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The Law Magazine ® www.withoutprejudice.co.za OOvveerrssiigghhtt aanndd aarrrrooggaannccee 66 UUsseedd ccaarr ssaallessmmeenn aarree bbeetttteerr 12 Oops 2222 BBuussiinneessss rreessccuuee 3300 PPiinncchhiinngg yyoouurr ttrraaddeemmaarrkk 4400 HHoolleess iinn tthe puubblliic ppuurrssee 4488 R40.00 (Inc. VAT) Vol 12 No 7, August 2012 TThhee LLaaww MMaaggaazziinnee ENS WPBestOct2011 10/11/11 3:09 PM Page 1 CMY CM MY CY CMY K Composite August 2012 1 ithout prejudice is officially supported by a number of Wcorporate law firms and corporate law advisers. This support underlines the importance placed by many cor - porate attorneys on the magazine’s ability to reflect current issues and to comment on these. This does not mean that the opinions carried in without prejudice in any way reflect those of the supporting firms. Indeed, without prejudice’s editorial independence and integrity is jealously guarded. To give effect to this, an editorial advisory board provides direction and counsel and meets three times a year. EDITORIAL The corporate law firms supporting without prejudice are: Editor Myrle Vanderstraeten Correspondents: Carmel Rickard, David Rees, Eben van Wyk, Dewaldt van Wyk Michael Avery, Vaughn Williams Design and Layout Janine Harms - Gleason Design Studio e-mail [email protected] ADVERTISING Rates available on request from Vanessa Aitken +27 (0) 83 775 2995 e-mail: [email protected] HEAD OFFICE GLEASON PubLICATIONS (PTy) LTD Publisher David Gleason 30 Tudor Park, 61 Hillcrest Avenue, blairgowrie, Randburg, 2194 P O box 1332, Pinegowrie, 2123 Tel +27 (0) 11 886 6446 Fax +27 (0) 11 886 6448 e-mail: [email protected] Directors: E.D. Gleason, M.L. Greig, M. Vanderstraeten IMPORTANT TELEPHONE NuMbERS Editorial +27 (0) 11 886 6446 Subscriptions [email protected] Subscriptions +27 (0) 11 886 6446, fax +27 (0) 11 886 6448 without prejudice is published by JetBlue Publishers (Pty)Ltd (Registration No: 2000/029263/07) and is printed by Typo Colour Printing, 19 Beaufort Street Troyeville, Johannesburg. © 2001 without prejudice All rights reserved. Reproduction in whole or in part without prior consent is prohibited. Disclaimer: This publication is not intended to constitute legal advice which can only be given having regard to particular facts and circumstances. Any liability that would or could arise from or of the contents hereof is hereby excluded. Always seek professional advice from a suitably qualified lawyer on any specific legal problems or matters. 2 August 2012 FFrroomm mmyy wwiinnddooww ne swallow doesn’t make a summer. What a pity, An article in this month’s issue concerns Basel III (p14) but at least it’s enormously satisfying to be able to and the global requlatory standards required of the banking Owallow gloriously in South Africa’s warm winter industry. It draws attention to the Libor scandal in which it sun while characters such as Shane Warne (famous as an appeared that a variety of banks colluded in order to set the enemy) are forced to eat very humble pie through the course daily interest rate for inter bank borrowings. Libor sets the of the first cricket test match between England and South standard for interest rates around the world. Africa for some years. Warne avoided saying too much by The damage done to banking, coming as it does on top of resorting to the lazy man’s messenger: the tweet. In former the 2008 financial disaster sparked by America’s mortgage pay - English wicketkeeper Alec Stewart’s opinion, England’s bats - ments problems, is probably incalculable. The media and men enjoyed a slight edge; Warne politicians have been quick, as reckoned England would win two of usual, to blame the bankers but it is the three match series. now beginning to seem that the Instead, South Africa’s batsmen core of the problems resides inside delivered a feast of attacking, aggres - the US Federal Reserve and the sive but well controlled stroke play. Bank of England, organisations that The vaunted English bowling have been struggling (and failing) to attack, especially spinner Graeme handle the problems associated with Swann, was tamed by the fluency of widespread financial deregulation. the South African batsmen. Currency stability and a deep Hashim Amla scored a litany of seated faith in the financial system records, the most important being are elements critical to the growth that he is the first South African of the world’s economic and finan - ever to post a triple century in a test cial systems. Both have been badly match (311 not out). shocked and poorly served by The Barmy Army, England’s recent events – and, increasingly, it vociferous in-song supporters have coined a song about is beginning to become clear that powerful politicians, Amla in which he is said to have his head on the wrong way notably