Without Prejudice - Volume 16, Issue 3, 2016
Volume 16, Issue 3, 2016
Source: Without Prejudice 16 (2016)More Less
As without prejudice goes to print we are a world at war. One quite as deadly, but much more silent and insidious than the First and Second World Wars. The perpetrators sit in safety while others carry-out their dreadful plans, aimed at inflicting misery on innocents. It has been said that this is something the world must get used to. The US authorities have attracted considerable criticism for following on-line chats and using the internet to keep tabs on terrorists and their plans. Other countries have certainly followed suit, if they weren't already using the same means and London has advised that several terrorist attacks have been foiled as a result. And while many countries have introduced protection of personal information acts, this is one instance where the majority of people would rather have counter-terrorist authorities being aware of planned atrocities than waking up to the news of yet another attack.
Author Jyoti NarshiSource: Without Prejudice 16 (2016)More Less
It was inevitable that the Public Protector's powers would be tested before the Constitutional Court - though few could quite imagine the ensuing crisis, which shows no sign of abating. Demands for the President's resignation have been multitudinous, and an impeachment process played out unsuccessfully in parliament.
Source: Without Prejudice 16, pp 9 –10 (2016)More Less
In Part 1 of this article, we explained what is meant by "price signalling", and concluded that it is possible that price signalling may constitute a concerted practice under s4 of the South African Competition Act. This second part explores the circumstances when price signalling could constitute an illegal concerted practice.
Author Joanne MatisonnSource: Without Prejudice 16, pp 11 –13 (2016)More Less
Research on the efficacy of independent directors serving on boards of directors has shown mixed results. There is general consensus that the presence of independent directors improves corporate governance. On the other hand, the failure of companies such as Enron and African Bank, which quantitatively were able to tick off all the best practice governance boxes, raises the question as to the value of independent directors.
Author Azeem SulemanjSource: Without Prejudice 16, pp 14 –15 (2016)More Less
The recent case of Bibby Factors Northwest Ltd v HFD Ltd & Anor  EWCA Civ 1908 in the English Court of Appeal confirmed the position under English law of a debtor's right to set-off against an assignee. In England and South Africa alike, the issue of the validity of a debtor's right to set-off against an assignee or cessionary is particularly relevant where companies access credit by selling their debt to a bank or factoring company.
Author Neil KirbySource: Without Prejudice 16, pp 16 –17 (2016)More Less
Recently, articles published in the media report that the United Kingdom is the latest jurisdiction to permit the editing of DNA to remove possible disorders from human embryos. This follows an announcement by the Chinese government, during the course of 2015, that it has carried out gene-altering therapy.
Source: Without Prejudice 16, pp 19 –20 (2016)More Less
The Supreme Court of Appeal, in City of Tshwane Metropolitan Municipality and Others v Nambiti Technologies (Pty) Ltd  1 All SA 332 (SCA), held that the cancellation of a tender is not administrative action and, therefore, not subject to the Promotion of Administrative Justice Act (3 of 2000) (PAJA). The judgement is a clear affirmation of the primacy of the executive branch of government in setting procurement priorities.
Source: Without Prejudice 16 (2016)More Less
Author Robyn DownsSource: Without Prejudice 16, pp 22 –23 (2016)More Less
Arecent decision of the Western Cape High Court confirms that the right to an unrestricted view does not automatically vest in terms of the common law. The appropriate manner to secure this right is to register a servitude against the title deeds of the properties in the Deeds Registry. The discussion of the court sets out the basic principles relating to interpretation generally and interpretation of servitudes specifically.
Author Johan BotesSource: Without Prejudice 16, pp 24 –25 (2016)More Less
May an employee resile from a settlement agreement because it bars him from claiming unfair dismissal? Will our courts enforce an agreement that deprives the employee of his statutory right to challenge the fairness of his dismissal? The Labour Appeal Court (LAC) recently considered this issue and provided us with guidance.
Author Darren PassmoorSource: Without Prejudice 16, pp 26 –27 (2016)More Less
The Fiduciary Duty Debate Insofar as fiduciary duties are concerned, it should be noted that although they are now statutorily entrenched, prior to the insertion of s7C(2)(f) into the Act (In terms of s9 of the Financial Services Laws General Amendment Act (45 of 2013), with effect from28 February 2014) there was debate among academics as to whether trustees in fact owed a fiduciary duty towards members and beneficiaries. Given that a Fund (unlike a Trust) is a legal person and that members of a Fund do not have rights to assets of the Fund, it was argued that the trustees only owed a fiduciary duty to the Fund and not to the members or beneficiaries.
Author Carmel RickardSource: Without Prejudice 16, pp 28 –29 (2016)More Less
There's nothing that charms a visitor to the platteland more than the sight of cattle and horses roaming the streets of a little dorp - except maybe a few sheep browsing the local soccer field. Great photo ops, they provide proof that the camera-wielder really made it out of the city.
Author Patrick BracherSource: Without Prejudice 16, pp 32 –33 (2016)More Less
Group uncovers 13 law firms facilitating anonymous investment
Texas police turned into mobile debt collectors
Feigning sleep during argument not prejudicial
Law firm raided by FBI for over-billing clients
Court upholds lifetime GPS ankle bracelet for sex offender
Drinking game video gets DUI first-time offender33 years in jail
Judge orders arrest of defendants who are late after being locked out of court
Plaintiffs had no First Amendment right to cellphone video of police
Lawyer accused of forging over 100 judges' signatures
Court denies a free-speech appeal over banned "stop a terrorist" bus ad
$1.5M a year for wrongful imprisonment is too high
Scalia's death results in settled class action
Twelve-year-old charged for making threats with emojis
Trump opposes withdrawal of class action plaintiff
Source: Without Prejudice 16, pp 34 –35 (2016)More Less
The Polish government is to ban the use of the phrase "Polish death camps" when referring to the Nazi death camps set up on Polish soil during the Second World War. The Nazi camps of Auschwitz-Birkenau, Treblinka and Sobibór were among the most infamous and Poles have long been outraged by the camps being associated with them rather than with the perpetrators of those hideous crimes, the Nazis. The new laws will make the offence punishable by fines or a jail term of up to five years.
Author Tladi MarumoSource: Without Prejudice 16, pp 36 –38 (2016)More Less
Civil litigation, like a sports game, has fitness criteria to qualify as a player. For right of entry into the field of litigation, prospective litigants must comply with the rules of legal standing. There are specific rules applicable to litigation involving a class action for damages for injury or damage in a delictual claim. In particular, where a class presents a novel question of delictual law, the certification question is whether the usual standard of proof to establish a valid cause of action is appropriate. This is necessary given the important yet preliminary nature of certification. Has a primafacie case or plausible case been made? This is the very question that arose in the class certification application in Mukaddam v Pioneer Foods (Pty) Ltd 2013 (2) SA 254 (SCA) (Mukaddam 1) and Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC) (Mukaddam 2).
Source: Without Prejudice 16, pp 38 –40 (2016)More Less
On 1 December 2015, the Supreme Court of Appeal (SCA) found the following: "I pause to mention that a practice manual or directive duly promulgatedby the Judge President of a division of the High Court, has the same force and effect as the Uniform rules." (Rossitter & others v Nedbank Ltd (96/2014 ZSCA 1 December 2015 at paragraph 15.) (The emphasis is ours.)
Author Jesicca RajpalSource: Without Prejudice 16, pp 41 –42 (2016)More Less