July 2011


From My Window - July 2011 From My Window July 2011

I was talking the other day to a corporate lawyer whose speciality is in mergers and acquisitions. It's a good place to be if the deal flow is steady and if your firm is the recipient of much of this work. But it is absolutely not a good place if you happen to be wrestling with new and untried elements of the new Companies Act. In fact, or so he told me, there is no major sector of the new Act which will not require a slew of amendments in order to make it workable. Since he said this in the presence of a number of other corporate attorneys and none raised any exception, I have to conclude that we have been saddled – yet again, I might add – with a seriously flawed but critical piece of legislation. It is this Act which, after all, governs the manner in which the country's economy functions.

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Editor's Note - July 2011 Editor's Note July 2011

Dario Milo and Okyerebea Ampofo-Anti write eloquently of the problems associated with the Protection of Information Bill (p 7). Since the article was written government made some concessions (June 24) by removing three of the clauses: scrapping the mandatory prison sentences for possessing and publishing secret information, limiting the power to classify to state security bodies and appointing a retired judge to hear any appeals for refusal to assess classified information. This response by government to pressure brought by many sectors of South African society has been called a "step in the right direction." There remains a major concern that without free access to information, corruption within government and state departments will remain hidden; this freedom is a major aspect of our Constitution and while it is possible to appreciate the need for national security for the safety of all South Africans, it is far too easy to hide behind this phrase.

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Recalling the dark ages Constitutional Law July 2011

The controversial Protection of Information Bill has once again made headlines as the parliamentary committee charged with considering the Bill moves towards finalising it. As a result of increasing public pressure for further deliberations on the Bill, the life of the committee, which was supposed to terminate at the end of June 2011, has been extended.

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Interpreting law, not making it Constitutional Law July 2011

This article explores the interpretation of statues primarily in light of the recent SCA decision of South African Airways (Pty) Ltd v Aviation Union of South Africa & Others (2011) 32 ILJ 87 (SCA). While the matter concerns an employment related issue the lessons to be drawn from the judgement are equally applicable to other disciplines.

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Muslim marriages and the long walk to equality Constitutional Law July 2011

Great emphasis is placed on the right to equality in South African law because of years of suppression and gross violations of human rights under apartheid rule. The fact that this right is recorded in the Constitution's preamble is indicative of the sheer weight it carries.

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An unco-ordinated bureaucratic madness Energy Law July 2011

On May 6 2011, the Minister of Energy, Dipuo Peters, promulgated1 the Electricity Regulations on the Integrated Resource Plan 2010-2030 (IRP 2010), under and in terms of s34 of the Electricity Regulation Act No.4 of 2006.

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Making the most of SA’s mineral wealth Mining Law July 2011

The Department of Mineral Resources has released the Beneficiation Strategy for The Minerals Industry of South Africa (the Strategy), which was approved by cabinet at its ordinary meeting held at Cape Town on June 8 2011.

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Weeping salty tears Platteland Perspective July 2011

WHEN you've been mining unlawfully for five years with a forged permit, it takes a special kind of cheek to try to persuade a court that you are the rightful owner of the relevant mining rights. But, and as I discovered, there's plenty of cheek in the platteland.

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What a mess Company Law July 2011

Since July 16 2010, the Companies and Intellectual Property Commission (CIPC), previously known as the Companies and Intellectual Property Registration Office (CIPRO) undertook an exercise to “clean up"1 the companies register to prepare for the operation of the new Companies Act, 2008. This process has involved placing hundreds of thousands of entities in the process of deregistration, or finalising the deregistration of entities that were already in that process due to their non-submission of annual returns to the CIPC. Up to now it has been said that more than 900 000 entities have been dealt this blow.

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Hat’s off, gentlemen (and ladies), to one of your greatest generals Company - International Law July 2011

Joseph H. Flom died on February 23 2011 at the age of 87. Many South Africans may not recognise his name. Joe Flom was one of the senior partners in the corporate department at the powerhouse American firm of Skadden, Arps, Slate, Meagher & Flom. He was named as one of the “lawyers of the century" in 1999 by The American Lawyer, was a graduate of Harvard Law School, a former editor of the Harvard Law Review, a dedicated humanitarian and a generous philanthropist.

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The “ring fenced” provisions Company Law July 2011

Before the incorporation of the Companies Act (71 of 2008), the common law doctrine of constructive notice and the Turquand rule were used when deciding whether contracts were binding and enforceable against a company.

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Expanding employees’ duties Company Law July 2011

The new Companies Act (71 of 2008) came into force on May 1 2011. It significantly expands the duties incumbent upon company directors.

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Combatting over-indebtedness Consumer Law July 2011

The Credit Industry Code of Conduct (the Code) is aimed at improving the debt review process in line with the commitment of the National Credit Regulator (NCR) to combat over-indebtedness.It came into effect on January 1 2011 and arose out of discussions of the National Debt Review Task Team. All those currently registered and those who wish to register with the NCR as credit providers will have to acknowledge and comply with the Code.

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