July 2015


Cry the beloved children Probono July 2015

The theme of this year's Child Protection Week, "Working Together to Protect Children" causes me to reflect on what role attorneys and advocates can play to protect children in this country.

Read More

Parental rights and responsibilities Family Law July 2015

The rights of unmarried fathers in respect of their children were, until July 2007, regulated by the Natural Fathers of Children born out of Wedlock Act of 1997. This entire Act has now been repealed by the Children's Act 38 of 2005. Previously, it was not possible for an unmarried father to acquire automatic rights in respect of his child in terms of the Natural Fathers of Children Born Out of Wedlock Act.

Read More

It’s leave, Jim, but not as we know it Employment Law July 2015

Can a male employee claim maternity leave in terms of a company's leave policy? This vexing question was recently considered by the Labour Court in M I A v State Information Technology Agency (Pty) Ltd [2015] ZALCD 20 (M I A). The court ruled that the employer's refusal to grant a male employee – in a same-sex union and a party to a surrogacy arrangement – the same maternity benefits granted to his female counterparts constituted unfair discrimination in terms of s6 of the Employment Equity Act (55 of 1998) (EEA).

Read More

Ultimate price for non-compliance with the LRA provisions Employment Law July 2015

In the recent judgement of National Union of Metalworkers of SA v Intervalve (Pty) Ltd & Others (2015) 35 ILJ 363 (CC), the Constitutional Court was asked to consider whether employers not cited in the initial referral to the CCMA or Bargaining Council and, therefore, not parties to the conciliation process in terms of section 191 of the Labour Relations Act, 1965 (LRA), may be joined in the subsequent dismissal proceedings at the Labour Court.

Read More

A powerless city Employment Law July 2015

The Constitutional Court has confirmed that municipal entities are not exempt from s197 of the Labour Relations Act (66 of 1995) (LRA) and that they, like all other employers, are bound by the consequences of the section when it finds application.

Read More

Locking out non-striking employees Employment Law July 2015

It is common cause that the right to strike is a constitutionally enshrined right. Section 23 of the Constitution unequivocally states that every employee has this right and it is given effect to in s64 of the Labour Relations Act (66 of 1995). Although the right of an employer to 'lockout' is not one which is constitutionally enshrined, it is entrenched in the Labour Relations Act.

Read More

Smells like a bunch of fresh regulations Intellectual Property July 2015

Coco Chanel apparently once said "A woman who doesn't wear perfume has no future". Well, it now appears from recent reports emanating from Europe that some perfume ingredients regarded as critical by perfumers, including the widely used natural substance oak moss, which is used in Chanel's famous No. 5 and Christian Dior's cherished Miss Dior fragrances, will have no further future in the industry.

Read More

How much is enough? Intellectual Property July 2015

A financial services company is forever asking us to consider 'How much is enough?' in the context of retirement planning. It's a question that we also need to consider in the context of copying, as a result of the judgement in the case Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd (Western Cape, Judge Gamble, 21 April 2015).

Read More

The narrowing divide Intellectual Property July 2015

It seems to this writer that trade mark infringement as a cause of action is incrementally converging with passing off through development of the former in the courts, most notably, those of Europe. In the European courts, this development has tended to favour the claimant. However, two recent South African cases illustrate just how such development can favour the defendant and possibly undermine the value of registered trade marks.

Read More

Parallel imports Intellectual Property July 2015

Over the past decade, the ability of trademark proprietors to protect and restrict the onward selling of their trademarked goods has been widely debated.

Read More

Needletime royalties Intellectual Property July 2015

You wait ages for a reported judgement concerning "needletime" royalties pursuant to s9A of the Copyright Act, and then two reported decisions come along at approximately the same time. The one was an enquiry by the Copyright Tribunal, and the other a judgement by the Supreme Court of Appeal, following an appeal from the Copyright Tribunal.

Read More

Leadership lessons from a hopeless candidate International July 2015

On 24 January 2015 I was selected by members of the Cheltenham Labour Party to be their candidate in the General Election.

Read More

Tales from the US of A... International July 2015

Judges are not politicians

The US Supreme Court in a 5/4 decision upheld a Florida law that prohibits candidates for judgeships from personally soliciting or receiving funds. The majority judgement opens by saying, "Judges are not politicians, even when they come to the bench by way of the ballot. And the state's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A state may assure its people that judges will apply the law without fear or favour – and without having personally asked anyone for money." Thirty-one states prohibit this conduct and these laws will be upheld. The four minority judges lamented the effect the judgement would have on freedom of speech in the First Amendment. Erwin Chemerinsky June 4

Read More

The World in June International July 2015

According to data published in The Washington Post, South Africans have to earn R570 000 after tax in order to be classified as a "Top 1% earner". Tax in SA is 41% so the richest 530 000 people gross, on average, around R1.2m per annum. When put into the category of the world's wealthiest people, anyone earning R102 000 per annum would fall into the top 5% of the world's wealthiest individuals. To be one of the world's richest 1% your net earnings need to be around R9.3m.

Read More

Protecting vulnerable purchasers Property Law July 2015

In terms of the common law, immovable property vests in the trustee of the insolvent estate of a seller if the estate is sequestrated before transfer of the property to the purchaser. The purchaser of the immovable property runs the risk of losing both the property and any money he or she may have paid.

Read More