Commercial Law

Cover
Half Title
Dedication
Title Page
Copyright Page
Preface
Contents
Part One – General Introduction
1 The South African Legal System and its History
History of the South African Law
General
Roman law
Roman-Dutch law
South African law
The South African Legal System
General
Divisions of the objective law
Aspects of the objective law
Peremptory and regulatory rules of law
Subjective rights
Selected Bibliography
2 Creation of Legal Rules and the Administration of Justice
Introduction
Custom as Source of Law
Legislation as Source of Law
General
Acts of Parliament
Provincial legislation
Subordinate legislation
General
Requirements for the validity of subordinate legislation
Power of courts to declare legislation invalid
Court Decisions as Source of Law
General
Hierarchy of courts in South Africa
High courts
Lower courts
Special courts
Appeals
Jurisdiction of the courts
Lower courts
High courts
Creation of new law by the courts
Doctrine of Judicial Precedent (Rule of Stare Decisis)
General
Application of the doctrine
The Legal Profession
Criminal and Civil Cases
Civil cases
Criminal cases
Parties
Part Two – General Principles of the Law of Contract
3 Introduction to the Law of Contract
Introduction
Brief Historical Overview
The Concept
Sources of Legal Obligations
Number of Obligations arising from a Contract
Legally Relevant Agreements
Transfer of Rights and Duties
The Delict
General
Elements of a delict
General
The conduct
Wrongfulness
Grounds of justification
Fault
Causation
Patrimonial loss or impairment of personality
Delictual remedies
Actio legis Aquiliae
Actio iniuriarum
Action for pain and suffering
Various other actions
The interdict
Prescription
The Contract
General
Requirements for the conclusion of a contract
Basic concepts
The parties
The performance
Unilateral contracts
Reciprocal contracts
Nominate contracts
Essentialia
Naturalia
Incidentalia
Contracts which are null and void
Voidable contracts
Unenforceable contracts
Selected Bibliography
4 Consensus
Establishment of Consensus
General
The offer
The acceptance
Requirements for a valid acceptance
Legal consequences of the acceptance
Time and place of the conclusion the of contract
Specific offers
Auctions
Pacta de contrahendo
Contents of the Contract
General
Real consensus
Presumed consensus
Tacit terms
Ticket contracts
Consensus through operation of law
Common law
Legislation
Trade usages
Factors influencing Consensus
General
Error
Error in motive
Error as to the contents or existence of the contract
Application of the will theory
Iustus error approach
Solution in the South African law
Improperly obtained consensus
Misrepresentation
Duress
Requirements for duress
Undue influence
Requirements for undue influence
The Consumer Protection Act
Commercial bribery
Selected Bibliography
5 Contractual Capacity
Introduction
Legal capacity
Contractual capacity
Natural persons
Persons without Contractual Capacity
General
Persons under the age of seven
Mental health care users
Persons in a state of automatism or under the influence of medication or alcohol
Persons with Limited Contractual Capacity
General
Minors
Married persons
General
Marriages before 1 November 1984
Marriages concluded after 1 November 1984
Alteration of existing matrimonial property dispensation
Other persons with limited contractual capacity
Prodigals
Persons under curatorship or administration
Insolvency
Persons with Full Contractual Capacity
Juristic Persons
Selected Bibliography
6 Legality, Possibility of Performance and Certainty
Introduction
Legality
General
Contracts contrary to statutory provisions
Contracts contrary to the common law
General
Contracts contrary to good morals
Contracts contrary to the public interest
Consequences of illegal contracts
Physical Possibility of Performance
Certainty
General
Generic obligation
Alternative obligation
Facultative obligation
Mechanisms to obtain certainty
Gaps and vague language
Selected Bibliography
7 Formalities
Introduction
Formalities Required by Legislation
Formalities Required by Parties
Variation of Formal Contracts
Contents of Written Contracts
Interpretation of contract and terms
The parol evidence rule
Rectification
Selected Bibliography
8 Parties to the Contract, Conditions and Related Concepts, Particular Terms and Interpretation of Contracts
Parties
General
Agency
Contract for the benefit of a third party
Differences with agency
Operation of the contract for the benefit of a third party
Cession
Definition and examples
Nature of cessionary’s right
Prohibition on cession
Delegation and assignment
Plurality of parties: Forms of liability
General
Divisibility of performance
Conditions and Related Concepts
Terms and conditions
Different types of conditions
General
Suspensive conditions
Resolutive conditions
Fictional fulfilment of a condition
Time clause
General
Suspensive time clause
Resolutive time clause
Assumption (supposition)
Particular Terms
General
Warranties
Penalty clauses
Acceleration clauses
Cancellation clauses
Jurisdiction
Alternative dispute resolution
Costs
Exemption clauses
Interpretation of Contracts
Selected Bibliography
9 Breach of Contract and Termination of Contractual Relationship
Introduction
Forms of Breach of Contract
General
