May 2013


From My Window - May 2013 From My Window May 2013

I was frankly astonished to discover the story about MISS – the Minimum Information Security Standards – because it means that, since 1996, we have been living, unbeknown to us, in an entirely secret state. I can barely bring myself to accept that this is a legacy from the years of the Mandela presidency until I remind myself that Thabo Mbeki was, in effect running the place. Though the buck undeniably stopped with Mandela, the managerial imprimatur of Mbeki acts as something of an excuse.

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Editor's Note - May 2013 Editor's Note May 2013

In recognition of the interest in Africa and growing foreign investment in terms of project finance as well the resulting work for lawyers, without prejudice has introduced an Africa section. The enthusiasm with which this suggestion was taken up can be seen from the fact that we have 11 fascinating articles in the first 30 pages of this issue. The diversity of the continent and anticipated growth ensures wide ranging work for lawyers, and interesting articles for without prejudice. There is something slightly different about lawyers, or at least a large percentage of them...

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The African decade(s) – who will win? Africa May 2013

It is generally accepted, not only in economic or legal circles, that Africa will be an important investment destination and economic driver over the next decade or so. With the continent-wide African growth rate already at a high level and expected to accelerate in the years to come (some economists predict a 6% growth rate for this decade), it also fair to say that more and more countries in the developed world are looking towards Africa as playing a very important part in revitalising world economic activity.

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Private Equity in Africa: Risks and challenges of doing deals in Africa Africa May 2013

Over the past few years, there has been a grow- ing focus on Africa as international investors increasingly see the opportunities in resources- rich consumer-driven economies of the second largest continent in the world as well as seeing Africa as a diversification away from other emerging markets. Not surprisingly private equity investment in Africa is increasing and there is a growing acceptance of the asset class as a key element in the provision of growth capital for the development of the economies of the Continent.

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The new Competition Commission for Eastern and Southern Africa – high-priced over-regulation Africa May 2013

The COMESA competition regime has received significant attention globally since it commenced operations in January. While there are unchartered waters at this stage, there are 13 need-to-know points about the new regional competition regime in Africa.

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The Counterfeiters move in Africa May 2013

Africa is the new global growth centre and this has been confirmed by South Africa's acceptance as a BRICS member in 2010. There is a massive post-colonial infrastructure backlog coupled with a billion plus population that is young both of which present diverse economic opportunities waiting to be exploited. Counterfeiters have quickly moved in to exploit this market with cheap and dangerous fake products.

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Protecting the continent from environmental degradation Africa May 2013

Given that Africa is the poorest continent in the world, there is an inevitable conflict between preserving Africa's natural beauty and healthy environment for its people and future generations, and allowing room for development in sectors such as mining, energy and infrastructure.

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Waivers and “opting out” of takeover laws Company Law May 2013

There is a practice, which recently came to the attention of the Takeover Regulation Panel, of private companies drafting provisions into their Memoranda of Incorporation (MOI) that purport to exempt the company from the application of the takeover laws in Parts B and C of Chapter 5 of the Companies Act (71 of 2008) and the regulations promulgated thereunder. Put another way, the MOI aims at "contracting out" of the takeover laws in circumstances when they would otherwise apply. The purpose of this article is to set out some concerns and considerations to be taken into account when determining the validity of such arrangements.

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Regional integration and renewable energy Africa May 2013

According to a report1 “Energy in Africa", by the World Bank 25 African countries face an energy crisis, despite the continent being well endowed with energy resources that remain untapped.

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Resource Nationalism Africa May 2013

Resource nationalism is not an African phenomenon. Many countries have implemented some form of resource nationalism policy. Many African countries have not being able to maintain sustainable mineral sectors which are integrated into the long-term development objectives of its people. Probably the most serious concern in recent years has been the impact of the world-wide recession on investment in mineral exploration in developing countries. Mounting difficulties in attracting investment funds have caused a reassessment of existing investment in the mining sector.

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SADC – The corridor into Africa Africa May 2013

Africa is the rising economic giant with a growth trajectory that has begun to astonish the world. The McKinsey Quarterly reported a 4.9 % economic growth per annum (GDP) from 2000 to 2008, in the total gross domestic product on the continent. Africa's collective GDP, at US$1.6tr in 2008, was roughly equal to that of Brazil and Russia, making the continent among the rapidly growing economies in the world.

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Africa Rising – IP update Africa May 2013

It is not a closely guarded secret that sub-Saharan Africa is currently a node for economic growth and that the trend is likely to continue in the long term. The World Bank issues a bi-annual report “Africa's Pulse" that summarises developments in the region and comments on its future prospects. The latest “Africa Pulse" report is predicting growth for sub-Saharan Africa in 2013 - 2015 to be in excess of 5% for that period, with slightly over 6% predicted for 2013.

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Growth from the East Africa May 2013

While the Sino-Africa relationship is not a new agenda, modelling current business trends in Africa on Chinese standards can serve to boost economic development in Africa and strengthen financial links with the global economy. It was not until the mid-1970s that China made a firm reconnection with Africa in the building of a1 860km railway (between Daresalaam and Kapiri Mposhi in Zambia) that led to China becoming one of the main donors to the continent, where impressively, during the last decade, two-way trade between China and Africa has reached US$ 166 billion. This proves that the Sino-Africa relationship is no longer just an aspiration but concrete evidence of their co-operation in achieving economic advancement.

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Construction, collusion, consequences – companies take note Africa May 2013

The focus of the Namibian Competition Commission is likely to be on its construction industry in the not too distant future. This follows the South African Competition Commission's investigation into the South African industry, which has revealed numerous competition law violations. The Swakopmund Municipal Council has also recently alleged collusion between four major construction companies relating to a recent tender for road construction services. These companies face fines of up to 10% of their annual global turnover.

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The Independent Compilation Engagement Company Law May 2013

On May 1 2011 the Companies Act, 2008 introduced a third component1 to the assurance of financial statements prepared by directors. The compilation is an engagement in which an accountant (not an independent auditor or independent reviewer) applies accounting and financial reporting expertise to assist directors in the preparation and presentation of financial statements.

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