1. Business law workshop
B Com Mkt/hrm
August
2016

2. Introduction
Lecturer/Facilitator Andrew Tucker B Com LLB, Attorney of the High Court of South Africa Contact details:

3. 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

4. Resources

5. 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.

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

7. The different forms of business enterprise

8. Employment law Employee vs independent contractor
The concept of vicarious liability

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

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

11. Assignment questions

12. resources www.saflii.org www.cipc.co.za www.dti.gov.za

13. QUESTION ONE

14. Competition law
Competition Act 89 of 1998

15. 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.

17. 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

18. QUESTION TWO

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. Question three

26. 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

27. Question four

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

29. Question five

30. 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

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

32. Question six

33. 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

34. 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