Quarter 2 2022


Editor's Note Editor's Note June 2022

Without prejudice first published the Top Student feature in 2002, which makes this 2022 edition of the feature rather special. I believe these top students are rather special too.


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Director’s fiduciary duties: acting in the company’s best interests Company Law June 2022

Directors' duties are derived from contract, statute, the company's Memorandum of Incorporation (the MOI), and common law. The common law outlines the duties of directors and how they ought to conduct themselves, including the duty of care, skill, diligence, and the duty to act in good faith, when dealing with the company.

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Competition law post the national state of disaster COVID-19 Competition Law June 2022

The COVID-19 pandemic necessitated the introduction of several unprecedented measures aimed at mitigating its impact. Of particular interest in the field of Competition Law are the COVID regulations (Government Gazette 43116, 19 March 2020) and block exemptions published by the Minister of Trade, Industry and Competition pursuant to the National State of Disaster declared by the government under Government Gazette number 313 of 15 March 2020.

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The effects of the Truworths Judgment on Regulation 23A(4)(c) of the NCA Consumer Law June 2022

This article seeks to explore the effects of the Truworths Limited v Minister of Trade and Industry 2018(3) SA 558 (WCC) judgment on the advancement of credit, since Regulation 23A(4)(c) was the only provision of the National Credit Act (34 of 2005) (the NCA) which provided clear guidelines of how income should be validated.

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NEC 3 & 4 for newbies – tip series Construction Law June 2022

Free legal advice may sound like the start of another lawyer joke, yet here we are: we've developed an easy-to-follow 'NEC 3 & 4 FOR NEWBIES' series designed to see you build – rather than billed – more by the hour. That's because less legalese can mean less legal fees when advice is quicker to decipher.

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“This is not what I agreed to!”– A potential navigation of changed circumstances under a contract Contract Law June 2022

When parties enter into a contract, they do so by basing their consensus on the facts before them at the time of contracting – naturally oblivious to the uncontrollable and unforeseeable possibility of a change in circumstance that may render contractual performance unduly onerous in the future.

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Appear at the next hearing or get lost Employment Law June 2022

What are the consequences of a chairperson not granting a postponement and proceeding in the absence of a party?

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Should an employee running a side business disclose to their employer? Employment Law June 2022

Issue Whether there is a duty on an employee to inform an employer about a potential conflict of interest.

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The more things change...Unilateral changes & the jurisdiction of the Labour Court Employment Law June 2022

The status quo remedy available to employees or a Union in terms of s64(4) of the Labour Relations Act (66 of 1995) (the LRA) is a curious one, allowing a protected strike to take place within 48 hours of referring such a dispute to the CCMA, unless an employer reverses the unilateral changes implemented by it. The right to strike is acquired before any attempt to resolve the dispute is made by the CCMA, and often before parties can reflect properly on their respective positions.

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The fired firefighter – The ConCourt weighs in Employment Law June 2022

Unfair discrimination of people with disabilities should be dealt with decisively by our Courts. However, a delicate balance should be struck when dealing with these issues, particularly in the employment context where human dignity of the employee and the operational requirements of the employer are the issues in play.

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Rule amendments and accrued retirement benefits: How could the SCA get it so wrong? Financial Law June 2022

It is always disappointing when superior courts make unjust decisions that are devoid of any sense. This was the case in Municipal Employees' Pension Fund and Another v Mudau and Another (1159/2020) [2022] ZASCA 46 (8 April 2022) (Mudau). All the judges of appeal not only totally ignored previous decisions of the same court, but failed to seriously engage the consistent approach of the Pension Funds Adjudicator and the reasoning of the judges of the high court, who upheld the Adjudicator's determination on the same matter, which was appealed to the Supreme Court of Appeal (SCA).

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South Africa’s bid to regulate crypto assets: 2022 Alert Financial Law June 2022

As at 9 May, crypto assets are not regarded as notes or coins issued by the South African Reserve Bank. Crypto assets are currently not controlled or regulated. Their price is determined by the supply and demand of their market. In essence, crypto assets are not regarded as legal tender in South Africa, which is creating a state of uncertainty in the regulatory landscape, perpetuating the billion-dollar crypto scams in South Africa to date.

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Corporate fraud & corruption Fraud/corruption June 2022

Q. To what extent are boards and senior executives in South Africa taking proactive steps to reduce incidences of fraud and corruption from surfacing within their company?

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Counterfeits and the sale of feelings Intellectual Property June 2022

MUHLBERG'S BRIEF

When you buy a brand, you're investing in the dream... being part of a group.

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The website owner: a pusher, a puller or a pulled-pusher? Intellectual Property June 2022

The Issue

For almost as long as we've had the internet, we've been arguing about the trade mark implications of having a website. The issue flows from the fact that a website can be accessed anywhere in the world. But does it follow that a company with a website is automatically using its trade mark throughout the world – thereby potentially infringing trade mark registrations in other countries? There've been a quite a few judgments on this issue over the years. But let's concentrate on the recent case of...

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