May 2009


From My Window - May 2009 From My Window May 2009

I am constantly taken aback by the laborious, frequently flawed and frankly dishonest rulings handed down by the courts. In one such case, reported in this issue (see Why bother to have rules? Petra Krusche, p21/22), the Competition Tribunal agreed that summonses issued by the Competition Commission against milk producers (collectively called Woodlands) were void by virtue of vagueness. As Krusche reports, Woodlands complied with the void summonses under protest: it had handed over documents demanded by the Commission and had permitted its employees to be subjected to interrogation.

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FIFA scores opening goal Intellectual Property May 2009

The honour of scoring the first goal in the 2010 Soccer World Cup has gone to FIFA. In the contest between FIFA and ambush marketers FIFA has shot into an early 1 – 0 lead. In the first encounter FIFA put a rocket past the defence of Eastwood Tavern in the opening exchanges. In so doing FIFA has shown its supporters and opponents alike what it is made of and what it can do.

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India leads the fight against ‘bio-piracy’ Intellectual Property May 2009

Under normal patenting procedures, a patent application should be rejected in cases in which information regarding the invention has been disclosed publicly. Therefore, in an effort to protect and avert groundless patenting leading to commercial exploitation of traditional medicines inherent to India, the Indian government recently permitted access to its Traditional Knowledge Digital Library (TDKL), a unique database that houses ancient texts and methods, to examiners at the European Patent Office (EPO). This initiative came into play after the startling discovery by scientists in Delhi of the extent of “bio-prospecting" of natural remedies by foreign countries.

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Trade mark proprietors need to keep their wits about them Intellectual Property May 2009

On July 20 2007, The Draft Regulations under the Foodstuffs, Cosmetics and Disinfectants Act (54 of 1972) relating to the labelling and advertising of foodstuffs and their accompanying Guidelines, were published. The Regulations and Guidelines were then reconsidered in October 2007 after industry, consumer groups and food manufacturers submitted their objections and recommendations to the Department of Health.

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Labour broking under threat Labour Law May 2009

The practice of labour broking in South Africa is once again under the spotlight following Namibia's recent decision to ban the practice and the apparent intention of the ruling ANC to follow this route in South Africa.

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Deviations from disciplinary codes Labour Law May 2009

Is a dismissal procedurally unfair if an employer fails to follow its disciplinary code when conducting a disciplinary enquiry? This question was answered recently by the Labour Court in Dell v Seton (Pty) Ltd and others1.

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Round 1 to the plaintiff Mining Law May 2009

The Mineral and Petroleum Resources Development Act (28 of 2002, the MPRDA) which came into operation on May 1 2004, had a profound effect on the legal institution of mineral rights in South Africa.

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Small Mergers aren’t off the hook Competition Law May 2009

The Competition Commission has published a guideline which indicates that it may require notification of all small mergers in which any of the parties (or firms within their group) are either subject to an investigation by the Commission or are respondents in prohibited practices proceedings before the Competition Tribunal, at the time of entering into the transaction.

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Joint Procurement: friend or foe? Competition Law May 2009

Given the state of relative infancy of current South African Competition Law, despite great strides made in terms of certain issues, a constant challenge for South African competition lawyers and regulators alike is the assessment of commercial activity for which there is little or no precedent.

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Shifting the burden of proof: the nature of director's liability Competition Law May 2009

S12 of the Competition Amendment Bill1 contains one of the most hotly debated amendments to the existing South African competition law regime. The proposed inclusion of s73A of the Competition Act2 will introduce personal criminal liability for managers and directors of firms found to have engaged in a prohibited practice in terms of s4(1)(b)3 of the Competition Act. However, concern surrounding the constitutional validity of such a provision has generated considerable unease, and President Kgalema Motlanthe has refused to sign the proposed amendments into law.

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Why bother to have rules? Competition Law May 2009

In an interlocutory application brought by Woodlands and Milkwood (collectively Woodlands) before the Competition Tribunal against the Competition Commission in the ongoing dairy/milk case, Woodlands challenged the validity of document summonses issued by the Commission against it under s49A of the Competition Act.. The Commission had interrogated employees of Woodlands and obtained certain documents under its summonses before initiating the milk complaint referral against Woodlands and other dairy processors.

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The notification quandary Competition Law May 2009

The recent increase of merger notification thresholds means that a number of transactions now fall outside of the requirements. The automatic reporting trigger must now be supplemented by factors other than simply whether it qualifies as a merger in terms of the Competition Act (89 of 1998), when determining whether a transaction should be notified to the Competition Authorities.

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Defective products Consumer Law May 2009

During the second half of 2008 milk tainted with melamine, an industrial chemical used in plastics and which can make the protein content of milk and other products appear higher, was discovered in Chinese baby formula. When consumed, melamine can cause kidney failure. In China, traces of melamine in baby formula resulted in the deaths of several children and tens of thousands fell sick. Inspections by the Chinese government discovered that 22 of that country's 109 milk powder producers used melamine to boost the protein content of their milk.

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The dangers inherent in favours Financial Law May 2009

Part one of a two-part series Rule 13 of the Securities Regulation Code prohibits the favourable treatment of one holder of securities over other holders around the time of an affected transaction. Unless the Securities Regulation Panel (SRP) agrees otherwise, the person making an offer and concert parties may not:

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The earthy robustness of the Afrikaans vernacular Platteland Perspective May 2009

THE most famous of Somerset East former residents, artist Walter Batiss, once declared: “My father was a waterfall, my mother was a butterfly." I know what he means: there are gazillion waterfalls on the Bosberg Mountain behind the town, any one of which I would feel proud to call my father.

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