Evaluation of the cause-and-effect relationship of internal controls on financial reporting in the Ministry of Health and Social Services, Namibia

by | Oct 30, 2022 | JCCL, JCCL V7 I2

Evaluation of the cause-and-effect relationship of internal controls on financial reporting in the Ministry of Health and Social Services, Namibia

Authors: Tariro Chata & Lillian Pazvakawambwa

ISSN: 2521-2575
Affiliations: Faculty of Commerce, Management & Law, School of Accounting, University of Namibia; Faculty of Agriculture, Engineering & Natural Science, Department of Computing, Mathematical & Statistical Sciences, University of Namibia
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 134 – 151
https://doi.org/10.47348/JCCL/V7/i2a7

Abstract

This article evaluates the effect of the internal control environment on the quality of financial reporting in the Ministry of Health and Social Services (MOHSS) in Namibia. The Internal Control- Integrated Conceptual Framework of the Committee of Sponsoring Organizations (COSO) of the Treadway Commission was applied as the standard of measurement against the variable internal control, and the Conceptual Framework for Financial Reporting of the International Financial Reporting Standards (IFRS) was used to measure the qualitative characteristics of the financial reporting process. A mixed research method was used to evaluate the cause and effect relationship between the key variables and to measure the perceptions of the respondents on the quality of the financial report. Probability sampling techniques were used on the 269 staff members of the MOHSS, and data were analysed using both descriptive and inferential statistics, using the SPSS software programme. The validity and reliability of data were computed using Cronbach’s Alpha. The results of the study indicated that there is a positive relationship between the key variables although it is weak. Therefore, the study recommends the strengthening of governance systems to improve the safeguarding of financial resources.

The challenges of anti-competitive practices and consumer protection in Nigeria

by | Oct 30, 2022 | JCCL, JCCL V7 I2

The challenges of anti-competitive practices and consumer protection in Nigeria

Authors: Eric Omo Enakireru & Ogaga Wilson Ekakitie

ISSN: 2521-2575
Affiliations: Senior Lecturer, Department of Jurisprudence and International Law, College of Law, Western Delta University, Oghara, Delta State, Nigeria; Senior Lecturer, Department of Jurisprudence and International Law, College of Law, Western Delta University, Oghara, Delta State, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 152 – 167
https://doi.org/10.47348/JCCL/V7/i2a8

Abstract

This article critically examines the concepts and the challenges of price mechanisms, anti-competitive practices and consumer protection in Nigeria, and considers ways of promoting and protecting the interests of consumers in respect of products and services. The article evaluates and defines the concept of price mechanisms, and the concept of the consumer who needs to be protected. It discusses anticompetitive practices, such as monopolies, mergers and acquisitions, and restrictive trade practices, resale price maintenance agreements, misleading advertising, false sales and market values. It considers the protection of consumers and the legal frameworks applicable to the subject. In conclusion, the article recommends appropriate measures and a proactive, pragmatic approach to tackling the menace of false market sales and restrictive trade practices by calling on stakeholders and the government to regulate monopolies, mergers and uncompetitive business practices which are detrimental to the interests of the consumer. It calls for controls and restrictions on unfair trade practices and appropriate sanctions so that those who persistently prejudice consumers in this way are brought to book.

An assessment of the success of the Convention on Choice of Court Agreements 2005 as an instrument of transnational commercial dispute resolution

by | Oct 30, 2022 | JCCL, JCCL V7 I2

An assessment of the success of the Convention on Choice of Court Agreements 2005 as an instrument of transnational commercial dispute resolution

Author: Samuel Maireg Biresaw

ISSN: 2521-2575
Affiliations: Lecturer, School of Law, Debre Tabor University
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 168 – 198
https://doi.org/10.47348/JCCL/V7/i2a9

Abstract

The Convention on Choice of Court Agreements (Convention), which was developed by the Hague Convention on Private International Law (HCCH) is a transnational litigation instrument adopted in 2005 and brought into force in 2015. By providing the required methods and tools to disputants in a commercial relationship, the objective of the Convention is to create an internationally uniform legal framework of dispute resolution that promotes cross-border trade and encourages judicial cooperation by recognising and enforcing foreign judgments that are given based on a choice of court agreement. This article assesses the existing successes of the Convention in achieving its specific commercial objectives, and considers whether it has been generally successful in transnational commercial dispute resolution. The article argues that the Convention has the tools needed to achieve its specific commercial objectives, and its success in this regard depends on the parties who choose to apply the tools provided in the Convention to resolve their commercial disputes by signing a choice of court agreement to that effect. I argue that although the Convention remained generally unsuccessful until 2015, due to its late enforcement and low rate of ratifications, since 2015 it has gradually become a success story as more states are ratifying the Convention. The future therefore looks bright.

