March 2014


Editor's Note - March 2014 Editor's Note March 2014

February 14 dawned just an ordinary day but, less than a third of the way through it, a remarkable man had left us: friend, colleague, publisher, columnist, watchdog; we are all of us the poorer without him; the landscape is a little less colourful and the joie de vivre that much less joyful. David took delight in throwing down challenges; this tribute I view as a challenge to enable readers who did not have the privilege of meeting him, to know a little of David, the man behind the words.

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Arbitration in Mauritius – Increasing the substance? Africa March 2014

Mauritius has, to date, successfully concluded 39 double taxation avoidance agreements (DTAs) worldwide thus allowing the country to become an international financial centre of repute. To keep pace with such recognition, the country has recently been fine-tuning its Alternative Dispute Resolution regime, especially in the field of arbitration, into a state-of-the art legal and regulatory framework. One sector expected to witness an important emergence of arbitration in Mauritius is the Global Business Sector.

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Developments in Africa’s Competition Law Africa March 2014

Competition law developments in Africa continue to be closely monitored globally. Regional competition law in Africa took the spotlight in 2013, with the introduction of COMESA Competition Commission (the CCC) on January 14 2013. The CCC's initial year was not without serious challenges. In particular, the international business and legal community raised concerns about the merger filing thresholds being set at nil and the high filing fees payable for merger notifications to the CCC. Certain regulators within the COMESA region itself have not accepted the CCC as a "one stop shop" for merger notifications, and the COMESA Competition Regulations are dated and unclear in many respects, making their interpretation and application problematic.

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Accepting African reality Africa March 2014

At the dawn of Africa's rise to economic prosperity, it must be asked how we move from the "continent of potential and opportunity" to becoming a continent of meaningful and significant contribution to the global economy. Africa, as it currently stands, enjoys the status of being a primary target for inbound investment. Though within this general view it should be asked, can Africa be seen as a single investment destination?

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Towards a new generation of mining Codes – a focus on Francophone Africa Africa March 2014

The rapid growth of new investors, especially from the BRICS countries, in the mining sector in Africa as well as increased investment in rich untapped resource regions, such as Guinea, DRC, Ivory Coast or Burkina Faso, has posed new challenges to the achievement of sustainable development in the mining industry.

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The Best of the best Deal Activity - Deal Maker's Annual Rankings March 2014

The ongoing economic climate, not only in South Africa but globally, ensures that successful M&A continues to be a tough ask. In 2013 South Africa's leading legal adviser in the M&A category, both by deal value and by deal flow, was Cliffe Dekker Hofmeyr. The value of the 96 deals was R46 107m and this figure represented16.4% of market share. ENSafrica came in a close second, for both deals by value, R44 958m and flow, 93 deals.

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Supermarkets and landlords can breathe easy – for the time being Competition Law March 2014

The Competition Commission recently concluded its investigation into the potential effects of exclusive lease agreements between supermarkets and their landlords on competition. This note explains the implications of the Commission's decision for firms that rely on exclusive lease agreements.

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Awarding costs against the Competition Commission Competition Law March 2014

May the Competition Appeal Court (CAC) award an adverse cost order against the Competition Commission (the Commission) in relation to proceedings in the Competition Tribunal (Tribunal) and in proceedings before the CAC?

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Deadlock on deadlocks Company Law March 2014

The Companies Act (71 of 2008) provides various remedies to shareholders of a company in the event that there has been a breakdown in the relationship between them. Most notably, s163 enables a shareholder or director to apply to court for relief from oppressive or prejudicial conduct.

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Reading (in) between the lines: winding up close corporations Company Law March 2014

Prior to the enactment of the Companies Act (71 of 2008) (the new Act), the winding up of close corporations and companies was regulated by the Close Corporations Act, (69 of 1984) (the CC Act) and the Companies Act (61 of 1973) (the old Act) respectively.

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Condonation and counting the days Company Law March 2014

Compulsory acquisitions and squeeze outs are regulated in terms of s124 of the Companies Act (71 of 2008). s124 corresponds to the compulsory minority buy-out provisions that were contained in s440K of the previous Companies Act.1

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Business as usual Company Law March 2014

The Supreme Court of Appeal, in the recent judgement of Boschpoort Ondernemings (Pty) Ltd v Absa Bank Ltd (936/12) [2013] ZASCA 173 (November 28 2013), had the opportunity to con- sider the extent to which the Companies Act (71 of 2008) (the new Act) applied to an application for the liquidation of a commercially insolvent company.

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A cocktail to avoid Employment Law March 2014

In Optimum Coal Mine (Pty) v Patrick Makoea and two Others (LC) JR727/2012 of October 10 2013, a recent unreported judgement of the Labour Court, Fourie AJ held that "in the context of mining operations, a zero-tolerance policy approach to intoxication in the workplace, and the use of blood alcohol measuring to monitor and enforce this rule, is fair and reasonable. At a procedural level, provided the policy is publicised, and uniformly enforced (which could include random checks), it will pass muster for fairness."

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When is the right to strike not the right to strike? Employment Law March 2014

On the eve of what is now commonly referred to as the annual strike season, the Labour Appeal Court, in the matter of Chamber of Mines of South Africa and Others v AMCU and Others 1, was once again called upon to consider a series of complex issues, which invariably arise within the context of the right to strike.

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