February 2017


COMPANIES, DIRECTORS AND SHAREHOLDERS BEWARE Mining Feature February 2017

Environmental law contravention is rampant in many sectors and industries in South Africa. Despite the specific obligations set out in these laws, compliance is often considered a "work in progress". This flexible attitude to compliance can be attributed to lacklustre compliance monitoring, enforcement and prosecution efforts. Companies, directors and shareholders should be warned that the tide is turning and they will all need to take stock of their environmental law obligations to avoid liability and maintain their reputations and investor confidence.

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OPERATIONAL AND FINANCIAL IMPLICATIONS OF THE PROPOSED CARBON TAX Mining Feature February 2017

South Africa is a country party to the Paris Agreement on climate change, which came into operation on 4 November 2016. As such, South Africa has thrown its metaphorical hat into the ring in the fight to limit the worst effects of rampant and unpredictable international environmental change, as natural cycles of change are sped-up by human-induced greenhouse gas emissions.

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THE MINING CHARTER III: A FALLEN VEHICLE OF TRANSFORMATION? Mining Feature February 2017

"Lessons learnt from implementing the Mining Charter are the basis for sharpening tools of implementation" – Minister Mosebenzi Zwane on the occasion of the Budget Vote 29: Mineral Resources, National Assembly, Cape Town.

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EMPLOYEE SHARE OWNERSHIP SCHEMES AND THE MINING INDUSTRY Mining Feature February 2017

The Employee Share Ownership Scheme (ESOP) has long been seen as an important tool for transformation. Such schemes, broadly speaking, involve a trust which holds shares in a company and the beneficiaries of the trust are employees of the company. Accordingly, although the employees do not hold the shares directly, they enjoy financial benefit as a result of the ESOP.

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THE EFFECT OF “MEANINGFUL ECONOMIC PARTICIPATION” Accounting February 2017

Transformation in the mining industry continues to be a key objective of mining legislation in the democratic era. Whilst Joseph Zwane, the Minister of Mineral Resources, has commended some companies for "fully embracing" the transformation objectives of the Amended Broad Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry, 2010, he has noted that limited progress has been made regarding creating BEE ownership with meaningful economic participation. The dramatic changes made to the BEE ownership requirements by the new draft Reviewed Broad Based Black-Economic Empowerment Charter for the South African Mining and Minerals Industry, 2016 appear to be one of the ways in which government seeks to address this issue.

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UNDERTAKING MINING PROJECTS IN AFRICA Mining Feature February 2017

Africa is a diverse and varied continent with a melting pot of people, cultures, languages and systems of law. While the continent's mineral endowment would hold high potential for growth in the mining sector and associated infrastructure, the last three years have seen a decline in commodity prices owing to local cost pressures, lack of demand and labour action - leaving mining companies with no choice but to restructure, refinance or dispose of marginal assets. Herein lies an opportunity for mid-tier miners seeking an opportunity to invest in the industry's new frontier to acquire appropriately priced assets under alternative pricing mechanisms. The prudent investor would, however, be guided by the following considerations:

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AFRICA RISING: SEIZING OPPORTUNITIES IN A CHALLENGING ENVIRONMENT Mining Feature February 2017

For decades, commodity prices have shaped Africa's economic growth. The continent is home to a third of the planet's mineral reserves, a tenth of its oil reserves and it produces two-thirds of the world's supply of diamonds. Like commodities, therefore, Africa's story has been, and is likely to remain, a story of fluctuating fortunes.

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KENYA’S NEW MINING ACT Mining Feature February 2017

Kenya's new Mining Act is the first major revision in mining law in the country since the 1940s. The new Act is largely considered to be a modern piece of legislation that is clear in terms of timelines and structures, but it still has a few challenges that need to be addressed.

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A DOUBLE WHAMMY FOR THE DEPARTMENT OF MINERAL RESOURCES Mining Feature February 2017

On 4 November 2016, the Labour Court handed down its judgement (unreported case number J2459/16) in the matter between AngloGold Ashanti Limited, the Acting Chief Inspector, the relevant Principal Inspector, and the Inspector that issued an instruction in terms of s54 of the Mine Health and Safety Act (29 of 1996) (MHSA) (the AngloGold Ashanti judgement), in favour of AngloGold Ashanti. In its judgement, the Labour Court was particularly critical of the manner in which the relevant representatives of the Department of Mineral Resources (DMR), through its Mine Health and Safety Inspectorate, applied and administered the MHSA and, in particular, the manner in which the so-called "stop notices" were issued under s54.

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OPENING THE SILICOSIS FLOODGATES? Mining Feature February 2017

In terms of South Africa's common law, general damages have always been personal in nature, meaning that general damages were awarded only in favour of the person who directly suffered the harm associated with the claim. The one exception to this rule is where a plaintiff dies whilst the claim is in progress, after close of pleadings were reached during the legal process. This allows the claim for general damages to pass to the deceased's estate.

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Tales from the US of A... - February 2017 International February 2017

Judge with Alzheimer's: Complaint or retirement?

The Chicago judge who allowed a law clerk to wear her robe and rule on traffic cases in what she called a "job shadowing" exercise is the subject of a complaint to the Illinois Courts Commission, because she has been diagnosed with Alzheimer's disease and is not fit to handle judicial duties. After the law clerk incident she was removed from the bench and took medical leave. Her attorney alleges that her condition should be handled by the judicial retirement system not as a complaint to the Commission. The judge, says the attorney, has an illness she did not cause and cannot control and should be dealt with by the retirement process. - Debra Cassens Weiss December 2

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The World in December/January - February 2017 International February 2017

Mick Jagger clearly still has what it takes. Jagger, now 73, and 29-year-old ballet dancer, Melanie Hamrick have become parents of a baby boy. This is his eighth child. He also has five grandchildren and one great-grandchild. His eight children are from five different mothers.

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No trade mark protection for Rubik’s Cube Intellectual Property February 2017

In the Court of Justice of the European Union; November 10, 2016, Case 30/15, Simba/EUIPO the CJEU further clarified how to apply the rule of European trade mark law which provides that trade marks that consist exclusively of a shape or other characteristic of a product necessary to obtain a technical result cannot be protected. The decision is interesting for South African trade mark law, since s10(5) of the Trade Marks Act contains an almost identical rule.

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Housing crisis no more? Constitutional Law & Local Government February 2017

Section 26 of Chapter 2 of the Constitution states that "everyone has the right to have access to adequate housing". The Gauteng Department of Housing is working on just that by implementing the new Siyasizana programme, which specifically targets this basic human right among other essential human rights.

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The appealability of interim orders The Law February 2017

In interim order is a temporary order of the court pending a final hearing. Generally interim orders are not appealable; this is based on the fact that orders of this nature are not final and "generally, it is not in the interest of justice for interlocutory [interim] relief to be subject to appeal as this would defeat the very purpose of that relief" (Mathale v Linda and Others 2016 (2) SA 461 (CC), and Machele and Others v Mailula and Others 2010 (2) SA 257 (CC)).

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