Without Prejudice - Volume 15, Issue 10, 2015
Volume 15, Issue 10, 2015
Author R.N. BanguineSource: Without Prejudice 15, pp 46 –47 (2015)More Less
In Mozambique, like everywhere else, the advent of information and communication technology (ICT) has been the subject of debate in various fields especially in the social sciences, due to its impact on people's day to day lives. The legal sector is also taking note of developments and seeking to evolve and regulate the use of ICT to ensure these it is used properly, particularly in respect of handling data gathered and generated by technology.
Source: Without Prejudice 15, pp 48 –49 (2015)More Less
In what has been described by The Namibian newspaper as a "Landmark ruling given on patients' rights", the Supreme Court of Namibia, in the appeal case of ES v AC (Case no : SA 57/2012), recently considered the often complicated relationship between a patient and their doctor. Judgement was given on 24 June.
Source: Without Prejudice 15, pp 50 –51 (2015)More Less
In the recent Supreme Court of Appeal decision ofNovartis South Africa (Pty) Ltd v Maphil Trading (Pty) Ltd (20229/2014)  ZASCA 111, the court was tasked with deciding whether, taken together, a written document, oral agreement and certain e-mails constituted a valid contract. In practice it is often the case, particularly for instance in due diligence exercises, that a practitioner is presented with contracts that have not been signed by all the parties and appear still to require agreement on certain matters. This case demonstrates that the formal documents may only tell part of the story.
Author Joanne MatisonnSource: Without Prejudice 15, pp 52 –53 (2015)More Less
Board evaluations have become an accepted part of the governance framework for companies and other types of corporations, both internationally and locally. It is encapsulated in Principle 2.22 of the King Report of Corporate Governance 2009 (King III) and applies to all entities, whether in the public, private or non-profit sectors.
Author Keshia De KlerkSource: Without Prejudice 15, pp 53 –54 (2015)More Less
The doctrine of the undisclosed principal is an age old doctrine that has troubled many legal minds over the years. It has been described as odd, anomalous, unsound and inconsistent with legal principles not only in South Africa but also in England. Despite the constant battle associated with the implementation of this doctrine, our courts have confirmed that its existence is, in fact, justified on the grounds of commercial convenience (In SA Metal & Machinery Company (Pty) Ltd v Klerck 2005 1 All SA). Whilst it is trite law that the doctrine is justified in certain instances, what does not appear to have been explored in any detail is how this doctrine fits in with s56 (Beneficial Interest in Securities) of the Companies Act, (71 of 2008).
Source: Without Prejudice 15, pp 58 –59 (2015)More Less
The purpose of the NCA is inter alia to protect vulnerable consumers from unscrupulous credit providers. However, the registration requirements governed by s40 lent themselves to abuse by "unscrupulous debtors" who sought refuge behind the draconian consequences associated with failing to register when so required.
Author Julian JammineSource: Without Prejudice 15, pp 61 –62 (2015)More Less
The contrasting outlook for the country appears to be at an economic watershed, dividing South Africa like the great escarpment. Is South Africa headed toward the "RW Johnson route" - an IMF bailout in the next few years, or, the direction based on government forecasts of economic growth (5.4% pa) within creased employment resulting in a reduction of poverty (the aims of the national development plan 2030)? Based on independent forecasts, and declining levels of confidence, it appears that the former is more likely, albeit not as entirely pessimistic.
"It does exactly what it says on the tin" - "A guide to the Code of Advertising Practice", Gail Schimmel : advertising law book reviewSource: Without Prejudice 15, pp 63 –64 (2015)More Less
Gail Schimmel's Advertising Law (Juta) has everything you could possibly want in a book - an agreeable number of pages (157), a conversational style, few footnotes, and a visual appeal that comes from using the now-popular device of presenting certain things (in this case decisions, summaries and clauses of the ASA Code) in separate boxes. And for those of you with short attention spans, the book even has helpful wake-up warnings like this: "Now here is where it all starts getting messy, and I want you to concentrate carefully". The book is aimed at the advertising practitioner as much as it's aimed at the lawyer. As Schimmel makes clear early on, the focus of the book is the ASA Code rather than all the law affecting advertising. Any lawyer who needs to deal with an ASA issue will find this book extremely useful.
Author Dan FosterSource: Without Prejudice 15 (2015)More Less
Due to increased concern that the UK property market, particularly London and the South-East, has been used by foreigners to launder money, the British government has announced that the Land Registry will shortly publish the full list of 10 000 titles held by foreign companies.
Author Tomiwa ToriolaSource: Without Prejudice 15, pp 66 –68 (2015)More Less
Will a carbon tax be promulgated into law by 2016? Government seems to think so. Finance Minister Nhlanlha Nene, in his February Budget speech, confirmed that a carbon tax would be implemented in 2016, and a draft Carbon Tax Bill would be published for public comment during the course of 2015.
Source: Without Prejudice 15, pp 68 –69 (2015)More Less
There's been a fair bit of activity in the area of domain names of late. Issues regarding .co.za names are generally handled under the Alternative Dispute Resolution (ADR) Regulations that were passed under the Electronic Communications and Transactions Act. On 15 September, an interesting ADR decision was handed down. Interesting because of the legal principles involved, and interesting because it was so topical.
Author Myrle VanderstraetenSource: Without Prejudice 15, pp 72 –73 (2015)More Less
It doesn't pay to sleep at a baseball match. Andrew Rector appeared to snooze through a standing ovation after the Yankees scored a home run during a New York Yankees game against the Boston Red Sox in April last year. He became the butt end of jocular comments by announcers on ESPN Television channel and a video clip was posted online. Rector claimed to have suffered emotional distress as a result and sued for $10m. The Bronx Supreme Court judge said the comments were not defamatory and Rector's "fame" lasted a mere 31 seconds out of three-hours. His lawyer said he had told his client that "there is room for appeal". The ruling was made in August but was only highlighted at the beginning of October.
Author Warren BeechSource: Without Prejudice 15, pp 76 –77 (2015)More Less
It is accepted that one of the fundamental principles under the South African Constitution is openness and transparency. Section 32 specifically enshrines the right of access to any information held by the state, and any information held by another person that is required for the exercise or protection of any rights. The rights contained in the Bill of Rights are subject to the limitations ins36, or elsewhere in the Bill of Rights. It is, therefore, also accepted that rights may be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
Author Llewellyn CurlewisSource: Without Prejudice 15 (2015)More Less
Since the start of the Oscar Pistorius trial, a lot of legal jargon has been used in the corridors of the courtroom, and at almost every social gathering. A worldwide frenzy erupted regarding certain principles of the South African Criminal Law and Procedure. I have explained many of these issues in various media.