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WP and SLP, to Compliance Directive and Order Being Issued by the DMRE M&A FEATURE ® SPOTLIGHT ON COVID-19 Vol 21 No 1, Quarter 1 2021 TheThe LawLaw MagazineMagazine MULTI-SECTOR EXPERTISE Fit-for-purpose solutions to your most complex legal and tax challenges. in alliance with March 2021 1 ithout prejudice is officially supported by a num- Wber of corporate law firms and corporate law advisers. This support underlines the importance placed by many corporate attorneys on the magazine’s ability to reflect current issues and to comment on these. EDITORIAL This does not mean that the opinions carried in Editor: Myrle Vanderstraeten without prejudice in any way reflect those of the sup- Sub-editor: Gail Schimmel porting firms. Indeed, without prejudice’s editorial inde- Proofreader: Lee Robinson pendence and integrity is jealously guarded. Correspondents: Paul Gilbert, David Lancaster, Carmel Rickard, To give effect to this, an editorial advisory board Eben van Wyk and Vaughn Williams provides direction and counsel and meets three times a year. Design and Layout: Janine Harms – Gleason Design Studio The corporate law firms supporting without prejudice are: e-mail: [email protected] www.withoutprejudice.co.za ADVERTISING Rates available on request from Vanessa Aitken +27 (0) 83 775 2995 e-mail: [email protected] HEAD OFFICE GLEASON PUBLICATIONS (PTY) LTD 30 Tudor Park, 61 Hillcrest Avenue, Blairgowrie, Randburg, 2194 P O Box 1332, Pinegowrie, 2123 Tel +27 (0) 11 886 6446 e-mail: [email protected] Directors: M.L. Greig, M. Vanderstraeten IMPORTANT TELEPHONE NUMBERS Editorial: Myrle Vanderstraeten +27 (0) 11 886 6446 Subscriptions [email protected] Subscriptions +27 (0) 11 886 6446 without prejudice is published by JetBlue Publishers (Pty) Ltd (Registration No: 2000/029263/07) © 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. keeping an eye on law without prejudice is a quartery corporate law publication. It is considered a rare source of sound, accessible information that provides views, analysis and comment on current issues vital The Law Magazine since 2001 to the corporate world. www.withoutprejudice.co.za 4 | Editor’s note The editor’s views Feature Mergers & Acquisitions MYRLE VANDERSTRAETEN Spotlight on COVID-19 Company Law Leadership 25 | B-BBEE compliance targets 5 | Leadership during the pandemic The B-BBEE Scorecard SALLY HUTTON AND CHRISTO ELS – WEBBER WENTZEL JACKIE KITCHING AND ZAHN ABREU – RSM (SOUTH AFRICA) Advertising 26 | A suspensive condition or not 8 | Advertising in a COVID world Municipality of Mhlontlo v TDH Tsolo Junction GAIL SCHIMMEL – ARB (1086/2019) [2021] ZASCA 3 Mining Law THATO MASHISHI – KPMG (SOUTH AFRICA) 9 | Mining Law in the midst of a pandemic 27 | When does a surety's right of recourse LILI NUPEN CHANTAL MURDOCK NICOLE LIMBERIS-RITCHIE AND arise? CALVIN MATLALA – NUPEN STAUDE DE VRIES Zungu-Elgin Engineering (Pty) Ltd v Jeany Company Law Industrial Holdings (Pty) Ltd and Others 12 | Taking stock of virtual shareholder (1138/2019) [2020] ZASCA 160 (3 December meetings 2020) KYLENE WEYERS – CLIFFE DEKKER HOFMEYR JOHANN PIEK Contract Law 14 | Business Rescue during the COVID-19 pandemic – how to make it work 28 | Counter-application vs collateral challenge KYLENE WEYERS – CLIFFE DEKKER HOFMEYR Gobela Consulting CC v Makhado Municipality Technology (910/19) [2020] ZASCA 180 (22 December 16 | Digital transformation in Africa through 2020) the lens of COVID-19 USHIR AHIR AND CLINTON MPHAHLELE – LAWTON AFRICA RIETTE ENGELS-VAN ZYL AND ZAAKIRA HAFFEJEE – Employment Law LAWTONS AFRICA 29 | A real 'whodunnit' Opinion Goldplat Recovery (Pty) LTD v Commission for 18 | Surreal pandemic Conciliation Mediation and Arbitration & HAPPY MASONDO Others (Unreported case no. JR 488/2019, 26 January 2021) Employment Law NEIL COETZER AND SECHABA MOTLOUNG – 20 | 10 Fundamentals for vaccinations… COWAN HARPER MADIKIZELA EMPLOYMENT LAW TEAM – CLIFFE DEKKER HOFMEYR 31 | To speak or not to speak Observation Can employee can be compelled to provide 22 | Reflections on our first year self-incriminating evidence MARICIA SMITH AND TRISTAN MAROT - LHL & NORTON ROSE JJ VAN DER WALT FULBRIGHT (SOUTH AFRICA) 32 | It's annual leave Karen… 23 | 5 Reasons why I love lockdown & 5 Ludick v Rural Maintenance [2014] 2 BLLR Reasons why I don't 178 (LC) JOHN MCKNIGHT – SPOOR & FISHER JOHAN BOTES – BAKER MCKENZIE (SOUTH AFRICA) contents 33 | When the labour court cannot reinstate Intellectual Property Law Edebery v National Youth Development 46 | Oceans Apart Agency (J1453/2020) [2021] ZALCJHB 1 Open Horizon Ltd v Carnilinx (Pty) Ltd, (7 January 2021) Gauteng High Court (66901/2019) [2020] ZAGPPHC 674 (20 November 2020) PHUMZILE ZIQUBU HANS MUHLBERG Pension Law Law of Succession | The GEPF fails its members 34 47 | From what constitutes a parent to In the face of being forced to forfeit part of soundness of mind: three fiduciary- their retirement benefits related court case summaries