comprehensive analysis of the market-price rule to determine its efficacy in contracts that are not terminated, with the focus on the determination of the degree of liability. Regarding the determination of liability, the article to some extent discusses contracts with latent defects and those with items of questionable quality. Various methods and techniques are discussed to enlighten about how the market price can affect the determination of liability in upheld contracts, and to illustrate that this principle is suitable for determining damages in contracts that are not terminated.

Analysis: Accommodation Establishments and the Cancellation of Advance Bookings: The Challenge of Determining a Reasonable Cancellation Fee

by | Feb 26, 2021 | SAMLJ, SAMLJ V32 I2

Accommodation Establishments and the Cancellation of Advance Bookings: The Challenge of Determining a Reasonable Cancellation Fee

Authors: AM Tait

ISSN: 1996-2185
Affiliations: Nelson Mandela University
Source: South African Mercantile Law Journal, Volume 32 Issue 2, 2020, p. 277 – 294
https://doi.org/10.47348/SAMLJ/v32/i2a5

Abstract

None

Notes: Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni

by | Feb 25, 2021 | SALJ, SALJ V138 I1 2021

Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni

Author: Rehana Cassim

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 138 Issue 1, p. 1-19
https://doi.org/10.47348/SALJ/v138/i1a1

Abstract

This note discusses and critically analyses the judgment in Organisation Undoing Tax Abuse v Myeni [2020] 3 All SA 578 (GP), in which the court declared a director delinquent for her lifetime in terms of s 162(5) of the Companies Act 71 of 2008. The basis of the application related to the director’s conduct while she was a nonexecutive director and chairperson of South African Airways SOC Ltd. The judgment is commendable for its strict stance against errant directors of state-owned companies. It is the first delinquency application brought by a party acting in the public interest, and the first judgment to impose a lifelong delinquency declaration on a director.