Delay by debtor (mora debitoris)
Meaning
Requirements
Consequences of mora debitoris
Delay by creditor (mora creditoris)
Meaning
Requirements
Consequences of mora creditoris
Positive malperformance
Meaning
Requirements
Consequences of positive malperformance
Repudiation
Meaning
Requirements
Consequences of repudiation
Prevention of performance
Meaning
Requirements
Consequences of prevention of performance
Remedies for Breach of Contract
General
Remedies by operation of law
Agreed remedies
Claims for fulfilment of contract
Common-law remedies
Agreed remedies: Acceleration clauses and substitutions
Cancellation or rescission
General
Cancellation in terms of a cancellation clause
Cancellation because of mora debitoris
Cancellation because of mora creditoris
Cancellation because of positive malperformance
Cancellation because of repudiation
Cancellation where performance is prevented
Time, method and consequences of cancellation
Damages
General
Purpose of damages
Principles regarding the extent and recoverability of damages in the absence of a penalty clause
Penalty clauses
Termination of Contractual Relationship
General
Performance
General
Parties to performance
Manner of performance
Place and time of performance
Allocation of payments
Contract
General
Release and waiver
Compromise or settlement
Novation
Resolutive term and condition
Set-off
General
Requirements
Merger
Impossibility of performance
Rehabilitation after sequestration
Prescription
General
Effect of prescription: Strong and weak prescription
Periods of prescription
Commencement of period of prescription
Interruption of prescription
Delay of completion of prescription
Related debts
Selected Bibliography
Part Three – Agency
10 Introduction to the Law of Agency
Introduction and Basic Concepts
Act of Agency
Authority
General
Sources of authority
Introduction
Contractual authority
Ratification
Implied authority (by operation of law (ex lege))
Ostensible authority (estoppel)
Impact of Makate v Vodacom Ltd
Scope of authority
General
Express authority
Tacit authority
Ostensible authority
Formalities when granting authority: power of attorney
Termination of authority
Selected Bibliography
11 Relationship Between Parties to Agency
Relationship between Principal and Agent
Introduction
Duties of principal
To compensate agent
To indemnify agent against loss
To reimburse agent for expenses
To account to agent
Special ways to enforce principal’s duty to pay: lien and set-off
Duties of agent
To perform his mandate
To act in good faith
To account to principal
To keep principal’s property separate
To return principal’s property
Miscellaneous Aspects of a Tripartite Relationship
Relationship between principal and third party
General
Liability toward third parties
Relationship between agent and third party
General
Absence of authority
Express warranty
Misrepresentations
Selected Bibliography
12 Special Types of Principals and Agents
Special Types of Principals
Introduction
Non-existing principal
Undisclosed principal
Special Types of Agents
Introduction
Brokers
Estate agents
General
Features of statutory framework
Duties of estate agent
Remuneration of agent agents
Auctioneers
Company representatives
Intermediaries in terms of the Consumer Protection Act
Selected Bibliography
Part Four – Purchase and Sale
13 General Introduction to the Law of Purchase and Sale
Introduction
General
Brief historical overview
Contract of sale defined
Requirements for valid contract of sale
Essentialia of the Contract of Sale
Nature of the contract
The object sold
General
Different objects sold
The purchase price
General
Agreement on the price
Influence of the Consumer Protection Act on purchase price
Formalities
General
Contracts for sale of land
Formalities in terms of Alienation of Land Act
Important concepts
Aim of statutory requirements
Written contract required
General
Object sold must be clearly defined
Purchase price must be clearly defined
Parties must be clearly described
Alteration of written contracts
Termination and re-instatement of written contracts
Blank spaces
Rectification of blank spaces
Signature of parties
General
Agents
Influence of the Consumer Protection Act on formalities
Consequences of non-compliance with formalities
Right to revoke offer or terminate deed of alienation
Selected Bibliography
14 Duties of the Seller
Introduction
Safe-keeping of Object Sold
Seller’s duty
General principles
Factors that influence the duty of safe-keeping
Passing of risk
General principles
Damage and advantage
Duty of safe-keeping and passing of risk
Influence of the Consumer Protection Act on risk
Passing of Ownership
General
Requirements for passing of ownership
Immovable property
Movable property
Payment of purchase price
General
Cash sale
Credit sale
Delivery of object sold
General
Forms of delivery
Object delivered
Date of delivery
Place of delivery
Influence of the Consumer Protection Act on delivery
Double sales
Warranty against Eviction
General
Definition of eviction
General principles
Forms of eviction
Duties of buyer when eviction imminent
General
The rules
Buyer’s right of recourse
Total eviction
Partial eviction
Where buyer has no or limited right of recourse
Influence of the Consumer Protection Act on the warranty against eviction
