Research Articles (Mercantile Law)

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    Hyperlinking and copyright
    (Juta, 2022-03-01) Karjiker, Sadulla
    This article critically considers the legality of hyperlinking to copyright-protected material on the Internet. It considers the position with respect to standard hyperlinks, and attempts to provide a possible approach in light of the proposed introduction of two new exclusive rights, namely (i) the right of communication to the public; and (ii) the making-available right. These new exclusive rights appear to be an attempt to amend the South African Copyright Act in order to give effect to the 1996 WIPO Copyright Treaty, which sought to ‘digitise’ copyright law in light of the digital technology that had developed. The WIPO Copyright Treaty supplements, in particular, the rights granted to copyright owners under the Berne Convention, extending the right of communication to the public to include the making-available right. Use will be made of the case law of the Court of Justice of the European Union, which has given effect to the right of communication to the public (including the making-available right), following its inclusion in the WIPO Copyright Treaty of 1996. Through a more focused analysis of these exclusive rights, it is intended that this article can provide some guidance to South African lawyers and our courts when considering the application and scope of these exclusive rights.
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    The job security of employees of financially distressed companies
    (Juta, 2022-02-13) Loubser, Mieka E.; Garbers, Christoph
    This contribution considers the legislative regulation of the job security (which boils down to preservation of employment) of employees in case of financial distress of a company. It juxtaposes the legislative regulation of four interrelated processes a company may engage in where it finds itself in financial distress, namely a voluntary internal restructuring (especially retrenchment), the transfer of the business or part of the business, business rescue and winding up. The legislative endeavour to preserve the job security of employees in all these processes is described and analysed. The discussion shows that room exists for companies to circumvent this protection and, to the extent that the protection does apply, that it remains difficult for employees to ultimately challenge the substance of decisions negatively affecting their job security. The main protection for employees in all these processes is procedural in nature and to be found in their rights to be informed of and consulted prior to decisions negatively affecting them. In this regard, business rescue is the most employee-friendly process. Participation in this process by employees, however, requires a fine balance as it may be self-defeating and lead to winding up and the permanent loss of jobs.
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    The intersection of Public Procurement Law and Policy, and International Investment Law
    (Transnational Corporations Journal, 2020-09-14) Dagbanja, Dominic Npoanlari
    There is substantial scholarship on the limitations that international investment agreements (IIAs) place on States’ authority to regulate in the public interest. An area of fundamental importance that has not received scholarly attention in connection with IIAs is public procurement regulation. Given that public procurement is about the needs of States and their citizens, States would want to retain their authority within municipal public procurement laws to decide with whom to contract to meet those needs, and to pursue socioeconomic and industrial policies through procurement. However, most States are parties to IIAs, which impose obligations on them with respect to the protection of foreign investment. This article explores this seminal issue of whether IIAs stand to limit the authority of States in the implementation of procurement legislation and policies. Based on textual analysis and arbitral case study, it argues that treaty-based standards of investment protection can limit States’ authority on the implementation of methods of procurement (such as national competitive tendering or restricted tendering) and socioeconomic policies in procurement. A question that needs fuller engagement is the extent of conflict between specific IIAs and public procurement laws and policies, either regionally or globally, and how to reconcile conflicting obligations to promote foreign investment and sustainable development. This article provides the foundation for such future research.
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    Multidimensionality of Sustainable Public Procurement (SPP) - exploring concepts and effects in Sub-Saharan Africa and Europe
    (MDPI, 2019-11-12) Stoffel, Tim; Cravero, Carol; La Chimia, Annamaria; Quinot, Geo
    Strategic objectives in public procurement, such as environmental or social considerations, are being increasingly referred to under the umbrella term of sustainable public procurement (SPP). The concept of sustainability is intrinsically multidimensional, encompassing environmental, social, and economic aspects. However, the existing literature on SPP highlights the generalization that the regulation and practices of public procurement are biased toward the environmental dimension. There is conflicting evidence from countries in Sub-Saharan Africa (SSA) that calls for further investigation. Analyzing how SPP is actually constituted in SSA and contrasting it with the situation in the European Union (EU), as a spotlight on the Global South and North, contributes to a better understanding of sustainability in public procurement. The comparative analysis will help with understanding processes related to the integration or disintegration of sustainability dimensions in SPP. Our results indicate a contrary orientation on the environmental and the social dimensions in the EU and SSA. Although there is no sign of a comprehensive integration of all dimensions in SPP, there are developments toward the integration of the ‘missing’ dimension in the respective regional setting. Thus, at the moment, achieving a multidimensional implementation of SPP appears to be more a matter of expanding SPP practices of the ‘missing’ dimension than of pushing for integrated concepts.
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    May an employer dismiss an employee if the disciplinary chair imposed a lesser sanction? South African Revenue Service v Commission for Conciliation Mediation and Arbitration 2017 38 ILJ 97 (CC)
    (Juta Law Publishing, 2019) Calitz, Karin
    In South African Revenue Services v Commission for Conciliation, Mediation & Arbitration, Kruger, the employee, called his superior a “kaffir” on more than one occasion. The employer unilaterally dismissed the employee after the chairperson of the disciplinary hearing had imposed a lesser sanction. In doing so, the employer disregarded the collective agreement which did not make provision for the sanction of the disciplinary chair to be substituted. The employee claimed that his dismissal was invalid and therefore unfair. The Commission for Conciliation Mediation and Arbitration (“CCMA”), Labour Court and Labour Appeal Court (“LAC”) agreed. However, in the Constitutional Court (“CC”) the employer no longer argued that it was entitled to substitute the sanction in the light of the breach in the trust relationship, but only alleged that reinstatement was a remedy that no reasonable decision-maker would order. The CC agreed and held that the dismissal was substantively fair but procedurally unfair. The CC did not answer questions of lawfulness, fairness and invalidity, but in Steenkamp v Edcon the CC held that employees claiming remedies for unfair dismissal in terms of the Labour Relations Act 66 of 1995 (“LRA”) should not rely on invalidity. However, employees still have the right to common-law remedies based on their employment contract. Considering the importance of collective agreements, negotiated disciplinary codes, certainty and consistency, and to avoid employers exercising unfettered power over employees, state organs should apply for a review of an unsatisfactory sanction by the disciplinary chairperson in terms of section 158(1)(h) of the LRA. Private employers could negotiate a disciplinary code which allows both the employer and employee to appeal against the decision of the disciplinary chair which should make provision that a more severe sanction can be imposed on appeal.