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1 SA MERCANTILE LAW JOURNAL SA Merc LJ (2006) Volume 18 INDEX
2 SA MERCANTILE LAW JOURNAL SA TYDSKRIF VIR HANDELSREG EDITOR PROF JP VAN NIEKERK BA LLB (Pret) LLM (Unisa) LLM (London) LLD (Unisa) EDITORIAL ASSISTANT MS W JACOBS BLC LLB (Pret) LLM (Unisa) Dip ADR (Pret) TITLES OF ARTICLES Access to Works Protected by Copyright: Right or Privilege?...Marlize Conroy 413 Choice of Law in Delict: The Rise and Rise of the lex loci delicti commissi... John Kiggundu 97 Contractual Autonomy, Legislative Intervention and Recruitment in Employment: What Remains?...MI van Jaarsveld 423 Convention on the Use of Electronic Communications in International Contracts: Creating An International Legal Framework for Electronic Contracting...Juana Coetzee 245 Electronic Commerce and Civil Jurisdiction, with Special Reference to Consumer Contracts...Christian Schulze 31 Funeral Insurance: A Perception from the Office of the Ombudsman for Long-term Insurance... Mr Justice PM Nienaber & Jennifer Preiss 291 Impact of the Domestic on the International: Some Crucial Deficiencies in the South African Law of Jurisdiction with their Regional and International Consequences... Christopher Forsyth 1 International Funds Transfers and Private International Law... SF du Toit 53 International Jurisdiction in Claims Surrounding Money... Sieg Eiselen 45 Introduction to the Securitisation of Claims Incorporating a Collective Security Arrangement... Susan Scott 397 Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary: The Hague Securities Convention... Christa Roodt 83 Liberalising the Requirement of an Insurable Interest in (Life) Insurance.Peter Havenga 259 Phrase >place of effective management= Effectively Explained?...BA van der Merwe 121 Proper Law of the International Contract of Employment: Interpreting the Kleinhans Case... Eesa Allie Fredericks 75 Proprietary Effect of Reservation-of-Title Clauses in Private International Law... Jan L Neels 66 South African Reserve Bank: An Evaluation of the Origin, Evolution and Status of a Central Bank (Part 1)... Johann de Jager 159 South African Reserve Bank: An Evaluation of the Origin, Evolution and Status of a Central Bank (Part 2)... Johann de Jager 274 Transfer Pricing and Tax Avoidance: Is the Arm=s-length Principle Still Relevant in the e-commerce Era?... Annet Wanyana Oguttu 138 Understanding the Relationship between Franchising and the Law of Competition...Tanya Woker 107
3 United Nations Convention on Contracts for the International Sale of Goods: Should South Africa Accede?.Karin Lehmann 317 Venue in Transnational Litigation: Party Autonomy Adds New Impetus to the >Judgment Project=... Christa Roodt & Irene-marie Esser 13 TITLES OF ANALYSES Biodiversity, Bioprospecting, and Biopiracy: A Prior Informed Consent Requirement for Patents...Coenraad Visser 497 Broad-based Black Economic Empowerment: Some Challenges in Measuring Ownership of Companies...Stephanie Luiz & Kathleen van der Linde 473 Considering the Legitimacy of Government Measures to Introduce Black Economic Empowerment Legislation... JL Levin 456 Contracting with Business Trusts... JS McLennan 329 Extrapolating >equality= from the Letter of the Law: Some Thoughts