February 2015


Editor's Note - February 2015 Editor's Note February 2015

"Keep Calm and Carry On" will certainly need to become a mantra for South Africans in 2015. Eskom has implemented load shedding as a permanent feature because "The power grid is extremely constrained and will remain so for the rest of the summer." The reason – unforeseen technical problems at power stations. It is difficult to understand "unforeseen" when Eskom has had seven years since the last power crisis to get its house in order.

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We are masters of our fate Mining Law February 2015

In the ultimate verse of the famous poem Invictus1, first published in 1888, the poet William Ernest Henley wrote: "It matters not how strait the gate, How charged with punishment the scroll, I am the master of my fate, I am the captain of my soul."

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Big stick or hollow threat? Mining Law February 2015

Are directives issued in terms of s93 of the Mineral and Petroleum Resources Development Act (28 of 2002 as amended) valid and enforceable?

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Ring-fencing South Africa’s mining assets Mining Law February 2015

In the last two years, certain multinational mining companies have announced their intention to ring-fence their South African assets by unbundling them into separately listed vehicles or putting them up for sale. Given the challenges currently facing miners in SA, does this signal an exit of the multinationals and the sunset of the South Africa's mining industry, a country once considered to be the world's most attractive mining destination, holding the world's richest mineral deposits?

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The Myth of the National Credit Act Mining Law February 2015

There has been a recent spate of articles in the media regarding the seemingly pervasive issue of mine workers falling victim to loan sharks (also known as 'mashonisas' or 'stokvels'). In the wake of this, we might ponder whether our credit laws have been adequately institutionalised, not only from an enforcement perspective but from the broader perspectives of awareness, education, debt prevention, accountability and social responsibility.

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Be diligent and do your due diligence Mining Law February 2015

Since the Great Recession of 2008 and the meek recovery in world economies, investors, including institutions and companies with strong balance sheets that have been able to withstand the volatility in the "down cycle", have become more discerning with the projects that they wish to invest in or acquire.

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The true face of simulated transactions Company Law February 2015

It is trite that the adoption of creative drafting methods in order to genuinely and honestly arrange a particular transaction in a manner which lawfully outwits the purview of the law is not only permissible but it also encourages legal development. However, when such legal ingenuity is left unbridled, to the extent that the transaction or suite of transactions manifests an intention which is not truly representative of the actual terms of the agreement, the courts will not hesitate to place precedence on the substance of such an arrangement rather than its purported form.

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Beware drowning on sinking ship Company Law February 2015

Section 129(1) of the Companies Act (71 of 2008) provides that the board of directors of a company may voluntarily begin business rescue proceedings and place a company under supervision if the board has justifiable grounds to believe that the company is financially distressed and there appears to be a reasonable prospect of rescuing the company.

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Obligations of a surety Company Law February 2015

While s120(3) and s129(1)(b) of the Insolvency Act, 1936, expressly provide that the liability of a surety shall not be affected by a composition or the rehabilitation of an insolvent respectively, the situation is not as clearly defined in the Companies Act, 2009. The obligations of a surety are expressly preserved notwithstanding an arrangement or compromise in s311 of the 1973 Companies Act and s155(9) of the "new" Companies Act, but the Companies Act does not address whether the obligations of a surety are discharged in the context of business rescue proceedings.

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Less room to manoeuvre Competition Law February 2015

On October 31 2014 the Competition Commission for the Common Market of Eastern and Southern Africa (COMESA) (CCC) published its long-awaited merger assessment guidelines. The Guidelines come into effect in the wake of widespread criticism that the COMESA merger control regime (introduced by the COMESA Competition Regulations, 2004 (Regulations), effective January 14 2014) requires merging parties to undertake the time-consuming, administratively burdensome and costly exercise of notifying transactions, which are likely to have little, if any, impact on the common market.

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UnSteve your ads Advertising February 2015

An advertiser or marketer knows that they have succeeded in a campaign when one line, or even one word, is enough to recall that whole campaign in the mind of a consumer. Think "it's not inside, it's on top", think "25 hour day", think "simpler, better, faster". Think "Steve".

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Reflections on a changing world of legal services Law Firm Strategy February 2015

When I joined Webber Wentzel on January 2 1984, all the firm's partners were comfortably able to sit around a table in a small boardroom in the Standard Bank Centre at 78 Fox Street, where they met to have coffee every morning and to open the post. Today a partners' meeting at our firm fills our 120 seat auditorium in Johannesburg, with a video conference link to Cape Town where another 35 partners gather. A partners' meeting at our alliance partner, Linklaters, fills a 500 seater auditorium, and is populated by partners from 26 offices around the world. These simple examples highlight the dramatic shift and change in the size, scale and complexity of law firms in South Africa and globally over the past 30 years.

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What price freedom? Media Law February 2015

South Africa has recently suffered the self-censorship, by the media, of hard-hitting opinion on matters that affect all South Africans.

Independent Newspapers has apologised to the Presidency for the opinion expressed by its columnist Max du Preez on issues involving President Jacob Zuma. The apologies can only be attributed to political pressure or fear of the repercussions of not expressing the imposed "politically acceptable" view.

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The unwanted discount Medical Law February 2015

In a recent press release by the Chief Executive Officer of the Road Accident Fund dated December 2 2014, the statement is made that "[a]ll available cash is being put to efficient use, which has seen the number of open claims reduced, while continued payments to claimants dependant on the availability of the funding received in the form of the Fuel Levy."

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Goliath wins this time . . . An inference of negligence in medical negligence disputes Medical Law February 2015

In recent times a number of interesting judgements have emanated from the Supreme Court of Appeal (the SCA) regarding medical negligence or malpractice cases.

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