by FISA CLEMENT MARUMOAGAE – UNIVERSITY OF THE Wilsnach N.O v TM and others [2020] JOL WITWATERSRAND 49017 (GP); Tshaka N O & others v Standard Bank of South Africa Limited & another ZASCA Financial Law 73 (25 June 2020); Vermaak NO and Another v 36 | Checking out Jacobs and Others [2019] ZAGPJHC 346 The demise of the cheque LOUIS VAN VUREN – FISA CIRESH SINGH Tax Law Human Rights Law 49 | Keeping tax payer information secret 38 | Mandatory premarital medical A cornerstone of tax systems – but there are examination of spouses to a Muslim exceptions marriage – a slippery slope GRAEME PALMER - GARLICKE & BOUSFIELD Consanguineous marriages and the positives and negatives of premarital medical testing 51 | SARS refunds - the game is afoot When the refund process is unnecessarily ASHRAF BOOLEY – UNIVERSITY OF THE WESTERN CAPE dragged out International RUAN BOTHA – TAX AFRICA 40 | Tales from the US of A The Law Legal happenings in the US 52 | Comply or face the music! PATRICK BRACHER – NORTON ROSE FULBRIGHT (SOUTH AFRICA) Ndabeni v Municipal Manager: OR Tambo District Municipality and Another (1066/19) 42 | The World in January/February [2021] ZASCA 8 (21 January 2021) Global vignettes JACQUIE CASSETTE AND GIFT XABA – CLIFFE DEKKER HOFMEYR MYRLE VANDERSTRAETEN 54 | The fight against GBV - three new Bills Insurance Law Strengthening the existing legislative response 43 | Effective Internal Complaints BRIGITTA MANGALA AND AKHONA MGWABA – Management CLIFFE DEKKER HOFMEYR Escalating complaints – new policy holder protection rules National news PAUL VAN ONSELEN 56 | Legal firm news Cover Deal activity 44 | Inkunzi Yenkabi - Richard ‘Specs’ 59 | A selection of who did what in Ndimande January/February DEALMAKERS THE CONSTITUTIONAL COURT ART TRUST Cover: Artwork: Richard ‘Specs’ Ndimande (1994–), Inkunzi Yenkabi, 2019, pen and ink on paper, 1030 x 740 mm. Litigation Law Constitutional Court Art Collection (CCAC). Donated by the artist 45 | Litigation finance enhances access to in 2020. Cover image courtesy of the artist and the justice Constitutional Court Trust. For more information, visit Litigation funding - where the opportunities lie ccac.concourttrust.org.za or follow @concourt_art on Instagram SIPHOKAZI KAYANA – CMS (SOUTH AFRICA) and Twitter. contents 4 March 2021 Editor’snote t midnight on Thursday 26 March 2020, South Africa National Assembly. Violence against anyone, of any sex or age, went into a country-wide lockdown that was expected is abhorrent. That behind the smiling mask of someone we Ato last 21 days; little did we know how dramatically ‘know’ lurks a monster is a fearful thought. I recently read about life would change and that nearly a year later, as without prej- an interview with a celebrity who was, for many years, in an udice is published, we would still be in lockdown, albeit in a abusive relationship. Her comment was that victims should not less strict format. During this period, over one and a half mil- be asked why they stayed, but rather that perpetrators should be lion people in South Africa have contracted the disease and, of asked why they held their partner hostage. But, if we don’t those, more than forty-nine and a half thousand people have understand why people stay, how will it be possible to do what died. According to the WHO (World Health Organisation), as society apparently doesn’t know how to do – talk to the sur- at 25 February, globally, 112 million people had contracted the vivors about their ordeals? According to an American organisa- coronavirus – two and a half million of whom have lost their tion, CDC, one in four women and one in seven men will be lives. Those are bleak figures. victims of domestic abuse in their lifetime. It is to be hoped that Would it have made any difference if the Chinese authori- these Bills will result in perpetrators being held accountable. ties had listened to Dr Li Wenliang when he drew attention to Despite our President’s best intentions, it appears to most of the infections, instead of demanding us that those who have been party to cor- that he sign a statement denouncing his ruption are unlikely to pay a price – or be warnings? Maybe not, but we will never obliged to return what they received or know if fear of loss of face resulted in took illegally. The trial for erstwhile this horrific war being waged on South African President Zuma is set mankind by an invisible foe. That is a down for May – we will not hold our col- terrible thing for anyone with a con- lective breath. After all, this started in science to live with. 2005. Accountability is supposed to be a While there is talk of fewer restric- cornerstone of democracy – if our politi- tions over the European summer, cians, and others who are expected to set Australia talks of opening its borders in an example of honesty, are not held October, while other Australian author- accountable, can South Africa truly ities are more sceptical and talk of 2022.
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