November 2014


Editor's Note - November 2014 Editor's Note November 2014

It would be unthinkable not to commemorate World War One. The WWI feature in this issue of without prejudice is our small tribute to those who fought in what was then described as the Great War; the war to end all wars. The four years from 1914 to 1918 brought untold loss and suffering to thousands of individuals, families and countries. I must thank Advocate John Myburgh who has intricately described the events that led to the declaration of War.

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The wider application of the Shuttleworth judgement Tax November 2014

The judgement recently delivered by the Supreme Court of Appeal in the case Mark Shuttleworth v the South African Reserve Bank (SARB), the Minister of Finance and the President of the Republic of South Africa has attracted substantial attention in the media. After all, it is very newsworthy when the central bank is ordered to repay R250 million to a South African self-made millionaire. It became even more interesting when Shuttleworth pledged to use the refund to “selectively fund cases on behalf of those unable to do so themselves, where the counterparty is the state."

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Globalisation – the effect on directors’ fees and tax Tax November 2014

Globalisation has created wonderful opportunities for businesses to expand their reach across the borders of various jurisdictions and significantly increase their market share. In addition, it has enabled many individuals and companies to invest in operations beyond the jurisdictions in which they reside or are registered. Markets are no longer compartmentalised based on jurisdiction and, as a consequence, multi-national companies have had to adapt the manner in which they control and manage their operations.

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Search and seizure: The extent of SARS's powers Tax November 2014

To give effect to its information gathering powers of, the South African Revenue Service (SARS) may apply to a magistrate or a judge to issue a search and seizure warrant so as to, unannounced, enter premises where relevant material is being kept, conduct a search of a person's premises and seize relevant material.

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A reversion to diplomatic protection? Promotion & Protection of Investment Bill November 2014

The Promotion and Protection of Investment Bill, originally published for public comment by the Department of Trade & Industry on November 1 2013, is currently undergoing review by NEDLAC and will probably be introduced to parliament later this year or early next.

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Mining company directors: In the line of fire Company Law November 2014

In the Blue Platinum case, the court delivered a ground-breaking and precedent setting judgement. This judgement highlighted the importance of accountability and environmental responsibility among corporates and has brought to our attention the far-reaching powers of regulatory authorities to hold company directors liable, in their personal capacities, for environmental offences.

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Remediating contaminated land Environmental Law November 2014

Contaminated land is becoming increasingly recognised as an environmental issue threatening the natural resources of South Africa and the world at large. The National Environmental Management: Waste Act of 2008 includes provisions to deal with this concern. This regulatory regime, however, was only brought into force by President Zuma on May 2 after an almost five-year delay.

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Demand guarantees and parent company guarantees Financial Law November 2014

Demand guarantees and parent company guarantees are a common form of security in limited recourse finance, project finance and other finance transactions. Their intent is to provide a certain degree of security to the beneficiary in respect of the obligations assumed by the principal or subsidiary under the relevant contract. They afford the beneficiary recourse to the issuer in respect of any shortfall in the performance of the principal or subsidiary under the relevant contract.

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Informal settlements: The challenge to upgrade Municipal Law November 2014

According to Jeannie van Wyk in Planning Law (Juta 2012) an estimated 10% of South African citizens, or at least 4.4 to 5 million people, lived in informal settlements in 2012. However, due to fluctuating financial and economic challenges, this figure is far from stable.

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Appeal Court sets the record straight Medical Law November 2014

It is safe to say that in recent years there has been an increase in claims for medical negligence against hospitals and doctors in South Africa. There may be a variety of reasons for this but the two which come to mind are, first, the change in Road Accident Fund legislation and, second, the changing litigation landscape in South Africa.

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The impact of the RAF Statutory Cap Medical Law November 2014

Legal practitioners, particularly those dealing pre- dominantly with RAF matters, are by now aware of the Elizabeth Jemma Sweatman v the Road Accident Fund 2013 JDR 2821 (WCC) judgement.

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“The Lamps are going out all over Europe” Part1 World War 1 Feature November 2014

The events leading up to WW1 from the assassination of the Archduke Franz Ferdinand (28 June 1914) to Great Britain's declaration of war on Germany (4 August 1914).

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“The Lamps are going out all over Europe” Part2 World War 1 Feature November 2014

The investigation commenced that very day and was conducted by an Austrian judge, Leo Pfeffer. His investigation lasted twelve days. By July 2 he had interviewed three of the assassins: Princip, Cabrinovic and Ilic, and had established that:

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Of Soldiers and Solicitors – A Diary World War 1 Feature November 2014

Adams & Adams owes its name to two sons of the Reverend Harry Adams, who came to the Transvaal in 1875. The firm was started in 1908 by Harry Adams - some years after the devastation of the Anglo Boer War, and prior to one of the deadliest conflicts in history – World War One. The early history of the firm is captured here by Eustace Adams – Harry's brother - who joined his brother in the practice in 1917; providing a first-hand and unique account of the trials and triumphs of working in the law firm in its formative years, during a time when the world was in turmoil.

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The Great War Generation World War 1 Feature November 2014

By the time Britain declared war on Germany a century ago on August 4 1914, Germany was already at war with Britain's allies Russia and France. Bent on attacking France through Belgium, Germany invaded Belgium, triggering Britain's declaration of war, which South Africa emulated. A number of partners at Fairbridges were in the thick of it. Senior partner of Fairbridge Arderne & Lawton in Cape Town was Tom Lawton. He was a seasoned soldier, having served with the Dukes (Duke of Edinburgh's Own Rifles), rising to the rank of Lieutenant-Colonel and commanding the Cape Garrison Artillery in Walvis Bay during the Anglo-Boer War of 1899 – 1902. He was decorated with South African War medals, the King's and Queen's medals, with two bars, and the DSO (Distinguished Service Order).

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