Latest Issue - Quarter 2 2022


Steve Biko while in police custody Constitutional Court Art Collection / Cover

The portrait titled Steve Biko while in police custody, 1977 (1997) by Amos Miller, which forms part of the Constitutional Court Art Collection (CCAC) and reproduced on the cover of this issue of without prejudice, is based on two photographs from an article in the New York Times in 1997 that were taken during Bantu Stephen Biko's arrest by apartheid police in 1977.

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A win for Comair Intellectual Property

On 31 March 2022, the Companies Tribunal ruled in favour of Comair Ltd (Comair) against Kulula Holdings (Pty) Ltd's (the Respondent) registration of a company name which contains Comair's registered trade mark, 'KULULA'.

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Top 5 IP challenges faced by new businesses Intellectual Property

Starting a new business is not for the faint-hearted! Working capital is usually small in contrast with the endless list of things to do. In the craziness of starting a business, often too little or even no headspace is dedicated to intellectual property (IP), even though IP is relevant to almost every aspect of a business, whatever its size.

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Fiduciary-related court case summaries The Law

Court case on unworthiness to inherit – Smit v Master of the High Court, Western Cape and Others [2022] ZAWCHC 56

The applicant (Z) is the widow of a murdered wine farmer (S) who was shot and killed in the dining room of the house in which they lived on 2 June 2019.

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Tales from the US of A . . . International

Lawyer suspended for coaching client witness using chat function during virtual trial

An Arizona lawyer has consented to a two-month suspension after he used the chat function on GoToMeeting to coach his client during a virtual trial. He sent messages to a divorce client during cross examination by her estranged husband. The judge found the message on the chat line after the hearing. The message directed his client to "provide specific, substantive answers to specific questions that were being asked of her". The lawyer allegedly said to the judge, "It would be the same as if shook my head in the court room".

Debra Cassens Weiss February 1

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The World International

Workers at the Nespresso factory in Romont, Switzerland, let authorities know that they found white powder in sacks of coffee beans. Police later found more than 500kg of cocaine in five shipping containers. Nespresso issued a statement that production of coffee capsules at the plant had not been contaminated by the drug.

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National News National News

Lawtons Africa

Promotions: Phuthi Mashalane has been promoted to director. Zaakira Haffejee has been promoted to Senior Associate. Appointments: Sarah Goldman has re-joined the firm as Head of Pro bono and Citizenship. Sarah was an associate with the firm before she left to be a Judge's Clerk at the Constitutional Court. Kobus De Beer and Yagashen Pillay have joined the firm as directors. Molemo Makhubedu has joined the firm as an Associate.

Attorney Admissions – Promoted to Associate: Clinton Mphahlele and Disebo Leokaoke.

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Why the South African government should react more strongly to Russia’s invasion of Ukraine Opinion

The South African Constitution is recognised as a significant piece of legislation, both locally and internationally. This is because it encapsulates not only the ideals of human freedoms and universal truths as old as our species, but also enshrines modern fundamental human rights in respect of fair trade, industry, privacy, freedom of religion, beliefs, opinions, and expressions. It guarantees freedom of movement and residence, fair labour relations, housing, healthcare, food, water and social security, education, access to information, and just administrative action. We have access to courts, and even arrested and detained persons have rights that are captured in this splendid document of expectations and liberties. But most importantly, it enables all the people of our country to live in a land that guarantees protection against tyranny and oppression. Concomitantly, it guarantees us the free will to live our lives in the manner that we deem fit, subject of course to certain limitations.

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Social media: when can the right to freedom of expression be limited by the right to privacy? POPIA/Constitutional Law

In today's world, social media is an inextricable part of how we function as a society. The very fabric of public exchange has bound itself to these platforms in such a way that the dissemination of ideas, knowledge and basic communication is now increasingly reliant on online 'communities'.

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Sheriff’s auctions: Bargain or blunder? Property Law

The promise of snatching up luxury real estate for a fraction of the price has always attracted buyers to the auction market. But prospective buyers beware: turning a profit on a property is not as straightforward as it may seem.

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Rescinding tax judgments: the obstacles and limitations Tax Law

Several recent high court judgments have incorrectly held that a tax judgment cannot be rescinded. One such judgment was considered by the Constitutional Court (ConCourt) in Barnard Labuschagne Incorporated v South African Revenue Service and Another (CCT 60/21) [2022] ZACC 8 (11 March 2022), where it was unanimously held that a tax judgment can be rescinded. Now that the ConCourt has ended any misconceptions about the rescindability of tax judgments, it is worthwhile to consider the circumstances under which tax judgments can be rescinded.

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The snail in a bottle Spotlight on insurance law

Consumers' power to claim damages for defective products under s61 of the Consumer Protection Act presents a potentially costly risk for various parties in the supply chain.

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2021 insurance judgments Spotlight on insurance law

2021 was a relatively busy year for South African courts delivering insurance judgments. In addition to a couple of judgments dealing with the tail end of COVID-19 insurance coverage litigation, the judgments saw a mixed bag of results for insurers.

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A practical rundown of why terms and conditions in insurance policies matter Spotlight on insurance law

Insurance provides cover for losses arising from insured events which may happen in the future. Against an agreed premium, the risk of an insured event arising is transferred from the insured to the insurer.

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The “i” Word Spotlight on insurance law

I'll just come right out and say it – I don't like talking about insurance. Something in my reptilian brain kicks into gear whenever someone says the "i" word around me. I'm sure I am not alone in my fight or flight response when I hear concepts being thrown around such as subrogation, short-term, long-term and non-life insurance. Yet with the advent of COVID-19, high unemployment, crime, last year's national riots and the recent KZN floods, insurance has become highly topical. All of these extraneous events, coupled with our fragile economy and the low numbers of insured, has driven up the risk profile of those seeking to be insured, as well as insurance premiums; making insurance more inaccessible to the average South African.

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