Without Prejudice - Volume 13, Issue 8, 2013
Volume 13, Issue 8, 2013
Author David GleasonSource: Without Prejudice 13 (2013)More Less
Gathering discontent about the quality of graduates leaving universities with the LLB degree has multiplied to such an extent that the summit of law deans to debate the problem was hardly unexpected. This is a matter of profound import because upon the excellence or otherwise of those who practise the law rests the entire institution we call the justice system.
Source: Without Prejudice 13 (2013)More Less
One of the greatest gifts, particularly given the number of hours involved, is a passion for one's job. It always surprises me how very few people really love what they do and don't mind Monday mornings. At the without prejudice Editorial Board meeting in January we discussed the concerns being expressed about the LLB. The very next day the LLB Summit: Legal Education in Crisis? was announced. The possibility of conducting a survey was discussed at the meeting but with this announcement it took on a new dimension.
Author Yaniv KleitmanSource: Without Prejudice 13, pp 6 –8 (2013)More Less
Since the Companies Act (71 of 2008) came into force on May 1 2011, legal practitioners have had to grapple with a number of issues brought about by this new legislation. We are now more than two years into the new company law regime. The purpose of this article, which will be set out over a number of parts, is to outline and share some of the common issues and questions that have arisen in practice and to share some of the suggested answers or solutions to these.
Author Jean VerweySource: Without Prejudice 13, pp 9 –10 (2013)More Less
It would appear that the legal consequences of dissolving a company after winding it up, are significantly different from what they used to be under the Companies Act (61 of 1973) (the Old Act). The New Companies Act (71 of 2008), has essentially combined the procedures and legal effects of a company's dissolution with those of a deregistration. As a result, in the event of either a dissolution or a deregistration, the directors and shareholders will remain personally liable for the company's debts.
Source: Without Prejudice 13, pp 12 –13 (2013)More Less
Sometimes called a foreign phenomenon, business rescue comprises proceedings to facilitate the rehabilitation of a company that is financially distressed by providing interalia temporary supervision of the company and the management of its affairs. In the well known matter of SARS v Beginsel NO and others, the court ruled that the Revenue Service could not be classified in business rescue the same way it is classified in liquidation proceedings. SARS was accordingly demoted to the role of a concurrent creditor and was suddenly in unfamiliar waters. This has the effect that SARS now ought to play a much more active role in the business rescue proceedings.
Author Nemo JudexSource: Without Prejudice 13 (2013)More Less
Katherine Bryophyte v Sub-Saharan Airways
Foss-Harbottle J: The plaintiff is a supermodel who sued Sub-Saharan Airways for a refund of an excess of baggage charge levied against her on her last flight. The plaintiff, as is characteristic of supermodels, took up very little space in the witness box. When travelling, her own limited dimensions are made up for by the dimensions of her luggage.
Author Stephen LangbridgeSource: Without Prejudice 13, pp 16 –17 (2013)More Less
Ask any business person who has had even a passing interest or concern for conduct, which might pose a competition risk and they will tell you discussions that involve agreement on price, allocation or division of territories and customers are to be avoided like the plague. Ask them about industry associations and they might tell you to be careful who attends and what is discussed.
Author Mohsina CheniaSource: Without Prejudice 13, pp 18 –19 (2013)More Less
Since the declaration by the African Union of the Decade of African Traditional Medicine in 2001 there has been increased recognition of the wide use of traditional medicine and "the importance of optimising its integration into national health systems. Some 80% of South Africans use traditional medicine to meet their primary healthcare needs".
Source: Without Prejudice 13, pp 20 –25 (2013)More Less
"The law is an exacting mistress." Judging by the responses received from candidate attorneys and those qualified attorneys who participated in this feature that statement is precise. LLB in crisis is a dramatic statement but concern about the degree has been bubbling away relatively unseen for years. However, muttered comments about general dissatisfaction with both the degree and its product became increasingly vocal and there was sufficient concern at universities, law societies and firms to demand discussion. This culminated in the LLB in crisis Summit held on May 29. Jan Stemmett and Krish Govender, LSSA Co-Chairpersons said at the time the Summit was announced in January that the attributes lacking in graduates of the four-year LLB degree "â?¦results in a significantly weakened profession." Of course this reflects badly on the universities too and a fast changing world cannot be ignored by any of the parties involved.
Source: Without Prejudice 13, pp 26 –27 (2013)More Less
The environment for international investors considering investment into the South African mining sector is unfortunately complicated and requires the investor to be aware of various critical issues, including in relation to:
- the mining specific statutory and regulatory framework (constituted in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), the Mining Charter and the Codes of Good Practice),
- obtaining and maintaining ownership in relation to mining and prospecting rights,
- broad based economic empowerment (including community participation),
- environmental obligations,
- health and safety obligations,
- water use issues,
- exchange control regulations,
- regulations pertaining to the transfer of mineral rights,
- beneficiation requirements,
- labour related issues,
- competition law related issues,
- an understanding of corporate and tax laws, and
- an understanding and appropriate application of local and foreign antibribery and corruption laws.
