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.
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.
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)).
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)  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  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.
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.
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.
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.
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.
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.
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?
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.
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.
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.