February 2017


Editor's Note - February 2017 Editor's Note February 2017

According to the Chinese, 2017 is the year of the Rooster. Unfortunately, according to those who predict what is on the menu, while there may be positives to the year of the Rooster, it will also provide "conflicts, controversy and plenty of debate". Does that sound a little like "same old, same old" to South Africans?

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Legal frontiers: surrogacy Medical Law February 2017

Law and science: An uneasy partnership of regulation and advancement in circumstances where the former rarely keeps pace with the latter. One such area is the law of surrogacy and the artificial fertilisation of persons.

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“Dirty dozen” tactics Litigation February 2017

"This appears to have been the first time in South Africa where the question of the admissibility of evidence rejected as inadmissible in the preceding criminal trial was raised in a subsequent civil trial such that the court hearing the civil matter would have to consider the admissibility of substantially the same evidence": Hohne judgement.

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Good faith: a Bona Fide get-out-of-jail-free card or a failed breakout attempt? Contract Law February 2017

The notion of a bona fide contract is all but meaningless without further inspection into its content and the consequences of its application, yet it is a notion, vague and without such explanation, that pervades much of our contract law. Are parties bound only by the terms of the contract, or are they subject, beyond this, to the overarching duty to act in good faith? Is the good faith doctrine a get-out-of-jail-free card when it comes to escaping the iron teeth of an otherwise valid contract? Does it serve as a free pass for parties who wish to enforce otherwise unenforceable provisions?

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Pressure selling education Platteland Perspective February 2017

Up to now I've associated the phrase "ambulance chasers", figuratively or literally, with lawyers and breakdown trucks. But having recently read the judgement in Damelin v Solidarity I must add another category: private colleges.

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The franchise industry code Franchise - Consumer Law February 2017

The draft Industry Code for the Franchise Industry (Code) was published for public comment on 29 January 2016. It provides the proposed framework for an ambitious dispute resolution mechanism for franchisees and franchisors and includes the establishment of a "Franchise Industry Ombud".

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Mutatis mutandis and filling the legislative gap Company Law February 2017

In South Africa, the sequestration of natural persons is regulated by the Insolvency Act (24 of 1936). Conversely, the winding-up of companies is regulated by two sources of legislation, namely, the Companies Act (71 of 2008) in relation to the winding-up of solvent companies and the Companies Act (61 of 1973) in relation to the winding-up of insolvent companies.

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Brexit and its opportunities for SA real estate investments in Germany International February 2017

Following the Referendum on 23 June 2016, the UK took the historic decision to exit from the European Union (EU). This means the UK Government will trigger Article 50 of the Lisbon Treaty by notifying the European Council of the UK's intention to leave.

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IS THE SOUTH AFRICAN MINING INDUSTRY SEEING CHANGE THROUGH INNOVATION? Mining Feature February 2017

It is well-known that despite positive efforts by mining companies to reduce costs and focus on profitable production, the mining industry in South Africa continues to face a number of challenges due to subdued commodity prices and an ever-increasing cost base. South African mining companies face unique socio-economic and labour challenges which are putting even greater pressure on profit margins.

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EVOLVING FINANCIAL PROVISION REQUIREMENTS Mining Feature February 2017

With the advent of the 2016 financial year, mining companies had more questions than answers as to how the more onerous legal regime imposed on them in respect of financial provisions for mine closure and environmental rehabilitation in the Financial Provisioning Regulations under the National Environmental Management Act (107 of 1998) (NEMA - promulgated on 20 November 2015 in Government Notice R1147) would be implemented.

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MINERAL RESOURCE TENDERS Mining Feature February 2017

On 1 November 2016, the National Assembly passed the Mineral and Petroleum Resources Development Bill (15 of 2013) (the Amendment Bill) which has been referred to the National Council of Provinces for concurrence.

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AIR QUALITY REGULATIONS: DON'T BE CAUGHT UNAWARE Mining Feature February 2017

In November 2013 the Department of Environmental Affairs (DEA) promulgated regulations in terms of the National Environmental Management Air Quality Act governing emission standards for new and existing plants. On 1 April 2020 the more stringent emission standards (that are currently only applicable to new plants) will be incorporated into the licence conditions for existing operations thus compelling existing plants to investigate and retrofit new technologies in order to ensure compliance.

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MINING LACUNAS Mining Feature February 2017

Commodity markets are showing some recovery from the most debilitating plunge in decades. Regulatory certainty has a considerable influence on investment appetite. It is essential, therefore, to ensure the mining sector is able to attract foreign investment and react rapidly to growth and employment-creating opportunities as market conditions improve.

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MINE RESIDUE STOCKPILES AND DEPOSITS Mining Feature February 2017

Creating and enforcing laws that ensure effective environmental management in the mineral and petroleum extractive sector and simultaneously avoiding over-regulation is a difficult but imperative task. Not achieving the right balance can lead to economic hardship for mining companies on the one hand or disastrous environment pollution on the other. Avoiding over-regulation requires meaningful engagement between regulators and the regulated.

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LOCAL BENEFICIATION Accounting February 2017

According to the PWC Mine 2016 annual report, 2016 was the first year in which the top 40 mining companies experienced a collective net loss and there was a continuous deterioration in their viability. Needless to say, 2016 was another arduous year for the mining industry.

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