October 2013


From My Window - October 2013 From My Window October 2013

The matter of global warming and the allegedly anthropogenic roots of climate change are matters which have seized world attention in recent years. This issue carries an article on carbon tax (p38), a Treasury proposal directly associated with climate change and greenhouse gases. I have long expressed my concern that the intention to introduce a carbon tax is inappropriate for a developing economy. As I understand it, Treasury hopes to reap between R8bn and R30bn from this tax, at least in the early years, more later.

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Editor's Note - October 2013 Editor's Note October 2013

There is a lot to be said for going on holiday and leaving the office behind. I usually check e-mails, respond where essential and frequently edit or request articles when I have read about something interesting. Last month I was in the UK briefly before flying off to Turkey and decided at the last minute that I was not going to be tempted to work. I “pretended" e-mails did not exist, ignored calls where numbers were blocked or were unknown and took a trip back in time to where there was no technology ensuring you were up-to-date every minute of the day. I have returned with fresh eyes and a rejuvenated mind; nothing fell down and the only drawback was the extraordinary stack of e-mails that stared accusingly at me.

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At sixes and sevens over contractual rights in public sector contracts Contract Law October 2013

A key question, which arises from the intersection of the law of contract and administrative law, is whether a public body may exercise contractual rights without regard to the principles of administrative law.1 This article seeks to provide a succinct summary of the legal position and give practitioners a brief insight into this important debate.

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Global claims in adjudication hearings Construction Law October 2013

The shortest distance between two points is under construction – Noelie Altito. It has become common internationally, and in some countries by legislation, for disputes to be resolved provisionally by adjudication. In Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] (B.L.R. 93 at 97), cited in Keating on Building Contracts (9th Ed. para 18-018), adjudication was described as:

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Gangland style: Copyright Turf War Intellectual Property October 2013

Famed photographer and director Estevan Oriol, whose iconic photographs capture the street scene and hip hop lifestyle, recently instituted legal action in the United States against Swedish fashion brand H&M, as well as Brandy Melville, a fashion chain store, for infringing the copyright in his photograph “L.A. Fingers.".

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Opening the door to competition in spare motor parts Intellectual Property October 2013

The Supreme Court of Appeal (SCA) recently delivered a landmark ruling on the controversial issue of registered design rights in vehicle replacement parts or 'spare parts' as they are referred to in industry parlance. At the centre of the dispute were four registered designs for a bonnet, a headlight assembly, a grill and front fender for the E46 BMW model known by discerning buyers and drivers as the 3-series.

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Striking that elusive balance between research and public access Intellectual Property October 2013

Novartis A.G. v Union of India1 - The Gleevec Case and Evergreening

As a previous British colony, India had inherited its intellectual property regime from the United Kingdom. However, after independence in 1947, product patents were removed from protection under the patent laws. During the 1990s, India needed to adapt its patent legislation to be TRIPS compliant. Therefore, in 1999 India allowed for transitional filing of product patents with retrospective effect from 1995, and full product patent protection was re-introduced from 2005, when transitional regulations ended.

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It’s all in the name Intellectual Property October 2013

For many entrepreneurs, the starting point in setting up a new business is to choose a name and to register a company in that name. The first step of the registration process of a company is to select, in order of preference, a list of names for consideration and approval by the Commissioner of Companies who oversees registration of companies in South Africa.

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Are celebrities worthy of fame? Intellectual Property October 2013

The recent decision in the United Kingdom in a case brought by the celebrity known as Rihanna once again brings to the fore the perennial question as to whether a famous or well-known person has a vested personal intangible property right founded in fame, which is enforceable in South Africa.1

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Setting it all down in black and white Intellectual Property October 2013

Franchising has, historically, been unregulated, the common law of contract prevailing. However, the Consumer Protection Act (68 of 2008) (CPA) now governs all franchise agreements.

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Profiteering from the MANDELA brand Accounting October 2013

Former President and father of the nation, Nelson Mandela returned to his home at the beginning of September after a lengthy stay in hospital due to a critical lung infection and South Africans as well as many others around the globe keep him in their prayers.

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Life under the Companies Act Company Law October 2013

Part 2

This is the second instalment of a three-part article addressing some of the recurring questions and issues that have arisen in practice under the Companies Act, 2008 since its commencement more than two years ago.

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The veil provides little protection Company Law October 2013

South African courts have frequently been asked to pierce the corporate veil by lifting their swords, so to speak. In a recent case Tsung v IDC (173/2012) [2013] ZASCA 26, the Supreme Court of Appeal (SCA) once again donned its armour in order to spar with the issue of directors' liability.

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Re-cycled liquidators Company Law October 2013

Much legislation in South Africa has been overhauled in the past 20 years. While the immediate aim was the removal of apartheid laws, commercial law hasn't been neglected.

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On demand bonds: any comfort for contractors? Financial Law October 2013

In large construction contracts, employers often require that contractors provide "on demand" bonds as security for the proper performance of their contractual obligations. Normally issued by a bank, these bonds can be called by an employer upon written demand, without proof that a contractor is in default or of the loss the employer has suffered.

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