August 2016

Real security at risk Property Law August 2016

The purchase of immovable property is more often funded by a mortgage bond granted by financial institutions, than cash. The security of the financial institution is the property being purchased and a mortgage bond is registered over the property. If the purchaser defaults by not paying monthly instalments, the financial institution has the right of recourse to sell the property to recover the funds borrowed.

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Dosing regimen claims Intellectual Property August 2016

The development of new pharmaceutical compounds is time consuming, complex and requires a considerable amount of money. These difficulties arise not only from needing a large team with several areas of expertise to discover compounds that can treat diseases but also for testing the discovered compounds to ascertain levels of safety in humans or animals and manufacturing them on a mass scale. In addition to these issues, sometimes new compounds do not provide sufficient improvements in the treatment of diseases when compared with known compounds, and therefore do not find a market. A cheaper, less risky option for companies is to optimise the use of, or find new uses for, known compounds. One way in which companies are able to do this is to find new dosage regimens.

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Time to get in shape! Intellectual Property August 2016

Whilst it is difficult to obtain statutory trade mark protection for shape trade marks, it is not impossible. To determine whether a shape trade mark is registrable it is necessary to assess whether the proposed shape trade mark is inherently registrable; that is, is it distinctive or capable of distinguishing one's goods from those of third parties operating in a similar field of trade? The assessment also goes to the heart of what constitutes a trade mark, which is whether it functions as a badge of origin. A shape mark that was considered not to be sufficiently inherently distinctive to qualify for registration at the outset may acquire distinctiveness through use and, therefore, be capable of registration.

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National News - August 2016 National News August 2016

Bowman Gilfillan

Jane Andropoulos has been appointed a partner in the Commercial Litigation practice. She specialises in commercial litigation. Her experience lies in motion and trial work including business rescue, company law, contractual and property disputes, and administrative law challenges in respect of regulatory bodies. Andropoulos was invited by the Judge President to act as a judge, a role she has fulfilled twice at the South Gauteng High Court.

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JSERoundup... Deal Selection August 2016

JSE Listed M&A

Argent Industrial has expanded its manufacturing brand division through the acquisition of OSA from Ensor Holdings for £2,5m in cash. OSA is based in Cheshire and operates mainly in the UK.

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Ravishing Range Rover Lifestyle - Motoring August 2016

In my last article, I delved into the rationale behind the increased sales of SUVs and MPVs. Having spent much time dwelling on their sudden popularity, I thought a test drive was in order.

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aftertaste: Bot Rivier Spring Festival Lifestyle - Wine August 2016

Bot Rivier, one of the secret gems of the Overberg, will host its annual Spring Weekend from 2 to 4 September 2016. Most of the 11 wine farms in Bot Rivier are family-owned and run and each one of these farms will share something unique to their farm during this weekend – ranging from olive oil and deli offerings, fresh produce and wine, to a sausage making course at Luddite and some oysters and bubbly from Genevieve MCC.

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Truly wireless Lifestyle - Gadgets August 2016

The '90s really was an awkward decade for technology in many ways. We were so proud of our noisy modems dialling up to the internet – and when mobile phones just came to South Africa, you had to clip one next to your beeper on your belt to show the world how connected you were. The fact that mobile phones were the size of bricks did not deter anybody from getting one either. Towards the end of the decade, the bricks were out of fashion and the only way to maintain yuppie status was to buy a ridiculously small mobile phone. What would be iconic of the 2010s? No doubt, apps – but in 2016 we are already moving into the post-app space where apps are no longer a feature but are rather the expected nature of a phone. Save for the QWERTY keyboard and external aerial that disappeared over the years, we still connect a cable to charge our phones – it is awkwardly like the '90s, or '80s even.

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Introduction Business Rescue Feature August 2016

The International Monetary Fund (IMF) recently said the UK's decision to leave the European Union has "thrown a spanner in the works" of its global growth forecast. The IMF had already downgraded most countries in its forecast pre-Brexit; it is not expected to change its negative view of the outlook for the world economy.

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OPENING THE DOOR TO FURTHER ABUSE? Business Rescue Feature August 2016

In terms of s138 of the Companies Act (71 of 2008), a person may only be appointed as a business rescue practitioner of a company if, inter alia, such a person "is a member in good standing of a legal, accounting or business management profession accredited by the [Companies and Intellectual Property Commission]...". Not a particularly high standard. By way of example, and in keeping within our own frame of reference, a number of attorneys may fit the description of a "member in good standing of a legal... profession", but are they capable of running a business? Perhaps, perhaps not. A number of attorneys and accountants have never run a business, never mind rescued one. Theoretically, however, they are still eligible to be appointed as a business rescue practitioner. A bit frightening.

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ALTERING THE REQUIREMENTS OF S129 Business Rescue Feature August 2016

Memorandum of Incorporation

A company's Memorandum of Incorporation is the document which sets out the rights and duties of the shareholders and directors of a company and which regulates the internal workings of the company. Section 15(1) of the Companies Act, 2008 provides that a company's MOI must be consistent with the Act and is void to the extent that it is not.

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DIRECTOR LIABILITY Business Rescue Feature August 2016

It is a familiar scenario: a company falls into liquidation or business rescue and turns out to be hopelessly insolvent, without much recourse for creditors (at least fraudulent purpose, the Court may, on the application of the Master, the liquidator, the judicial the unsecured ones). The relative ease with which business rescue proceedings may be commenced – a board resolution and filing thereof under s129 of the Companies Act 71 of 2008 – has, judging from the steady flow of case-law since the commencement of the Companies Act in May 2011, made it a popular option for financially distressed companies.

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A LIQUID DECISION Business Rescue Feature August 2016

In the case of Dawid Jacques Richter v ABSA Bank Limited (20181/2014) [2015] ZASCA 100 (1 June 2015), the SCA determined whether it is competent to apply for business rescue in terms of s131(1) read with 131(6) of the Companies Act after a final liquidation order has been granted against a company.

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TO AGREE OR NOT TO AGREE Business Rescue Feature August 2016

Gribnitz and Appelbaum, in their book G&A Compass Methodology to Business Rescue and Compromise Offers (2015), argue that creditors have three fundamental rights when involved with business rescue:

  • the right to information;
  • the right to participate in business rescue proceedings; and
  • the right to make an offer in terms of s153 of the Companies Act (71 of 2008) as amended.

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A DODGE FOR DIRECTORS Business Rescue Feature August 2016

It has already been five years since the South African legislature introduced business rescue, a corporate restructuring procedure that, given the current economic climate, is a concept with which most corporates should now be familiar. Despite its progressive intentions and increasing popularity, business rescue is often abused, usually by directors and stakeholders who have in-depth knowledge of the affairs of the company, the causes and consequences of the financial demise of the company, and who are often the initiators of the process.

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