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2 FRIDAY JULY 10, 2020
THE MERCURY
Garlicke & Bousfield Garlicke & Bousfield
The arrival of the pandemic clause
The arrival of the pandemic clause
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ith two months of lockdown at levels 5 and 4, the arrival of June could not have come quickly enough. June saw the economy being unwrapped to level 3 with several million staff being given the green light to return to work. Kabby Esat Uncertainty still lies ahead of us and we can only marvel at countries like China, New Zealand and Singapore that have ITH two months of managed to overcome lockdown at levels 5 andthe worst of the pandemic and who are the arrival of June could largely4,able to reopen their economies so that their citizens not have come quickly enough. can return to some semblance of normality. June saw the economy being unwrapped to level 3 with several Our contracting perspectives have taken a brutal hit, million staff being given the green unprepared as we were for conducting commerce under the light to return to work. cloud of a pandemic. Certainly, the time is ripe for firms to Uncertainty still lies ahead of us andstock we canof onlyall marvel at contracts including their standard trading take their countries like China, New Zealand terms, as the of their day to day business operations. and Singapore thatbedrock have managed to overcome the worstexpect of the some new pandemic styled clauses to One should pandemic and who are largely able be included in the standard contracts of suppliers of goods to reopen their economies so that their citizens can return some and services. terms and conditions of Thetoprocurement semblance of normality. buyers of goods and services that are fortunate enough to Our contracting perspectives them wholesale without taking into build measures such as salary theirimpose own needsthem, and ability have enough power to willorequallytohave have taken a brutalbuying hit, unprepared account differing situations (e.g. a temporary lay-offs, furloughs preparedness take onneeds risk. as we were forclauses conductingconsistent pandemic with theirtoown and cuts, ability failure of the banking system versus and staff rotation into employment The largest overheads in a commerce under the cloud of or preparedness totime take on risk. a mere inability to pay due to lack contracts and policies to give firm are generally tied to the cost a pandemic. Certainly, the of funds) or do not deal with them be they factories, tied to them greater flexibility to deal with is ripe for firms to take stock of The largest overheads inofapremises firm are generally at all. pandemic type events. offices, workshops, or warehouses. all their contracts including their the costtrading of premises factories, offices, workshops,Standard trading terms, These principles apply equally will want to ensure standard terms, as thebe theyLandlords to procurement documentation purchase orders, supply and thatwant tenantsto areensure legally obliged bedrock of their day toLandlords day business will or warehouses. thattotenants including invitations to quote or distribution agreements of all continue paying rentals irrespective operations. are legally tonew continue paying irrespective tender as well as to engineering types will need to be reviewed to of any inabilityrentals to utilise premises One should obliged expect some and construction contracts where see if they adequately deal with due to lockdowns, whilst tenants willwhilst pandemic styled clauses to be premises of any inability to utilise due to lockdowns, standard form contracts differ widely pandemic type situations including be aiming to contractually formalise included in the standard contracts tenants will be aiming to contractually formalise relief for their in approach and do not necessarily the adequacy of force majeure relief for their businesses. of suppliers of goods and services. businesses. provide for optimal outcomes. definitions and processes to deal Firms cannot run without human The procurement terms and Merger and acquisition with them. capital and we are still some way conditions of buyers of goods and Firms cannot run withoutaway human capital and we are still agreements will need attention Inability to make payment of from mass automation, services that are fortunate enough some way away from mass automation, self-drive vehicles and with regard to material adverse consideration due to force majeure self-drive vehicles and firms to have enough buying power to events are often a major concern run with the aid of artificial imposebeing them, will equally have Kabby Esat change clauses usually framed firms run with the aid being of artificial intelligence.
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pandemic clauses consistent with
intelligence. Employers will look
either because contracts exclude
as conditions precedent but only
very rarely invoked. A sudden deterioration in the economy, as has occurred, with the resultant impact on the prospects of a target firm may be construed as a material adverse change permitting a buyer to exit the deal prior to closing depending on the language of the contract. In summary, firms should undertake a review of all their contracts to ensure that pandemic, force majeure and other related risks are adequately addressed in the context of the current crisis, taking into account any other relief available, such as insurance and the management systems that are in place.
