July 2014


Editor's Note - July 2014 Editor's Note July 2014

July 28 1914; the Austro-Hungarian Empire declared war on Serbia and so started World War One – the Great War – that was to last just over four years before it ended with Germany's formal surrender. The fighting was to end at the 11th hour of the 11th day in the 11th month of 1918. without prejudice will carry a small feature on this War that changed the world so dramatically in the November issue of the magazine.

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Life after death? Medical Law July 2014

A sad story really: a young couple, married for only three months, is involved in a motor vehicle accident, which results in the death of the husband. The couple, desperate for a child, are now not in the position to conceive a child but the surviving wife makes arrangements for her deceased husband's sperm to be harvested and stored for in vitro fertilisation. The question arises whether or not the removal of the husband's sperm post-mortem is lawful?

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The Investment Bill on its way to Cabinet Property Law July 2014

The arguably misleadingly named Promotion and Protection of Investment Bill of 2013 (the Investment Bill) is soon to be submitted to the Cabinet for approval, said Rob Davies, newly reappointed minister of trade and industry, in late May 2014.

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Is there a property rights crisis in South Africa? Property Law July 2014

At a recent Property Rights Conference hosted by AfriBusiness, 'business leaders and experts' agreed that there is a property rights crisis in South Africa and that government is launching a 'carefully crafted onslaught ' on and 'undermining property rights in a systematic way '. However, in our opinion, the policy documents and legislation they refer to do not support this view.

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Unconstitutional in its present form Intellectual Property July 2014

On November 1 2013, the South African Department of Trade and Industry published the draft Promotion and Protection of Investment Bill for comments.

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Is Troy to fall again? Trade Law July 2014

When European investment doesn't fit the bill any longer
Apparently the Greek king Menelaus was what one would refer to today as a cool dude. Maybe not as cool as one might have thought: when the Trojan prince Paris took his wife and indicated his intention not to return her, Menelaus lost his cool and took up arms. Not alone, though, a few other kings of the cities around him, such as Odysseus and Agamemnon were quick to be at his side. And a few thousand men (don't smile, quite an army in those days) went to the Asian shores of the Aegean Sea and started a war, which would last more than 10 years.

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Talking over high walls Trade Law July 2014

Owners realise the value of their views and jealously protect them. However, views can seldom be protected, save if the Title Deed or Site Development Plan contains a condition which limits the height of the property of your neighbours. Needless to say, owners embark on an emotional roller coaster, negotiating with neighbours to try to reach an agreement to save their views, with the exchange of real rights at the forefront of these negotiations. In many instances the verbal agreements reached are not reduced to writing and signed. Sad to say, these oral agreements are not worth the exchange of words and the consensus reached.

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Territoriality, ethics and Murphy’s Law Intellectual Property July 2014

Intellectual property (IP) and ethics, strange bedfellows you might think. But ethical considerations do come up in the context of IP from time to time, for example when the powers-that-be consider whether patent law should be amended to make generic drugs more readily available. Or when they consider whether restrictions should be placed on the advertising of goods like tobacco and alcohol, and whether those restrictions should extend to the use of the trade marks under which the products are sold. Perhaps these are examples of public policy rather than ethics.

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Salmon fishing in the Kalahari Infrastructure July 2014

Are we securing long-term relevance for skills developed from infrastructure development projects? The latest State of the Nation address and budget speech, respectively by the President and the Minister of Finance, confirmed government's commitment to engage in extensive infrastructure development projects. It is understood that these seek not only to meet the demanding and continuously developing infrastructure needs of the country but also to create much needed opportunities for employment and skills development. Some of these projects are current, while the details of others remain outstanding.

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Summary judgment proceedings Litigation July 2014

Uniform Rule 32 requires, if a plaintiff wishes to institute summary judgement proceedings, that a deponent to an affidavit in support of summary judgement (if not the actual plaintiff) should state at least that the facts are within the deponent's personal knowledge and that they can further swear positively to the facts.

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As befitting one admitted as a barrister or solicitor in England, Scotland or Ireland Platteland Perspective July 2014

References to a gloriously mummified body, along with questions about the usefulness of cooking skills and an engaging conversational to an attorney: this has to be one of the most bizarre series of judgments ever to hit the law reports. I spotted this because, of course, living in the platteland I have little else to do apart from sniffing out odd cases.

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Evolving business rescue Company Law July 2014

Chapter 6 of the Companies Act (71 of 2008), dealing with business rescue, has featured prominently in case law since the commencement of the Companies Act on May 1 2011. What has been interesting to observe is how the themes have evolved in the business rescue case law, which is arguably reflective of the market's acceptance and utilisation of this new legal mechanism for rescuing financially distressed companies.

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Shipping tax exemption Shipping Law July 2014

A new South African international shipping tax regime was introduced from April 1 2014 and applies to years of assessment commencing on or after that date. Section 12Q of the Income Tax Act (58 of 1962) provides qualifying domestic shipping companies (defined as "international shipping companies") with exemptions from income tax, capital gains tax, dividends tax and withholding tax on interest paid to a non-resident (once effective). In particular, s12Q(2)(a) of the Act provides that any international shipping income of any international shipping company must be exempt from income tax.

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SIM swap fraud: no way out? Financial Law July 2014

In 2011, a little under a hundred cases of SIM swap fraud were reported. Last year, this number swelled to just under one thousand, representing an increase of over 900% in reported cases of SIM swap fraud. Perilous times appear to be on the horizon for South Africa as the safety of mobile banking and the institution of e-commerce as a whole is threatened by these insidious scams.

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Draft Regulations for hedge funds Financial Law July 2014

The draft regulations (in terms of The Collective Investments Schemes Control Act 2002) were published on April 16 2014 and in certain aspects seem to have departed from the previous discussion papers published. The main points to consider are the robust regulatory oversights over hedge funds as well as their reporting obligations.

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