June 2012


From My Window - June 2012 From My Window June 2012

On at least two counts, May was a good month for South Africa. Not in order of importance, the first of the good news items was the considerable “victory" which the country scored in the award of the estimated €1,5bn (R15,8bn) Square Kilometre Array (SKA). South Africa was awarded 70% of the project with the balance parcelled out between Australia and New Zealand. Construction is scheduled to begin in 2016 with initial observations by 2019 and full operation by 2024. With the famous Jodrell Bank Observatory of Manchester University in the UK as its headquarters, the SKA Organisation comprises eight national institutions.

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Editor's Note - June 2012 Editor's Note June 2012

Reports of the numbers of postal workers striking vary from scores to thousands. The reason for the strike is a demand by casual workers, sourced from labour brokers, to be employed permanently. Currently the Post Office is, apparently, only prepared to hire people for 12 months. This, Mervin King of the Communications Workers Union said, is not good enough. “As far as we are concerned, the Post Office has money. If not they must go to government to ask for some." For government one should, of course, read – taxpayers.

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Cancer, asbestos and insurers at risk Insurance Law June 2012

The Supreme Court of the United Kingdom (UKSC) handed down judgement on March 28 in the matter of Durham v BAI (Run Off) Ltd (In Scheme of Arrangement) and other appeals1 in which all five justices were unanimous in their interpretation of the policy wordings.

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Less semantics and more common business sense Tax June 2012

It is striking how intensely legalistic the South African income tax system is in its key concepts, that is to say, how the system makes crucial tax issues turn on whether rights and obligations – in the strict and technical legal sense – have come into existence, and at what precise juncture this occurred.

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Access to justice by the poor: the role of the legal profession Probono June 2012

It is universally accepted that the rule of law is essential for a prosperous economy, the protection of rights, control of abuse of power and resolution of conflicts. The ability to access the justice system is imperative in giving content to these rights. In contrast to this, the non-adherence to the rule of law and the absence legal protection is often inextricably linked to poverty.

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The world after Walmart – will South African mergers ever be the same again? Competition Law June 2012

The Competition Commission is likely to take a much more interventionist stance to the public interest factors set out in s12A(3) of the Competition Act in the wake of the decisions by the Competition Tribunal and the Competition Appeal Court on the Walmart/Massmart merger.

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Unions get another weapon Labour Law June 2012

South Africa is one of the only countries in the world that has elected to entrench the right to strike as a fundamental constitutional right. The consequence of such an elevation is that the right can now only be limited in terms of a law of general application to the extent that it is reasonable and justifiable in an open and democratic society.

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Terms and conditions of en(dear)ment Labour Law June 2012

The recession and recent global financial turmoil has prompted many employers to consider ways of persuading staff to consider accepting changes to their employment terms and conditions. Proposals to reduce remuneration packages are not usually favourably received by employees who are generally unwilling to consent to any alterations to their conditions of service.

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Skeletons in the closet Labour Law June 2012

Employers often rely on an applicant for employment to provide accurate and true information in the interview and recruitment process. This includes details of past employment and the reasons for termination. These facts are important in order for a prospective employer to decide whether or not the applicant is suitable for the position.

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Ensuring access to justice Labour Law June 2012

The South African Society for Labour Law (SASLAW) has close to 1100 members with chapters in the Gauteng, Western Cape KwaZulu-Natal and the Eastern Cape (Port Elizabeth & East London). The Society's main activities include: the hosting of regular chapter seminars; the running of pro bono advice offices in the 4 Labour Courts; submitting comments on proposed legislative amendments; liaising with the Judge President of the LAC and Labour Court and the Director of the CCMA; undertaking specialist legal research; the publication of regular newsflashes; and hosting an annual labour law conference.

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A sober approach to business rescue Company Law June 2012

On April 18 2012, Deputy Judge President Traverso handed down a judgement in the matter of Gormley & Others re Anglo Irish Bank Corporation Limited (Anglo Irish Bank) v West City Precinct Properties Proprietary Limited (West City), the owners of a sectional title unit in the Mandela Rhodes Development. (19075/11, 15584/11) [2012] ZAWCHC 33 (April 18 2012).

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Company secretary due diligence Company Law June 2012

The Companies Act (71of 2008) requires public and state-owned companies to appoint a company secretary and lists the secretary's statutory duties (s88). The third King Report on Corporate Governance for South Africa (King III) also sets out the responsibilities of the company secretary as the gatekeeper of good governance and stresses that the board should be assisted by a competent, suitably qualified and experienced company secretary (Principle 2.21).

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Business rescue – sliding out just in time Company Law June 2012

To facilitate the rehabilitation of a company that is financially distressed, the new Companies Act (2008) has introduced business rescue provisions.

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A company’s principal place of business Company Law June 2012

In Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country Estate (Pty) Ltd & 3 Intervening Parties a liquidation application of Wedgewood Village Golf Country Estate was pending in the Western Cape High Court, while at the same time, an application was brought in the Port Elizabeth High Court to place Wedgewood under supervision for business rescue purposes in terms of the provisions of s131(6) of the Companies Act, 2008.

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But who will find her slipper? Intellectual Property June 2012

New legislation regarding intellectual property (IP) is quite rare, the most recent was the statutory recognition of traditional knowledge. However, in terms of the creation of case law, the Supreme Court of Appeal, in particular under the stewardship of Judge Louis Harms, has delivered a number of important judgements that have resulted in considerable discussion in the profession. It is interesting though to consider, apart from changes to substantive IP law, those which have taken place in the recent past in the wider IP landscape.

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