Shelley’s Best Lawyers Nomination!

Congratulations to our founder, Shelley Mackay-Davidson, for selection by her peers for inclusion in the 10th Edition of The Best Lawyers in South Africa, for her work in Corporate Law and Real Estate Law (for 4 years running!). Only the best at Brevity Law! https://www.bestlawyers.com/current-edition/south-africa

South African Competition Amendment Bill 2018

On Tuesday 23 October 2018, the National Assembly elected to pass the South African Competition Amendment Bill 2018 (the “Bill“).  The next step is its referral to the National Counsel of Provinces (“NCOP”) and a further opportunity for stakeholder submissions.

The Bill’s objective is to introduce provisions that clarify and improve the determination of prohibited practices relating to restrictive practices, abuse of dominance and price discrimination while strengthening the penalty regime.

The notable proposed amendments to obtain the Bill’s objective are:

  • the provision of greater flexibility in the granting of exemptions that promote transformation and growth, while strengthening the role of market inquiries and merger processes in the promotion of competition and economic transformation through addressing the structures and de-concentration of markets;
  • amending the process by which market inquiries are initiated and promoted, for the purpose of allowing intervention by the National Executive in relation to mergers that affect the national security interests of South Africa;
  • the provision of the powers to the Competition Commission to conduct impact studies on prior decisions, to promote its administrative efficiency; and
  • strengthening the penalty regime.

The Portfolio Committee on Economic Development’s revisions are as follows:

  • where an excessive price was charged by a dominant firm, the dominant will be required to show “reasonableness” in its justification for the excessive price;
  • more protection for small or medium sized firms owned by historically disadvantaged persons; and
  • easier prosecution of dominant firms relating to the margin squeeze offense.

Right to be Forgotten

Google will be arguing in court today over the European Union’s (“EU”) privacy laws being applied worldwide, specifically with regard to the “right to be forgotten”.

The saga began in 2015 when France’s Privacy Regulator held that Google was required to meet the EU’s data laws for its domains, globally. As a result of the ruling, internet users can now request that search engines remove certain information, including personal information, from queries. Google’s argument is that having to comply with the right to “right to be forgotten” requirement worldwide has the potential to infringe on rights held by internet users outside of the EU, for example, freedom of speech protections in the U.S. Furthermore, there is an argument that the global enforcement is an infringement of sovereignty and of non-EU countries’ right to enforce their own data laws.

While Google will argue its case before the EU court today, a ruling is only expected later this year.

FREEDOM Day

FREEDOM DAY

Freedom Day, on the 27th of April is an annual celebration of South Africa’s first non-racial democratic elections after Apartheid in 1994. The first elections brought with it a new government, representative of the people of South Africa.

But do you know how South Africa’s electoral system works?

South Africa follows a closed-list proportional representation electoral system. This means that voters do not vote for a particular individual but rather for a particular political party. Each political party decides on a list of members who it wants in the legislature. The fact these lists are closed and cannot be changed by the citizens is where “closed-list” is derived.

The proportionate number of votes each party receives is translated into that party’s proportion of the seats in Parliament. The more votes a party receives, the more seats it receives and the more party members it can seat in Parliament.

After all the seats have been filled, all the members of Parliament vote for one of their fellow members to be the President of the Republic of South Africa. It goes without saying, that the political party with the majority of seats in Parliament will have the most power to elect one of its own members as President. Therefore, South Africa citizens don’t actually vote for the President.

Busting Myths about Wine – SULPHITES

Busting Myths about Wine – SULPHITES

If you have read the back label of a bottle of wine you would have noticed that just about all of them carry the warning “contains sulphites.” With consumers becoming more and more health conscious over the last couple of years, certain ingredients in the food industry have come under serious scrutiny. In the wine industry, it is the presence of sulphites that has become an increasingly contentious issue.

