The philosophy of business rescue law

by | May 12, 2020 | JCCL, JCCL V5 I1

The philosophy of business rescue law

Authors Owen Mokoena

ISSN: 2521-2575
Affiliations: PhD Candidate, School of Law, University of the Witwatersrand, Johannesburg
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 1, 2019, p. 1 – 41

Abstract

It is a requirement that business rescue must provide for the efficient rescue and recovery of financially distressed companies in a manner that balances the rights and interests of all the relevant stakeholders or affected persons. However, is it necessary to balance the interests of all affected persons in order to achieve the objectives of business rescue? Moreover, is it possible to balance the interests of all affected persons during business rescue? To answer these questions, this article specifically evaluates the meaning and the purpose of business rescue. It analyses various theories that set out the philosophy of corporate rescue law and chooses the creditors’ bargain theory and risk-sharing theory. Based on both theories this articles establishes that, given the purpose of business rescue, it is not necessary to balance the conflicting rights and interests of various stakeholders to achieve the objectives of business rescue.

Obliged to release a solvent spouse’s assets during sequestration proceedings?

by | May 12, 2020 | JCCL, JCCL V5 I1

Obliged to release a solvent spouse’s assets during sequestration proceedings?

Authors Clement Marumoagae

ISSN: 2521-2575
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 1, 2019, p. 42 – 58

Abstract

This article reflects on the interaction between section 21(1) and section 21(2) of the South African Insolvency Act. Section 21(1) has been subject to controversy relating to whether it enables the trustee to acquire ownership of the assets that constitute the solvent spouse’s estate where spouses married out of community of property have colluded to defraud the insolvent spouse’s creditors. Section 21(2) seems to be intended to ensure that the trustee does not permanently take control of the solvent spouse’s property if the solvent spouse can prove that there was no collusion between the spouses and that he or she has valid title to any property that vested in the trustee due to the sequestration of the insolvent spouse. Through selected cases, this article demonstrates that the trustees of an insolvent spouses’ estates, in their quest to maximise the benefits, that should be derived by the insolvent spouses’ creditors, usually refuse to release assets that belong to the solvent spouses on the basis that spouses married out of community of property have colluded. This article interrogates the concept of collusion when the solvent spouses’ assets have vested in the trustees of the insolvent spouses’ estate. Furthermore, it argues that solvent spouse who has benefited from the financial assistance of his or her insolvent spouse, at the time when the insolvent spouse had not been insolvent, should not be punished for that assistance when the insolvent spouse is later sequestrated.

The obligation imposed on the board of directors of a company in respect of the solvency and liquidity test under section 4 of the companies act 71 of 2008

by | May 12, 2020 | JCCL, JCCL V5 I1

The obligation imposed on the board of directors of a company in respect of the solvency and liquidity test under section 4 of the companies act 71 of 2008

Authors Simphiwe S Bidie

ISSN: 2521-2575
Affiliations: Lecturer, Nelson R Mandela School of Law, University of Fort Hare
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 1, 2019, p. 59– 102

Abstract

The solvency and liquidity test in section 4 of the 2008 Companies Act of South Africa is the foundation upon which the entire Act is structured. It sets the threshold against which the ability of a company to distribute its money or property to its shareholders should be assessed. The introduction of the test places the 2008 Act among some of the most progressive and liberal legislative frameworks in the world. The test caters for various interests rather than the orthodox approach of the capital protection principle. The inclusion of the test into South African company law signifies a shift away from the traditional capital maintenance doctrine and recognises other factors that play a role in the economy of the country. From a policy perspective, replacing the capital protection rules with the solvency and liquidity test was a commendable step. The nature and extent of the obligation imposed on directors as a result of the incorporation of the test into the 2008 Act is enormous. The solvency and liquidity test is assessed alongside the duties to which directors must adhere. The discussion of the test and its constituent elements indicates the appropriate standard expected, and the interpretation and application of the test as contemplated in the Act.

