May 2012


From My Window - May 2012 From My Window May 2012

Justice Minister Jeff Radebe has certainly become a government attack dog of note. It wasn't that long ago that he played a singular role in stacking the Judicial Services Commission to such an extent that it has become, certainly in the opinion of noteworthy observers, a tame instrument of the state, ready to do whatever it is bid by Pretoria. Last month, during the course of interviews of candidates seeking to become the next Judge President of the North Gauteng Court, Radebe took the opportunity to take on South Gauteng Deputy Judge President Phineas Mojapelo. Radebe recalled that Mojapelo had been critical of the process applied when Judge Sandile Ngcobo was selected to be Chief Justice. Readers will recall that, at the time, Deputy Chief Justice Dikgang Moseneke was widely expected to replace retiring Chief Justice Pius Langa.

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Editor's Note - May 2012 Editor's Note May 2012

I commented in the April issue that the Top Student feature appeared for the 10th year in succession. This issue carries Where are they now? and features those original 16 2002 graduates; it makes for interesting reading. I must extend an apology to the graduates of 2006; having compiled the feature to include the Top Students both 10 and five years back, we took the decision to carry one in May and the other in June. I put several under pressure to send me information and photographs and I hope they will not be too annoyed to find they will only appear next month. The bottom line is that both the "2002" and the "2006" groups are worthy of an exclusive feature.

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The doctrine of notice Intellectual Property May 2012

Will the doctrine of notice come to the aid of a licensee, or the holder of some other personal right in a registered trade mark, where that mark is assigned to a third party who refuses to take on the previous proprietor's personal obligations to the holder of the earlier personal right?

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Say “cheese” please Intellectual Property May 2012

A recent case in the UK should keep photographers on their creative toes. In the case of Temple Island Collections Limited v New English Teas Limited and Nicholas Houghton, decided by Judge Birss in the Patents County Court, it was found that a photograph containing iconic symbols of London qualified as an original artistic work entitled to copyright protection. In addition, the defendant's conduct of recreating an image containing these iconic symbols (from 4 separate photographs), was held to infringe the claimant's copyright.

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A landmark pharma case Intellectual Property May 2012

The South African Supreme Court of Appeal has handed down an important judgement for pharma trade marks. The case of Adcock Ingram v Cipla Medpro 1 reconsidered the notion that pharmaceuticals sold on prescription are less likely to be confused because they are dispensed by trained professionals in regulated circumstances. In doing so the Court questioned the relevance of findings in a 1983 leading case, SA Druggists 2, also involving Adcock, in contemporary society. The effect of the case may result in a number of existing pharmaceutical trade marks becoming vulnerable to cancellation claims.

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Following the paper trail Intellectual Property May 2012

New Balance Athletic Shoe Inc v Dajee NO (251/11) [2012] ZASCA 3. This matter relates to an appeal by New Balance Athletic Shoe (New Balance), against a decision by the Registrar of Trade Marks (upheld in first appeal to North Gauteng High Court) to expunge trade mark nos. 1972/1361 P-F FLYERS and B1965/02999 P-F (New Balance trade marks or the trade marks) on the grounds of non-use in terms of s27(1)(b) of the Trade Marks Act (194 of 1993).

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Don’t forget the goose Intellectual Property May 2012

Patent law is perceived by many as a fascinating branch of the legal profession. This can be confirmed by those of us practising in this field.

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China and Intellectual Property Intellectual Property May 2012

China is now the second largest economy after the USA, is currently the world's largest exporter and the largest market for passenger vehicles. China's 1,3bn consumers present a market opportunity that many firms just can't ignore.

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Dismissed for refusing to dismiss Labour Law May 2012

The managing director of Petzetakis Africa (Pty) Ltd recently found herself in an unenviable position when she was instructed by the group CEO and chairman of the board summarily to dismiss two employees without holding disciplinary hearings, or face dismissal. Her refusal to comply with the instructions resulted in the company dismissing her. The dismissal was found to be automatically unfair by the Labour Court in Michelle Harding v Petzetakis Africa (Pty) Ltd in September 2011.

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‘No’ seems to be the hardest word... Labour Law May 2012

Any husband who ever had the privilege spending a Saturday afternoon shopping at the Sandton City sidewalk sale with his wife and her friends will, no doubt, appreciate the value of the right to say “no." When pressed, I am sure he would agree that he was readily aware of the mind-numbing excitement in store for him: fighting to balance fourteen shoe-boxes on top of twelve absolutely must-have designer jeans at prices “never to be repeated;" all while standing in a queue the length of which was last seen in the 1994 elections. Over a beer he will sigh and confess that it was very difficult to say anything else but “Yes, Dear" when Wife asked him, in full view and earshot of the six closest, loving girlfriends, whether he would not just love to come along and give his darling wife a hand with some quick shopping before the next match kicks off.

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s75 is absolutely critical Company Law May 2012

Recently, the duty to disclose personal financial interests was publicised in the alleged maladministration of Cricket South Africa (CSA) by its chief executive Gerald Majola. This was in relation to the payment of unauthorised bonuses to officials in respect of the 2009 Indian Premier League and ICC Champions Trophy.

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C’mon, out with it – how much do you earn? Company Law May 2012

Financial statements are prepared to provide information about the results of the economic activities of a company to interested parties. These parties are, generally speaking and in the context of a company, the board of directors, the shareholders, the management, the employees, the creditors, potential investors and potential funders of the company.

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Not so easy to deregister external companies Company Law May 2012

Though the Companies Act, 2008, makes provision for deregistration of a company, the definition of “company" expressly excludes an “external company." This definition, therefore, denies external companies, which were registered in terms of the 1973 Companies Act, a mechanism for deregistration with effect from May 1 2011.

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The ‘stakeholder inclusive’ approach Company Law May 2012

Included in the fiduciary duties imposed on directors is that they are required to act in the best interest of the company. Before the Companies Act, (71 of 2008), the King Report on Governance Principles for South Africa, 2009 and the King Code of Governance Principles for South Africa, 2009 ('King III'), it was accepted that 'in the best interest of the company' meant to make decisions that benefitted the shareholders only.1 Thus companies were focused on maximising shareholder wealth.

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Now the court expects private business to be the watchdog Property - Company Law May 2012

Gavin Cecil Gainsford v Tiffski Property Investments [2011] ZASCA 187

The Supreme Court of Appeal, in a judgement handed down by Petse AJA held that the mort- gagee holds no rights in the event of a transfer hit by non-compliance with s34(1) of the Insolvency Act (24 of 1936) as such a transfer (and the resultant regis- tration of mortgage bonds) is void ab initio.

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