Johannesburg, South Aftrica -- (SBWIRE) -- 07/11/2013 -- The Supreme Court of Appeal recently delivered judgment in a case providing clarity on whether agreements settling damages claims brought against the South African Road Accident Fund on behalf of minors should be set aside.

The case of Road Accident Fund v Advocate Ele Myhill, NO (Swalibe Minors) involved an appeal against a judgment of the South Gauteng High Court, which had initially found in favour of advocate Ele Myhill (Myhill).

Myhill was acting on behalf of two minors, Philippine and Lufuno Swalibe (referred to as P and L respectively, and "the minors" together).

The pertinent issue to be determined on appeal was whether agreements settling the claims for damages brought against the appellant, the Road Accident Fund (RAF), on behalf of the minors should be set aside. The High Court held that they should be set aside, but granted the RAF leave to appeal.

Background

In 1997, the mother of the minors (the plaintiff), and P and L were run down by a motor vehicle. P (then aged two years) and L (then aged four months) sustained substantial head injuries. Following their release from hospital and prior to the settlement of their claims, the plaintiff alleged that both P and L had suffered seizures.

The records available at the time showed that L suffered an injury to the brain that, it was accepted, would put her at a higher risk of developing post-traumatic epilepsy. An expert neurophysiologist who testified in the High Court, noted that P had displayed classic signs of epileptic seizure during October 1998.

The plaintiff instructed an attorney, Cynthia Chabana (Chabana), who claimed ZAR 57,260 for P and ZAR 60,260 for L from the RAF. The claims mainly consisted of general damages.

Representatives of the RAF who handled the claims only assessed general damages as they did not receive supporting documentation in respect of the negligible amounts claimed for medical expenses. The merits of the claim were resolved on the basis that the plaintiff was partly to blame for the collision (30%), and the RAF offered to settle the minors' claims by paying ZAR 5,600 in respect of P, and ZAR 4,900 in respect of L.

In 1999 the plaintiff, in her capacity as P and L's mother and natural guardian, signed discharge forms accepting the offers. The Court inferred that this was done with Chabana's advice.

Ten years later Myhill was appointed as curator ad litem to represent P and L in civil proceedings against the RAF. Summons was issued seeking an order setting aside the settlements and claiming substantial damages for the minors arising out of their injuries, and claiming that at the time the offers of settlement were made, a sum of ZAR 850,000 would have been fair and reasonable compensation for each of the minors.

The law

While Myhill relied on three alternative causes of action, the High Court found in her favour on the basis that the settlement agreements were prejudicial to the interests of the minors.

A contract concluded on behalf of a minor may be set aside if it is shown that it was prejudicial to the minor at the time it was concluded and the prejudice suffered was serious or substantial. While this is established law, there has been some debate recently as to whether or not the interests of legal certainty may outweigh the principles in cases where the minors' parent or guardian has taken legal advice at the time of concluding the settlement.

The Court noted that it should not take into account factors unknown at the time the claims were settled.

Based on the information available at the time, the Court found that the RAF representatives did not appreciate the severity of L's injury, or take into account L's possible epilepsy. At the time, epilepsy had not been positively diagnosed, but the Court noted that the information available indicated a real possibility that L and P had developed post-traumatic epilepsy and reasonable assessment of their damages should have taken this into account.

The RAF failed to take epilepsy into account, which caused it to not offer any amount for future medical expenses, and to offer general damages that were wholly inadequate. As a result, the Court held that the settlements were obviously to the minors' prejudice.

Set-off

The amounts offered by the RAF were reduced by 30% to cater for an apportionment against the plaintiff as a result of her contributory negligence. The question arose whether the RAF was entitled to apply an apportionment against the minors' damages.

The general rule is that a person's indebtedness in a personal capacity cannot be set off against that same person's indebtedness in a representative capacity (eg as a custodial guardian). By reducing the amount offered by 30%, the RAF set-off the amount it could recover from the plaintiff in her personal capacity from what it owed her in her representative capacity as mother and natural guardian of the minors.

The Court held that the prejudice to a minor in such a case is obvious as the amount of the innocent minor's claim against a defendant would be diminished by the fault of another. The Court accordingly ruled, once and for all, that a debtor liable to a minor child, when sued by the child's custodian parent, may not set off against its liability to the child any amount that it may personally be owed by the custodian parent.

In the circumstances, the Court held that the minors were clearly prejudiced by the RAF having set off the plaintiff's liability against what it owed to the minors.

Settlements

A settlement agreement will not be rescinded merely because a claim was settled for an amount less than what it could be worth. The Court recognised that litigation is uncertain and it can be beneficial to settle a claim, even if the amount offered is less than what is hoped would be finally awarded, as predicting the outcome of a claim for damages for bodily injuries is not possible. Despite the potential advantages of early settlement, in this particular case the settlements were nevertheless found to be prejudicial.

Implications

The Court has come out in favour of the minor who is prejudiced by a settlement agreement entered into on that minor's behalf, regardless of the advice taken by the guardian who entered into such agreement on that minor's behalf.

The settlement may be set aside if it can be shown that the agreement was substantially prejudicial to the minor at the time it was concluded, based on the information available at that time. This highlights the importance of properly assessing injured minors' injuries and considering all of the information that may be available in assessing reasonable settlement offers.

While it is tempting to settle a matter at a low amount before summons is served, doing so comes with the inherent risk that the matter may resurface with a vengeance. The added cost of properly investigating before settling may well be significantly more economical in the long run.

Caution must also be taken when settling claims in which parents or guardians are partly liable. Settlement agreements will need to be worded carefully to avoid the conclusion that any amount offered to a minor is not set-off against the parent or guardian's liability.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town. Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax. Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 07/10/2013 -- Leading South African law firm, Webber Wentzel, provides insight into the regulatory changes introduced by the Mineral Petroleum Resources Development Amendment Act.

On 7 June 2013 the Mineral Petroleum Resources Development Act (MPRDA), as amended by the Amendment Act, brought about important changes to the regulation of the South African mining industry. The regulatory system created by the Amendment Act will, however, change once the proposed Amendment Bill, 2013 is brought into effect in the not-too-distant future.

The South African mining industry is thus faced with the introduction of changes to the MPRDA which will only endure until the Amendment Bill, 2013 comes into force.

Important provisions that have an immediate effect upon the Amendment Act's promulgation are outlined below.

Prospecting rights

Under the MPRDA, a regional manager could not accept a prospecting right application if another person held a prospecting right, mining right, mining permit or retention permit for the same mineral and land. The Amendment Act now provides that a regional manager may no longer accept an application if he or she has already accepted, but has not yet granted or refused, a prior application for a prospecting right, mining right, mining permit or retention permit for the same mineral on the same land.

The Amendment Act also makes significant amendments to section 17 of the MPRDA, which contains the substantive requirements that need to be met when applying for a prospecting right. A new substantive requirement is inserted to provide that the Minister may only grant a prospecting right if the applicant "has given effect to the objects referred to in section 2 (d)" (the empowerment objective). The Amendment Act thus makes black economic empowerment (BEE) compliance mandatory for all prospecting rights; a requirement which was previously discretionary.

In addition, section 13 of the Amendment Act amends section 17 (2) (b) of the MPRDA and provides that the Minister must refuse to grant a prospecting right if it will:

- Result in an exclusionary act,
- Prevent fair competition, or
- Result in a concentration of the mineral resources in question under the control of the applicant.

The new subsection 17 (2) (b) repeals the first two sub-clauses as indicated and amends the last, with the result that the Minister must now refuse to grant a prospecting right if the granting of such right will "result in the concentration of the mineral resources in question under the control of the applicant and their associated companies with the possible limitation of equitable access to mineral resources".

The effect of this amendment is that the Minister must, in future, refuse to grant a prospecting right not only where the applicant has a "concentration" of mineral resources, but also where this extends to the applicant's associated companies. The amendment suggests that no applicant can be granted a prospecting right if it already has a "concentration" of rights for the same mineral. The term "concentration" and the phrase "possible limitation of equitable access" are not defined.

Mining rights

As with prospecting rights, a regional manager may not accept an application if he or she has accepted, but has yet to process, a prior application for the same mineral and land.

Section 23 of the MPRDA is now amended to provide that "[i]f the application relates to the land occupied by a community, the Minister may impose such conditions as are necessary to promote the rights and interests of the community, including conditions requiring the participation of the community".

