September 2009


From My Window - September 2009 From My Window September 2009

We are an indisciplined nation. This is not to say that South Africans need to behave like robots but we certainly need to address an inability to abide by just about any of the rules so laboriously put in place.

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Freedom of Assembly and its limits Constitutional Law September 2009

South African's get to vote for their parliamentary representatives once every five years, but this democratic right would mean little if we were not also allowed freely to express our views about important issues of the day.

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Constitutional jacket not required Constitutional Law September 2009

Will the new South African government provide diplomatic protection for its citizens? The answer to this is of great importance to Crawford Lindsay von Abo (Von Abo), his legal team and most certainly the remainder of the South African farmers who owned farms in Zimbabwe and who have since been evicted.

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Trampling over constitutional rights Competition Law September 2009

The stated object of the Competition Amendment Bill, 2008, which proposes to amend the Competition Act, 1998, is not to overhaul the Competition Act completely but, rather, to strengthen effective enforcement by allowing for:

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Rising to new challenges Competition Law September 2009

The slowing South African economy poses significant challenges for competition authorities who will have to deal with the implications for both the substance and timing of merger reviews.

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Excessive pricing in South African law Competition Law September 2009

A note on the Competition Appeal Court's new test for excessive pricing set out in the case of Mittal Steel South Africa Limited and Others / Harmony Gold Mining Company Limited and Another

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Margin squeeze – how low can you go? Competition Law September 2009

The concept of a “margin squeeze," as a form of an abuse of dominance, is relatively new in competition law jurisprudence, literature and case law. One reason for this new-found utility is that margin squeeze cases frequently arise in the context of recently liberalised markets, of which South Africa, due to our particular heritage, has no shortage of examples.

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The Waterford Case: victory after ten years Intellectual Property September 2009

On May 7 2009 the European Court of Justice (ECJ), the highest court in matters of European Community law, dismissed an appeal by glassware giant Waterford Wedgwood Plc (in receivership).

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Red card Intellectual Property September 2009

The Department of Trade and Industry (DTI) has prepared, and proposes placing before parliament later this year, a Bill to amend the intellectual property statutes, and more particularly the Trade Marks Act, Copyright Act, Designs Act and Performers Protection Act. The purpose is to introduce protection for so-called “traditional knowledge" into these Acts as a form of intellectual property.

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Warning for co-authors Intellectual Property September 2009

On June 1 2009, the Supreme Court of Appeal in David Feldman NO v EMI Music SA (Pty) Ltd/EMI Music Publishing SA (Pty) Ltd passed judgement which will have “do-or-die" implications for those co-authors of copyright works seeking to sue, individually, for the full amount of damages flowing from copyright infringement. The Supreme Court ruled that failure of a plaintiff to join the co-authors of a work, or to make out a case as to why it is entitled to sue without doing so, will mean the plaintiff will not be able to claim all the damages flowing from copyright infringement.

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Swine ’Flu and Compulsory Patent Licences Intellectual Property September 2009

On June 11 this year, World Health Organisation (WHO) Director-General Margaret Chan announced WHO's decision to raise the level of the Swine Flu pandemic1 alert from phase 5 to phase 6, effectively announcing the start of a Swine 'Flu global pandemic1. The last time an influenza pandemic was declared was in 1968, with the Hong Kong Flu – it is estimated that the Hong Kong Flu pandemic left about one million people dead worldwide2. When WHO made its announcement, the Swine 'Flu death toll worldwide was standing at 144, with 30,000 confirmed cases having been reported in 74 countries.

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

This is the second in a two-part series

In the July issue of without prejudice (pp22-23) the unreported judgement of Moresport (Pty) Ltd) v The Commissioner for the South African Revenue Service and three others (TPD) case no.36853/2006 was discussed (this involved a complaint laid by Crocs Inc to the effect that Moresport had imported counterfeit goods).

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Section 136(2) of the Companies Act, 2008 – potentially drastic consequences Company Law September 2009

The Companies Act, 2008,1 contemplates that a company may be placed under supervision and begin “business rescue proceedings" where there is "a reasonable prospect of rescuing the company".2 In these circumstances, a “practitioner" will be appointed who, in terms of s136(2) of the Companies Act, has the power to "cancel or suspend entirely, partially or conditionally any provision of an agreement to which the company is a party at the commencement of the business rescue period … ".

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Creditors who snooze will lose Company Law September 2009

Avoidance orders are unfamiliar territory to most business entities; yet, applied timeously, they are a critical tool in the creditor armoury.

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Modifying common law doctrines Company Law September 2009

Two well-known common law doctrines in South African company law, the doctrine of constructive notice and the Turquand rule, are set to undergo some changes when the new Companies Act (71 of 2008) comes into force. This article aims to explain these doctrines, how they are to be changed and their effect on transactions between companies and third parties.

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