Without Prejudice - latest Issue
Volume 16, Issue 10, 2016
Source: Without Prejudice 16, pp 1 –37 (2016)More Less
Competition law records go back to 50 BC and Roman legislators who tried to control both price fluctuations and unfair market practices. In 301AD, Diocletian established an Edict on maximum prices; failure to adhere to this was harsh - the death penalty ensued. Manipulating prices has long been practised but it is not always in the private sector and not necessarily with ill-intent. "Foresteel" (buying up goods before they reach market and then inflating the prices) is mentioned in the Domesday Book in 1086. Legislation in 1215, during the Magna Carta, declared monopolies illegal because of the harmful effect on individual freedom. In 1226, as in 2006, bread was the subject of competition regulation. However, the Act passed in 1226, under Henry III, was to fix bread and ale prices to correspond with the corn prices dictated by the assizes. During the Renaissance, the court in Darcy v Allin (the Case of Monopolies) found the grant for the sole right to make playing cards, which had been given by Queen Elizabeth I to an officer of her household,to be void. The court found that there were three characteristics of monopoly: price increases, quality decrease, and a tendency for skilled people to become idle and resort to begging. It is interesting that despite laws against unfair business practices and competition which had been passed in Germany in 1909, many consider that the large number of cartels in Germany industry made it considerably simpler for the Nazis to assume economic control. The Nazis simply bribed or blackmailed the heads of a relatively small number of industrial magnates. Anti-trust Law and Competition Law has been considerably influenced by the USA. The Sherman Act, 1890 and the Clayton Act, 1914 had widespread impact. The Treaty of the European Community was signed by six Western European countries in 1957. Competition law falls under EU law. With the shock Brexit vote, questions are being asked if UK competition law rules will change. General opinion is that the strong UK competition law ruleswill remain in place but courts will not be obliged to interpret the law in line with EU law. Of course, companies trading in both the EU and the UK will still have to take into consideration both sets of laws and, as far as M&A is concerned, many mergers will be investigated which may well result in delays and complexity and the accompanying costs. The African Competition Forum (ACF) and the World Bank Group firmly believe that regulations that limit competition, and getting rid of cartels that operate in the food market, will reduce costs of basic food and that "half a million people in Kenya, South Africa and Zambia alone could be lifted out of poverty". It is reported that basic food stuffs in many cities in these areas are 24% higher than in the rest of the world. The BRICS competition authorities signed an MoU in May which is intended to establish a framework for collaboration between the countries. Also in May, an MoU was signed between nine SADC countries that have functioning competition authorities. The MoU on Inter-Agency Cooperation in the Competition Policy, Law and Enforcement isconsidered to be an important milestone. In June, the Competition Commission published the final guidelines for public interest provisions in M&A regulation under the Competition Act. Acting Deputy Commissioner, Hardin Ratshisusu, said the guidelines marked an important milestone in merger regulation in South Africa. The Competition Commission was only established in South Africa 16-years ago. Economic growth in South Africa is dismal. Efficient enforcement of competition policy in South Africa would go some way to improving the market place. Those who are not aware of the day-to-day impact of competition law and policy would be amazed (horrified?) by the consequences of inadequate controls. The challenge is not to implement laws that in fact stifle competition while at the same time ensuring that cartels do not do a good job of defrauding consumers and the public coffers. This is an interesting and evolving area of law and I am very grateful to the practitioners who have taken the time to focus on a wide range of topics that will enlighten everyone's view.
Author Myrle VanderstraetenSource: Without Prejudice 16 (2016)More Less
There are a few things that have taken place in the past month that will probably stay indelibly printed on my mind. The first is the ongoing student protests. This issue will no doubt be added to some social event conversation lists in the "do not" column - "Do not discuss politics, religion or student protests". I am cynical but I know I am not alone in wondering how many of those protesting are students and, of those who are, how many care about their own studies; they certainly don't care about anyone else's.
Author Karin KrischSource: Without Prejudice 16, pp 6 –7 (2016)More Less
In June South Africans heaved a collective sigh of relief when, after much speculation about a possible downgrade of the country's credit rating to sub investment grade (damningly known as junk status), South Africa's investment-grade rating was affirmed by the big three credit rating agencies.
Source: Without Prejudice 16, pp 7 –10 (2016)More Less
In terms of the Prescription Act (68 of 1969), "debts" prescribe after a period of three-years. In order to avoid losing the legal right to enforce a claim, a creditor must interrupt prescription by instituting proceedings against a debtor before the end of the three-year period.
Source: Without Prejudice 16, pp 10 –11 (2016)More Less
In the case of Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd & Another 3 All SA 487 (SCA), the Supreme Court of Appeal overturned a decision of the Johannesburg High Court regarding the moment prescription begins to run on a debt arising out of a loan agreement which provides that repayment of the loan could be accelerated at the election of the creditor.
Author Beric CroomeSource: Without Prejudice 16, pp 13 –15 (2016)More Less
Part 2 - The draft SVDP legislation deals with foreign trusts whereby either a donor or the deceased estate of the donor or a beneficiary may elect that any asset held by the discretionary trust outside South Africa from 1 March 2010 to 28 February 2015 be regarded as having been held by that applicant for purposes of all tax acts.