The effect of this amendment is that the Minister can impose, by edict, further "conditions" on an applicant that is mining on land occupied (not necessarily owned) by a community to "promote [their] rights and interests including conditions that require the participation of the community". Such conditions will go beyond the requirements of the prescribed social and labour plan, as well as the equity divestiture requirements contained in the Mining Charter. The amendment gives no indication, and thus no limit, as to what such participation may involve.

The Amendment Act also introduces a new section 52 (4), which provides that "[t]he holder of a mining right remains responsible for the implementation of the processes provided for in the Labour Relations Act, 1995, pertaining to the management of downscaling and retrenchment, until the Minister has issued a closure certificate to the holder concerned". Again, the potential financial implications of this amendment are troubling, as mining right holders remain liable for implementation until a closure certificate is issued, notwithstanding the fact that mining operations may have ceased.

Conclusion

From 7 June 2013, the South African mining industry is faced with the introduction of significant changes to the MPRDA that will only be in operation for an interim period until the Amendment Bill comes into force. This is likely to impose further compliance and regulatory costs on the industry.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town. Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax .

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 07/09/2013 -- Class actions are expressly and constitutionally recognised in South African law. Although the process of identifying and defining classes of people has been laid down, two recent applications have failed because the common characteristics were defined too broadly and the applicable questions of law were not identified sufficiently.

Class actions in South Africa

Class action - a device by which a single plaintiff can pursue an action on behalf of all persons with a common interest in the action, and with the ruling of the court being binding upon all class members - is a novel concept in South African law.

Section 7(4) of the Interim Constitution of 1993 and section 38 of the Constitution of the Republic of South Africa, 1996 (the Constitution) introduced the concept of class action into South African law with the limitation that class actions could only be used for the protection of Constitutional rights.

In Ngxuza & others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government 2001 (2) SA 609 (E) (Ngxuza v Department of Welfare) and Firstrand Bank Ltd v Chaucer Publications (Pty) Limited 2008 (2) SA 592 (C), however, the Court held that class actions should not be limited only to the protection of Constitutional rights, but should also be available in cases when damages are sought as a result of the unlawful conduct of private entities.

In 1996, the South African Law Commission (SALC) recommended that various principles underlying class actions in other jurisdictions should be introduced into South African law by way of an Act of Parliament.

In particular, the SALC proposed that class actions should be initiated by applying for a court to:
- Certify that a specific group of people sharing identical or similar characteristics constitutes a specific class of persons; and
- Grant the applicant(s) leave to institute an action on behalf of all the members of the certified class (the Certification Procedure).

The identical or similar characteristics would then function as the requirements to be included as members of the certified class. These requirements or characteristics would also form the boundaries of the certified class.

The Certification Procedure as a requirement for class actions was eventually confirmed by the Constitutional Court in Ngxuza v Department of Welfare and by the SCA in the case of Trustees for the Time Being of the Children's Resource Centre Trust & others v Pioneer Foods (Pty) Limited & Others [2011] JOL 27549 (WCC) (Children Resource Centre Trust).

The Certification Procedure was invoked for the first time in this case, in terms of which two separate applications to certify two classes of persons were brought before the High Court in the Western Cape Division. The applicants in both applications (consumers of bread and distributors of bread) intended to institute action proceedings by way of class actions against the respondents (three of the four main bakeries in South Africa) for damages allegedly suffered by members of the two classes as a result of the respondents' involvement in the bread cartel debacle.

Both applications were dismissed by the High Court, which held, inter alia, that the two classes which the applicants' requested the Court to certify were defined too broadly; (ie the applicants failed to sufficiently identify the class of persons they wish to represent and the common questions of law or fact that exist among the various class members).

The matter eventually went on appeal before the SCA. The SCA expressly recognised the need to protect and regulate class actions and to develop the procedural requirements for class actions. The SCA, however, held that it was only willing to determine the broad parameters within which class actions are to be pursued.

The SCA further held that it was the legislature's role to make the policy decisions in determining the structure of class actions and as a result, the SCA is not in a position to make such decisions for fear of encroaching upon the domain of the legislature, which the doctrine of separation of powers, fundamental to the Constitution, explicitly prohibits.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town. Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax .

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

When Does Material Non-Disclosure Void an Insurance Contract? A Legal Perspective

Johannesburg, South Aftrica -- (SBWIRE) -- 07/08/2013 -- A recent judgment indicates that the High Court will continue to adhere to "hard law" instead of adopting a new Treating Customers Fairly policy in relation to non-disclosure of material information by an insured.

South African law has always placed a duty of disclosure on an insured and allowed an insurer to deny liability for a claim when it discovers that the insured has materially misrepresented the facts relevant to his or her insurance cover. This is because it is essential for the insurer's assessment of risk that an insured keeps the insurer up to date with all relevant information.

The determination of whether a misrepresentation is deemed to be material is therefore essential for the protection of both the insurer and the insured.

Case law & the Didcott principle

The position in law was set out in Mutual and Federal Insurance Co Limited v Oudtshoorn Municipality 1985 (1) SA 419 (A), where Joubert JA held that courts determine if a non-disclosure is material by asking whether a reasonable person would think the information is material to the assessment of risk.

To make this determination, a court will consider all the relevant facts of the particular case and whether or not the undisclosed information is reasonable relative to the risk or the assessment of the premiums to be charged. In essence, an insurer can cancel the policy even where the withheld information would not have dissuaded the insurer from accepting the policy, but where it would merely have charged the insured a higher premium.

Six years later, in Pillay v South African National Life Assurance Co Ltd 1991 (1) SA 363 (D), Didcott J applied the law as stated above but noted that the harshness of outcome will not always be fair. Instead, Didcott J suggested that in certain instances of non-disclosure, it would be more equitable to "reconstruct" the policy than to cancel it.

According to what has become known as the "Didcott principle", if the insurer would still have issued the policy, albeit at a higher premium - even if the information withheld materially affects the risk to the insurer - then it would not be fair for the insurer to repudiate the claim.

The Treating Customers Fairly policy

South Africa is overhauling its consumer protection framework, including the Financial Services Board's (FSB's) publication of the Treating Customers Fairly (TCF) policy aimed at the financial services industry.

The TCF, proposed to be introduced in January 2014, requires companies to demonstrate that they meet six principles (or so-called "fairness outcomes"), including that:
- consumers can be confident that they are dealing with firms where the fair treatment of customers is central to the corporate culture;
- products and services marketed and sold in the retail market are designed to meet the needs of identified consumer groups, and are targeted accordingly;
- consumers are provided with clear information and are kept appropriately informed before, during, and after the point of sale;
- when consumers receive advice, the advice is suitable and takes account of their circumstances;
- products perform as companies have led customers to expect, and the associated service is of an acceptable standard and at the level customers have been led to expect; and
- consumers do not face unreasonable post-sale barriers to changing products, switching providers, submitting claims or making complaints.

The TCF is set against the backdrop of a 2011 policy document issued by National Treasury, titled A Safer Financial Sector to Serve South Africa Better. In this document, National Treasury recognises that the financial services industry should be held to a higher standard of market conduct than other industries, and accordingly, envisages a significant change to the regulation of the financial services industry.

With a focus on separate prudential and market conduct regulation, National Treasury identifies four objectives to be achieved by the financial sector:
- ensuring financial stability;
- facilitating consumer protection and appropriate market conduct;
- expanding access through financial inclusion; and
- combating financial crime.

Ameliorating the impact of the rejection of claims for non-disclosure is regarded as one of the components of consumer protection and market conduct.

Sherwin Jerrier v Outsurance Insurance Company Limited

A recent KwaZulu-Natal High Court case, Sherwin Jerrier v Outsurance Insurance Company Limited 2013 JDR 0562 (KZP), also considered the issue of insurance non-disclosure.

In this case, the insurer and defendant successfully rejected a claim based on the plaintiff/ insured's failure to inform it of two prior motor vehicle accidents during the insured period. The Court, per Koen J, held that in deciding whether or not to repudiate the contract, one must determine whether a reasonable person would take the unreported accidents as a change to the insured's circumstances that may influence:
- whether cover is granted (or continued);
- the conditions of such cover; or
- the premium charged.

In discussing the facts of the case, Koen J held (at para 30): "Both incidents would cause a reasonable man to conclude that knowledge of their occurrence would indicate a change to the Plaintiff's circumstances, at the very least from a claims history perspective, but also as a moral risk, that may (not necessarily would) influence whether the Defendant would give the Plaintiff cover, the conditions of cover or the premium they would charge."

The Court dismissed the plaintiff's case with costs and ruled that the non-disclosure amounted to a material breach of the terms of the insurance policy; thus absolving the defendant from liability. In essence, the Court failed to take account of the Didcott principle and applied the current common law.

