October 2009


From My Window - October 2009 From My Window October 2009

As this issue was going to press the process of selecting the judges to replace the four retiring from the Constitutional Court bench was in full swing. This is a very serious business because the outcome will influence the tenor of the Court's approach to the critical issues likely to be laid before it over the coming years. Among those offering himself for consideration was Cape Judge President John Hlophe. He is, by all accounts, an intelligent man with the potential to develop a fine intellect. But he is also cloaked in the mists of controversy, of much of which he is the sole author, and none of it has done him any good. As it turned out, not even a frankly compromised Judicial Services Commission (JSC) was able to recommend Hlophe to the President as a candidate worthy of consideration. The problem is that the Hlophe saga has incontrovertibly damaged the credibility of a judiciary already regarded with deep suspicion by many.

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Pontius Pilate’s ghostly visit to the JSC The Law October 2009

For all its authority and also because of that authority, it is a fragile institution, easily corrupted and once corrupted not easily redeemed." One Miracle is not Enough – On the judiciary.

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History written as farce The Law October 2009

The State Liability Act (20 of 1957) has remarkable staying power. On March 30 2007 Davis AJ granted an order declaring unconstitutional that portion of s3 of the Act which prohibited any execution or attachment process against property of the state.

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The duty to exhaust internal remedies The Law October 2009

Under the common law, the existence of an internal remedy is not in itself sufficient to defer access to judicial review.1

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The 21st century company Company Law October 2009

The company of today is not what it used to be. The concept of the limited liability company was one of the drivers of the industrial revolution in the 19th century. Entrepreneurs were able to place their business ideas in a limited liability company and thereby ring-fence their own estates.

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Audit committee – the independent watchdog Company Law October 2009

The King Report of Governance for South Africa (King III) emphasises the vital role of an audit committee in ensuring the integrity of financial controls and integrated reporting (both financial and sustainability reporting), and identifying and managing financial risk. This is confirmed in the new Companies Act (71 of 2008).

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A victory for minority shareholders Company Law October 2009

S311 of the Companies Act, No. 61 of 1973, as amended, provides a mechanism through which, inter alia, an offeror may propose a scheme of arrangement between a company and its members, in terms of which the offeror will acquire the shares held by the members for an agreed consideration. This form of arrangement is generally referred to as a take-over or expropriation scheme.

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Court’s interpretation of s228 is hunky-dory Company Law October 2009

Does s228(1) of the Companies Act impose a requirement on a company to procure the consent of its shareholders, by special resolution, when mortgaging its main asset?

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When shares with par value don’t Company Law October 2009

One of the biggest perceived changes brought about by the new Companies Act (71 of 2008), is the abandonment of the concept of par value shares. This article analyses the provisions of the new Act dealing with the transition of par value shares of pre-existing companies into shares without any par value. An attempt is also made to predict how this transition will be regulated.

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The Ben-Tovim war and s252 Company Law October 2009

This is the first in a two-part series dealing with remedies available to a minority shareholder (s252 of the Companies Act 61 of 1973 (the 1973 Companies Act)) and the similar remedies which will become available in s163 of the new Companies Act 2008 (the 2008 Companies Act).

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Unravelling complex monopoly conduct1 Competition Law October 2009

Chapter 2A of the Competition Act, introduced by the Competition Amendment Act 1 of 2009 gives the Competition Commission wide powers to investigate and prosecute firms that engage in 'complex monopoly conduct.' This note explains the basic economics underlying complex monopoly conduct and how Chapter 2A is likely to apply in practice.

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Civil claims for damages Competition Law October 2009

In terms of South African Competition Law, a person who has suffered loss or damage as a result of a prohibited practice is entitled, in certain circumstances, to institute a civil action for the awarding of damages in accordance with s65(6) of the Competition Act (89 of 1998).

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(Mo)Tata ma Lotto Intellectual Property October 2009

The Supreme Court of Appeal has decided (September 7 2009) that the word LOTTO is a generic term.

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Pinching someone else’s efforts Intellectual Property October 2009

Not too long ago, if you wanted to purchase a copy of the latest sound track, it required a trip to the local mall to purchase the album or cassette which has now all but been replaced by compact discs. Nowadays, copies of music are easily downloadable from the internet.

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‘Verb up’ – just don’t do it Intellectual Property October 2009

IP lawyers (this one included) like to tell their clients to make sure their trademarks don't do an aspirin or an escalator. Come again? Well, what we mean is that you shouldn't allow your trade mark to become the generic term for the product which you sell: if you do, the name ceases to be a trade mark and falls into the public domain.

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