Latest Issue - July 2017


Editor's Note - July 2017 Editor's Note

The headlines of South Africa's newspapers emphasise why the mood in the country is so gloomy. Those who respond by saying everyone should look to the positive rather than concentrating on the negative are, of course, right; but until such time as those who are in positions of leadership are demonstrably ethical, the permeable feeling of pushing against an overwhelming tide will remain.

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‘Radical Economic Transformation’ in the mining sector – unconstitutional? Mining

The new "top-up" provision in the latest Mining Charter gazetted on 15th June may prove to be unconstitutional, and may lead to further expensive legal action by the industry.

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A burning question Environmental - Employment Law

With the recent factory fire at the Transnet-owned wax-production facility in South Durban, employers are reminded how quickly a burning building can translate into tragedy and destruction.

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Prescribed officers – tag! You’re it! Company Law

During consultation with clients, the question that often arises is which individuals in a company would be considered a Prescribed Officer in terms of the Companies Act (71 of 2008), and what this means for such an individual? Is it merely a selection based on random function or is there logic and motivation driving the decision?

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The push for corporate accountability Company Law

On receipt of an appropriate application, a court is obliged to consider whether the actions of a director of a company in carrying out his or her functions amount to gross negligence, wilful misconduct or breach of trust and whether they should be declared a "delinquent director" in terms of s162(5)(c)(iv)(aa) of the Companies Act, (71 of 2008). The concept of a "delinquent director" was introduced by the 2008 Act, however, the criteria listed are not new to South African corporate law.

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Inheritance and intergenerational inequality Law of Succession

The constitutional nature of the right to dispose of property and wealth after death was, for a long time, left unanswered by our judiciary. It took 17- years after the enactment of the Constitution for the Supreme Court of Appeal (SCA) in In re BoE Trust Ltd NO and Others 2013 3 SA 236 (SCA) to confirm that s25 (1) of the Constitution guarantees freedom of testation as a constitutional property right.

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Different horse, same course Accounting

Recently, the Competition Appeal Court reversed at least four Tribunal decisions. The Tribunal has been seen as robust in its application of the Competition Act (89 of 1998), as amended, in encouraging the development of competitive market structures by interpreting the Act in a manner that combines law and economics, while the court has been seen as conservative, purely applying the law.

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Continuing covering security: How good is your cover? Financial Law

Volatile economic circumstances forced banks and other financial institutions to become more reliant on security they hold, securing cutomers' debts with securities ranging from suretyships to covering mortgage bonds.

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Tacit "advice" in terms of FAIS? Financial Law

You walk into a cell-phone shop with the intention of buying a cell phone and on completion of the transaction, the sales person asks you whether you want insurance cover for your new phone. You answer in the affirmative. He hands you insurance documents and points to a clause that contains the calculation of your monthly instalment. You are happy and he shows you where to sign. You sign the documents. Did the sales person, in this scenario, provide "advice" in terms of the Financial Advisory and Intermediary Service Act and did he/she comply with the Act?

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Overhaul of South African’s maritime legislation Maritime Law

In July 2015 the South African government launched a long overdue review of various maritime statutes as part of the Operation Phakisa initiative to grow the ocean economy. Echoes of that initiative can be found in the latest iteration of the draft maritime transport policy and are reflected in the Departments of Transport and Justice's focus on changes to legislation summarised in this article. The changes will bring our legislation into line with modern commercial practice and harmonise our domestic legislation with our international obligations. Once effected, these amendments will change South Africa's maritime legal landscape substantially, and will have a significant impact on players in the shipping industry.

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How to battle Frankenstein's Juggernaut? With love . . . lots and lots of love. Tax

I am reliably informed that on the night of 1 October 2012, as the final and 12th gong of the clock tower bell rang ominously over the sleeping taxpayers in the Hamlet below, the drafters could be heard screaming deliriously from on top of the steeple at Castle Megawatt Park: "Look! It's moving. It's alive... IT'S ALIVE!" Or words to that effect. And so it came to pass on that fateful night, a decree ordered the birth of the Tax Administration Act (28 of 2011) (the TAA) and the Juggernaut known as "the SARS official". Victor Frankenstein would have been very proud.

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The "next highest court" The Law

On 10 November 2016,the full bench of the High Court of South Africa, Gauteng Division, Pretoria in the case of the Member of the Executive Council for Co-Operative Governance, Human Settlements and Traditional Affairs & 43 Others v Mogalakwena Local Municipality & Another, High Court of South Africa, Gauteng Division, Pretoria, Case Number 89657/2014, held that the "next highest court" referred to in s18(4)(ii) of the Superior Courts Act (10 of 2013) is, in this instance, the full bench of the Gauteng Division.

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Settlement agreements Employment Law

Recently, the Labour Appeal Court and the Supreme Court of Appeal were required to pronounce on contempt of court. The reasoning in the two judgement appears to be at odds. The question that lingers in litigants' minds is which judgement is correct. In this article, we attempt to shed some light in this regard.

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INTRODUCTION - July 2017 Cybercrime Law Feature

It may feel like we are living out a movie. The world is very different from that just 10-years-ago; "good different" in so many ways but, as always, there are those who would demean the advances. In this brave new world there are those whose brilliance is geared towards a dark side of technology where there appear to be endless opportunities to intervene with the intent of committing harm.

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FROM SILK ROAD TO TOR TUNNELS: A LOOK AT THE HISTORY AND DEVELOPMENT OF CYBERCRIME Cybercrime Law Feature

"Any sufficiently advanced technology is indistinguishable from magic." - Arthur C. Clarke


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