December 2015


Editor's Note Dec 2015 Editor's Note December 2015

A moment ago it was January, now I write the editor's note for the December issue of without prejudice – where have the intervening months gone?

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The dti's embarrassing blunder on bilateral investment treaties Trade Law December 2015

At the time of writing, as we wait for the Parliamentary Portfolio Committee on Trade and Industry to resume its clause-by-clause analysis of the controversial Promotion and Protection of Investment Bill, it is important to interrogate the rationale behind this Bill as a whole. A sober inquiry reveals a costly misstep by the Department of Trade and Industry (dti) in its treatment of the country's bilateral investment treaties (BITs), which the Bill is supposed to replace. In fact, it appears that the dti's approach to the termination of BITs has been astonishingly self-defeating.

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What’s the Big Deal about water? Environmental Law December 2015

In January 2011, I was interviewed by the late David Gleason on the topic of water. This article is dedicated to his memory and takes that earlier conversation to the next level.

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A pillar of strength The Law December 2015

By now, the judgement of the Supreme Court of Appeal in South African Broadcasting Corporation, Minister of Communications and Hlaudi Motsoeneng v Democratic Alliance and six others is well known, having shed clarity of the status of the Public Protector's rulings. The court held that the rulings do not merely have persuasive value but are, in fact, binding.

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The Oscar Pistorius trial – some of the issues explained - Part 2 The Law December 2015

Part 2

In the first part of this series of articles on the Oscar Pistorius trial, I discussed the basic principles of fault, in the form of intention, as one of the elements to be satisfied in order to secure a conviction of murder. A discussion will be incomplete if I do not mention and explain some of the other relevant issues that must be taken into account when deciding a criminal case like the matter under discussion. This article deals with exactly that.

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Arresting a ship? Maritime Law December 2015

The ability of a creditor to arrest a ship is a concept that is internationally accepted, and has developed over centuries. The arrest and judicial sale of a ship is a practical and effective means of enforcing a claim or resolving a dispute where jurisdictional difficulties arise, as debtors in maritime disputes are often extra-territorial. However, the arrest and subsequent judicial sale of a ship may infringe on the owner's right to own the ship and to be protected against its arbitrary deprivation in cases where the owner was not the debtor.

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Foreign judgements v arbitral awards Arbitration December 2015

Dispute resolution and submission to jurisdiction are pertinent issues in cross-border financing transactions. When advising South African clients on the choice between submitting disputes to the courts of a particular jurisdiction, or to arbitration, one of the key considerations is the likelihood that the final judgement or award will be enforced. Contract parties should be made aware of the respective regimes governing the enforcement of foreign judgements, versus foreign arbitral awards, before selecting the appropriate forum.

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Condoning unreasonable delay Litigation December 2015

In the recent high court judgement in the City of Cape Town v the South African Roads Agency Ltd and Others (Western Cape Division, Cape Town Case Number 6165/2012) (City v SANRAL) the court was required to consider:

  • whether an application for condonation of an unreasonable delay in instituting review proceedings should be considered before or after the review; and
  • what the relevant considerations are that should inform the court's condonation decision.

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INGO tax relief – helping those who help us Accounting December 2015

International non-governmental organisations (INGOs) have become increasingly influential in world affairs. They make a vital financial contribution to the survival of many residents in developing countries.

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Energy data collection: More onerous or more accurate? Energy Law December 2015

Increased pressure on the national electricity grid and greater global emphasis on the environmental impact of electricity generation in recent years has made the promotion of energy efficiency a high priority for the South African government.

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Revisiting Chetty Company Law December 2015

Section 133 of the Companies Act (71 of 2008) provides for a general moratorium on legal proceedings against a company in business rescue.

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A breath of fresh air Company Law December 2015

Speaking at the INSOL Africa Round Table Conference in Cape Town on 12 October 2015, the Deputy Minister of Justice and Constitutional Development, the Honourable John Jeffrey MP, indicated that we are shortly to receive a revised and consolidated Unified Insolvency Bill.

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Conflicts of interest and excluding directors from board decisions Company Law December 2015

The practical interpretation and implementation of the conflict of interest provisions in the common law and in our Companies Act has always been a daunting task. Any further legal developments and guidance are always welcomed.

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Judges as valuers Company Law December 2015

The promotion of investment in the South African markets is one of the objects of the Companies Act, (71 of 2008, as amended). Section 163(1) promotes investment by providing minority shareholders with relief against conduct that is oppressive or unfairly prejudicial to, or that unfairly disregards, their interests. The principle of majority rule in company law means minority shareholders are at risk of oppressive or unfairly prejudicial conduct. Therefore, although this relief is available to a majority shareholder, it will be used mainly by minority shareholders.

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Confirmation bias and the law The Law December 2015

The psychological phenomenon of confirmation bias is deeply ingrained in human nature and behaviour. Understanding this phenomenon as a lawyer, how to use it, and how to avoid falling into its trap, is the subject of this article.

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