September 2011


From My Window - May 2014 From My Window September 2011

I am not at all surprised that some South Africans have spoken out about the events in Libya and about the West's involvement there. The intervention by Nato has to be among the most cynical of geopolitical actions undertaken in the last 50 years. It may indeed be the case that Colonel Gadaffi's time as Libya's dictator was up. It is certainly noticeable that, North Korea aside, efforts by unelected despots in various North African and Middle Eastern countries to ensure their families enjoy rights to succession have conspicuously failed. The involvement of the United Nations and then Nato is another matter, however. A complaint advanced in this country has been that the roadmap constructed by the African Union (AU) was ignored. It probably was but the AU is hardly an institution that carries much weight in the rarefied circles of diplomatic power.

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From My Window - September 2011 From My Window September 2011

I am not at all surprised that some South Africans have spoken out about the events in Libya and about the West's involvement there. The intervention by Nato has to be among the most cynical of geopolitical actions undertaken in the last 50 years. It may indeed be the case that Colonel Gadaffi's time as Libya's dictator was up. It is certainly noticeable that, North Korea aside, efforts by unelected despots in various North African and Middle Eastern countries to ensure their families enjoy rights to succession have conspicuously failed. The involvement of the United Nations and then Nato is another matter, however. A complaint advanced in this country has been that the roadmap constructed by the African Union (AU) was ignored. It probably was but the AU is hardly an institution that carries much weight in the rarefied circles of diplomatic power.

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Editor's Note - September 2011 Editor's Note September 2011

2011 has been savage. The world has reeled from the impact of both natural and manmade disasters; from earthquakes and tsunamis to uprisings, civil war and famine to collapsing economies. The "gloom and doom" forecasters have had a field day and there have only been royal weddings and sporting achievements to lighten the load. It has already been suggested that Hurricane Irene will cost insurers between $1.5 and $3 billion to cover claims and this, according to Eqecat Inc, an American catastrophic risk management firm, is just the tip of the iceberg as the total damage could be between $5 billion and $7 billion if uninsured losses are brought to account. Of course, if the approximately $70 billion in insured losses as a result of Hurricane Katrina is the yardstick, this really isn't too bad at all.

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Doing the math Competition Law September 2011

By now, South African companies are alive to the fact that engaging in cartel behaviour such as price fixing or market division can attract massive penalties from the Competition Tribunal.

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Learning about leniency Competition Law September 2011

The North Gauteng High Court recently handed down judgement on the application by Agri Wire (Pty) Ltd and Agri Wire Upington (Pty) Ltd, which challenged the lawfulness of the Competition Commission's Corporate Leniency Policy (CLP). The decision confirms the legal basis of the CLP, and pro- vides some useful guidance to competition law practitioners on the basis for and scope of 'immunity' granted by the Commission under the CLP.

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Is it a question of control? Competition Law September 2011

The Competition Act (1998) regulates mergers. A merger is said to occur when one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm.

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The Comesa Competition Commission: great expectations Competition Law September 2011

The Common Market for Eastern and Southern Africa's (COMESA) regional competition authority (Commission) has been in the making for a while. Now, however, COMESA appears poised to get it up and running within the next few months.

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Read this before becoming a company director Company Law September 2011

The duties of directors are primarily determined by common law, the new Companies Act (71 of 2008, the shareholders agreement and the memorandum of incorporation of the company, service agreements (specifically concluded between the director and the company) and resolutions passed at members' or directors' meetings.

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Do you really want to be a company director? Company Law September 2011

The new Companies Act, 2008 will punish those directors who fail to pay their companies' creditors, which could result in them being declared to be delinquent directors.

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Financial assistance to directors Company Law September 2011

The Companies Act n(71 of 2008) has introduced important new requirements in relation to the provision of financial assistance and applies to a wider category of recipients of financial assistance.

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Tax uncertainty the poison pill for foreign investors Tax September 2011

On June 2 this year, National Treasury and SARS released a drastic proposal in the form of the Draft Taxation Laws Amendment Bills, 2011 (the Draft Bills), wholly suspending the intra-group relief afforded in terms of s45 of the Income Tax Act (58 of 1962) with immediate effect. In the tumultuous months since, the Treasury and SARS have had the opportunity to consult with many affected parties resulting in a revised short-term approach proposed in the Draft Guide on the Disclosure of Reorganisation Transactions (the Draft Guide) and a Background Note, released on August 12 and August 3 respectively.

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Issues of fact and law Tax September 2011

On June 13 2011, the Western Cape High Court handed down judgement on a case in which the court was approached by the trustees of a trust established in Mauritius for a declaratory order that:

  • the Trust is neither a resident nor does it have a permanent establishment in South Africa and is, therefore, not liable or chargeable for tax in South Africa; and
  • South African Revenue Service is liable to repay an amount of R20 million unilaterally removed from the Trust's South African bank account. This was done based on a purported tax assessment and after appointing the bank as agent of the Trust in terms of s99 of the Income Tax Act (58 of 1962 (the Act)). The R20 million was removed from the Trust's bank account before the “due date" indicated on the “assessment letter".

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Is the Waste Act a waste of effort? Environmental Law September 2011

Many would argue that the National Environmental Management: Waste Act (59 of 2008 (NEMWA)) is more trouble than it's worth and isn't fulfilling its purpose. Some go so far as to say it as an impediment to implementing the waste hierarchy effectively. To some extent, sustainable re-use and recycling is actually hampered by the red tape created by this Act.

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Driving Miss Daisy without permission Intellectual Property September 2011

Certain vehicle designs will forever stand out in the collective memory of car enthusiasts. The Jaguar E-type, the Mercedes-Benz Gullwing, and the Alfa-Romeo “The Graduate" Spider serve as examples. Is the current state of design in the vehicle market on the same level? Who will be the judge?

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Fatal disregard Intellectual Property September 2011

The SA Patents Act does not specifically exclude from patentability inventions relating to nuclear energy. However, the SA Nuclear Energy Act (NEA) sets out a number of procedural steps in s41 that must be complied with when applying for a patent in South Africa relating to nuclear energy or related subject matter. A patent granted contrary to the provisions of this swill result in it having no legal effect.

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