Without Prejudice - Volume 11, Issue 10, 2011
Volume 11, Issue 10, 2011
Author Myrle VanderstraetenSource: Without Prejudice 11 (2011)More Less
"We are the 99%" has become instantly recognisable as the slogan of Occupy Wall Street. The demonstrations in New York City (which have now spread to, it is claimed, at least 900 other cities) have been called "The American Spring," and a "democratic awakening" by some while others, less enamoured of the event, have called it leaderless and a group of rabble-rousers.
Author Nick BattersbySource: Without Prejudice 11 (2011)More Less
Published in February this year, the most recent amendments to Regulation 28 of the Pension Funds Act (24 of 1956) for the first time amended asset allocation limits governing the retirement industry at both a product and a member level. As such, individual investors are now compelled to comply with investment restrictions previously imposed at only an overall product level and are allowed maximum exposures of 75% to equity, 25% to property and 25% to offshore investments.
Author Yashveer RamSource: Without Prejudice 11, pp 8 –9 (2011)More Less
Project finance is a form of limited recourse finance and involves financing (usually on a long-term basis) the development or exploitation of a right, natural resource or other asset based upon the project's projected cash flows rather than the balance sheet of the entities undertaking the project.
Author Karin MullerSource: Without Prejudice 11, pp 9 –12 (2011)More Less
It is said that there are many similarities between South Africa and New Zealand. Obvious similarities such as an historical association as former British colonies, shared geographic location in the Southern hemisphere, comparable climates, cultural similarities (in particular an unparalleled love of rugby), come to mind. But can a similarity in "trust cultures" be added to this list? Especially when the New Zealand's trust culture has recently been described as "viral" and New Zealanders as "having a predilection for trusts beyond that experienced in similar countries." This description was recorded in the Issues Papers of the New Zealand Law Commission which, at the end of last year, embarked upon a systematic review of its law of trusts. Four Issues Papers have been released.
Author Janine LeeSource: Without Prejudice 11, pp 12 –13 (2011)More Less
Suppliers who grant credit to their customers ought to take steps to ensure that the prospects of recovery of these debts are as certain as they can be. A customer's continued profitability and financial security is never guaranteed, even where liability for the debt is admitted. This much is particularly apparent in times of economic downturn. Once flourishing and valued customers, who were granted credit facilities, might now find themselves unable to meet debts to longstanding suppliers, in contrast to years of excellent credit histories.
Author Aimee GirdwoodSource: Without Prejudice 11, pp 14 –16 (2011)More Less
Fiduciary duties are duties imposed upon a person who undertakes to exercise a discretionary power in the interests of another person in circumstances that give rise to a relationship of trust and confidence. It is a fundamental principle of our law that institutional investors as fiduciaries must, at all times, act with the utmost good faith and in the best interests of the fund and its beneficiaries (present and future) and with the proper degree of prudence, skill, care and diligence.
Author Anthony MarkhamSource: Without Prejudice 11, pp 16 –17 (2011)More Less
There were changes to the way in which value added tax is charged on supplies of services within and outside the European Union at the beginning of the year. In view of the current rates of VAT, these changes are worth understanding, particularly if you or entities connected to you use the services of professionals, such as administrators, lawyers and accountants.
Author Yaniv KleitmanSource: Without Prejudice 11, pp 18 –19 (2011)More Less
The significance of being a "prescribed officer" under new Companies Act, 2008 (Companies Act) has the following principal implications :
- Prescribed officers are, for the most part, subject to the same duties, standards of conduct and potential personal liability as those applicable to directors;
- The grounds of disqualification applicable to directors (for instance, being convicted of certain offences) apply equally to the holding of a prescribed office;
- The remuneration of prescribed officers must be disclosed in the annual financial statements of companies that are required to be audited;
- Certain transactions between companies and their prescribed officers are regulated, for instance the issuance of shares to prescribed officers, the repurchase by a company of shares from prescribed officers, and financial assistance given by a company to its prescribe officers; and
- Insurance and indemnification of prescribed officers is regulated.
