Trustees have new duties
INTRODUCTION On 29 December 2022 the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, No 22 of 2022, was published by the Presidency. The Act, no doubt designed to encourage the Financial Action Task Force not to place South Africa on the grey list, inter alia introduces amendments to the Trust […]
Can an unsuccessful tenderer claim damages from the state – The final word!
The Constitutional Court handed down judgment on 30 November 2022 in answer to this question. In a unanimous judgment, the Constitutional Court had to consider whether a tenderer, deprived of success in a tender by the State’s intentional misconduct, could claim damages in delict for loss of profit. The appeal to the Constitutional […]
Procurement Law Heading into 2023
INTRODUCTION In 2020, the Preferential Procurement Regulations, 2017 (the "2017 Regulations) gazetted in accordance with section 5 of the Preferential Procurement Policy Framework Act No. 5 of 2000 (the Act) came under scrutiny and were found to be unconstitutional by the Supreme Court of Appeal. That Court’s decision was taken on appeal to the Constitutional […]
Small Merger Notifications
In the Government Gazette of 14 October 2022, the Competition Commission (the Commission) amended its guideline on small merger notifications (the Guideline). The Guideline comes into effect on 1 December 2022. The Competition Act distinguishes between a small merger, an intermediate merger and a large merger. Large and intermediate merger transactions require mandatory notification and […]
Adjudication: Disputes over Validity of a Contract Termination
INTRODUCTION In a recent adjudication where the adjudicator was a very senior retired judge, the question arose as to whether a dispute relating to the termination of a JBCC contract was susceptible to adjudication and whether the adjudicator had the power to make a binding order on that issue. These questions arose for […]
Expropriation Bill
The Expropriation Bill was finally passed by the National Assembly on Wednesday, 28 September 2022. The first version of the Bill was withdrawn in 2008 when the Parliamentary legal advisors concluded that it was unconstitutional for its exclusion of recourse to courts. The next version of the Bill was tabled in 2015 and passed in […]
Electricity Generation licencing exemptions
President Ramaphosa announced in his address of 25 July 2022 that in order to end loadshedding it was urgently necessary to add more capacity to the grid. This would be achieved by accelerating greater private investment in generation capacity. In 2021 the licencing threshold was increased to 100MW. Following the success of this reform and […]
Agreement to arbitrate
INTRODUCTION The resolution of disputes by means of arbitration requires that there be an agreement between the disputing parties to that effect. Absent agreement, the default mechanism for resolving disputes is by means of legal proceedings. What happens if there is a dispute about the existence of the arbitration agreement that one of […]
Creditors’ claims in business rescue and subsequent liquidation: where do they rank?
“The only man who sticks closer to you in adversity than a friend is a creditor.” Unknown The ranking of creditors’ claims during business rescue is, to a creditor, one of the most important aspects of business rescue. This is dealt with by the Companies’ Act, No. 71 of 2008 (“the Companies Act”) and has […]
Publication of Draft Preferential Procurement Regulations 2022 for Public Comment
On Wednesday, 16 February 2022, the Constitutional Court handed down judgment in the Minister of Finance’s Appeal against the judgment handed down by the Supreme Court of Appeal (See: Afribusiness NPC v the Minister of Finance [2020] ZASCA 140 ) (the Supreme Court decision). The Supreme Court decision concluded that the Minister of Finance exceeded […]