From My Window


David was editor of without prejudice from its inception in October 2001 until March 2011 when he relinquished the role. He also established DealMakers, sister publication to without prejudice and was publisher of both publications.

David started his working life with Anglo American in what was then Northern Rhodesia, now Zambia. Between 1982 and 1992 he was, variously, a mining analyst and stock broker, banker and coal mine director. He entered the world of media as a columnist in 1992. His widely read Torque column appeared in Business Day four days a week until his sudden death.

Without prejudice remains true to his vision of editorial independence and integrity.


    From My Window - August 2006

    Over the last few years a groundswell of discontent has built relating to the treatment by life assurers and others of the moneys handed to them for the purpose of building retirement benefits for savers.

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    From My Window - September 2006

    This, pronounced ANC heavyweight and former minister, Kadar Asmal, shows signs of sloppy thinking.

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    From My Window - October 2006

    It has long been recognised that the Companies Act, 1973, (as frequently amended) is in urgent need of a radical overhaul. It no longer accommodates the massive changes in the way companies do business, nor does it, in particular, cater for the impact of globalisation in its many guises.

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    From My Window - Nov 2006

    The last week of October hasn't been a good week. Evidence is accumulating at too rapid a pace of increasing lawlessness and an apparent inability – or lack of political will – to do much about it.

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    From My Window - Dec 2006

    It's a sad, funny, world. Most of us are acutely aware that the thread between life and death is so tenuous that it demands constant monitoring. But for some people, poverty is so dreadful that, short of topping themselves immediately, they are willing to contract a death warrant that will be concluded in a foreseeable and short future.

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    From My Window - May 2014

    I am not at all surprised that some South Africans have spoken out about the events in Libya and about the West's involvement there. The intervention by Nato has to be among the most cynical of geopolitical actions undertaken in the last 50 years. It may indeed be the case that Colonel Gadaffi's time as Libya's dictator was up. It is certainly noticeable that, North Korea aside, efforts by unelected despots in various North African and Middle Eastern countries to ensure their families enjoy rights to succession have conspicuously failed. The involvement of the United Nations and then Nato is another matter, however. A complaint advanced in this country has been that the roadmap constructed by the African Union (AU) was ignored. It probably was but the AU is hardly an institution that carries much weight in the rarefied circles of diplomatic power.

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    From My Window - April 2014

    This round of local government elections takes place on a Wednesday (May 18), a day that has now been declared a public holiday. In a country in which the very word productivity has long ceased to have much meaning, this can only be regarded as a cruel and unnecessary joke. Pope Zwelinzima Vavi and his federation of trades unions carry much of the responsibility for this. Centred as it is now in government, the last refuge worldwide of the union movement, the operating mantra of an institution established originally to protect the interests of genuine workers, has become, certainly in this country, 'more for less.' South Africa simply cannot afford it.

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    From My Window - February 2014

    When I last wrote this publisher's note former President Nelson Mandela was still alive. Quite properly we carry in this issue a modest appraisal of his role as a lawyer though that was, of necessity, both limited in scope and brief in time.

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    From My Window - December 2013

    I was startled to read in a notice from the Johannesburg Bar Council that Ross Sutton SC witnessed a man being stabbed to death outside the South Gauteng High Court on November 19. Coming upon a man being murdered isn't a commonplace event, even in violent, crime-ridden South Africa.

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    From My Window - November 2013

    I didn't think I would end up sharply critical of Finance Minister Pravin Gordhan – but I am most unhappy with his recent pronouncements, first about the media (read press) and, second, about lawyers serving the private sector.

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    From My Window - October 2013

    The matter of global warming and the allegedly anthropogenic roots of climate change are matters which have seized world attention in recent years. This issue carries an article on carbon tax (p38), a Treasury proposal directly associated with climate change and greenhouse gases. I have long expressed my concern that the intention to introduce a carbon tax is inappropriate for a developing economy. As I understand it, Treasury hopes to reap between R8bn and R30bn from this tax, at least in the early years, more later.

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    From My Window - September 2013

    Gathering discontent about the quality of graduates leaving universities with the LLB degree has multi- plied to such an extent that the summit of law deans to debate the problem was hardly unexpected. This is a matter of profound import because upon the excellence or otherwise of those who practise the law rests the entire insti- tution we call the justice system.

