March 2013


From My Window - March 2013 From My Window March 2013

The three sectors that provide the essential motor of the South African economy are manufacturing, mining and agriculture – and all three are in serious trouble. In every case the contributory hand of government can clearly be seen. The manufacturing sector has long been in recession. It has been battered by brutal international competition ever since South Africa rejoined the world community and dropped its protective tariff barriers. At the same time, it has been required to come to terms with a system of labour laws and regulation that have
earned widespread obloquy and
which invariably act to the detriment of employers. Mining is in deep trouble for a
wide variety of reasons. Many of the
country's famous gold mines are old
and nearing the end of their economic lives.

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Editor's Note - March 2013 Editor's Note March 2013

The March issue of without prejudice traditionally carries the rankings of the legal advisers as awarded by sister publi- cation, DealMakers. This year, for the first time and due to circumstances outside without prejudice's control, the magazine was not distributed at the DealMakers Gala Awards but we have included photographs of the evening and will be distributing the March issue to the record number of people who attended the event. It will come as no surprise to read that the value of listed company deals in 2012 fell by R305bn from 2011, R279bn from R584bn.

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Changes to the BEE model in mining now inevitable and urgent Mining Law March 2013

2012 was a tumultuous year for South Africa. For many, particularly those in the South African mining industry, it was characterised by the Marikana tragedy, related wildcat strikes, and the knock-on effect on other sectors of the South African economy.

The unrest in the mining industry has been identified as the cause, either wholly or in part, of South Africa's credit rating downgrades by three international rating agencies; a declining economic growth rate (projected at just 2.5% in 2012, down from 3.1% in 2011); and an estimated loss of approximately R10.1bn in the platinum and gold mining sectors alone. These events may well be one symptom of a more pervasive problem, South Africa's deeply inegalitarian and often violent society, which is in desperate need of change. To paraphrase Albert Einstein, we cannot change the world without changing our think- ing. But the question is, where do we begin?

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Burning issues Competition Law March 2013

The Competition Appeal Court (CAC) recently dismissed the Competition Commission's application for leave to appeal to the Supreme Court of Appeal (SCA) in the long and on-going Loungefoam case.

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Tread with care in the IP jungle Intellectual Property March 2013

An article in the Miami Herald on December 9 last year neatly summarised the myriad intel- lectual property (IP) law issues that business owners and consumers now face as a result of the fact that so much commerce now takes place online. What makes the subject so vexed is that IP rights were created for a world that was very different from the digital world in which we now operate.

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Kings and authors are both survived by royalties Intellectual Property March 2013

Authors are remembered for the stories they tell that entertain, enlighten and inspire. The death of a beloved author can leave a void, a sense of loss and feelings of nostalgia. Fortunately, their works will remain – or will they?

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Australia turns its patent act right side up Intellectual Property March 2013

Raising the bar by way of the Intellectual Property Laws Amendment Act 2012

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Cooking up a copyright storm Intellectual Property March 2013

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

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Arbitrating intellectual property disputes Intellectual Property March 2013

For a number of reasons, disputes about intellectual property are rarely put to arbitration. Generally, this is because an interdict is sought against alleged infringing conduct or, because revocation of a registered patent, trade mark or design is at stake. In the former case, the high court (including the Commissioner of Patents – in effect, the North Gauteng High Court) is the forum with jurisdiction to grant the interdict; in the latter cases, various intellectual property statutes designate the tribunal of the relevant Registrar, or the Commissioner, as the seat of proceedings.

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Greed always triumphs Company Law March 2013

A number of highly sophisticated investors as well as your ordinary man on the street have fallen prey to various pyramid schemes over the years. Often a pyramid scheme is not as easily identifiable as one might think. Frequently the person punting the scheme is highly intelligent and well educated, with a proven track record and flawless credentials. Perhaps the best rule of thumb is that when 'investment returns' promised appear too good to be true, they usually are.

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Making sure the BEE Codes and the Companies Act talk the same language Company Law March 2013

Currently there is a lack of communication between the South African Companies Act, 2008 and the Codes of Good Practice on Black Economic Empowerment. This needs to be bridged in order to ensure continued promotion of meaningful participation in companies by black stakeholders.

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Yet another drafting calamity embraced by narcoleptic legislators Company Law March 2013

In terms of s21 of the Companies Act, 1973, an association whose main object was promoting religion, arts, sciences, education, charity, recreation or any other cultural or social activity or communal or group interests could be incorporated as a company. These companies were colloquially known as Section 21 companies. The Companies Act, 2008 contains a similar concept and provides that non-profit companies may be incorporated.

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A fresh perspective Anti-Corruption Law March 2013

The prevalence and magnitude of fraud and corruption in the country has forced a new, fresh, alternative perspective in solving these forms of crime.

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Tactical ineptitude coated in a thin veneer of codswallop In-house Legal March 2013

The in-house lawyer has become a mainstay of the head office support infrastructure. Alongside Finance, Marketing, HR, Audit and Facilities Management, the in-house legal team is part of the predictable fabric of corporate and public sector overhead.

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