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Without Prejudice - latest Issue
Volume 18 Number 3, April 2018
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The class of 2008 – where are they now?
Source: Without Prejudice 18, pp 1 –17 (2018)More LessCan women have it all - Lisa Koch, Norton Rose Fulbright (Australia)
I shattered a glass ceiling only to find a layer of men - Deirdre Venter, Webber Wentzel
The new age partner - Shane Johnson, Cliffe Dekker Hofmeyr
Calls for gender equality - Myrle Vanderstraeten
University of Cape Town
University of Johannesburg
University of KwaZulu Natal
Nelson Mandela Metropolitan University
University of Pretoria
Rhodes University
Stellenbosch University
University of the Witwatersrand
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Editor's note
Author Myrle VanderstraetenSource: Without Prejudice 18, pp 4 –4 (2018)More LessGetting the April issue of without prejudice “to bed” remains a challenge. The Easter weekend is a little like the Christmas break and deadlines seem to have less impact than in other months. I apologise for this issue arriving late but I hope you will enjoy reading the content and will also find it useful.
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Muhlberg's brief - remarkably brief – trademarks : all sold out
Author Hans MuhlbergSource: Without Prejudice 18, pp 6 –7 (2018)More LessThere’s an article in World Trademark Review entitled We’re running out of good trademarks. It’s based on a study that was conducted by academics from the New York University School of Law and published in the Harvard Law Review under the name Are we running out of trademarks? An empirical study of trademark depletion and congestion. The study confirms what all trademark lawyers know, that it’s becomingly increasingly difficult to clear and register trademarks because there are simply too many of them about. There’s nothing new in this – Richard Jenkins wrote about the problem more than 20 years ago.
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The doctrine of unanimous assent
Authors: Christelle Wood and Shikara SinghSource: Without Prejudice 18, pp 8 –8 (2018)More LessAt common law, the principle of unanimous assent allows shareholders to approve decisions without requiring a properly constituted meeting or without having to observe any other prescribed formalities. This principle thus permits informal methods of shareholder approval provided that all shareholders are fully aware of what action is being taken and have consented to it (Fourie, J.S.A, "Unanimous Assent and Special Resolutions" (96) South African Law Journal (1979)).
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Serious implications for the banking and credit industries
Authors: Eric Levenstein and Mohammed PatelSource: Without Prejudice 18, pp 10 –11 (2018)More Less“The tension between the principle of freedom of contract and the policy considerations of our strict, indeed rigorous, law of prescription is both manifest and palpable.” (Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd (1040/2015) [2016] ZASCA 135 para 16.) It was this tension that the Constitutional Court (CC) adjudicated on in the decision of Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited [2017] ZACC 32. Specifically, the CC had to determine whether contracting parties could vary the date on which a debt became “due”, thereby delaying the running of prescription in terms of the Prescription Act, 1969.
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Shareholder Actions, A. Charman & J. du Toit
Author Yaniv KleitmanSource: Without Prejudice 18, pp 11 –12 (2018)More LessShareholder Actions by Andrew Charman and Johan du Toit SC deals primarily with remedies of shareholders under English law. There are separate chapters with high-level overviews of shareholders' rights under Australian, Canadian and South African law. This second edition sets out the law as at 1 November 2017.
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South African Business Rescue Procedure, Eric Levenstein
Author Greg WickinsSource: Without Prejudice 18, pp 14 –15 (2018)More LessThe idea of saving rather than liquidating troubled companies is not new in South African law. The concept of judicial management was introduced as far back as 1926 and was retained in the 1973 Companies Act. However, some 80 years later it had not brought about any significant salvation of companies and liquidation remained the almost-exclusive outcome. Useless as it was, judicial management was relegated to the trash-heap and replaced in the 2008 Companies Act with the more sophisticated and applied concept of business rescue.
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Minimum resale price maintenance : risks for companies trading in South Africa
Author Heather IrvineSource: Without Prejudice 18, pp 16 –17 (2018)More LessArecent decision of the Competition Tribunal highlights that companies engaging in minimum resale price maintenance in South Africa remain at risk of penalties in terms of the Competition Act.
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The surge in coordinated effects theories of harm in competition assessments
Authors: Kathryn Lloyd and Catherine StarkSource: Without Prejudice 18, pp 17 –18 (2018)More LessIn recent years, a trend has emerged of the Competition Commission prohibiting a greater proportion of mergers. Of those prohibited, a large majority has been on the grounds that they increase the potential for collusion.
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Some predictability, some uncertainty
Author Sivuyise LutshitiSource: Without Prejudice 18, pp 19 –20 (2018)More LessOn 17 February 2017, the South African Competition Commission published in the Government Gazette, “Draft Guidelines for the Determination of Administrative Penalties for Failure to Notify a Merger and Implementation of Mergers Contrary to the Competition Act”. This was in response to the growing number of cases of failure to notify mergers, and implementation of mergers contrary to Chapter 3 of the Competition Act (89 of 1998) (as amended), and to the Competition Tribunal calling upon the Commission to formulate guidelines in this regard (for example The Competition Commission v BB Investment Company (Pty) Ltd, Case No: FTN200 Dec15). In terms of s79 of the Act, the Commission may prepare guidelines to indicate its policy approach to any matter within its jurisdiction.
