August 2014


Editor's Note - August 2014 Editor's Note August 2014

Crime has dominated headlines in the past few weeks. It is depressingly apparent that our law enforcement officers have neither the ability nor the will to do the job with which they are tasked. It does not fill citizens or visitors with much confidence to learn that of the 155 534 SAPS members only 116 201 were able to handle firearms competently at even the minimum standard required. A South African shootist once told me that it is a demanding sport requiring many hours of training if one is to hit the target. She despaired of people who non-chalantly carry guns but do not go to a shooting range at least once a week. They had a greater chance of putting those they were trying to protect in danger than anything else, she said.

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The significance of the seat Arbitration August 2014

There is a new scramble for Africa. Investors from all over the world are seeking opportunities on the continent. South African investors too are seeking opportunities in other African states. Cross-border disputes will inevitably arise from the investor rush.

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All’s well that ends well Mining Law August 2014

“It seems central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. Al least in this sense, then, the principle is implied within the terms of the ... Constitution." 1

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A dry white season Mining Law August 2014

In the last week of June, the South African mining industry ended an unprecedented five month strike that has had crippling consequences. The compromise achieved between organised labour and their employers demonstrates neither a capitulation nor a spectacular victory by either party. Some say that it will take striking workers years to recoup their loss of income sustained during the strike. It is now up to the employees, their extended families and the employers to undertake the painstaking task of picking out the shrapnel from their wounds.

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Who does a “binding offer” bind? Company Law August 2014

Since 2013 the myriad inconsistent and contradictory clauses found within the Companies Act (71 of 2008) have been commented on by the judiciary. None more so than s153(1)(b)(ii) of the Act, which seems to introduce the concept of a 'binding offer', sending the accepted principles of the law of 'offer and acceptance' into a tailspin.

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The property rights grab Promotion & Protection of Investment Bill August 2014

When I was young, a long time ago, a child in the comics we devoured was forever discovering oil. He would be digging in the backyard and strike a gusher. Staggered by the find, he'd rush off to find the male head of the, yup, dual-parent household. 'Paw, Paw,' he'd cry, 'it's oil, we's rich!' Father, a looming figure dressed in workmen's overalls, looks out the window, and replies 'Thank the Lord, our troubles is over.'

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The Investment Bill and FDI Promotion & Protection of Investment Bill August 2014

The misleadingly named Promotion and Protection of Investment Bill of 2013 (the Investment Bill) is on its way to the Cabinet (without prejudice, July 2014). Unless its wording has been substantially changed since it was released for comment in November 2013, its impact on foreign investors will be both negative and profound.

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ECTA and non-variation clauses Contract Law August 2014

Any astute attorney, when drafting a contract, will be very careful to ensure that the contract meets two essential standards: first, that the contract clearly represents the intentions of the contracting parties; second, that the contract pronounces the fact that such intentions coincide and are unequivocally agreed between the parties. A dispute relating to the latter standard would be the last thing any of the parties would want and therefore the specific language and base content included in the contract should be considered with a great deal of thought. The non-variation clause is an oft over-looked and crucial part of this base content.

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Misconceptions about suretyships Contract Law August 2014

A suretyship can be defined as a contract whereby a person, namely the surety, undertakes to the creditor of another person, the principal debtor, that as accessory to the principal debtor's liability, the surety too will be liable for the debt. In this article we will be dealing with two aspects: the principal obligation of a suretyship and incorporation by reference in respect of a suretyship.

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I’m late, I’m late, for a very important date... Advertising August 2014

A recent decision of the Final Appeal Committee (FAC) of the Advertising Standards Authority (ASA) makes it clear that condonation is a privilege and not an automatic right in ASA process.

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Three Chords and The Truth Intellectual Property August 2014

On November 11 1987 U2 recorded a live version of “All Along the Watchtower" at the Embarcadero Centre in San Francisco. “All Along the Watchtower" is a song written and recorded by Bob Dylan in 1967 and which has been covered by numerous artists in various genres. The song is probably most strongly identified with the interpretation Jimi Hendrix recorded for Electric Ladyland in 1968.

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Elon Musk and patent soul-searching Intellectual Property August 2014

Elon Musk – the SA expat of PayPal, SpaceX, Tesla and Hyperloop fame – hogged the headlines recently when he announced that he would make the technology that's used in the Tesla electric car freely available. He's done this, he says, 'in the spirit of the open source movement, for the advancement of electric vehicle technology', adding that if you want to take technology forward, it doesn't make sense to leave 'intellectual property landmines'. So the suggestion seems to be that Tesla won't be enforcing its many patents, but that there must be a bit of give-and-take by competitors: 'Somebody can't go and use a whole bunch of our patents but then sue us for using one of theirs.' And there mustn't be consumer confusion either: 'We wouldn't want someone to mimic our car... to trick people into thinking it's our car when it's not.'

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A hundred-year old dispute Intellectual Property August 2014

When considering trade mark protection it is imperative to consider the business in its entirety. This includes reviewing whether a client has an interest in expanding beyond its current borders and whether the trade mark has any meaning outside its country of origin.

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Welcome to South Africa... I think Immigration Law August 2014

The land flourished, because it was fed from so many sources – because it was nourished by so many cultures and traditions and peoples." – Lyndon B. Johnson

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Biting off more than one can chew Sports Law August 2014

Luis Suarez. What a magnificent footballer. Before his most recent misdemeanour pundits waxed lyrical about his “predatory instincts". They certainly got that right. Even so, few of us can understand how Suarez, who has previous convictions for acting in the same manner, could bite Giorgio Chiellini during a FIFA World Cup match watched by millions.

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