on the Limits of Affirmative Action under the Employment Equity Act 55 of Andre M Louw 336 In duplum Rule: A Short List of Some Unresolved Issues...WG Schulze 486 Inducement of a Contract by >Duress of Goods= B A Reappraisal...Graham Glover 175 Minors and Insurance Contracts: An Overview of the Statutory Provisions...JP van Niekerk 204 New Mode of Forgery: The Rise of Cloned and Washed Cheques...JT Pretorius & Charnelle van der Bijl 196 Patented Inventions as Essential Facilities under the Competition Act 96 of Tim Ball 186 Regulation of Affirmative Action in the Employment Equity Act 55 of Tameshnie Deane 449 Resolving Transfer-pricing Disputes: Are >Advance Pricing Agreements= the Way Forward for South Africa?... Annet Wanyana Oguttu 436 TITLES OF CASE COMMENTS Blacklisting of a Debtor as a Credit Risk B Infringement of a Debtor=s Rights to Creditworthiness and Earning Capacity as Personal Immaterial Property Rights...J Neethling 376 Directors= Co-liability for Delicts...Michele Havenga 229 Impact of the ANSAC Judgements on Competition Analysis... Kasturi Moodaliyar 367 Liability Insurance: Successive but Overlapping >claims-made= Policies and a Question of Quantum...JP van Niekerk 382 Role of the Registrar of Labour Relations in the Registration of Trade Unions... ME Manamela 518 Status of Trainees in the Workplace: Dankie and Highveld Steel & Vanadium... AH Dekker 533 Subrogation to an Enrichment Claim and the Subrogating Insurer=s Duties: Some General Observations on Obiter Remarks...JP van Niekerk 508
4 Suspect Applications for the Voluntary Surrender of Debtors= Estates: Cure and Prevention...Alastair Smith 214 Trade-mark Protection and Freedom of Expression...BR Rutherford 355 Two Recent Supreme Court of Appeal Decisions on the Common-Law and Contractual Consequences of Fraudulent Insurance Claims...Wenette Jacobs 524 CASES DISCUSSED IN CASE COMMENTS Andreas Papagapiou v Santam Limited 2005 JDR 1385 (SCA) Ansac & Another v Competition Commission of South Africa & Others 2003 (5) SA 655 (SCA) Dankie & Highveld Steel & Vanadium 2005) 26 ILJ 1553 (BCA) Laugh It Off Promotions v South African Breweries International (Finance) BV t/a Sabmark International & Another 2006 (1) SA 144 (CC) Malebo & Another v Schoonraad & Others [2005] JOL (T) Koninklijke Philips Electronics NV v Princo Digital Disc GmbH & Another [2004] 2 BCLC 50 (ChD) SA Eagle Insurance Co Ltd v KRS Investments 2005 (2) SA 502 (SCA) St Helena Primary School & Another v MEC, Departement of Eduction, Free State Province & Another [2005] JOL (O) Van Immerzeel & Another v Santam Ltd 2005 JDR 1464; [2005] JOL Wolmarans v ABSA Bank Ltd & Another 2005 (6) SA 551 (C) Workers Union of SA v Crouse NO & Another (2005) 26 ILJ 1723 (LC) CONTRIBUTORS Ball, Tim: Patented Inventions as Essential Facilities under the Competition Act 96 of Coetzee, Juana: The Convention on the Use of Electronic Communications in International Contracts: Creating An International Legal Framework for Electronic Contracting Conroy, Marlize: Access to Works Protected by Copyright: Right or Privilege? Deane, Tameshnie: The Regulation of Affirmative Action in the Employment Equity Act 55 of Dekker, AH: The Status of Trainees in the Workplace: Dankie and Highveld