Warranty against Latent Defects
General
Meaning of latent defect
Definition
Analysis of definition
Warranties against latent defects
Warranty by operation of law
Contractual warranties
Guarantees distinguished from misrepresentations and sales talk
Actio empti
Grounds for institution
What may be claimed with the actio empti
Aedilitian actions
General
Actio redhibitoria and actio quanti minoris
When aedilitian actions may not be instituted
Influence of the Consumer Protection Act on the warranty against latent defects
Quality of goods
Product failure or defects in goods
Available defence for product failure or defective goods
Remedies
Implied warranty for good quality of goods
Liability for damage caused by defective goods
Selected Bibliography
15 Duties of the Buyer
Payment of Purchase Price
Method of payment
Date of payment
Payment in instalments
Place of payment
Receipt of Thing Sold
Miscellaneous Duties
Pre-emptive Right and Option
Pre-emptive right
Option
Formalities in respect of pre-emptive rights and options
Movables
Immovables
Selected Bibliography
Part Five – Letting and Hiring
16 Formation of the Contract of Lease
Introduction
Definitions
General Requirements for Conclusion of the Lease
General
Consensus
Contractual capacity
Formalities
Essentialia of the Contract of Lease
General
Leased property
Temporary conferment of power of use and enjoyment
Nature and extent of the counter-performance
Conclusion
Incidentalia of the Contract of Lease
General
Unfair, unreasonable or unjust contract terms
Prohibited transactions, agreements, terms or conditions
Notice required for certain terms and conditions
Powers of the court to ensure fair and just conduct, terms and conditions
Selected Bibliography
17 Duties of the Lessor and the Lessee
Introduction
Duties of the Lessor
General
Delivery of the leased property
Maintenance of the leased property
Remedies available to the lessee
Providing undisturbed use and enjoyment
Disturbance by lessor
Disturbance by third parties
Huur gaat voor koop
Compensation for attachments and improvements
General
Compensation
Duties of the Lessee
General
Payment of rent
Reduction of rent
Remedies of the lessor
Proper use of the property
Remedies of the lessor
Return of property on termination of lease
Remedies of the lessor
Rights and Duties Imposed by the Rental Housing Act
Remedies for failure to comply with the provisions of the Rental Housing Act
Selected Bibliography
18 Miscellaneous Aspects of the Law of Lease
Sub-lease, Cession, Delegation and Assignment
General
Sub-lease
Cession
Delegation and assignment
Termination of the Lease
General
Effluxion of time
Notice
Rescission as a result of breach of contract
Death
Insolvency
Insolvency of the lessor
Insolvency of the lessee
Dissolution of partnership
Renewal of the Lease
By agreement
By operation of law
Option to renew
Selected Bibliography
Part Six – Credit Agreements
19 General Introduction and Historical Background
Introduction
Necessity of Statutory Protection
Moneylending contracts
Hire-purchase contracts (instalment sales)
Other credit contracts
Consumer legislation
Historical Background to Legislation
Credit Agreements Act
Usury Act
National Credit Act
Other consumer credit legislation
Synopsis of National Credit Act
Selected Bibliography
20 Application of Act and Conclusion of Credit Agreements
Introduction to Application of Act
Definitions of Credit Agreements
General
Credit facility
Credit transaction
Credit guarantee
Combination of transactions
Altruistic agreements
Schematic Illustration
Exemptions
Limited Application of Act
Small, Intermediate and Large Agreements
Pre-agreement Disclosures
Form of Credit Agreements
Unlawful Agreements and Provisions
Unlawful agreements
Unlawful provisions
Alterations to Credit Agreements
Reduction of credit limit
Increase in credit limit
Selected Bibliography
21 Consumer Credit Institutions and Regulative Matters
Introduction
National Credit Regulator
General
Functions and duties of Regulator
National Consumer Tribunal
Powers of Tribunal
General powers of Tribunal
Selected powers of Tribunal
Registration of Role-players
Duty to register
Invalidity of agreements by non-registered credit provider
Threshold for registration
Requirements and disqualifications
Prohibitive notices
Deregistration
Compliance Procedures
Debt Counsellors
Payment Distribution Agents and Alternative Dispute Resolution Agents
Selected Bibliography
22 Rights and Duties of Parties
Introduction
General
Definition of consumer
Definition of credit provider
Rights and Duties of Credit Provider
Rights of credit provider
Duties of credit provider
General duties
Assessment of credit-worthiness and reckless credit
Rights of Consumer
Introduction
Right to apply for credit and non-discrimination
Right to understandable language
Rights regarding information held by credit bureaux
Protection against marketing practices
Indemnity against lost cards
Right to documentation
Right to confidentiality and privacy
Right to apply for debt review and re-arrangement of obligations
Introduction
The concept of over-indebtedness
Initiating a debt review
Evaluation and steps by debt counsellor
Prohibition on further agreements
Right to cooling-off
