October 2015


Editor's Note - October 2015 Editor's Note October 2015

Efficient productivity, a strong currency (and no, not so strong that exports suffer), a lack of corruption, enthusiastic foreign investment, a confident business sentiment and sensible planning all mean increased job creation and low crime levels. Do we have this – no.

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#RWC Media Law October 2015

For those of us who worked in advertising law in 2010, the arrival of any major sports event is now inevitably associated with thoughts of ambush marketing. And as the Rugby World Cup 2015 arrives, there is no doubt that this rugby mad nation may find marketers trying to push the boundaries.

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The Sasol appeal – developing or dismissing excessive pricing law in South Africa? Competition Law October 2015

On 17 June 2015, the Competition Appeal Court of South Africa (CAC) overturned the Competition Tribunal's decision which found Sasol chemical Industries Limited guilty of excessive pricing.

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Pre-empting problems of pre-emption Company Law October 2015

Many companies (particularly so-called "shelf-companies") are formed by non-lawyers without much thought being given to the founding document, formally known as the articles of association. The Companies Act contains standard articles of association for public and private companies and these articles are simply adopted as a matter of expediency. Problems do arise, however, with this onesize-fits-all approach.

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A question of good faith Intellectual Property October 2015

With trade marks it's very much about getting in early, and then marking out and fiercely protecting your territory. So it may seem odd that in this hard-nosed field notions of morality and good faith play any role. But they do.

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A diamond in the rough Intellectual Property October 2015

The Copyright Amendment Draft Bill (GG No 39028, 27 July 2015) is by all accounts a grave misfortune and a study in amateur law-making. Enough has been said on this point to make it clear that the DTI has tripped at the first hurdle and that a re-evaluation is the only hope of achieving a grade that would admit it to the Introduction to Copyright Law 101 examination.

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Validating trade marks Intellectual Property October 2015

The Trademark Clearing House (TMCH) is a centralised repository service for the validation and protection of trade marks. The TMCH is operated by ICANN, which is in the process of launching some 1 900 new generic top level domains (gTLDs). The gTLDs that have been launched to date include .world, .business, .network, .software, .auction, .property and .investments, to name a few. A bank, for example, may want to register its trade mark under the gTLD .bank. There may also be several additional relevant gTLDs, such as .finance and .loan.

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The acid test Intellectual Property October 2015

In the article published in without prejudice in September (DTI dishes up a hopeless curate's egg – p 46) and on the Stellenbosch University website (http://blogs.sun.ac.za/iplaw/2015/08/24/unscramblingthe-curates-egg-full-review-of-the-copyright-amendment-bill/), the Copyright Amendment Bill published in Government Gazette (39028, 27 July, 2915), was described as a curate's egg. The view was expressed that the Bill could not be cured by piecemeal amendments, and that it was necessary to go back to the beginning, decide rationally what is actually wanted and warranted, and then re-draft it afresh. We stand by and reiterate this view.

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Rollover relief: conventional wisdom is not always wise Tax October 2015

As any taxpayer and tax adviser knows, the pinnacle of a successful (and obviously legitimate) tax plan is an outright saving of tax. But if tax cannot be saved, a good second prize is a deferral of tax. And the longer the deferral, the greater the benefit, which is why one of the mantras of tax planning is "tax deferred is tax saved". (Of course, SARS is well aware of this and is always on the lookout to prevent it, whether legislatively or by interpretation of the facts or law.)

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The independence continuum Company Law October 2015

The concept of an "independent non-executive director" is firmly entrenched as an element of good governance in corporate South Africa.

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When does a written resolution become effective? Common Law October 2015

We have in the recent past received queries from some of our clients on the interpretation of s60 of the Companies Act (71 of 2008) and, more specifically, on when a written resolution as contemplated in that section becomes effective. This is our view on the interpretation of s60.

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Deregistration and reinstatement of companies Company Law October 2015

The question of retrospective effect of corporate activities performed during the period of deregistration of a company appears to have been a very challenging issue under the Companies Act (71 of 2008). This article discusses the effects of the deregistration and reinstatement of companies, and how the Supreme Court of Appeal (SCA) interpreted the relevant provisions of the Act governing the reinstatement of the companies in the case of Newlands Surgical Clinic v Peninsula Eye (086/2014) [2015] ZASCA 25 (20 March 2015).

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Security for costs Company Law October 2015

In 2011 the Companies Act (71 of 2008) (the New Act) came into effect and in doing so created a statutory lacuna regarding the ability of a defendant to require an impecunious incola company that institutes legal proceedings to put up security for costs. In the recent judgement of Boost Sports Africa (Pty) Ltd v The South Africa Breweries (Pty) Ltd (20156/2014) [2015] ZASCA, the Supreme Court of Appeal (SCA) provided much needed clarity as to when a court can require an incola to provide security. To give context to the significance of this judgement, it is useful to consider the common law applicable to security for costs.

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Legal professional privilege The Law October 2015

Legal professional privilege is a topic that gives rise to debate, as it is not always clear what will be covered by the protection afforded and who can claim such protection. This has led to matters being brought before a number of international courts, specifically in the realm of tax advice.

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The facts speak for themselves – or do they? The Law October 2015

Proving the negligence of a medical professional can present many challenges to a plaintiff. From the outset, in most claims of professional negligence the professionals are at an advantage due to their qualifications, experience and knowledge. Lay people do not generally have the same level of understanding. When patients are under general anaesthetic, they are at a further disadvantage as they have no recollection of events that caused injury.

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