March 2017


Editor's Note - March 2017 Editor's Note March 2017

March is the without prejudice edition in which we traditionally carry the annual rankings of the legal advisers in M&A and general corporate finance for the previous year. We are delighted with the synergy that exists between the legal award sponsor, JUTA, and sister publication DealMakers under whose banner the DealMakers Gala Awards takes place.

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International arbitration in Africa: the bigger picture Arbitration March 2017

2017 heralds the start of a new chapter for international arbitration in South Africa. After lengthy delays, we now look forward to a new International

Arbitration Act which will apply the United Nations Commission on International Trade Law (UNCITRAL) Model Law to international commercial arbitration. This is a welcome development which will lend considerable support to the increasingly confident position taken in the world of international arbitration, not only by South Africa but on the African continent as a whole.

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New Year's resolutions for employers Employment Law March 2017

After the festive season break, gyms and health clubs overflow with bodies keen on making good on New Year's resolutions pledged over a glass of bubbly. Employees file back into the workplace again, hopefully buoyed-up and brimming with enthusiasm to tackle the challenges that come with earning a living.

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To set-off or not to set-off? Banking Law March 2017

Set-off allows the termination of obligations without an exchange of performance. Where parties are indebted to one another, set-off operates automatically under the common law when the requirements for set-off are satisfied. Under sections 90 and 124 of the National Credit Act (NCA), the process is not automatic and is more cumbersome and onerous on the credit provider.

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Agree to disagree Intellectual Property March 2017

The law is not static and it evolves as new decisions are handed down or new legislation comes into force. In a recent article, "The Alps in Mzansi" (without prejudice July 2016 p17), the format for claiming the second medical use of known compounds was explored. It was concluded that claims drafted in the "for use type" format, which are directed toward a second medical use that is "A substance X for use in a method of treatment of Y", are not allowable in South African law. It was further concluded that the second medical use of a known compound should only be claimed in the Swiss-type claim format, viz: "The use of substance X in the manufacture of a medicament for treating Y".

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Intellectual Property Law updates Intellectual Property March 2017

The Mauritian authorities have published a draft new IP law, the Industrial Property Bill 2016. Mauritius has followed the example of other African countries by seeking to consolidate all its IP in one statute. This is a welcome development as it makes IP law more accessible.

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The importance of carefully drafted security documents Company Law March 2017

Ever since the Companies Act, 2008 came into force, the courts have been inundated with cases pertaining to the interplay between the moratorium established by business rescue, the creditors' claims and the effect of the business rescue plan. In New Port Finance Co (Pty) Ltd and Another v Nedbank Ltd 2016 (5) SA 503 (SCA), the Supreme Court of Appeal (SCA) had to decide whether or not the terms of a business rescue plan which altered the obligations of the principal debtors had the effect of, as a matter of law, altering the obligations of sureties which were jointly and severally liable for the same obligations.

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Public Offerings of Company Securities Company Law March 2017

A practical analysis of the obligations and rights set out in Chapter 4 of the Companies Act No. 71 of 2008.

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A matter of consumption Platteland Perspective March 2017

Think "alcohol and the law" and you might imagine a case about drunk driving. But this time it's not so. Bra Jakkals has listened in amazement to a judgement in which alcohol led to a disputed dismissal and the case, he says, has led him to view the local Free State farmers with new eyes.

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Will Gerrie Nel pursue the prosecution of environmental crimes? The Law March 2017

After 36 years of service as a state prosecutor for the National Prosecuting Authority, Advocate Gerrie Nel, aka the "Bulldog" and "Pitbull", who is best known for his prosecutions of the likes of Oscar Pistorius and Jackie Selebie, resigned.

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Deal Makers - Introduction Deal Makers March 2017

M&A continues to excite people from all walks of life – those who are involved and know, or should know, what they are doing and those who have a relationship with a company involved and consequently often have a very definite view on the proceedings.

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THE BEST OF THE BEST Deal Makers March 2017

This year's M&A legal advisers of the year and winners of the JUTA awards were Webber Wentzel by deal value with R195,44 billion under their belt and Cliffe Dekker Hofmeyr by deal flow with 77 deals.

Webber Wentzel's closest rivals were Cliffe Dekker Hofmeyr in second place with deals to the tune of R149,30 billion, ENSafrica was in third position with deals valued at R70,07 billion and fourth positioned Bowmans whose deals amounted to R64,14 billion.

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TRENDS ON RISK ALLOCATION IN BUSINESS ACQUISITIONS M&A March 2017

What are the main risks to an M&A transaction? And which party should bear those risks? These are the kinds of questions that occupy M&A participants and advisers. This article provides a basic overview of some of the more generic risks in private share or business sales, and the current trends A&O has seen in the past 12 months in relation to four of the legal tools used to allocate and manage those risks.

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CAUTIOUS OPTIMISM AS SOUTH AFRICA STEPS ONTO THE GLOBAL PLATFORM M&A March 2017

In terms of deal volume for M&A activity, 2015 was a record year, with 211 deals finalised in South Africa. 2016 has shown a weaker performance as a result of issues such as regulatory and political uncertainty, a volatile exchange rate, depressed commodity prices, power and water supply issues and labour unrest. In an economy that is reliant on foreign inward investment, these factors have deterred potential investors.

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