What are sulphites? The term “sulphites” is a comprehensive term for sulphur dioxide (SO2) in all of its free and bound forms. It can make its way into wine in two ways, as a by-product of yeast metabolism during the fermentation process, or by being administered by the winemaker. A naturally occurring by-product of fermentation, no wine will, without zero intervention, contain zero sulphites. The handful of zero sulphite wines on the market have been altered chemically post-fermentation. In addition to the naturally occurring sulphites in wine, sulphites may be administered to wine in small amounts during different stages of the winemaking process. It is used by winemakers everywhere for its antioxidant and antibacterial properties.

Sulphites have been blamed for everything from headaches to blocked sinuses, and even that diabolical hangover. This has led to consumers avoiding it like the plague. The United States Food and Drug Administration reports that less than 1% of the US population actually suffers from a sulphite intolerance. While some people correctly avoid the controversial ingredient, the amount of people who legitimately suffer from the negative effects of sulphites are in the minority.

Busting Myths about Wine’s Sulphites, Alcohol aside, there are many other naturally occurring compounds in wine which you are likely to be more sensitive to. These include tannins and biogenic amines (mainly histamine and tyramine). Tannins are compounds that exist in the skins, stems and seeds of grapes. They are the main contributors to your wine’s texture and complexity, and since red wines are fermented on their skins and seeds, and sometimes even stems, they contain far higher concentrations.

Biogenic amines are small organic compounds that can be formed during fermentation or maturation. Red wines, again, contain far higher concentrations of biogenic amines, due to the fact that white wines hardly ever go through the process of malolactic fermentation, and consumers generally do not store white wines for as long. By using starter cultures (of yeast and bacteria) that have been selected for their ability to not produce these biogenic amines, winemakers can limit the concentration of these compounds in their wine. This is, however, a tricky one, as starter cultures are expensive. They are also not used in the production of most of your “natural wines” which the general public believe to be way better for your health. Another tool in the winemaker’s arsenal that can greatly reduce these concentrations is – surprise, surprise – good old sulphur dioxide, as high levels of biogenic amines correlate with other wine spoilage components that sulphites prevent, by acting as a preservative.

Just some food for thought as you open that bottle of vino this evening.

Do You Read Online Terms and Conditions? You Should and Here’s Why

Do You Read Online Terms and Conditions? You Should and Here’s Why

“The Internet is a Real Place with Real Consequences” (Rebecca MacKinnon, Internet policy expert)

We live in an age of online commerce. We buy and sell pretty much anything you can think of on the Internet, whilst contracting online for everything from an Uber ride to a plumber’s call out has become second nature.

So we should all know just how important it is to take note of those annoying little tick boxes saying things like “I agree to the terms and conditions available here” (with of course a hyperlink under the “here” leading you to a list of terms and conditions as long as your arm).

An interesting case recently before the High Court illustrates.

“I’ve won R5m” thought the online gambler

A regular visitor to a bookmaker’s online sports betting website was overjoyed when, after placing over 530 bets over an 8 month period, and for a stake of only R100, he successfully picked the winners in 8 different horse races.

His betting slip showed a “total possible payment” of R4,841,728 and that, thought the gambler, was exactly what he’d won (actually it would have been over R5m before tax).

Imagine his disappointment and distress when the bookmaker paid him only R1m, referring him to its online standard terms and conditions. Clause 9, pointed out the bookmaker, was headed “Maximum Payout” and imposed on every customer a daily winnings limit of R1m.

Unwilling to go down without a fight, the punter sued the bookmaker for the full amount. He hadn’t, he said, read the Ts and Cs (he is no doubt in very good company in that, which is indeed the point of this article) and anyway they were, he argued, overridden by the express reference on his betting slip to the full amount.

Let the signer beware

Unfortunately for him his luck had well and truly run out. The Court dismissed his claim with costs, holding that the “total possible payout” figure quoted on the betting slip could not entitle him to a payout in conflict with the daily limit.

