April 2013


From My Window - April 2013 From My Window April 2013

I was really taken aback to read that President Jacob Zuma's view is that the citizenry, of which he is the most senior servant, is not entitled to engage publically in matters of military strategy. Expressing this during a speech he delivered at the National Memorial Service for 13 soldiers who were killed in the Central African Republic, he also accused those critical of the CAR mission of dishonouring the memory of the dead.

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Editor's Note - April 2013 Editor's Note April 2013

Now in its 11th year, the Top Student feature has grown to include 73 of the countries brightest LLB students. The women outdid the men, again. There were 21 men and 52 women. By comparison with the 63 2011 Top Students, 22 of whom were men. There are a greater number of graduates who see themselves starting their own law firms in 10 years time. This is a particularly interesting trend; it comes at a time when many firms both large and small are merging and the general view is one of consolidation. These top students show an individualistic outlook and perhaps they see things through different eyes. Another new development was the number of students who have on their radars the possibility of working as in-house counsel or moving into the corporate world; this can only be a good thing. All the Top Students are to be congratulated on the huge effort they have made; I will watch their progress with interest.

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Editor's Note - April 2013 Editor's Note April 2013

Without prejudice welcomes Baker and McKenzie as a member of the “magic circle." We are delighted and look forward to the firm's input. Now in its 11th year, the Top Student feature has grown to include 73 of the countries brightest LLB students. The women outdid the men, again. There were 21 men and 52 women. By comparison with the 63 2011 Top Students, 22 of whom were men. There are a greater number of graduates who see themselves starting their own law firms in 10 years time. This is a particularly interesting trend; it comes at a time when many firms both large and small are merging and the general view is one of consolidation. These top students show an individualistic outlook and perhaps they see things through different eyes.

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Beating about the rooibos Intellectual Property April 2013

It is a fact of life that attempts have been made in certain other countries to usurp control of the term or mark ROOIBOS, despite the fact that it is a well-known South African description for a particular plant which gives rise to ROOIBOS tea. The term ROOIBOS is as typically South African as “braaivleis" and “biltong." It is really part of our South African heritage. The South African authorities have, nonetheless, taken no con- crete or effective steps to protect and control the use of this term in South Africa or elsewhere.

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Encounters of a fast kind – Formula 1, trade secrets and the law Intellectual Property April 2013

The 2013 Formula 1 season is upon us. Well, to anyone interested in behind-the-scenes at Formula 1, and particularly racing car design, the recent decision of Arnold J in Force India Formula One Team Ltd v I Malaysia Racing Team Sdn Bhd [2012] RPC 29 Ch.D 757 is a good (albeit long) read. To anyone litigating for a client on confidential information, it is a must – or, just read on.

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What’s in a name? Intellectual Property April 2013

The trade mark application of superstars Jay-Z and Beyoncé to register the name of their infant daughter, Blue Ivy, as a trade mark has been met with much criticism, both legally and socially.

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Is there copyright in a computer language Intellectual Property April 2013

It's well known that computer programmes enjoy copyright protection – many have also been patented, but that's another story. The South African Copyright Act has protected computer pro- grammes as a specific category of work since 1992; prior to that they were protected as 'literary works'. A computer programme is defined in the Act as 'a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result.'

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Don’t steal my stripes Intellectual Property April 2013

On February 28 this year, the Supreme Court of Appeal handed down judgement in the matter of adidas AG and Another v Pepkor Retail Limited.

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Shape trade marks – Lindt fails to pull a rabbit out of the hat Intellectual Property April 2013

In terms of the South African Trade Marks Act, a shape is capable of registration as a trade mark, provided it meets the same criteria for registrability as any other trade mark, namely, the mark “shall be capable of distinguishing the goods or services of a person in respect of which it is registered or proposed to be registered from the goods or services of another person...". In order to qualify for registration, a shape trade mark must be either inherently capable of distinguishing, alternatively, the mark must have acquired distinctiveness through use.

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Cooking up a Copyright storm! Intellectual Property April 2013

In 2008 government introduced important intellectual property (IP) legislation. The Intellectual Property Rights from Publicly Financed Research and Development Act (51 of 2008), which only came into force on August 2 2010 – governs the ownership and exploitation of IP which flows from publicly financed research and development (RD). In essence the Act pro- vides that IP created in South African universities and research institutions should remain in South Africa and that it should be used for the benefit of South Africans. The Act makes it clear that government sees IP as an important driver of economic growth.

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Retirement funds – uncertainty for some individuals who worked abroad? Tax April 2013

Currently, the application of the apportionment rules to South African retirement fund benefits due to South African residents who contributed to these funds while they worked abroad is unclear. The South African Revenue Service (SARS) holds the view that lump sum benefits should be treated differently from annuity payments. This view impacts on the tax treatment of provident fund payments and the lump sum portion of pension fund payments.

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Calculating the expat exemption Tax April 2013

As every South African resident seconded abroad knows, if he or she remains outside South Africa in total for more than 183 full days during any period of 12 months, of which more than 60 full days are continuous, the remuneration earned is exempt from tax in South Africa, even though the normal rule is that a resident is taxable on worldwide income (see s10(1)(o) of the Income Tax Act).

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SARS’ power to gather information Tax April 2013

An important issue that arises when a taxpayer is approached by the South African Revenue Service (SARS) with a request to provide information is the extent of SARS' information gathering powers. This article considers the impact of the recently effective Tax Administration Act (28 of 2011 (TAA)) on the scope of SARS' information gathering powers and what relief is available to taxpayers in this regard.

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Co-ownership and control Competition Law April 2013

Co-ownership is a well-established principle of common law, which describes the simultaneous ownership of property by two or more persons in undivided shares. The concept of ownership in undivided shares is itself also firmly rooted in our common law and denotes the sharing of rights in property, without physical division of the co-owned property. For instance, a farm is not physically divided among three co-owners, nor would each of them own one bottle of three co-owned bottles of wine. Rather, each co-owner owns an abstract undivided share in the farm and in each bottle of wine. 

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Overpaying directors Company Law April 2013

Recently, a much talked about case decided in the UK introduced an interesting angle when dealing with excessive director remuneration – Maidment v Attwood & Ors [2012] EWCA Civ 998. As the relevant provisions of the UK Companies Act, 2006, which came into play in Maidment largely correspond with those contained in our own Companies Act, 2008, the case should be a useful precedent in South African law (see s5(2) of the Companies Act which empowers a court to consider foreign law in interpreting it.)

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