Author Louis BothaSource: Without Prejudice 16, pp 16 –17 (2016)More Less
A certain question has been the subject of a number of recent court cases: Is an interim order or a decision which does not dispose finally of a case appealable? The Constitutional Court recently had to answer this question in two separate cases - one involving the changing of street names in Tshwane and the other involving the provisions of the National Credit Act (34 of 2005). The issue has now also reared its head within a tax context in the Supreme Court of Appeal (SCA). In Wingate-Pearse v CSARS (830/2015)  ZASCA 109 (1 September 2016), a taxpayer wanted to appeal, among other things, the Tax Court's decision regarding the onus of proof and the duty to commence leading evidence.
Author De Waal NigriniSource: Without Prejudice 16, pp 17 –18 (2016)More Less
Around the world, experts are hailed for their in depth knowledge and experience in a particular field. Experts are paid exorbitant amounts for the specialised knowledge and skills they claim to have acquired with years of training and experience and which are highly sought after. But what happens when the expert makes a mistake? Worse yet, what happens when the expert's mistake could cost a company millions?
Author Justine KrigeSource: Without Prejudice 16, pp 19 –20 (2016)More Less
In Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy and others  3 All SA441 (SCA) (Palala), the Supreme Court of Appeal (SCA) had to determine whether or not a mineral right granted under the Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA) lapses irrevocably when the company that holds it is deregistered because it failed to submit an annual return to the Companies and Intellectual Property Commission (CIPC). The SCA had to determine whether, as a matter of law, the re-registration of a company under the Companies Act (61 of 1973) had the effect of reviving a lapsed right.
Source: Without Prejudice 16, pp 20 –21 (2016)More Less
It is now generally accepted that the Companies Act (71 of 2008) is an overhaul of our corporate law landscape. This shift is even more evident with the introduction of a new business rescue regime and, along with it, the general moratorium on legal proceedings against a company in business rescue.
Source: Without Prejudice 16, pp 21 –23 (2016)More Less
The recent Amendments to the Broad-based Economic Empowerment Act (53 of 2003) followed by the publishing of the strongly debated BEE Regulations on 6 June, signals government's strong stance against empowerment circumvention and has ushered in a new Black Economic Empowerment Commission that is geared to enforce compliance and combat practices that undermine the Act.
Author Olivia TimothySource: Without Prejudice 16 (2016)More Less
How would you feel if you were called "a fat pig"; "stinky" and "unclean" on a daily basis by your employer? A humiliating tirade like this can be demeaning and demoralising for any employee. In addition, there can be severe legal repercussions for an offending employer.
Author Owen DeanSource: Without Prejudice 16, pp 27 –29 (2016)More Less
In his play "Romeo and Juliet", William Shakespeare proposed, through his character Juliet, "What's in a name? That which we call a rose by any other name would smell as sweet." What he was saying was that the rose had intrinsic value, and, no matter what name it was given, that intrinsic value would be unaffected. The actual name, per se, was irrelevant and had little or no value. That proposition may have had some merit in the seventeenth century, and in the specific context in which it was advanced, but it does not have universal application today.
Author Ushir AhirSource: Without Prejudice 16, pp 29 –30 (2016)More Less
The Supreme Court of Appeal on 18 May, in thecase of City of Johannesburg v Dladla (403/15) ZASCA 66 (Dladla) held that the Ekhuthuleni Overnight/Decant Shelter House Rules (house rules) of the temporary emergency accommodation provided by the City of Johannesburg to occupiers, is not unconstitutional.
Author Patrick BracherSource: Without Prejudice 16, pp 32 –33 (2016)More Less
Murder conviction overturned because of judge's plumber remarks
Survey: Male partners make 44% more than female partners
Age-bias law does not apply to job applicants
Open-air pissoir does not violate privacy rights
Lawyer appeal briefs to be cut by 1 000 words
Withholding exculpatory evidence by prosecutors is afelony in California
Lawyer ordered to pay $1.75M damages for meritless suit
Lawyers failed to give proper notice of layoffs at failing firm
Judge says "outrageous" that major firms sent associate to court
Government hacking search in child porn case evidence admitted
Changing nappies a potential crime in Arizona
Partners' duties when colleague is impaired
Lawyer declared grossly incompetent and removed from murder case
Source: Without Prejudice 16, pp 34 –35 (2016)More Less
Nature can be extremely cruel. Hurricane Matthew, the worst storm in a decade with winds of up to 145 mph and torrential rain, hit Haiti and flattened villages, bridges and ripped up roads. More than 1 000 people have lost their lives. Cholera followed and more lives have been lost. In addition 175 000 people have lost their homes, crops and livestock.
Author Karin MullerSource: Without Prejudice 16, pp 36 –37 (2016)More Less
Part 2 - Legislation has been passed in various countries which regulates, amongst others, who must be notified of the Will, who must be provided with copies of the Will, the specific form and how the delivery of the copies must take place. The local position is different.
Author Hugh LaneSource: Without Prejudice 16, pp 38 –40 (2016)More Less
A written document attempts to convey a message from the author to the reader. The challenge has always been to do so in a way that it is properly understood by the recipient. Language is inherently flexible, often ambiguous and vague, and may not fix the precise intended meaning. Many words have more than one meaning, may mean different things to different people, and the meaning of words sometimes change over time and may be qualified by the factual context in which they are used. Language, therefore, doesn't always fix meaning - it may only circumscribe the limits of possible meaning. ('Principles of the Interpretation of Contracts in South Africa' by SJ Cornelius (2nd Ed), pages 2 and 25). It may, therefore, sometimes be necessary to determine the meaning of the message. Interpretation is the process of attributing the proper meaning to a text.