Central to the Court’s decision was its finding that the gambler, when he opened his account on the site, must have ticked a box agreeing to the bookmaker’s standard terms and conditions. “When signing the document by placing an electronic tick in the box”, held the Court, “the applicant placed himself in the same position as a person who had physically signed the document. He is bound by the maxim caveat subscriptor [‘let the signer beware’], whether or not he actually took the trouble to read the terms”.

There’s a strong warning there to all of us – when the chips are down (so to speak) ticking those “I agree to the terms and conditions” boxes online binds you to them. You can’t try to evade them later on by saying “I didn’t actually read and understand them before agreeing – no one ever does”.  You’re probably thinking “life’s too short to read all that gumpf”. But then pick your times to be cavalier about it, and when there’s a lot at stake rather take the time to read and understand what you’re agreeing to.  Get legal advice in any doubt.

But wait, there’s more (a caution for online product and service providers)

This is an area of law still being explored by our courts, and particularly in these days of strong consumer protections, online service and product providers should note that the bookmaker’s case was bolstered by additional facts, two of them in particular –

  1. The punter had been exposed to specific warnings about the limits imposed on winnings both before every bet (i.e. more than 530 times) and thereafter on every betting slip,
  2. He always had easy access to the full Ts and Cs via a clickable icon.

Hence the Court’s conclusion that the bookmaker “takes all reasonable steps to ensure that the client assents to the terms and conditions before the account is opened and both prior and subsequent to the placing of any bet the punter is told about the limits on winnings.”

Perhaps the bookmaker would have won his case anyway on nothing more than the tick box and the “signer beware” principle, but on a better-safe-than-sorry basis online providers should perhaps follow the bookmaker’s lead on that one and not rely entirely on a one-off tick in a tick box.
(Read the article online on www.dotnews.co.za) – https://www.dotnews.co.za/Code/Article.aspx?qry=ZSpQuU5At1JrluIQsNfWTc2Jhw3dco00qmDitmB91yStvAc00OcQCLULRM6eEokybOuH31e0lavSMoci1yL6OSSnT4SGO62KXJqP1K8O1ZWZy4+mFJDCKWBE7F6+Bsb+7g85o293Yp+FmKCuDYixGJMboYQaX1WPi9lR8nv36vlc4y5BsWMi6pfJKm4Cd2ib

Have a great Long weekend!

Have a great long weekend everybody!

Congratulations to Juliette!

A belated congratulations to our co-founder Juliette Thirsk who got married on 3 March this year in Paternoster.

Congratulations to Juliette and Deon!

Wishing you a lifetime of happiness together!

DO YOU DO BUSINESS WITH EU CITIZENS?

In May 2016, the European Union (“EU“) adopted the General Data Protection Regulation (“GDPR“). This regulation introduces a new set of data protection rules that will increase data protection for EU residents and citizens and places more stringent guidelines on the treatment of their personal data.

It is important to note that the GDPR is not applicable only to entities located in the EU. In fact, its scope is so broad that it will apply to any entity around the world that processes personal data of individuals who are residents or citizens of the EU. Because South Africa has a thriving tourism industry with thousands of Europeans coming to its shores each year, this regulation will have a significant impact on many South African businesses. For example, any hotel that records personal data of a guest, who is an EU resident, will have to meet the requirements of the GDPR.

Although most South African businesses engaged in data processing will be aware of the Promotion of Protection of Personal Information Act 4 of 2013 (“POPI“) and its requirements, the GDPR imposes some restrictions on data processing that are not covered by POPI.

Therefore, it is important for any person or business that processes any personal information of EU residents or citizens to undergo, before the May 2018 deadline, a data processing assessment in order to determine whether or not your processing activities will comply with the GDPR.

 

Interview with ZoneRadio – Commercial Leases

Interview – LegalZone (Zone Radio)

Interview with Shelley Mackay Davidson for Brevity Law discusses commercial leases.