Latest Issue - December 2019


Editor's Note - December 2019 Editor's Note

For a brief moment South Africans stood together wherever they were, rugby fan or not, united by the joy of the Springboks' victory at the 2019 Rugby World Cup in Japan. For that moment all the adjectives that are used to describe and divide us fell away – but only for 'one moment in time'.

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Applying a broader perspective Competition Law

Over the past few years, public interest considerations have played an increasingly prominent role in merger assessments undertaken by competition authorities in South Africa. While we have become accustomed to conditions relating to retrenchments, we are now seeing other categories of innovative conditions which may broadly influence the merged entity's business strategy – these range from local procurement commitments, to the creation of new jobs and education funds.

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Competition Commission penalises market allocation Competition Law

A settlement agreement between the Competition Commission and Karan Beef (Pty) Ltd highlights that market allocation in contravention of s4(1)(b)(ii) of the Competition Act can be a costly mistake when parties who are potential competitors enter into supply agreements.

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The infamous secret tender The Law

What is it? Why is it called a secret tender? What turns on it? In terms of Rule 34 of the Uniform Rules of Court, a secret tender is a secret offer of settlement made during the course of an action, by one party to another, about which the court is not told until after judgment has been delivered.

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The principle of orality and video link testimony Accounting

Generally, evidence in criminal, civil, and customary law processes must be given orally, by a witness present in the court, who is testifying from memory. This is known as the principle of orality, and the witness's testimony is referred to as viva voce evidence.Generally, evidence in criminal, civil, and customary law processes must be given orally, by a witness present in the court, who is testifying from memory. This is known as the principle of orality, and the witness's testimony is referred to as viva voce evidence.

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The Law of the 3 Hats Company Law

The Law of the 3 HatsCorporate governance is often the least of an entrepreneur's worries when he or she sets out in business. There are a number of more pressing issues, like identifying markets, manufacturing products or negotiating with suppliers and distributors. The Companies and Intellectual Property Commission (CIPC) has streamlined the process of online company registration resulting in an increase of registered corporate entities. While information is readily available to these entities, the reality is that there is very little education for entrepreneurs and small businesses on the legal compliance and governance requirements of the Companies Act (71 of 2008).

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A race against time Human Rights Law

Our nation is in crisis. Statistics released by the SA Ministry of Police in Minister Bheki Cele's briefing to the Portfolio Committee in parliament on 12 September show that in 2018/19 the number of reported sexual offences increased to 52 420 from 50 108. 'Sexual offences' include rape, compelled rape, sexual assault, incest, bestiality, statutory rape and the sexual grooming of children. Due to an array of factors, including fear of stigmatisation and fear of the potential consequences of reporting, we know that sexual offences are often not reported.

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Cannabis: Growing high on our list of priorities Law in life sciences

A lot of attention has been given to the changes in the South African legislative framework as it relates to Cannabis. It is important to understand these changes and to differentiate between cultivation for private use and the sale of CBD products on the open market.

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Trade marks: If there’s no room at the inn, isn’t it time for a different approach? Intellectual Property

Brand owners know it. Brand creation firms know it. Trade mark professionals know it. So isn't it time we started talking about it? Better still, started doing something about it?

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A five-all draw Intellectual Property

A patent case has made it all the way up to the South African Constitutional Court in Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others (CCT 212/18) [2019] ZACC 41 (24 October 2019). Reading it, you might think, "Gosh this thing's jolly complicated", although by page three it's possible that you might be using words other than gosh and jolly. But actually it's quite straightforward; it's all about the "It's already been decided, dude" legal principle, res judicata as the good people of Rome called it. More particularly: if a court in a revocation action finds that a patent is novel (and is therefore valid), can the party being sued for infringement of that patent challenge it on grounds of obviousness or inutility?

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Tales from the US of A... - December 2019 International

Defence bar decries "reptile" approach by plaintiffs' lawyers

Defence lawyers in delict cases are looking for ways to counter what they describe as the "reptile" approach by opposing counsel when addressing jurors. The idea is to make jurors feel threatened and that what happened to the plaintiff could happen to them or to those they know. The approach tries to induce juror anger for the defendants. Jurors are made to feel as if they are making changes to the world. Defendant lawyers say that the approach is part of the reason for "nuclear" verdicts in which awards are much higher than the typical case value. One plaintiff's lawyer disputed the idea that the tactics are resulting in runaway awards. He recently achieved an award of $8 billion punitive damages for a man who said he used a drug as a child which caused him to grow breasts. The lawyer says extraordinary verdicts are the result of extraordinary bad conduct. - Debra Cassens Weiss October 24

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The World in November International

And the British Royal Family needs that stiff upper lip again as several supporters of Prince Andrew's charities have bowed out and the charities themselves have asked him to step down. Prince Andrew announced that he asked the Queen for permission and would withdraw from royal duties "for the foreseeable future". This came shortly after a disastrous TV interview he gave about his friendship with billionaire Jeffrey Epstein, the convicted sex offender who committed suicide (although there are conspiracy theories about that...) last August. His PR adviser, Jason Stein, advised against doing the interview and resigned before it took place. The Guardian said of the interview, "Prince Andrew came across as a man rendered incapable by privilege of normal processes of discernment, moral judgment and empathy." The Prince has denied any involvement in Epstein's notorious weekend gatherings.

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Baronial titles Platteland Perspective

The business of buying and selling ancient Scottish baronial titles is about to take a knock: the highest civil court in Scotland has found it is lawful for the Lord Lyon, who regulates issues related to titles and heraldry on behalf of the monarch, to change the wording of how such "Barons" are recognised. Now, instead of being "Baron of X", title-holders will be described as "holder of the Barony of X". This despite the stringent objections of a woman who, as well as being a partner in a firm that sells Scottish titles, is also the holder of such a title herself.

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POPI versus technology: Did you consent to your toothbrush spying on you? POPIA

Welcome to the digital age. As you wake up, your smart thermostat automatically adjusts the temperature to your preference and the electronically timed blinds open, letting in the light. Your smart toothbrush connected to your smartphone app monitors your brushing technique, while your smart watch records your vital signs. A breakfast suggestion from your smart fridge, based on your diet, is displayed and your phone loads news content for your morning read. You listen to a recommended playlist in your semi-autonomous vehicle en route to the office. Your ostensibly private routine is known by several companies, which have formed a detailed profile of your life and preferences. You are a data target. Did you consent, did you even know?

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Big win for some cohabiting partners Road Accident Fund

It has always been trite law that a widow can claim for loss of support from the Road Accident Fund. However, it has never been clear what the legal position is for cohabiting partners and, as such, the Jacobs case is ground-breaking. This case will help many other potential claimants, although – as has always been said – the circumstances of each individual case will determine the outcome.

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