December 2008


From My Window - December 2008 From My Window December 2008

The Asset Forfeiture Unit arrived a few weeks ago at the homes of unsuspecting individuals. By the time the Unit had finished it had made off with something approaching R50m in assets and moneys held in banking accounts. All this happened a month ago but the charges still have not been laid. The argument concerned fundamental disagreements between those whose properties were seized and the Registrar of Medical Aids. It will probably take months if not years before the issues are resolved.

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Criticism of the judiciary The Law December 2008

In 1877, in one of our earliest law reports, Kotzé J. observed that everyone is undoubtedly at liberty to criticise the conduct of judges on the bench in a fair and legitimate manner but no scandalous or improper reflection of the administration of justice should be allowed. The bounds of fair and legitimate criticism must not be exceeded.

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Restraint of Trade Agreements The Law December 2008

A recent Cape Provincial Division decision handed down by Davis J should alert corporations to the fact that the landmark Constitutional Court decision of Barkhuizen v Napier (2007 (5) SA 323 (CC) "Barkhuizen") is already impacting on the manner in which consenting parties regulate their contractual relations.

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Privilege you can count on in the world of forensics The Law December 2008

In CCII Systems (Pty) Ltd v Fakie and Others NNO 2003 (2) SA 325 (T), the court ordered the Auditor- General to surrender arms deal investigation documents to an unsuccessful tender applicant. In this case, the Promotion of Access to Information Act (2 of 2000) facilitated the seizure of thousands of confidential documents. This result would not be reassuring to the institution that wishes to mitigate the risk of disclosure of private information.

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To PAJA or not to PAJA The Law December 2008

The interaction between the right to administrative action that is lawful, reasonable and procedurally fair under the Promotion of Administrative Justice Act 2000 (PAJA) (giving effect to s33(3) of the Constitution 1996) and under the Labour Relations Act 1995 or any other legislation that provides for internal measures to give effect to administrative justice, is a matter of great concern.

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Van Abo Muddies the Water on International Investment Arbitration The Law December 2008

The judgement handed down in July by the Transvaal High Court in Van Abo v. Government of the RSA and others ([2008] JOL 22219 T) criticises the South African government for its failure to ratify the International Centre for Settlement of International Disputes (ICSID) Convention.1

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Eleventh hour changes to the requirements for mining right conversions Mining Law December 2008

The Mineral and Petroleum Resources Development Act, 2002 (MPRDA) affords holders of old order mining rights an opportunity to convert their rights to so-called "new order rights"1 within a maximum period of five years from May 1 2004. This deadline expires on April 30 2009.

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When it’s right to say goodbye Company Law December 2008

It is common for people to incorporate a company for the purposes of conducting a joint venture for a specific purpose. Often the parties are equal shareholders in the company and also participate in the company's management.

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Disposing of a company’s undertaking or assets Company Law December 2008

This is the second in a four-part series

The directors of a company can not dispose of the whole or the greater part of the company or the whole or the greater part of the assets of the company unless they obtain the approval of the general meeting by way of a special resolution by the members. The general meeting's approval can be obtained prior to the entering into proposed transaction or by way of ratification after having entered into such transaction.

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Objecting to company names Company Law December 2008

In terms of current legislation, it is possible to object to a company name on the basis that it is calculated to cause damage or is undesirable (s45(2) of the Companies Act (61 of 1973). The proposed Companies Bill now offers different grounds on which an objection to a company name can be based. s11(2)(a) and (b) provide that the name of a company must, inter alia:

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Melodic theft Intellectual Property December 2008

The use or abrogation of another person's music in the music industry is, unfortunately, rather prevalent. There are many ways in which a person's creativity in a song can be used by another person and many terms have been created in the industry for such usage. One of the more recent euphemistic terms is “music sampling" – the jargon used in the musical industry tends, on occasion, to minimise the pernicious activities.

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The Crocodile vs. the Lizard Intellectual Property December 2008

Though any herpetologist would probably revolve in his grave if it was suggested that there is likely to be confusion between a logo depicting a crocodile and one depicting a lizard, that is exactly what the Transvaal High Court recently decided in the matter of Lacoste S.A. vs. Long Chang Trading CC.

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Satan conquers (temporarily?) Platteland Perspective December 2008

a corner of paradise

SIN and corruption have entered the Garden of Eden (aka my village). Satan, with all his empty promises, has found his way here, and is now seeking to corrupt this remaining corner of paradise.

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The price of political correctness Not The Law Reports December 2008

GODFREY V GALAXY GAZETTE

Foss-Harbottle J: The plaintiff, Mr Godfrey, sues Galaxy Gazette newspaper for defamation. Godfrey was depicted in a cartoon standing open-mouthed alongside a political opponent with whom he is sharing a sheet of paper and the caption reads “Singing from the same hymn sheet." Godfrey does not complain about the political innuendo. He complains that he is a militant atheist and the cartoon suggests that he is a believer which, in his view, is a serious defamation.

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New dividend tax regime – and more paperwork Tax December 2008

The Revenue Laws Amendment Act, 2008 has now been passed by parliament. As has been well publicised, the secondary tax on companies (STC), a tax borne by the company when a dividend is declared, is to be terminated, and replaced with a dividend withholding tax at the rate of 10% (but subject to reduction in terms of any relevant double tax agreement with another country).

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