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    From my window - August 2013

    The lead article in this issue is by Anthea Jeffery, who leads special research at the Institute of Race Relations. It is important and scary and deserves to be read thoroughly and with care.

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    From My Window - July 2013

    Finance Minister Pravin Gordhan complained during the opening of the BDFM and Bloomberg TV station on June 19 that the media is far too pessimistic. “On the one hand we say that we want global investors to come to South Africa and on the other we say what a lousy country we are." And he added that it appeared to him that there is a perception that to be credible “you have to be anti-ANC."

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    From My Window - June 2013

    The legal talking point in May was undoubtedly the way in which the National Prosecuting Authority's (NPA) disciplinary hearing against deputy director Glynnis Breytenbach played out. Breytenbach was suspended in April last year and it was the ostensible cause of that suspension, and what really lay behind it, which seized the public's interest. The first public alert came when newspapers in the Media24 stable (Naspers), Avusa (now Times Media) and MTN asked for the hearing to be opened to the public. Judge Ronel Tolmay in the North Gauteng High Court said it was of the utmost importance that the matter should be open to the media since he expected that important constitutional issues would be raised.

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    From My Window - May 2013

    I was frankly astonished to discover the story about MISS – the Minimum Information Security Standards – because it means that, since 1996, we have been living, unbeknown to us, in an entirely secret state. I can barely bring myself to accept that this is a legacy from the years of the Mandela presidency until I remind myself that Thabo Mbeki was, in effect running the place. Though the buck undeniably stopped with Mandela, the managerial imprimatur of Mbeki acts as something of an excuse.

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    From My Window - April 2013

    I was really taken aback to read that President Jacob Zuma's view is that the citizenry, of which he is the most senior servant, is not entitled to engage publically in matters of military strategy. Expressing this during a speech he delivered at the National Memorial Service for 13 soldiers who were killed in the Central African Republic, he also accused those critical of the CAR mission of dishonouring the memory of the dead.

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    From My Window - March 2013

    The three sectors that provide the essential motor of the South African economy are manufacturing, mining and agriculture – and all three are in serious trouble. In every case the contributory hand of government can clearly be seen. The manufacturing sector has long been in recession. It has been battered by brutal international competition ever since South Africa rejoined the world community and dropped its protective tariff barriers. At the same time, it has been required to come to terms with a system of labour laws and regulation that have
earned widespread obloquy and
which invariably act to the detriment of employers. Mining is in deep trouble for a
wide variety of reasons. Many of the
country's famous gold mines are old
and nearing the end of their economic lives.

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    From My Window - February 2013

    Welcome back after your holidays, probably by now relegated to distant memory. I trust you enjoyed a good rest because you'll need it – 2013 promises to be a bruising year. It is beginning where it left off – with the disciplinary action brought by the National Prosecuting Authority against one of its few star turns – deputy director Glynnis Breytenbach with whom I am friendly. She has acquired a much deserved reputation for efficiency, determination and court management.

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    From My Window - December 2012

    In the week this issue of without prejudice was being published, the National Assembly was about to debate for the last time the Protection of State Information Bill, otherwise known colloquially as “the secrecy bill," and editor Myrle Vanderstraeten has commented on the Bill at some length. It is a foregone conclusion that the African National Congress will use its majority to ram the Bill through, and all that will then remain will be for President Jacob Zuma to sign it and then promulgate it. If he is wise, however, he will ask the Constitutional Court to consider whether the Bill meets all the requisite constitutional requirements. Considerable concern exists in this country about any government that seeks to protect itself from examination and criticism.

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    From My Window - November 2012

    Some years ago I complained bitterly that the Directorate of Special Operations (colloquially, the Scorpions) was being abused by the then National Director of Public Prosecutions, Bulelani Ngcuka, for party political purposes. Those in the ruling ANC who had felt the Directorate's heat, agreed. In time, the Directorate was disbanded.

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    From My Window - October 2012

    This is the place where I can sound off about things that concern me – or about which I am genuinely pleased (though that happens rarely). In any event, at my age, I'm allowed to be grumpy.

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    From My Window - September 2012

    When people are killed because of trade union rivalry it's tragic and unnecessary. When the same incident is used by international television stations to show the families of those killed living in shanty towns and linking this accommodation to that provided by mining companies, it becomes unforgivable. What was worse was that the station did absolutely nothing to put the incident in context.