The inevitable need for continuous corporate law improvements

by | May 12, 2020 | JCCL, JCCL V5 I1

The inevitable need for continuous corporate law improvements

Authors James J Hanks, JR

ISSN: 2521-2575
Affiliations: Partner: Venable LLP, Baltimore, USA; Distinguished Visiting Professor from Practice, University of Maryland School of Law; Former Member of the International Reference Team for Corporate Law Reform in South Africa
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 1, 2019, p. 103 – 114

Abstract

None

The national treatment rule and the regulation of public procurement under the east african community common market protocol

by | May 12, 2020 | JCCL, JCCL V5 I1

The national treatment rule and the regulation of public procurement under the east african community common market protocol

Authors Joseph Agutu Omolo, Eurallyah J Akinyi

ISSN: 2521-2575
Affiliations: Lecturer, Kabarak University School of Law; LLM Candidate, University of Pretoria
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 1, 2019, p. 115 – 139

Abstract

Public procurement constitutes a significant socio-political and economic tool in the hands of governments as regulators and major consumers. Through it, a government may achieve both national and international goals. Governments, therefore, tend to have a strong incentive to adopt inward-looking policies on public procurement for the benefit of local suppliers, products and services. To mitigate this, the East African Community (EAC) Common Market Protocol makes provision for non-discrimination by prohibiting discrimination against suppliers, products or services from other partner states in public procurement. This article looks at the law and practice in the East African Community and among the partner states relating to the application of the non-discrimination rule in public procurement under article 35 of the EAC Common Market Protocol. From the discussion, it is apparent that both the EAC and the partner states are yet to eliminate discrimination in public procurement through their laws and policies.

Intellectual property protection for software: Global perspective and lessons for development and reform in Nigeria

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Intellectual property protection for software: Global perspective and lessons for development and reform in Nigeria

Author Adebambo Adewopo

ISSN: 2521-2591
Affiliations: Professor, Nigerian Institute of Advanced Legal Studies
Source: South African Intellectual Property Law Journal, 2019, p. 1 – 30

Abstract

The protection of software or computer programs as the case may be is perhaps one of the most intractable intellectual property (IP) matters in the regulation of technological innovation. It has engendered considerable controversy in the normative structure of IP law and in its interaction with the rapid technological advances of the 21st century in the global economy. Significantly, the vastly utilitarian and unique profile of software has inexorably shaped the boundaries of its precise legal protection. From country to country, software’s legal landscape and the contours of IP protection have continued to reflect considerable global disharmony that has given rise to the need for legal clarification. This article discusses the subject from a global and development perspective. It examines the IP standard for software protection under the Nigerian law and compares it with the UK, EU and the US, and proposes reform of the existing regime.

Keeping up with the developments in technology: A look into the music industry and the copyright laws in Southern Africa

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Keeping up with the developments in technology: A look into the music industry and the copyright laws in Southern Africa

Author Malebakeng Agnes Forere

ISSN: 2521-2591
Affiliations: Associate Professor, University of the Witwatersrand
Source: South African Intellectual Property Law Journal, 2019, p. 31 – 52

Abstract

Focusing on South Africa, Botswana and Lesotho, this article examines how the music industry and the copyright laws in Southern Africa address the impact of technological developments on the user and content owners. In the case of the music industry, the article finds that technology has moved away from the CD players to USB ports, yet the music industry has not kept up as music is still sold on CDs. In addition, the article finds that there is a shift away from broadcast to webcast and on-demand platforms, yet there is little southern African content on streaming platforms, which then forces the consumer to resort to international production. Turning to law, the article finds that in order for consumers to continue enjoying music in their vehicles and on laptops, they have to shift formats; consequently, the article considers whether private copy exception or format shifting is allowed, and whether the rights owners are entitled to compensation against private copy exception. The findings indicate that while Botswana has a levy system, South Africa does not, and Lesotho does not create private copy exception at all. Further, the article looks at the interface of private copy exception and technological protection measures (TPMs) and finds that while Botswana does not allow circumvention of TPMs to make a private copy, South Africa does, thereby creating lawlessness. Lesotho does not have provisions on TPMs. Regarding streaming or on-demand platforms, the article finds that online music service providers exercise the ‘making available right’ of content owners and determines whether the laws in the three sampled countries protect the right of making available.

