June 2016


Legitimate expectation doctrine: form over substance? Employment Law - Feature June 2016

Our courts have missed another opportunity to deal definitively with the contentious question of whether a substantive legitimate expectation is competent in South African law.

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The Oscar Pistorius trial The Law June 2016

Part 6

In the following two parts of the series of articles on the Pistorius-trial, I will deal in more detail with murder as a crime. Murder is a specific crime, being a crime against human life.

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Corporate opportunities and a director’s fiduciary duty Company Law June 2016

It is a well-established rule of Company Law that directors have a fiduciary duty to exercise their powers in good faith and in the best interests of the Company. They may not make a secret profit or otherwise place themselves in a position where their fiduciary duties conflict with their personal interests (Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 169 at 177).

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HIV / AIDS discrimination in the workplace Accounting June 2016

Where an employer has HIV positive employees on their staff, can they use competence as a measure to dismiss an employee on that basis alone? No. Yet some employers appear to still think that being HIV positive is a dismissible offence. The stigma is far-reaching and the workplace is yet another arena where HIV positive employees are victimised.

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Missing records Accounting June 2016

"John Dalton's records, carefully preserved for a century, were destroyed during the World War II bombing of Manchester. It is not only the living who are killed in war". IsaacAsimov

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Just how super is a "super preferent" claim? Company Law June 2016

Section 135(3) of the Companies Act, 2008 deals with, amongst others, a business rescue practitioner's (BRP) claims for remuneration and expenses. More specifically, it stipulates the preference that such claims will enjoy over other claims in business rescue proceedings. In turn, s135(4) stipulates that "[i]f business rescue proceedings are superseded by a liquidation order, the preference conferred in terms of this section will remain in force, except to the extent of any claims arising out of the costs of liquidation".

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No proof of costs, no claim! Company Law June 2016

There has always been uncertainty when it comes to a business rescue practitioner's costs, and expenses incurred in the business rescue proceedings, when the business rescue proceedings are, for whatever reason, converted to liquidation proceedings.

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Sanctions in disciplinary proceedings Employment Law June 2016

May an employer substitute the outcome of a disciplinary hearing if it believes that the chairperson's sanction was too lenient (or harsh)? This question is often raised by employers, especially in circumstances where they are of the view that the employee committed serious misconduct that warrants dismissal, but the chairperson imposed a more lenient sanction. In SA Revenue Service v CCMA (2016) 37 ILJ 655 (LAC), the Labour Appeal Court (the LAC) dealt with this question and described it as an issue that goes to the heart of a fair system of employee discipline in our labour law jurisprudence.

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Safety is a lock... but who holds the key? Employment Law June 2016

Employers often jealously defend their managerial prerogative, especially when it comes to sensitive issues such as health and safety in the workplace. After all, it is the CEO whose "neck is on the line" when management gets it wrong. It is understandable, therefore, that tensions can run high when trade unions seek to interfere with health and safety policies which would otherwise seem like a good idea for the improvement of safety in the workplace.

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Competing for the fiscus: the taxation of sportspersons Tax June 2016

The 91st Comrades Marathon took place on 29 May. Hundreds of foreign athletes from 70 countries around the world gathered in Pietermaritzburg for the 89km run to Durban. Many of the professional foreign athletes participating in the ultra-marathon would have received income from South African promoters, clubs and sponsors, which is subject to tax in South Africa.

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Securing a claim for enrichment Financial Law June 2016

The facts of the Panamo Properties 103 (Pty) Ltd v Land and Agricultural Development Bank of South Africa 2016 (1) SA 202 (SCA) are, at first, quite run-of-the-mill: Land and Agricultural Development Bank (Bank) entered into a loan agreement with Panamo Properties 103 (Pty) Ltd (Panamo).

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Public liability of local authorities Municipal Law June 2016

Local authorities often face claims for damages arising from the use of their facilities and infrastructure. Many, if not most claims against local authorities arise from alleged failures to prevent a loss where there was a legal duty to do so; authorities insure themselves against these claims and insurers are faced with the decision of whether to admit or repudiate these claims.

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“Historical debt” Municipal Law June 2016

Part 2

In the first part of this article regarding municipalities' rights in immovable property for historical debt, we demonstrated that the analysis undertaken by Fourie J in Mitchell v City of Tshwane 2015 (1) SA 82 (GP), in which reference was had to and reliance placed on Voet, was incorrect. The approach that ought to have been adopted in considering the meaning and effect of s118(3) was simply to ascertain the intention of the legislature with reference to the established principles of interpretation of statutes.

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Medical devices – then and (almost) now Medical Law June 2016

The Medicines and Related Substances Amendment Act (14 of 2015) was promulgated on 8 January 2016. The 2015 Amendment Act adds to the amendments contemplated in the Medicines and Related Substances Amendment Act (72 of 2008), which was promulgated on 19 April 2009.

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National News - June 2016 National News June 2016

Thirty-nine global promotions are being made across seven of the firm's global practice groups: banking and finance (13); dispute resolution and litigation (12); corporate, M&A and securities (6); intellectual property (3); tax (2); real estate (2) and employment and labour (1). Female partners account for 31% of the promotions. South Africa – promotion to director – Banking and Finance, Johannesburg office: Zaida Kathrada and Brian Alade Shonubi.

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