Without Prejudice - latest Issue
Volume 16, Issue 9, 2016
Source: Without Prejudice 16, pp 1 –23 (2016)More Less
There is a "rule" at Gleason Publications - never assume. Of course the rule gets broken; usually to the detriment of the perpetrator. The theme, so to say, of this year's So you want to be a lawyer? feature was based on pretty well that - our assumption, as students, that things will fall into place as long as we study diligently and our marks reflect our intelligence and dedication. Unfortunately that couldn't be further from the truth. There are many (too many?) students studying law, there are "top students" aplenty and there simply aren't enough candidate attorney positions to accommodate everyone. What do students need to do to give themselves an above average chance of claiming that coveted CA spot? The articles this year will give you some good ideas and not all the things you should be looking at are associated with the law. Despite getting good marks, some students and graduates don't get articles so make sure you tick as many boxes as you can. In your interview, show passion but don't appear to be recruiting for your cause - whether your interest is listening to rock music or starting a political party. Next year we will take a look at interview techniques - are you saying or doing something that you would be better off avoiding or are you keeping quiet about something that may tip the scales in your favour? In the meantime, ask around. This year's feature shows the very real need that, for starters, students apply for vacation programmes and articles early - I have heard of a couple of first year students who have that bagged but, generally, as you will read, it is in second-year. The articles for this feature were written by CAs, associates, senior associates and recruitment teams, lawyers who have taken a different path, at the law firms. Partners at Intellectual Property firm, Spoor & Fisher, give you a tantalising reason to consider IP (or not...) and another article gives you ideas about a future in insurance law that I can bet you haven't considered. We read about the interesting experience of being a female lawyer in a predominantly male practice - maritime law. Tongue in cheek (?), a partner at Hogan Lovells closes the section with some wise words.
Author Myrle VanderstraetenSource: Without Prejudice 16 (2016)More Less
October marks the 15th anniversary of the first issue of without prejudice. A comment by Dr Christel Marshall of Spoor & Fisher made me realise that many attorneys will have no idea how many years the magazine has been published or, for that matter, anything about its provenance. It was also her observation that lawyers would find this interesting, that has resulted in this potted history of without prejudice. There was no particular reason why the magazine was first published in October 2001 - it simply was. However, its format was inspired by Legal Week, the highly regarded UK publication whose columns were included in those early issues. Tabloid style, without prejudice stood out from other magazines on the shelves. Somewhat to our surprise, its style was enjoyed by a minority of readers; just over two years later it was changed. Its current "bastard" size works well, and it still stands out in a crowd.
Author Bouwer Van NiekerkSource: Without Prejudice 16, pp 6 –8 (2016)More Less
Chapter 6 of the Companies Act 71 of 2008 introduced the South African legal system to the notion and workings of business rescue. To date this has had a significant impact on our insolvency regime. A company that is in financial distress now has the option of placing itself under supervision and under the control of a business rescue practitioner (BRP), who is tasked with, amongst others, establishing whether that company's downfall can be avoided.
Author Arianna PedersoliSource: Without Prejudice 16, pp 9 –10 (2016)More Less
Good whistle-blower policies and procedures are an essential part of ensuring good corporate governance and improving the overall management of companies. This entails transparency and exposure of malpractices, fraud and corruption. Section 159 of the Companies Act (71 of 2008) affords whistle-blowers protection by granting them immunity from occupational detriment and any civil, criminal or administrative liability. Persons are protected for "disclosures" made, irrespective of whether the Act would otherwise apply to the disclosure. Furthermore, any provision in a company's memorandum of incorporation and/or any rules made in relation thereto are void, to the extent that they are inconsistent with and limit this provision of the Act.
Source: Without Prejudice 16 (2016)More Less
The case of Kythera Court v Le Rendez-VousCafé CC trading as Newscafé Bedfordview (case number 2016/11853 GLDJ) held that an agreement can be cancelled during business rescue as the unilateral act of cancellation does not constitute enforcement action in terms of s133(1) of the Companies Act (71 of 2008). This reiterated the decision of the Supreme Court of Appeal (SCA) in Cloete Murray NO & another v Firstrand Bank Ltd T/A Wesbank 2015 (3) SA 438 (SCA).