Introduction
Exercise of cooling-off right and consequences
Compensation for depreciation
Early settlement and prepayments
Introduction
Settlement of the debt
Advanced payments without settlement
Surrender of goods
Introduction
Notice to surrender
Withdrawal of surrender
Selling the goods and settlement
Dissatisfaction by consumer
Duties of Consumer
Introduction
Duty to report location of goods
Selected Bibliography
23 Financial Matters, Dispute Settlement and Debt Enforcement
Financial Matters
Introduction
Items recoverable by credit provider
Regulation and calculation of interest
Ultr duplum rule
Variable interest rates
Changes to interest rates, fees and charges
Prescribed fees and charges
Maximum interest rates
Credit insurance
Dispute Settlement
Introduction
Alternative dispute resolution
Complaints solved or handled by National Credit Regulator
Debt Enforcement
Introduction
Required procedures before debt enforcement
Debt procedures in court
Collection and enforcement practices
Selected Bibliography
Part Seven – Insurance and Carriage
24 Introduction to Insurance Law and Insurance Contracts
Introduction to Insurance Law
Origin of insurance and the technique of insurance
History of insurance
Insurance contract defined
Sources of insurance law
Common law
The Constitution
The Insurance Act
The Long-term Insurance Act
The Short-term Insurance Act
The Financial Advisory and Intermediary Services Act
The Conduct of Financial Institutions Bill
Other specialised acts
The General Code of Conduct
The Treating Customers Fairly Principles
Exemption from the Consumer Protection Act
Regulation and Supervision of the Insurance Industry
Insurers
Intermediaries
Key individuals
Supervisory and regulatory framework
Financial Services Conduct Authority
Prudential Authority
Solvency control
Reinsurance regulation
Different Types of Insurance
None-life and life (capital) insurance
Indemnity or non-life insurance
Non-indemnity or life insurance
First- party and third party insurance
Property and liability insurance
Personal lines and commercial lines insurance
Valued and unvalued policies
Microinsurance
Private and social insurance
Reinsurance
Pool insurance
Captive insurance
Lloyd’s of London
Conclusion of Insurance Contracts
Requirements for the conclusion of a valid insurance contract
Consensus
Contractual capacity
Legality
Possibility and certainty
Formalities
Essentialia of insurance contracts
Insurable interest and the principle of indemnity
Risk
Premium
Cover
Period of cover
Parties to insurance contracts
Insurer
Insureds
Third parties
Noting the interests of a third party
Extension clauses
Insurance intermediaries
Auditors
Interpretation of Insurance Contracts
The Insurance Claim
Termination of Insurance Contracts
General
Performance
Resolutive term
Resolutive condition
By choice of the parties
Voluntary loss of insurable interest
Prescription
Other methods of termination
Selected Bibliography
25 Specific Aspects of Insurance Contracts and Non-life and Life Insurance
Duty to Disclose
What must the insured disclose?
What must the insurer disclose?
When must the information be disclosed?
Facts that need not be disclosed
Consequences of failure to disclose or inform
Privacy and data protection
Warranties
General
Types of warranties
Affirmative warranties and promissory warranties
Warranties of fact, warranties of knowledge and warranties of opinion
Absolute or relative warranties
Consequences of breach of warranty
Statutory protection
Realisation of Risk by Insured
Specific Aspects of Indemnity or Non-life Insurance
The principle of indemnity
Over-insurance, under-insurance and average
Double insurance and contribution
Subrogation
Right to salvage
Excess fees and increase in premiums
Specific Aspects of Non-indemnity or Life Insurance
Different kinds of life insurance
Whole life insurance
Term insurance
Endowment insurance
Surrender value
Selected Bibliography
26 Carriage
Introduction
General
Mediums of carriage
Nature of goods conveyed
Types of carriers
The Contract of Carriage
Definition
Conclusion of a contract of carriage
Duties of the parties
Duties of the carrier
Duties of consignor or consignee
Stoppage in transitu
Contract of carriage between carrier and consignee
Contract of carriage between consignor and carrier
Liability of the Carrier
Carriage of passengers and baggage
Carriage of goods
Private carriers
Public carrier
Termination of Contract
Legislation
General
Carriage by road
Carriage by rail
Carriage by sea
Carriage by air
Global Trading on Incoterms
General
Incoterms that apply to all forms of transport
Incoterms that apply to sea and inland waterway transport
Changes to be introduced by Incoterms 2020
Selected Bibliography
Part Eight – Security
27 General Introduction and Suretyship
General Introduction to Real Security and Suretyship
Suretyship
Definition
Nature of suretyship contract
Formation of suretyship contract
Consequences of suretyship
General
Benefits of surety
Termination of suretyship
The impact of the National Credit Act on suretyship
Business rescue and suretyships in terms of the Companies Act
Selected Bibliography
28 Mortgage, Pledge and Cession in Security
Introduction
General Characteristics and Requirements
Accessory nature