Industry reaction to the Jerrier case

National Treasury, the FSB and the South African Insurance Association (SAIA) reacted with concern to the Jerrier ruling, clearly considering it as a step in the wrong direction. The parties met in April 2013 to agree on measures to enhance disclosures to protect car owners.

In a media statement jointly issued, the participants noted that "motor car owners need not be concerned" with the Jerrier case as "the judgment will not have any implications on how the insurance industry will assess claims".

The parties also stated that insurance companies "undertook not to reject motor car claims on the grounds that customers do not report minor incidences (in other words incidents that are not material to the assessment of the insurance risk)". The statement also makes it clear that the SAIA members have "reaffirmed their commitment" to embracing the TCF initiative, and that the Treasury, FSB and SAIA will take positive steps to protecting insurance consumers.

Commentary
With the Didcott principle being a persuasive but not binding statement of the law on disclosure, and the TCF programme merely being a guideline for improving market conduct practices, it is submitted that the Jerrier decision is uncontroversial.

It is not the place of the courts to change the common law based on policy. If National Treasury wants the law to be changed to provide for a stricter interpretation of materiality, then it must seek to amend existing legislation accordingly (i.e. the definition of materiality will have to be amended in the Short and Long Term Insurance Acts).

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town. Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax .

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Africa -- (SBWIRE) -- 06/03/2013 -- Pamela Stein, respected lawyer and partner at leading corporate law firm, Webber Wentzel, describes the first three conditions of lawful processing as outlined in South Africa's Protection of Personal of Personal Information Bill (POPI).

A comprehensive list of the requirements for lawful processing of personal information is located early in the Protection of Personal of Personal Information Bill (POPI), with convenient cross-references to the sections where these requirements are amplified.

At the heart of POPI is the principle that all processing of personal information must take place in compliance with the eight data protection principles. Failure to do so will render the processing unlawful.

The drafters of the legislation have adopted a proactive approach to regulation, labelling the eight data protection principles as 'conditions' rather than principles, to emphasise that they are an absolute prerequisite for the lawful processing of personal information.

The first three conditions are examined below.

Condition 1— Accountability:
In an attempt to encourage data protection by design, and following the approach adopted by the European Union (EU) Draft Regulation, this condition requires the responsible party to ensure compliance with all the conditions for lawful processing. This must be done at the time of the determination of the purpose and the means of the processing, as well as during the processing of the data.

Condition 2 — Processing limitation:
Under this condition, processing may only take place if the following circumstances exist: the data subject consents to the processing; the processing is necessary to conclude or perform a contract to which the data subject is a party; processing is necessary for compliance with an obligation imposed by law on the responsible party; or processing protects a legitimate interest of the data subject or the responsible party or a third party to whom the information is supplied.

Secondly, data must be collected from the data subject unless a justification to collect from elsewhere exists. Besides national security and crime prevention, other exceptions include the following:

- Consent of the data subject to collect from elsewhere;
- The data are contained in a public
- Record or have been deliberately
- Made public by the data subject;
- The collection from another source
- Would not prejudice the legitimate
- Interest of the data subject;
- Compliance with the condition
- Would prejudice a lawful purpose
- Of the collection; or
- Compliance would not be reasonably practical.

Thirdly, data subjects may, at any time, object to the processing of their personal information, and unless the responsible party is required by law to process that information, the processing of the information must stop.

Condition 3 — Purpose specification:
POPI gives effect to the purpose specification condition by requiring that the collection must be for an explicitly defined purpose related to a function or activity of the reasonable party. Unless there are exceptional circumstances, personal information can only be retained for as long as it is necessary to achieve the purpose for which it was collected.

These exceptions recognise the retention of data for historical, statistical and research purposes. Under this condition, personal information must be identified, destroyed or deleted after the responsible party is no longer authorised to retain the record.

POPI has adopted the approach of Article 17 of the EU Draft Regulation by giving the data subject the rights to be 'forgotten' in an online environment, to erasure of their data, and to data portability. It includes the obligation on the responsible party to, in certain circumstances, restrict the processing rather than destroy the data, for instance where a data subject challenges the accuracy of the data, or if the processing is unlawful, or where the data are maintained simply for the purposes of proof. In such circumstances, rather than destroy the data, the data subject can agree to its retention, and the responsible party is then required to restrict the processing.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town. Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax .

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Africa -- (SBWIRE) -- 05/31/2013 -- Pamela Stein, partner at leading South African corporate law firm, Webber Wentzel gives an overview of the Protection of Personal Information Bill which aims to give full effect to the constitutional right to information privacy. The bill was approved by the South African Parliament in 2012 and is expected to be signed into law during 2013.

After seven years of deliberations and numerous reviews, South Africa's first comprehensive data protection law, the Protection of Personal Information Bill (POPI) was approved by Parliament in September 2012, and is expected to be signed into law during 2013. Thereafter, organisations will have a transitional period of one year to ensure compliance with POPI before its provisions take effect.

Overview
POPI regulates every aspect of the processing of personal information, and is based on European data protection law.

The rationale for POPI is to give full effect to the constitutional right to informational privacy, which is a distinct element of the right to privacy protected under the South African Constitution. POPI provides substantive content to this right, by establishing a threshold of minimum conditions for the processing of personal information and providing individuals with rights and remedies to protect their personal information.

The lengthy and detailed deliberations on the Bill have allowed the drafters to draw on the experience of data protection regulation in the European Union (EU), including the recent comprehensive review of EU data protection law which resulted in the Draft Regulation on Data Protection (draft Regulation). A number of proposals in the draft Regulation have been included in the final draft of POPI.

POPI will apply to every person who processes the personal information of another (the responsible party), with some exclusions. Processing in the course of household or personal activity is excluded, as is processing by state bodies involved in crime prevention and national security, cabinet meetings, and where judicial functions are exercised.

A significant exclusion is the processing of personal information which takes place solely for the purpose of journalistic, literary or artistic expression. Interestingly, POPI applies to juristic persons. This is consistent with the approach of the South African Constitutional Court that, although juristic bodies do not have all the personality rights, they do have a right to privacy.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town. Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax.

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 04/06/2013 -- Leading South African law firm, Webber Wentzel provides a legal view on municipalities' exception from the provisions of the Consumer Protection Act, No. 68 of 2008 (CPA). Although the CPA broadly entrenches consumer rights and controls the supply and promotion of goods and services, Schedule 2, item 2(3)b does empower the Minister of Trade and Industry to exempt suppliers or industries from its application.

The Consumer Protection Act, No. 68 of 2008 (CPA) broadly applies to the supply and promotion of goods and services in South Africa in the ordinary course of business, for consideration and entrenches consumer rights.

The CPA applies to the State as a supplier. Schedule 2, Item 2(3)(b) of the CPA empowers the Minister of Trade and Industry to exempt suppliers or industries from its application. Pursuant to this, the Minister deferred the application of the CPA to all municipalities other than high capacity municipalities on 14 March 2011 on grounds that additional time is required to ensure adequate preparation of administrative systems.

The Minister later partially revoked this exemption; retaining the deferral of the application of sections 8 to 10 and 53 to 61 of the CPA in respect of medium- and low capacity municipalities. These sections regulate, among other rights and duties, consumer's rights in respect of marketing and the quality of goods, as well as the supplier's liability for damage caused by defective goods.

AfriForum applied to set aside the exemption notice in the North Gauteng High Court (the Court). The civil rights group challenged the validity of the exemption on grounds that it fails to promote the spirit, purport and object of the Bill of Rights in the Constitution of the Republic of South Africa, 1996 and it does not comply with the Promotion of Administrative Justice Act 3 of 2000.

On 28 February 2013 the Court set aside the exemption notice with effect from the end of March 2013. Judge Margaret Victor held that municipalities play a central role in ensuring quality of life and must therefore be effective, equitable and accessible. The Court ordered the Minister to publish a notice by no later than 31 July 2013; listing each municipality in respect of which the application of the CPA should be deferred.

As a result of the judgment, all provisions of the CPA will apply to medium- and low capacity municipalities as suppliers from the end of March 2013. The judgment will accordingly impact consumers to whom municipal goods and services are rendered.

It remains to be seen which low - and medium capacity municipalities will be exempted by the Minister and from which sections of the CPA they will be exempted; as well as for how long the exemptions will apply.?

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town.

Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions, Project Finance and Tax .