Author Jackwell FerisSource: Without Prejudice 13, pp 28 –29 (2013)More Less
The Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA) and its Amendment Act (49 of 2008) is the principal legislation in South Africa, regulating the granting or refusal of prospecting rights, mining rights, exploration rights and production rights to successful applicants by the state as the custodian of all mineral and petroleum resources through the Minister of Mineral Resources.
Author Cobus JoosteSource: Without Prejudice 13, pp 29 –30 (2013)More Less
South Africa is no stranger to the fever that accompanies the discovery of gemstones or precious metal in a particular region. Indeed, for decades the mineral riches of our nation were legendary across the world and the object of several battles for imperial, colonial or feudal control over the diamond, gold, platinum and coal fields of South Africa.
Author Jeanette WeidemanSource: Without Prejudice 13, pp 31 –33 (2013)More Less
On August 23 2011, the Minister of Health, Dr. Aaron Motsoaledi, released a media statement, advising that government had decided to adopt an exclusive breastfeeding strategy. According to the Minister, the reason for this decision was that, central to the goal of reducing child mortality, is the implementation of an exclusive breastfeeding strategy and discontinuing the practice of providing milk formula through hospitals and clinics, except when recommended by authorised health care practitioners. He went on to state that statistics reveal South Africa is one of only twelve countries in the world where infant mortality has been increasing and that only 8% of infants are exclusively breastfed up to the age of six months. The country has one of the lowest exclusive breastfeeding rates in the world.
Author Karen KitchenSource: Without Prejudice 13, pp 33 –34 (2013)More Less
What happens in a situation when genuine articles, such as high pressure vessels or electrical goods, manufactured by the actual manufacturer, are imported into South Africa but where the manufacturer's labels have been removed and replaced with falsified labels bearing fictitious serial numbers? The labels do not specify the electrical, oil and refrigerant information critical to safe and efficient installation and operation of the goods but bear the manufacturer's trade marks?
Author Danie PienaarSource: Without Prejudice 13, pp 36 –37 (2013)More Less
Through past experiences I have found that clients developing a new product are often aware that, to prevent others from copying their product, they need to acquire patent protection. Many of them, however, have not even heard about registered design protection which, in some cases, may provide them with an even stronger enforceable right to prevent potential competitors from manufacturing, using, selling or importing a similar product. The aim of this article is to provide more insight into the differences between registered design protection and patent protection.
Author Stuart GardinerSource: Without Prejudice 13, pp 38 –39 (2013)More Less
Author Simone MontySource: Without Prejudice 13, pp 39 –40 (2013)More Less
Spam refers to commercial communications that usually take the form of unsolicited electronic commercial communications, such as bulk e-mail and SMS (electronic spam) but may also take the form of unsolicited hardcopy such as bulk letters, flyers and pamphlets (paper spam). In South Africa there is no single piece of legislation that applies to spam generally. Currently, electronic spam is governed by the Electronic Communications and Transactions Act (ECTA). Since its promulgation there have been further Acts and Bills that deal with both electronic and paper spam.
Source: Without Prejudice 13, pp 41 –43 (2013)More Less
While expropriation may be necessary to achieve land reform, new laws aimed at facilitating and fast-tracking the process pose a threat to landowners and unsuspecting property right holders. The Expropriation Act (63 of 1975) empowers state institutions to expropriate property, subject to the requirements set out in s12. To most landowners, expropriation is a topic of contention, viewed as unattractive and undesirable. The perhaps unpalatable truth, however, is that expropriation is necessary in certain instances to redress historical wrongs and thus remains a justifiable limitation on ownership in terms of the Constitution. It condones expropriation that takes place within the framework of public purpose and public interest, an element of which must always include just and equitable compensation. In the search for an equitable balance between the Act and the Constitution, the controversial Expropriation Bill 2013 has recently been introduced for debate. Its purpose is to replace the Act and to provide organs of state with a constitutionally-sound framework within which to exercise their newly-acquired powers.
Author Rudy HaywoodSource: Without Prejudice 13, pp 44 –45 (2013)More Less
Most developers of security estates tend to include a condition in the agreement of sale when selling vacant land that the new owner should commence and/or complete building operations within a specific period of time. The intention is obvious - the developer wishes to complete the project as soon as possible and, in addition, the more houses being built, the better the sales of land still owned by the developer.