Talking Point December 2017

A succinct discussion of selected topical, legal matters

Dear Friends and Colleagues

I take great pleasure in submitting the December 2017 edition of Talking Point to you.  This edition is also available on our website at

This is the final edition for 2017.  Accordingly, I use this opportunity to wish you joy and peace over the festive season and throughout 2018.

As a break from referring mainly to the wisdom of (often long dead) men in introductions, this introduction benefits from the wisdom of a living woman.

Elizabeth Ann Warren (born in 1949) is an American legal academic and politician.  She was a professor at Harvard Law School, specialising in insolvency law, before, in 2012, becoming the first female Senator from Massachusetts.  She is a leading Democrat and one of President Trump’s most vociferous critics.

She has positioned herself as a champion of the beleaguered middle class:


People feel like the system is rigged against them.  And here’s the painful part: They’re right.  The system is rigged.”

You have to remember: what are incomes to banks are outgoes to families.”

I’m really concerned that too-big-to-fail has become too-big-for-trial.”

More quotes from Elizabeth Warren

In this issue:

“I accept” on the internet

How often on the internet does one read the terms and conditions before placing a tick in the box next to “I accept”?  We discuss a resent case dealing with the legal consequences of such a tick.

So long and thanks for all the business

Litigation about restraints of trade is part and parcel of the financial industry.  If employees, without restraints of trade, walk away with the employer’s business, can the latter ‘sneak’ a restraint of trade in by the back door?  We discuss a recent case dealing with this averred unlawful competition.

Switched at birth

This article concerns the well-publicised case in Gauteng in 2015, not the TV series.  And, in real life, the Court stated: “The negligence of the staff at the hospital has caused unimaginable pain and suffering to the parents involved.”

Courts against legal uncertainty?

What happens if a lessee does not timeously exercise an option to renew a lease agreement?  One would think that the lease agreement would then simply come to an end once the lease period ends.  Think again.  We discuss a recent case that introduces uncertainty.

A different take on franchising

Section 24C of the Income Tax Act provides an allowance for a taxpayer who receives payment upfront under a contract, and under which contract the taxpayer will in a future tax year incur expenditure.  We discuss a recent case in which a taxpayer (surprisingly) successfully claimed the allowance in respect of a franchise agreement.

The baker must bake

The famous legal case in this issue is one of the most condemned cases in USA history, but it is illustrative of how different to today the mind-set regarding workers’ rights (and life, liberty, and property) was more than a century ago.  And Justice Oliver Wendell Holmes’ judgment was perhaps the most influential dissenting (minority) judgment in USA history.

As always, I would greatly appreciate your feedback on Talking Point. Please email me at


Charl Theron