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Archives: 2012 – 2014

The concept of a binding offer by creditors in business rescue now clarified.

A landmark decision has been made by the Supreme Court of Appeal whereby the concept of a binding offer in the business rescue context has now been clarified.

Previously in circumstances where a business rescue plan cannot be adopted due to opposition, creditors in support of the plan would make binding offers to those creditors opposed to it. Offers are made to buy the opposing creditors’ claim, in order to obtain more voting rights in support of the plan. In other words, if Creditor 1 made a binding offer to Creditor 2, Creditor 2 would in essence lose their voting rights. Creditor 2 was not given opportunity to either accept or decline the offer.

The SCA has now clarified the position in that the nature of a binding offer should be construed in a similar light to that of the common law position, whereby both offer and acceptance need to take place. “The settled meaning both in general use and in the more technical legal use of the word ‘offer’ is that it is only on acceptance that an offer creates rights and obligations”.

Access the judgment here:-

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New Chairperson Appointed

Deirdré Olivier has been appointed Chairperson of Fairbridges Wertheim Becker. A BA LLB graduate of the University of Cape Town. She served her articles at Fairbridges, was admitted as an attorney in 1995, and later qualified as a notary public. She has been a director of the firm since 1997 and heads up litigation at the Cape Town office. She is a long-serving member of the firm’s management team. Her appointment as the 16th Chair of the firm has been widely acclaimed and welcomed. Her exceptional professional reputation and leadership credentials make this a well-deserved appointment.

Deidré is a member of the Institute of Forensic Practitioners and a qualified mediator with FAMSA. She specializes in commercial and civil litigation, corporate litigation, property, housing and planning law, constitutional law, forensic investigations, administrative law, contract and delict, dispute resolution, environmental law, immigration law and debt recoveries. She has extensive experience in drafting opinions, policies and legislation and advising on local authority law.

She represents various municipalities and other organs of state, universities, the South African National Biodiversity Institute, The Publishers Association of South Africa and other corporate and private clients. Deirdre has conducted a number of high profile cases over the years in the Constitutional Court, the Supreme Court of Appeal, High Courts, Magistrates Courts and the Land Claims court. She has also represented clients in important mediation proceedings and public commissions of enquiry. Her experience includes successful litigation against illegal drug and liquor dealers in state housing, to demolish unsafe buildings, and the enforcement of property and planning legislation.

Fairbridges Wertheim Becker is privileged to again have at its head a leader of truly outstanding calibre.

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The Alienation of Land Act

In the recent Constitutional Court case of Botha v Rich NO the court decided that a purchaser may force a transfer of land in terms of Section 27 of the Alienation of Land Act, provided that more than half the purchase price has been paid and that the purchaser is not in arrears.

The court further held that the principle of good faith underlying the law of contract dictates that land should be transferred to a purchaser in this situation against the furnishing of appropriate guarantees, even if the purchaser is in arrears with installments.

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Bangladesh extends territory

The Permanent Court of Arbitration in The Hague has awarded Bangladesh more than 9 700 square miles in the Bay of Bengal, ending a three decade-long maritime dispute between Bangladesh and India.

Bangladesh initiated the arbitral proceedings against India.
The dispute originated from the partition of British India into the two states of India and Pakistan in 1947[/fa-maintext]

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Insight into POPI (Protection of Personal Information Act)

Did you know that in terms of Section 5(f) of the POPI, you have the right not to be solicited by direct marketing by means of unsolicited electronic communications (text, voice, sound or image message) without your consent. Such direct marketing must contain the details of the sender, together with the contact details necessary to direct a request that the communications cease.

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Advertising Standards Authority Ruling

In a recent Advertising Standards Authority (ASA) matter involving a billboard on the Soweto Highway, Mini Cooper undertook not to use the phrase “DRIVE IT LIKE IT’S STOLEN” again to promote its products. According to the complainants the advertisement, which featured a billboard with the shape of a Mini Cooper cut out of it, was irresponsible and offensive in that it promoted and glorified the stealing of cars, speeding and reckless driving. The billboard had been stolen by the time the ASA heard the matter

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Women´s day

“The fastest way to change society is to mobilize the women of the world.” – Charles Malik

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Mergers and acquisitions picking up

According to UK research firm Mergermarket, mergers and acquisitions are starting to pick up after six years of stagnation. It is likely that companies in South Africa and other African countries will follow this trend, particularly those countries unconstrained by competition regulations. These sorts of deals are expected to find the most growth in the mining sector and in renewable energy projects

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Mediation FAQ 5

How is the mediator appointed? It is essential that the mediator is seen as independent and impartial. The mediator is appointed either by the parties themselves, after agreeing on a mediator from a list of nominations, by the Chair of an independent institution, after having been requested to do so. Where particular expertise is required, such as an accounting background where the valuation of shares is at issue, a mediator with industry-specific experience is appointed.

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New Practice Rule - Cape Town Regional Court

Last month the Cape Town Regional Court introduced a practice rule that all applications for default judgment take place in open court and that a representative of the applicant be present. Previously a default judgment was decided by a Magistrate on the papers, which would be sent back to the applicant with queries. The new procedure will simplify and expedite this process by allowing a Magistrate to raise and deal with any queries immediately.

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Prescribed Rate of Interest Increases

As of 1 August of this year, the prescribed (default) rate of interest on all claims has been reduced from 15% to 9%. This means that a litigant will not be able to claim more than 9% on any monetary claim brought to court, unless a different rate of interest has been agreed between the parties beforehand.

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Miss Soweto

The Miss Soweto beauty pageant takes place today at the New Soweto Theatre in Jabulani. The pageant, which was first established in 1979, has produced two Miss South Africa’s and one Miss Universe, and is often as a professional springboard for its winners. Each year a percentage of the pageant’s proceeds contribute towards funding a worthy cause or charity in the entertainment industry.

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