February 2013


From My Window - February 2013 From My Window February 2013

Welcome back after your holidays, probably by now relegated to distant memory. I trust you enjoyed a good rest because you'll need it – 2013 promises to be a bruising year. It is beginning where it left off – with the disciplinary action brought by the National Prosecuting Authority against one of its few star turns – deputy director Glynnis Breytenbach with whom I am friendly. She has acquired a much deserved reputation for efficiency, determination and court management.

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Editor's Note - February 2013 Editor's Note February 2013

In the December issue of without prejudice Carmel Rickard wrote on the late former Chief Justice, Arthur Chaskalson's speech made to the Cape Law Society on November 9 criticising the proposed Legal Practice Bill for the detrimental impact it would have on the legal profession. Not even one month later, on December 1, he had died leaving those in high places a powerful message about the Legal Practice Bill, “But first I want to lay the foundation for the proposition that the independence of the judiciary and the legal profession are central pillars of our constitutional democracy and that we should be astute to ensure that there is no erosion of these fundamental principles." Justice Chaskalson, first President of the Constitutional Court and Chief Justice of South Africa was subject to scrutiny and, as a celebrity, was fair game for both praise and censure. On his death, tributes that acknowledge his enormous contribution to a demo- cratic South Africa flowed in from all corners of the earth.

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Successor liability Environmental - Company Law February 2013

What happens when a legal entity, specifically a business, that has committed a competition law infringement in the past and is liable to pay a penalty for the contravention, is transferred to a new firm? Would the purchaser take over the responsibility from the seller due to the transfer of the business to which the infringements relate, or could the new purchaser refer the competition authorities back to the seller? The legal question relating to succession of responsibility for past competition law infringements is confined to, and arises acutely, when the transfer of a business or an asset takes place as opposed to a sale of shares.1 Traditionally, one of the advantages of constructing a transaction as a sale of busi- ness/assets rather than a sale of shares is that the purchaser only takes over the identified business/assets and identified liabilities.

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The Hamon Peel case Company Law February 2013

The facts, briefly. The company in question was Hamon J&C Engineering (Pty) Ltd (JV Company). The applicants were directors and shareholders of the JV Company. The respondents were also direct and indirect shareholders of the JV Company, namely Hamon South Africa (Pty) Ltd (Hamon SA) which is a subsidiary of a foreign multinational company, Harmon & Cie (International SA) (Hamon & Cie). The JV Company was brought about by a merger between the applicants who were involved in J&C Engineering CC (J&C) on the one hand and the Hamon group on the other.

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Expiry of a valid bid in the procurement process Financial Law February 2013

In the field of public procurement and, in particular, in respect of the procurement of large public infrastructure projects procured through a Public-Private Partnership (PPP), it is not uncommon to use what is known as a two-stage procurement process.

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National Credit Act anomaly is unconstitutional, says court Financial Law February 2013

A Cape Town investor who loaned his colleague R7m has been caught up in a National Credit Act anomaly that the Cape High Court says is unconstitutional.

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Are you anti-corruption compliant? Anti-Corruption Law February 2013

With corruption having become part and parcel of everyday life, South African companies have good reason to be worried. But they have as much reason to be concerned about the ever-increasing number of anti-corruption laws with which they are required to comply. Not only do they need to consider local legislation but, in addition, a significant number of South African companies now need to comply with foreign laws too.

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Variation of contractual terms of tenders Contract Law February 2013

Once tenders have been invited, an Accounting Authority will appoint a preferred bidder and an agreement will be concluded with that bidder for the provision of goods and services. After concluding the tender award, if the circumstances change, the Authority may seek to amend the terms of the tender awarded so as to increase the scope of the original assignment.

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The Voetstoots clause – and other pitfalls Property Law February 2013

For a century and more, the “voetstoots" clause in a contract has proved a solid bulwark for a seller of goods or property. In essence, this clause records that the subject of the sale, whether movable goods or immovable property, is sold "as is" and without any warranties as to its condition or suitability. This meant that the purchaser had to accept the goods with all defects, whether latent (hidden) or patent (obvious).

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OnLine shopping may be in danger Intellectual Property February 2013

The eagerly anticipated US Supreme Court decision in Kirtsaengv. John Wiley & Sons1 may place a fundamental restriction on the cross-border sale of books, music movies and other copyright material.

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Braking with tradition Intellectual Property February 2013

As will be apparent from perusing the articles posted on the IPSTELL blog (www.blogs.sun.ac.za/ipstell) indicated by the keywords “traditional knowledge", The Vine Oracle (the voice of the Stellenbosch Chair of Intellectual Property) has been forthright in its criticism and condemnation of the Department of Trade and Industry's Intellectual Property Laws Amendment Bill.

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Einstein and his personality rights Intellectual Property February 2013

There was an interesting decision in the USA recently on the issue of what Americans call 'publicityrights.' I tinvolved Albert Einstein, who died 57 years ago, and who bequeathed his literary rights and property to the Hebrew University.

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'Shaken . . . Not Stirred' – protecting fictional characters Intellectual Property February 2013

Merchandising of fictional characters is the oldest and best-known form of merchandising. It involves the use of distinguishing personality features of fictional characters in the marketing or advertising of goods or services. It forms the subject of licensing agreements and therefore the commercial exploitation of fictional characters is a profitable industry. The characters that make up this year's edition of the Forbes Fictional 15 have an aggregate net worth of US$209.5 billion.

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Cooking up a Copyright storm! Intellectual Property February 2013

This is the first in a two-part series; the second will appear in the March 2013 edition The recognition of television formatting rights as literary works under Copyright Law

Most of us would have spent a Wednesday night or two salivating at the wonderful dishes served up in the MasterChef South Africa kitchen or sharing in the anxiety of the participants when the judges announce they have 60 seconds left to plate up.

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Prescription medicines and generics Intellectual Property February 2013

When determining whether there is a likelihood of confusion and/or deception occurring between trade marks in terms of the Trade Marks Act (194 of 1993)1, various factors are taken into consideration, including who the “notional consumer" would be for the goods and/or services for which the respective trade marks are used and/or registered2.

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