Steel & Vanadium De Jager, Johann: The South African Reserve Bank: An Evaluation of the Origin, Evolution and Status of a Central Bank (Part 1) De Jager, Johann: The South African Reserve Bank: An Evaluation of the Origin, Evolution and Status of a Central Bank (Part 2) Du Toit, SF: International Funds Transfers and Private International Law Eiselen, Sieg: International Jurisdiction in Claims Surrounding Money Esser, Irene-marie & Roodt, Christa: Venue in Transnational Litigation: Party Autonomy Adds New Impetus to the >Judgment Project= Fredericks, Eesa Allie: The Proper Law of the International Contract of Employment:
5 Interpreting the Kleinhans Case Forsyth, Christopher: The Impact of the Domestic on the International: Some Crucial Deficiencies in the South African Law of Jurisdiction with their Regional and International Consequences... 1 Glover, Graham: The Inducement of a Contract by >Duress of Goods= B A Reappraisal. 175 Havenga, Michele: Directors= Co-liability for Delicts Havenga, Peter: Liberalising the Requirement of an Insurable Interest in (Life) Insurance 259 Hurter, Eddie: Uncertainty >Sucks=: An Analysis of Selected Panel Decisions under the UniformDispute Resolution Policy Regarding Gripe Site Domain Names Jacobs, Wenette: Two Recent Supreme Court of Appeal Decisions on the Common-Law and Contractual Consequences of Fraudulent Insurance Claims Kiggundu, John: Choice of Law in Delict: The Rise and Rise of the lex loci delicti commissi Lehmann, Karin: The United Nations Convention on Contracts for the International Sale of Goods: Should South Africa Accede? Levin, JL: Considering the Legitimacy of Government Measures to Introduce Black Economic Empowerment Legislation Louw, Andre M: Extrapolating >equality= from the Letter of the Law: Some Thoughts on the Limits of Affirmative Action under the Employment Equity Act 55 of Luiz, Stephanie & Van der Linde, Kathleen: Broad-based Black Economic Empowerment: Some Challenges in Measuring Ownership of Companies Manamela, ME: The Role of the Registrar of Labour Relations in the Registration of Trade Unions McLennan, JS: Contracting with Business Trusts Moodaliyar, Kasturi: The Impact of the ANSAC Judgements on Competition Analysis Neels, Jan L: The Proprietary Effect of Reservation-of-Title Clauses in Private International Law Neethling, J: Blacklisting of a Debtor as a Credit Risk B Infringement of a Debtor=s Rights to Creditworthiness and Earning Capacity as Personal Immaterial Property Rights Nienaber, PM & Preiss, Jennifer: Funeral Insurance: A Perception from the Office of the Ombudsman for Long-term Insurance Oguttu, Annet Wanyana: Resolving Transfer-pricing Disputes: Are >Advance Pricing Agreements= the Way Forward for South Africa? Oguttu, Annet Wanyana: Transfer Pricing and Tax Avoidance: Is the Arm=s-length Principle Still Relevant in the e-commerce Era? Preiss, Jennifer & Nienaber, PM: Funeral Insurance: A Perception from the Office of the Ombudsman for Long-term Insurance Pretorius, JT & Van der Bijl, Charnelle: A New Mode of Forgery: The Rise of Cloned and Washed Cheques Roodt, Christa: The Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary: The Hague Securities Convention Roodt, Christa & Esser, Irene-marie: Venue in Transnational Litigation: Party Autonomy Adds New Impetus to the >Judgment Project= Rutherford, BR: Trade-mark Protection and Freedom of Expression Schulze, Christian: Electronic Commerce and Civil Jurisdiction, with Special Reference to Consumer Contracts Schulze, WG: The in duplum Rule: A Short List of Some Unresolved Issues Scott, Susan: An Introduction to the Securitisation of Claims Incorporating a Collective
