April 2014


Editor's Note - April 2014 Editor's Note April 2014

This year, for the first time, we invited all universities in South Africa that have a law faculty to participate in our Top Student feature. Four of the seven universities that have not previously featured sent us details of their top students and we hope that in 2015 we will have a full house. We now feature top students from 13 South African universities. This year 35.5% of the top places went to men over last year's 30.1%. Comparing that by extracting only those universities that also appeared last year shows an increase of nearly 4.5%. It is also interesting to note that 38% of the top students from universities appearing for the first time were men.

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“Staan in the hof!” Mining Law April 2014

Since time immemorial we have adopted the practice of rising when the presiding judge or magistrate enters or leaves the court room. It is a sign of respect, not to the person, but to the office and the institution they serve. The criminal justice system of any developed or developing society plays an integral part in ensuring social stability and peace. As one of its many facets, criminal proceedings and sanctions imposed on offenders are aimed at directing the behaviour of the citizenry.

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Help us help ourselves Mining Law April 2014

Once a mining house and a host community become partners in a mining project, a relationship is formed that needs closer interrogation. This article seeks to interrogate this relationship and, in the process, raise pertinent questions and make some observations.

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The law of more sustainable mining Mining Law April 2014

This article is part of a trio, the combined thrust of which is that the practise of South African Environmental Law has developed, particularly in recent years, to take a more central role in commercial decisions and as a component of broader commercial legal practice. The first article appeared in without prejudice in July 2013 and the second in the March 2014 edition.

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How wide are s129 obligations? Financial Law April 2014

The Constitutional Court handed down judgement in the case of Moshomo Levin Kubyana v Standard Bank of South Africa Ltd 2014 JDR 0284 (CC) on February 20. The court had to consider what steps a credit provider must take to discharge its obligation to effect proper delivery and ensure that a notice of default in terms of s129 of the NCA reaches a consumer before commencing litigation.

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When is an insolvent an “unrehabilitated insolvent”? Financial Law April 2014

Who would have thought that a statement made more than a hundred years ago would have relevance not only in the area of law to which it applies but in the political landscape of our country?

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Silent witness Forensics April 2014

As a CEO or CFO of a major company you awaken one morning to learn your company's pricing schedule and intellectual property are floating around the internet for all to read. Your competitors have used your company's private data as a weapon against your business and your client base is decreasing rapidly amidst fears regarding your data security. And to top it all, your share price has taken a dive, a downward trajectory at an angle never before seen.

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Just and equitable winding up of solvent companies: uncertainty removed Company Law April 2014

The more things change, the more they stay the same. After discord in the South Gauteng High Court arose about the scope of the application of s81(1)(d)(iii) of the Companies Act 2008, which provides for the winding up by the court of solvent companies on the just and equitable cause, clarity was provided by the Supreme Court of Appeal in Thunder Cats Investments 92 (Pty) Ltd v Nkonjane Economic Prospecting and Investment (Pty) Ltd [2013] ZASCA 164: the position was held to be the same as it was under previous legislation. The just and equitable cause therefore retained its wide scope and is not limited by the circumstances described in paragraphs (i) and (ii) of s81(1)(d).

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Close Corporation Deregistration Untangled Company Law April 2014

Confusion regarding deregistration dates of close corporations (CC) has resulted in challenges for members of CCs. While the uncertainty has been aggravated by conflicting court decisions, a recent decision by the Supreme Court of Appeal (SCA) provided much-needed clarity.

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Stealing from thieves Intellectual Property April 2014

Digital music sales were seen by many as the saviour of the music recording industry after rampant piracy and illegal file sharing in the 1990s threatened to derail one of the most important and versatile industries.

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Unveiling the wolf Intellectual Property April 2014

The erstwhile Intellectual Property Laws Amendment Bill (IPLAB), generally known as the “Traditional Knowledge Bill", became an Act when, despite vociferous objection from the IP community and other informed sources, it was published in the Government Gazette as having been assented to by President Jacob Zuma on December 10 2013.

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The relationship between intellectual property and tech startups Intellectual Property April 2014

For startup companies, assessing their commercial potential and choosing the exact business model is the crucial starting block. Specialised skills are required for the numerous transactions involving development, structuring, sales, and licensing of technology. Expertise in both intellectual property and commercial law is required, as well as business judgement and knowledge of the industry.

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Public Health Sector and the South African National Policy on Intellectual Property Intellectual Property April 2014

The publication of the South African National Policy on Intellectual Property (SANIPP) in September 2013 opened a proverbial can of worms and the pharmaceutical industry is up in arms.

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One step backwards for arbitration Arbitration April 2014

Recent years have seen several strong affirmations from the SCA and the Constitutional Court that the era of courts exhibiting controlling and interfering tendencies towards arbitrations and arbitration awards is over and that henceforth the integrity of the arbitral process would be shown due deference.

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It wasn’t my fault Platteland Perspective April 2014

Here's a case that gives a whole new meaning to fence-sitting. It's the story of a man who says he didn't mean to commit a crime; he just happened to be with a couple of friends next to a fence when someone lifted a goat over the boundary and into his hands.

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