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 04/05/2013 -- Leading law firm Webber Wentzel provides legal insight into a recent landmark constitutional case. In the matter of Dudley Lee vs the Minister of Correctional Services, the Constitutional Court (CC) overturned the ruling made by the Supreme Court of Appeal (SCA). The plaintiff allegedly claimed that he contracted pulmonary tuberculosis (TB) while serving a term in Pollsmoor prison. The case is interesting in that it highlights the State's responsibility to ensure that the constitutional rights of detainees are upheld. It also brings important considerations regarding causation to the fore.

The Constitutional Court (CC) recently overturned a ruling of the Supreme Court of Appeal (SCA) in the landmark matter of Dudley Lee v the Minister of Correctional Services.

The case not only highlights the State's responsibility for ensuring that the constitutional rights of detainees are maintained and safeguarded, but also brings important considerations regarding causation to the fore. Such considerations may cast the net wider when it comes to causation and establishing legal liability, which in itself may prove costly for insurers.

Background

The plaintiff, Dudley Lee, was arrested in 2000 on charges of, among other things, counterfeiting, fraud and money laundering. While he was detained in prison for more than four years, the plaintiff allegedly contracted pulmonary tuberculosis (TB).

After his release from Pollsmoor prison, the plaintiff sued the Minister of Correctional Services for compensation as a result of him contracting TB. The High Court found in the plaintiff's favour and held that the defendant was liable for damages as result of the plaintiff's contraction of TB.1

The defendant appealed to the SCA2, which upheld the appeal on the basis that the plaintiff was unable to establish a causal link between him contracting TB and the specific negligent conduct on the part of the prison authorities. The Court noted that it cannot be found that "but-for" the alleged systemic omission by the prison authorities to safeguard the constitutional rights of detainees, the plaintiff probably would not have contracted the disease.

The Constitutional Court3

The plaintiff appealed to the CC on the following grounds:
- The SCA was wrong "in holding that causation had not been established";
- The SCA failed to follow the approach in Minister of Safety and Security v Van Duivenboden4, wherein it was decided that the "but-for" test should be applied flexibly; and
- If the "but-for" test is applied correctly and the plaintiff remains without relief, the test should be developed in accordance with the spirit, purport and objects of the Bill of Rights.

Majority judgment

In the majority judgment by Nkabinde J, it was found that the relevant question was whether the prison authorities' negligent omission caused the plaintiff to become infected with TB.

In this instance, Nkabinde J examined the "but-for" test and found that our law allows a flexible approach to the test and that recourse may sometimes be had to "empirical or common-sense view of causation"5.

The Court accordingly held that the SCA erred in that it was not necessary to substitute reasonable alternative measures to determine factual causation, which is allowed by the more flexible approach. If the circumstance required the use of a reasonable alternative substitution, our law does not require a plaintiff to adduce further evidence to prove, on a balance of probabilities, what the lawful, non-negligent conduct of the defendant should have been.6

While Nkabinde J found that South African law recognises that the "but-for" test should be applied flexibly7, the learned Judge was of the view that it was not necessary to develop South African law in accordance with the casuistic approach because such a development, especially in relation to omission cases, may lead to limitless liability.Minority judgment

Disagreeing with the majority's conclusions, the minority per Cameron J felt that it cannot be said that "but-for" the negligence of the prison authorities, the plaintiff would not have contracted TB. The only conclusion to be made, according to Cameron J, was that the negligent conduct of the prison authorities increased the plaintiff's overall risk to contract TB.

In the minority's view, South African law should be developed to compensate a claimant who was negligently exposed to risk of harm and suffers harm as a result of that risk regardless of who was the cause of such exposure.

Cameron J's arguments were based on the United Kingdom case of Fairchild v Glenhaven Funeral Services Ltd and Others8 (the Fairchild case). The claimants therein were unable to prove that "but-for" the negligence of any specified employer, the injury would probably not have occurred.

The Court in the Fairchild case sought recourse in one of its previous decisions ofMcGhee v National Coal Board9, wherein it was held that a claim must succeed where the employers breached a duty that "materially increased the risk" of an injury, and the claimant suffered the injury even if the claimant could not prove that the main cause of his injury was the omission of his employers.

The Fairchild case was later refined in Barker v Corus UK Ltd10, which concerned death as a result of mesothelioma (a rare cancer), and wherein the House of Lords held that partial liability will result where a relative increase in risk is proved.11 More importantly, the exception to the rules of causation was confined to 'single agent' cases as opposed to those where multiple differing causes may have given rise to the condition.

According to Cameron J it remains clear that in some claims the traditional common law "but-for" test is an over-blunt and inadequate tool for securing constitutional tailored justice; especially where negligence is proved but cannot be pinpointed to the source of the injury.

In the case of the plaintiff, the relevant questions according to the minority judgment should have been:

- Would reasonable measures have reduced the overall risk of infection? and
- Should the extent of risk to which the defendant's negligent conduct exposed the claimant, lead to recovery for the injury that was suffered?

In conclusion, Cameron J found that the SCA was obliged to consider developing the common law after concluding that the High Court's judgment in the plaintiff's favour was unsustainable on the basis of the traditional "but-for" test for causation.

Conclusion

Having regard to Cameron's views, the question of developing the common law, more specifically with regard to causation, is an interesting one that will no doubt be further explored in pending cases.

1Lee v Minister of Correctional Services 2011 (6) SA 564 (WCC)
2Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA)
3Lee v Minister of Correctional Services (CCT 20/12) [2012] ZACC 30
4Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
5Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A) (Kakamas) at 220B-C.
6Id 5 at para 44
7The use of flexibility in the "but-for" test was reaffirmed in the cases of Van Duivenboden and in Minister of Finance v Gore NO 2007 (1) SA 111 (SCA).
8Fairchild v Glenhaven Funeral Services Ltd and Others; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd and Others [2002] UKHL 22, [2003] ` AC32
9[1973] 1 WLR 1, [1972] 3 All ER 1008 (HL)
10Barker v Corus UK Ltd; Murray v British Shipbuilders (Hydrodynamics) Ltd and Others; Patterson v Smiths Dock Ltd and Another [2006] UKHL 20, [2006] 2 WLR 1027
11Immediate effect of apportionment under Baker id was reversed in England by section 3 of the Compensation Act 2006, but only in relation to mesothelioma cases.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town.

Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions, Project Finance and Tax.

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 03/13/2013 -- South African law firm Webber Wentzel considers the implications of section 45 of the Companies Act, No. 71 of 2008. This section specifically regulates the circumstances under which company funds can be used to issue loans to directors.

In William Shakespeare's Henry V, King Henry rallies his troops to charge once more into the fight at the Battle of Harfleur with the battle cry "Once more unto the breach, dear friends, once more; Or close the wall up with our English dead".

The breach that Henry is referring to was a gap in the wall of the city of Harfleur, which the English army held under siege. Henry was encouraging his troops to attack the city again, even if they have to "close the wall with English dead". This passage came to mind after spotting another gap; this time relating to a breach of the Companies Act, No. 71 of 2008 (the Act).

Section 45 of the Act is the equivalent of section 226 of the previous Companies Act, No.62 of 1973 (the previous Act), which regulated circumstances under which company funds could be used to issue loans to directors. Section 45 in turn regulates, to the extent that the Memorandum of Incorporation (MOI) of a company does not, the manner in which the board of directors may authorise the company to provide direct or indirect financial assistance to certain persons.

The persons, in respect of whom the granting of financial assistance is regulated, are listed in section 45(2). These include a director or prescribed officer of the company or of a related or interrelated company (as defined); a related or interrelated company or corporation; a member of such a resulted or interrelated company or corporation; or a person related to any such company, corporation, director, prescribed officer or member.

Section 45 provides that the board of a company may not authorise the granting of any financial assistance unless a special resolution enabling the particular provision of financial assistance has been adopted by the shareholders within the preceding two years. Such a resolution must relate to a specific recipient or a category of recipients falling within the section 45(2) category.

In terms of section 45(1), financial assistance includes instances of lending money, guaranteeing a loan or other obligation, and securing any debt or obligation. Though the section incorporates a list of exclusions, the use of the word "includes" is noteworthy; indicating that it is not an exhaustive list (Jooste, 2010). Section 45 therefore applies to a broader range of transactions than its predecessor.

A resolution by the board of a company to provide financial assistance or an agreement with respect thereto is void to the extent that it is inconsistent with section 45 or the MOI of the company.

Section 45(7) states that if a resolution or an agreement is void and if the director failed to vote against the resolution or the agreement, whether at the board meeting at which the resolution was considered or if the decision was made by way of a round robin resolution, despite knowing that the financial assistance was inconsistent with section 45 or the MOI, he or she is liable to the extent set out in section 77(3)(e)(v).

