September 2012


From My Window - September 2012 From My Window September 2012

When people are killed because of trade union rivalry it's tragic and unnecessary. When the same incident is used by international television stations to show the families of those killed living in shanty towns and linking this accommodation to that provided by mining companies, it becomes unforgivable. What was worse was that the station did absolutely nothing to put the incident in context.

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Editor's Note - September 2012 Editor's Note September 2012

This month we revelled in the Olympics; held our collective breath as our athletes looked likely to be medal contenders and cheered as loudly as we would have done had we been there when they took the podium. Three gold medals, two silvers and a bronze – a fabulous tally and, given the lack of funding for our sporting talents, probably more than we should reasonably have anticipated.

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The Sprigg paradox Tax September 2012

Benjamin Franklin famously said: “Certainty? In this world nothing is certain but death and taxes." While both are inevitable, we suggest that SARS is a far more cunning adversary than the Grim Reaper, who calls but once to collect his dues and does not enlist the help of the judiciary.

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Retrospective application Tax September 2012

South African tax legislation is amended on an on-going basis. Amendment bills are tabled in parliament every year and eventually become law. Sometimes the changes are slight and of a technical nature, and sometimes they involve radical modifications to established principles. The tax system evolves accordingly. Among these many changes it is often found that some apply retrospectively.

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Under scrutiny Tax September 2012

Tax practitioners were recently placed on notice by the Minister of Finance, Pravin Gordhan, in his budget speech when he pointed out that the role of tax practitioners and other intermediaries will come under scrutiny. The South African Revenue Service (SARS) raised the issue of registration of tax practitioners for the first time in the Budget Review of 2002 and said the regulation of tax practitioners was required to "promote better compliance and ensure that taxpayers receive advice consistent with the tax legislation" and to ensure "appropriate sanctions in the event of non-compliance with tax legislation".

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Inducing unlawful conduct The Law September 2012

It is easy to overlook the remarks of the Supreme Court of Appeal regarding the law of inducing or abetting the commission of a delict which are hidden in the middle of the interesting patent judgement Cipla Medpro (Pty) Limited v Aventis Pharma SA [2012] ZASCA 108 (26 July 2012). The factual dispute related to a challenge by Aventis to the application of Cipla to register a patent for a generic equivalent of one of Aventis's drugs and Aventis's claim for an interdict. For those interested in intellectual property, the judgement is a worthwhile read regarding patent validity.

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The case for legality The Law September 2012

The convoluted and oddly restrictive definition of “administrative action" in section 1 of the Promotion of Administrative Justice Act (3 of 2000) (PAJA) continues to vex practitioners and the judiciary alike.

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Interim orders The Law September 2012

The label of a court order as an "interim order" has more than once led legal practitioners to believe that such an order is not appealable.

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Speaking plainly The Law September 2012

There was a little patch before the Consumer Protection Act came into effect where people got really worked up about the provisions of the Act including those relating to plain language. They hurtled about evaluating policies and translating things into plain language and generally having a fine old time. But now that it's here, we're all “ho, hum, that old thing" about it, and happily sign off complicated old contracts with a smile.

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Plain language The Law September 2012

On October 13 2012 the world will be celebrating the second annual International Plain Language Day. This day was, among others, brought about by a memorandum issued by President Bill Clinton in June 1998 in which he called for executive departments and agencies to use plain language in all government documents. A plain language initiative was immediately launched and a group called the Plain Language Action Network (PLAIN) was formed to provide plain language training to government agencies.

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A cautionary tale Company Law September 2012

Are you unknowingly a director or shareholder of a regulated private company? If so, what effect does this have on transactions involving the company's shares?

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Judicial valuation of shares Company Law September 2012

It is trite that one of the most important considerations to be taken into account when becoming a minority shareholder in a closely held private company is that if the relationship between shareholders happens to break down, or if there is dissatisfaction with management, an aggrieved shareholder is very often "locked in." The shares in question are not publicly traded and he cannot, in many instances, readily exit the company by selling his shares as there is no market for them.

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Independent positions Company Law September 2012

Company law dictates that individual directors have fiduciary duties to act in the best interest of the company, and a duty of care skill and diligence in the performance of their duties as directors. In addition to these duties, what role does the chairman and the chief executive officer fulfil? Is it possible for one person to fulfil these roles simultaneously?

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Creditors: It’s up to you Company Law September 2012

For better or worse, the Companies Act (71 of 2008) (Companies Act) has abolished the personal liability which members of a close corporation (CC) incur for the debts of the CC upon its deregistration.

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The meaning of 'service' Company Law September 2012

In the recent case of Mouritzen v Greystone Enterprises (Pty) Ltd & Another (2012) KZDHC 34, Judge Ndlovu was tasked with interpreting s165 of the Companies Act, ( 71 of 2008).

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