Author Rael GootkinSource: Without Prejudice 11, pp 20 –21 (2011)More Less
In a judgement handed down in the Gauteng High Court on May 20 the Applicant, a director and shareholder in Beagles Run Investments 25 (Pty) Ltd, applied for
- the company to be placed under supervision in terms of the provisions of s131(4)(a) of the new Companies Act; and
- the commencement of business rescue proceedings and the appointment of an interim practitioner in terms of s131(5) of the same act.
Author Eric LevensteinSource: Without Prejudice 11, pp 21 –22 (2011)More Less
The new Companies Act creates certain onerous obligations and duties on company directors. One of these is to ensure that a director does not trade the business of his or her company recklessly, negligently or conduct the company's business with the intention of defrauding a creditor.
Author Natasha BouwmanSource: Without Prejudice 11, pp 22 –24 (2011)More Less
The fiduciary duties that directors owe their company basically entail that they act in good faith, for a proper purpose and in the best interests of the company. This is codified in s76(3)(a) and (b) of the Companies Act (71 of 2008), which should be read with the common law to establish the exact content of the fiduciary duties.
Source: Without Prejudice 11, pp 25 –26 (2011)More Less
Mandatory offers by persons who wish to acquire more than 35% of the shareholding in a regulated company are dealt with in s123 of the Companies Act, 2008. Takeover Regulations to the Act have been gazetted in terms of s120, and regulation 86 deals with mandatory offers.
Source: Without Prejudice 11, pp 26 –28 (2011)More Less
It is a general principle that in certain circumstances administrative acts and their consequences must be regarded as valid until set aside. As was said in Oudekraal Estates vs City of Cape Town 2004 (6) SA 222 (SCA) para 26.
"The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending on the view the subject takes on the validity of the act in question. No doubt it is for this reason that our law has always recognized that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside."
Author Sandra SitholeSource: Without Prejudice 11, pp 28 –29 (2011)More Less
Imagine a world where deadly diseases such as cancer and AIDS can be treated; where suffering caused by spinal cord injuries, birth defects, neurological disorders, strokes and diabetes can be eased by a simple transplantation of biological cells known as stem cells in the human body. This is considered possible through regenerative medicine in the form of cell-based therapy.
Author Neil KirbySource: Without Prejudice 11, pp 30 –32 (2011)More Less
On August 12, the policy on national health insurance (NHI) was published in the Government Gazette. The public enjoyed two months from August 12 to comment on the policy. Certainly, the process sounds equitable. However, in light of the policy's lack of particularity, it is difficult to make precise comments at this juncture.
Author Theuns Van De MerweSource: Without Prejudice 11, pp 34 –35 (2011)More Less
Ever wondered if that neglected painting next to the fossilised tin of Plascon Velvaglo in the corner of your attic is a lost Van Gogh, Picasso or De Goya? The recent "Bratz" decision in Carter Bryant v. Mattel Inc. (2:04-cv-09049, U.S. District Court for the Central District of California) suggests that business owners should perhaps turn a keener eye to the identification and protection of their hidden treasures. For businesses, this may be know-how, trade secrets and other constituents of their goodwill. Prudence is especially advisable in the current economic climate, when balance sheets may soon be combed for buoys to keep us afloat.
Author Lumka DlukuluSource: Without Prejudice 11, pp 36 –37 (2011)More Less
Author Bronwyn BurchellSource: Without Prejudice 11, pp 38 –39 (2011)More Less
An inadequate legislative framework has long left wronged consumers without proper redress, necessitating legal transformation in the field of consumer protection. This transformation came in the form of the new Consumer Protection Act, (68 of 2008 (CPA)) which came into force on April 1.
Author Lerothodi MohaleSource: Without Prejudice 11, pp 40 –41 (2011)More Less
In the midlands of KwaZulu-Natal there runs the beautiful and scenic Umgeni River which is joined by the Lions River before flowing into Midmar Dam. Along Umgeni River lies a property which is the subject of a tug of war between the Haffejee Trust and eThekwini Municipality over the expropriation of the property by the Municipality under the Expropriation Act, 1975. Haffejee v eThekwini Municipality (110/10)  ZACC 28 (25 August 2011) considered whether compensation should be paid before expropriation of property.