August 2016


Editor's Note - August 2016 Editor's Note August 2016

This month's feature on Business Rescue is interesting and could prove particularly valuable to many people in this uncertain economic climate. I am always very grateful to the many practitioners who find time to write articles that will benefit others considerably. It is no mean feat for the attorneys, their support staff and my contacts to provide these articles. Work hours are long and full and there is seldom time left over for articles. I do recognise the encroachment into private time, without prejudice and the magazine's readers are ultimately the winners.

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A tricky question about Mandela Advertising August 2016

The recent brouhaha around the DA's advertisement using a quote from Nelson Mandela was of interest to me as an advertising law practitioner.

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An extension too far? Consumer Law August 2016

The Gauteng High Court, in the recent case of Halstead–Cleak v Eskom Holdings Limited [2015] JOL 33332 (GP), held that Eskom was "100% liable" to the Plaintiff who had been riding a bicycle and inadvertently came into contact with a low hanging live powerline spanning a footpath, sustaining serious burn injuries. While Eskom might ordinarily have been liable in these circumstances under the common law (on the basis of negligence), what was exceptional in this instance was that the court found that Eskom was strictly liable in terms of the Consumer Protection Act (pursuant to the provisions of Section 61 of the CPA).

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Disability and the employer’s duty – a comparison with Ontario, Canada Employment Law August 2016

Disability is often accompanied by unemployment, lower wages, poorer working conditions and barriers to promotion both in South Africa and abroad. Many employers tend to exclude and marginalise employees with disabilities, not merely because their disability impairs the employees' suitability for employment but also because the employer regards the disability as an abnormality or flaw. Sadly, these individuals are frequently refused employment or dismissed, rather than accommodated.

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Employing foreigners in Mozambique – recent constraints International - Mozambique August 2016

The discovery of natural resources, and the expected development of the country, have led to a number of national and foreign companies beginning to develop various businesses in Mozambique. The short-term employment framework appears to be the most flexible mechanism available to them because it allows the use of qualified, specialised staff in projects taking place around the country.

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Turning security upside down "Down Under" Financial Law August 2016

On 31 January 2012, the Australian Personal Property Securities Act (Cth) 2009 (PPSA) came into force. The Act signified a monumental shift in security taking in Australia. All stakeholders (lenders, attorneys firms and borrowers) had to come to terms with new rules and procedures to effectively take security over personal property in Australia. Is it perhaps time that South Africa considered a similar shift in its security taking regime?

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The power of the international arbitral award Arbitration August 2016

On 20 April, the Hague District Court (Netherlands) set aside an international arbitration award which originally granted a claim for damages totalling more than US$50bn (Yukos award) in favour of certain shareholders in the Yukos Oil Company, against the Russian Federation. The Hague District Court determined that, as Russia had not consented to the arbitral proceedings, the request for arbitration was invalid and it set aside the largest international arbitral award ever issued. The reasons for setting aside of the Yukos award are discussed in this article.

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Tales from the US of A... - August 2016 International August 2016

Prosecutor suspended for calling nightclubs cesspools

A Florida homicide prosecutor has been suspended from his job because of a Facebook rant after the Orlando mass shooting that said the city should be levelled and its nightclubs are "utter cesspools of debauchery". He was suspended for violating the office's social media policy. He was previously suspended on Mother's Day 2014 for a post that suggested that women who take crack should have their tubes tied.
Debra Cassens Weiss June 20

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The World in July - August 2016 International August 2016

The first legal challenge against the UK government's power to trigger formal talks to leave the European Union without parliamentary assent will be held in a civil trial over two days in the middle of October said Judge Brian Leveson, President of the Queen's Bench.

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“Pseudocide” Platteland Perspective August 2016

Australians – of course – have a name for it: "pseudocide". In South Africa it is becoming so common we don't bother with a special name. It's just another jolly old case of insurance fraud.

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A “Biblical Lazarus” Mining Law August 2016

In the recent case of Palala Resources (Pty) Ltd (Palala) v Minister of Mineral Resources and Energy (the Minister) and Others (479/15) [2016] ZASCA 80, the Supreme Court of Appeal (SCA) had to consider whether restoration of a previously deregistered company constituted a "Biblical Lazarus" in respect of a lapsed mining right.

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Purpose trumps effect Administrative Law August 2016

Part 1

Liquidators' entitlement to investigate the strength of a potential claim has been put in the spotlight in the recent case of Roering NO v Mahlangu (581/2015) [2016] ZASCA 79 (30 May 2016) per Wallis JA (Willis, Saldulker and Zondi JJA and Tsoka AJA concurring). The Supreme Court of Appeal (SCA) ruled that the legality of a summons issued by a commissioner pursuant to an enquiry in terms of s417 and s418 of the Companies Act (61 of 1973) would be determined by its purpose, and not its effect. The provisions of Chapter 14 of the old Act, which includes subsections 417 and 418, remain in force by virtue of Item 9(10) of Schedule 5 to the new Act, pending further enactment. The SCA found that a summons does not constitute an abuse of process merely because the issues canvassed in the examination may overlap with issues in pending or contemplated civil litigation.

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Man “overboard”! Company Law August 2016

In light of the enhanced accountability provisions, and recent case law development in relation to directors' liability, non-executive directorships are being treated with more caution. Nominated directors are carefully weighing up the benefit and the risk in accepting any appointments. However, this is not always the case and companies may find themselves with directors who have "overboarded" and under-delivered.

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Adding class to derivative actions Company Law August 2016

Many South African companies are failing their stakeholders. This is apparent from the ever increasing instances of strikes, corporate failures and exposed managerial frauds and misconduct. With the country's growth forecast for 2016 at 0.9%, down from 1.7%, an unemployment rate of 25%, and a currency which has halved over the past five years, there is no doubt that we are entering uncertain times. The economic downturn will continue to reveal the cracks caused by irregular business practises and poor executive decision-making which, in most instances, leaves shareholders to pick up the tab.

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The consequences of substituting a plaintiff Litigation August 2016

Can the substitution of a plaintiff in a court case create a defence of prescription? This question was raised and decided in the case of Fisher v Natal Rubber Compounders (Pty) Ltd (20640/14) [2016] ZASCA 33.

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