In the week this issue of without prejudice was being published, the National Assembly was about to debate for the last time the Protection of State Information Bill, otherwise known colloquially as “the secrecy bill," and editor Myrle Vanderstraeten has commented on the Bill at some length. It is a foregone conclusion that the African National Congress will use its majority to ram the Bill through, and all that will then remain will be for President Jacob Zuma to sign it and then promulgate it. If he is wise, however, he will ask the Constitutional Court to consider whether the Bill meets all the requisite constitutional requirements. Considerable concern exists in this country about any government that seeks to protect itself from examination and criticism.
2012 will go down as a year punctuated by change among the legal firms in South Africa, and abroad. Among others, Bowman Gilfillan opened two new offices – one in Uganda and one in Dar es Salaam. Adams & Adams announced the opening of offices in Tanzania (including Zanzibar), Burundi and an OAPI office in Cameroon. We saw the end of Dewey & LeBoeuf and the takeover of the Johannesburg office by Baker & McKenzie. Edward Nathan Sonnenbergs opened offices in Rwanda and Burundi and, in its most recent announcement, a takeover of Brink Cohen Le Roux in order to create “a one-stop-shop service to the mining sector." Cliffe Dekker Hofmeyr and Spoor & Fisher announced an agreement which would give clients a wide range of services; the CDH IP Practice joined Spoor & Fisher.
Reports on the recent influential speech by former Chief Justice, Arthur Chaskalson, have correctly focused on his criticisms of the proposed Legal Practice Bill for infringing the independence of the legal profession. But his scathing analysis of the Bill included warnings about other serious problems hiding in the draft as well as the threats to constitutional democracy contained in several other government Bills.
While the speech by Justice Arthur Chaskalson was warmly-applauded, he was addressing a deeply divided professional body. From off-the-record discussions during the Cape Law Society's AGM it became obvious that its three constituent sectors are adopting a variety of positions in relation to the Legal Practice Bill.
It has been debated whether the the Rome Statute of the International Criminal Court Act (27 of 2002), which outlaws crimes against humanity, genocide and war crimes and establishes the International Criminal Court in the Hague to prosecute these crimes, can be applied against corporations. In addition would a shareholder or director be able to avoid prosecution in South Africa for an International Criminal Court (ICC) crime by hiding behind a corporate structure?
S114 of the Companies Act, 2008 has thrown a spanner in the works in relation to schemes of arrangement for companies in liquidation. The opening proviso in that section effectively says a scheme of arrangement with shareholders and other securities holders cannot be proposed when a company is in liquidation or business rescue. Some fundamental re-thinking about how to obtain control over a company in liquidation is necessary.
In William Shakespeare's Henry V, King Henry rallies his troops to charge once more into the fight at the Battle of Harfleur with the battle cry "Once more unto the breach, dear friends, once more; Or close the wall up with our English dead".
Ss163(1) of the Companies Act, (71 of 2008) (the new Companies Act) enables a shareholder or a director1 of a company to rely on the oppression remedy on a number of grounds Broadly speaking, however, this is available in instances when a particular act or omission of the company or a related person within which he or she is a shareholder or a director has a result that is 'oppressive or unfairly prejudicial' to, or has had a result that 'unfairly disregards the interest' of, the shareholder or director; as the case may be.
Where a company is found to be using pirated software and/or fails a software compliance audit initiated by software vendors, there are likely to be certain important implications for the company and its directors under the Companies Act 2008.
There is an issue which seems to remain a point of litigation, despite the trite principles that surround it. The effect of a sale of a business, including its goodwill, was again the subject of a decision by the Supreme Court of Appeal in Gert Jakobus van der Watt and another vs Christiaan Jacobus Jonker and others (Case no. 837/2010) (the Van der Watt case).
The recent case of Ngwenda Gold (Pty) Ltd v Precious Prospect Trading 80 (Pty) Ltd 2012 JDR 0379 (GSJ), held that a court cannot grant an order for security for costs against a plaintiff solely on the basis that it is an impecunious or insolvent corporate entity.
Can a South African court adjudicate a dispute arising from an agreement which contains a foreign jurisdiction and arbitration clause or are these clauses decisive in ousting the jurisdiction of our courts? This issue was recently considered by the Supreme Court of Appeal (SCA) in Foize Africa (Pty) Ltd v Foize Beheer BV  ZASCA 123.
Napoleon said a man would fight harder for his interests than for his rights. Litigation, including arbitration is not far removed from warfare as illustrated by Napoleon's invasion of Russia 200 years ago. The general idea is to intimidate your adversary to accept terms and conditions that will protect your interests, with little or no concern for your adversary's interests. In litigation the terms and conditions are distilled in a settlement agreement and in warfare in a peace treaty. In litigation, a letter of demand is issued while in warfare an ultimatum is issued. Both are threats to intimidate and dictate the terms of surrender. Unsurprisingly lawyers sometimes talk about attending war rooms to prepare them for litigation.
Arbitration clauses need to take account of the legal system that will apply when the clause or award is enforced. The efficacy of an arbitration clause is tested when one of the parties approaches the court and denies that it is bound by the arbitration clause, or denies that the dispute falls within the scope of the arbitration agreement or should be determined by arbitration.