Quarter 4 2021


Editor's Note Editor's Note December 2021

... and then without prejudice was 20.

The anniversary of such auspicious beginnings should be celebrated in style, but unfortunately, this is precluded by the current state of our world. Be that as it may, this anniversary is an opportunity to acknowledge some very special people, and should not pass without comment and thanks to those who have made without prejudice possible. In particular, I would like to thank the magazine's core sponsors, Cliffe Dekker Hofmeyr and Webber Wentzel.

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International arbitration: A better way for SMEs to resolve disputes? Arbitration December 2021

Commercial disputes, regardless of their nature, can disrupt a company's productive operations and divert time and resources away from the business. The introduction of legal, linguistic, cultural, and other differences makes international commercial disputes even more challenging. Dispute resolution is, as a result, an important component of risk management in international trade.

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My journey as a female Legal Executive Women realizing their leadership strengths Advertorial December 2021

Now is an exciting time to be an in-house Legal Counsel of a Multinational Corporation. Solving problems across different jurisdictions that are differently legislated is incredibly stimulating. Our profession is evolving, and it's increasingly becoming evident that lawyers have evolved into enablers of the overall business strategy and have mastered their business acumen; despite having previously been perceived as the naysayers of the organization.

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Balance of power: BRP’s duty of care in exercising the substituted management role Company Law December 2021

The scope of liability for business rescue practitioners (BRPs) exercising the extensive management powers afforded to them in terms of s140 of the Companies Act (71 of 2008) recently came under scrutiny before the full bench of the high court, in the matter of Theodore Wilhelm Van Den Heever N.O and others v Jacobus Michiel Van Tonder (A5076/2018; 407461/2015) [2021] ZAGPJHC 486 (20 April 2021).

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Should an employee accept a voluntary severance package when business rescue proceedings are anticipated? Company Law December 2021

During a retrenchment process, employees may wonder whether to accept a voluntary severance package (VSP) or not. This decision is usually informed by factors such as access to funds, benefits and a need for finality. When business rescue is looming, it may be better for employees to wait before accepting a voluntary severance package (VSP), as they will rank higher as creditors if they accept the VSP after the business rescue plan is adopted.

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Just because you did it, does not mean you’re guilty! Employment Law December 2021

Just because you did it, does not mean you're guilty! This pearl of wisdom proudly featured on the billboard advertising the services of an attorney in the United States of America. Leaving room for a charitable interpretation of the message, it acts as a nice link into a recent decision of the Constitutional Court in South Africa. The apex court had to consider whether an employee ought to be reinstated after the employment tribunal awarded the employee's reinstatement to remedy his unfair dismissal. The tribunal concluded that his dismissal was unfair as they concluded that he did not commit the misconduct which resulted in his dismissal. Thus, the Constitutional Court effectively had to consider "if you did not do it, could you still be guilty?" or perhaps more accurately "if you did not do it, does it mean that you should not be punished?"

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Interference in domestic employment matters by the EFF: The Labour Court responds Employment Law December 2021

As an employer, could you imagine a scenario where, following a decision to dismiss an employee for serious misconduct, a political party such as the Republican or Democratic Parties of the USA or the Conservative or Labour parties of the UK, contacts the employer on behalf of the employee and demands that it be given an audience by the employer to discuss the dismissal and ignores the dispute resolution processes set out in the Labour Relations Act (the LRA)?

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Resignation does not necessarily nullify disciplinary action Employment Law December 2021

An employer remains entitled to discipline an employee who resigns in the face of disciplinary action during the employee's notice period.

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Leave me out of this Employment Law December 2021

At some point during their employment, employees may be requested by their employer to give evidence at arbitration proceedings or a Labour Court trial, and sometimes they are reluctant to become involved in these proceedings. The reasons for this are varied, but often boil down to the fact that employees simply do not want to become involved in litigation involving the employer and former employees.

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The copyright conundrum and the ticking TikTok time-bomb Intellectual Property December 2021

The COVID-19 pandemic saw a boom in social media, new working methods, and various entertainment, social, cultural and philanthropic initiatives.

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META – WHAT THE ZUCK! MUHLBERG'S BRIEF December 2021

Chat

Sometimes a company feels the need to change its name – the existing name is no longer working; it's time to freshen things up.... Fair enough, from time to time we all feel that it would be quite useful if we could change our name!

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The meaning of ‘coterminous’ in divisional patent applications Intellectual Property December 2021

The Oxford South African dictionary defines coterminous as "to have the same boundaries or extent"; while the Cambridge dictionary defines coterminous as "to have or meet at a shared border or limit". It is clear from both definitions that coterminous means to have the same boundary.

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The importance of a name Litigation December 2021

If a brand is the single most important investment of a business, it isn't surprising that the name (brand) of a medical scheme bears significant importance. Not only to the medical scheme and its members, but also to the public at large. Therefore, it doesn't come as a shock that a medical scheme would litigate all the way to the apex court to enforce its rights to a name.

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Lessons from Al Capone Spotlight On Tax Law December 2021

It is extraordinary how often the failure to comply with tax obligations derails unlawful or even criminal conduct. The notorious American gangster, Al Capone famously went to prison in 1932 for tax evasion. The law enforcement authorities in the United States realised that mobsters were publicly living extravagant lifestyles yet never filed tax returns. It was easier to secure evidence for tax evasion than their other crimes.

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The VAT consequences of on-charging municipal rates and other charges to a tenant Spotlight On Tax Law December 2021

It is a question that has vexed us for decades. The more general question pertains to whether VAT ought to be levied on costs that are recovered from third parties; and the lawyer's general answer to that question is, "it depends".

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