August 2007

From My Window - August 2007 From My Window August 2007

A judge of the Johannesburg High Court called me last week and, at the end of our conversation, said he hoped I would keep open this window to let in fresh air and let out good ideas. But all I have had recently is legal air redolent with those occasional and very nasty smells I understand drift into Johannesburg from Sasol's various upwind operations.

Coming to the rescue Company Law August 2007

Chapter 6 (Business Rescue) of the Companies' Bill, 2007 seeks to recognise changes that have taken place in South Africa's economy since the current Companies' Act 1973 came into force. The Bill is closely aligned with the USA's Chapter 11 procedure in that it allows a company to seek protection from creditors by choosing a plan of reorganisation, keeping the business alive and paying creditors over time.

The National Credit Act: another example of slipshod drafting Consumer Law August 2007

It falls on legal advisers to interpret the National Credit Act and advise clients accordingly. This is not always easy, especially where the precise scope of the Act is not clear from its wording.

Concert behaviour Company Law August 2007

Most investors know that when a company is the subject of an affected transaction, the person who acquires control is obliged to extend a like offer to other shareholders in the company. This applies equally to the acquisition of control by persons acting in concert. The obligation is spelt out in the Securities Regulation Code, which is regulated by the Securities Regulation Panel (SRP).

Do loans to employees fall within the ambit of the National Credit Act? Consumer Law August 2007

The main objective of the NCA is to provide an accessible credit market but, at the same time, protect consumers.This is achieved by encouraging responsible borrowing by consumers and discouraging reckless lending by credit providers. An important feature of the NCA is its insistence on the consistent treatment of different credit products and different credit providers by balancing the varied rights and responsibilities of both credit providers and consumers.

Understanding what needs to be known about credit agreements Consumer Law August 2007

In terms of s63 of the National Credit Act, the credit provider is required to supply credit agreements in an official language the consumer reads or understands, having regard to usage practicality, expense, regional circumstances and the balance of the needs and preferences of the population ordinarily served by the person delivering that document.

When walls have ears … Criminal Law August 2007

Just because you're paranoid, it doesn't mean they're not out to get you…. bosses who're convinced their companies are being spied on are not necessarily delusional, as corporate espionage happens in South Africa and is likely to increase.

What happens when the three Rs are neglected Education Law August 2007

The quality of university graduates, and legal graduates in particular, was bemoaned recently by Nic Swart, The Law Society of SA director of legal education and development. Swart laid the blame squarely at the door of general and further education institutions (those catering for grades 0 to 12). The untimely strike by the South African Democratic Teachers Union (SADTU) will only exacerbate these claims.

Up-side down trilogy of tax–related rulings Tax August 2007

In ancient Greece a 'trilogy' was a series of three tragedies performed consecutively.

Special Tax Measures: 2010 FIFA World Cup South AfricaTM Tax August 2007

In 2003 the Ministry of Finance issued a Government Guarantee to the Fédération Internationale de Football Association to assist the South African Football Association in its bid to host the 2010 FIFA World CupTM in South Africa (the Championship). This Government Guarantee, which was a compulsory requirement of the bid and without which the bid for the Championship would certainly have failed, guaranteed that FIFA and certain other entities (dealt with later) would receive favourable fiscal treatment including exemption from certain taxes, duties and levies if SAFA's bid to host the Championship succeeded.

Tread carefully with employee share schemes Tax August 2007

Employee shares schemes are widely used as a means of attracting and retaining employees within the private sector. The underlying philosophy is that employees with a share in the employer company have a vested interest in the financial performance of the company, which motivates those employees to a higher level of performance and productivity. Numerous companies, both listed and unlisted and across all business sectors, have implemented share schemes in various forms including share options, employee share trusts, deferred delivery schemes and even 'phantom' share schemes.

MAMA – they’re making eyes at me Intellectual Property August 2007

Promotional competitions are governed by s54 of the Lotteries Act (57 of 1997). In the first matter of its kind in South Africa, the National Lotteries Board (NLB) instituted motion proceedings against FirstRand Bank (FNB), in terms of which the NLB sought the following order:

The first co.za domain name dispute is decided Intellectual Property August 2007

The adjudicator in the first co.za domain name disputelodged with SAIIPL in South Africa has refused to order the transfer of the domain name “mrplastic.co.za" to the complainant.

When colour matters Intellectual Property August 2007

“The life of a trade mark depends upon the promptitude with which it can be vindicated." - Eloff, J, Transvaal Provincial Division.In March, the Johannesburg High Court delivered an ex tempore judgement in an interesting case where Ussher Inventions relied on the legal protection offered by a registered colour trade mark.

Tax avoidance or evasion in “sale and leasebacks” Intellectual Property August 2007

Historically, sale and leaseback transactions were typicallyapplied to tangible assets, such as plant, machinery and equipment. However, since the mid-1990's, its application has increasingly been extended to incorporeal property, such as trademarks, patents, designs, copyright and knowhow. When applied to intellectual property (IP), the “leaseback" and associated “rental payments" are more correctly referred to as “licence" and “royalties," respectively.