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Competition Amendment Bill proposes significant changes to Market Inquiries

The Competition Amendment Bill proposes giving the Competition Commission broader powers, with more substantial remedies and the threshold for initiating a market inquiry has been lowered. Key changes include the expansion of the scope of market inquiries, the provision of a notification and consultation process with sector regulators and the granting of substantial powers to … Continue reading

Medical prosthesis not defective nor abnormal risk (UK)

The manufacturer of a hip prosthesis system (which was of a metal-on-metal design) for use in total hip replacement operations was sued by 313 individual claimants who alleged metal-wear debris damaged surrounding soft tissues necessitating revision surgery. The court found that the system was not defective and the claimants had not proved that it did … Continue reading

Bank escapes liability for credit reference

Playboy Club London sued an Italian bank for losses it suffered after it extended a credit facility to one of the bank’s customers on the basis of a favourable credit reference provided by the bank. A ‘well-known figure at a casino in Lebanon’ applied to Playboy Club for a cheque-cashing facility up to £800 000 to … Continue reading

Competition Amendment Bill proposes tougher penalties

The Competition Amendment Bill of 2018 introduces harsher penalty provisions which increase the enforcement powers of the competition authorities for purposes of deterring anti-competitive conduct. Removal of the ‘yellow card’ Currently, the Competition Act only allows for administrative penalties to be imposed in relation to certain prohibited practices if the conduct has been repeated by … Continue reading

SA poised to follow suit in utilisation of non-competition merger control to protect State security in foreign mergers

A controversial introduction in the latest draft of the Competition Amendment Bill of 2018 is the inclusion of a section that requires the State President to constitute a standing committee of cabinet ministers and public officials to consider whether a merger, involving a foreign acquiring firm, will be adverse to national security interests in the … Continue reading

Competition Amendment Bill 2018 aims to protect market participation of non-dominant firms

The overriding intention of the Competition Amendment Bill of 2018, introduced in parliament on 12 July 2018, is to address perceived high levels of concentration and the skewed ownership profile of the South African economy. The competition authorities have consistently expressed concerns about the large number of dominant firms operating in the economy which they … Continue reading

Director’s personal liability (UK)

In a UK case the court made some pertinent remarks about the personal liability of a director: A director is not liable for the wrongdoing of her/his company merely by reason of being a director. The director is liable for wrongs personally carried out by her/him. A director is also liable where she or he … Continue reading

Armed robbery is vis major

Two consignments of cigarettes which were imported into South Africa from Zimbabwe were stolen in August 2009 by unknown armed robbers during a robbery from a customs and excise warehouse. The owners of the consignment claimed a rebate of customs duty under the Customs and Excise Act which allows a rebate in circumstances of vis … Continue reading

Arbitration clause not void for vagueness (UK)

The UK Chancery Division held that an arbitration clause, which could be invoked over a dispute whether there had been ‘any major physical or financial change in circumstances affecting the operation’ of Tata Steel which imported goods through a Welsh port, was not void for uncertainty. The court quoted a nice passage from a previous … Continue reading

When the costs exceed the claim (UK)

Two UK judges have expressed their dismay over a matter that went to court for three plaintiffs with modest claims in the lower hundreds of pounds where the parties ended up spending GBP2 million on costs. The claim was against an airline for air tickets for cancelled flights. The court observed that from an early … Continue reading

Scope of arbitration clause (UK)

The UK Chancery Division held that an arbitration clause relating to any dispute regarding a contractual undertaking to renegotiate port licensing conditions in the event of ‘any major physical or financial change in circumstances affecting the operation’ of the importer’s works, was broad enough to cover a dispute about the fees for the use of … Continue reading

Informed Consent Principles (UK)

The English Court of Appeal in a June 2018 judgment confirmed the principles relating to informed consent in medical malpractice claims. A woman had been suffering painful, heavy periods and lower back pain, for which she sought medical advice. After being given various treatment options, she chose to undergo a total abdominal hysterectomy and bilateral … Continue reading

Administrative action can be reviewed from when it adversely affects a person’s rights

The Supreme Court of Appeal decided that a decision by the National Energy Regulator of South Africa to determine gas prices was not reviewable at the stage when NERSA decided on a methodology to determine the prices, but was reviewable when NERSA subsequently determined the prices imposed on customers. In February 2012, NERSA concluded that … Continue reading

Cancellation of contract not justified where most of the price already paid and restitution unlikely

The court refused to uphold cancellation of an agreement of sale for a members’ interest in a close corporation because only a total of R160 000 out of a purchase price of R4 million (96%) was outstanding and three of the appellants had been paid in full. In addition, restitution of the amount already paid was doubtful … Continue reading

How to politely tell someone they are lying

In a recent case which went through two courts in the UK relating to a ‘fiscally clandestine organisation’, the evidence of the various ‘utterly dishonest’ witnesses was described in the following phrases which you may find useful: One witness was ‘egregiously dishonest’ and in his evidence was ‘as heroically dishonest as he is in everyday … Continue reading
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