Patents and the traditional bio-innovation predicament: Critical perspectives

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Patents and the traditional bio-innovation predicament: Critical perspectives

Author Tigist D Gebrehiwot

ISSN: 2521-2591
Affiliations: Post-Doctoral Fellow of the South African Research Chair in Law, Society and Technology, College of Law, University of South Africa
Source: South African Intellectual Property Law Journal, 2019, p. 53 – 70

Abstract

The aim of this paper is to analyse the application of intellectual property (IP) law in agricultural innovation. Today, global agriculture and food industries are changing due to new technological development. This study evaluates the complex relationships underlying forces operating between traditional bio-innovations and modern technologies. It is important to note that society is currently faced with both technology and knowledge transfer, while the market-driven intellectual property law operates on an individualistic and permission-based platform aimed at protecting the individual’s right of ownership in his or her knowledge. The application of patent law in agriculture is expanding apace and beyond all expectation. This notwithstanding, or possibly for this very reason, the courts across the world are by and large struggling to establish an appropriate legal framework for agricultural innovation. This is significant because agriculture plays a key role in the economic development of society.

The effect of copyright term length on South African book markets (with reference to the Google book project)

The effect of copyright term length on South African book markets (with reference to the Google book project)

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

The effect of copyright term length on South African book markets (with reference to the Google book project)

Author: Paul J Heald

ISSN: 2521-2591
Affiliations: Richard W. & Marie L. Corman Research Professor, University of Illinois (USA) College of Law Fellow (2018), Stellenbosch Institute for Advanced Study (STIAS), Stellenbosch University
Source: South African Intellectual Property Law Journal, 2019, p. 71 – 98

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Heald, PJ
The effect of copyright term length on South African book markets (with reference to the Google book project)
South African Intellectual Property Law Journal, 2019, p. 71 – 98

Abstract

Research on the effect of copyright term extension in the United States demonstrates the negative effect of protection on the availability of new bound editions, ebooks, and audiobook editions of older works. Among the most popular titles, copyright protection is also associated strongly with higher prices in the US. Another recent study documents the negative effect of copyright term extension on titles available for e-lending in the US, Australia, New Zealand, and Canada. The present study measures the effect of copyright on the availability of bound volumes and ebooks in South Africa, a jurisdiction currently under pressure to extend its term of copyright beyond the current life-plus-fifty. Monopoly pricing effects in ebook markets in South Africa, and by analogy to other life-plus-fifty jurisdictions, are also shown. Finally, the article measures the extent to which the Google Books Project improves the availability of books in South Africa.

Jurisdictional issues in intellectual property disputes in Zimbabwe

by | Apr 11, 2020 | SAIPLJ, SAIPLJ 2019

Jurisdictional issues in intellectual property disputes in Zimbabwe

Author Charlene Musiza

ISSN: 2521-2591
Affiliations: PhD Candidate Department of Commercial Law, Intellectual Property Unit Faculty of Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2019, p. 99 – 115

Abstract

This article discusses the various approaches to the resolution of intellectual property disputes in use across the world, with specific reference to Zimbabwe’s approach. A country decides whether IP disputes are best resolved in generalist courts or specialised courts. There is a trend toward setting up specialised courts to adjudicate disputes for specific IP rights; these can be courts of first instance or appellate courts. In 2017, Zimbabwe established the Intellectual Property Tribunal as a specialised division of the High Court. The Intellectual Property Tribunal Act (Chapter 26:08) provides the jurisdiction of the tribunal. The challenge, however, is that the statutes regulating the different IP rights also contain jurisdictional provisions. The situation can create challenges in the resolution of IP disputes.