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Garlicke & Bousfield
The arrival of the pandemic clause Employers will look to build measures such as salary cuts, temporary lay-offs, furloughs and staff rotation into employment contracts and policies to give them greater flexibility to deal with pandemic type events. Standard trading terms, purchase orders, supply and distribution agreements of all types will need to be reviewed to see if they adequately deal with pandemic type situations including the adequacy of force majeure definitions and processes to deal with them. Inability to make payment of consideration due to force majeure events are often a major concern either because contracts exclude them wholesale without taking into account
differing situations (e.g. a failure of the banking system versus a mere inability to pay due to lack of funds) or do not deal with them at all. These principles apply equally to procurement documentation including invitations to quote or tender as well as to engineering and construction contracts where standard form contracts differ widely in approach and do not necessarily provide for optimal outcomes. Merger and acquisition agreements will need attention with regard to material adverse change clauses usually framed as conditions precedent but only very rarely invoked. A sudden deterioration in the economy, as has occurred, with the resultant impact on the prospects of a target firm may be construed as a material adverse change permitting a buyer to exit the deal prior to closing depending on the language of the contract. In summary, firms should undertake a review of all their contracts to ensure that pandemic, force majeure and other related risks are adequately addressed in the context of the current crisis, taking into account any other relief available, such as insurance and the management systems that are in place.
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THE MERCURY
FRIDAY JULY 10, 2020
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Maynard Menon Govender Singh Inc
Maynard Menon Govender Singh Inc The Game Changer! Seeded and Strengthened Post 1994…
A large law firm with principles and practice intent firmly consistent with our new constitutional democracy. With six full time conveyancers, 12 full time Attorneys, a hand-picked selection of industry expert consultants and a national footprint of offices... and a 1 000m2 new purpose built head office completely dedicated to smart efficiency... you can see that we are dead serious about reconstituting the law firm practice terrain. The Firm is profiled as an award- winning, values- based, naturally equity and gender-compliant law firm – measured by its self-worth, not its net worth... firmly committed to a complete redefinition of the profile of the “large law firm space”.
The Game Changer! Seeded and Strengthened Post 1994… Fundamental Pillars
AOurlarge law pillars: firm with principles and practice intent 3 fundamental firmly consistent with our new constitutional democracy. • Exceptional work – because “excellence has no With six full time conveyancers, 12 full time Attorneys, competitor”; a• Solid hand-picked selection of industry expert consultants principles, which are not subservient to the relentless (andaoften ruthless)footprint pursuit of profit; and national of offices ... and a 1 000m2 new • No systemic prejudice of any form whatsoever. purpose built head office completely dedicated to smart Specialist services efficiency ... you can see that we are dead serious about reconstituting theMenon law firm practice terrain. The offices of Maynard Govender Singh Inc offer a full range of specialist services,as which The Firm islegal profiled anincludes: award-winning, valuesbased, equity • Propertynaturally Law • Maritimeand Law gender-compliant law firm –• Litigation measured by its self-worth, not its net worth ... firmly • Medical Law • Collections to a complete • Forensics redefinition of the profile of the committed • Deceased Estates • Franchise Law “large • Labourlaw Law firm space”. • Mining Law • Mediation • Licensing Law
• Competition Law • Construction Law
Fundamental Pillars Recognised excellence
Our 3 fundamental pillars: “We are described as the ‘poster child’ example of a solidly principled law firm that has been carefully developed over
decades to become a truly sophisticated“excellence practice, highly has no •two Exceptional work – because respected for its unswerving commitment to the finest work competitor”; with the highest personal and professional values,” elaborates Govender and Nerasha Singh. •directors SolidMaynard principles, which are not subservient to the relentless (and often ruthless) pursuit of profit; We look forward to introducing ourselves to you. details below… •Our Nocontact systemic prejudice of any form whatsoever.
Specialist services The offices of Maynard Menon Govender Singh Inc offer a full range of specialist legal services, which includes: • Property Law • Litigation • Collections • Deceased Estates • Labour Law • Mediation • Licensing Law
• Maritime Law • Medical Law • Forensics • Franchise Law • Mining Law • Competition Law • Construction Law
Recognised excellence “We are described as the ‘poster child’ example of a solidly principled law firm that has been carefully developed over two decades to become a truly sophisticated practice, highly respected for its unswerving commitment to the finest work with the highest personal and professional values,” elaborates directors Maynard Govender and Nerasha Singh. We look forward to introducing ourselves to you. Our contact details below… Pinetown:
Suite 101 Umdoni Centre 28 Crompton Street Pinetown Tel: (031) – 701 7475 Fax: (031) – 702 6026
PMB:
17 Drummond Street Pietermaritzburg Tel: 033 940 1174 Fax: 033 342 2954
Umhlanga
Office Number 113 Ridge 4 45 Richefond Circle Ridgeside Office Park Umhlanga Tel: 087 072 5291
ATTORNEYS • NOTARIES • CONVEYANCERS
...’raising the bar on legal practice excellence... WESTVILLE• PINETOWN • DURBAN • UMHLANGA • PMB • SANDTON
Email: info@mmglaw.co.za Web: www.mmglaw.co.za
Sandton
Office Number N206 Second Floor Thrupps Illovo Centre 204 Oxford Road Illovo Johannesburg Tel: 087 057 7854
