RRLLB81 ASSIGNMENT 2 MEMO - SEMESTER 2 - 2023 - UNISA - (UNIQUE NUMBER: - 757613 ) (DISTINCTION GUARANTEED) – DUE DATE:- 13 SEPTEMBER 2023
MERCANTILE LAW
TOPIC 1:
COMPANY LAW THE TURQUAND RULE AND THE LIABILITY OF COMPANIES IN SOUTH AFRICAN LAW
TOPIC 2:
LABOUR LAW THE IMPACT OF THE ...
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RRLLB81
LLB Research Report
ASSIGNMENT 2 MEMO
SEMESTER 2 - 2023
UNIQUE NUMBER: - 757613
Due date: - 13 September 2023
Includes Footnotes and/or Bibliography
ALL RESEARCH TOPICS
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SECTION B
TOPICS FOR ASSESSMENT 2 AND ASSESSMENT 3
Below you will find the research topics from which you have to select one for your research
report. The topics are arranged by Department in the School of Law. Most topics are
supplemented with background information and references to preliminary sources based
on the topics. The preliminary sources are the minimum sources necessary – you must
supplement the sources indicated through independent research on the topic
selected.
NOTE: You are required to select one (1) topic from those listed and to base your both
Assessment 2 and Assessment 3 for RRLLB81 on that same topic. You may not change
topics once you have selected one. We are able to identify your specific assignment
submissions and to verify that you keep to the same topic.
The due dates and unique numbers for Assessment 2 and Assessment 3 will appear
on the myUnisa module site for RRLLB81.
MERCANTILE LAW
TOPIC 1: COMPANY LAW
THE TURQUAND RULE AND THE LIABILITY OF COMPANIES IN SOUTH AFRICAN
LAW
Background
Companies are managed by directors who have the liberty to enter into a contract with
third parties. Obviously, companies may have internal rules that provide certain individuals
with the authority to contract on behalf of the company. A company representative may
enter into a contract without complying with an internal formality to which his authority is
subject. Of course, lack of formality may entail that the company should not be held liable
for a contract that the company has not assented to. This would lead to a third party
rendering a performance that may not lead to a counter performance by the company. The
lack of consensus between the third party and the company renders the contract null and
void. However, a third party may argue that he/she relied on the company’s representation
to assume that there will be counter performance or that the representative had the
required authority.
Conduct research on this problem and provide your own opinion on whether it is fair to
hold a company to a contract it did not assent to. Equally, is it fair for a company to benefit
from a performance of a third party without rendering counter performance?
Suggested reading material
Cases
One Stop Financial Services (Pty) Ltd v Neffensaan Ontwikkelings (Pty) Ltd 2015 (4) SA
623 (WCC)
The Mine Workers’ Union v JJ Prinsloo; The Mine Workers’ Union v JP Prinsloo; The Mine
Workers’ Union v Greyling 1948 (3) SA 831 (A)
33
, Legislation
Companies Act 71 of 2008
Books
Beuthin RC and Luiz SM, Basic Company Law (3rd edn, LexisNexis 2012)
Cassim FHI (ed), Contemporary Company Law (3rd edn, Juta 2021)
Journal Articles
Delport P, ‘Companies Act 71 of 2008 and the “Turquand” Rule’ (2011) 74 THRHR 132
Olivier EA, ‘The Turquand Rule in South African Company Law: A(nother) Suggested
Solution’ (2019) 5 J of Corporate and Commercial L & Practice 1
TOPIC 2: LABOUR LAW
THE IMPACT OF THE PRINCIPLE OF MAJORITARIANISM AS PROMOTED BY THE
LABOUR RELATIONS ACT 66 OF 1995 ON WORKERS AND MINORITY TRADE
UNIONS
Background
Sections 18 and 23(2) of the Constitution of the Republic of South Africa, 1996 (the
Constitution) and sections 4 and 5 of the Labour Relations Act 66 of 1995 (the LRA)
provide for and protect the right to freedom of association. The right to freedom of
association for workers covers their right to participate in forming trade unions; joining
trade unions; participating in the activities of trade unions and their protection when
exercising the right. (See the Constitution, s 23(2) and also SANDU v Minister of Defence
1999 (6) BCLR 615 (CC) 635.) Through this right the Constitution and the LRA promote
the formation of trade unions by employees, whether or not they are majority or minority
trade unions. In addition to the right to freedom of association, both the Constitution (s
23(5)) and the LRA (chap III) provide for the right of trade unions to engage in collective
bargaining, again whether or not they are majority or minority trade unions. The LRA,
however, promotes and encourages majority trade unions (majoritarianism) by offering
more rights and benefits to them. In Kem-Lin Fashions CC v Brunton (2001) 22 ILJ 109
(LAC); [2001] JOL 7711 (LAC) [19], Zondo JP stated as follows:
The legislature has also made certain policy choices in the Act which are relevant to
this matter. One policy choice is that the will of the majority should prevail over that of
the minority. This is good for orderly collective bargaining as well as for the
democratization of the workplace and sectors. A situation where the minority should
prevail over that of the majority is, quite obviously, untenable. But also a proliferation of
trade unions in one workplace or in a sector should be discouraged. There are various
provisions in the Act which support the legislative policy choice of majoritarianism.
The rights or benefits enjoyed by majority trade unions in terms of the LRA include the
following: conclusion of closed shop agreements and agency shop agreements with the
employer (ss 25 and 26); conclusion of collective agreements which bind all employees in
the workplace (s 23(1)(d)); access to all organisational rights provided for in terms of the
LRA (ss 12‒16); the mandate to minimise the multiplication of trade unions in the
workplace (s 21(8)(a)); conclusion of threshold agreements (s 18); establishment of
workplace forums (ss 78(b) and 80); etc. The LRA therefore supports majoritarianism and
this, unfortunately, leaves minority trade unions and their members with little protection
and little support.
34
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