September 2013


From My Window - September 2013 From My Window September 2013

Gathering discontent about the quality of graduates leaving universities with the LLB degree has multi- plied to such an extent that the summit of law deans to debate the problem was hardly unexpected. This is a matter of profound import because upon the excellence or otherwise of those who practise the law rests the entire insti- tution we call the justice system.

Read More

Editor's Note - September 2013 Editor's Note September 2013

One of the greatest gifts, particularly given the number of hours involved, is a passion for one's job. It always surprises me how very few people really love what they do and don't mind Monday mornings.

At the without prejudice Editorial Board meeting in January we dis- cussed the concerns being expressed about the LLB. The very next day the LLB Summit: Legal Education in Crisis? was announced. The possibility of conducting a survey was discussed at the meeting but with this announce- ment it took on a new dimension.

Read More

Life under the Companies Act Company Law September 2013

Part 1

Since the Companies Act (71 of 2008) came into force on May 1 2011, legal practitioners have had to grapple with a number of issues brought about by this new legislation. We are now more than two years into the new company law regime. The purpose of this article, which will be set out over a number of parts, is to outline and share some of the common issues and ques- tions that have arisen in practice and to share some of the suggested answers or solutions to these.

Read More

The ghosts of companies past Company Law September 2013

Perpetual director and shareholder liability following the voluntary winding-up and deregistration of a solvent company in terms of the Companies Act 71 of 2008.

It would appear that the legal consequences of dissolving a company after winding it up, are significantly different from what they used to be under the Companies Act (61 of 1973) (the Old Act). The New Companies Act (71 of 2008), has essentially combined the procedures and legal effects of a company's dissolution with those of a deregistration. As a result, in the event of either a dissolution or a deregistration, the directors and shareholders will remain personally liable for the company's debts.

Read More

The dangers in standard MOIs Company Law September 2013

Until recently most business owners would have done well not to have the governance of a company subject to an out-of-the-box memorandum of incorporation (MOI), courtesy of CIPC. The reason for this is that the standard CIPC MOI has suffered several pitfalls.

Read More

Demoting SARS Company Law September 2013

Sometimes called a foreign phenomenon, business rescue comprises proceedings to facilitate the rehabilitation of a company that is financially dis- tressed by providing interalia temporary supervision of the company and the management of its affairs. In the well known matter of SARS v Beginsel NO and others, the court ruled that the Revenue Service could not be classified in business rescue the same way it is classified in liquidation proceedings. SARS was accordingly demoted to the role of a concurrent creditor and was suddenly in unfamiliar waters. This has the effect that SARS now ought to play a much more active role in the business rescue proceedings.

Read More

Excess baggage – real and personal rights Not The Law Reports September 2013

KATHERINE BRYOPHYTE V SUB-SAHARAN AIRWAYS
Foss-Harbottle J: The plaintiff is a supermodel who sued Sub-Saharan Airways for a refund of an excess of baggage charge levied against her on her last flight. The plaintiff, as is characteristic of super-models, took up very little space in the witness box. When travelling, her own limited dimensions are made up for by the dimensions of her luggage.

Read More

Industry Associations: The confusion of the collective Competition Law September 2013

Ask any business person who has had even a passing interest or concern for conduct, which might pose a competition risk and they will tell you discussions that involve agreement on price, allocation or division of territories and customers are to be avoided like the plague. Ask them about industry associations and they might tell you to be careful who attends and what is discussed.

Read More

Traditional healers and sick leave Employment Law September 2013

Since the declaration by the African Union of the Decade of African Traditional Medicine in 2001there has been increased recognition of the wide use of traditional medicine and "the importance of optimising its integration into national health systems. Some 80% of South Africans use traditional medicine to meet their primary healthcare needs"1.

Read More

The LLB in crisis Special Feature September 2013

Judging by the responses received from candidate attorneys and those qualified attorneys who participated in this feature that statement is precise. LLB in crisis is a dramatic statement but concern about the degree has been bubbling away relatively unseen for years.

Read More

Will amendments to the MPRDA make foreign investment any easier? Mining Law September 2013

The environment for international investors considering investment into the South African mining sector is unfortunately complicated and requires the investor to be aware of various critical issues, including in relation to:

Read More

Reviewing ministerial decisions Mining Municipal Law September 2013

The Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA) and its Amendment Act (49 of 2008) is the principal legislation in South Africa, regulating the granting or refusal of prospecting rights, mining rights, exploration rights and production rights to successful applicants by the state as the custodian of all mineral and petroleum resources through the Minister of Mineral Resources.

Read More

Red Gold – THE ROOIBOS RUSH Intellectual Property September 2013

South Africa is no stranger to the fever that accompanies the discovery of gemstones or precious metal in a particular region. Indeed, for decades the mineral riches of our nation were legendary across the world and the object of several battles for imperial, colonial or feudal control over the diamond, gold, platinum and coal fields of South Africa.

Read More

Breast is best Intellectual Property September 2013

On August 23 2011, the Minister of Health, Dr. Aaron Motsoaledi, released a media statement, advising that government had decided to adopt an exclusive breastfeeding strategy. According to the Minister, the reason for this decision was that, central to the goal of reducing child mortality, is the implementation of an exclusive breastfeeding strategy and discontinuing the practice of providing milk formula through hospitals and clinics, except when recommended by authorised health care practitioners.

Read More

Grey goods: sometimes a matter of life or death Intellectual Property September 2013

What happens in a situation when genuine articles, such as high pressure vessels or electrical goods, manufactured by the actual manufacturer, are imported into South Africa but where the manufacturer's labels have been removed and replaced with falsified labels bearing fictitious serial numbers? The labels do not specify the electrical, oil and refrigerant information critical to safe and efficient installation and operation of the goods but bear the manufacturer's trade marks?

Read More