Business Law

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A critical analysis of product liability under the Consumer Protection Act 68 of 2008.
(2015) Gangiah, Purnel.; Khan, Franaaz.; Bellengere, Adrian Hugh.
Product liability can be described as a situation where a supplier is held accountable to a consumer for the supply of defective goods. The concept of product liability has its roots in the common law. Under the common law, consumers could use the law of delict or the law of contract to sue for defective goods that were supplied to them,. However, the common law exhibited various shortcomings in terms of the protection afforded to the consumer. For example, a consumer was required to prove fault on the part of a supplier of defective goods, which placed a difficult burden upon a consumer seeking to obtain redress for such defective goods. Circumstances often arose where a consumer was unable to discharge the burden. As a result, a consumer was often left without any effective remedy. The Consumer Protection Act 68 of 2008, in order to remedy this situation, provides the consumer with greater protection by no longer requiring a consumer to prove fault on the part of a supplier. A strict liability regime has therefore been created. Many academics have applauded the Act in this respect. However, the defences available to a supplier in terms of the Act have exposed the Act to some criticism. What remains to be seen is how the courts will interpret and apply this strict liability regime and how they will apply the defences. However, this is yet to be seen as no judgments on the operation of a product liability claim made in terms of the Act have been reported. This may soon change as two consumers have recently launched a claim against Builders Warehouse for the supply of allegedly defective ladders. An analysis of the Builders Warehouse case is therefore useful in order to understand what approach South African courts will adopt to the application of the provisions of the Act, particularly in light of the fact that the Act is influenced by the European Directive on product liability, thereby enabling us to see whether the South African law will follow the European lead. Furthermore certain recommendations are made for reform on effective ways that consumers can enforce their rights.
The release of liability of a surety during business rescue proceedings.
(2019) Dubula, Mcebisi.; Bellengere, Adrian Hugh.
Chapter 6 of the companies Act has attempted to resolve problems created by the ineffectiveness of judicial management which has failed to provide suitable alternative to the liquidation. The process of business rescue proceedings has made some impact on the liability of sureties in so far as it relates to creditors. Moratorium has been imposed once the business rescue proceedings commences and therefore the principal debtors are protected against any legal action unless the court or business rescue practitioner has consented thereto. The question is what is the impact of the business rescue proceedings on the rights of creditors against the sureties of the company under business rescue proceedings and what is the judicial position in so far as it relates to liabilities of sureties during business rescue proceedings, finally what is the position of comparative law in respect of other foreign Jurisprudence terms of business rescue proceedings and the liability of sureties. The South African Companies Act does not regulate the situation of creditor’s rights against sureties of a financially distressed Company. In terms of American law, the situation is different. Creditor’s rights against non-debtors (including sureties) is regulated by Bankruptcy Codes. In terms of bankruptcy codes, the discharge of a debtor does not affect the liability of the nondebtors or other entities. There are divergent views in terms of South African Court decisions in respect of liability of sureties. Some Judges believe that the commencement of business rescue proceedings does not affect the liability of sureties and others are of the view that the beginning of business rescue proceedings releases sureties from their obligations towards creditors unless business rescue plan or deed of suretyship provides otherwise. It is therefore recommended that our legislature introduces some new sections into the companies act. One Section should be similar to section 524(e) of the bankruptcy codes which expressly states that a discharge granted to the principal debtor does not affect the liability of sureties towards creditors. Another section should be similar to section 105(a), which provide courts with powers to make any order to realize the objectives of the companies act. This to avoid conflicting courts decisions on this issue.
Small businesses and the South African Companies Act: does one size really fit all?
(2019) Gumede, Lwazi.; Bellengere, Adrian Hugh.
This dissertation will provide a critical analysis on whether the South African Companies Act adequately serves the needs and interests of small formal businesses in South Africa. In this regard, the thesis will determine whether the Companies Act creates a more enabling environment for small business than the Close Corporations Act which was well known as being the ideal business legislation for small businesses. This will be done by determining whether it is indeed easy for an ordinary South African to open and run a small business in terms of the Companies Act or the Close Corporation Act (which no longer allows for new close corporations to be formed). Furthermore, the dissertation will also look into how other foreign jurisdictions have governed small businesses and what constitutes an appropriate means for such jurisdictions in terms of regulating small businesses. Lastly, the dissertation will conclude by providing recommendations on the Companies Act and the Close Corporations Act, and by providing a proposed solution to the issue which pertains to regulating small businesses.
A step in the right direction: an analysis of the viability of a specialised intellectual property court in South Africa.
(2019) Parbhoo, Yashmeka.; Bellengere, Devarasi.; Bellengere, Adrian Hugh.
No abstract available.

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