Source: Without Prejudice 16, pp 12 –14 (2016)More Less
Author Ina IyerSource: Without Prejudice 16 (2016)More Less
One aspect of the parol evidence rule, which applies to all contracts including insurance contracts, has been abolished. This should put insurers on their guard to ensure that their proposal forms, schedules and policy wordings clearly reflect their intention, because their intention is irrelevant in considering the meaning of disputed provisions when the matter is litigated.
Source: Without Prejudice 16, pp 18 –21 (2016)More Less
Crowd funding seems to be the trend that is stealing the spotlight at the moment. From raising US$40 000 for Zach Brown's potato salad, funding the Oscar winning film Innocente in 2013 or simply providing start-up capital for a small business, crowd funding purports to be the answer to everyone's unfunded dreams - without the hassle involved in obtaining traditional funding.
Author Carmel RickardSource: Without Prejudice 16, pp 24 –25 (2016)More Less
Author Dan FosterSource: Without Prejudice 16, pp 26 –27 (2016)More Less
Recent and proposed tax amendments have put a spotlight on the equity compensation of top management. Share schemes are traditionally designed as a long-term incentive intended to bolster employee retention and reward. Such incentives, however, typically make up a far larger portion of potential executive pay compared with rank and file employees; usually on the basis that management must have more skin in the game if their interests are to be properly aligned with shareholders. In the debate on executive pay, it is often forgotten that share prices both fall and rise, and that executives compensated with equity are taking that risk along with shareholders, usually whether they like it or not. The tax system principally encourages and rewards risk-taking with lower tax rates, as is the case for capital gains and dividends. This principle is not reflected in how share incentives are taxed, however. They are currently treated like any other form of remuneration.
Author Beric CroomeSource: Without Prejudice 16, pp 27 –29 (2016)More Less
Part 1 - During the course of the February 2016 National Budget presentation, the Minister of Finance announced a last opportunity for South Africans holding funds abroad, which are not known to the South African Revenue Service or the South African Reserve Bank, to regularise those assets. Draft legislation was released during February, and a subsequent draft during April, for public comment. Subsequently on 20 July, the National Treasury released a revised draft of the legislation dealing with the income tax aspects of the Special Voluntary Disclosure Programme (SVDP). On 13 July the South African Reserve Bank issued a Circular on the exchange control aspects of the SVDP.
Author Louis BothaSource: Without Prejudice 16, pp 32 –33 (2016)More Less
In modern society where convenience is key, it is common for businesses to deliver purchased goods to their clients. For these businesses, especially those which specialise in providing delivery and logistical services, it is important to note the applicable VAT considerations when purchasing a vehicle.
Author Brittany AndersonSource: Without Prejudice 16, pp 33 –34 (2016)More Less
Achampertous agreement is one in terms of which a person provides a litigant with funds to prosecute an action in return for a share of the proceeds. It goes back to the Roman and Roman-Dutch periods. Originally known as pacta de quota litis, these agreements were looked upon with disfavour by the courts. They were considered to encourage speculative litigation and consequently abused the legal process.
Source: Without Prejudice 16, pp 38 –39 (2016)More Less
Author Patrick BracherSource: Without Prejudice 16, pp 40 –41 (2016)More Less
Exhibit room clean up affects over 1 000 cases
Debate over court attire for accused
Bite-mark expert stands by testimony he can't recall
Two more lawyers disbarred for DUI setup
Ex-lawyer pleads guilty to hypnotising women for sexual pleasure
Federal judge threatens to reject document with footnotes
Longer sentences after unexpected football losses
Craigslist used to recruit lawyers to phony law firm
Retailer sued for syringe-prick in parking lot
Students sue for literacy rights
Female lawyers sues for detention in men's holding cell
Sheriff referred for criminal prosecution
Court rejects suit claiming Starbucks ice in beverages shortchanges customers
Conviction overturned for coercive interrogation
Judge smashes windshield with a pipe
Lawyer can't collect $9.5 billion Chevron judgement
Twitter is protected from liability lawsuit over ISIS propaganda