Latest Issue - September 2019


Editor's Note - September 2019 Editor's Note

In South Africa September marks spring and new beginnings. It should be a time to be hopeful, but global sentiment is less than accommodating.

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The 3 Ps of business rescue – predict, prepare and preserve Company Law

Part 1

Business rescue has become commonplace in South Africa and, if used timeously and correctly,can be a robust and creative procedure for rescuing financially distressed companies.

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How to break up with your business rescue practitioner Company Law

As with any new relationship, your relationship with your business rescue practitioner will likely have commenced with a sigh of relief and hope for the future (of your company). However, as time goes on, the lustre may have worn off and you may have begun to realise that the relationship, which was once mutually beneficial,is now toxic. While you may feel that all is lost and that your Company is forced to ride out the storm until it is rescued (with a bit of luck), there is hope.

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Where to draw the line? – dual roles and shareholder activism Company Law

Shareholder activism, a concept rigorously employed and popular in the UK and the US, is increasing in the South African corporate governance space. This may pose challenges for directors who are also shareholders and who, in furtherance of their activist campaigns, go against the board and company strategy.

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When is your Licence Agreement a Franchise Agreement? Consumer Law

When the Consumer Protection Act, 2008 (the CPA) came into effect during 2011, it changed the franchise landscape significantly. Prior to its promulgation, franchise agreements (and the inevitable disputes that followed) were governed solely within the framework of the franchise agreement.

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Problematic aspects of copyright protection for television show formats Intellectual Property

Part 2

"Reality check: When will two TV shows in the same genre be considered substantially similar under copyright law?" 2003 (21)Entertainment and Sports Lawyer 1 19. Smart et al.

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Awakening the lion in the jungle – Finding a way Intellectual Property

Part 2

Solomon Linda composed MBUBE in the nineteen thirties. He assigned his copyright to Gallo in 1952.Both these events occurred during Linda's lifetime and during the window when the "Dickens Clause" continued to operate in South Africa. The Linda family were thus in exactly the same position as the Dickens family had been. This meant that upon his death in 1962,Solomon Linda's Estate acquired the reversionary interest in MBUBE. In other words, they there and then acquired the right to receive ownership of the copyright 25 years later. However, the actual reverted copyright would only vest in his estate after 25 years, namely in 1987.

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In memoriam: Joseph Bhekizizwe Ndlovu (1953 - 2019) Constitutional Court Art Collection / Cover

In 1994 when the first eleven Justices were appointed to the Constitutional Court, Justice Albie Sachs and Justice Yvonne Mokgoro were given the portfolio of decor. They were asked to use a minimal budget to decorate the temporary courtroom with the dignity befitting the people that would move through it.

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Smutty trademarks – will economics do what the law can’t? MUHLBERG'S BRIEF

It's been widely noted that we're seeing an ever greater legal acceptance of risqué/smutty/offensive (take your pick) trademarks.

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INTRODUCTION- September 2019 Employment Law - Feature

That Employment Law has become increasingly complex and demanding for employees, employers and trade unions is well known to those involved –but perhaps others are less aware of the challenges. Readers of the feature this year will discover just how encompassing this area of law is and how unwise it is to assume anything.

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HOW TO HIRE AND FIRE A PUBLIC PROTECTOR Employment Law - Feature

I have always held the office of the Public Protector in high esteem. This is because of the pivotal role that the Public Protector plays in South African society – the title itself is indicative of this. The Public Protector is there to protect the public by investigating any conduct into state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper, to report thereon and to take appropriate remedial action (s182 (1) of the Constitution).

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THE LINE BETWEEN POLITICAL PARTIES AND TRADE UNIONS IN THE WORKPLACE Employment Law - Feature

Traditionally it has been the role of trade unions to represent members in the workplace, in terms of the Labour Relations Act, 1995. Recently political parties have become involved in employment matters in an effort seize the recognised role of the trade union; frequently this has included a demand that the employer not interact with the trade union.

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The World in August - September 2019 International

It cannot be said that new UK Prime Minister Boris Johnson's tour of the UK was an undiluted success. Crowds jeered him in Edinburgh, Cardiff, and Belfast, however The Daily Telegraph reports that the polls showed a 5.5% increase for the Conservatives since his appointment, the biggest surge since Tony Blair's election in 1997.

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ORGANISATIONAL RIGHTS AND A TRADE UNION’S CONSTITUTION Employment Law

The Labour Appeal Court (LAC) has held that a registered trade union may exercise organisational rights in respect of individuals who are not eligible for membership in terms of the union's constitution.

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HOW NOT TO DEAL WITH SUFFICIENT REPRESENTATION MATTERS Employment Law - Feature

The organisational rights that trade unions enjoy in companies have always been a bone of contention. Trade unions want to ensure that they are sufficiently represented in as many working environments as possible, while companies prefer to have a non-proliferation of trade unions in the workplace as envisaged by the original LRA text.

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