those in the United States - are those with most to round. The good natured Amla giggles when he hears it. hide, or at the least to disguise. And it’s been a good month for South African sportsmen There is an old law that requires that voters need to be resi - in other fields. The incomparable Ernie Els pulled off an dent in specific places for certain periods of time if they are to astonishing victory to walk away with the British Golf be allowed to take part in voting exercises. It is clear this Open’s Claret Jug, the second time he’s won this Major. needs now to be reinforced to the extent that all lawmakers Kenyan born and St John’s College, Johannesburg educated must be in possession of minimal economic information. Chris Froome, who played a major role in securing Bradley The problem is going to be making sure that voters Wiggins’ victory in this year’s Tour de France, seems well set understand what they’re selecting. In this brave new world to win the Tour himself in the future. Everyone is wonder - it is no longer sufficient to assume that politicians possess ing when he’ll make his move, which will probably require the information and the ability to interpret it that has him to shift to another team. become so necessary. N ___________ DAVID GLEASON August 2012 3 CCoonntteennttss The Law An objective view 6 A departmental view 8 Supreme law 10 Perception 12 Banking Law Minimum standards 14 Financial Law Compliance 18 You can take a horse to water 20 Competition Law No leeway 22 Pro bono – by Norton Rose SA The nuts and bolts 24 Company Law A new era 26 Being awarded Voting mechanisms 30 Getting it right 31 Consumer Law South African Not immune 33 Intellectual Property Law Getting there first may count 36 Law Firm of Is it or isn’t it? 38 A stark reminder 40 the Year never Tax Potentially unlawful 42 Constituting a contravention 44 gets old. Tax – International He’s everywhere, he’s everywhere 45 Tick all four boxes 46 Public Law Webber Wentzel has been named Protection 48 “South African Law Firm of the Year 2012” International The World in July 50 by Who’s Who Legal for the second Obamacare 52 consecutive year. It is the fourth time Advertising Tweety bird 53 the firm has received this accolade. Property Law We are also the only South African law Saving time, money and legal proceedings 54 firm included in Who’s Who 100 , Platteland perspective A sense of disbelief 56 a guide to the world’s 100 foremost Not the law reports business law firms. There’s more to life 58 Human Rights Law With a depth of experience across 22 Protecting information 59 Registering as parents 60 practice areas, we offer our clients Labour Law tailor-made solutions to their legal matters. Avoiding unpleasant consequences 61 It’s still your fault 63 Now that our already extensive African Litigation footprint has been enhanced by our Sympathetic ears 65 partnership with ALN, Webber Wentzel Checking the facts 66 is the ideal partner for all your business Constitutional Law Accept responsibility 68 on the African continent. Classifieds 70 & 71 National news 71 Lifestyle Gadgets – overnight success 73 The view from down under – a surfeit 75 Motoring – intensive saving required 76 Wine review – Cape Winemakers Guild 78 Deal Activity A touch task 80 www.webberwentzel.com BOTSWANA | BURUNDI | ETHIOPIA | KENYA MALAWI | MAURITIUS | MOZAMBIQUE | RWANDA SOUTH AFRICA | TANZANIA | UGANDA | ZAMBIA NET# WORK BBDO 8014072 4 August 2012 EEddiittoorr’’ss nnoottee hen South Africa became a democracy there were, for me, was going to a place of learning which had been my dream and ambition three essential elements that would now be available to and there was a sense of being in an environment where you could learn, Wcitizens regardless of creed, colour or gender. In no particu - you could challenge and there was a freedom, a political freedom.” lar order – an independent legal system on which everyone could David Gleason in his Torque column in Business Day on count to be fair; the possibility to be the very best in whatever field Wednesday, July 18, wrote that “Between 2003 and 2012, the sums was selected and education for all – without which there is nothing devoted to education at the provincial level total R965bn. If you add in else. what’s been spent at a national level, the amount easily trumps R1 trillion.” I am a glass “pretty close to full” kind of person and no doubt I Access to higher education has improved but the constraints wore rose-coloured spectacles but then, having been part of a society remain the academic capabilities and absenteeism of staff, the ineffi - where many injustices took place, I was not alone in being full of con - ciencies of the system, destructive behaviour of students who demand fidence that a new and much better era had dawned.
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