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    From My Window - August 2012

    One swallow doesn't make a summer. What a pity, but at least it's enormously satisfying to be able to wallow gloriously in South Africa's warm winter sun while characters such as Shane Warne (famous as an enemy) are forced to eat very humble pie through the course of the first cricket test match between England and South Africa for some years. Warne avoided saying too much by resorting to the lazy man's messenger: the tweet. In former English wicketkeeper Alec Stewart's opinion, England's batsmen enjoyed a slight edge; Warne reckoned England would win two of the three match series.

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    From my window - July 2012

    Education has been a major thorn in the side of the democratic government since it took office in 1994. And it has made a comprehensive hash of things. It is one thing to recognise, as it has done, not once but repeatedly, that the education system has to be “fixed" and that education is the key to this country's ability in the long run to make its way in the world.

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    From My Window - June 2012

    On at least two counts, May was a good month for South Africa. Not in order of importance, the first of the good news items was the considerable “victory" which the country scored in the award of the estimated €1,5bn (R15,8bn) Square Kilometre Array (SKA). South Africa was awarded 70% of the project with the balance parcelled out between Australia and New Zealand. Construction is scheduled to begin in 2016 with initial observations by 2019 and full operation by 2024. With the famous Jodrell Bank Observatory of Manchester University in the UK as its headquarters, the SKA Organisation comprises eight national institutions.

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    From My Window - May 2012

    Justice Minister Jeff Radebe has certainly become a government attack dog of note. It wasn't that long ago that he played a singular role in stacking the Judicial Services Commission to such an extent that it has become, certainly in the opinion of noteworthy observers, a tame instrument of the state, ready to do whatever it is bid by Pretoria. Last month, during the course of interviews of candidates seeking to become the next Judge President of the North Gauteng Court, Radebe took the opportunity to take on South Gauteng Deputy Judge President Phineas Mojapelo. Radebe recalled that Mojapelo had been critical of the process applied when Judge Sandile Ngcobo was selected to be Chief Justice. Readers will recall that, at the time, Deputy Chief Justice Dikgang Moseneke was widely expected to replace retiring Chief Justice Pius Langa.

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    From My Window - April 2012

    The news that the government doesn't want to review the Constitutional Court – it wants to review its powers (The Star) is a curious contradiction in the space of single sentence. It's the kind of gobbledegook that has come to characterise many aspects of the current administration. And now this "review" is to be extended to the Supreme Court of Appeal because – or so it has been surmised – President Jacob Zuma can't get his head around why it is that judges disagree with one another. Disagreement is, in fact, so fundamental to the legal process that it is impossible to contemplate any soundly functioning judicial system that is not disputatious – unless, of course, a Soviet- type court is what is required in which the judges are no better than chorus girls. Of course judges are going to disagree. And they will say why, and will write down for our benefit precisely why.

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    From My Window - March 2012

    This issue of without prejudice is published to coincide with the DealMakers' Annual Banquet at which the rankings of service providers to the corporate finance industry for calendar 2011 are announced. The rankings occupy a significant place because they serve as a guide to companies seeking to engage in either Mergers& Acquisition or general corporate finance activity such as rights issues or new listings. In very large part the rankings are entirely objective; they are based on the arithmetic of the value of deals and their number. While they can – and often are – arguments about the imputed values of deals, nevertheless, it is possible to reach a modus vivendi in most cases. Where this proves impossible, reference is made to the president of the Johannesburg Stock Exchange, for the life so far of DealMakers Russell Loubser.

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    From My Window - February 2012

    The Boeing Business Jet used to transport President Jacob Zuma seems a perfectly satisfactory aircraft. A variant of the Boeing 737 range it can carry 25 passengers in luxury a distance of 11 000km, has a service ceiling of 41 000ft and a maximum speed of 890km/hour. "Luxury," by the way, includes a master bedroom, a washroom with showers, conference and dining area and a living area. Boeing 737 aircraft have been in service for many years and the airplane enjoys a solid safety record. I cannot think there is any reason to presume that the South African president would be at risk from mechanical or electrical failure when aboard. Why then was it necessary for the Presidential aircraft to be accompanied by two aircraft for part of the recent journey to New York and by one for the entire journey?

