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To arbitrate, or not to arbitrate: That is the question - The development of jurisprudence in South Africa
26 May 2020 Dispute Resolution

To arbitrate, or not to arbitrate: That is the question - The development of jurisprudence in South Africa

When electing to commence arbitration proceedings, one would seldom think of the maintenance and development of our judicial system. On the election to enter into arbitration proceedings, whether arising from an arbitration clause or not, one usually agrees to this form of dispute resolution for, inter alia, a speedy resolution of the matter (as the parties are able to set their own procedural time constraints), for the election of an arbitrator who is well acquainted with the subject matter of the dispute, as well as confidentiality of the proceedings.

The issues with issues: A refresher on issuing shares where timing is an issue
26 May 2020 Corporate & Commercial

The issues with issues: A refresher on issuing shares where timing is an issue

As the restrictions on economic activity ease and companies attempt to get their businesses back up and running, many private companies will be looking for quick cash injections. If borrowing from a bank is not immediately possible, or if one of the reasons for the cash injection is to settle bank debt, it may be necessary to raise capital by offering shares to third party investors or to existing shareholders. An advantage of equity funding is that it does not negatively affect a company’s solvency and liquidity and in fact bolsters a company’s assets, which allows it to meet the solvency and liquidity test and to continue making distributions or giving financial assistance if required.

Stay in your lane: Lessons on the duty to contact trade unions before dismissing employees involved in a strike
25 May 2020 Employment

Stay in your lane: Lessons on the duty to contact trade unions before dismissing employees involved in a strike

The collective bargaining landscape is defined by the membership numbers that trade unions have within a particular workplace. Item 6(2) of the Schedule 8 of the Labour Relations Act (LRA) requires an employer to contact a trade union official prior to dismissing employees involved in an industrial action. Item 6(2) does not specify whether the employer’s duty to contact a trade union official applies to all trade unions in the workplace, recognised trade unions or only the majority or sufficiently representative trade unions.

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Public Procurement Bill, 2020: Proper change or a damp firework?
20 May 2020 Dispute Resolution

Public Procurement Bill, 2020: Proper change or a damp firework?

Contracting with an organ of state is not easy. Firstly, because the Constitution requires an organ of state to contract for goods or services in a way that is fair, equitable, transparent, competitive and cost-effective. To achieve those exacting requirements the state must maintain a procurement system of interrelated statutes, regulations and directives. But secondly, the system has developed over time with some of the rules governing state procurement pre-dating the constitutional dispensation. The State Tender Board Act, 1968 and National Supplies Procurement Act, 1970 are notable examples. That development over time has introduced a level of unnecessary complexity.

Necessary and essential may well be two different things…
20 May 2020 Dispute Resolution

Necessary and essential may well be two different things…

Fans of the sitcom The Big Bang Theory will remember Sheldon Cooper’s three-legged “like a milking stool” opening statement in which he schooled the judge who occupies “the kiddie table” of his profession on the principle of quod est neccessarium est licitum. As he eloquently explained, the principle entails the sentiment that, that which is necessary is by definition, automatically lawful.

The validity of market flex provisions revisited
20 May 2020 Corporate & Commercial

The validity of market flex provisions revisited

A market flex clause is designed to provide funders with the flexibility to change the pricing and/or the structure of a financing package if there is a change in market conditions. The global COVID-19 crisis has brought about economic uncertainty and market volatility – increasing the popularity of market flex clauses amongst funders. In this article, we revisit some key legal principles underpinning the validity and enforceability of market flex clauses.

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Black, white and different shades of grey
25 September 2018 Employment

Black, white and different shades of grey

South Africa's history of apartheid and oppression continues to affect post-democratic society today. The workplace is not excluded from the list of institutions affected. Our courts have been called upon to deal with countless incidents involving racism and racial abuse in the workplace. In fact, the increasing number of these incidents has been noted by the Labour Court as a concern. In many cases, racism in the workplace has been held to constitute serious misconduct warranting dismissal.

The future of underground coal gasification – Take two!
19 September 2018 Corporate & Commercial

The future of underground coal gasification – Take two!

In 2015 we published an article on underground coal gasification ("UCG") and its place within the regulatory framework under the Mineral and Petroleum Resources Development Act, 2004 (as amended). Three years later it would appear that uncertainty of the regulatory place for UCG would continue with the announcement by the Minister of Mineral Resources that the Mineral and Petroleum Resources Development Amendment Bill, 2014 ("MPRDA Amendment Bill") will be withdrawn.

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BEE fronting
2 April 2020 Corporate & Commercial

BEE fronting

Corporate & Commercial Director Allan Hannie appeared on eNCA's Check Point, where he spoke to Nkepile Mabuse about "BEE fronting".

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COVID-19 TERS
9 April 2020 Employment

COVID-19 TERS

Employment Director Jose Jorge joins The Honest Truth with Benito Vergotine to unpack COVID-19 Temporary Employee / Employer Relief Scheme (TERS) and what it means for companies and employees.

Banning of 100 people and more gatherings
20 March 2020 Employment

Banning of 100 people and more gatherings

Employment Senior Associate, Bheki Nhlapo, recently joined the Heart FM breakfast show to discuss and elaborate on the announcement made by President Cyril Ramaphosa regarding the banning of 100 people and more gatherings, especially in the workplace.

CDH named Dealmaker of the decade for deal flow
5 March 2020 Mergers & Acquisitions

CDH named Dealmaker of the decade for deal flow

Allan Hannie, Director in our Corporate & Commercial practice joined SAfm to elaborate on CDH being named Dealmaker of the Decade for deal flow. He also discusses BEE and its positive impact on the South Africa economy, youth employment, and empowering small black businesses.