July 2012


From my window - July 2012 From My Window July 2012

Education has been a major thorn in the side of the democratic government since it took office in 1994. And it has made a comprehensive hash of things. It is one thing to recognise, as it has done, not once but repeatedly, that the education system has to be “fixed" and that education is the key to this country's ability in the long run to make its way in the world.

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Editor's Note - July 2012 Editor's Note July 2012

One disappointing refrain weaved through the comments from our Top Students of 2002 and 2006 and it is one I that I now hear from the Candidate Attorneys who were the graduates of 2011 – the state of the courts. It is not only the physical state but it is also the attitude.

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Independence of the NPA – The devil in the detail The Law July 2012

Part 1

The independence of the National Prosecuting Authority (NPA) has been the subject of heated debate, with some individuals losing their jobs or being suspended indefinitely for their views. Many others believe that the NPA needs a measure of independence to prevent its abuse by those in powerful positions and its use as a tool to thwart political opponents.

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The Constitution and taxation – not in my backyard Accounting July 2012

The e-tolling saga has been, and continues to be, a matter of intense public interest. On April 28 Judge Bill Prinsloo granted an interim interdict against South African National Roads Agency Limited (SANRAL) preventing it from implementing e-tolling on Gauteng's highways, pending an application to review the original decision by the Minister of Transport to proceed. This interdict temporarily halted the e-tolling project, much to the delight of many road users and the consternation of government.

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Shielding the sources of truth Constitutional Law July 2012

Pulitzer Prize winning journalist, Judith Miller1 had built a career on breaking the biggest front page stories and securing top level sources. So it was shocking when it was discovered that a number of stories she wrote while working for the New York Times relating to weapons of mass destruction in Iraq later turned out to be inaccurate or completely false due to information received from an unreliable source. Ms Miller's story made for a revealing cautionary tale about the culture of American journalism.

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Protecting the Fourth Estate Constitutional Law July 2012

The South Gauteng High Court recently handed down judgement in the case of Bosasa Operation (Pty) Ltd v Adriaan Basson and M & G Media Limited in which the interesting issue of the extent to which journalists' sources can be protected by privilege was raised.

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The limitation and boundaries of art Constitutional Law July 2012

The recent upheaval over The Spear painting has left a lot to digest. Apart from balancing the right to freedom of expression with the right to dignity, it was a question of what kind of art is permissible or acceptable in the South African context, what needs censoring and how far can artists go to convey societal undercurrents on canvas.

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The recovery of fees and disbursements in successful pro bono litigation Probono July 2012

The issue of whether attorneys are permitted to recover costs in successful pro bono litigation has been debated, without resolution, for years. As a general rule, in ordinary matters fees and disbursements are awarded to a litigant and not the attorney. In a pro bono matter the litigant would have incurred disbursements only and it is the attorney who is out of pocket for the fees. It is, therefore, only the disbursements incurred by a client that are generally recoverable.

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Hamstringing an opponent from under the Commission’s umbrella Competition Law July 2012

The use of consent orders as legal precedent must be approached with some circumspection as they are in essence settlement deals, which may have been made for commercial reasons. They do not carry the weight of decisions made on tested evidence. Nevertheless, the recorded facts in consent orders serve as practical examples of the application, or not, of the Competition Act.

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Personal financial interests – letting it all hang out Company Law July 2012

It is well known that one of the fundamental duties of a director is not to allow any personal financial interests to interfere with his or her corporate responsibilities; hence the statutory duty to make disclosure of such interests to the board of directors. It is important to note, however, that this duty is no longer confined to directors but by virtue of the new Companies Act (71 of 2008), has now been imposed on a broad spectrum of company officers.

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Yet more imprecise drafting Company Law July 2012

A recent advisory opinion issued by the Companies and Intellectual Property Commission (CIPC) has placed an interesting interpretation on the requirement in s30(4) of the Companies Act (2008) for private companies to disclose, in their annual financial statements (AFS), the remuneration received by their directors and prescribed officers. It should be borne in mind that companies, which are required under the Act and Companies Regulations, 2011 (Regulations) to have their AFS audited, must also lodge those financials together with their annual returns at the CIPC (d33(1)(a)). These then become open to inspection by the public, which is of course of concern to any company.

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Illegitimate discoveries Intellectual Property July 2012

On May 15 the Board of Healthcare Funders of Southern Africa (BHF) succeeded in the North Gauteng High Court in a copyright infringement case against Discovery Health Medical Scheme and Discovery Health Administrators (Discovery). The dispute had the potential to create significant problems in the payment of claims by medical schemes to health service providers and health facilities.

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Using intellectual property to drive revenue Intellectual Property July 2012

South African companies are urged to move from a protectionist approach to managing their Intellectual Property (IP) – to one where the IP assets generate financial returns. However, in order to see real, bottom line results, the focus on maximising IP value in a company must start right from the top levels of management.

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The world isn’t our stage Intellectual Property July 2012

Can a South African court adjudicate an infringement of copyright which took place in a foreign country? Is the court in a position to exert a form of intellectual property imperialism and presume to adjudicate over alleged unlawful conduct beyond South Africa's borders? These are important and perplexing issues in the modern world of the internet where the media plays scant regard to national boundaries.

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Coca–Cola: definitely a taste for life! Intellectual Property July 2012

“Our formula is our company's most valued trade secret and we will not be coming forward with that formula" was spokeswoman for the Coca-Cola company, Kerry Tressler's, reaction to a broadcast of This American Life on February 11 2011 claiming that Coca-Cola's secret formula has been discovered.

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