Without Prejudice - latest Issue

It is strange that, as is frequently commented, gloom and doom sells. Perhaps in South Africa we are so tired of endless litanies of tales of the darker side to people that news of positive events are what we crave. In this issue we carry an article by Douglas Ainslie on the “silicosis class action”. Not only was this the first class action settlement of its kind in South Africa, but it also represents a commitment on the part of all parties to reach an agreement that was fair to all in a particularly complex matter. Suspensive conditions are still to be signed and the matter has not been finalised, but it is hoped that the ongoing work involved, including finding techniques to improve underground dust and the consequential health risks, will be tackled with the same dedication.

He was affectionately known as the Father of the Nation. A father who made the impossible, possible. A father who bestowed us with gifts far beyond material measure. Education, careers, freedom, non-discrimination were all afforded to us.

As has been reported in the media, a “historic settlement” was reached on 3 May in what is commonly referred to as the “silicosis class action” (although the class covered both silicosis and tuberculosis). While the outcome alone is sufficient to warrant the positive sentiments, I would like briefly to draw some attention to the difficult context within which the settlement was negotiated. In this respect, what is also remarkable about the settlement is that it was achieved despite, amongst other issues, significant interrelated problems; the complexity of the litigation itself; and the broad range of other interested stakeholders outside of the litigation proper. The Occupational Lung Disease Working Group on the one hand, and the class representative lawyers on the other, negotiated in an effort to reach a settlement that was fair and sustainable for all parties.

On 14 June, judgment was handed down in the Western Cape High Court in a shareholder appraisal rights matter, Cilliers v LA Concorde Holdings Limited and Others (23029/2016) [2018] ZAWCHC 68 (14 June 2018). The matter is the first of its kind to be heard since the Companies Act (71 of 2008) came into force. The judgment provides guidance regarding

The recent announcement that China’s Sinopec is buying a controlling stake in Chevron South Africa is indicative of the strength of Chinese companies’ appetite for direct investment in the country. If the deal goes through, it will be the biggest Chinese investment since 10 years ago, when the Industrial and Commercial Bank of China (ICBC) purchased 20% of Standard Bank in 2007.

According to the South African Reserve Bank’s website, South Africa has 15 international banks which have registered branches in South Africa. The registration of these foreign branches is governed by the Banks Act.

In a developing country such as South Africa many individuals are excluded from formal financial products and services. In recent years the debate regarding economic growth has expanded to include the notion of financial exclusion as a barrier to economic development, along with the need to build an inclusive financial system.

Part 3 

The need for global harmonisation of Regulation and Compliance requirements has seen the formation of, amongst others, the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human use (ICH), which aims to bring together the regulatory authorities and pharmaceutical industry to discuss scientific and technical aspects of drug registration.

In terms of s1 of the Consumer Protection Act (68 of 2008), promotional offers are offers to consumers which make provision for price reductions or concessions, irrespective of whether the offer is accepted by the consumer. These offers are usually made subject to certain terms and conditions (T&Cs) and, as a result, present a potential minefield to consumers. There are often onerous provisions tucked away in these T&Cs, which may catch consumers off-guard, and of which they only become aware after they have accepted the promotional offer.

“One cannot stand still in a moving river” – I used this Chinese proverb in the feature on the changing legal landscape carried in without prejudice March 2013 and it remains equally true five years on. Things have changed considerably, both globally and in South Africa. In 2013, South African firms had to decide what their focus would be in the future as they, in keeping with a global trend, merged, got divorced, added dimensions, changed or stayed the same. On 18th January, erstwhile President Zuma assented to the Legal Practice Amendment Act (16 of 2017). It is due to be implemented in full at the end of October and it is anticipated that changes will influence the legal landscape in South Africa over the next few years. But what stands out as having changed in the past five years? The role of technology is discussed in several of the articles written for this feature. It is not all that long ago that technology, as it is being used today, was the stuff of science fiction. Fundamental changes are being made to the way people work as machines take over the “grunge” work efficiently and at a speed quite impossible for humans to replicate. The global economy has never recovered from the 2008 crash and the bottom line is that clients want more, for less. Tradition will certainly have to share a space with many new concepts, including the role of reverse mentoring and, the question of whether the writing is on the wall for the billable hour. While there is undoubtedly considerable apprehension about the role machines will play in the legal landscape, two of the very positive aspects that have come about are flexi time and flexi working space. These will require both trust and delivery.

