May 2011


From My Window - May 2011 From My Window May 2011

This round of local government elections takes place on a Wednesday (May 18), a day that has now been declared a public holiday. In a country in which the very word productivity has long ceased to have much meaning, this can only be regarded as a cruel and unnecessary joke. Pope Zwelinzima Vavi and his federation of trades unions carry much of the responsibility for this. Centred as it is now in government, the last refuge worldwide of the union movement, the operating mantra of an institution established originally to protect the interests of genuine workers, has become, certainly in this country, 'more for less.' South Africa simply cannot afford it.

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Editor's Note - May 2011 Editor's Note May 2011

The official word is that the new Companies Act will take effect on May 1. Business was given 10 days to review the Regulations and, given the public holidays which have seen vast numbers of people taking the intervening days; this realistically translates into four working days. Is this ethical – firms have 173 pages to go through before May 1 and, according to comment from Grant Thornton, the changes are "significant and there are new sections." I did hear one lawyer comment that a month would probably see the legal and business fraternity able to implement the changes accurately and, considering the length of time it has taken for the Act to reach this point, it is not unreasonable to think government could, and should, have got its act together.

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From My Window - May 2011 From My Window May 2011

This round of local government elections takes place on a Wednesday (May 18), a day that has now been declared a public holiday. In a country in which the very word productivity has long ceased to have much meaning, this can only be regarded as a cruel and unnecessary joke. Pope Zwelinzima Vavi and his federation of trades unions carry much of the responsibility for this. Centred as it is now in government, the last refuge worldwide of the union movement, the operating mantra of an institution established originally to protect the interests of genuine workers, has become, certainly in this country, 'more for less.' South Africa simply cannot afford it. Why voting day could not have been positioned on a Sunday or Saturday is unanswered. This is a country in which state and church are strictly separated so no offence would have been occasioned had either of these days – or both – been selected. Instead, we have another excuse to avoid doing some honest work. While I am on the subject I hope the call for a general stayaway will go unheeded.

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Stringent regulation Company Law May 2011

The new Companies Act (71 of 2008) is to become effective on May 1 2011. The Act re-writes South African company law completely and will have far reaching effects.

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Conditions precedent: at what stage may fulfilment be waived? Company Law May 2011

Suspensive conditions render the operation and consequences of an agreement subject to the occurrence or not, of an uncertain future event. A suspensive condition can only be waived before the period to fulfil the condition has lapsed. If the period has elapsed without the conditions being fulfilled, there will be no contract in place and nothing to waive. The Supreme Court of Appeal's judgement in Pangbourne Properties Ltd v Basinview Properties (Pty) Ltd [2011] ZASCA 20 (17 March 2011) has confirmed these provisions.

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A new defence for directors Company Law May 2011

The business judgement rule was developed in the United States of America 'because of a desire to protect honest directors and officers from the risks inherent in hindsight reviews of their unsuccessful decisions, and because of the desire to refrain from stifling innovation and venturesome business activity.' The English common law shows that the courts were unwilling to intervene in board decisions as far back as 1742. Then, in 1829,the business judgement rule was formally recognised by the Louisiana Supreme Court as a corporate law defence.

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Warranties and what they mean Consumer Law May 2011

Suppliers who, in the ordinary course of business, enter into transactions with consumers for the supply or potential supply of any goods, should be aware of the implied warranties imposed by the Consumer Protection Act (CPA, 68 of 2008), since these will have a material impact on their return and refund policies.

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Read the fine print Consumer Law May 2011

The duty a consumer has to read the fine print of a transaction was highlighted in a recent decision of the Advertising Standards Authority (ASA) in a matter involving a complaint against MTN.

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Protecting personal information Constitutional Law May 2011

We are awaiting the enactment of the Protection of Personal Information Bill [B9 – 2009]. It is expected that the Bill will become law in 2011 but precisely when this will occur is currently unknown.

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Opening the door to abuse? Contract Law May 2011

An undertaking to renew a procurement contract for a specific period coupled with a right to negotiate the renewal terms, can be used to extend the renewal period without a competitive bidding process. This should not be seen as permitting open-ended renewal rights for such contracts.

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The CPA’s draft regulations – must read Consumer Law May 2011

Draft regulations have been published under the provisions of the Consumer Protection Act (68 of 2008 (CPA)). These (the General Regulations) appeared for comment in the Government Gazette as General Notice 1099 on November 23 2010. The commentary period expired on January 31 2011. It was an important part of the exercise of rights by the public pursuant to s33 of the Constitution, which guarantees everybody the right to procedurally fair administrative justice.

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A degree is one thing; a job is something else The Law May 2011

The LLB degree is a popular choice of study at universities in South Africa by most law students, including international students. As a law student, one dreams of one day completing articles at a law firm and going on to be an admitted attorney or completing pupilage and becoming an advocate in South Africa. This dream cannot be realised by international law students who are not permanent residents of South Africa because they are precluded from becoming admitted attorneys in terms of the Attorneys Act, 1979 or admitted advocates in terms of the Admission of Advocates Act, 1964.

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It’s crispy crunch time Intellectual Property May 2011

Sea Harvest Corporation brought an urgent application in the Western Cape High Court in February this year against I&J for an order interdicting I&J from unlawfully competing with Sea Harvest by passing off its Oven Crunch product as being that of, or associated with, Sea Harvest's Oven Crisp product.

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A special case of wine Intellectual Property May 2011

The recent decision of the Supreme Court of Appeal in Groupe LFE SA (Pty) Limited v Swartland Winery (467/09) [2011] ZASCA March 4 2011) has important consequences for the use and adoption of the names of geographical locations as trademarks for goods, and particularly for alcoholic beverages, including wine.

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Dampening high spirits Intellectual Property - Tax May 2011

The Supreme Court of Appeal, in the case of Oilwell (Pty) Ltd v Protec International Ltd & Others1 (the Oilwell Appeal), has finally ruled on the issue of the assignment of intellectual property from a South African resident/entity to a non-resident/foreign entity and, in particular, whether approval in terms of regulation 10(1)(c) of the Exchange Control Regulations is required for these transactions. Regulation 10(1)(c) deals with restrictions on the export of capital and states that “No person shall, except with permission granted by the Treasury and in accordance with such conditions as the Treasury may impose, .... enter into any transaction whereby capital or any right to capital is directly or indirectly exported from the Republic."

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