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