July 2016


Editor's Note - July 2016 Editor's Note July 2016

June has been a month of unusual events.

It was going to be close but I doubt many people thought Britain would vote to leave the EU. Close to home, in response to my question what the view was at a large international corporate in London, my daughter answered – "shock and disbelief". Not everyone feels it's doom and gloom, and friends whose opinion I value, who are astute and successful, believe it is the right move.

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Calculating the value of post-commencement finance Company Law July 2016

"Two roads diverged in a wood, and I – I took the one less travelled by, and that has made all the difference." The Road Not Taken – Robert Frost

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Corporate transparency and the right to information Company Law July 2016

Whether s26(2) of the Companies Act (71 of 2008) confers an absolute and unqualified right on the public to access any profit company's securities register and, accordingly, shareholders' personal information, has been the subject of much debate since the Act first came into force on 1 May 2011. This issue, which has a material impact on aspects such as corporate transparency and freedom of the press, has now, at least for the time being, been resolved by the Supreme Court of Appeal (the SCA) in Nova Property Group Holdings Ltd v Cobbett (20815/2014) [2016] ZASCA 63 (12 May 2016) (the Nova Appeal).

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Small fleas and big dogs Company Law July 2016

"A small flea can still make a big dog crazy."

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Statutory management of financial institutions – the alternative remedy Financial Law July 2016

Section 5A of the Financial Institutions (Protection of Funds) Act (28 of 2001) creates a mechanism to rehabilitate delinquent financial institutions, as an alternative to placing them in liquidation or under curatorship. It is a relatively new introduction to the Act (2014). It can only be implemented by agreement between the registrar, as defined in any of the Acts referred to in paragraph (a) of the definition of "financial institutions" in s1 of the Financial Services Board Act, 1990, and the financial institution in question. Faced with the harsher alternatives, it is hardly conceivable that any financial institution will refuse. My single experience with such an appointment (and the only such appointment made to date, as far as I have been able to establish), suggests that there is little reason why the institution should refuse.

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A sweet intoxication Intellectual Property July 2016

Benjamin Franklin's words "Wine; a constant proof that God loves us, and loves to see us happy" is testament to wine enthusiasts' euphoria when savouring their favourite wine. There is much excitement when one hears the crisp sound of the cork being ejected from the neck of a beloved bottle of vino, knowing that the final product started off as nothing more than humble grapes. If you are fortunate enough to attend a wine tasting, consider the lyrics from the song The Music of the Night, which reiterates the experience to be had. "Let your mind start a journey to a strange new world, leave all thoughts of the world you knew before...floating, falling, sweet intoxication...savour each sensation".

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Revisiting three-dimensional objects Intellectual Property July 2016

According to paragraph (c) of the definition of "reproduction", the action of making a reproduction of a reproduced copyrighted work will in itself constitute a reproduction; this is commonly referred to as indirect copying. Generally, when the first reproduction is copied, copyright infringement will occur because, in reality, it is the original work that is being reproduced, albeit in an indirect manner. The indirect copying of a work can occur when a trade rival takes a competitor's product, measures and copies it, in order to make drawings and prototypes of the article, for the purpose of making a competing article. This process is known as "reverse engineering". According to the exemption in s15(3A), in Dean's view, the owner of the copyright will be unable to restrain a person from making a three-dimensional reproduction or adaptation of a work by means of indirect copying from an authorised reproduction.

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The Alps in Mzansi Intellectual Property July 2016

South Africa has the largest pharmaceutical products market in Africa and the pharmaceutical industry plays a very important role in the South African economy. Patentability is the economic driver for research and innovation. Furthermore, contrary to the fear that patentability may curtail access to medicines by making them more expensive, it is patentability itself that serves as the economic incentive to the manufacture and distribution of various drugs within an economy.

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The Alps in Mzansi Intellectual Property July 2016

South Africa has the largest pharmaceutical products market in Africa and the pharmaceutical industry plays a very important role in the South African economy. Patentability is the economic driver for research and innovation. Furthermore, contrary to the fear that patentability may curtail access to medicines by making them more expensive, it is patentability itself that serves as the economic incentive to the manufacture and distribution of various drugs within an economy.

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Social media – reasonable use and legal risks Media July 2016

The risk of using social media has become a serious legal issue for attorneys and their clients in light of the "right to privacy" and the "right of freedom of expression" as enshrined in our Constitution. Our courts have not been oblivious to technological development and have accepted that the internet and social media can be used as a suitable medium to serve court papers (CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens (KZD) unreported case no 6846/2006, 3-8-2012); employees dismissal can been confirmed by the CCMA based on social media misconduct, the courts may grant interdicts against persons ordering them to remove offensive or defamatory content from public social media pages and also the extension of the claim for damages as a result from defamation on a social media platform has now been recognised and confirmed.

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Uncertainty and risk Contract Law July 2016

Contracts generally have a momentum and until they terminate, they continue to operate with rights and obligations and money flows. There are circumstances in which a party to a contract may be entitled to cancel, but while that party considers its position, time rolls on.

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Specific performance, the heart of contractual remedy being cut out? Contract Law July 2016

Pactu sunt servanda is based on the principle that the agreement between the parties must be kept. Therefore, what the parties agreed to perform must be adhered to. This is at the heart of any agreement and is the core of South African law of contracts.

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The World in June - July 2016 International July 2016

England loses to Iceland 1-2 in a shock defeat at the Euro 2016. Iceland is one of the lowest ranked (34) teams in the world. Manager Roy Hodgson resigned after four years as England manager, The Telegraph said "Hodgson's reign will be defined by a result comparable to losing to the United States in the 1950 World Cup and the now-familiar inquest will begin again in a country that likes to see itself as football royalty."

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Introduction Employment Law - Feature July 2016

The days of lifetime employment have long since passed, and employees the world over are largely puppets to economic and political vagaries which pose as much a threat as any employer whims may have done in the past.

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The man in the mirror... Employment Law - Feature July 2016

The yearning for equal treatment has been at the heart of change in modern society. From the Magna Carta, to the French Revolution to the advent of democracy in South Africa, human beings desire equality as a fundamental principle of fair treatment.


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