International best practice and a revised Code for Responsible Investing in South Africa

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

International best practice and a revised Code for Responsible Investing in South Africa

Author: Natania Locke

ISSN: 1996-2177
Affiliations: Associate Professor, Swinburne University of Technology; Visiting Professor, University of Johannesburg
Source: South African Law Journal, Volume 140 Issue 3, p. 550-578
https://doi.org/10.47348/SALJ/v140/i3a6

Abstract

The much anticipated Second Code for Responsible Investing in South Africa (‘CRISA 2’) was published in September 2022. This article explores the evolution of the soft-law environment in which the code operates and reaches the conclusion that the revision was both timely and necessary. A comparison between CRISA 2 and recent trends in investor stewardship codes and regulation shows that CRISA 2 has kept pace in some respects but still lags in others. The move to ‘apply and explain’ falls in line with King IV and the approach of the UK Stewardship Code 2020. The extension of its application to all investment types rather than solely shares is an improvement. The code retains its focus on responsible investment — an aspect only recently adopted internationally in comparative codes — but has opted not to shift to sustainability language despite contemplating this approach in the draft. This may have been a missed opportunity. Aspects that could improve include considering engagement outside of voting; more express duties for service providers, including proxy advisors; the need to ascertain client and beneficiary needs; and more accessible language. Annual reporting and oversight remain with an industry body, which makes greater reporting doubtful.

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

Author: Fatima Essop

ISSN: 1996-2177
Affiliations: Visiting Fellow, Harvard Law School Program on Law and Society in the Muslim World
Source: South African Law Journal, Volume 140 Issue 3, p. 579-610
https://doi.org/10.47348/SALJ/v140/i3a7

Abstract

Although the Constitution of the Republic of South Africa, 1996 provides for the enactment of legislation recognising various systems of personal and family law, no legislation has yet been enacted to recognise Muslim personal laws of marriage, divorce or inheritance. This has not precluded South African Muslims from implementing Muslim personal laws in their private lives, with the assistance of various Muslim ulama bodies. In the sphere of inheritance, Muslim testators ensure that their estates devolve according to the Islamic laws of inheritance by incorporating the Islamic laws of inheritance into their wills. They also delegate their testamentary powers to ulama bodies to determine their Islamic-law heirs. This article explores whether the incorporation by reference of Islamic inheritance law into Islamic wills contravenes the common-law prohibition against incorporation by reference. It also discusses whether delegating testamentary powers to ulama bodies potentially contravenes the commonlaw rule against delegating testamentary powers. Although these practices may contravene the common-law rules, they should be accommodated by developing the common law to uphold the constitutional rights to religious and testamentary freedom.

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 140 Issue 3, p. 611-646
https://doi.org/10.47348/SALJ/v140/i3a8

Abstract

Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.

Workplace bullying in the legal profession

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Workplace bullying in the legal profession

Authors: Michele van Eck & Marthinus van Staden

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Private Law, University of Johannesburg; Associate Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 3, p. 647-677
https://doi.org/10.47348/SALJ/v140/i3a9

Abstract

The International Bar Association (‘IBA’) highlighted a disturbing trend of bullying within the legal profession in its 2019 report on bullying and sexual harassment in the legal profession, both internationally and in South Africa. The substantive forms of bullying (often described as victimisation, discrimination, or harassment) may overlap in the manner, mode or way in which bullying is perpetrated, and how bullying occurs may be grouped into several distinct categories: overt (or direct) forms, covert (or indirect) forms and, finally, so-called ‘mobbing’. This article investigates the current South African legislative framework addressing workplace bullying, including the indirect remedies available to victims in terms of (i) a claim of harassment as a form of unfair discrimination under s 6(3) of the Employment Equity Act; (ii) a claim for constructive dismissal under s 193 of the Labour Relations Act; and (iii) unfair labour practices as a remedy for workplace bullying or a claim of harassment in terms of the Compensation for Occupational Injuries and Diseases Act. After finding that these indirect remedies are inadequate to address workplace bullying in the legal profession, the article explores the conduct rules of the legal profession to establish how bullying is addressed in the legal sector and conducts a comparative analysis of the way in which bullying is addressed in the Australian and New Zealand jurisdictions to identify possible solutions to curb the scourge of workplace bullying in the South African legal profession.

Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

Author: Nomthandazo Mahlangu

ISSN: 1996-2185
Affiliations: Lecturer, North-West University
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 305 – 331
https://doi.org/10.47348/SAMLJ/v34/i3a1

Abstract

The appeal in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG 2021 JDR 0414 (SCA) turned on whether Beiersdorf could stop Koni from selling its product in a get-up much like that of NIVEA MEN by asserting unlawful competition in the form of passing off. This question is answered by analysing case law on assessing the acquisition of distinctiveness. Given the lack of South African cases on this form of acquisition, reference is made to cases from other common-law jurisdictions. The discussion evaluates whether evidence presented by Beiersdorf supports the decision that the features in question are distinctive of its products. The findings illustrate that even a long-standing use of a trade mark which is not inherently distinctive will not make it distinctive. The decision in Koni is significant because it (incorrectly) bestows the use of specific colours on one enterprise to the exclusion of its competitors.

Setting boundaries for image misappropriations through online catfishing

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Setting boundaries for image misappropriations through online catfishing

Authors: Lisa Ndyulo & Nomalanga Mashinini

ISSN: 1996-2185
Affiliations: LLM Graduate, Rhodes University; Senior Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 332 – 347
https://doi.org/10.47348/SAMLJ/v34/i3a2

Abstract

Social networking platforms have popularised catfishing, which entails creating and using a fake social media account to exploit other users. Catfishing involves acts of online misappropriation because the traits of a person’s identity, such as a name and photograph, can be used by a catfish to pose as another person to deceive other users. Image rights are frequently affected by such acts of impersonation. This article determines whether mere misappropriation of identity suffices as a cause of action for image rights violations. The South African courts must clarify whether mere misappropriation constitutes a ground for violating identity in catfishing cases. Thus, the courts should recognise mere misappropriation as sufficient to yield a claim when the falsification and commercial exploitation of identity cannot be proven. Such an approach will allow for the speedy resolution of disputes and will also ensure that justice is served before the plaintiff suffers irreparable harm as a result of image misappropriations on social media.

A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008

Author: Etienne Olivier

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile and Labour Law, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 348 – 381
https://doi.org/10.47348/SAMLJ/v34/i3a3

Abstract

Section 20(9) of the Companies Act 71 of 2008 (the Act) is a statutory version of the common-law remedy of piercing the corporate veil. Unfortunately, the legislature, by leaving undefined the phrases ‘interested person’, ‘unconscionable abuse’ and ‘any further order necessary to give effect to the declaration’ in s 20(9) of the Act, has left room for uncertainty regarding the interpretation of the section. After discussing the purpose of s 20(9) of the Act, the article makes recommendations for how the statutory veil-piercing remedy should be interpreted. The article suggests the inclusion in the Act of an extensive and open-ended definition of ‘unconscionable abuse’ that describes categories of abuse sufficient to justify piercing of the corporate veil. It is argued that the term ‘interested person’ should be read to exclude a company’s controllers acting for their own benefit when the controllers themselves have committed the unconscionable abuse. It is argued further that a court’s power to grant ‘any further order’ in addition to a disregarding of separate legal personality should be limited to orders that are necessary to provide adequate relief for the litigant that invokes s 20(9), namely impositions of rights and liabilities.

Accountability in the twin peaks model of financial regulation in South Africa

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Accountability in the twin peaks model of financial regulation in South Africa

Authors: Gerda van Niekerk & Hoolo ’Nyane

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Limpopo; Associate Professor of Public Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 382 – 403
https://doi.org/10.47348/SAMLJ/v34/i3a4

Abstract

The Financial Sector Regulation (FSR) Act 9 of 2017 implemented the first stage of the Twin Peaks model of financial regulation in South Africa. The Act established the Prudential Authority and the Financial Sector Conduct Authority to make the financial sector safer by using a more robust prudential and market conduct framework. The South African Reserve Bank received an enhanced mandate to promote and maintain financial stability. Since accountability is a core goal in financial regulation, this paper analyses the notion of accountability and specifically the accountability of the regulators in a Twin Peaks model of financial regulation. The legislative framework put in place by the FSR Act goes a long way in adhering to principles of accountability. The financial sector regulators are obliged to consult with various stakeholders such as the Minister of Finance and financial institutions. The regulators are subject to control measures, and Parliament holds them accountable. Nevertheless, the authors suggest that one more step is necessary. There should be more debate and engagement by the regulators with the general public to increase public knowledge of financial sector regulation in South Africa.