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    From My Window - December 2011

    As this issue, the last of 2011, was going off to the printer, Stats SA came out with a statement that we all take for granted. It was to the effect that corruption is fast becoming endemic to the country. Reading this in an official communiqué from a state institution brings home the gravity of the situation. At the same time, Transparency International says more than half of South Africans expect to have to pay civil servants to do the job for which the state already pays them.

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    From My Window - November 2011

    So Colonel Muamar Gadaffi, the eccentric and often way-ward leader of Libya, is dead, killed by members of a movement whose sole purpose was to overthrow him and his 42-year long regime. He was accused variously of being a dictator with a blood-thirsty appetite who killed his opponents without compassion, who sponsored worldwide terrorism and who carried a personal liability for the nearly 300 killed in the bombing of a Pan America jumbo jetliner over the Scottish town of Lockerbie in 1988. Ostensibly at least, those in rebellion against him stood for everything that was better – and then promptly fell into his category by executing him (and other members of his family) and dragging his body through the streets of the city of Misrata.

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    From My Window - October 2011

    This country's labour laws are inflexible and run against the best interests of workers and employers. Providing someone with permanent employment in South Africa is a matter that requires profound thought and not a little courage. Why? Because if circumstances require that individual to be dis- missed the process is overweight with regulation and costs. In August the International Monetary Fund said the South African labour market had failed the unemployed and was effectively "broken." According to the IMF the labour policies and legislation we have adopted has inhibited all those devoutly expressed desires by government to reduce our colossal unemployment; without labour reform, the economy would have to grow at between 6% and 7% every year if we are to meet the goal of creating five million new jobs in the next decade.

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    From My Window - September 2011

    I am not at all surprised that some South Africans have spoken out about the events in Libya and about the West's involvement there. The intervention by Nato has to be among the most cynical of geopolitical actions undertaken in the last 50 years. It may indeed be the case that Colonel Gadaffi's time as Libya's dictator was up. It is certainly noticeable that, North Korea aside, efforts by unelected despots in various North African and Middle Eastern countries to ensure their families enjoy rights to succession have conspicuously failed. The involvement of the United Nations and then Nato is another matter, however. A complaint advanced in this country has been that the roadmap constructed by the African Union (AU) was ignored. It probably was but the AU is hardly an institution that carries much weight in the rarefied circles of diplomatic power.

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    From My Window - August 2011

    My heart sinks when I survey the way in which government goes out of its way to shoot the country in both feet. The latest of many episodes that cause me to despair is the Wal-Mart-Massmart farrago which dragged on for months, far longer than was ever necessary – and is now continuing. First, it was the unions who protested. They made a good fist of it, seizing on Wal-Mart's admittedly poor media perception and the fact that, as with many really big companies, it is easy to make it look like the neighbourhood bully. Then it was the turn of the Competition Commission. One minute it approved the deal without reservation, the next it reversed itself and imposed terms and conditions. Now we have three government departments which have together lodged an action against the Competition Tribunal on the grounds, apparently, that they are dissatisfied with the manner in which the Tribunal conducted the hearings.

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    From My Window - July 2011

    I was talking the other day to a corporate lawyer whose speciality is in mergers and acquisitions. It's a good place to be if the deal flow is steady and if your firm is the recipient of much of this work. But it is absolutely not a good place if you happen to be wrestling with new and untried elements of the new Companies Act. In fact, or so he told me, there is no major sector of the new Act which will not require a slew of amendments in order to make it workable. Since he said this in the presence of a number of other corporate attorneys and none raised any exception, I have to conclude that we have been saddled – yet again, I might add – with a seriously flawed but critical piece of legislation. It is this Act which, after all, governs the manner in which the country's economy functions.

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    From My Window - June 2011

    It's been an intriguing period with so much happening that choosing what to write about is an exercise in itself. First off, though, and certainly high on my list, is the matter of the successor to Dominique Strauss-Kahn to head the International Monetary Fund. I am uncertain about Christine Lagarde, France's current Economics and Finance Minister – and I cannot think why a Frenchman should necessarily be followed a French woman. In addition, it shouldn't pass notice that Strauss-Kahn fell from grace over a personal foible or that, whatever the rights and wrongs of the matter, the French public prosecutor has recommended that Lagarde should be the subject of a full judicial inquiry into her role in the Bernard Tapie affair.

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