6 Security Arrangement Smith, Alastair: Suspect Applications for the Voluntary Surrender of Debtors= Estates: Cure and Prevention Van der Bijl, Charnelle & Pretorius, JT: A New Mode of Forgery: The Rise of Cloned and Washed Cheques Van der Linde, Kathleen & Luiz, Stephanie: Broad-based Black Economic Empowerment: Some Challenges in Measuring Ownership of Companies Van der Merwe, BA: The Phrase >place of effective management= Effectively Explained? 121 Van Jaarsveld, MI: Contractual Autonomy, Legislative Intervention and Recruitment in Employment: What Remains? Van Niekerk, JP: Liability Insurance: Successive but Overlapping >claims-made= Policies and a Question of Quantum Van Niekerk, JP: Minors and Insurance Contracts: An Overview of the Statutory Provisions Van Niekerk, JP: Subrogation to an Enrichment Claim and the Subrogating Insurer=s Duties: Some General Observations on Obiter Remarks Visser, Coenraad: Biodiversity, Bioprospecting, and Biopiracy: A Prior Informed Consent Requirement for Patents Woker, Tanya: Understanding the Relationship between Franchising and the Law of Competition SUBJECT INDEX [Titles of articles are given in capitals] BANKING LAW The in duplum Rule: A Short List of Some Unresolved Issues (WG Schulze) INTERNATIONAL FUNDS TRANSFERS AND PRIVATE INTERNATIONAL LAW (SF du Toit) THE SOUTH AFRICAN RESERVE BANK: AN EVALUATION OF THE ORIGIN, EVOLUTION AND STATUS OF A CENTRAL BANK (PART 1) (Johann de Jager) THE SOUTH AFRICAN RESERVE BANK: AN EVALUATION OF THE ORIGIN, EVOLUTION AND STATUS OF A CENTRAL BANK (PART 2) (Johann de Jager) CHEQUES A New Mode of Forgery: The Rise of Cloned and Washed Cheques (JT Pretorius & Charnelle van der Bijl) COMPANY LAW Broad-based Black Economic Empowerment: Some Challenges in Measuring Ownership of Companies (Stephanie Luiz & Kathleen van der Linde) Directors= Co-liability for Delicts (Michele Havenga) COMPETITION
7 The Impact of the ANSAC Judgements on Competition Analysis (Kasturi Moodaliyar) Patented Inventions as Essential Facilities under the Competition Act 96 of 1979 (Tim Ball) UNDERSTANDING THE RELATIONSHIP BETWEEN FRANCHISING AND THE LAW OF COMPETITION (Tanya Woker) CONSTITUTION Considering the Legitimacy of Government Measures to Introduce Black Economic Empowerment Legislation (JL Levin) Regulation of Affirmative Action in the Employment Equity Act 55 of 1998 (Tameshnie Deane) CONTRACT CONTRACTUAL AUTONOMY, LEGISLATIVE INTERVENTION AND RECRUITMENT IN EMPLOYMENT: WHAT REMAINS? (MI van Jaarsveld). 