Durban
Office 702 7th Floor Durban Club Chambers 303 Anton Lembede Street Durban Tel: (031) – 701 7475
Westville
111 Jan Hofmeyr Road Westville Tel: 087 057 7854
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Maynard Menon Govender Singh Inc The Game Changer! Seeded and Strengthened Post 1994‌
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Adams & Adams
BORN IN AFRICA, ROOTED IN INTEGRITY, DRIVEN BY INGENUITY
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Adams & Adams BORN IN AFRICA, ROOTED IN INTEGRITY, DRIVEN BY INGENUITY Adams & Adams is an internationally recognised team of legal specialists, with offices located across South Africa and branches in several African countries. Skilled in expert intellectual property (IP), corporate and commercial services, Adams & Adams is one of South Africa’s foremost corporate, property and commercial law firms. As one of the largest IP law practices in Africa, the team delivers ground-breaking work through fortifying valuable client relationships with many of the world’s largest corporations as well as local SMEs. It is no surprise that 250 Fortune500 companies throughout southern Africa rely on Adams & Adams to protect their IP rights and commercial interests. The firm is recognised for excellence in global legal practice, with the team consistently ranked by tier-1 industry bodies worldwide and acknowledged by renowned peerreview indexes. Participation in awards and rankings enables Adams & Adams to constantly improve its offering – benchmarking its performance and gaining valuable feedback from third parties. Awarded Firm of the Year (Africa) and Firm of the Year (South Africa) on multiple occasions by the MIP (Managing Intellectual Property) EMEA Awards, Adams & Adams has been lauded for its outstanding contribution to the development and promotion of IP rights on the continent. Nishi Chetty and Vishen Pillay head up a dynamic team of IP professionals at the firm’s Durban office. Chetty, a trade mark attorney, enjoys working with both established and emerging new brands to protect and realise commercial success through trade mark rights. About 80% of her IP work is generated from dynamic entrepreneurs and enterprises in KwaZulu-Natal, ultimately helping trademark owners to commercialise their rights. A patent attorney, Pillay dedicates a great portion of his practice to helping tech entrepreneurs and innovators understand that, in addition to the working capital and fixed assets within their new ventures, their intellectual capital must also be a vital component in the mix of assets used to expand their participation in industry and to maximise profits. Both these accomplished legal professionals assist businesses to include IP protection and commercialisation in their business plans, and to obtain the correct patent protection from concept to launch. Amina Suliman was recently promoted to Partner in the firm’s KZN trade mark department. Specialising in intellectual property, Suliman’s expertise in trade mark and copyright will surely contribute to this growing practice area. Adams & Adams wishes her all the best in the journey ahead and continued success with the firm. Contact Nishi Chetty, Amina Suliman or Vishen Pillay today to learn more about the firm’s IP services. E-mail dbn@adams.africa or call 031 536 3740.
NISHI CHETTY Partner,Trade Marks
VISHEN PILLAY Partner, Patents
AMINA SULIMAN Partner,Trade Marks
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Cox Yeats expands footprint to Johannesburg C
ox Yeats Attorneys – one of KZN’s largest locally-based legal practices – boldly expanded its footprint nationally on March 1, 2020 by opening a Johannesburg office in Sandton. This will now enable the firm to offer a quality professional service to businesses based in Gauteng, alongside existing Johannesburg and KwaZulu-Natal clients. “Our Johannesburg office will enhance our service offerings to national and international clients, more specifically in the fields of construction law, insurance litigation, general commercial litigation, banking litigation as well as property and sports law,” said Managing Partner, Michael Jackson. The law firm, with its main office located in uMhlanga, Durban, operates locally, nationally and internationally, offering expertise and specialisation in the commercial and personal legal fields. Expansion is not new to Cox Yeats, which led the migration of top law firms to the north of the Durban 10 years ago. Here, Cox Yeats developed one of the largest commercial legal teams of any law firm in KwaZuluNatal, competing with national firms that have large offices across the country. The firm increased threefold in size – from 14 law professionals to 52 – and the need arose for it to spread its wings. Consequently, in the latter half of 2019, Cox Yeats made a bold move to Ncondo Chambers, its new purpose-built offices within uMhlanga’s Ridgeside office precinct.
Building relationships Jackson is all too aware of how far the firm has come since it was established more than 55 years ago on the two core principles that it continues to stand on today: integrity and personalised service. “Central to our approach of doing things differently is an emphasis on building relationships by getting to know our clients and their businesses. “We don’t have a one-size-fits-all approach. Instead, we find the best solution for each situation,” said Jackson. The result is that Cox Yeats has clients that have remained with the firm since its inception. Both evolving and experienced professionals make up its highly specialised teams, which makes Cox Yeats a true life partner for its clients. The specialised teams have diverse expertise in the fields of corporate and natural resources, construction and engineering, property, maritime, insurance, labour, insolvency, recovery of assets, and information and communication technology. Each team has its own structure and unique approach. Common to all teams is quality service, quick response and client confidence. This ethos allows team members to leverage off each other’s different insights, allowing for “vibrant cross-pollination” and attention to detail.
