July 2009


From My Window - July 2009 From My Window July 2009

June was World Environmental Month and, appropriately, this issue of without prejudice features environmental matters prominently. Two articles in particular underline the importance that is being attached to the watching role of nongovernmental organisations in an area that is attracting increasing international concern; both deal with aspects of the Constitutional Court's ruling in the matter of Biowatch's actions against the Department of Agriculture in which GM crops producer Monsanto was also involved.

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The right to know Constitutional Law July 2009

The right to access to information is based on the notion that “democracy is government by explanation" and that people are entitled to have access to information held by the state in order to promote an open and democratic society. The right cannot be said to be effectively exercised if the state imposes unreasonable time limits within which its decisions can be challenged and legal recourse can be sought against it.

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Rich man, poor man: it really shouldn’t matter Constitutional Law July 2009

Cost awards occupied centre-stage in the matter of The Trustees for the Time Being of the Biowatch Trust v The Registrar, Genetic Resources and Others,1 which was handed down by the Constitutional Court on June 3 2009.

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Biowatch: the costs of constitutional litigation Constitutional Law July 2009

In a unanimous decision delivered by Sachs J on June 3 2009 the Constitutional Court ordered the Registrar: Genetic Resources, the Executive Council for Genetically Modified Organisms and the Minister for Agriculture (the authorities) to pay the legal costs incurred by the Biowatch Trust in the high court and Constitutional Court, and set aside an order directing Biowatch to pay the costs of Monsanto South Africa.1

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Employee incentive schemes:keep it simple Tax July 2009

In many ways employee incentive schemes are like the exercise machines advertised on television: you think you need one and rush to buy an expensive, top-of-the-range machine, which soon ends up gathering dust in a corner.

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The greening of construction Environmental Law July 2009

South Africa has recognised the risk of climate change in its "National Climate Change Response Policy" launched at the National Climate Change Summit in March 2009. It has been estimated that commercial buildings account for approximately 20% of greenhouse gas emissions, both during the construction phase and the ultimate use of the building.

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Biodiversity Act Amendments Environmental Law July 2009

Researchers involved in the discovery phase of a project involving indigenous biological resources or traditional knowledge no longer need to obtain a bioprospecting permit before beginning their research.

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Has tens of billions of heirs’ money incorrectly been given to SARS? Death & Taxes July 2009

You have a choice whether or not to continue this absurd tradition. Estate duty payments are 20% less if any will has the surviving spouse or a charity as the residuary heir.

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Refinements to the withholding mechanism for dividend tax Tax July 2009

The provisions relating to the new dividends tax were enacted in 2008. Currently, secondary tax on companies (STC) is levied on all dividend distributions by companies at a rate of 10% on the net amount by which the dividend declared exceeds the dividends received in a dividend cycle. STC is a tax on the company and is not a withholding tax levied on the shareholder.

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Into battle The Law July 2009

Being a practising attorney or advocate is a tough job. The slightest error of judgement, delay or hastiness can screw up your client's case irretrievably. Court clerks and Registrars lose court files with predictable regularity. Judges and magistrates don't read the papers which took many hours to prepare, or just don't seem to know or apply the law. Clients expect you to solve the problems which they created or cannot solve themselves, but can't or won't pay you for the service. You must justify every minute of your day in billable hours. Not to mention the staff problems...

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“Gone upstairs” Intellectual Property July 2009

Are South Africa's IP laws up to scratch? – IPL case study

The Indian Premier League (IPL) was recently hosted in South Africa when the Indian government refused to sanction the match schedule because the clash with federal elections in India caused security concerns1. In just three weeks IMG (the sports marketing giant responsible for organising the tournament) had the enormous task of selling 59 IPL games across eight cities to a South African public already engrossed in Super 14 rugby mania.

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Making sure all the facts are on the table Intellectual Property July 2009

The issue of non-disclosure in proceedings under the Counterfeit Goods Act (37 of 1997) has been addressed in two recent high court judgements: the unreported judgement of Shoprite Checkers (Pty) Ltd v the Commissioner of the South African Revenue Service and others (CPD) case no. 1460/06 (Shoprite Checkers) and the unreported judgement of Moresport (Pty) Ltd v the Commissioner for the South African Revenue Service and three others (TPD) case no. 36853/2006 (Moresport).

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Staking the correct patent ownership claim early Intellectual Property July 2009

This is a summary of what Southwood J, sitting as the Commissioner of Patents, ruled in the first patent ownership dispute of its kind in South Africa.

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The impact of ICANN’s new gTLD programme on trademark owners Intellectual Property July 2009

Domain names are an integral part of intellectual property. For this reason trademark owners are directly affected by abuses and developments such as cybersquatting, typosquatting, the introduction of new gTLDs (a generic Top Level Domain is an international domain name not assigned to any specific country), and the change in rules and regulations of ccTLDs (a country code Top Level Domain is a two letter extension assigned to a specific country such as .uk (United Kingdom)) within the domain name industry.

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The privacy of the consumer Consumer Law July 2009

Privacy is a rather ethereal concept: believed to be inviolate until it is violated by an intrusion that was unforeseen.

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