April 2018


Editor's Note - April 2018 Editor's Note April 2018

Getting the April issue of without prejudice "to bed" remains a challenge. The Easter weekend is a little like the Christmas break and deadlines seem to have less impact than in other months. I apologise for this issue arriving late but I hope you will enjoy reading the content and will also find it useful.

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Remarkably brief – Trademarks: All sold out Intellectual Property April 2018

There's an article in World Trademark Review entitled We're running out of good trademarks. It's based on a study that was conducted by academics from the New York University School of Law and published in the Harvard Law Review under the name Are we running out of trademarks? An empirical study of trademark depletion and congestion. The study confirms what all trademark lawyers know, that it's becomingly increasingly difficult to clear and register trademarks because there are simply too many of them about. There's nothing new in this – Richard Jenkins wrote about the problem more than 20 years ago.

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The doctrine of unanimous assent Company Law April 2018

At common law, the principle of unanimous assent allows shareholders to approve decisions without requiring a properly constituted meeting or without having to observe any other prescribed formalities. This principle thus permits informal methods of shareholder approval provided that all shareholders are fully aware of what action is being taken and have consented to it (Fourie, J.S.A, "Unanimous Assent and Special Resolutions" (96) South African Law Journal (1979)).

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Serious implications for the banking and credit industries Company Law April 2018

The tension between the principle of freedom of contract and the policy considerations of our strict, indeed rigorous, law of prescription is both manifest and palpable." (Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd (1040/2015) [2016] ZASCA 135 para 16.) It was this tension that the Constitutional Court (CC) adjudicated on in the decision of Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited [2017] ZACC 32. Specifically, the CC had to determine whether contracting parties could vary the date on which a debt became "due", thereby delaying the running of prescription in terms of the Prescription Act, 1969.

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Shareholder Actions Company Law April 2018

Shareholder Actions by Andrew Charman and Johan du Toit SC deals primarily with remedies of shareholders under English law. There are separate chapters with high-level overviews of shareholders' rights under Australian, Canadian and South African law. This second edition sets out the law as at 1 November 2017.

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South African Business Rescue Procedure Company Law April 2018

The idea of saving rather than liquidating troubled companies is not new in South African law. The concept of judicial management was introduced as far back as 1926 and was retained in the 1973 Companies Act. However, some 80 years later it had not brought about any significant salvation of companies and liquidation remained the almost-exclusive outcome. Useless as it was, judicial management was relegated to the trash-heap and replaced in the 2008 Companies Act with the more sophisticated and applied concept of business rescue.

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Minimum resale price maintenance: Risks for companies trading in South Africa Competition Law April 2018

A recent decision of the Competition Tribunal highlights that companies engaging in minimum resale price maintenance in South Africa remain at risk of penalties in terms of the Competition Act.

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The surge in coordinated effects theories of harm in competition assessments Competition Law April 2018

In recent years, a trend has emerged of the Competition Commission prohibiting a greater proportion of mergers. Of those prohibited, a large majority has been on the grounds that they increase the potential for collusion.

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Some predictability, some uncertainty Competition Law April 2018

On 17 February 2017, the South African Competition Commission published in the Government Gazette, "Draft Guidelines for the Determination of Administrative Penalties for Failure to Notify a Merger and Implementation of Mergers Contrary to the Competition Act". This was in response to the growing number of cases of failure to notify mergers, and implementation of mergers contrary to Chapter 3 of the Competition Act (89 of 1998) (as amended), and to the Competition Tribunal calling upon the Commission to formulate guidelines in this regard (for example The Competition Commission v BB Investment Company (Pty) Ltd, Case No: FTN200 Dec15). In terms of s79 of the Act, the Commission may prepare guidelines to indicate its policy approach to any matter within its jurisdiction.

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Emotional outbursts do not always make for an intolerable relationship Employment Law April 2018

Can a dismissed employee's disruptive conduct in arbitration proceedings as opposed to conduct in the workplace be used as a reason to deny the employee a reinstatement award?

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Identifying consulting parties Employment Law April 2018

Employers are often uncertain as to who they should consult with when embarking on a restructuring exercise in terms of s189 of the Labour Relations Act (66 of 1995), as amended (the LRA). Depending on various factors, the consultation process could last several months and identifying the correct party (or parties) with whom to consult is of paramount importance. Failure to do so may render the entire process unfair and require the employer to start again. In circumstances where an employer is contemplating retrenchments due to financial difficulties, having to restart the process can have dire consequences.

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Amendments on the cards for 2018 Employment Law April 2018

There are several amendments to our labour laws which, if passed unamended, will result in some much-needed development in the South African labour law landscape.

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Fines and the importance of timeous appeals Environmental Law April 2018

Before conducting certain environmentally-damaging activities, an environmental authorisation in terms of the National Environmental Management Act (107 of 1998) (NEMA) must be obtained. Section 24G, however, provides for somewhat of an exception: an ex post facto authorisation process when a listed activity was unlawfully conducted without the requisite approval, providing for an administrative fine of anywhere up to R5 million.

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A grey area in securities transfer tax Tax April 2018

Would there be a change in beneficial ownership, for securities transfer tax (STT) purposes, if a foreign company (MigratingCo) holding shares in a South African company (SACo) were to undergo a corporate migration or re-domiciliation from one jurisdiction to another? This is assuming that MigratingCo is formed afresh in the new jurisdiction, while it continues to operate in the same manner as before. In other words, it will have the same shareholders, management structure, employees and board members, and hold the same assets, all while continuing to operate under the same constitutional documents.

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Deceased estates – a taxing affair Financial Law April 2018

Tax and comedy are not often paired together. "Utopia" is perhaps an exception to this rule – it was the last film made by the well-known comedy duo, Laurel and Hardy.

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