Department of Mercantile Law
Business Law BER220
Examination
Time: 1h45 (105 minutes)
Marks: 50
Examiner: Mr SN Makhubu, Dr P Ncube and Mr C Fritz
Internal moderator: Dr J van Wyk
Instructions
1.
This paper consists of eight (8) questions. You must answer all the questions.
2.
You have 105 minutes to complete this examination.
3.
Your answer script must contain your full names and student number.
4.
This is a closed-book examination. The use of any notes or assistance is strictly
prohibited.
5.
Clearly number the answers to the questions.
6.
Write legibly. Lecturers are not obligated to decipher illegible handwriting.
7.
By partaking in this examination, you agree to the following:
“The University of Pretoria commits itself to produce academic work of integrity. I affirm that I
am aware of and have read the Rules and Policies of the University, more specifically the
Disciplinary Procedure and the Tests and Examinations Rules, which prohibit any unethical,
dishonest, or improper conduct during tests, assignments, examinations and/or any other
forms of assessment. I am aware that no student or any other person may assist or attempt
to assist another student, or obtain help, or attempt to obtain help from another student or any
other person during tests, assessments, assignments, examinations and/or any other forms
of assessment”.
8.
Visit the BER220 ClickUP page for information about the release of marks and the
perusal opportunity.
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PART A: LAW OF SECURITY
QUESTION 1 [4 marks]
Match the form of security listed in column A with the best suited statement or
description in column B e.g. 1.1. C.
Column A
Column B
1.1. Suretyship
A.
An agreement to extend this form of security,
together with the registration of a bond, are required
to afford the protection conferred by real rights.
1.2. Mortgage
B.
In terms of this form of security, luxurious expenses
may be recovered but only if such expenses were
incurred in accordance with an agreement between
the relevant parties.
1.3. Pledge
C.
Must be in writing and signed by or on behalf of the
principal creditor to be valid.
1.4. Landlord’s tacit hypothec
D. Comes into being through agreement and delivery.
E.
Must be in writing and signed by or on behalf of the
surety to be valid.
F.
Parties agree that the debtor cedes his/her
personal right to the creditor on condition that the
creditor will cede the personal right back to the
debtor upon payment of the debt.
G.
Movable property present on the leased property
are subject to such security. The movable property
includes that of the lessee, sublessee with valid
sublease and as far as the sublessee is in arears
with payment of rent (to the sublessor or lessee)
and, in some instances, goods belonging to third
parties.
H. This form of security is created by way of a “pledge”
of personal right(s) and the principles of pledge are
applied.
I.
The assets of a sublessee will never be subject to
this form of security if the sublease is invalid.
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QUESTION 2 [6 marks]
Simba was involved in an accident while driving his BMW. Simba and Motor Repairs (Pty) Ltd
(‘MR’) agreed that MR would repair the BMW for R55 000. MR repaired the BMW but Simba
failed to pay MR for the work done on the vehicle. Explain the type of security that MR holds,
the requirements for the security to exist, and the legal implications of that security,
comprehensively.
PART B: INSOLVENCY LAW
Question 3 [5 marks]
State whether the following statements are True or False:
3.1
Before terminating the employment contracts of employees after the sequestration of
the employer, the trustee must consult with the employees or trade unions on
proposals to rescue the business.
3.2
(1)
In an application for acceptance of the voluntary surrender of the estate of the debtor,
the debtor has to show that he is factually insolvent.
3.3
(1)
Peter and Sandy are married in community of property. If Peter is sequestrated, Sandy
is not sequestrated and can claim 50% of the common estate as a concurrent creditor.
(1)
3.4
Peter owns holiday homes in South Africa, Namibia and England. If Peter is
sequestrated by a South African Court, all three houses will automatically form part of
the insolvent estate.
3.5
(1)
A partnership estate is sequestrated in terms of the Insolvency Act 24 of 1936. This is
done simultaneously, but separately from the sequestration of the personal estates of
the individual partners.
(1)
Question 4 [5 Marks]
Omphile owns and operates a small seafood restaurant. Unfortunately, the business suffered
financially due to the COVID-19 pandemic and the devastating effect that load-shedding has
been having on her business. She has accumulated a large amount of debt as a result of her
failing business, and she will never be able to repay all her creditors. Omphile wishes to apply
for her estate's voluntary surrender. List the factors that Omphile must prove in a court of law
before the court will apply its discretion to issue a sequestration order.
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PART C: LABOUR LAW
Question 5 [10 marks]
5.1
Name two main sources that regulate the individual employment relationship.
(2)
5.2
What is the purpose of the Basic Conditions of Employment Act 75 of 1997?
(2)
5.3
Complete the sentence by inserting the parties to whom individual labour law applies:
Individual labour law applies between ______ and ______
5.4
Name one of the categories of parties excluded from the application of the Basic
Conditions of Employment Act, 75 of 1997.
5.5
(2)
(2)
A party wants to refer an unfair dismissal to the CCMA. Write down the number of the
days within which the referral must it be done and indicate from when this is calculated.
(2)
Question 6 [5 marks]
On 15 October 2022, Ms Phalatsi was dismissed for alleged misconduct. She feels that the
dismissal was unfair as she did not break any rule and did not get a reasonable amount of
time to prepare for her disciplinary hearing. She is considering to refer the matter to the CCMA
but is not sure if her matter has merits. Advise Ms Phalatsi comprehensively on her possible
prospects of success.
Question 7 [5 marks]
On the morning of 15 October 2022, Mr Majeka signed an employment contract with his new
employer. He is very excited because he only works 50 hours per week at a rate of R18 per
hour. The employer informs Mr Majeka that the only reason he was chosen for the position
was because of his weight and age. Mr Majeka is worried that the employment contract states
that all his rights relating to dismissal and the joining of a trade union are at the discretion of
the employer. With reference to all the terms of the employment contract and the statement
by the employer, advise Mr Majeka which sources of law he can consider to ensure that he is
treated fairly during his employment period.
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Question 8 [10 marks]
Ms Malangu is a cashier in the employ of Sunrise Bakery (Pty) Ltd. She earns R 120 000 per
year and she commenced with her employment on 1 August 2012. She is still employed by
the company. There are no collective agreements or determinations applicable to her
profession. Ms Malangu works 5 days a week. Advise Ms Malangu on the minimum conditions
of employment that applies to her in terms of the Basic Conditions of Employment Act 75 of
1997 (‘BCEA’) with reference to the following:
8.1
Notice period to be provided by her should she decide to terminate her employment
with Sunrise Bakery (Pty) Ltd.
(2)
8.2
Sick leave.
(2)
8.3
Remuneration for a Sunday where she normally works on Sundays.
(2)
8.4
Will the BCEA apply to her if she earned an income of R 290 000.00 per year? Provide
comprehensive reasons for your answer.
End of paper
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(4)