The factors to be considered by the competition authorities when a fine may cause the firm to exit
- Authors: Quilliam, Layne Edwin
- Date: 2021-10
- Subjects: South Africa. Competition Act, 1998 , Competition Tribunal (South Africa) , Business enterprises Law and legislation South Africa , Debt-to-equity ratio South Africa , Bankruptcy Prevention , Causation , Competition
- Language: English
- Type: Masters theses , text
- Identifier: http://hdl.handle.net/10962/188408 , vital:44751
- Description: The Competition Act empowers the Competition Tribunal to levy fines against a firm for certain contraventions of the Act. Such fines are statutorily capped to prevent the fine from causing the firm’s exit. This maximum is based on the overarching principle of fairness which precludes a fine, on its own, from destroying a firm’s business. However, the Competition Appeal Court acknowledged in 2013 that fines below this cap may still cause a firm to exit. The purpose of this paper is to propose the factors that should be considered when determining a firm’s ability to pay such a below-cap fine. These factors are the calculation of the fine, probable exit, causation of exit and the competitive effect of the firm’s exit. The fining provisions of the Act are initially explored to provide context for the discussion and are then compared to equivalent provisions in Europe. Liquidation and business rescue proceedings are then described as the most common forms of a firm’s exit from the market. Methods for determining the causal relationship between the fine and the firm’s exit are explored through delictual law’s factual and legal causation. The competitive effects of the firm’s exit are premised on the purpose of the Competition Act and are evaluated through the Competition Act’s merger provisions, specifically, the failing firm factor. These proposed factors are then tested through hypothetical facts to analyse their possible interactions and efficacy. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10
- Authors: Quilliam, Layne Edwin
- Date: 2021-10
- Subjects: South Africa. Competition Act, 1998 , Competition Tribunal (South Africa) , Business enterprises Law and legislation South Africa , Debt-to-equity ratio South Africa , Bankruptcy Prevention , Causation , Competition
- Language: English
- Type: Masters theses , text
- Identifier: http://hdl.handle.net/10962/188408 , vital:44751
- Description: The Competition Act empowers the Competition Tribunal to levy fines against a firm for certain contraventions of the Act. Such fines are statutorily capped to prevent the fine from causing the firm’s exit. This maximum is based on the overarching principle of fairness which precludes a fine, on its own, from destroying a firm’s business. However, the Competition Appeal Court acknowledged in 2013 that fines below this cap may still cause a firm to exit. The purpose of this paper is to propose the factors that should be considered when determining a firm’s ability to pay such a below-cap fine. These factors are the calculation of the fine, probable exit, causation of exit and the competitive effect of the firm’s exit. The fining provisions of the Act are initially explored to provide context for the discussion and are then compared to equivalent provisions in Europe. Liquidation and business rescue proceedings are then described as the most common forms of a firm’s exit from the market. Methods for determining the causal relationship between the fine and the firm’s exit are explored through delictual law’s factual and legal causation. The competitive effects of the firm’s exit are premised on the purpose of the Competition Act and are evaluated through the Competition Act’s merger provisions, specifically, the failing firm factor. These proposed factors are then tested through hypothetical facts to analyse their possible interactions and efficacy. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10
Sports and competition law in South Africa: the need to account for the uniqueness of sport when applying the competition Act 89 of 1998 to the sports industry
- Authors: Sun, Huajun
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7102 , vital:21217
- Description: Regulation of sport as an economic activity has become increasingly prevalent in a number of foreign jurisdictions. This thesis considers the applicability of competition law to the sports industry from a South African perspective. Although the Competition Act 89 of 1998 is yet to be applied in the context of organisation of professional sport, the sector is not free from the scrutiny of competition law authorities. It is necessary to subject sports organisers and governing bodies to competition law in order to ensure that their administrative powers, which effectively place them in positions of market dominance, are not misused for their own commercial interests. On the other hand, the unique characteristics of sports should also be taken into account when applying competition law to the sector. In particular, it should be noted that sporting activities are not purely economic in nature, and that they are also conducted in order to achieve various social objectives. This thesis examines foreign jurisprudence that have dealt with the relevance of purely sporting justifications under competition law, and conclude that South Africa law should take into account the unique nature of sport when determining whether a conduct should be per se prohibited under the Competition Act, as well as when the rule-of-reason enquiry is conducted. This would require an amendment to the Act, a draft of which is proposed in this thesis. Finally, the proposed approach is applied in the context of the player transfer rules in football, in order to highlight problematic aspects of the transfer system even when considered in light of the unique nature of sports.
- Full Text:
- Date Issued: 2017
- Authors: Sun, Huajun
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7102 , vital:21217
- Description: Regulation of sport as an economic activity has become increasingly prevalent in a number of foreign jurisdictions. This thesis considers the applicability of competition law to the sports industry from a South African perspective. Although the Competition Act 89 of 1998 is yet to be applied in the context of organisation of professional sport, the sector is not free from the scrutiny of competition law authorities. It is necessary to subject sports organisers and governing bodies to competition law in order to ensure that their administrative powers, which effectively place them in positions of market dominance, are not misused for their own commercial interests. On the other hand, the unique characteristics of sports should also be taken into account when applying competition law to the sector. In particular, it should be noted that sporting activities are not purely economic in nature, and that they are also conducted in order to achieve various social objectives. This thesis examines foreign jurisprudence that have dealt with the relevance of purely sporting justifications under competition law, and conclude that South Africa law should take into account the unique nature of sport when determining whether a conduct should be per se prohibited under the Competition Act, as well as when the rule-of-reason enquiry is conducted. This would require an amendment to the Act, a draft of which is proposed in this thesis. Finally, the proposed approach is applied in the context of the player transfer rules in football, in order to highlight problematic aspects of the transfer system even when considered in light of the unique nature of sports.
- Full Text:
- Date Issued: 2017
A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: the dangers of translocating company law principles into trust law
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011
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