February 2008


From My Window - February 2008 From My Window February 2008

Among the problems invariably attached to the creation of new institutions intended to plug a perceived gap in the work of an existing organisation is that of turf wars. This happens everywhere; it certainly isn't unique to this country. In America, turf wars between security institutions bedevilled their work – hence the creation of a supposedly overseeing mother hen in the shape of its Homeland Security department. In the UK, arguments over ownership rights to information are common between MI5, MI6 and the Police Special Branch.

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Getting damages from the taxman Tax February 2008

The recent decisions of the Tax Court in which it awarded costs against the SA Revenue Service on a punitive basis raises the question of whether taxpayers should not be entitled to recover damages from the Commissioner where his officials have acted negligently1.

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Mergers: plugging the STC hole Tax February 2008

The South African Revenue Service has withdrawn the exemption from secondary tax on companies (STC) for amalgamation transactions, more commonly known as mergers.

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Securitisations … and the Revenue Tax February 2008

Corporates are almost always in need of cash, whether for growing and expanding the business, settling maturing debt obligations, or funding a take-over. Depending on its credit rating, a company may meet this need by issuing unsecured debt securities. However, raising capital this way may be a tad expensive.

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Rights for all [animal] beings? The Law February 2008

"If slaughterhouses had glass walls the whole world would be vegetarian." Linda McCartney

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Wrinkles in third party procedures The Law February 2008

In Christa Steyn v P Steyn1, a recent unreported judgement of the Johannesburg High Court, the court ordered the rescission of a default judgement obtained under Rule 13 of the Uniform Rules of Court holding that the judgement could not be competently obtained under Rule 31(2)(a).

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Alternative Dispute Resolution The Law February 2008

Domain names have come to be recognised as property, an important part of the general body of intellectual property belonging to a company or individual, and conveying the brand by which a company or individual is recognised. The registration of “offensive" and “abusive" domain names has become the order of the day. Lawyers and law enforcement and regulatory bodies around the world have rapidly found ways to try to deal with these “cyber pirates" through delictual actions and criminal sanctions.

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Of reputation, interdicts and freedom of speech: defaming Eugene de Kock Constitutional Law February 2008

On November 21 last year, Eugene de Kock succeeded in the Pretoria High Court in an application for an interim interdict against Christi van der Westhuizen, the author of "White Power & the Rise and Fall of the National Party", and the book's publisher, Zebra Press. The terms of the interdict were draconian: pending the return date – the date upon which van der Westhuizen and Zebra could appear in court to urge that the interim relief should not be made final – they were prohibited from further printing and distributing the book and were ordered to claim back all copies of the book from its distributors.

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Unintended consequences of the National Credit Act Banking Law February 2008

The National Credit Act (34 of 2005) applies in principle to all people who extend credit. These include persons whose main business is not the granting of credit and for whom compliance with the NCA is very onerous if not impossible. One possible solution for a person who does not want to remain a credit provider is to sell his existing loan book. The question is what is the effect of the NCA on such a practice.

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Defining Basel II Banking Law February 2008

BASEL II: THE BACKGROUND This is part one of a two-part series. In 2004 the Basel Committee on Banking Supervision published a revised Capital Accord for banks ("International Convergence of Capital Measurement and Capital Standards: A Revised Framework" (Basel II)). This is a result of the revision of the 1990 Capital Accord (Basel I) and the primary purpose was to develop a framework that would further strengthen the safety, soundness and stability of the international banking system.

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Paying for public holidays Public Interest Law February 2008

When dealing with the effect of public holidays on business, regard must be had to the Public Holiday Act, 1994. The Act specifies 12 days as public holidays. In addition, it provides that whenever a public holiday falls on a Sunday, the following Monday is deemed to be a public holiday. If operations are conducted on a Sunday, but not on a public holiday, a dispute may arise in the event that a public holiday falls on the Sunday, as to whether employees are entitled to be paid for the public holiday on both the Sunday and the Monday.

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When commercial benefit is dressed as public interest Public Interest Law February 2008

The Pretoria High Court recently dealt with a review and application for the setting aside of the registration of a hospital on the basis that the registration was granted unlawfully and not in terms of the Promotion of Administrative Justice Act of 2000 (PAJA).

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Swissbourgh diamond claims sunk again; related UK legal action threatened Litigation February 2008

In dismissing van Zyl's claim, the Supreme Court of Appeal made some troubling findings on the limits of states' rights to extend diplomatic protection to their citizens under customary international law.

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Religious symbols and customs in the workplace Labour Law February 2008

The debate about religious symbols and customs in the workplace is a lively one because it involves the balancing of competing views and interests.

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The dangers of crying wolf Labour Law February 2008

The Labour Appeal Court and the Labour Courts have come out strongly against racism in the workplace. The reason is obvious – the constitution and other legislation outlaw historically institutionalised racism in South Africa. Also, there is a moral and social obligation on all South Africans to make a concerted effort to break with the past and ensure that a just and equitable society is created.

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