Lessons from America? A South African perspective on the Draft Restatement of the Law, Consumer Contracts

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I2

Lessons from America? A South African perspective on the Draft Restatement of the Law, Consumer Contracts

Authors Jacques du Plessis

ISSN: 1996-2185
Affiliations: Distinguished Professor of Law, Stellenbosch University
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 189 – 215

Abstract

The American Law Institute is drafting a Restatement of the Law, Consumer Contracts. It deals at a very broad level with various requirements for the formation, validity, and proof of consumer contracts and terms, and especially with how they are to be applied in modern commercial environments, characterised by the widespread use of standard terms in online contracting. At the heart of the Draft Restatement lies the notion that it reflects a ‘grand bargain’ or trade-off in American consumer contract law. While its rules follow a ‘permissive’ approach to assent, through granting businesses significant freedom to draft contract terms, the effect of these rules is balanced by greater ex post substantive control, through imposing mandatory restrictions on terms. The purpose of this paper is to view this central idea of the Draft Restatement, as well as some related features, from the perspective of South African consumer contract law. Aspects that enjoy attention include the treatment of standard contracts, rules on actual or deemed assent, various forms of substantive control, the relationship between common-law and statutory regulation of consumer contracts, restrictions on adducing evidence, and the most appropriate institutions for granting consumers effective relief.

Warrantless inspections by the SARS: Limitation of taxpayers’ privacy?

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I3

Warrantless inspections by the SARS: Limitation of taxpayers’ privacy?

Authors Fareed Moosa

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 477 – 498

Abstract

It is trite that, in accordance with section 14 of the Bill of Rights, taxpayers enjoy fundamental privacy in respect of, inter alia, their homes, property, possessions and communications. The integrity and privacy of a taxpayer’s home and business environment are important rights and values to be respected and protected during tax administration conducted by the South African Revenue Service. Their promotion is part of the spirit, purport and objects of the Bill of Rights to be fulfilled by reason of the interpretive imprimatur in section 39(2) of the Constitution. A taxpayer’s privacy may, in accordance with section 36 of the Constitution, be limited by way of a ‘law of general application’. This article examines critically whether section 45 of the Tax Administration Act 28 of 2011 (TAA) imposes a limitation on taxpayers’ privacy as envisaged by the Constitution’s limitation clause. Section 45 empowers tax officials to enter upon a taxpayer’s premises without a warrant for purposes of conducting an inspection. This article argues that to qualify as lawful, every exercise of power to conduct warrantless, non-consensual, tax inspections under section 45 must occur in an orderly fashion, with respect and due regard for taxpayers and their fundamental rights, including privacy. This is so because, in a democracy, the substantive enjoyment of rights has a high premium. This article concludes that the power of inspection under section 45 is a limitation of a taxpayer’s privacy in a law of general application, namely, the TAA.

The trade mark similarity threshold and function in dilution law: A comparative analysis

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I3

The trade mark similarity threshold and function in dilution law: A comparative analysis

Authors Chris Job

ISSN: 1996-2185
Affiliations: Honorary Professor, Centre for IP Law, Department of Private Law, University of Pretoria and Senior Consultant, Adams & Adams
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 456 – 476

Abstract

South Africa enjoys explicit legal protection against trade mark dilution provided by sections 10(17) and 34(1)(c) of the Trade Marks Act 194 of 1993, as is the case in the United States of America (USA) and the European Union (EU). This is available in all three jurisdictions for a registered, well-known or famous trade mark, which is either identical or similar to a later mark of another person notwithstanding there being no likelihood of deception or confusion between the marks in use. The Supreme Court of Appeal has interpreted ‘similar’ as setting a threshold of ‘having a marked resemblance’ and has applied this elevated test questionably and as a stand-alone requirement for entry to these anti-dilution sections without the need to consider their other substantial provisions. In the USA and the EU, ‘similar’ is given its ordinary meaning, setting a lower entry threshold than in South Africa. Similarity is also only one of several criteria considered and applied globally. It is suggested that the Supreme Court of Appeal has strayed from the correct approach and that self- or legislative- correction is needed.

Compliance notices in terms of the Companies Act 71 of 2008: Some observations regarding the issuing of and objection to compliance notices

by | Oct 22, 2019 | SAMLJ, SAMLJ V30 I3

Compliance notices in terms of the Companies Act 71 of 2008: Some observations regarding the issuing of and objection to compliance notices

Authors S de Lange

ISSN: 1996-2185
Affiliations: Lecturer, Mercantile Law Department, University of Stellenbosch
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 434 – 455

Abstract

As a mechanism to address contraventions of the Companies Act 71 of 2008 (Companies Act), compliance notices play an important role in the decriminalisation of company law. Being issued with a compliance notice, and especially failure to comply with it, can have serious and far-reaching consequences. It is therefore vital that compliance notices are issued in a manner which is fair and just, and that appropriate remedies are in place for an aggrieved person to object to or dispute the notice. As the issuing of a compliance notice is classified as administrative action, it must meet the requirements of lawfulness, reasonableness, and procedural fairness as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996 (the Constitution), [fn1]read with the Promotion of Administrative Justice Act 3 of 2000 (the PAJA). This article considers some administrative justice aspects relating to the limitations or constraints on the issuing of compliance notices. It further addresses possible remedies or avenues of redress available to aggrieved persons once a compliance notice has been issued. In this regard, observations are made relating to the rights of an aggrieved person to object to a compliance notice in terms of section 172 of the Companies Act while also considering the PAJA. footnote 1: Constitution of the Republic of South Africa, 1996.