Section 77 sets out in detail the manner in which directors may be held liable for breaches of the Act. Section 77(3)(e)(v) provides that a director of a company is liable for any loss, damages or costs sustained by the company as a consequence of the director having failed to vote against the "provision of financial assistance to a director for a purpose contemplated in section 45," despite knowing that the provision of financial assistance was inconsistent with the section or the company's MOI.

In respect of section 45, the liability provision in section 77(3)(e)(v) relates to the provision of financial assistance to a director only. Section 45 prohibits the giving of financial assistance to the prescribed officers and related parties too, and not only to directors. A director is only liable in terms of section 77(3)(e)(v) for the provision of financial assistance to a director and will not be liable for the provision of financial assistance to any of the prescribed officers and related or interrelated parties.

It is accordingly submitted that this omission is a major oversight inasmuch as section 45 prohibits giving financial assistance to prescribed officers and related or interrelated parties in contravention of the section and the MOI but does not sanction the breach thereof. It seems that the misleading title of section 45, "Loans and other financial assistance to directors," may have been determinative.

On closer inspection, section 77(3)(e)(v) has been the subject of an amendment by the promulgation of the Companies Amendment Act, No. 3 of 2011.

One wonders when the Companies Second Amendment Act is due for promulgation. Until then, in the wise words of King Henry, once more unto the breach, once more, before they close up the hole with an amendment.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012.

The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town.

Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity, and property law.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax.

Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.

Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa.

The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 03/05/2013 -- In a recent case brought before the South African Labour Appeal Court, it was found that an employee was unfairly dismissed from her job when she failed to report for duty to attend sangoma training, having had her request for a month's unpaid leave rejected by her employer. The judgment was met with concern by employers, sparking fear that it would open the proverbial floodgates to abuse. However, employers have been encouraged to develop human resource procedures that confront these challenges and are adapted to a culturally rich and diverse society.

In a recent judgement of the Labour Appeal Court, the judge said:

"[O]ur society is characterised by a diversity of cultures, traditions and beliefs… It must be recognised that some of these cultural beliefs and practices are strongly held by those who subscribe in them... Those who do not subscribe to the others' cultural beliefs should not trivialise them."

The judgement dismissed an appeal by an employer against an earlier decision of the Labour Court, which dismissed the company's application to review and set aside an arbitration award that found the manner in which it dismissed a former employee, to be unfair.

The tale of the employee, a chef and aspirant sangoma, began when she requested permission to work mornings only so that she would be able to attend a course in traditional healing. The employer (through its executive chef) acceded, and the shift schedule was changed to accommodate her.

The employee later again approached her employer and requested a month's unpaid leave to complete the course. The employer could not accede to this request, instead offering the employee one week's unpaid leave.

On June 1 2007 the employee left two documents on the desk of the employer's HR manager. The first document purported to certify that the employee had visited a traditional healer and that she had been diagnosed with "perminisions (sic) of ancestors" (subsequently interpreted by the Labour Court as meaning "premonitions of ancestors"). The other document was headed "Preparation of Graduation Ceremony" and set out that the employee required time off to complete her initiation school final ceremony to become a traditional healer. Both documents stated that she would only be able to resume work on July 8 2007.

The employee failed to report for duty and the employer embarked on disciplinary action against her. She was charged, inter alia, with non-compliance with established procedure and/ or managerial instructions, being absent for three days or more and gross insubordination.

The chairperson of the disciplinary enquiry noted that the employee's explanation that she was to undergo sangoma training and graduation and that she was ill "since spirits of forefathers were bothering her". The chairperson did not accept these explanations and the employee was dismissed.

The CCMA
The employee then challenged the fairness of her dismissal in the CCMA. The Commissioner, in awarding her reinstatement, held that it was abundantly clear that the employer and employee had conflicting interests and that there was a lack of empathy and understanding of cultural diversity in the workplace.

The Review Proceedings
The employer sought to have the award reviewed and set aside in the Labour Court. The Labour Court dismissed the review application, concluding that the explanation tendered by the employee (to attend a sangoma course to appease her ancestors) and accepted by the Commissioner, was a reasonable one. As a result, it refused to interfere with the arbitration award.

Dissatisfied with the outcome, the employer approached the Labour Appeal Court arguing, inter alia, that:

- the Labour Court should have found that the Commissioner finding that the employee had a valid excuse to be absent without leave to attend a sangoma course was reviewable;
- erred by failing to find that the South African employment legislation (and in particular s23 of the Basic Conditions of Employment Act (75 of 1997) (the BCEA) opted for standards more akin to Western standards than to African culture; and
- erred by failing to find that the effect of the Commissioner's approach would be to open the floodgates to malpractices whereby employees may unilaterally diagnose themselves and expect employers to accept fraudulent sick notes from traditional healers.

Writing for a unanimous court, the judge stated that:

"[i]t is not my understanding of the facts of this case that the employee's case was that she was sick or ill in the conventional sense. Her case was that, based on her cultural and or traditional belief she was in a 'condition' and upon consultation with those that she believed to be in a position to assist her, being a traditional healer, informed her that she must undergo some sessions that would qualify her to be a sangoma as she had a calling from her ancestors."

The judge held that the employee's "illness" had been accepted by the employer when the issue started and that it required no medical evidence to prove it.

s23 of the BCEA was found not to apply in the circumstances as the employee did not seek to be paid for her time off from work and that the argument that the legislature opted for standards in line with Western standards as opposed to African culture was also found to be misplaced.

The judge could similarly find no merit in the suggestion that the Commissioner's decision would open the floodgates to malpractice. The judge noted that the employer's executive chef had demonstrated a "good example of accommodation… when [he] correctly involved other staff members and they all found a common ground to accommodate the employee." In the judge's view, what is necessary is a "paradigm shift" showing an appreciation of "'Ubuntu' which is a part of our heritage as a society."

The judge concluded that "[i]t must be left to employers and their employees to develop systems in their workplaces when confronted with these challenges."

Implications and conclusion
The judgement has been met with concern by employers who take the view that, notwithstanding the comments of the judge, it is likely to open the proverbial floodgates and that employees will now seek to rely on any and all forms ailments, illnesses and "premonitions" to obtain leave from tendering services. Leaving aside the merits of this argument, employers are still required (and have been required) to accommodate the religious, cultural and other beliefs or practices of employees (regardless of the employer's views).

Such an accommodation is not novel in our industrial relations landscape. Initially the employer appears to have been willing to accommodate the employee and her beliefs and practices. Its apparent fault, in response to the request for unpaid leave, was to prefer an approach that rigidly complied with a disciplinary code instead of furthering its attempts to accommodate the employee.

Employers are encouraged to develop systems in the workplace that confront these challenges. In a society as culturally rich and diverse as ours, systems cannot be expected to cater for every eventuality. In instances where specific circumstances are not catered for, instead of adopting a "tick-box" approach, employers should exercise suitable discretion that demonstrates a willingness to consider and if appropriate and possible, accommodate employees whose individual circumstances leave them unable to tender services.

A reliance on prescribed misconduct is unlikely to find favour with a court in circumstances where an employer can (and has demonstrated willingness to) consider reasonable alternatives that will accommodate an employee. Employers should rather investigate the bona fides of the employee having regard to documentary or other evidence presented with a view to understanding the rationale that predicates it.

A better understanding of an employee's needs and empathy for the situation is likely to go a long away in assisting an employer in determining the procedure it should adopt, and the extent for which accommodation is necessary. The floodgates will only be opened if employers allow them to be.

About Webber Wentzel
Webber Wentzel is a leading law firm in Africa, being consistently ranked at the top by a diversity of international ratings agencies in 2012. The firm has a staff complement of approximately 800 people (including almost 150 partners and more than 450 professionals in a variety of legal disciplines) in offices in Johannesburg and Cape Town. Its client base includes many of South Africa's Top 100 companies in banking & finance, insurance & legal liability, media, telecommunications & intellectual property, mining, oil & gas, private equity and property law.Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Mergers & Acquisitions , Project Finance and Tax .
Webber Wentzel's strategy is to help clients wherever they do business. Work in Africa represents a growing area of practice and, together with a network of best friend law firms; the firm has assisted clients in cross-border deals in most of the countries in sub-Saharan Africa.
Webber Wentzel has entered into a collaborative alliance with global law firm, Linklaters, which is recognised for its leading African practice having worked on numerous landmark transactions in almost every country on the continent over the past 30 years. The alliance will see the two firms working closely together for the benefit of clients in Africa. The firm is also associated with ALN, a group of leading law firms in Africa.

