June 2015


Editor's Note - June 2015 Editor's Note June 2015

The Top Students of 2009 – Where are they now? feature that appears in this issue is the last of our top student features for the year. It is always interesting to discover what the students are doing and, equally, where they are or have been in the world.

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For a fixed price Competition Law June 2015

The consent agreement agreed between the Competition Commission and Mediclinic Southern Africa (Pty) Ltd, Victoria Hospital (Pty) Ltd, Newcastle Private Hospital (Pty) Ltd, Mediclinic Tzaneen (Pty) Ltd, Howick Private Hospital Holdings (Pty) Ltd, Mediclinic Upington (Pty) Ltd and Mediclinic Hermanus (Pty) Ltd confirmed by the Tribunal on 18 March 2015, possibly heralds a new approach by the South African competition authorities in settling contraventions of s4(1)(b)(i) of the Competition Act (89 of 1998).

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The characterisation exercise: taking cognisance of context Competition Law June 2015

Not all arrangements between competitors, which result in either the competitors' goods or services being uniformly priced, or allocated or limited to certain territories have the design, intention or effect of stamping out competition. Should these type of arrangements nevertheless be deemed to be collusive conduct, falling within the scope of s4(1)(b) of the Competition Act (89 of 1998), simply because there has been consensus between competitors?

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Avoiding the pitfalls Competition Law June 2015

In competition law the exercise of "characterisation" of a firm's conduct could lead to the discovery of perfectly acceptable, even pro-competitive, behaviour in what is initially thought to be the most egregious form of anti-competitive conduct. In addition, "characterisation" has the potential to blur the lines between per se prohibited conduct and conduct which should be subject to evaluation in terms of its effects on competition. To avoid the pitfalls of literalism and to decide where the dividing line between per se and effects based (rule of reason) prohibitions lie, one must look for effects (potential or actual) of an agreement or concerted practice on competition, even if one does so "notionally" in the case of per se prohibited conduct.

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Unlawful levying of interest Contract Law June 2015

The SCA judgement in Vesagie NO & others v Erwee NO & another (734/2013) [2014] ZASCA 121 (19 September 2014) (Vesagie case) sounds another warning to commercial lawyers to be aware of the implications of the National Credit Act (34 of 2005) (NCA) when drafting their clients' contracts. In this case, the simple act of levying interest on the deferred payments of the purchase price for shares had the unintended consequence of rendering the sale of shares contract null and void ab initio

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Electronic communications and contracts Contract Law June 2015

The instantaneous and informal nature of e-mail makes it easy to hit the send button without considering the consequences. Litigation practitioners are used to dealing with discovering and cross-examining on electronic communications during the trial process. One only has to think of the uncomfortable position in which Bill Gates found himself while being crossexamined on his personal e-mail in the case of United States of America, Appellee v. Microsoft Corporation, Appellant, 253 F.3d 34 (D.C. Cir. 2001).

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Drafting in a digital age Contract Law June 2015

The evolution of technology in our daily lives has been rapid in most areas, maybe somewhat more gradual in terms of the way we contract – but that has changed. Wet ink contracts were replaced by typewritten contracts and then electronic transactions. Now we are contracting by means of "data messages", which seems to be an embryonic term, evolving faster than our imaginations.

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New approach to interpretation of contracts Contract Law June 2015

By now it is well known in the legal fraternity that in 2012, the Supreme Court of Appeal (SCA) in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (16 March 2012) (the Natal Joint Municipal Pension Fund Decision), reformulated the traditional approach to the interpretation of contracts and other documents.

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Importance of government authority Contract Law June 2015

Governments all around the world play a significant role in the infrastructure development in their countries. In the South African context, government has on many occasions acted as a counterparty to infrastructure projects, whether as concessor or security provider. Irrespective of which role government plays, the point considered in most infrastructure finance deals is whether it has the authority required to bind itself to the contracts to which it is a party.

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You, You . . . But not you Law of Succession June 2015

As early as 1604, King James I penned one of the first anti-smoking publications, "Smoking is a custom loathsome to the eye, hateful to the nose, harmful to the brain and dangerous to the lungs…". Appropriately indicative of his aversion to what he described as that "filthy novelty", the treatise was entitled A Counterblaste against Tobacco and initially published anonymously.

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Reinforcing its position as the hub for investment in Africa Africa - Mauritius June 2015

Mauritius has further strengthened its position as the ideal platform for investment in Africa following the publication of notices dated 6 March 2015 confirming the Double Taxation Avoidance Agreements (DTAAs) and Investment Promotion and Protection Agreements (IPPAs) with the Republic of Congo and the Arab Republic of Egypt.

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Mauritius commercial law update Africa - Mauritius June 2015

In the Mauritian case of Cascadelle Distribution et Cie Ltée v. Nestlé Products (Mauritius) Ltd 2015 SCJ 120 – 15 April 2015, it was decided that a plaintiff who is party to an agreement can establish, on a balance of probability, that the termination of an agreement by the other party was abusive and made in bad faith. Having regard to all the circumstances of the case, claims for damages for 'abus de droit' and 'faute' would not be in breach of principle of 'non-cumul de la responsabilité contractuelle et délictuelle' (that is, a claim cannot be brought both in contract and in tort).

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Big city reflection Platteland Perspective June 2015

After spending some of the past month away from home, visiting in a big city, it is interesting to reflect on how perspectives – and the subject matter of court cases – change, depending on where you live.

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The French Connection 2 – confusing? Intellectual Property June 2015

Is there likelihood of confusion? It's the question that arises most often in trade mark law. It's quite possibly also the one that causes the greatest confusion.

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Blurred lines of creativity Intellectual Property June 2015

Recently the estate of the late Marvin Gaye, which owns the copyright in the sheet music to the 70's hit "Got to Give it Up", successfully sued Pharrell Williams and Robin Thicke, the producers and performers of the 2013 hit single "Blurred Lines", for $7.4m on the basis of copyright infringement.

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