August 2008


From My Window - August 2008 From My Window August 2008

As this issue of without prejudice goes to print there is still no movement on the vexatious matter of the Constitutional Court's complaint against Cape Judge President John Hlophe. The Judicial Services Commission (JSC), which is charged, among other things, with safeguarding the reputation of the judiciary, appears mired in colossal indecision. Should the hearings be open to the public? Yes, indeed, say many practitioners and members of the public. No, says Hlophe. Besides which, Hlophe has now asked a High Court to rule that the Constitutional Court's actions against him are illegal anyway. There is more than a sniff of politicking in all this. The Constitutional Court's charge against Hlophe is, at bottom, that he attempted to persuade two of its members to view sympathetically applications which ANC president Jacob Zuma has brought before it. The Zuma camp vigorously denies any involvement – though his lawyer has written to the Chief Justice saying that his client (Zuma) views the row with concern because of how it may impact on his pleadings.

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Complex monopolies – yet more uncertainty Competition Law August 2008

Competition law practitioners were hoping that the proposed amendments to the Competition Act, 1998 would address some of the deficiencies in the current legislation. These include the narrowness of the grounds on which to seek an exemption from the Act – and would clarify some of the provisions (like the prohibition on horizontal restrictive practices, which may outlaw even efficiency-enhancing joint ventures), which have proven difficult to apply since its enactment in 1998,. The Bill does not address these aspects. Instead, it introduces new areas of uncertainty.

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Telkom versus the Competition Commission Competition Law August 2008

During 2004, the Competition Commission investigated a complaint by the South African Vans Association (SAVA) that Telkom was engaged in an abuse of its dominant position in the broader electronic communications industry. This investigation culminated in a referral of the complaint by the Commission to the Competition Tribunal for adjudication.

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Primedia: the paradox of merger analysis Competition Law August 2008

For a transaction to require notification to the Competition Commission two elements must be satisfied. First, the proposed transaction must fall within the definition of a "merger" as defined in s12 of the Competition Act (89 of 1998, as amended). Second, the relevant financial thresholds, as prescribed by Government Notice No. 254 of 2001, must be met.

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Consistency in penalties for failure to notify Competition Law August 2008

Recently, the Competition Tribunal refused to confirm a settlement agreement entered into between the Competition Commission, Netcare and Community Hospital Group (CHG) for, inter alia, the failure by Netcare and CHG to obtain the approval of the competition authorities prior to implementation of a merger between them. This has given rise to some debate as to whether or not the approach adopted by the competition authorities in relation to pre-implementation of mergers has been consistent.

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Only bona fide parties should step up to the plate Competition Law August 2008

When the Competition Commission refers a complaint to the Competition Tribunal, it will often cite the person who initiated the complaint to be a party to the hearing. s53(1)(a) of the Competition Act sets out the circumstances in which persons who are not cited as parties in the Commission's referral can apply to intervene in the Tribunal hearing. Similarly, s53(1)(c) establishes when an interested person who is not a party to a merger may apply to intervene in merger hearings.

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Legislative drafters – architects of interpretational graveyards The Law August 2008

Incorporating the provisions of one statute (referenced statute) into another (incorporating statute) is a common and generally accepted practice. However, the legislative drafters often do not sufficiently apply their minds when employing this construction.

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Try this for an overdose of greed The Law August 2008

June was a bad month for both law and psychiatry in the UK. Raj Persaud, probably the best known psychiatrist in the country because of his intensive media exposure, was struck off the medical register after being found to have committed plagiarism.

mewart-smith

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Let’s hope Dingaan Nyathi did not die in vain The Law August 2008

At the risk of adding superfluous verbiage to the columns of without prejudice on the famous Nyathi case in which the Constitutional Court struck down as unconstitutional s3 of the State Liability Act of 1957, as amended in 1993, here is a contribution to the debate aimed at ensuring that the late Dingaan Nyathi did not die in vain.

phoffman

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The SADC Tribunal’s effectiveness is anyone’s guess The Law August 2008

Most are familiar with the Southern African Development Community (SADC) of which South Africa is a member. Probably a lesser known fact is that one of the institutions established by SADC is the SADC Tribunal, a function of which is to adjudicate certain disputes referred to it.

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Touting is a dirty word The Law August 2008

Various recent cases involving prominent firms specialising in property-related matters, brought to the fore the much debated issue of touting. Some regard the strict Rules of the Law Society on this subject as archaic, while others consider these Rules a necessity to ensure the dignity of the profession and to promote the interest of the public in their dealings with attorneys.

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Codifying directors’ duties – a major step forward Company Law August 2008

Most directors will welcome the recently published provisions of the Companies Bill1 relating to directors' duties. These provisions can be described as a major step forward in codifying directors' duties in South African company law and the scope of directors' duties will hopefully be simplified, clarified and become more accessible.

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A new dawn for fixed term contracts? Company Law August 2008

The Consumer Protection Bill, now in its third draft and before parliament, is likely to leave South African attorneys with more questions than answers. Comments on the third draft closed on June 2 2008 and the Bill has been accepted by state legal advisers. It is widely anticipated, barring minor changes, that the Bill will be adopted in its current form.

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Another form of censorship? Advertising August 2008

In the recent matter of Peach Mobile/SB Sithole & Another (July 4 2008) the Advertising Standards Authority (ASA) Directorate was faced with the type of decision that gives decision-makers grey hair, and challenges the potential for political bias.

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