October 2008


From My Window - October 2008 From My Window October 2008

As former UK Prime Minister Harold Wilson once famously observed, "A week is a long time in politics." And the week preceding the lay-out and completion of this issue of without prejudice was just such a week. On the domestic scene, the dramatic ruling of Judge Chris Nicholson in the Pietermaritzburg High Court to the effect that the National Prosecuting Authority had behaved illegally in bringing a second round of charges against ANC president Jacob Zuma, was capped only by the ANC's decision to fire state president Thabo Mbeki. Internationally, the selection by the ruling Israeli Kadima Party of Tzipi Livni as its new leader could mean the country will get its first female PM since the iconic Golda Meier in the mid 1970s (if Livni can put together a coalition). Pakistan's new president, Asif Ali Zadari, was said to have narrowly escaped death when Islamabad's Marriott Hotel was fire-bombed by a suicide zealot. And, though not overtly political, the astonishing near-collapse of the global financial system will almost certainly find a political response.

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Call me black Constitutional Law October 2008

“Call me Black" was the plea made by the South African Chinese Association in a recent, unprecedented High Court application against the Ministers of Labour, Trade and Industry and Constitutional Development.1

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The right to freedom of expression Constitutional Law October 2008

Zapiro unleashed a storm of controversy following the publication of his "rape of justice" cartoon in the Sunday Times recently. In what is now a famous (or infamous) depiction, the cartoon portrays Jacob Zuma, complete with shower-head unzipping his trousers while Julius Malema, the president of the ANC Youth League, SA Communist Party general secretary Blade Nzimande, ANC secretary-general Gwede Mantashe, and COSATU's president Zwelinzima Vavi hold Lady Justice – who's scales lie broken next to her. Zuma's four hench men are looking eagerly at him, while Mantashe states "go for it, boss!"

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Prescription as an unconscionable remedy Constitutional Law October 2008

The right to receive a disability grant within the context of socio-economic rights as entrenched in the Constitution is a palpable right of SA's constitutional democracy. Deliwe Muriel Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape CCT 37/07 [2008] ZACC 4 concerns “the right of grant receivers to lawful administrative action with the cancellation of [their] social grants", also taking into account the “consideration whether the State can rely on extinctive prescription of its obligation in order to avoid paying these grants".

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Medicines: What’s wrong now? Medical Law October 2008

Among other legislation to be amended and which is currently being debated by various Parliamentary Portfolio Committees, the National Council of Provinces and the General Assembly, in one form or another, is the Medicines & Related Substances Amendment Bill [B44B-2008] (the Medicines Bill).

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An unappealing milk shake Competition Law October 2008

In late June 2008, the Competition Tribunal dismissed Clover Industries' and Ladismith Cheese's application for a complaint referral to be withdrawn. Three preliminary points were raised for consideration at the complaint referral filed by the Competition Commission against seven dairy producers allegedly participating in illegal cartel behaviour. These related specifically to the referral of the complaint to the Tribunal, as well as the scope of the corporate leniency agreement which had previously been signed between Clover and the Commission.

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Stepping over some vital constitutional lines Competition Law October 2008

It has already been widely reported that, prominent among the several far-reaching proposed changes to the Competition Act, 1998 introduced in the Competition Amendment Bill 2008 was a provision which sought to introduce criminal liability for directors and managers of firms that had been engaged in per se prohibited cartel activities.

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Second-guessing the future in merger reviews Competition Law October 2008

When the South African competition authorities look at a merger transaction to decide whether it should be approved (with or without conditions) or prohibited, they have to determine, as a first test1, whether the transaction likely leads to a substantial prevention or lessening of competition.

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Polygamous Islamic marriages – equality for all Human Rights Law October 2008

The continuous struggle which spouses from polygamous Islamic marriages face when it comes to being recognised as valid spouses in terms of the South African law as it stands today is well known; an issue in stark contrast with our attitude towards polygamous Customary Marriages and the wide ambit of our Constitution.

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Whistle-blowers and corporate leniency Competition Law October 2008

Two recent developments will have an impact on the application of competition law in South Africa. First, the publication of a revised Corporate Leniency Policy (CLP) and second, the release of a draft Competition Amendment Bill. These publications will have an effect on both the way in which the CLP operates as well as its success.

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The Companies Bill in a nutshell Company Law October 2008

The new Companies Bill seeks to achieve five goals.

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Humpty-dumpty, all the kings men and the third party objector Competition Law October 2008

Merger notifications submitted in terms of the Competition Act (89 of 1998) must be considered by the Competition Commission within very limited time constraints and, where these time limits are not met, merger notifications are deemed to have been approved.

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More indulgent approach to directors’ duties Company Law October 2008

The Companies Bill (61 of 2008) tabled in Parliament in June this year comes as a relief to current and aspiring directors. The Bill's regulation of directors' duties of care and skill and the fiduciary duty to act in the best interests of the company can justly be described as a codification of the common law. It leaves the courts with sufficient flexibility and discretion to ensure fair results and achieves the aim stated in the Memorandum on the Objects of the Companies Bill, 2008 of clarifying directors' responsibilities and duties.

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