Offers to settle in litigation: Beware, they can bite!

“That’s the difference between me and you. You wanna lose small, I wanna win big.” So said Harvey Specter in Suits. In the real world, many disputes are not worth fighting, should be settled and that decision, to settle or fight, requires insight, maturity and wisdom. Having decided to settle though, and perhaps having disappointed Harvey Specter by deciding to lose small, it is vital to see the matter through with the same diligence that would have been applied to a fight to the death. It is easy to stop concentrating on the settlement and find suddenly that you have lost big.

Direct marketing – the way forward

Direct marketing is big business. It is frequently used by businesses as a marketing tool. Many businesses undertake research about prospective customers by accessing information already in the public domain. This includes gleaning information from publicly accessible websites (such as LinkedIn, Facebook and the like), and obtaining information via company switchboards. The personal information is then captured and stored. The business then reaches out to these prospective customers (in person, via post, via personalised or mass-generated emails and/or via telephone calls) to market goods or services. The communication via person, mail or electronic communication for the purpose of promoting any goods or services, or requesting a donation constitutes direct marketing.

Can a shareholder recover loss caused by a wrong done to the company in which it holds shares?

It is trite law that a company is a separate legal entity distinct from its shareholders. Shareholders enjoy the benefit of this primal distinction in that they cannot be sued as shareholders for the liabilities of the company. However, when a company suffers loss due to a wrongful act perpetrated against the company, the shareholders of that company also suffer as a result of the value of their shares decreasing.

No rest for the wicked Social Media Policy

Our courts have often dealt with employees operating under the misconception that their social network sites are personal, private and detached from their employment. Employees may often feel secure under the guise offered by the divide between work and personal life, particularly during the festive “leave” season where employees spend less time in their work environment. However, dismissals on account of social media misconduct are on the rise.

The contours of Ubuntu: A principal’s right to terminate a contract of mandate

It is firmly established in our law that both the terms and enforcement of a contract must not offend public policy, a matrix of rules articulating society’s values and sense of propriety. These values are neatly encapsulated in the concept of Ubuntu which, as our courts have held on a number of occasions, suffuse all areas of our law (including the law of contract). Should the terms of the contract per se or their enforcement in a particular context violate public policy, our courts will decline to uphold them.

A silver lining? Relaxation of the exchange control rules regarding loop structures announced in the MTBPS

On 30 October 2019, the Minister of Finance (Minister) tabled the 2019 Medium-Term Budget Policy Statement (MTBPS). In his speech on the MTBPS, the Minister was frank in describing the challenges faced by the South African economy and emphasised that our economy must grow faster. Following the tabling of the MTBPS, ratings agency Moody’s indicated that South Africa’s credit rating would remain at the lowest investment grade level, but changed its outlook from stable to negative.

Affirmative Action: Ten lessons learnt from recent case law

The Employment Equity Act 55 of 1998 (EEA) was established to achieve equity in the workplace through the elimination of unfair discrimination and the implementation of affirmative action measures.

Customs & Excise Highlights

Herewith below selected highlights in the Customs & Excise environment since our last instalment.

Supreme Court of Appeal confirms its decision regarding trading stock obsolescence

There have been various jurisprudential and legislative developments over the past 12 months regarding section 22 of the Income Tax Act 58 of 1962 (Act), which, in its simplest form is a timing provision which ensures that the cost of trading stock in the hands of a taxpayer matches the income earned in respect of that trading stock sold, or otherwise disposed of. We previously wrote about the Supreme Court of Appeal (SCA) judgment handed down last year in C:SARS v Volkswagen South Africa (Pty) Ltd 81 SATC 24 as well as the proposed amendments to section 22 that were published for public comment on 21 July of this year. In this alert we discuss the most recent judgment handed down by the SCA on the same issue on 27 September 2019 in C:SARS v Atlas Copco South Africa (Pty) Ltd (834/2018) [2019] ZASCA 124.

Seeing eye-to-eye: The National Credit Act’s applicability to settlement agreements

It is no secret that the National Credit Act, No 34 of 2005 (Act) has its problems. Courts have been called upon numerous times to interpret what should be simple provisions that confuse contracting parties. A measurable portion of the court cases involving the Act and its interpretation concern the application of the Act to agreements.

Setting aside dispositions – a practical approach

In winding-up proceedings, the commencement date of the winding-up and the establishment of the concursus creditorum (meaning the coming together of the creditors) play an important role. The purpose behind the establishment of a concursus is to ensure that the company’s property is collected and distributed amongst its creditors in the prescribed order of preference.

