April 2011


Editor's Note - April 2011 Editor's Note April 2011

There is a common expression that for many years has been used to describe the lives of South Africans who have experienced much change since 1994 – "we live in interesting times." For all of us who live here that understated sentence speaks volumes. For those involved with the law and its many changes it is equally charged when applied to legislative changes. The long awaited new Companies Act has been delayed, again. DTI spokesman said "... the Presidency must be allowed to apply its mind sufficiently in processing the Companies Amendment Bill before signing it into law." This seems distinctly at odds with the deputy directorgeneral's statement that the only outstanding matter was President Zuma's signature and his decision as to when the bill would take effect. For a Bill intended to transform positively business in the country, the ongoing delays have created not only indecision but also huge costs where transactions based on the new Act will now have to be stopped. Of course, for those companies that have been dragging their heels, this is a last opportunity to stop putting off until tomorrow preparations that should be in place today.

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Getting ready Company Law April 2011

The new Companies Act (71 of 2008 (New Companies Act)), which will replace the existing Companies Act (61 of 1973 (Existing Companies Act)), is due to take effect on April 1 2011 (Effective Date). This article seeks to identify certain issues which should be of material importance to companies in the lead up to, and following, the implementation of the New Companies Act and the practical steps which companies should be taking at this time to ensure a smooth transition from the old to the new statutory regime.

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Piercing the corporate veil Company Law April 2011

One of the fundamental pillars and points of departure in our company law is that a company is a separate legal entity: neither the directors nor shareholders of the company are liable for its debts or obligations. But of course there are exceptions, and it is trite that a court may, in special circumstances, “pierce the corporate veil" and hold the company's shareholders and/or directors liable for the debts of the company.

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Information as a commercial asset Company Law April 2011

Information records, as evidence of the business's activities, are the most important information assets (King Report on Governance for South Africa, 2009 (King III), principle 5.6, paragraph 36). Information, as an asset of the business, and its management has become increasingly important.

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Getting hold of company records Company Law April 2011

The controversial Companies Amendment Bill (the Bill) was finally passed in the National Assembly on March 15 2010). It has been forwarded to the National Council of Provinces for further consideration but is widely expected to be passed in its current form in time for the much anticipated implementation date of the Companies Act 2008 (the Act) on April 1 2011. Despite the various criticisms launched against the Bill, one of its positive aspects is the regime adopted with regard to access to company records.

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Implications of the UK Bribery Act for SA businesses Company Law April 2011

The Bribery Act 2010 is the United Kingdom's landmark anti-corruption legislation. It aims to combat bribery both in the UK and overseas. After a short delay, the Act is likely to be enacted in the summer of 2011.

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The world gets tougher for the Competition authorities Competition Law April 2011

The Competition Appeal Court (CAC) recently ruled on the case of Netstar, Matrix and Tracker/ Competition Commission and Tracetec . The case may provide assistance to firms that are respondents to complaints before the Competition Tribunal, and clarified a number of previously untested areas of South African competition law.

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Promotional competitions – let the promoter beware Consumer Law April 2011

The Consumer Protection Act (68 of 2008 (CPA)), comes into force on April 1 2011 and will have far-reaching implications for the promoters of promotional competitions, especially those conducted using SMS or MMS technology.

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Caveat Vendor: consumer refunds under the CPA Consumer Law April 2011

One of the many ways that the Consumer Protection Act (CPA) is likely to impact significantly a suppliers' business is the increased circumstances under which a consumer will be entitled to a refund.

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Compliant goods: been there, done that? Consumer Law April 2011

Do you remember those claims about hot coffee being spilt and burning a consumer or the burning and blister-inducing deodorant claims and the rash-causing body wash? Take heed, for the nature of such claims in our jurisdiction will be based on the provisions of the Consumer Protection Act No. 68 of 2008 (the CPA).

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Kees se Keuse Intellectual Property April 2011

I was intrigued to read a recent report in the Mail & Guardian, describing how a troop of baboons had discovered a new citrus variety in the Western Cape:

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Ask Volkswagen Intellectual Property April 2011

Mergers and Acquisitions continue to surge, but a surprising number of transactions are concluded without any investigation into the target company's intellectual property (IP).

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The liability of Internet marketplace owners Intellectual Property April 2011

Surely you've considered buying one? Millions already have. The latest buzz-words in lifestyle and sporting enhancement are “Power Balance." If you have not improved your balance, strength and flexibility by wearing the latest fad, you must at least have considered doing so. The Power Balance bracelet is reported to have been one of Amazon's 'Top 5 Best Sellers' and its manufacturers claim that they are the “clear leader in the market for performance technology accessories"1.

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Just for snobs Not The Law Reports April 2011

Foss-Harbottle J: The plaintiff is a school student. I refuse to use the politically correct word “learner" as that implies an activity by students which is generally not common. The defendant is his English teacher. The plaintiff failed his English exam, failed the year and sues his teacher for the costs of an additional year's schooling.

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The Mining Charter Mining Law April 2011

In a country like South Africa where investment in infrastructure and communal amenities so often bring immediate, direct and significant improvement to the day-to-day quality of living of ordinary people, there can be little resistance to the need to legislate social change.

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