June 2013


From My Window - June 2013 From My Window June 2013

The legal talking point in May was undoubtedly the way in which the National Prosecuting Authority's (NPA) disciplinary hearing against deputy director Glynnis Breytenbach played out. Breytenbach was suspended in April last year and it was the ostensible cause of that suspension, and what really lay behind it, which seized the public's interest. The first public alert came when newspapers in the Media24 stable (Naspers), Avusa (now Times Media) and MTN asked for the hearing to be opened to the public. Judge Ronel Tolmay in the North Gauteng High Court said it was of the utmost importance that the matter should be open to the media since he expected that important constitutional issues would be raised.

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Editor's Note - June 2013 Editor's Note June 2013

This issue carries the final Top Student feature of 2013. The Class of 2007 has gone in many different directions in a very short space of time; ambitious achievers, I look forward to catching up with them in five years' time. It is good to be able to pass on some positive news. The CIPC has been roundly criticised in previous issues of the magazine for indiscriminate de-registrations. It would appear that, as a result of an appeal by ABSA against Judge Henney's finding that, in terms of s82(4) of the Companies Act, CIPC has sole authority to restore a deregistered company (in other words the court has no power to do so in terms of s83(4)), things may be changing.

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It's now the Some Secrecy Bill Media Law June 2013

The parliamentary journey of the Bill is a long one. It suffices to summarise that on November 22 2011, in a day dubbed Black Tuesday by the media, the ruling party voted in favour of the Bill. Back then the Bill contained very little in the way of safeguards against its abuse and the public outcry was justifiable. Indeed this was the main reason for South Africa's fall this year in the Press Freedom Index to 52nd place from 42nd last year, in the Reporters without Borders survey.

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Using the appraisal remedy and finding fair value Company Law June 2013

The appraisal remedy, provided for in s164 of the Companies Act (71 of 2008), allows a shareholder to opt out of the company for a fair cash consideration if the company proceeds with certain corporate transactions with which the shareholder does not agree. However, some ambiguity and procedural uncertainties remain and need to be clarified for the appraisal remedy to be effective, not least of which is how a 'fair' value is to be determined.

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Where you stand in the Business Rescue queue Company Law June 2013

On May 1 2011, South Africa saw the introduction of the Companies Act 71 of 2008, as amended into law. Business rescue, set out in Chapter 6 , is one of the more novel features. Since inception, it has captivated the attention of business rescue practitioners, accountants, lawyers and academics and has been widely discussed and debated in numerous forums.

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A new kind of Director? Company Law June 2013

Many of the provisions of the Companies Act, 2008 that regulate directors also apply to “prescribed officers." In comparison with the Companies Act, 1973 (the Old Act) where the term “prescribed officer" was not used at all, the term is used in numerous sections of the Act.

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Board representation for minority shareholders Common Law June 2013

Board representation is a fundamental consideration for shareholders when they undertake business ventures, particularly joint ventures. Shareholders often wish to ensure that they are adequately represented on the boards of companies in which they have a substantial interest.

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Limiting access to internal documents Competition Law June 2013

As one of the public guardians of the South African economy, may the Competition Commission restrict a respondent's access to its internal documents? Would the restriction result in any unfairness to a respondent or would the disclosure have a chilling effect on the investigative function of the Commission? The Competition Tribunal recently addressed these and other questions in The Competition Commission v Telkom SA Ltd 73/CR/Oct09 [2013].

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Riding roughshod over anything that might get in the way Public Law June 2013

Development must be socially, environmentally and economically sustainable and sustainable development requires the consideration of all relevant factors – so says s2 of the National Environmental Management Act (107 of 1998) (NEMA).

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The Infrastructure Development Bill: Administration of the SIPs Public Law June 2013

The management and administration of the projects envisioned in the Infrastructure Development Bill is overseen by various committees at different levels of authority. The Bill brings together the three spheres of government and other stakeholders in various sub-committees to fast-track strategic infrastructure projects and to avoid the projects being delayed by red tape. It acts somewhat retrospectively to empower committees, which are already in existence and which are currently overseeing the 18 Strategic Integrated Projects (SIPs), which were set out in our previous article. This article will examine the composition and powers of these committees.

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Leaving a bitter taste Public Law June 2013

S217 (1) of the Constitution requires that, when organs of state contract for goods and services, they should do so in accordance with a system which is “fair, equitable, transparent, competitive and cost-effective."

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Beware the signature on Interim Payment Certificates Contract Law June 2013

In a building contract, the common law does not oblige the employer (the client) to perform his obligation until the contractor has completed the work in all respects. Consequently, it has become the custom in a JBCC (Joint Building Contracts Committee) contract that the contractor is paid at regular, monthly intervals an amount that represents the value of the work done since the previous payment. It is important to bear in mind that the right to these payments is contractual and that, in the absence of such a provision, the contractor has no common-law right to interim payments.

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For whom the road tolls Not The Law Reports June 2013

THE TOLL ROAD COMPANY V MIDLIFE MOTORCYCLE ASSOCIATE Foss-Harbottle J: The Midlife Motorcycle Association consists of hundreds of men who should be hiding their midriffs within the confines of a car but insist on resting them publicly on the fuel tank of their motorcycles. Most of those who gave evidence gave their ages as '40-something plus VAT.'

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Those infernal trenches Communications Law June 2013

In what circumstances and under what guidelines may an electronic communications network service licensee enter upon and construct lines across land and waterways? One of the most controversial provisions of the Electronic Communications Act (36 of 2005) (the ECA) is s22.

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Where do creditors go from here? Company Law June 2013

This article is essentially two parts of a whole with each part analysed in isolation. The initial analysis of ABSA Bank Limited v The Companies and Intellectual Property Commission of South Africa and Others; ABSA Bank Limited v Voigro Investments 19 CC [2013] JOL 30000 (WCC) was completed prior to the appeal judgement being handed down on April 19.

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