Case Notes: Barnard Labuschagne Incorporated v South African Revenue Service [2022] ZACC 8 (11 March 2022) – The rescindability of a certified statement filed in terms of section 172 of the Tax Administration Act

by | Oct 30, 2022 | JCCL, JCCL V7 I2

Case Notes: Barnard Labuschagne Incorporated v South African Revenue Service [2022] ZACC 8 (11 March 2022) – The rescindability of a certified statement filed in terms of section 172 of the Tax Administration Act

Author: Arthur van Coller

ISSN: 2521-2575
Affiliations: Associate Professor – Nelson R Mandela School of Law, University of Fort Hare
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 199 – 216
https://doi.org/10.47348/JCCL/V7/i2a10

Abstract

None

Case Notes: Complaint initiations and prescription provisions in the Competition Act – The Constitutional Court provides clarity in Competition Commission v Pickfords Removals

by | Oct 30, 2022 | JCCL, JCCL V7 I2

Case Notes: Complaint initiations and prescription provisions in the Competition Act – The Constitutional Court provides clarity in Competition Commission v Pickfords Removals

Author: Precious Nonhlanhla Ndlovu

ISSN: 2521-2575
Affiliations: Senior Lecturer, Faculty of Law, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 217 – 233
https://doi.org/10.47348/JCCL/V7/i2a11

Abstract

None

The Escalation of Corporate Corruption During the Covid-19 Pandemic: is the Anti-Corruption Framework of the Companies Act 71 of 2008 Adequate?

by | Oct 26, 2022 | SLR, SLR V33 I3

The Escalation of Corporate Corruption During the Covid-19 Pandemic: is the Anti-Corruption Framework of the Companies Act 71 of 2008 Adequate?

Author: Rehana Cassim

ISSN: 1996-2193
Affiliations: BA LLB LLM LLD, Associate Professor, Department of Mercantile Law, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 349 – 375
https://doi.org/10.47348/SLR/2022/i3a1

Abstract

During the Covid-19 pandemic, corruption in South African companies, both state-owned and privately-owned, reached staggering proportions. This included bribery, procurement irregularities, overpricing and fraudulent deals between government officials and companies. This article identifies provisions of the Companies Act 71 of 2008 that may be used to address corporate corruption. This is done with a view to ascertaining whether the anti-corruption framework of the Companies Act is adequate to counteract corporate corruption. It concludes that the Act contains a fairly comprehensive framework to tackle corruption in companies registered under it. In spite of this framework the level of corporate corruption remains high, and increased substantially during the Covid-19 pandemic. The article makes recommendations to reduce these high levels of corporate corruption.

The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

by | Oct 26, 2022 | SLR, SLR V33 I3

The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

Authors: Tangeni Nanyemba and Mikovhe Maphiri

ISSN: 1996-2193
Affiliations: LLB LLM, Candidate Attorney; LLB LLM, Lecturer and doctoral candidate, UCT, Attorney of the High Court
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 376 – 395
https://doi.org/10.47348/SLR/2022/i3a2

Abstract

Traditionally, shareholders have been the only stakeholders to hold priviledged positions in the governance of companies because they are the exclusive beneficiaries of the director’s fiduciary duties. However, the requirement for certain companies to appoint social and ethics committees in terms of section 72(4) of the Companies Act 71 of 2008, read with regulation 43 of the Companies Regulations, arguably disrupts the traditional focus on exclusive shareholder protection by offering non-shareholder constituencies limited legal recognition. These provisions require certain companies to report on how the operations of a company impact a broad range of non-shareholder constituencies, which include the employees, the environment, consumers, suppliers, and communities. The social and ethics committee thus presents itself as an ideal conduit for sensitisation of the board of directors of a particular company to issues of national priority in South Africa, such as job creation, adequate housing, anti-corruption, climate change and access to healthcare. However, the ability of the social and ethics committee to deliver on its mandate and to address the concomitant issues affecting non-stakeholder constituencies under company law is curtailed by a plethora of uncertainties and ambiguities. The Companies Act and the Companies Regulations contain many contradictions as they include generic terms of reference regarding the committee’s role and they do not provide clarity about the committee’s powers, functions, objectives and purpose. This article considers whether section 72(4) of the Companies Act read with regulation 43 of the Companies Regulations is a viable mechanism that can be enforced to protect non-shareholder constituencies. The committee’s shortcomings are analysed to determine whether the committee has teething problems or is simply ineffective as a committee that can protect non-shareholder constituencies in the South African context.

