April 2012


From My Window - April 2012 From My Window April 2012

The news that the government doesn't want to review the Constitutional Court – it wants to review its powers (The Star) is a curious contradiction in the space of single sentence. It's the kind of gobbledegook that has come to characterise many aspects of the current administration. And now this "review" is to be extended to the Supreme Court of Appeal because – or so it has been surmised – President Jacob Zuma can't get his head around why it is that judges disagree with one another. Disagreement is, in fact, so fundamental to the legal process that it is impossible to contemplate any soundly functioning judicial system that is not disputatious – unless, of course, a Soviet- type court is what is required in which the judges are no better than chorus girls. Of course judges are going to disagree. And they will say why, and will write down for our benefit precisely why.

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Editor's Note- April 2012 Editor's Note April 2012

This is the 10th year in which without prejudice has carried its annual Top Students at the Top Universities feature. In 2003 without prejudice was at the start of its second full year in the market place and there were 16 top final year LLB students from the five universities featured in the inaugural survey – UCT, Natal, Port Elizabeth, Pretoria and Rhodes. That year neither RAU (as the University of Johannesburg then was) nor Wits had finalised their top students of 2002. When it came to 2004 the students of all seven of the universities were included. 2007 saw the entry of Stellenbosch University and the University of the Free State contributed from 2010. without prejudice will attempt to contact those 16 graduates and it will be interesting to see how many of them have stayed in the law and where they are now practising. This will appear in the May issue of the publication along with our, Where are they now? feature that keeps up with the Top Students five years back.

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Construction Bonds: the bedevilment of loose language Contract Law April 2012

A 2011 Supreme Court of Appeal (SCA) judgement indicates that courts will find an on-demand bond exists only where it is clear (on a proper interpretation of the document as a whole) that the parties intended the liability of the guarantor to exist separately from the liability of the contractor. The loose use of the words "on demand" or giving the document that title does not necessarily mean that a bond is, in fact, one which can be called upon, in its entirety, literally "on demand."

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Now the court expects private business to be the watchdog Property - Contract Law April 2012

The Supreme Court of Appeal delivered a judgement on December 1 2011 dealing with the implications of a lease agreement concluded by the head of a department in contravention of the prescribed tender procedures. The facts in the case of TEB Properties CC v the MEC for Department of Health and Social Development, North West were, briefly:

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Dealing with repeat offenders Competition Law April 2012

This article discusses how repeat offenders are treated under European competition law, and looks at how South African law may deal with recidivists.

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A powerful dilemma – the constitution and competition law Competition Law April 2012

The advent of the South African constitutional era brought with it a vigorous inquiry into the relationship between the exercise of power and the procedural framework by which power is constrained.

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Misreading best international practice Competition Law April 2012

The Competition Commission recently found a dual distribution restraint amounted to a market allocation agreement between competitors, which is outright unlawful under the Competition Act (89 of 1998).

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Prescribed officers & the Companies Act Company Law April 2012

handsThe Companies Act (71 of 2008) defines 'prescribed officer' as a person who (s1, s66(10) and Reg 38(1)): • exercises general executive control over and management of the whole, or a significant portion, of the business and activities of the company; or • regularly participates to a material degree in the exercise of general executive control over and management of the whole, or a significant portion, of the business and activities of the company.

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Greater clarity on tax incentives for R&D Intellectual Property April 2012

The second proposed amendments (introduced during October 2011) seem to provide more clarity on most of the provisions that govern the research and development (R&D) tax incentive compared with the first proposed amendments (introduced during June 2011).

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To join or not to join, that is the question Company Law April 2012

handsBoruchowitz J, sitting in the South Gauteng High Court in the unreported case of Erich Brack and another v Front Runner Racks 2000 (Pty) Ltd and three others, was required to consider whether one winding-up application can be brought against multiple respondents. He confirmed the position that applicants for liquidations should tread carefully on the joinder front.

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Changing the face of cyberspace Intellectual Property April 2012

handsThe term “cyber-squatting", which means registering or using a domain name in bad faith with the intent to profit from the goodwill in another's trade mark, has gained significant exposure in the last decade with the exponential growth of the Internet and the concomitant increase in user traffic. Fortunately, the Uniform Domain-Name Dispute-Resolution Policy (UDRP) provides a quick, efficient and reasonably cost-effective mechanism with which to combat cyber-squatting in certain name spaces…

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Sharing information about taxpayers Tax April 2012

handsThe first agreement for the exchange of information relating to tax matters concluded by South Africa with San Marino took effect on January 28 this year.

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The saga of exempt dividends Tax April 2012

S8E of the Income Tax Act introduced anti-avoidance provisions relating to, inter alia, preference share financing arrangements. This section operates to deem dividends received by or accrued to the holder as interest in the hands of the holder. The application of s8E results in the shareholder being subject to tax on the interest. The distribution is, however, still treated as a dividend for the issuer.

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Shall we comply with the law? Management April 2012

The Compliance team is often seen as the poor relation to the in-house legal team in a business. I suspect this is all about to change.

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Credit Provider’s rights under the NCA Dispute Resolution April 2012

The judgement in Collett v FirstRand Bank Ltd 2011 (4) SA 508 (SCA) provides much insight and finality into the past conflicting judgements concerning the termination of debt review by a credit provider provided for under s86(10) and (11) of the National Credit Act (34 of 2005) (NCA).

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