Dual relationship
Pledgor and mortgagor
Subject matter of mortgage and pledge
Indivisibility of mortgage and pledge
Consequences of mortgage and pledge
Termination of mortgage and pledge
Pledge
Definition
Agreement to pledge
Delivery
Ancillary agreements
Pactum commissorium or lex commissoria
Use and enjoyment of pledged object (pactum antichresis)
Summary execution (parate executie)
Real right of pledgee
Subject matter of real right of pledge
Contents of real right of pledge
Duties of pledgee
Mortgage
Definition
Agreement to mortgage and registration
Section 88 of the Insolvency Act
Ancillary agreements
Real right of mortgagee
Duties of mortgagee
Various types of bonds
Special bond over specified immovable property
Kustingsbrief
Kinderbewys
Covering bond
Bonds over immovable incorporeal property, sectional title units, and mineral rights
Statutory participation bond
Notarial bonds
General
General notarial bond
Special notarial bond
Cession in Security
The Impact of the National Credit Act on Mortgage, Pledge and Cession in Security
Application of Act
Mortgage
Notarial bond and cession in security
Pledge
Selected Bibliography
29 Hypothecs and Liens
Introduction
Tacit Hypothecs
Landlord’s tacit hypothec
Contents and operation
Property subject to hypothec
Credit grantor’s tacit hypothec
Liens
Description and nature
Debtor/creditor liens
Salvage or storage liens and improvement liens (enrichment liens)
Legal effect of liens
Termination of liens
Execution and Hypothecs by Order of Court
Selected Bibliography
Part Nine – The Bill of Exchange, Cheque, Promissory Note and Electronic Payment Methods
30 General Principles of the Law of Negotiable Instruments
Introduction
Basic Concepts and Definitions
The bill of exchange, cheque and promissory note
Bill of exchange
Cheque
Promissory note
Parties involved in bills, cheques and notes
Drawer
Promissor or maker
Drawee
Payee
Acceptor
Indorser
Holder
Bearer
Aval or surety
Stranger
Cambial contract and underlying obligation
Requirements for Validity
General
Order/promise to pay
Unconditional
In writing
Addressed by one person to another
Signed by person giving it
General
Forged signatures
Difference between forged and unauthorised signatures
Signatures by juristic persons
On demand or at a fixed or determinable future time
On demand
Fixed or determinable future time
Sum certain in money
General
Payable with interest
Discrepancy between words and figures
To a specified person or his order or to bearer
General
Bearer instruments
Order instruments
Neither order nor bearer instrument
Negotiation
General
Method of negotiation
General
Delivery
lndorsement
Indorsement in blank
Special indorsement
Restrictive indorsement
Conditional indorsement
Partial indorsement
Acceptance
General
When presentment for acceptance is necessary
Time and requirements for acceptance
Kinds of acceptance
General acceptance
Qualified acceptance
Holdership
General
Ordinary holder
Rights of an ordinary holder
Duties of holder
Holder for value
General
Transferor by delivery
Holder in due course
General
Rights of holder in due course
Holder who derives title through holder in due course
Selected Bibliography
31 Cheques
Introduction
Cheque as Instrument of Payment
General
Presentment of cheques for payment
Time of payment of cheques
Sending cheques by mail
Acceptance, certification and bank-guaranteed cheques
Bank-Customer Relationship
Crossing of Cheques
Types of crossings
General crossing
Special crossing
Nature and effect of crossings
Additions to Crossings
Not negotiable
Account payee only
Not transferable
Not negotiable and not transferable
Payment of Cheques
General
Forgery of drawer’s signature
Protection of drawee bank in event of forged or unauthorised indorsements
Payment of crossed cheques
Protection of drawee bank in event of absent or irregular indorsements
Collection of Cheques
General
Protection of collecting bank in case of unindorsed or irregularly indorsed cheques delivered for collection
Order documents
Non transferable cheques in terms of section 75A
Delictual liability of collecting bank
Selected Bibliography
32 Electronic Payment Methods
Introduction
The South African Payment System
Nature of the Banker-Customer Relationship in Credit Transfers
Electronic Payment Systems
Electronic Funds Transfers
Introduction
Reversal of EFT payments made in error
EFTPOS
Introduction
The legal nature of the EFTPOS transaction
Unauthorised use
Access devices
Credit cards
ATM transactions
Internet, mobile cellular phone and telephone banking (electronic banking)
Fraud, phishing and other unauthorised activities
The Regulation of Electronic Funds Transfers
Introduction
Electronic Communications and Transactions Act
Transactional provisions
Consumer protection provisions
Consumer Protection Act
The Protection of Personal Information Act
Smart Cards and E-money
Introduction
Smart cards
E-money
Payment Intermediaries and Virtual Currencies
Introduction
E-wallets and payment intermediaries
PayPal, Google Wallet and Apple Pay
Virtual currencies
The SARB Postion paper on Vitual Currencies
Final Analysis
Selected Bibliography
Part Ten – Insolvency
33 Introduction and Sequestration
Introduction
Estates that can be Sequestrated
Jurisdiction