Powered by experience Over the past few years, Cox Yeats lawyers have adapted to take full advantage of technological changes. “The principles of hard work and commitment, coupled with young and energetic attorneys who pride themselves on their individuality, innovation and competitiveness that is tempered by the experience of long-standing professionals,
will enable Cox Yeats to embrace our fast-changing and challenging world with enthusiasm and excellence,” said Jackson.
Johannesburg office Heading up the Cox Yeats Johannesburg office is Gary Pritchard, a former director of a large international law firm based in Sandton. He focuses on construction and engineering law as well as on general commercial litigation, including insurance and banking litigation, construction and sports law. “Pritchard is a well-recognised legal professional with more than 28 years experience. He will be assisted by associate, Phillip Cronje,” added Jackson. Joining Pritchard in the Johannesburg office is partner, Emili Souris and consultant, Charles van Staden. Souris specialises in property and real estate, and has practised as a property law professional for more than three decades in all areas of property law. Van Staden has more than 40 years experience in dealing with all aspects of exchange control from within the commercial and legal fields. “We are inspired and excited by this new chapter in our firm’s journey. We are committed to continuously growing in expertise and people, so that we remain in the best position to serve our clients,” said Jackson.
Expertise and recognition over the years, the firm has been consistently rated among the top law firms in the country. Nine of the firm’s senior attorneys are ranked by the legal publication Best Lawyers as leaders in their fields, which is a compelling indication of the high calibre of the firm’s legal professionals. Cox Yeats recently achieved the remarkable distinction of being the highest rated law firm in KZN in the PMR.africa survey for the Business Sector: Law Firms 2020. This is the first time the firm has achieved the Diamond Arrow award in this provincial category. In a further accolade, it has, for the third consecutive year, received the PMR.africa Diamond Arrow award for the number onerated law firm in South Africa in the category: medium-sized law firms in SA.
Covid-19 Currently, all Cox Yeats partners, professionals and support staff are fully set-up, working remotely from home. They are also working from the office when necessary, and so remain fully available to clients. “Cox Yeats will do our utmost to ensure that the service we provide to our clients is not interrupted,” concluded Jackson. Contact details are available on the firm’s website: www.coxyeats.co.za
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The Cox Yeats Johannesburg team
The Joburg team at Cox Yeats are, from left, Phillip Cronje, Charles van Staden, Emili Souris and Gary Pritchard. Photo supplied.
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Shepstone & Wylie
PRIVACY, POLICIES AND POPIA Verlie Oosthuizen
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even years after the initial promulgation of the Protection of Personal Information Act (POPIA), most of its provisions have finally been enacted. As of July 1, 2020, the South African public and private sectors had 365 days to become POPIA compliant – and the clock is ticking. POPIA is a piece of legislation that will need to be one of the major pillars in any compliance exercise in any organisation. There are very few sectors that will escape possible scrutiny in terms of POPIA. In terms of international best practice, the notion of “Privacy by Design” will be one of the cornerstones of any POPIA compliance project within an institution or entity. This means that the starting point when developing any system or policy or procedure, is ensuring that privacy protection is entrenched within the system itself. All technologies and organisational structures need to protect the privacy of the data subjects connected to that entity by default. Therefore, it is important that from now, any new systems a company may adopt or purchase are implemented with privacy protections in place. An audit of all the systems that are already in place will also need to be done to ensure that the company or entity does not fall foul of POPIA. This is a project that needs to be undertaken in a methodical manner and should not be left to the last minute. It is our belief that there is ample time for companies to implement the “Privacy by Design” principles in time for compliance to be mandatory. It is, however, important to consult with professionals regarding the requirements, because each business and institution will have different considerations to apply, depending on the type of data they deal with. And there may be many different types of data within one company itself that need to be protected and which may attract different requirements in terms of POPIA. The important thing to remember is that there should be someone within each company or institution who has a deep knowledge of the business and who is willing to be involved at every stage of the POPIA compliance project. It is not a function that can be dealt with on an ad hoc basis without proper attention to detail – and it will save time and energy for everyone if that person is identified early in the process. In larger companies or in those institutions where there is sensitive personal information, there may be a need for a team to deal with the project. If you start your POPIA compliance project now, identify the people who will assist you with the process, and commit to a methodical application of the “Privacy by Design” principles, you will not fall into the mad scramble that may cause sleepless nights this time next year.
Verlie Oosthuizen is in the Social Media Law Department of Shepstone & Wylie Attorneys