August 2010


From My Window - August 2010 From My Window August 2010

The tragedy that resulted in the destruction of BP's oil rig, the Deepwater Horizon, in the Gulf of Mexico and which took eleven lives in the process, has taken on the dimensions of an international disaster. It has also given Americans the opportunity to drum up a chorus of anti-British sentiment, not exactly what an ally would expect after standing virtually alone with America through both the Iraqi and Afghanistan wars. It certainly exposes as a fiction the spurious "special relationship" so many British politicians have clung to down the years. As I write, The New York Times has already signalled news that the massive oil slick which resulted from the BP accident is showing signs of breaking up, much faster and earlier than had been hoped, an indication that nature is busy with extensive repair work. But this sad event is also an opportunity to begin an examination of the lessons it carries for all of us, and certainly for lawyers, many of whom will become involved in solving the vast mass of claims and litigation that is bound to result. Paul Gilbert of the UK-based legal management firm LBC Wise Counsel offers a perspective in this issue (page 45) and I hope you will take the time to read it.

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When prisoners’ rights outweigh those of law-abiding citizens Constitutional Law August 2010

The judgement of the Constitutional Court on prisoners' voting rights invites comparison with another judgement by the same court. That judgement dealt with the constitutionality of legislation promulgated shortly before the 1999 elections, and which restricted the right to vote to only those citizens in possession of the barcoded identity document.

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Is the conduct of the Law Society anti-competitive? The Law August 2010

The Competition Commission of South Africa has maintained concerns about four areas of legal practice: Professional Fees: the setting of tariffs, guidelines and rules as to the fees charged by attorneys for certain services (in particular conveyancing); Reservation of Work: the reservation of certain work for attorneys and in certain circumstances for specially qualified attorneys (again, in particular, conveyancing); Multi-disciplinary Practices: the prohibition on offering a number of disciplines within a firm of attorneys; and Advertising, Marketing and Touting: the limitations on the type, medium and standard of advertising and marketing within the profession.

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Storm in a teacup Intellectual Property August 2010

A number of reports have been recently published which allege that food giant Nestlé may have committed biopiracy. This comes after Nestec S.A., a subsidiary of Nestlé responsible for research and technology, filed five patent applications relating to compositions containing either rooibos or honeybush extracts and their uses.

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Enforcement of rights places capital in the hands of the nation Intellectual Property August 2010

The renowned economist, Hernando de Soto, once said the function of formal property is to place capital in the hands of a nation. In a world where intellectual property rights play a crucial and ever increasing role in the economy of any nation, the question begs: what is South Africa doing to ensure that we as South Africans reap the economic benefits in an era where economies are driven by the trade of ideas?

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The real issue behind LG's "tax fraud" Tax August 2010

The South African Revenue Services (SARS) has been in a protracted court battle with electronics giant LG since 2007. LG has publically been accused of committing tax fraud yet the Supreme Court of Appeal (SCA) has found that LG's actions were legitimate and allowable under the Customs Act.

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Islamic Finance: problems with handling Murabahah Tax August 2010

The draft Taxation Laws Amendment Bill 2010 proposes certain amendments to tax legislation in order to level the playing field, from a tax perspective, between conventional and Islamic finance. Whether the stated objective is met is considered and discussed in this article.

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A regional investment fund regime Tax August 2010

In May this year the South African Revenue Services (SARS) published the Draft Taxation Laws Amendment Bill, 2010 for public comment. One of the proposed amendments to the Income Tax Act (58 of 1962) is the introduction, with effect from January 1 2011, of a regional investment fund regime. By doing so, SARS is hoping to raise South Africa's profile as a preferred jurisdiction for regional investment management. This is a welcomed and progressive development.

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Be warned – file correctly or else Tax August 2010

The recent decision in Crabbe v United States (Case No. 08-1393) where a business owner, William Crabbe, was convicted of multiple counts of failure to pay over payroll taxes and filing false returns, highlights the need for employers to be on top of their game when it comes to Pay-As-You-Earn (PAYE) compliance. The Minister of Finance in his 2010 budget speech also made it abundantly clear that tough action will be taken on firms which are not PAYE compliant.

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“We didn’t know” won’t work Competition Law August 2010

It is hardly a secret that many large, well-known South African companies have engaged in cartel behaviour over the past few years.

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Differences between South Africa’s and England’s new Companies Acts Company Law August 2010

England has recently re-written its company law legislation; its Companies Act of 1985 was replaced by the Companies Act of 2006 (the New English Act). South Africa is also currently overhauling its companies' legislation and the new Companies Act of 2008 (the New South African Act) has been promulgated.

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Corporate Governance: back to basics Company Law August 2010

Entities that adhere to good corporate governance will reap more benefits and have a competitive edge over entities that don't. These benefits include greater investor interest, greater stakeholder trust and the ability to obtain funding more easily (in particular in the case of smaller entities that require credit and non-profit entities that require donations).

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Manna from heaven Platteland Perspective August 2010

IT starts off promising nothing more than a technical argument about assets forfeiture but, before you knew it, the case has become a story that would do Herman Charles Bosman proud.

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Unending drama on the field of play Not The Law Reports August 2010

Foss-Harbottle J: It was inevitable that the FIFA World Cup would give rise to further litigation. This case is about the use of cameras during football matches. What is surprising about the case is that the applicants want less use of cameras and not more.

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Art, law and the collector Financial Law August 2010

Art in the major markets is increasing in value and there is a relative shortage of high-quality works. Local tax and foreign exchange regulations favour investment in art by individuals and institutions. The local market is more sophisticated and more internationalised than ever before and, aided by shrewd marketing, is showing remarkable resilience in uncertain economic circumstances.

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