June 2014


Editor's Note - June 2014 Editor's Note June 2014

May 7 saw the South African electorate going to the polls for the fifth time in the country's democratic lifetime. It came as no surprise that the ANC was voted back into power and, if its majority was more than some would have liked, it was pretty well in line with forecasts. What did disappoint me is how little importance appears to have been attached to the Nkandla issue by ANC supporters.

Read More

SA post - Budget and foreign funds Financial Law June 2014

Over the years much has been made of South Africa's potential as the ideal springboard, or gateway, for investment into Africa. Most recently this has been the subject of further discussion in the 2014 Budget proposals with South Africa now being referred to as the African “hub". The Minister of Finance announced a number of measures to improve South Africa's African hub credentials, including measures to promote the local investment funds industry in order to strengthen trade and investment links with Africa.

Read More

Can the banking industry weather this storm? Financial Law June 2014

The implementation of the National Credit Act (34 of 2005) in 2007 created the need for reform within the banking and credit lending industry. The Act aimed to prohibit the granting of reckless credit and to promote responsible credit lending, in a fair and non-discriminatory market place.

Read More

Long term investments the answer in jumpy markets Financial Law June 2014

Private equity investment held steady for sub- Saharan Africa in 2013, despite a sluggish start to the year. In fact, according to the Emerging Markets Private Equity Association, capital invested reached a five year high of $1,6bn, a 43% increase since 2012.

Read More

A perceived threat Security Law June 2014

Recent years have shown exponential growth in the private security industry in South Africa. Accordingly, the Private Security Industry Regulation Authority (PSIRA) saw fit to introduce the Private Security Industry Regulatory Amendment Bill before parliament for purposes of amending the Private Security Industry Regulation Act (56 of 2001) to cater for both the developmental changes and burgeoning growth in the industry.

Read More

When does a cartel end? Competition Law June 2014

Determining precisely when an anti-competitive practice ends has critical implications for the firms involved. Infractions of long duration attract larger fines and damages claims, whereas proving that an infringement stopped before expiry of a defined prescription period may provide a complete 'time-bar' or prescription defence, allowing the respondent firm to get off scot-free.

Read More

Not absolute Company Law June 2014

The principle which has come to be known as the Foss v Harbottle rule (made famous in the English case of Foss v Harbottle (1843) 2 HARE 461: (1843) 67 ER 189) is not as entrenched as everyone may think. Simply put, the rule dictates that in any action in which a wrong is alleged to have been done to a company, the proper claimant is the company itself.

Read More

Deals fall apart* Contract Law June 2014

A suspensive condition suspends the operation of certain provisions of an agreement until the happening a future uncertain event. The prevalence of suspensive conditions in agreements demonstrates their potency in transaction structuring. If the process of fulfilment of suspensive conditions is not managed meticulously, suspensive conditions may become a major transaction risk which if it materialises, may cause searing embarrassments and financial losses.

Read More

When does the fat lady sing? Contract Law June 2014

The Supreme Court of Appeal, in the recent judgement of Africast (Pty) Ltd v Pangbourne Properties Ltd (359/13) [2014] ZASCA 33 [2014] ZASCA 33 (March 28 2014), confirmed a well-established legal principle in respect of faulty compliance with suspensive conditions. It held that where a suspensive condition is not fulfilled timeously, the contractual relationship between the parties lapses and the parties are not bound by the contract, regardless of whether any performance in terms of the agreement has taken place.

Read More

Retrenchment in Botswana Africa June 2014

Employers are regularly reminded of the factors that render dismissals for operational requirements (retrenchments) fair and unfair. Despite this, they continue to get it wrong and, in many cases, they land up paying a very heavy price.

Read More

No more appeals Employment Law June 2014

Since August last year, the Supreme Court of Appeal can no longer decide appeals from the Labour Appeal Court. This is a consequence of the amendment to s168 of the Constitution by the Constitution Seventeenth Amendment Act of 2013.

Read More

Discarding the doctrine of precedent Land Law June 2014

On Wednesday, April 16 the Supreme Court of Appeal (SCA) delivered judgement in the matter of City of Cape Town v Arun Property Developments (943/12) [2014] ZASCA 56 (April 16 2014). The question for determination in this appeal was whether, in terms of s28 of the Land Use Planning Ordinance (LUPO), the Respondent was entitled to claim compensation from the Appellant for portions of certain public streets (the excess land).

Read More

The key to successful mediation Mediation June 2014

For commercial lawyers it is obvious that commercial interests, such as turning a profit, are the most important incentives for parties to settle disputes. But in practice, attention to psychological or personal interests (for example, reputation, autonomy, status or acknowledgement) can be key to resolving commercial disputes.

Read More

Where do old order rights go to die? Mining Law June 2014

Recently the courts have had to grapple with the concept of what happens to old order rights once they 'cease to exist' when the holders of the rights fail to apply for their conversion in terms of the Mineral and Petroleum Resources Development Act (28 of 2002 (MPRDA). Do the rights vanish into thin air or do they revert to the state? And can they be reallocated to third parties?

Read More

C’est GOLDEN BALLS! Or is it Ballon D’Or? Intellectual Property June 2014

In September 2013, in the matter of Golden Balls Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Intra-Presse [Case T 437/11] the General Court of the European Union upheld an appeal by Golden Balls Ltd against an OHIM Board of Appeal decision that its Community trade mark application GOLDEN BALLS in class 16 was confusingly similar to the earlier Community trade mark BALLON D'OR.

Read More