Business law workshop B Com Mkt/hrm August 2016

Introduction Lecturer/Facilitator Andrew Tucker B Com LLB, Attorney of the High Court of South Africa Contact details: andrew.tucker46@gmail.com

Course overview Introduction to law Law of contract Sale & lease Agency, insurance, security, forms of payment Forms of business enterprise Employment law Competition, internet laws & intellectual property law Insolvency

Resources www.letslearnmore.weebly.com

Books Fouché, M.A. (et al). Legal Principles of Contracts and Commercial Law, Revised 6th edition, 2007, Lexis Nexis Havenga, P (et al). General Principles of Commercial Law, 6th edition, 2007, Juta Kopel, S Guide to Business Law, 4th edition, 2009 or 5th edition, 2012, Oxford University Press Gibson, JTR. South African Mercantile and Company Law, 8th Edition, 2003, Juta. Scott J (et al) The Law of Commerce in South Africa, 2009, Oxford University Press.

What is a contract – general discussion All contracts are agreements but not all agreements are contracts

The different forms of business enterprise

Employment law Employee vs independent contractor The concept of vicarious liability

The law of sale Implied warranties Warranty against latent defect Warranty against eviction The passing of risk

Insurance law Indemnity & non-indemnity insurance The concept of insurable interest Promissory & affirmative warranties Ubermae fides Subrogation

Assignment questions

resources www.saflii.org www.cipc.co.za www.dti.gov.za www.letslearnmore.weebly.com www.judiciary.org.za

QUESTION ONE

Competition law Competition Act 89 of 1998

Purpose of act To promote the efficiency, adaptability and development of the economy; To provide consumers with competitive prices and product choices; To promote employment and advance the social and economic welfare of South Africans; To expand opportunities for South African participation in world markets and recognize the role of foreign competition in the Republic; To ensure that small and medium-sized enterprises have an equitable opportunity to participate in the economy; To promote a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons.

The duty of good faith Put the Principals interests above your own May not make a hidden secret profit May not sell his own goods to the Principal without disclosing the fact Not to disclose confidential or private information of the Principal

QUESTION TWO

What is agency? …When one person, with the necessary authority to do so, conducts a juristic act for and on behalf of another in such a manner that he obtains rights and obligations for the other person without him acquiring any rights or becoming accountable Fouché (2007) pg 244

How does agency arise? By agreement (express authority) Oral agreement GPA Special power of attorney By operation of law Negotiorum Gestio By ratification Negotiorum gestio – implied authority to act on behalf of 3rd party – eg: I call vet to attend to cattle of neighbouring farmer who is away – see pg 97 Ratification – approval after the fact

Duties of the Principal To pay the agreed remuneration To reimburse the agent for all expenses necessarily incurred by him To indemnify the agent for all losses or liabilities incurred in performing the authorised act

Duties of the agent To execute the Principal’s instructions To account to the Principal To keep his property separate from that of the Principal To act honestly and in good faith – fiduciary relationship exists To avoid conflicts of interest Not to delegate his authority To act with care, skill and diligence

Termination of agency Completion of the mandate Effluxion of time Death, insanity or insolvency of the Agent or the Principal Revocation of mandate by the Principal Renunciation of the mandate by the Agent Mutual consent

Termination of agency Completion of the mandate Effluxion of time Death, insanity or insolvency of the Agent or the Principal Revocation of mandate by the Principal Renunciation of the mandate by the Agent Mutual consent

Question three

HIGH COURT OF SOUTH AFRICA SUPERIOR INFERIOR CONSTITUTIONAL COURT HIGH COURT OF SOUTH AFRICA SPECIALISED COURTS MAGISTRATES’ COURT REGIONAL COURT DISTRICT COURT SMALL CLAIMS COURT COURT OF CHIEFS & HEADMEN

Question four

Remedies for breach Specific performance Interdict Cancellation Not always Interdict Cancellation Damages Duty to mitigate

Question five

Forms of delivery Actual delivery Symbolic delivery – eg: keys to vehicle Delivery with the long hand – eg: pointing out cattle Delivery with short hand – purchaser already in possession Constitutum possessorium – seller retains on behalf of purchaser Attornment – third party retains possession

Risk & ownership What is risk? When does it pass? Requirements for passing of ownership

Question six

insurance Termination By agreement By end of time period On cancellation with good cause On occurrence of stipulated event When insured’s insurable interest ceases

proxy Section 58 of Companies Act Must be in writing, dated & signed by shareholder Remains valid for 1 year unless longer or shorter period stipulated in the appointment May be revoked by shareholder by written notice to proxy & company May appoint more than one proxy Shareholder may act in person – proxy suspended Proxy may delegate Copy of appointment must be handed to company before proxy exercises any rights