The characterisation principle in South African competition law from a German law perspective

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

The characterisation principle in South African competition law from a German law perspective

Author: Damian Schmidt

ISSN: 1996-2185
Affiliations: Attorney at law in Stuttgart (Germany)
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 153 – 180
https://doi.org/10.47348/SAMLJ/v34/i2a1

Abstract

The characterisation principle — or the concept of characterisation —  is a modern achievement of the South African competition law, with its  roots in United States jurisdiction from which it was originally  transferred into the South African legal system. Several far-reaching  South African court decisions refer to the characterisation principle  and make it an essential part. However, the positioning of the  characterisation principle in South African competition law is  complex. This is shown by the fact that, for example, the concept of  characterisation obviously conflicts with the rationale of the per se  prohibitions implemented in the South African Competition Act 89 of  1998. This article attempts to analyse the characterisation principle  from a German law perspective in order to define its relevance, impact  and limitation more precisely in the South African legal system. 

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

Author: Elisa Rinaldi

ISSN: 1996-2185
Affiliations: Assistant Lecturer, Faculty of Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 181 – 211
https://doi.org/10.47348/SAMLJ/v34/i2a2

Abstract

With a growth in cross-border employment, the territorial limitations  placed on the adjudication of cross-border employment disputes is  incongruent to the development of employment and the subsequent  employment relationship. The question of adjudication in the Labour  Court rests predominantly on the territorial scope of South Africa’s  employment statutes. Accordingly, this article exposes the uncertainty  employees, who work outside their countries of residence, face when  trying to utilise the Labour Court as a channel of legal relief. Reasons  for this inconsistency lies in the approach the Labour Court has taken  in determining the territorial reach of South Africa’s employment  statutes. Where the Labour Court has utilised methods of statutory  interpretation and strictly imposed the presumption against extraterritoriality,  the court has established a practice that, in light of the  growing global nature of employment, deviates from the realities of the  de-territorialised flow of labour. Important in this article is thus the  endorsement of private international law principles and methods in  establishing jurisdiction and choice of law in the adjudication of a  cross-border employment dispute. 

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

Author: Moseki Maleka

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 212 – 228
https://doi.org/10.47348/SAMLJ/v34/i2a3

Abstract

Before the commencement of the constitutional state era (due to the  promulgation of the Constitution of the Republic South Africa, 1996  (‘the Constitution’)) in South Africa, taxpayers’ rights were not protected  when taxpayers engaged with the revenue office, now known as  the South African Revenue Service (SARS). Taxpayers had no right to  just administrative action and could not challenge the exercise of SARS’  powers on administrative grounds.  Croome and Olivier argue correctly that during the pre-constitutional  era, taxpayers were entitled to expect that SARS would comply  with the general principles of administrative law, comprising the  principles of audi alteram partem (‘hear the other side’), nemo iudex in  sua propria (‘no one may be a judge in his own cause’) and the commonlaw  principles of judicial review of administrative acts (see Croome &  Olivier, Tax Administration (Juta 2010) 21).  Further, SARS was not obliged to provide reasons to taxpayers for  decisions taken by them as long as the decisions were reached in  accordance with its wide legislative powers (see Croome & Olivier, (Juta  2010) 21). This means that taxpayers did not have any ammunition to  challenge the exercise of SARS’ powers on administrative grounds prior  to the commencement of the constitutional era, where no reasons were  provided.  The position mentioned above has changed and SARS’ actions can  now be measured against the fundamental rights entrenched in Chapter  2 of the Constitution and the administrative principles laid down in the case of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and  Tourism and Others 2004 (4) SA 490 (CC) (‘Bato Star Fishing’). 

Assessing the Legal and Regulatory Framework for Special Economic Zones in South Africa

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Assessing the Legal and Regulatory Framework for Special Economic Zones in South Africa

Author: Mmiselo Freedom Qumba

ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 229 – 267
https://doi.org/10.47348/SAMLJ/v34/i2a4

Abstract

The previous industrial development zones (IDZs) programme did not generate the anticipated economic growth in South Africa. Thus, the recent special economic zones (SEZs) programme is aimed at addressing the deficiencies in the disappointing record of the IDZs. So, would the new SEZ programme succeed if the IDZs failed? Since the IDZ is considered to have failed to generate the expected levels of economic growth, it is important assess whether the new SEZ programme will be able to fulfil its intended objectives. Therefore, the purpose of this article is to provide an insightful analysis of the South African SEZ programme from a legal and policy perspective and to proffer some reforms in areas that may be pertinent for the success of the SEZ programme. It traces South Africa’s experience with the IDZs and related industrial policies by assessing how the country has fared so far, looking at its transition from the IDZs to the SEZs and analyses the potential challenges it is likely to face in the future. It adopts a comparative method of analysis by examining key issues confronting SEZs in South Africa, India, and China. In particular, the article compares only the key aspects in the regulatory design of the SEZ as found in the SEZ Act. These aspects include: the governance and ownership structure of the SEZs; the incentives offered to investors; the establishment of one-stop shops and issues of infrastructure development.

South African Governance Legal Framework for Corporate disclosures and reporting: Part 1 – Voluntary sustainability reporting

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

South African Governance Legal Framework for Corporate disclosures and reporting: Part 1 – Voluntary sustainability reporting

Author: Werner Schoeman

ISSN: 1996-2185
Affiliations: Lecturer: Mercantile and Labour Law Department, School of Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 268 – 292
https://doi.org/10.47348/SAMLJ/v34/i2a5

Abstract

The general dissatisfaction of shareholders and other users of financial statements with both voluntary sustainability and mandatory financial disclosure and reporting, prompt an appeal for increased government-commanded reporting requirements. State-based standardsetting and voluntary sustainability reporting within the corporate jurisprudence must therefore evolve, which includes, among others, the variety of legal and regulatory standards, their dynamism, and the manner in which standards can be imposed. Directors and auditors must act ethically to observe their various functions as regulated by the Companies Act 71 of 2008 and the Auditing Profession Act 26 of 2005. National and international companies persistently undermine good governance. Directors’ and auditors’ failure to comply with ethics can certainly not continue with impunity. The global trend in the use of voluntary sustainability reporting highlights the prominence that auditors play in good corporate governance, although compliance with voluntary sustainability reporting does not warrant good corporate governance. Independence of auditors remains contentious in the light of the funding model of the regulator, working of audit committees, the connection between directors and companies, and the corporate governance expectation gap.

Case Notes: The income tax position of a creditor on the insolvency and/or business rescue of a debtor

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Case Notes: The income tax position of a creditor on the insolvency and/or business rescue of a debtor

Authors: Thabo Legwaila & Carika Fritz

ISSN: 1996-2185
Affiliations: Professor of Law, University of Johannesburg; Associate Professor of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 293 – 303
https://doi.org/10.47348/SAMLJ/v34/i2a6

Abstract

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