Sequestration and rehabilitation orders
Other relevant issues
The Sequestration Process
Introduction
Voluntary surrender
The applicant
Preliminary formalities
The application
Applicant’s burden of proof
Compulsory sequestration
General
Security
Furnishing interested parties with a copy of the application
The application
Provisional sequestration order
Final sequestration order
Friendly sequestrations
Malicious or vexatious applications
Orders for costs
Appeal, review and rescission
Sequestration of partnerships
Selected Bibliography
34 Effects of Sequestration
Insolvent Loses Control of his Estate
General
Insolvent’s assets at date of sequestration
Foreign property (cross-border insolvency)
Clothing and household furniture
Fideicommissum
Trust property
Agricultural credit
Life insurance policies
Property of third parties
Protection of the family home
Prevention of Organised Crime Act 121 of 1998
Property acquired by insolvent after sequestration
General
Inheritance
Pension and damages, among other things
Salary
Indemnification of a third party
Effects on Estate of Insolvent’s Spouse
Effects on Insolvent
Effects on Pending Legal Proceedings and on the Execution of Judgments
Effects on Unexecuted Contracts
General rule
Contracts of sale of immovable property: Seller sequestrated
Contracts of sale of immovable property: Purchaser sequestrated
Cash sale of movable property: Purchaser sequestrated
Credit sales, instalment sale transactions and instalment agreements: Purchaser sequestrated
Credit sale transactions in terms of the common law
Instalment sale transactions and instalment agreements
Credit sale transactions: Seller of movable property sequestrated
Credit sale transactions
Instalment sale transactions and instalment agreements
Leases
Contracts of employment
Contracts of employment: Sequestration of employee’s estate
Contracts of employment: Sequestration of employer’s estate
Transfer of a business as a going concern
Notification of insolvency/sequestration to employees
Claims of employees
Other contractual obligations terminated by sequestration
Partnerships
Mandate
Impeachable Dispositions and Void Transactions
General
Legal proceedings concerned with the setting aside of impeachable dispositions
Different types of impeachable dispositions
Dispositions not made for value
Undue preference
Collusion
Void transfer of a business
Selected Bibliography
35 Administration of Insolvent Estates, Composition, Rehabilitation, Offences and Winding-up of Companies and Close Corporations
Administration of Insolvent Estates
Taking charge of the estate
The trustee
General
Grounds of disqualification
Vacation of office of trustee and remuneration of trustee
Meetings of creditors and proof of claims
Meetings
Attendance and interrogations
Proof of claims, set-off and withdrawal of claims
Set-off
Withdrawal of claims
Partnership
Liquidation of assets
After second meeting of creditors
Before second meeting of creditors
Realisation of securities
Trustee’s accounts
General
Different types of accounts
Submission of accounts, inspection and confirmation
Appropriation of proceeds and contributions
General
Application of securities
Application of free residue
Contributions pertaining to the free residue
Composition
Rehabilitation and Vesting Orders
Rehabilitation by order of court
Vesting orders
Rehabilitation through effluxion of time
Effect of rehabilitation
Offences and Penalties
Winding-up and Rehabilitation of Insolvent Companies and Close Corporations
Introduction
Winding-up (liquidation) of companies
General
Liquidation by court order in terms of the 1973 Companies Act
Voluntary liquidation in terms of the 1973 Companies Act
Impact of the 2008 Companies Act on liquidations of companies
Close corporations and the impact of the 2008 Companies Act on liquidations of close corporations
Application of insolvency law to liquidation of insolvent companies and close corporations
Companies
Close corporations
Consequences of Liquidation
General
Statement of affairs
Appointment of the Liquidator: Company
Nomination of persons for appointment
Appointment of a liquidator
Procedure for appointment
The Process of Winding-up and Liquidation after Commencement and the General Powers and Duties of the Liquidator
General duties of the liquidator
The position of the liquidator
Some specific duties of the liquidator
Report on the affairs of the company
Report on offences
Powers of the liquidator
The directions of creditors and members or contributories given at meetings
Meetings of creditors
Meetings of members
The proof of claims by creditors
The Gathering of Information: Interrogation
Procedures for obtaining information
The inspection of the books and papers of a company by a member or creditor
Interrogation of directors and others at meetings of creditors
Private examination of directors and others: Companies
The Following-up and Collection of Assets
Dispositions that can be set aside
The Realisation of Assets and Application of the Proceeds
General
Costs of winding-up
Costs of execution
Contributions by creditors
Dividends to members
The Liquidator’s Account
Function and submission of account
Inspection of liquidator’s account and confirmation
Distribution of assets and release of the liquidator