The Legal Combatting of B-BBEE Fronting Practices in South Africa – Past and Present

by | Oct 26, 2022 | SLR, SLR V33 I3

The Legal Combatting of B-BBEE Fronting Practices in South Africa – Past and Present

Author: Adri du Plessis

ISSN: 1996-2193
Affiliations: BProc LLB LLM LLD, Senior Lecturer, Department of Public Law, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 396 – 418
https://doi.org/10.47348/SLR/2022/i3a3

Abstract

Broad-Based Black Economic Empowerment is critical in establishing an inclusive South African economy based on social and economic justice. However, since its inception in 2003 with the promulgation of the Broad-Based Black Economic Empowerment Act 53 of 2003, misrepresentations intended to improve an enterprise’s compliance status – fronting – have been ever-present. From 2003 to 2013, there was no clear approach to dealing with fronting, which, at least in part, led to increases in the incidence and complexity of this practice. In an attempt to deal more decisively with the issue, the 2013 amendment to the Broad-Based Black Economic Empowerment Act introduced two specific measures to combat this problem. The first was criminalising fronting practices, and the second was establishing a monitoring body, the Broad-Based Black Economic Empowerment Commission. This article briefly sketches the policy and legislative framework for implementing the Broad-Based Black Economic initiative and past practices of combatting fronting practices. This is followed by a discussion of the two measures introduced by the amendment to the Act, with a specific focus on the Commission’s role since its inception to monitor and combat fronting practices. There will also be a discussion of the various activities that the Commission reports on concerning its dealing with fronting. The article concludes with suggestions for changes to the regulatory environment that could improve the efficacy of the fight against fronting.

Lessons From New South Wales, Queensland, and British Columbia to Assist South Africa in Adequately Regulating the Keeping of Assistance Animals by Disabled Persons in Sectional Title Schemes

by | Oct 26, 2022 | SLR, SLR V33 I3

Lessons From New South Wales, Queensland, and British Columbia to Assist South Africa in Adequately Regulating the Keeping of Assistance Animals by Disabled Persons in Sectional Title Schemes

Author: CG van der Merwe

ISSN: 1996-2193
Affiliations: BA LLB (UOFS) BA (Hons) and BCL (Oxon) LLD (UNISA), Research Fellow, Department of Private Law, Stellenbosch University; Emeritus Professor of Civil Law, University of Aberdeen
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 419 – 437
https://doi.org/10.47348/SLR/2022/i3a4

Abstract

South African legislation contains only one subrule in the Sectional Titles Schemes Management Regulations about the keeping of assistance animals in sectional title schemes. This subrule provides that an owner or occupier suffering from a disability who reasonably requires a guide, hearing, or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property. I submit that this subrule falls hopelessly short of regulating this matter adequately and that lessons in this regard can be learned from the comparable Australian jurisdictions of New South Wales and Queensland, and the Canadian jurisdiction of British Columbia. First, this subrule makes no reference to anti-discrimination legislation or legislation dealing with the keeping of dogs which is found in the comparable provisions in the selected jurisdictions. Second, no clear distinction is drawn between service dogs and assistance dogs. It appears that assistance dogs are equated with service dogs which are trained to cater for a specific disability in a disabled person while those suffering from illnesses like depression could also benefit from the mere presence of a dog without any specific training. Third, the rule applies only to assistance dogs while the United States, for example, also provides for miniature horses and Capuchin monkeys to assist persons with disabilities. Fourth, save for guide and hearing dogs, inadequate provision is made for the training of other types of assistance animals. In some cases, disabled persons are allowed to train their own assistance animals without the animal and the disabled person having to comply with strict competency tests, for example, the “public access test” required in Queensland. Finally, there is no agreement regarding what type of disability would qualify for assistance by an assistance animal or what evidence a disabled owner or occupier must provide as proof that he or she reasonably requires an assistance animal.

Homeowners’ Associations as Urban Property Management Entities

by | Oct 26, 2022 | SLR, SLR V33 I3

Homeowners’ Associations as Urban Property Management Entities

Authors: GJ Pienaar and JG Horn

ISSN: 1996-2193
Affiliations: B Jur et Com LLB LLD, Professor, Northwest University; B Proc LLB LLM MA(HES) LLD, Senior lecturer, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 438 – 459
https://doi.org/10.47348/SLR/2022/i3a5

Abstract

The concept “homeowners’ association” falls within the description of fragmented property schemes. It is an entity that is the owner or manager of communal property and the land of an estate, consisting of individual properties owned by members of the association and communal areas used collectively by the individual owners. The individual properties and communal areas are managed in terms of conditions and rules, albeit with different purposes. A homeowners’ association is normally a juristic person incorporated as a non-profit company or by agreement between the individual owners as members to establish a common law juristic person. In terms of its management documents, it has the capacity to manage the estate and enforce the rules of the scheme. Therefore, the memorandum or constitution should contain specific management directions, which are discussed in this article. The rules of the scheme must be approved by the Ombud for Community Schemes before they may be enforced. The latter may also be approached to mediate disputes between members of the association or between members and the management. Initially the social-political need for urban fragmented property schemes is explained, followed by an analysis of the management of urban fragmented property. It is emphasised that ownership of immovable property is not only an individual right, but also fulfils an important community function. The legalities surrounding the establishment of a homeowners’ association is thereafter discussed. Essential matters to be included in the management documents are examined with specific reference to the enforceability and constitutionality of the rules of the association. Finally, the establishment of gated communities is reviewed with an emphasis on the constitutional viability of imposing limitations on the fundamental rights of owners, occupiers and third parties (like visitors and employees) who need access to the scheme or want to use communal areas in the scheme.