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Emotional outbursts do not always make for an intolerable relationship
Authors: Nigel Carman, Neo Malahlela and Nontobeko NkambuleSource: Without Prejudice 18, pp 20 –22 (2018)More LessCan a dismissed employee’s disruptive conduct in arbitration proceedings as opposed to conduct in the workplace be used as a reason to deny the employee a reinstatement award?
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Identifying consulting parties
Authors: Neil Coetzer and Jayson KentSource: Without Prejudice 18, pp 23 –24 (2018)More LessEmployers are often uncertain as to who they should consult with when embarking on a restructuring exercise in terms of s189 of the Labour Relations Act (66 of 1995), as amended (the LRA). Depending on various factors, the consultation process could last several months and identifying the correct party (or parties) with whom to consult is of paramount importance. Failure to do so may render the entire process unfair and require the employer to start again. In circumstances where an employer is contemplating retrenchments due to financial difficulties, having to restart the process can have dire consequences.
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Amendments on the cards for 2018
Authors: Jonathan Goldberg and Grant WilkinsonSource: Without Prejudice 18, pp 25 –26 (2018)More LessThere are several amendments to our labour laws which, if passed unamended, will result in some much-needed development in the South African labour law landscape.
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Fines and the importance of timeous appeals
Author Peggy SchoemanSource: Without Prejudice 18, pp 26 –27 (2018)More LessBefore conducting certain environmentally-damaging activities, an environmental authorisation in terms of the National Environmental Management Act (107 of 1998) (NEMA) must be obtained. Section 24G, however, provides for somewhat of an exception: an ex post facto authorisation process when a listed activity was unlawfully conducted without the requisite approval, providing for an administrative fine of anywhere up to R5 million.
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A grey area in securities transfer tax
Authors: Howmera Parak and Ryan McKerrowSource: Without Prejudice 18, pp 28 –28 (2018)More LessWould there be a change in beneficial ownership, for securities transfer tax (STT) purposes, if a foreign company (MigratingCo) holding shares in a South African company (SACo) were to undergo a corporate migration or re-domiciliation from one jurisdiction to another? This is assuming that MigratingCo is formed afresh in the new jurisdiction, while it continues to operate in the same manner as before. In other words, it will have the same shareholders, management structure, employees and board members, and hold the same assets, all while continuing to operate under the same constitutional documents.
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Deceased estates – a taxing affair
Author Karin MüllerSource: Without Prejudice 18, pp 30 –31 (2018)More LessTax and comedy are not often paired together. “Utopia” is perhaps an exception to this rule – it was the last film made by the well-known comedy duo, Laurel and Hardy.
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Blurred lines : the unilateral termination of banking facilities
Authors: Kristen Wagner and Azhar Aziz IsmailSource: Without Prejudice 18, pp 32 –33 (2018)More LessThe bank-customer relationship is under increased scrutiny as attention, both nationally and internationally, is focussed on money-laundering and terrorist financing. Banks are reconsidering their risk appetites in light of financial institutions being most at risk of being used to facilitate these suspicious transactions. One question of particular significance is whether banks have the right to unilaterally close the bank accounts of their customers, and if so – what entitles them to do so?
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Tales from the US of A . . .
Author Patrick BracherSource: Without Prejudice 18, pp 34 –35 (2018)More LessThrough lawyers fault estate recovers nothing for mistaken brain surgery
Crime subject to Second Amendment challenge despite guilty plea
Trump’s lawyer pays $130K to silence porn actress
Graffiti artists awarded $6.7M against building owner who whitewashed their art
Man sues because nude photos migrated to another phone
Oxford comma case settled
No tax deduction for alimony from 2019 could spur divorces
Law to restore voting rights to felons struck down
Woman who won $560M Powerball jackpot sues for anonymity
Suit allowed against Tinder dating app alleging age discrimination
Court finds juvenile facing deportation has no right to free lawyer
Google app matching selfies to art blocked in two states
Judge wants 6 000 potentially fraudulent class action claims investigated
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The world in March
Author Myrle VanderstraetenSource: Without Prejudice 18, pp 36 –37 (2018)More LessThe world in March
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Five years
Author Carmel RickardSource: Without Prejudice 18, pp 38 –39 (2018)More LessClever employees are taking advantage of the way SA public holidays fall this year to maximise the number of days they can take off without eating into their official annual leave. But I can’t say I’m impressed. Move over! Even the cleverest of you can’t match the days’ leave taken by employees in a new case I’ve been reading.