March 2007


From My Window - March 2007 From My Window March 2007

Private Equity has become quite something in recent months.As a contributor observes in this issue, it is hardly possible these days to open a newspaper without falling over news of yet another takeover deal in which the buyer is a consortium constructed by one or other of the major PE companies.

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The Alexander Forbes deal – long hours, sweat and some tears Financial Law - Merges & Aqcuisitions March 2007

The anatomy of an exceptionally complex deal. It's being billed as the most complex private equity transaction in South Africa to date. It is nearly done now, but in the early hours of December 16 2006, it was so touch and go, and had become so stressful for all involved, that some members of the Alexander Forbes buyout deal team must surely have considered just walking away.

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An unprecedented legal effort Financial Law - Merges & Aqcuisitions March 2007

There were more than 100 legal documents on the debt side alone in putting together the Alexander Forbes transaction. Some of the country's leading legal brains worked on the transaction, as well as some senior legal advisers inNew York and London.

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Surplus provisions in the Pension Funds Act – a legal minefield Financial Law March 2007

The substantial liabilities which many employers in Western countries carry in respect of their pension arrangements are well known. Those liabilities arise because these pension arrangements were defined benefit funds with a guarantee by the employer as to the benefit promised. The combination of poor investment returns, pensioners living longer than before and lower interest rates (making it necessary for there to be more assets to provide the same level of pensions) has resulted, in many cases, in pension funds reporting deficits.

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Damned if they do and damned if they don’t Financial Law March 2007

As the National Credit Act (NCA) deadline date, June 1 2007, approaches faster than a speeding (Gau)train, the services upon which retailers are so heavily reliant, namely from Eskom and Telkom, are becoming increasingly unreliable.

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What to watch for in the National Credit Act Financial Law March 2007

The National Credit Act (34 of 2005) has been implemented in stages and most of the Act's administrative provisions have come into effect. Of importance was the establishment of the National Credit Regulator and the requirement that all credit providers and credit bureaux register within 40 working days of the commencement date. On September 1 last year the National Consumer Tribunal was formed and measures to protect the consumer against unfair practices were also implemented.The final stage in the three stage adoption approach will see the remaining provisions, which form the bulk of the Act, come into effect in June.

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The R20bn unregulated hedge fund industry Financial Law March 2007

The value of funds under management in hedge funds in South Africa is believed to be close to R20bn – yet this industry remains without specific regulation. There is in fact not even a unanimously-accepted definition of hedge funds.

Nor is there a clear view as to whether or not, and how, this situation should be changed. Some players in the industry believe the lack of regulation creates uncertainty, which is a hindrance to growth, though the soaring value of hedge funds under management would appear to contradict this opinion.

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When is an offer of compromise a settlement? Financial Law March 2007

A cheque received from a debtor in full and final settlement of the creditor's claim, compromises the creditor's claim, once the cheque is deposited… or does it? This difficult area of law was recently revisited in the case of Be Bop A Lula Manufacturing CC v Kingtex Marketing (Pty) Ltd.

Picture the following: A manufacturer delivers a product to a wholesaler and submits an invoice. The wholesaler, for whatever reason, denies liability for the full amount and sends a cheque for a lesser amount to the manufacturer that is marked as being in full and final settlement.

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Private equity muscles into the M&A industry Company Law March 2007

It is seldom possible these days to pick up a financial newspaper that does not contain an article covering one or other aspect of a private equity transaction. Private equity has without doubt become the Beckham of the mergers and acquisitions playing field.

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Close corporation fronting violates the letter and spirit of relevant legislation Company Law March 2007

Government has proposed a legislative reform requiring companies and directors to have regard, not only to shareholders' interests, but also to the interests of all “stakeholders."

Can individuals be excluded from carrying on the business of close corporations of which they are members? Surely not, is the obvious response. After all, they have a stake in the business and therefore should be entitled to be involved in its operation.

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A chilling future for the Sony/BMA merger Competition Law March 2007

Last year Europe's Court of First Instance (CFI) annulled the EU Commission's decision to approve a merger between Sony and Bertelsmann of their global recorded music activities. The merger effectively resulted in the creation of the world's second largest record label behind Universal, bringing Sony artists like Aerosmith, George Michael and Barbara Streisand and BMG's Avril Lavign and Elvis Presley under one roof.

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Women (who are different) and stress Medical Law March 2007

This is the second in a tho-part series that canvasses stress in the workplace.

The cartoon illustrating the first part of this article on work-related stress was peculiarly apt (reproduced here). This was an inspired choice, reflecting factors which contribute to the steady increase in the numbers of women applying for medical boarding on the grounds of psychiatric disability.

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Unlocking the Medical Schemes Amendment Bill Medical Law March 2007

This is the first in a two-part series which dissects the Medical Schemes Draft Amendment Bill. The second part will appear in the April 2007 issue

The publication of the long anticipated Medical Schemes Amendment Bill, 2007 for comment on November 24 2006 has settled, to an extent, speculation on changes the industry may expect. The draft Bill proposes the following changes to the Medical Schemes Act, 1998:

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Now you can lose your pants on the internet Gaming Law March 2007

Gambling in South Africa is regulated at the national and provincial level. In terms of s11 of the National Gambling Act of 2004, internet gambling is generally prohibited. It prohibits a person from engaging in, or making available, an “interactive game", unless authorised by the Act.

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Who owns what? Intellectual Property March 2007

Inventions are made by people and not by companies or other structures created by law. It follows that under South African law, an inventor must participate in the patenting process. The South African Patents Act is clear that it is only the inventor or a person who acquires rights from the inventor or both the inventor and that other person who may apply for a patent.

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