423 Contracting with Business Trusts (JS McLennan) CONVENTION ON THE USE OF ELECTRONIC COMMUNICATIONS IN INTERNATIONAL CONTRACTS: CREATING AN INTERNATIONAL LEGAL FRAMEWORK FOR ELECTRONIC CONTRACTING (Juana Coetzee) ELECTRONIC COMMERCE AND CIVIL JURISDICTION, WITH SPECIAL REFERENCE TO CONSUMER CONTRACTS (Christian Schulze) In duplum Rule: A Short List of Some Unresolved Issues (WG Schulze) Inducement of a Contract by >Duress of Goods= B A Reappraisal (Graham Glover) Minors and Insurance Contracts: An Overview of the Statutory Provisions (JP van Niekerk) PROPRIETARY EFFECT OF RESERVATION-OF-TITLE CLAUSES IN PRIVATE INTERNATIONAL LAW (Jan L Neels) UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS: SHOULD SOUTH AFRICA ACCEDE? (Karin Lehmann) DELICT CHOICE OF LAW IN DELICT: THE RISE AND RISE OF THE LEX LOCI DELICTI COMMISSI (John Kiggundu) Directors= Co-liability for Delicts (Michele Havenga) e-commerce CONVENTION ON THE USE OF ELECTRONIC COMMUNICATIONS IN INTERNATIONAL CONTRACTS: CREATING AN INTERNATIONAL LEGAL FRAMEWORK FOR ELECTRONIC CONTRACTING (Juana Coetzee) ELECTRONIC COMMERCE AND CIVIL JURISDICTION, WITH SPECIAL REFERENCE TO CONSUMER CONTRACTS (Christian Schulze) TRANSFER PRICING AND TAX AVOIDANCE: IS THE ARM=S-LENGTH PRINCIPLE STILL RELEVANT IN THE E-COMMERCE ERA? (Annet Wanyana Oguttu) Uncertainty >sucks=: An Analysis of Selected Panel Decisions under the Uniform Dispute Resolution Policy Regarding Gripe Site Domain Names (Eddie Hurter).. 436
8 FRANCHISING UNDERSTANDING THE RELATIONSHIP BETWEEN FRANCHISING AND THE LAW OF COMPETITION (Tanya Woker) INCOME TAX TRANSFER PRICING AND TAX AVOIDANCE: IS THE ARM=S-LENGTH PRINCIPLE STILL RELEVANT IN THE E-COMMERCE ERA? (Annet Wanyana Oguttu) INSOLVENCY Suspect Applications for the Voluntary Surrender of Debtors= Estates: Cure and Prevention (Alastair Smith) INSURANCE FUNERAL INSURANCE: A PERCEPTION FROM THE OFFICE OF THE OMBUDSMAN FOR LONG-TERM INSURANCE (Mr Justice PM Nienaber & Jennifer Preiss) Liability Insurance: Successive but Overlapping >claims-made= Policies and a Question of Quantum (JP van Niekerk) LIBERALISING THE REQUIREMENT OF AN INSURABLE INTEREST IN (LIFE) INSURANCE (Peter Havenga) Minors and Insurance Contracts: An Overview of the Statutory Provisions (JP van Niekerk) Subrogation to an Enrichment Claim and the Subrogating Insurer=s Duties: Some General Observations on Obiter Remarks (JP van Niekerk) Two Recent Supreme Court of Appeal Decisions on the Common-Law and Contractual Consequences of Fraudulent Insurance Claims (Wenette Jacobs) INTELLECTUAL PROPERTY ACCESS TO WORKS PROTECTED BY COPYRIGHT: RIGHT OR PRIVILEGE? (Marlize Conroy) Biodiversity, Bioprospecting, and Biopiracy: A Prior Informed Consent Requirement for Patents (Coenraad Visser) Blacklisting of a Debtor as a Credit Risk B Infringement of a Debtor=s Rights to Creditworthiness and Earning Capacity as Personal Immaterial Property Rights (J Neethling) Patented Inventions as Essential Facilities under the Competition Act 96 of 1979 (Tim Ball) Trade-mark Protection and Freedom of Expression (BR Rutherford) Uncertainty >Sucks=: An Analysis of Selected Panel Decisions under the Uniform Dispute Resolution Policy Regarding Gripe Site Domain Names (Eddie Hurter) LABOUR Broad-based Black Economic Empowerment: Some Challenges in Measuring Ownership of Companies (Stephanie Luiz & Kathleen van der Linde) Considering the Legitimacy of Government Measures to Introduce Black Economic Empowerment Legislation (JL Levin) CONTRACTUAL AUTONOMY, LEGISLATIVE INTERVENTION AND RECRUITMENT IN EMPLOYMENT: WHAT REMAINS?
