June 2010


Introducing a new instrument for mergers and amalgamations Company Law June 2010

The coming into effect of the new Companies Act (71 of 2008 (the New Companies Act)), likely to be in September of this year, will unveil a new chapter in South African corporate law.

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The future for non-profit entities using the company vehicle Company Law June 2010

For non-profit organisations that want to incorporate as a company in terms of the current Companies Act (63 of 1971), the advantages offered by the company vehicle include limited liability because of the company's legal personality and certainty as to the law applicable to the entity (statute is seen to be more certain and accessible than the common law). Also, the company vehicle results in increased stakeholder trust in the non-profit entity due to the considerable accounting and disclosure provisions and other statutory requirements imposed by the current Act.

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Getting clever in devastating times Consumer Law June 2010

The recession has had a devastating effect on business; with less money circulating in our economy many borrowers have struggled to repay their loans. The in duplum rule aims to protect borrowers by preventing lenders from claiming an amount in arrear interest that exceeds the amount of the original loan.

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Protecting personal information Consumer Law June 2010

Few things irritate the tax-paying public more than the sight of officials, paid from our involuntary contributions to the communal purse, taking time out, and sitting at home doing nothing for months and even years – all the while drawing a full salary.

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Not before time – common sense in the courtroom Platteland Perspective June 2010

Few things irritate the tax-paying public more than the sight of officials, paid from our involuntary contributions to the communal purse, taking time out, and sitting at home doing nothing for months and even years – all the while drawing a full salary.

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Potholier than thou Not The Law Reports June 2010

Foss-Harbottle J: The applicant, a worthy citizen doing what many have promised to do, has applied for an order compelling the municipality to fill in all the potholes within its jurisdiction. The reason, he says, is that the answer to the question “What are Johannesburg's roads like?' has become “Not bad as a hole."

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The LRA: still the one-stop shop for labour disputes Labour Law June 2010

In South African Maritime Safety Authority (SAMA) v Fafie Fortune Mckenzie [2010] ZASCA 2 (15 February 2010), the Supreme Court of Appeal (SCA) had to decide whether s185 of the Labour Relations Act, 66 of 1996 (LRA) creates a contractual right not to be unfairly dismissed. This section provides that an employee has the right not to be unfairly dismissed and not to be subject to unfair labour practices.

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The duty to account Litigation June 2010

It seems that the legal position governing the rights of trust beneficiaries in relation to access to information has been marred by a lack of precision in the law and remains uncodified in statute. To determine the extent of this right, regard should be had to source documents such as the trust deed, case law, the common law and general jurisprudence. Here specific reference is made to the test set out in Doyle v Board of Executors1, (the Doyle case) a related case discussion2 and the obiter dicta in various other cases.

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Legislative powers of the three tiers of government are complementary The Law June 2010

The post-constitutional shift from strict hierarchal divisions among national, provincial and municipal government toward three spheres of government with equivalent status in their constitutionally defined areas of legislative competence was recognised in Swartland Municipality, Hugo Wiehahn Louw N.O. and six other respondents (Western Cape High Court, December 21 2009). The court interdicted mining on a farm in terms of a mining licence awarded under the Mineral & Petroleum Resources Development Act, 2002 (the MPRDA) until the farm was rezoned by the Municipality in accordance with provincial legislation to a zone permitting mining activities.

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When the factual context counts Contract Law June 2010

The factual context in which a contract is located provides a valuable aid to interpretation, particularly in cases when an ambiguous clause is the object of a dispute. Factors apparently external to the contract may provide a strong indication of the intention of the parties.

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Reinforcing ancient values Management June 2010

Avery good friend of mine was somewhat nonplussed by an announcement a few years back; he had heard that the Law Society in England & Wales had set up an “Essex Helpline". “What on earth" he opined “did the Law Society think it was doing spending our money on something just for Essex? And what the hell was going on in Essex that they needed their own helpline?"

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Sharing knowledge and skills Management June 2010

In keeping with the spirit of camaraderie echoing throughout South Africa as a result of the up-coming 2010 FIFA World CupTM Eskom's Corporate Legal Department strengthened its partnership with colleagues in the legal fraternity during their annual Panel of Attorneys Workshop held during May at the Eskom Convention Centre in Midrand.

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Strive for perfection, settle for excellence Management June 2010

Everyone has a story about his or her first client or first job. And they often have the ring about them that seems serendipitous in hindsight, where the stars aligned and someone caught a very lucky break. In fact, there is often additional detail that reveals the co-ordinated long-term effort required to create that opportunity and others like it.

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Keeping the lights on Energy Law June 2010

Part I (May 2010, pp42-43) concluded that renewable energy technologies will, for a considerable time, continue to lag coal-fired technologies in the generation of electricity in South Africa. For as long as the country's power utility, Eskom Holdings, continues to make significant investments in coal-fired power stations and technologies, renewable energy technology will remain several generations behind.

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As easy as PIE Property Law June 2010

In a welcome judgement delivered on December 3 2009, the Supreme Court of Appeal removed the puzzlement from procedural compliance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE), in the Magistrates' Courts. It dealt with the matter succinctly by detailing the process to achieve conformity withPIE and the Magistrates' Courts Rules (R1108/68) (Theart v Deon Minnaar NO (438/08) and Senekal v Winskor 174 (Pty) Ltd (007/09) [2009] ZA SCA 173).

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