June 2016


Editor's Note - June 2016 Editor's Note June 2016

The last of the Top Student features for 2016 appears in this issue of without prejudice. Many of them have in common with the Class of 2006 the desire to set off on the road less travelled by LLB graduates. What they do not have in common is jobs abroad – perhaps a sign of the global economy.

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Hijacked company Platteland Perspective June 2016

Obviously the people living in the platteland are a little out of touch with the real world, so it came as something of a shock to Bra Jakkals and me, living in the middle of nowhere, south-east Free State, when we read a judgement recently about a case of alleged company hijacking.

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News reports and fair dealing Intellectual Property June 2016

The recent decision involving Moneyweb and Media24 (Moneyweb (Pty) Limited v Media 24 Limited & Another [2016] ZAGPJHC 81) is an important one for copyright lawyers in South Africa. It is the first time that two provisions relating to news reporting of the Copyright Act, 1978 have been judicially considered, namely, s12(1)(c)(i) and s12(8)(a). In fact, it is the first time that the application of the fair-dealing provision, s12(1), has received any judicial consideration, whether in the context of news reporting or otherwise.

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The “Please Call Me” case: what can we learn from it? Intellectual Property June 2016

Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC 13 (26 April 2016) has garnered enormous media attention in recent months. This case, referred to as the "Please Call Me" case, provided the public with a rare opportunity to grapple with intellectual property, the laws which govern it and the implications for persons wishing to preserve ideas in the future. The media fixated upon the "David v Goliath" aspect, where a man who had an idea for a new product went head-to-head for nearly a decade with South Africa's telecommunication giant and ended up in the highest court in the land, the Constitutional Court. But what can be taken from this case from an intellectual property perspective?

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Copyright: the unsung hero Intellectual Property June 2016

If copyright could be compared to a continent, it would be Africa: exciting, diverse, multi-faceted, often misunderstood and far too expansive to cover in a few hundred words.

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Revisiting three-dimensional objects Intellectual Property June 2016

Part 1

The protection of shapes is inevitably a controversial issue in intellectual property law. In the law relating to unlawful competition, one may find protection for the shape of a braai or, in the famous case of Schultz v Butt 1986 3 SA 667 (A) (the Schultz case), protection for the shape of a boat. One could on the other hand find the denial of protection to the shape of boats in Van der Merwe and Another v Els and Another 2008 BIP 404 (C) and Heyneman v Waterfront Marine CC [2005] 2 All SA 382 (C), two (not so famous) cases, or another ruling in Premier Hangers CC v Polyoak (Pty) Ltd 1997 1 All SA 134 (A) (the Premier Hangers case) virtually neutralising the Schultz case.

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Press freedom and access to information: Endangered species? Constitutional Law June 2016

"Three may keep a secret if two of them are dead." Benjamin Franklin (Poor Richard's Almanack 1735)

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A blow to the ASA is a blow to consumers Advertising June 2016

The question of whether or not the Advertising Standards Authority of South Africa (ASA) has jurisdiction over non-members has, in recent years, been a contentious one. My own view has always been that, while the ASA is a creature of contract, it has a contractual duty to its members to make decisions on complaints against non-members. While the non-member may choose to ignore the decision, the member may apply it.

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Tales from the US of A... June 2016 International June 2016

Fingerprint ID on smartphones may have less protection

A Los Angeles woman charged with identity-theft was convicted and sentenced and then a warrant was issued requiring her to provide the fingerprint needed to unlock her smartphone. Since she was already in custody the fingerprint was quickly obtained by the FBI. Thus, fingerprint technology may give less protection than a traditional password because the accused is not obliged to speak to law enforcement agents. However, refusal to speak would risk a contempt finding. Martha Neil May 2

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The World in May - June 2016 International June 2016

The secret to longevity, raw eggs. Emma Morano was born in northern Italy 1899, making her 116. She is the only person alive who has lived in the 19th, 20th and 21st centuries. She says the secret to her longevity is eating two raw eggs every day since she was 20. She claims that her good health can also be attributed to eating small amounts of raw mince and having only milk for dinner. It doesn't sound a particularly inviting menu.

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A matter between others is not our business Contract Law June 2016

In the recent case of Nurcha Finance Company (Pty) Ltd v Oudtshoorn Municipality [2016] JOL 35576 (SCA), the court had to consider whether a debtor's failure to pay amounts due to a third party (the cessionary) gave rise to a claim for damages.

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Vertical restraints, the next frontier Competition Law June 2016

While no-one disputes that the advent of the digital age has meant that the world has become a much smaller place, the reach of the law must increase in reaction. Consumers are ever more easily able to gain remote access to goods and services (including online digital media and content services) without physical borders or long distances impeding the conclusion of contracts or delivery of the goods and services.

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The CRS – time to face up to some realities Tax International Law June 2016

The OECD's Common Reporting Standard (CRS) is about to hit the world. While it is modelled on the US Foreign Account Taxation Compliance Act (FATCA), the CRS has a far wider impact in terms of the number of countries that will receive information about their taxpayers and, in many cases, the information exchanged goes beyond what governments require to ensure their taxpayers pay all due taxes. We also focus on the potentially invasive nature of the CRS and the threat that this presents in terms of an individual's right to privacy and security.

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The Special Voluntary Disclosure Programme Tax June 2016

The South African Revenue Service (SARS) initially introduced a tax amnesty and exchange control amnesty that ran from June 2003 until February 2004. The amnesty included a waiver on all interest and exchange control penalties prior to 28 February 2003, as well as a waiver on all taxes due prior to 1 March 2002.

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Overkill? Aviation Law June 2016

Over the past few years, unmanned flying machines, variously described as Remotely Piloted Air Systems (RPAS), Unmanned Aerial Vehicles (UAV), Unmanned Aerial Systems (UAS), or more commonly known as "drones", have mainly been used in targeted killings, surveillance or gathering intelligence. Recently, innovators have expanded their use to applications in the commercial sector that could lead to revolutionising industries like agriculture and urban development.

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