For more information visit http://www.webberwentzel.com/. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Africa -- (SBWIRE) -- 02/04/2013 -- The Protection of Personal Information Bill 2009 (POPI or the Bill*) aims to bring South Africa in line with international data protection laws. The impact of this legislation will be far-reaching and will significantly affect the way companies collect, store and disseminate personal information. Members of Webber Wentzel's Information Law and Data Protection Group provide insight into information law and the potential impact of the Bill on business in a series of Snapshots. Previous Snapshots have noted that the Bill sets out eight conditions that responsible parties will need to consider for the processing of personal information to be lawful. In this Snapshot, Information Quality and Openness, being the fifth and sixth of the eight conditions, are considered.

Condition 5: Information Quality

A Responsible Party must ensure that any personal information in its possession is complete, accurate, not misleading, and updated when necessary. In so doing, the responsible party must have regard to the purpose for which the personal information is collected or further processed.

The purpose for which the information was collected will inform an assessment of compliance with this condition. It will, for example, be essential to update a person's contact details when the purpose of holding this information is to periodically invoice a client. When the contact details are held for record purposes only, the need to update information will be less pressing. An assessment of whether there has been compliance with Condition 5 will therefore likely take this into account.

Condition 6: Openness

Documents

A responsible party must compile a manual that contains stipulated information as required by the Promotion of Access to Information Act, including detail on the information that it holds.
Notification to data subject when collecting personal information
Before personal information is collected directly from the data subject, or before/ as soon as is practical after collection when information is collected from another source, the responsible party must take steps to ensure that the data subject is aware of:

- The information being collected and the source of such information;
- The name and address of the responsible party;
- The purpose for which the information is being collected;
- Whether the supply of the information by that data subject is voluntary or mandatory;
- Consequences of failure to provide the information;
- Any law authorising or requiring the collection of the information;
- Whether the responsible party intends to transfer the information to a third party (country or organisation) and the level of protection afforded to the information by that third party;
- Any additional information necessary to enable the processing to be reasonable; including the recipients of the information, the nature or category of the information, the right of access to and the right to rectify the information, the right to object to the processing of the information, the right to lodge a complaint to and the contact details of the Information Regulator.

Where there has been compliance in the first instance, the subsequent collection of the same information or information of the same kind will also constitute compliance if the purpose remains the same.

It is not necessary for a responsible party to comply with the requirements when:

- The data subject has consented to the non-compliance;
- Non-compliance would not prejudice the legitimate interests of the data subject;
- Non-compliance is necessary to avoid prejudice to the maintenance of the law, to comply with an obligation imposed by law or to enforce legislation concerning the collection of revenue by SARS, for the conduct of proceedings in any court or tribunal, or in the interests of national security;
- Compliance would prejudice a lawful purpose of the collection;
- Compliance is not practical in the circumstances; or
- The information will be used in a form in which the data subject will be de-identified, or used for historical, statistical or research purposes.

Click here to read clauses 16, 17 and 18 of the Bill.

- The Bill has been adopted by the Portfolio Committee on Justice and Constitutional Development and by the National Assembly (NA). This Snapshot has been drafted using the latest version of the Bill as passed by the NA.

The Bill will now be referred to the National Council of Provinces for consideration and thereafter signed into law. It is anticipated that this process could take anything from one to six months. The Bill provides for a one year grace period before POPI's provisions become effective.

About Webber Wentzel
Webber Wentzel is one of the leading corporate law firms in South Africa. The firm far outstrips the local competition being consistently ranked at the top by a diversity of international ratings agencies and has achieved a number of legal accolades in 2012.

From offices in Johannesburg and Cape Town, the firm provides high-quality legal services to meet the multiple and varying needs of a powerful client base that includes many of South Africa's Top 100 companies in mining, insurance, technology, media and telecommunications and intellectual property and property.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Banking and Finance, Mergers & Acquisitions , Tax and Project Finance.

Webber Wentzel has a staff complement of 750 people. Its 21 practice groups cover virtually the entire spectrum of legal endeavour.

Webber Wentzel's strategy is to help clients wherever they do business. Work on the African continent represents a growing area of practice and the firm is currently advising clients in over 47 African countries.

For more information visit webberwentzel.com. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 01/25/2013 -- Leading South African law firm, Webber Wentzel, highlights a recent, decision in which an appellant succeed in maintaining its privilege over certain expert and loss adjuster's reports. The judgment highlights the importance of ensuring that privilege is maintained over documents at all stages. Webber Wentzel offers comprehensive legal advice in more than 21 practice areas. As a leader in corporate law, the firm has served many of South Africa's Top 100 companies.

In the recent, and as yet unreported, decision of UAP Agrochemicals KZN (Pty) Ltd & another v Nefic Estates (Pty) Ltd Case no: AR515/11, by the full bench of the KwaZulu-Natal High Court in Pietermaritzburg, the appellant succeeded in maintaining its privilege over certain expert and loss adjuster's reports.

Background
Nefic Estates (Pty) Ltd, the plaintiff in the matter, had brought an application for disclosure of documents over which the defendants had claimed privilege.

The application was brought on two grounds, namely that:
- The reports had been prepared prior to litigation being contemplated; and
- There had been an agreement between the parties that four expert reports would be given by the defendants to the plaintiff.

The plaintiff succeeded with its application on the first ground and the court of first instance ordered the defendants to disclose all "privileged" documents to the plaintiff, including the documents brought into existence after the appointment of the defendants' attorneys of record. The defendants took the matter on appeal.

The Appeal
In the judgment, handed down by Mokgohloa J, the Appeal Court considered three issues, namely:

- The appealability of the order of the court of first instance;
- Whether the reports were in fact privileged; and
- Whether there had been an agreement between the parties to provide certain reports as alleged.

Appealability
While the question of appealability makes for interesting reading, the conclusion of Mokgohloa J was based on the judgment in Macsand CC v Macassar Land Claims Committee and others [2005] ALL SA 469 (SCA).

This judgment stated that in determining whether a decision is appealable, both the form of the order and, predominately, its effect must be considered. Mokgohloa J agreed that once the documents over which the defendants claimed privilege had been handed over to the plaintiff, the contents would become known to the plaintiff and there is nothing that can be done to extract that knowledge from the mind of the plaintiff. Consequently, the judgment is appealable.

Privilege

On the more important aspect of privilege, Mokgohloa J firstly relied on the judgment in United Tobacco Companies (South) Ltd v International Tobacco Co (SA) Ltd 1953 (1) SA 66 (T) at 67E, where the Court required a likelihood of litigation, and not a mere possibility. Mokgohloa J also relied on General Accident, Fire and Life Assurance Corporation Ltd v Goldberg 1912 TPD 494, wherein the Court stated that privilege could attach to statements from agents only if litigation was "likely or probable".

The plaintiff did not dispute the defendants' submission that they appointed their attorney of record on 28 May 2004, at a time when they reasonably contemplated the likelihood of litigation. Mokgohloa J was therefore satisfied that the order of the court of first instance to compel the defendants to discover such documents was wrong. He found that all of the documents created after the appointment of the attorneys of record for the defendants were privileged as they had been created as part of the exercise of gathering information to enable the attorney to provide legal advice.

The status of the documents created between the date of loss and the appointment of the attorneys, a period of approximately six months, also needed to be considered.

In arriving at its decision, the Court considered and accepted the facts set out by the defendants regarding the nature and extent of the damage and the reporting of those facts to their insurer.

The plaintiff argued that an insurer cannot claim privilege in respect of documents obtained prior to it agreeing that the claims might be subject to indemnification under the policies. Mokgohloa J did not deal with this argument in any detail, but stated that he was satisfied that, objectively, there were clear indications of the likelihood of litigation from the date of loss, stating, "The insurance company assessed the risk of litigation and concluded that it was likely."

Mokgohloa J therefore found that the reports were commissioned in contemplation of litigation.

The Agreement
The finding of privilege could have been defeated by the plaintiff's allegation of an agreement between the parties that the defendants would provide copies of certain reports to it.

The defendants denied the existence of an agreement. In support of its allegation, the plaintiff provided a number of affidavits by various people, but the versions were inconsistent. In addition, the correspondence exchanged at the time did not support the plaintiff's version.

Mokgohloa J stated that a party who alleges that there was a meeting and that certain disclosures were made at that meeting, must state the date and place of the meeting and what was agreed in that meeting. The plaintiff was unable to do this. Mokgohloa J therefore concluded that the defendants' version, which was supported by the correspondence, was more probable in the circumstances and that the plaintiff had failed to show that there was an agreement between the parties.