Remuneration of the liquidator
Winding-up of Close Corporations: Specific Provisions
General provisions
The liquidator
Meetings of creditors and members
The liquidator’s report
Personal Liability of Directors and Officers
Corporate Rehabilitation: Business Rescue and Compromises
General
Business rescue in terms of Chapter 6 of the 2008 Companies Act
Introduction
Initiation of rescue
Commencement and some consequences of business rescue
The duties and powers of the rescue practitioner
Implementation and conclusion of business rescue plan
Compromise with creditors in terms of section 155 of the 2008 Companies Act
Composition in terms of section 72 of the Close Corporations Act
Selected Bibliography
Part Eleven – Labour Law
36 General Introduction to Labour Law
Purpose of Labour Law
Sources of Labour Law
The Constitution
The Labour Relations Act
The Basic Conditions of Employment Act
The Employment Equity Act
Other legislation
Individual and Collective Labour Law
Dispute Resolution Structures
Selected Bibliography
37 Individual Labour Law
Introduction
Establishing an Employment Relationship
Definition of “Employee”
Judicial tests
Statutory presumption as to who an employee is an employee
Code of Good Practice
Types of Employment
Introduction
Atypical Employment
Temporary employment services
Fixed-term contracts
Part-time employees
The Role of the Common Law
Introduction
Duties of the parties
Vicarious liability
Restraints of trade
The Basic Conditions of Employment Act
Introduction
Working hours
Overtime
Compressed working week
Meal intervals
Work on Sundays and public holidays
Leave
Particulars of employment
Payment of remuneration and deductions
Notice periods
Forced and child labour
The National Minimum Wage Act
Application
Definition of worker
Enforcement of the Basic Conditions of Employment Act and the National Minimum Wage Act
Dismissal of Employees
Introduction
Definition of dismissal
Substantive and procedural fairness
Dismissals for conduct
Misconduct
Progressive discipline
Substantive fairness of a misconduct dismissal
Procedural fairness of a misconduct dismissal
Dismissal for incapacity
Dismissal for poor work performance
Dismissal for ill health or injury
Dismissal for operational requirements
Substantive fairness
Procedural fairness
Large Scale retrenchments
Transfer of a business as a going concern
Transfer of a business in terms of section 197A of the LRA
Automatically unfair dismissals
Unfair Labour Practices
Introduction
Definition of unfair labour practice
Specific unfair labour practices
Promotion
Demotion
Benefits
Unfair suspension
Occupational detriment
Employment Equity Act
General
Prohibition on unfair discrimination
Affirmative action
Dispute Resolution
Dismissals
Unfair labour practices
Unfair discrimination
Remedies for Unfair Discrimination and Unfair Labour Practices
Selected Bibliography
38 Collective Labour Law
Introduction
Collective Bargaining
Introduction
Trade unions
Bargaining councils
Collective agreements
Freedom of association
Agency shop agreements
Closed shop agreements
The right to organize
Acquisition of organisational rights
Specific organisational rights
Industrial Action
Right to strike
Lock-out
Requirements for protected strikes and lock-outs
Limitations on strikes and lock-outs
Consequences of protected and unprotected strikes and lock-outs
Protected strikes and lock-outs
Unprotected strikes and lock-outs
Other forms of industrial action
Secondary strikes
Picketing
Protest action
Selected Bibliography
Part Twelve – Construction, Engineering and Services Contracts
39 Construction, Engineering and Services Contracts
Introduction
The origin of the contract of letting and hiring of work
Definition of a contract for letting and hiring of work or delivery of services
Parties to the contract
Conclusion and Contents of Contracts
Conclusion of the contract
Consensus
Tenders, letters of intent and memorandums of understanding
Options and preferential rights
Time and place for the conclusion of contract
Essentialia
Factors that influence consensus
Contractual capacity, legality, possibility and certainty
Formalities
Contents of the contract
Essentialia, naturalia and incidentalia
Conditions
Time periods or terms
Right of rescission or cancellation
Penalty clauses
Standing time clauses
Substitution of contractor clause
Acceleration clauses and clauses providing for early completion
Warranties or guarantees
Support and maintenance
Exclusion and limitation of liability clauses
Clauses on jurisdiction and on costs
Implied terms
Tacit terms
Common additional clauses
Amendment of the contract
Duties of the Parties
Duties of the contractor
Initial duties
Completion of the work
Completion of additional work
Repairing defects and maintenance and support
Final duties
Non-compliance with contractor’s duties
Breach of contract
Additional remedies
Duties of the client
Initial duties
Approval of the completed work: Issuing of certificates
Duty to pay
Non-compliance with the client’s duties
Miscellaneous matters
Risk
Vicarious liability of client
Different Types of Contracts
Basic classification of contracts of letting and hiring of work
Lump sum, fixed price contracts (FP contracts) or design and build
Admeasurement contracts