Shareholder self-help and the board’s refusal to convene a meeting

In the case of Heatherview Estate Extension 24 Home Owners Association v Mahlatse Trading Enterprise CC and Others (22616/2019) [2019] ZAGPPHC 180 (20 May 2019), the High Court considered the meaning and effect of s61 of the Companies Act, No 71 of 2008 (Companies Act), and whether a meeting convened by certain members of a non-profit company themselves, in instances where the board failed to do so upon having received written demand by such members in terms of s61(3), was a lawfully constituted meeting.

Video: Nationals Schools Moot Competition Seminar hosted by the Pro Bono and Human Rights Practice

The National Schools' Moot Court Competition (the Competition) is a nation-wide high school level moot court competition aimed at building awareness amongst learners about the Constitution, providing them with exposure to the legal profession and facilitating access to legal education. It is a joint initiative of the University of Pretoria, the Department of Basic Education, the Department of Justice and Correctional Services and the Foundation for Human Rights.

Think twice before you tweet

South Africa has walked into a veritable social media storm in the early parts of the year, with employers increasingly being placed in the difficult position of having to decide whether or not to take action against employees for their behaviour online.

Cliffe Dekker Hofmeyr claims top spot by deal value for SA firms in Mergermarket’s M&A league tables for Africa and the Middle East

Cliffe Dekker Hofmeyr's (CDH) Mergers and Acquisition (M&A) team achieved first place by deal value for South African firms and 12th place internationally in the latest Mergermarket M&A Africa & Middle East 2015 Global League Tables. The team increased its deal value to $18.8 billion from $9.2 billion in 2014.

Cliffe Dekker Hofmeyr announces eight partner appointments in strategy to grow service offering in key client sectors

Cliffe Dekker Hofmeyr (CDH) business law firm in South Africa has made eight partner appointments to its finance and banking, employment and tax practices within the last month.

Uber: Convenience vs controversy

Members of public are increasingly making use of the convenient service offered by Uber. While this is undeniably an essential service, questions arise as to its legitimacy and whether this service is not already on offer by existing legitimate transportation services. The latter consideration sparked conflict between Uber service providers and the metered taxi industry and the issue was also recently debated in National Parliament.

The Sandton EcoMobility World Festival 2015

CDH is committed to being part of the transformative change during the Sandton EcoMobility World Festival 2015

Allan Reid elaborates about the 10th anniversary of the Mining Charter

Allan Reid, Sector Head of Mining and Minerals elaborates about the 10th anniversary of the mining charter.

Whistle blowing in SA is making South African multinational nervous

Chris Charter on new Competition Commission action against price collusion

Massmart has launched a complaint with the Competition Commission targeting Pick n Pay, Spar and Shoprite in a bid to end lease exclusivity clauses. Chris Charter, Head of our Competition practice comments.

Liquidation of various assets that are owned by former ANCYL leader, Julius Malema

There is a lot of interest in the liquidation of various assets that are owned by former ANCYL leader Julias Malema. Guests in studio are Marc Ashton, Editor of Finweek, Vincent Tadden Lending Product House at FNB Wealth and Julian Jones, National Head of the Business Rescue, Restructuring and Insolvency Sector.

Director Fiona Leppan talks about ‘knowing your rights – working after hours’

Employment Director Fiona Leppan joined Bruce Whitfield's The Money Show to talk about flexi time; and employers vs employees' rights around working after hours.

Jerome Brink spoke to Cape Talk's Pippa Hudson about sugar tax

Tax & Exchange Control Senior Associate Jerome Brink spoke to Cape Talk's Pippa Hudson about sugar tax.

Gavin Stansfield joined the breakfast show on Cape Pulpit, to talk about resignations and notice periods

Employment Director Gavin Stansfield joined the Get Up & Go breakfast show on Cape Pulpit, to talk about resignations and notice periods.

"Is it possible that in 2018 your debts may be written off?"

"Is it possible that in 2018 your debts may be written off?" Dispute Resolution practice Director, Eugene Bester joined Michael J Avery on Classic Business to discuss this further.

Louis Botha and Louise Kotze discuss Section 24C of the Income Tax Act

Associate Louis Botha and Candidate Attorney Louise Kotze in our Tax & Exchange Control practice joined Cobie Legrange on Classic FM Business to discuss Section 24C of the Income Tax Act No. 58 of 1962, including practical issues arising from tax litigation.

Jerome Brink discusses sugar tax

Senior Associate in Tax & Exchange Control, Jerome Brink, was recently interviewed by Cape Talk's John Maytham. During his interview he discussed sugar tax, which will come into effect on 1 April.