In Joint Matrimony We Share: Controlling the Powers to Use the Trust to Limit Matrimonial Property Rights in South African Law

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

In Joint Matrimony We Share: Controlling the Powers to Use the Trust to Limit Matrimonial Property Rights in South African Law

Authors: Aubrey Manthwa & Paul Nkoane

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of South Africa; Lecturer, University of South Africa
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 89 – 111
https://doi.org/10.47348/SAMLJ/v33/i1a4

Abstract

The deceitful use of trusts has created a fair amount of controversy, specifically where it has appeared that a trust has been employed to limit the rights of third parties. This article argues that it is in the interests of the law to ensure that rights are vindicated when unlawfully limited. Similarly, it is in the interest of the common good that legitimately acquired rights are protected. Trust laws state that there must be a separation between control and enjoyment and, in cases where there is no separation, the courts may scrutinise the affairs of a trust. Recent developments have illustrated that measures that provide relief to spouses upon the dissolution of the marriage may not be readily invoked, especially for marriages in community of property. Family trusts have provided spouses with avenues for hiding assets that would otherwise fall into the joint estate. Courts need to adopt a robust approach when dealing with trust assets upon the dissolution of a marriage, particularly to protect the rights of competing spouses.

Contract as a Basis for Mediation Confidentiality

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

Contract as a Basis for Mediation Confidentiality

Author: Michael Laubscher

ISSN: 1996-2185
Affiliations: Lecturer, North-West University
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 112 – 136
https://doi.org/10.47348/SAMLJ/v33/i1a5

Abstract

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

by | Nov 29, 2021 | SAMLJ, SAMLJ V33 I1

Case Notes: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

Authors: Marius van Staden & Kathleen van der Linde

ISSN: 1996-2185
Affiliations: Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 137 – 152
https://doi.org/10.47348/SAMLJ/v33/i1a6

Abstract

None

Facilitating Trade and Strengthening Market Access in the Southern African Customs Union: A Focus on South Africa’s Customs Reform

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Facilitating Trade and Strengthening Market Access in the Southern African Customs Union: A Focus on South Africa’s Customs Reform

Authors: Victor T Amadi & Patricia Lenaghan

ISSN: 1996-2185
Affiliations: Postdoctoral Research Fellow, Centre for Comparative Law in Africa, University of Cape Town; Associate Professor, Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 309 – 333
https://doi.org/10.47348/SAMLJ/v32/i3a1

Abstract

In the modern business environment, emphasis is placed on timely production, requiring timely delivery and fast and predictable release of goods at the borders. Experiencing delays in the supply chain of goods increases transaction costs, which can, in consequence, raise the price of export and import products. South Africa is a developing state that needs to be competitive on every front to secure economic growth considering the current push towards the African Continental Free Trade Area (AfCFTA). This article aims to tackle the issue of non-tariff barriers to trade, particularly restrictive customs and administrative procedures at border crossings in the Southern region, by exploring trade facilitation measures which can be crucial for integration and development. Trade facilitation regulates behind-the-border measures and encompasses reform of a country’s customs policies and infrastructure as customs operations can be characterised by a complex array of requirements for traders, including documentation requirements. This article accordingly examines how South Africa is evolving its customs environment to facilitate trade further and to enhance market access of goods into the country and the Southern region. South Africa has adopted a Custom Modernisation Programme (CMP) under the guidance of the South African Revenue Services (SARS). The adoption of this programme can potentially reduce the delays in trade transactions at border points.

Securing Shareholder Information in the Digital Age – An Analysis of the Proposed Amendments to Section 26 of the Companies Act

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Securing Shareholder Information in the Digital Age – An Analysis of the Proposed Amendments to Section 26 of the Companies Act

Author: Mzukisi Njotini

ISSN: 1996-2185
Affiliations:Vice Dean (Teaching and Learning), Faculty of Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 334 – 359
https://doi.org/10.47348/SAMLJ/v32/i3a2

Abstract

Amending company legislation has become a common occurrence in South Africa. The legislature has passed a number of statutes to alter the principles regulating corporate entities. It is noteworthy that the Companies Act 71 of 2008 is the most substantial of these amending statutes. This Act harmonised the legal principles governing the operation of companies, and brought companies closer to the developmental needs of society. It sought to promote economic grown, investor confidence and foreign investment, and accelerate the transportation of goods and services globally. Because of the need for companies to continue to promote innovation, the legislature proposed measures to repeal certain provisions of the Companies Act. Clause 4 of the Companies Amendment Bill of 2018 contains the proposed changes. The provision supports one of the cardinal ideals of an information society — to improve the free flow of information. However, the challenge with the section 4 provisions is that they are likely to endanger the sanctity of personal information stored online. Specifically, it is not completely clear to what extent the proposed amendments will enhance the integrity of online information, as opposed to weakening it.

Residual Goodwill – A Case of Discontinued Marks: Beiersdorf AG v Koni Multinational Brands (Pty) Ltd

by | May 18, 2021 | SAMLJ, SAMLJ V32 I3

Residual Goodwill – A Case of Discontinued Marks: Beiersdorf AG v Koni Multinational Brands (Pty) Ltd

Author: Nomthandazo Mahlangu

ISSN: 1996-2185
Affiliations: Postgraduate assistant, Department of Mercantile Law,
University of South Africa
Source: South African Mercantile Law Journal, Volume 32 Issue 3, 2020, p. 360 – 388
https://doi.org/10.47348/SAMLJ/v32/i3a3

Abstract

The remedy in passing-off is directed against a representation made by the respondent that amounts to a misrepresentation that damages the goodwill of a business. The applicant in a passing-off claim must successfully establish its existing goodwill. In circumstances where the applicant’s business is abandoned, the accumulated goodwill may continue to subsist in the form of residual goodwill that is retained in the distinctive mark long after the business has ceased to exist. This article aims to explore whether the discontinued use of the get-up amounts to the abandonment of goodwill where the business continues, and whether residual goodwill subsists in the abandoned get-up, in the light of Beiersdorf AG v Koni Multinational Brands (Pty) Ltd 2019 BIP 23 (GJ). The article further examines the underlying challenges surrounding the application of the concept of residual goodwill, in particular where the applicant has abandoned the use of the mark or get-up, and the consequences that arise.