Cost contracts
International and national pro forma contracts
NEC contracts
The Joint Building Contracts Committee Documents
International Federation of Consulting Engineers (Federation Internationale des Ingeniers Conceils) (FIDIC)
GCC and other contracts
Termination of Contracts
General
Specific methods of termination
Selected Bibliography
Part Thirteen – Alternative Dispute Resolution
40 Alternative Dispute Resolution
Introduction
Private Mediation
General
Definition
Agreement to mediation
Advantages
Disadvantages
Forms of mediation
Private Arbitration
General
Definition and material characteristics
Advantages
Disadvantages
Arbitration agreement
General
Matters not susceptible to arbitration
Validity of arbitration agreement
Effect of the arbitration agreement
Arbitrator and umpire
General
Qualifications
Number of arbitrators
Arbitration procedure
Award
General
Formal requirements
Substantive requirements
Rectifying of mistakes
Appeal and review
Remittal
Valuation, Certification and Private Adjudication
General
Valuation and certification
Private adjudication
Selected Bibliography
Part Fourteen – The Consumer Protection Act
41 The Consumer Protection Act
General Introduction
Commencement and implementation
Purpose of the Consumer Protection Act
Fundamental consumer rights protected by the Act
Preservation of common-law rights and interpretation
Concise summary of the Consumer Protection Act
Important Definitions and Scope of Application of the Act
Introduction
Important definitions
Scope of Application of the Act
Transactions that fall within the scope of application of the Act
Transactions that fall outside the scope of application of the Act
Protection of Different Fundamental Consumer Rights
Part A: The consumer’s right of equality in the consumer market
Right to protection against discriminatory marketing
Reasonable grounds for differential treatment in specific circumstances
Jurisdiction of equality court
Presumption of unfair discrimination
Part B: The consumer’s right to privacy
Right to restrict unwanted direct marketing
Regulation of time for contacting consumers
Protection of personal information
Part C: The consumer’s right to choose
Consumer’s right to select suppliers
Expiry and renewal of fixed-term agreements
Pre-authorisation of repair or maintenance services
Cooling off right
Cancellation of advance reservation, booking or order
Consumer’s right to choose or examine goods
Consumer’s right in respect of delivery of goods or supply of service
Consumer’s right to return goods
Unsolicited goods or services
Part D: Right to disclosure and information
Right to information in plain and understandable language
Disclosure of price of goods or services
Product labelling and trade descriptions
Disclosure of reconditioned or grey market goods
Sales records
Disclosure by intermediaries
Identification of deliverers, installers and others
Part E: Right to fair and responsible marketing
General standards for marketing of goods and services
Bait marketing
Negative option marketing
Catalogue marketing
Trade coupons and similar promotions
Customer loyalty programmes
Promotional competitions
Alternative work schemes
Referral selling
Agreements with persons lacking legal capacity
Part F: Right to fair and honest dealing
Unconscionable conduct
False, misleading or deceptive representations
Fraudulent schemes and offers
Pyramid and related schemes
Consumer’s right to assume supplier is entitled to sell goods
Auctions
Changes, deferrals and waivers and substitution of goods
Overselling and overbooking
Part G: Right to fair, just and reasonable terms and conditions
Unfair, unreasonable or unjust contract terms
Notice required for certain terms and conditions
Written consumer agreements
Prohibited transactions, agreements, terms or conditions
Part H: Right to fair value, good quality and safety
Consumer’s rights to demand quality service
Consumers right to safe, good quality goods
Implied warranty of quality
Warranty on repaired goods
Warning concerning fact and nature of risks
Warning concerning fact and nature of risks
Recovery and safe disposal of designated products or components
Safety monitoring and recall
Liability for damage caused by goods
Supplier’s Accountability to Consumers
Lay-bys
Prepaid certificates, credits and vouchers
Prepaid services and access to service facilities
Supplier to hold and account for consumer’s property
Deposits in respect of containers, pallets and similar objects
Return of parts and materials
Franchise
General
Pre-disclosure documentation
Content requirements for franchise agreements
Consumer Protection Institutions and Enforcement
Introduction
Enforcement of rights by consumer
National Consumer Commission
Duties and obligations of National Consumer Commission
Compliance notice
The National Consumer Tribunal
Alternative dispute resolution agents
Powers of court to enforce consumer rights
Interim relief
Further provisions regarding civil litigation
Limitations on bringing action
Standard of proof
Serving documents
Offences
Administrative penalties
Business Names and Industry Codes
Business names and identification of supplier
Industry codes
Consumer protection groups
Selected Bibliography
Table of Cases
Index