Without Prejudice - Volume 13, Issue 10, 2013
Volume 13, Issue 10, 2013
Author Myrle VanderstraetenSource: Without Prejudice 13 (2013)More Less
I recently found myself driving off from "my Spar" with two unpaid for Christmas decorations, (each valued at R49) still dangling from my little finger; I hadn't put them in my trolley for fear of them being broken or scratched. Rushing as always to reach the next destination on time, I was unable to go back to the shop immediately but the following week spoke to the owner; his response was one of a degree of amazement and definite gratitude. "Thank you for being so honest" he said several times.
Author Johan BotesSource: Without Prejudice 13, pp 8 –10 (2013)More Less
What do you call 3 000 lawyers at the bottom of the ocean, according to the old pub favourite? A good start!
Cynicism about the value added to society by legal professionals is hardly novel. While lawyers, typically, feel that we are the difference between client's succeeding or heading down the abyss, this view has not found wide-spread acceptance. Lawyers, throughout the centuries, have yearned for the opportunity to go back in time and provide sound counsel to Eve before she lent her ears. Non-lawyers argue that Eve was the snake's first victim after passing the Bar Exam..
Source: Without Prejudice 13, pp 12 –13 (2013)More Less
In NUMSA and others v Abancedisi Labour Services (SCA Case No. 857/12) the Supreme Court of Appeal (SCA) had to decide an appeal from the Labour Appeal Court (LAC) and, in particular, determine whether the respondent, a labour broker, had in fact dismissed the appellants' members (the workers). In the lower courts, the broker did not plead that the dismissals were fair, only that the workers had not been dismissed.
Author Michiel ElsSource: Without Prejudice 13, pp 14 –15 (2013)More Less
Thin capitalisation rules are specific anti-avoidance provisions, very closely related to transfer pricing as they are designed to combat the extraction of profits from South Africa. The obvious reason for this is that interest paid to a related non-resident would be deductible in the hands of the South African company (therefore not subject to corporate tax or dividend withholding tax) and would be exempt in the hands of the non-resident recipient. Dividends, however, would not be deductible in the hands of the South African company but would be subject to dividend withholding tax at 15% and, in all likelihood, subject to tax in the foreign jurisdiction.
Author Graeme PalmerSource: Without Prejudice 13, pp 16 –17 (2013)More Less
Provisions in the Tax Administration Act, 2011 (TAA) which relate to the compulsory repatriation of foreign assets are some of the most far-reaching in the tax laws. The TAA allows a senior South African Revenue Service (SARS) official, for the purpose of collecting a tax debt, to apply to the high court for an order compelling a taxpayer to repatriate foreign assets.
Author Susanna ChangSource: Without Prejudice 13, pp 18 –19 (2013)More Less
Over the past few years, the issue of traditional knowledge (TK) has featured prominently in South African news, though this discussion has been ongoing for much longer. The introduction of the Intellectual Property Laws Amendment Bill (8B of 2010) by the Department of Trade and Industry (the DTI) in 2010, intensified the debate with some academics and civil society providing strong views as to why this Bill should not proceed.
Source: Without Prejudice 13, pp 20 –23 (2013)More Less
In a ruling by the Final Appeal Committee (FAC) of the Advertising Standards Authority of South Africa (ASA) handed down on October 7 2013, certainty was finally provided in an advertising spat between South Africa Airways (SAA) and Kulula.com (Kulula), which has been on-going since March 2013.
Author Chrisophe Van ZylSource: Without Prejudice 13 (2013)More Less
After a four-year battle with its competitor Nestlé, the UK Appeals Court has refused the registration of Cadbury's trade mark application for the specific colour purple that Cadbury has used for more than 150 years in relation to its chocolate wrapping. According to the court, the description of Cadbury's trade mark in its trade mark application was insufficiently precise for members of the public and competitors of Cadbury to interpret the scope of protection claimed by Cadbury.
Author Tiffany ConleySource: Without Prejudice 13, pp 26 –27 (2013)More Less
In the words of famous fashion designer, Coco Chanel, "In order to be irreplaceable, one must always be different." But exactly, how different does one need to be? Our personal names (meaning, our full names, for example, John Smith) define us from the day that we are born so, logically, we believe that our names are our brand and that we are entitled to benefit from them commercially and otherwise.
Source: Without Prejudice 13, pp 28 –29 (2013)More Less
Author Jordan JoannidesSource: Without Prejudice 13, pp 29 –31 (2013)More Less
On March 27, the Supreme Court of Appeal (SCA) handed down judgement in the matter between AllPay Consolidated Investment Holdings and Others and the Chief Executive Officer of the South African Social Security Agency and Others. The case, as Nugent JA expressed in his judgement, concerned "yet another...public tender."
Author Jurg Van DykSource: Without Prejudice 13, pp 32 –33 (2013)More Less
On August 19 2013 developers submitted their bids for Round Three of the South African Department of Energy's Renewable Energy Independent Power Producer Procurement (REIPPP) Programme. After having gone through three rounds of bid submissions, the construction market has reached a stage where it is fairly determinable what risk distribution would be expected in any Engineering, Procurement and Construction (EPC) contract under the REIPPP Programme.
Author Carmel RickardSource: Without Prejudice 13, pp 34 –35 (2013)More Less
It's not every day that an affair of the heart - or the loins - makes the law reports, especially when the official parties are the South African Revenue Service and the CCMA. But what made the difference this time was a caring uncle, afraid his relative was getting too close to an alleged killer.
Author Yaniv KleitmanSource: Without Prejudice 13, pp 36 –37 (2013)More Less
Leading on from the previous two instalments in the September and October editions of without prejudice, this final part deals with practical issues pertaining to directors' personal financial interests, the increased application of the takeover laws in the private company arena and the material issues that have emerged from business rescue.
Source: Without Prejudice 13, pp 38 –39 (2013)More Less
There is no doubt that the Companies Act (71 of 2008) has modernised corporate law in South Africa, by among other things, creating flexibility and simplicity in the formation and maintenance of companies while promoting a balance between the rights and obligations of shareholders and directors. The Act is a significant improvement to the corporate law regime, which existed under the 1973 Companies Act.
Author Kerri EllerbeckSource: Without Prejudice 13, pp 41 –42 (2013)More Less
The recent judgement of the New Zealand District Court at Greymouth in The Department of Labour (the informant) versus Pike River Coal Limited provides important lessons for South African coal miners. Though based on the Health and Safety Employment Act (1992) of New Zealand (HSEA), the judgement is relevant in terms of the South African Mine Health and Safety Act, (29 of 1996) (MHSA).