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General News
Bowman Gilfillan Africa Group wins Africa Legal Advisers Award

Bowman Gilfillan Africa Group (BGAG) M&A team has won the Africa Legal Advisers category of the 2015 Cell C DealMakers Annual Awards. BGAG was awarded top position in the Africa Legal Advisers category in both deal value and number of transactions. BGAG’s total deal value in this category of $4,627m constitutes 14.84% of the market share while the 41 reported transactions equals 36.61% of market share.

Shipping and Logistics
Bareboat charter claims and judicial ship sales

In the recent mv Tarik III High Court case in Durban, the issue to be determined was whether it is lawful to deprive a shipowner of its vessel by way of a judicial sale where the claims lie against the bareboat or demise charterer of the vessel and not the owner. The starting point is Section 1(3) of the South African Admiralty Jurisdiction Regulation Act, which mirrors the provisions of the Arrest Convention in that a bareboat charterer is deemed to be the owner of the vessel under charter for the purposes of an action in rem. Put differently, a maritime creditor may pursue a claim against a bareboat charterer by arresting the vessel related to the claim. The question which arises is whether, having arrested the vessel, the creditor can then enforce the claim by obtaining an order for sale (in the absence of a settlement of the claim or the giving of security for the vessel's release).

Mergers & Acquisitions Equity Capital Markets Recent Transactions

We have recently been involved in a number of noteworthy M&A and ECM transactions across the continent, which demonstrate our depth of expertise, and ability to provide flexible, solutions-orientated and strategic advice. Predicting deal activity in the M&A and ECM space for the coming year is a tricky exercise, but there are certain to be opportunities and here are some of the important drivers. The media is reporting various possible multi-jurisdictional mega-mergers, which, if they eventuate, will have a direct impact on various countries on the continent as well as help to drive other unrelated deal activity.

Security SPVS and Tax Neutrality

Despite the bad press that special purpose vehicles (“SPVs”) received during the Enron scandal, SPVs are still an everyday feature of many financial structures. SPVs are commonly used in project finance transactions and in respect of employee incentive schemes, and normally serve a specific business purpose: they are generally created to be independent, bankruptcy remote vehicles and allow the financiers in syndicated loan transactions to share the proceeds of the security provided by the borrower.

Shipping and Logistics
Marine insurance: High Court revisits breach of warranty

The Merchant Shipping Act warranty has been a feature of hull and machinery policies written in the South African market for some time, but its meaning and effect are often uncertain in coverage disputes, owing to the absence of judicial consideration of the clause. However, in Viking Inshore Fishing (Pty) Ltd v Mutual & Federal Insurance Company Limited, the South African High Court recently had an opportunity to decide on the clause and to revisit the effect of a breach of warranty in South African law insurance policies more generally.

Bowman Gilfillan’s Success At African Legal Awards Highlights The Benefit Of Local Knowledge

Bowman Gilfillan’s success at this year’s African Legal Awards, announced in Johannesburg on Friday, 31 October 2014, is a clear sign that local knowledge is fundamentally important for law firms seeking to be at the forefront of helping African and international clients leverage the huge opportunities on the continent right now, says Jonathan Lang, Head of Africa at Bowman Gilfillan Africa Group.

COMESA Merger Assessment Guidelines

Article 55 of the Treaty Establishing the Common Market for Eastern and Southern Africa (the "Treaty"), provides for the prohibition of any agreement or concerted practice between undertakings, which has as its objective or effect, the prevention, restriction or distortion of competition within the Common Market. It further authorises the Council to: "make regulations to regulate competition within the Member States." The COMESA Competition Regulations (the "Regulations"), made under the Treaty, establish the COMESA Competition Commission (the "Commission") and empower it to regulate competition in the Common Market.

Employment Law
Compensation in Unfair Discrimination Cases

In South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC) an airline pilot, Van Vuuren, reached the retirement age of 60 on 5 August 2005. At the same time a collective agreement with the union was being negotiated in terms of which the retirement age would be increased to 63. Agreement on the increased retirement age of 63 was in fact reached on 19 August, but the collective agreement was only signed in November 2005. While the collective agreement was being finalised Van Vuuren was asked to remain at home on standby. When he resumed his duties in December 2005 he received a reduced salary that was lower than that of his younger colleagues who performed the same work.

Mining rehabilitation funds - what if they are no longer needed?

Mining companies are obliged to perform environmental rehabilitation of mining sites upon the termination or premature closure, decommissioning and final closure, of mining activities. Section 37A of the Income Tax Act, 62 of 1968 (“the ITA”) serves to align tax policy with environmental regulation and regulates mining rehabilitation funds created with the sole object of applying their property for the environmental rehabilitation of mining areas.

Getting the Deal Through - Climate Regulation 2015 - South Africa

Do any international agreements or regulations on climate matters apply in your country? South Africa ratified the United Nations Framework Convention on Climate Change (UNFCCC) in August 1997 and acceded to the Kyoto Protocol in July 2002. As South Africa is classified as a non-Annex I country, it is not required to meet targets and timetables for emission reductions in the Kyoto Protocol. The first commitment period of the Kyoto Protocol ended in 2012. Heavier burdens are placed on developed nations (or Annex I countries) than on developing countries under the principle of 'common but differentiated responsibilities'.

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