December 2017

Editor's Note - December 2017 Editor's Note December 2017

The negative side of politics has dominated the headlines in 2017. But could the tide be turning?

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Rude Judges – another reason, but no excuse Letters to the Editor December 2017

Dear Editor

Carmel Rickard's article in your November edition struck a note with me and brought back a memory. After reading the article, I believe that there is a different reason that the article does not highlight, as to why judges should be mindful of their courtroom demeanour, which is perhaps even more important than the issues that Ms Rickard has raised, and which I would like to present for your and your readers' consideration."

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When a competitive bid is not enough Competition Law December 2017

One might think that competition law would applaud a firm that submits an independent and competitive bid in response to a tender aimed at lowering prices. Recent experience suggests that this is not always the case.

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Beware of shadow directors; shadow directors beware Company Law December 2017

"Shadow director" is not defined in any South African legislation and does not attract much discourse. Although not always so labelled, the typical conduct attributable to shadow directors manifests itself in practise, only if one is alert to the features defining that conduct. A shadow director is a non-director who exerts effective governance control over a board of directors by giving the board directions and instructions which it is in the habit of obeying. Since there is no difference between the duties of the directors of state-owned companies (SOC's) and profit companies, the test applies universally.

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What the SPAC? Company Law December 2017

In early 2013, the JSE Limited Listings Requirements were amended to provide for the listing of a special purpose acquisition vehicle (SPAC) on either the Main Board of the JSE Limited (JSE) or the Alternative Exchange (AltX). A SPAC is defined in the Listings Requirements as being a special purpose vehicle established for the exclusive purpose of facilitating a primary capital raising process to enable the acquisition by the SPAC of viable assets (Viable Asset/s) in pursuit of a listing on the Main Board or AltX. Viable Assets are in turn defined as assets which would, once acquired, allow the SPAC to qualify for a listing of the SPAC on the Main Board or AltX pursuant to the listing criteria stipulated in the Listings Requirements. In essence, the Listings Requirements permit this form of a cash shell to list on the JSE for the specific purpose of raising permanent capital and making acquisitions with that capital.

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To be or not to be Company Law December 2017

"To be or not to be": the Pretoria High Court issued a declarator on the phrases "post-commencement financing" and the "costs of the business rescue proceedings" in s135 of the Companies Act, 2008.

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Cybersquatting: Don’t bank on it! It’s bad for the brand Intellectual Property December 2017

Trade mark owners are becoming ever more vigilant in the pursuit to protect their intellectual property, particularly their trade marks, at a time where there is a prevalence of cybersquatting in the online community. Cybersquatting remains an ongoing concern for brand owners.

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Are retirement fund members' investments at risk? Pension Law December 2017

After recent reports regarding the Public Investment Corporation investing the assets of the Government Employees Pension Fund (GEPF) in ailing and embattled state-owned companies, we examine the duties placed on pension fund trustees and their fund managers.

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2017 – A window to the future Employment Law December 2017

For those readers who have been following our articles, and Labour Law developments, it is clear to see that 2017 brought the future of work – and the challenges that this will bring – into sharp focus. Our view is that 50% of what we term permanent jobs will disappear in the next 15 years. Two of the cases which did this are the Assign Services matter as well as the Uber Drivers case.

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The future of protective writs Maritime Law December 2017

It is common practice for maritime claimants to issue protective writs (that is, an in rem summons) against ships, including associated ships. The primary purpose of issuing a protective writ is to interrupt prescription and to keep the claim "alive" pending service of an arrest warrant and summons on a ship. A recent judgment in the High Court, Western Cape Division dealt with protective writs in the context of an associated ship arrest and has potentially curtailed the ambit of such admiralty proceedings.

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A thorn in the side of a prescription defence? Litigation December 2017

It is trite that extinctive prescription refers to the concept that certain types of obligations may be extinguished, or rendered unenforceable, by the lapse of time. The law of prescription promotes legal certainty and relieves a debtor from having to defend a claim long after it arose.

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Beware false prophets Mediation December 2017

Mediation as a solution to the proliferation of medical malpractice claims

South African healthcare, particularly in the state sector, is buckling under the weight of medical malpractice claims. As huge sums of money are poured into litigation and diverted away from actually providing healthcare, people are rightly looking about for solutions.

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Unlawful detention of illegal foreigners? Human Rights Law December 2017

The word "illegal foreigner" in the context of the title to this article refers to a person who was in possession of an asylum seeker permit but had his or her status revoked, and is considered, therefore, to be in the country illegally.

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The price of immortality: Henrietta Lacks and her immortal cell line Medical Law December 2017

Ever wondered how it would be if a part of you actually continues to live forever? Would you be comfortable with that and would you want to exercise some form of control? How it would affect your loved ones left behind? Henrietta Lacks never dreamt of immortality or even thought that it was possible, but it is her cells, still alive today almost 70 years after her death, that continue to cause lively legal and ethical debates around the world.

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Perspectives on leadership – New thinking for a new generation Management December 2017

Part 4

How do we help each other fulfil our potential to lead?

In this final article in my Perspectives on Leadership series I want to focus on how we support and encourage each other to fulfil our leadership potential. It is often said that leadership is a lonely role. It does not have to be like this; together we can find a much better way. I believe things are changing and I am delighted that they are.

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