9 (MI van Jaarsveld) Extrapolating >equality= from the Letter of the Law: Some Thoughts on the Limits of Affirmative Action under the Employment Equity Act 55 of 1998 (Andre M Louw) THE PROPER LAW OF THE INTERNATIONAL CONTRACT OF EMPLOYMENT: INTERPRETING THE KLEINHANS CASE (Eesa Allie Fredericks) Regulation of Affirmative Action in the Employment Equity Act 55 of 1998 (Tameshnie Deane) Role of the Registrar of Labour Relations in the Registration of Trade Unions (ME Manamela) Status of Trainees in the Workplace: Dankie and Highveld Steel & Vanadium (AH Dekker) PRIVATE INTERNATIONAL LAW CHOICE OF LAW IN DELICT: THE RISE AND RISE OF THE LEX LOCI DELICTI COMMISSI (John Kiggundu) CONVENTION ON THE USE OF ELECTRONIC COMMUNICATIONS IN INTERNATIONAL CONTRACTS: CREATING AN INTERNATIONAL LEGAL FRAMEWORK FOR ELECTRONIC CONTRACTING (Juana Coetzee) ELECTRONIC COMMERCE AND CIVIL JURISDICTION, WITH SPECIAL REFERENCE TO CONSUMER CONTRACTS (Christian Schulze) LAW APPLICABLE TO CERTAIN RIGHTS IN RESPECT OF SECURITIES HELD WITH AN INTERMEDIARY: THE HAGUE SECURITIES CONVENTION (Christa Roodt) INTERNATIONAL FUNDS TRANSFERS AND PRIVATE INTERNATIONAL LAW (SF du Toit) INTERNATIONAL JURISDICTION IN CLAIMS SURROUNDING MONEY (Sieg Eiselen) IMPACT OF THE DOMESTIC ON THE INTERNATIONAL: SOME CRUCIAL DEFICIENCIES IN THE SOUTH AFRICAN LAW OF JURISDICTION WITH THEIR REGIONAL AND INTERNATIONAL CONSEQUENCES (Christopher Forsyth)... 1 PROPRIETARY EFFECT OF RESERVATION-OF-TITLE CLAUSES IN PRIVATE INTERNATIONAL LAW (Jan L Neels) PROPER LAW OF THE INTERNATIONAL CONTRACT OF EMPLOYMENT: INTERPRETING THE KLEINHANS CASE (Eesa Allie Fredericks) UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS: SHOULD SOUTH AFRICA ACCEDE? (Karin Lehmann) VENUE IN TRANSNATIONAL LITIGATION: PARTY AUTONOMY ADDS NEW IMPETUS TO THE >JUDGMENT PROJECT= (Christa Roodt & Irene-marie Esser) PROCEDURE ELECTRONIC COMMERCE AND CIVIL JURISDICTION, WITH SPECIAL REFERENCE TO CONSUMER CONTRACTS (Christian Schulze) IMPACT OF THE DOMESTIC ON THE INTERNATIONAL: SOME CRUCIAL DEFICIENCIES IN THE SOUTH AFRICAN LAW OF JURISDICTION
10 WITH THEIR REGIONAL AND INTERNATIONAL CONSEQUENCES (Christopher Forsyth)... 1 INTERNATIONAL JURISDICTION IN CLAIMS SURROUNDING MONEY (Sieg Eiselen) Suspect Applications for the Voluntary Surrender of Debtors= Estates: Cure and Prevention (Alastair Smith) VENUE IN TRANSNATIONAL LITIGATION: PARTY AUTONOMY ADDS NEW IMPETUS TO THE >JUDGMENT PROJECT= (Irene-marie Esser & Christa Roodt) SECURITY INTRODUCTION TO THE SECURITISATION OF CLAIMS INCORPORATING A COLLECTIVE SECURITY ARRANGEMENT (Susan Scott) LAW APPLICABLE TO CERTAIN RIGHTS IN RESPECT OF SECURITIES HELD WITH AN INTERMEDIARY: THE HAGUE SECURITIES CONVENTION (Christa Roodt) TAXATION PHRASE >PLACE OF EFFECTIVE MANAGEMENT= EFFECTIVELY EXPLAINED? (BA van der Merwe) Resolving Transfer-pricing Disputes: Are >Advance Pricing Agreements= the Way Forward for South Africa? (Annet Wanyana Oguttu) TRANSFER PRICING AND TAX AVOIDANCE: IS THE ARM=S-LENGTH PRINCIPLE STILL RELEVANT IN THE E-COMMERCE ERA? (Annet Wanyana Oguttu) TRUSTS Contracting with Business Trusts (JS McLennan)
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