Trademark lawyers understand the damage caused by counterfeit goods. But a recent article by Mark Ritson in Marketing Week – Luxury brands should take a stand against the grey market - highlights the damage that can be caused by grey goods, aka parallel imports.

AUS middle school in Pennsylvania has given the 14-year-old final year pupils bulletproof shields as graduation to high school gifts from a local body armour manufacturer, Unequal Technology. A reinforced Kevlar plate is designed to slot into the back of the students’ rucksacks so they have some protection should they have to run during a school shooting. But the shield is unlikely to be effective against a semi-automatic rifle which, according to the New York Post, has been used repeatedly in the nation’s mass-shooting epidemic”.

Judge claims $67 million for lost pants and may be suspended

Motorcycle on driveway can’t be searched without warrant

Twenty-seven year prison plea deal for $550M disability fraud scheme

Law firm’s reasons for firing associate “incredibly hard” to believe

Judge scolds law firm for slow moving settlement offer

Condoms made outside state alleged to make sex crime a federal offence

Man punches lawyer after jury conviction

Lawyer targeted on internet after ranting about Spanish-speakers

Self-proclaimed workaholic billed 3 600 hours last year

Which US lawyers spend most time on pro bono?

Supreme Court strikes down federal law that bans sports betting The US Supreme Court

Use of dead man’s finger to unlock phone without a warrant

Accused can insist his lawyers refrain from conceding guilt

Mistrial declared after doctor defendant performs CPR on potential juror in his med-mal trial 

While society struggles with what to do about people who litter and throw their rubbish all over the place, perhaps perpetrators should study a new judgment from the Swazi Supreme Court aka Eswatini’s highest court. If you are tired of slap-onthe- wrist fines or inconsequential, fading anti-litter signs at the side of the road, keep reading: this case shows how the consequences of littering can be life-changing for all concerned.

Navsa JA (Willis JA and Schippers AJA concurring) make the point in the Middelburg “coffin case” (Oosthuizen & Another v S (144/2018) [2018] ZASCA 92 (1 June 2018)) that race as a historically destructive, divisive factor is something that none can be unaware of in South Africa.

Most organisations demand that employees have work experience in addition to a tertiary qualification relevant to the organisation’s line of business. Consequently, it has become increasingly necessary for post-school educational institutions to provide both key elements. However, as many tertiary institutions still do not offer students the opportunity to gain practical, hands-on experience, graduates need to explore different avenues to achieve both practical and academic knowledge. Enter the era of the learnership.

Awelcome judgment was handed down by the Competition Appeal Court (CAC) in Dawn Consolidated Holdings and Others v the Competition Commission (Dawn) (155/CAC/Oct 2017) in early May 2018. It is welcomed both on the merits and for the guidance it gives to approaching restraints of trade from a competition law perspective in South Africa.

Von Seidels

Webber Wentzel

DLA Piper

Hogan Lovells

Clyde & Co

Fasken

Clyde & Co

Fasken

Maponya

ENSafrica

Norton Rose Fulbright

During winter it is often very tempting, especially in the legal environment, to stick to an allblack colour palette when styling your work wardrobe. Before too long, however, it becomes very repetitive and you may be making choices out of habit rather than inspiration.

Constantia Glen is situated a mere 20 minutes outside the Cape Town city centre, in Constantia – the oldest wine producing region in South Africa. This boutique wine estate is positioned between the Constantiaberg and Table Mountain, with predominantly north-east facing slopes that allow exposure to late afternoon sun which is ideal for slow ripening in such a cool climate area.