Conclusion
The plaintiff's application for disclosure of the privilege documents was dismissed with costs.

The judgment highlights the importance of ensuring that privilege is maintained over documents at all stages. In this particular case, the defendants had reported the claim to their insurers, who had in turn appointed a loss adjuster to investigate the circumstances of the event.

This was done prior to the insurers having made a decision on whether or not the policy would indemnify the defendants. Experts were also appointed and they prepared reports on the likely cause of the loss. All of this occurred prior to the appointment of the attorneys six months later. The late appointment of the attorneys in the matter put into question the validity of the defendants' claim of privilege over the experts' and loss adjuster's reports.

Although the Court in its conclusion found that the insurance company had considered litigation to be likely, this is merely supportive of a contemplation of litigation by the defendants themselves.

Insurers would be well advised to give serious consideration to whether or not litigation is contemplated prior to instructing loss adjusters or experts to provide reports in any matter. If litigation is indeed contemplated, and this is appropriately documented, this would go a long way to showing that such contemplation existed.

The less complicated solution remains to appoint attorneys at an earlier stage and to have them instruct the loss adjusters and experts, thereby ensuring that privilege is maintained.

About Webber Wentzel
Webber Wentzel is one of the leading corporate law firms in South Africa. The firm far outstrips the local competition being consistently ranked at the top by a diversity of international ratings agencies and has achieved a number of legal accolades in 2012.

From offices in Johannesburg and Cape Town, the firm provides high-quality legal services to meet the multiple and varying needs of a powerful client base that includes many of South Africa's Top 100 companies in mining, insurance, technology, media and telecommunications and intellectual property and property.

Webber Wentzel is a full service corporate law firm offering expertise in various legal areas including Dispute Resolution, Banking and Finance, Mergers & Acquisitions , Tax and Project Finance.

Webber Wentzel has a staff complement of 750 people and a Level Four B-BBEE rating. Its 21 practice groups cover virtually the entire spectrum of legal endeavour.

Webber Wentzel's strategy is to help clients wherever they do business. Work on the African continent represents a growing area of practice and the firm is currently advising clients in over 47 African countries.

For more information visit http://www.webberwentzel.com. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 11/03/2012 -- Webber Wentzel is one of the leading corporate law firms in South Africa. Tax experts Nina Keyser and Toinette Beckert have extensive experience in the legal field. They explain the effects of the new Tax Administration Act, No, 28 of 2011 on both taxpayers and tax advisors.

The role of tax practitioners and other intermediaries is set to change as a result of the new Tax Administration Act, No. 28 of 2011 (Tax Administration Act) coming into force on 1 October 2012 and Draft Amendment Bill 2012 (Draft Amendment Bill) published for comment on 5 July 2012.

Consulting a registered tax practitioner offers a substantial potential benefit to taxpayers in that it may allow them to qualify for remittances. In addition, a taxpayer in receipt of an opinion from a registered tax practitioner is more likely to receive a reduction in penalties imposed by the South African Revenue Services (SARS).

With such importance being placed on the opinions of tax practitioners and advisers, there is a strong need to regulate their activities and the industry as a whole.

Registering as a tax practitioner

The Tax Administration Act requires people providing tax advice or completing SARS documents on behalf of clients to ensure that they comply with its registration requirements. Its provisions are to a large extent the same as those in the Income Tax Act, No. 58 of 1972 (Income Tax Act). Section 67A of the ITA states that every natural person who provides advice in respect of the application of any tax legislation, or who completes or assists in completing any document to be submitted to SARS, must register with SARS as a tax practitioner within 30 days after first providing advice or completing any SARS document.

The Draft Amendment Bill also proposes to reduce the registration period to 21 days and provides that a registered tax practitioner must be registered with both SARS and a controlling body. Tax practitioners not currently registered with a controlling body must register with one prior to being a registered tax practitioner.

The same exemptions from registration as is currently the case under the Income Tax Act will apply. These exemptions include persons:

- removed from a related profession during the preceding five years; or
- convicted of theft, fraud, forgery or any other offence involving dishonesty and for which he or she has been sentenced to a period of imprisonment exceeding two years without the option of a fine, or to a fine exceeding the amount prescribed in the Adjustment of Fines Act, No. 101 of 1991.

Failure to register as a tax practitioner is an offence and a person may be liable on conviction to a fine or to imprisonment for a period not exceeding two years.

Controlling bodies for tax practitioners

A controlling body will include bodies established voluntarily or under law, with the power to take disciplinary action against a person who contravenes the rules or code of conduct of that profession. These bodies may, in terms of the Draft Amendment Bill, include the Independent Regulatory Board for Auditors, the South African Legal Practice Council (if and when this body is formed) or any other similar statutory body as published in the Government Gazette by the Minister of Finance.

The Draft Amendment Bill proposes that the controlling bodies must maintain minimum qualification and experience requirements; continuing professional education requirements; codes of ethics and conduct; and disciplinary codes and procedures. They will also be required to have at least 1000 members or the reasonable prospect of 1000 members when applying for recognition with SARS.

A senior SARS official may lodge a complaint with a controlling body regarding a registered tax practitioner or a person who carries on a profession governed by the controlling body. These complaints could:

- relate to anything that, in the opinion of the senior SARS official, was intended to assist, or by reason of negligence caused, the taxpayer to avoid or unduly postpone the performance of an obligation imposed under tax legislation; or
- include a contravention of a rule or code of conduct that may result in a controlling body taking disciplinary action against a registered tax practitioner.

The Draft Amendment Bill proposes further grounds for a complaint, including:

- not exercising due diligence in preparing or submitting documentation to SARS;
- unreasonably delaying the finalisation of any matter before SARS;
- acting with gross incompetence;
- being grossly negligent with regard to any work performed as a registered tax practitioner;
- knowingly providing false or misleading information on matters relating to the application of any tax Act; or
- attempting to influence any SARS employee.

Tax practitioners will need to ensure they comply with all registration requirements and carefully consider the extent of the duty on them, particularly when issuing opinions.

About Webber Wentzel
Webber Wentzel is one of the leading corporate law firms in Africa. The firm far outstrips the local competition being consistently ranked at the top by a diversity of international ratings agencies and have achieved a number of legal accolades in 2012.

From offices in Johannesburg and Cape Town, the firm provides high-quality legal services to meet the multiple and varying needs of a powerful client base that includes many of South Africa's Top 100 companies in mining, insurance, technology, media and telecommunications and intellectual property and property.

As you would expect from a premier firm such as Webber Wentzel, we are a full service corporate law firm offering expertise in legal areas including Dispute Resolution, Banking and Finance, Mergers & Acquisitions, Tax and Project Finance.

Webber Wentzel has a staff complement of 750 people and a Level Four B-BBEE rating. Its 21 practice groups cover virtually the entire spectrum of legal endeavour.

Work on the African continent represents a growing area of Webber Wentzel's business and the firm is the South African member of ALN, an established group of Africa's 12 foremost law firms.

For more information visit http://www.webberwentzel.com. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 11/02/2012 -- Webber Wentzel is one of the leading corporate law firms in South Africa. Tax experts Nina Keyser and Toinette Beckert understand the complexities of tax legislation and provide insight into the effects of the South African Tax Administration Act, No. 28 of 2011 on third parties.

The Tax Administration Act, No. 28 of 2011 (the Tax Administration Act), which came into force on

1 October 2012 introduced new provisions exposing third parties, such as shareholders and directors, to personal liability for taxpayers' debts.

This is not a new concept in South Africa as the Income Tax Act, No. 58 of 1962 (Income Tax Act) also contains provisions providing for personal liability. In terms of the Income Tax Act, under certain circumstances, the representative taxpayer and third parties who hold money on behalf of a taxpayer may be held personally liable for debts.

In the context of employees' tax and VAT, there are currently also provisions placing personal liability on the shareholders or directors of a company if they control or are regularly involved in the management of the company's overall financial affairs.

However, new categories of third parties that may be held liable for the tax debts of a taxpayer have been introduced.

Categories of potentially liable persons in the Tax Administration Act

The Tax Administration Act has identified categories of potentially liable persons as:

- the primary taxpayer;
- the representative taxpayer - any person who is responsible for the tax liability of another person as an agent (other than a withholding agent), and includes a person who is a representative taxpayer under tax legislation;
- withholding agents - any person who must withhold an amount of tax and pay it to SARS under a tax act; and
- responsible third parties - any person who holds money on behalf of another person. There are various sub-categories of responsible third parties, including appointed third parties, financial management, shareholders and connected person transferees.

