July 2013


From My Window - July 2013 From My Window July 2013

Finance Minister Pravin Gordhan complained during the opening of the BDFM and Bloomberg TV station on June 19 that the media is far too pessimistic. “On the one hand we say that we want global investors to come to South Africa and on the other we say what a lousy country we are." And he added that it appeared to him that there is a perception that to be credible “you have to be anti-ANC."

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Editor's Note - July 2013 Editor's Note July 2013

June 21 is the is the shortest day on the calendar and the month has, in general, provided much in the way of “dark" news; it has been bleak.

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The Supreme Court and FAISA Financial Law July 2013

The Supreme Court of Appeal (SCA), in its recent judgement in the matter of Tristar Investments (Pty) Ltd v The Chemical Industries National Provident Fund case number: (455/12)1, made a finding in relation to the definition of “intermediary service" as defined in the Financial Advisory and Intermediary Services Act (37 of 2002). This judgement is to be welcomed by the financial services industry in that it provides some clarity regarding what services constitute intermediary services and, accordingly, under what circumstances a financial services provider is required to apply for (or hold) a licence to offer intermediary services.

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How the Companies Act impacts on directors Company Law July 2013

Not only has the Companies Act (71 of 2008) changed our entire corporate landscape but it has also transformed the roles and duties of directors and the associated liability they may face.

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Yet another layer of bureaucracy Company Law July 2013

The Constitution (1996) provides that while "every citizen has the right to choose their trade, occupation or profession freely", "the practice of a trade, occupation or profession may be regulated by law" (emphasis added). This constitutional guarantee appears to acknowledge the necessity for regulation in respect of practising a certain "trade, occupation or profession", as opposed to business in general. That said, the Licensing of Businesses Bill (2013) attempts to regulate the practise of a "trade, occupation or profession", as contemplated in the Constitution

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An inappropriate business rescue mess Company Law July 2013

The introduction of a business rescue regime into South African law by virtue of Chapter 6 of the Companies Act (71 of 2008) (as amended), has created a number of questions regarding both its mechanics and legal effect.

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Whose votes count – and when? Company Law July 2013

While business rescue practitioners around the country come to grips with the provisions of Chapter 6 of the Companies Act (71 of 2008), various interpretations of the Act's provisions are being bandied about by the legal community. Some interpretational issues relate to the number of voting interests required in order to adopt a motion in terms of s152 (1)(d).

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Giving us an American headache Company Law July 2013

Two years into the Companies Act, 2008 it is difficult to gauge how popular or useful the new statutory merger and amalgamation provisions in s113 and s116 have been in practice. Essentially these provisions allow companies to "fuse" into each other, with their respective assets and liabilities automatically, and by operation of law, being transferred and assigned into a merged or amalgamated company.

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“In trust” or “in a trust”? Company Law July 2013

The Companies Act (71 of 2008) is, in many ways, conceptually innovative. s40(5), for example, permits a company to issue shares to a subscribing party before the company has received the subscription consideration, if the arrangements between the company, subscribing party and third party fit within the requirements of the section. Such an issue would have been void under s92 of the Companies Act 1973.

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Company reinstatements: conundrum and clarity Company Law July 2013

Since the advent of the Companies Act (71 of 2008), two related questions have confounded legal practitioners and this confusion has been compounded by conflicting high court decisions.

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The playing field has suddenly got a lot larger Competition Law July 2013

In recognising that competition contraventions impact heavily on consumers and businesses, there is an increased interest in class actions in competition matters both in South Africa and abroad. While the competition regulatory bodies are tasked with penalising the contraveners, the proceeds of administrative penalties imposed by the authorities do not reach those who suffered loss as effectively as would a direct damages claim.

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Benefits and conduct provide the keys Employment Law July 2013

For almost 25 years, since the promulgation of the Labour Relations Act, 1995, employers, employees, lawyers, trade unions and even the Labour Court itself have struggled with just what an unfair labour practice involving the provision of benefits means.

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The whistleblowers’ bible Employment Law July 2013

The Protected Disclosures Act (26 of 2000), was enacted for purposes of affording protection to the proverbial whistleblowers in the workplace.

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Empowerment v equal opportunity Affirmative Action July 2013

The ideals behind the enforcement of affirmative action in the workplace post-1994 are sound and understandable. There have, however, been many challenges to overcome to ensure that the empowerment of the previously disadvantaged does not defeat the Constitutional right to equality.

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When does satire amount to hate speech Constitutional Law July 2013

“Everything is permissible, but not everything is beneficial. Everything is permissible, but not everything is constructive'' (1 Corinthians 10:23).

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