Liability of the representative taxpayer

A representative taxpayer may be held personally liable for tax payable in his or her representative capacity if he or she, while the tax debt is outstanding, disposes of:

- amounts in respect of which the tax is chargeable; or
- moneys that are in his or her possession or come into his or her possession after the tax is payable.

And, the tax could legally have been paid from these amounts.

Liability of the withholding agent

A withholding agent may be held personally liable for the amount of tax if he or she:

- withheld it, but did not pay it to SARS; or
- did not withhold an amount of tax when it should in fact have been withheld.

This is of particular importance for the withholding of tax in respect of dividends and royalties paid to non-residents and also in respect of withholding tax on interest from 1 January 2013.

The exemptions from and reduction in rates of these withholding taxes will usually be determined by the declarations and undertakings provided by the recipient of the dividend, interest or royalties. If these declarations are incorrect or fraudulent, and the paying company fails to withhold an amount that should have been withheld, the paying company could be held liable for it.

Liability of an appointed third party

A senior SARS official may issue a notice requiring an appointed third party to pay a taxpayer's tax debts.

Examples of where this could happen include a taxpayer's bank, employer or even an attorney holding money in a trust account. If the appointed third party parts with the money contrary to the SARS notice, that party could be held liable for the tax debt.

Liability of financial management

If a person who controls or is regularly involved in the management of the overall financial affairs of the taxpayer, negligently or fraudulently causes the tax debt not to be paid, he or she could be held personally liable for it.

This provision will impact all levels of financial personnel, and not only the directors. It could possibly even extend to the provision of advisory services to the extent that it can be said that the advisor is regularly involved in the management of the overall financial affairs of the taxpayer. The requirement of negligence or fraud is a new one that is not in existence under the current legislation.

Liability of shareholders

The shareholders of an unlisted company that is wound up (other than by an involuntary liquidation) may be held personally liable for its outstanding tax debts.

This is true for shareholders that held shares up to one year prior to the winding up of the company and who received assets (such as dividends or share buybacks) from the company during that year. The liability of the shareholders is limited to the value of the assets they received. He or she may be held jointly and severally liable for the outstanding tax if the tax debt existed at the time that he or she received a distribution.

The shareholders' liability remains secondary to that of the company. This means that SARS should attempt to recover the tax debts from the company before taking recourse against its shareholders.

Liability of connected person transferees

If an asset is transferred between a taxpayer and a connected person without consideration, or for consideration below the fair market value, the connected person may be held liable for the tax debt of the taxpayer.

This is if he or she received assets during the course of one year preceding any notice from SARS imposing the liability. The liability will be limited to the lesser of the tax debt that existed at the time of the receipt and the fair market value of the asset at the time of the transfer, less any consideration paid.

Conclusion

It is not certain how SARS will procedurally impose these liabilities and whether it will be necessary to undertake an assessment first, or whether simply obtaining judgment against the third party will be sufficient.

There remains a degree of uncertainty regarding South African Revenue Services' enforcement powers against third parties and the rights and options that third parties will have in defending these claims of liability.

About Webber Wentzel
Webber Wentzel is one of the leading corporate law firms in Africa. The firm far outstrips the local competition being consistently ranked at the top by a diversity of international ratings agencies and have achieved a number of legal accolades in 2012.

From offices in Johannesburg and Cape Town, the firm provides high-quality legal services to meet the multiple and varying needs of a powerful client base that includes many of South Africa's Top 100 companies in mining, insurance, technology, media and telecommunications and intellectual property and property.

As you would expect from a premier firm such as Webber Wentzel, we are a full service corporate law firm offering expertise in legal areas including Dispute Resolution, Banking and Finance, Mergers & Acquisitions, Tax and Project Finance.

Webber Wentzel has a staff complement of 750 people and a Level Four B-BBEE rating. Its 21 practice groups cover virtually the entire spectrum of legal endeavour.

Work on the African continent represents a growing area of Webber Wentzel's business and the firm is the South African member of ALN, an established group of Africa's 12 foremost law firms.

For more information visit http://www.webberwentzel.com. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm

Johannesburg, South Aftrica -- (SBWIRE) -- 11/01/2012 -- Webber Wentzel is a leading South African corporate law firm. Its knowledgeable and well respected property law specialists have noted an increase in real estate investment in Africa. Africa Group Head, Roddy McKean provides further insight.

Investment in African real estate is on the rise

Despite not attracting much of the investment spotlight over the last ten years, African real estate is becoming increasingly popular as an investment asset class as skylines grow in major cities.

Webber Wentzel's Africa Group Head, Roddy McKean, said: "We are now seeing a growing recogni¬tion of the opportunities in African real estate from a broad range of investors - from private equity funds to property developers and financiers.

"Over the last ten years, much of the publicity about investment in Africa has been focused on the opportunities in the natural resources, infrastructure, telecoms and financial services sectors.

"But more recently we are seeing an increasing number of investors focusing on the consumer story as economies on the continent develop, average disposable income increases and urbanisation accelerates.

Investors are increasingly targeting African real estate as they seek to take advantage of opportunities in a relatively uncrowded market and general misperceptions about risk.

"The reality however is that a number of savvy investors have been investing in this asset class for a long time and are now reaping the rewards of their foresight. This has been demonstrated by the recent sale by Actis of its interest in the Accra Mall following from its previous sale of the Palms Retail Mall in Nigeria.

He added that there are a growing number of opportunities in African real estate from retail and office buildings to hotels, business parks and large scale residential developments.

"It is obvious that real estate in Africa's major cities, like Accra, Dar es Salaam Lagos, Lusaka and Nairobi, is on the move. These cities are transforming their skylines with new retail malls, hotels and office buildings. The rapid urbanisation that is taking place has even led to the creation of new mini-cities such as Tatu City in Nairobi and Eko Atlantic City in Lagos.

Risks can be overcome with good legal advice

McKean noted that the perceived risks which often worry investors - such as political risk, lack of corporate governance and transparency, corruption and the like - are not necessarily particular to Africa and are generally found in all emerging markets.

"Thinking of Africa as too risky is simply an outdated notion. With a careful and focused approach, it is possible to address investor concerns and minimise risks, but doing one's homework on individual countries and projects is absolutely vital. There are however some fundamental 'must haves' when considering any investment.

"Choosing the right local partner is key to any investment in Africa. Extensive due diligence on the market and your partner is vital.

McKean said that if one is dealing with government it is also essential to fully assess country and political risk and to evaluate the impact of regime change on a project.

He noted: "Africa is a continent of 54 countries, each of which has its own mix of political, cultural, religious and language factors. There are many different legal systems in place. Each country has its own legal system and its own laws governing the ownership and the taking of security over real estate.

There are many examples of African coun¬tries that have no system of freehold owner¬ship. In some of these countries all real estate vests in the state or in the governor or the president although the rights to use and develop land can still be granted under leasehold or by way of concession or a right of occupancy.

Almost all African countries limit foreign ownership in real estate, either by limiting the duration of rights granted to foreigners or foreign entities, or by imposing other restrictions limiting ownership rights.

Because real estate investment is relatively new to many African countries and some tax systems in Africa tend to be relatively unsophisticated in global terms, certainty with regard to tax treatment can be difficult to attain.

"Nonetheless, with appropriate advance planning and a detailed understanding of the tax playing fields in the target jurisdiction, it is possible to design relatively tax-efficient deal structures for African investments," McKean concluded.

About Webber Wentzel
Webber Wentzel is one of the leading corporate law firms in Africa. The firm far outstrips the local competition being consistently ranked at the top by a diversity of international ratings agencies and have achieved a number of legal accolades in 2012.

From offices in Johannesburg and Cape Town, the firm provides high-quality legal services to meet the multiple and varying needs of a powerful client base that includes many of South Africa's Top 100 companies in mining, insurance, technology, media and telecommunications and intellectual property and property.

As you would expect from a premier firm such as Webber Wentzel, we are a full service corporate law firm offering expertise in legal areas including Dispute Resolution, Banking and Finance, Mergers & Acquisitions, Tax and Project Finance.

Webber Wentzel has a staff complement of 750 people and a Level Four B-BBEE rating. Its 21 practice groups cover virtually the entire spectrum of legal endeavour.

Work on the African continent represents a growing area of Webber Wentzel's business and the firm is the South African member of ALN, an established group of Africa's 12 foremost law firms.

For more information visit http://www.webberwentzel.com. Follow Webber Wentzel on Twitter: @WebberWentzel.

For more information on this press release visit: http://www.releasewire.com/press-releases/release-3.htm