Latest Issue - June 2020


Initiation and prescription Competition Law

Where a complaint initiation in a competition matter is amended to include additional firms, does the three year limitation apply from the date of first initiation or from the date of the amendment?

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More bark and bite: Competition Law as an additional means of post-pandemic support COVID-19 Competition Law

The Competition Act (89 of 1998) and its noble purpose of, among other things, supporting historically disadvantaged persons (HDPs) and small, medium and micro enterprises (SMMEs), has been in force for just over two decades. Certain 2019 amendments to the Act specifically sought to strengthen efforts to promote economic inclusiveness of SMMEs and HDPs. It is in this regard that competition law may provide additional support, a proverbial bark and bite, to existing government efforts aimed at achieving a more equitable society. This has particular relevance in a post-pandemic context.

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A divorce, the settlement agreement, and a parcel of game Contract Law

Who knew that a divorce, the relevant settlement agreement, and a parcel of game could have provided for yet another case where the Supreme Court of Appeal (SCA) had to interpret a contract?

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Strict compliance with the cancellation clause is peremptory Contract Law

The traditional roles of attorneys have not evolved much over the years, barring the fact that in South Africa, they can appear in the High Court, Supreme Court of Appeal and the Constitutional Court in terms of s25 of the Legal Practice Act. The general duties of attorneys, as imported from duties of Solicitors in Commonwealth jurisdictions, involve considerable paper work.

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Bundling in terms of the Consumer Protection Act Consumer Law

Bundling" entails offering one product or service on the basis that the consumer will also receive another product or service if they conclude a sale. In some cases, consumers are offered a choice: to purchase the bundle at a discount or buy the individual item separately; in other cases there is no choice, the consumer is simply required to purchase the "bundled" product or service. Bundling can be positive for consumers. It can lead to a greater choice of products or services at discounted prices.

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Tales from the US of A... International

Privilege doesn't protect law firm's client information from IRS

According to the New Orleans federal appeals court, a Texas law firm must comply with an Internal Revenue Service summons seeking information about any clients who created overseas accounts and entities on the firm's advice. The IRS was conducting a tax-evasion investigation and sought the identity of clients of a law firm that provided estate and tax planning advice to its clients. This was after a taxpayer audit found that the law firm had created offshore accounts which the taxpayer used to evade income taxes in the United States. The IRS wanted to learn whether other clients similarly used the law firm. Generally, in the US, client identities are not protected by the attorney-client privilege. The law firm argued that its clients' identities were protected under an exception that bars disclosure when it would result in the release of confidential communication. The court found that the exception is a "limited and rarely available sanctuary" that applies when revealing the identity of a client would disclose confidential communications such as the confidential motive for hiring a lawyer. The exception did not apply because disclosure of clients who participated in overseas transactions did not reveal motive or legal advice.

Debra Cassens Weiss April 28

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Kenya Law School Platteland Perspective

A university law school that suspended a student for three semesters did so unlawfully, a court has ruled. And by way of compensation, the student received an unexpected bonus that levelled the score.

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Incongruent realities Advertising Law

In their book, The 22 Immutable Laws of Marketing, Al Ries and Jack Trout confirmed at least one suspicion that cynics have held for years; marketing is about perception, not quality. In other words, perception ultimately trumps reality. While this might not reflect well on our collective capacity for empirical reasoning, it does explain why we often find odd incongruencies in business and, of course, in advertising.

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The case of the interdict for which the Plaintiff did not ask Intellectual Property

In October 2017, without prejudice published an article in which I expressed some criticism of the finding of patent infringement by the SCA in Strix Limited v Nu-World Industries [2015] ZASCA 126. The issue revolved – as patent infringement invariably does – around interpretation of the patent's claims, and which is where the forbidden territory is staked out. In the SCA's order, having found infringement by Nu-World of the patent, Navsa JA ordered an enquiry into the damages Strix suffered as a result of the infringement. This case will be referred to as Strix.1

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South Africa: COVID-19, Amazon and the changing face of brand enforcement COVID-19 Intellectual Property

The coronavirus (COVID-19) has changed the world dramatically. It has certainly changed business, with many of us now having to work from home. It has changed the way we shop, with many more of us now shopping online. It has affected many businesses very badly, yet some have profited handsomely. None more so than the king of online shopping, Amazon.

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South Africa: COVID-19, technology and patents: the good, the bad and the ugly COVID-19 Intellectual Property

There is no doubt that the coronavirus (COVID-19) pandemic has had a profound effect on the world and it is perhaps unsurprising that the world of intellectual property has not marched on unaffected. There will be consequences for the way in which we and our colleagues in the IP profession work and deal with "our" business going forward but, in the meantime, our clients have their hands full. In our other article, 'Amazon and the changing face of brand enforcement' by Gaelyn Scott, we look at trade mark issues surrounding COVID-19. In this article, we will look at some issues dealing with technology and patents.

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National News National News

Cliffe Dekker Hofmeyr

Appointment: Rachel Kelly has beenappointed a director in the Corporate & Commercial practice. Keshen Govindsamy has been appointed as a Senior Associate in the Tax practice.

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“Judge” Constitutional Court Art Collection / Cover

Artist Jaco Sieberhagen found a piece of driftwood in a river running through the mountains around Worcester, which he sculpted into "Judge" in 1999.

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Limitations on the right to freedom of testation Law of Succession

Part 2

In the previous article, I discussed two case studies involving discriminatory testamentary provisions. We now move on to the third example; the matter of Curators, Emma Smith Educational Fund v University of KwaZulu-Natal 2010 (6) SA 518 (SCA) (Emma Smith Educational Fund). The judgment was handed down by the Supreme Court of Appeal (SCA). It dealt with discriminatory testamentary provisions in a public charitable trust. Eligibility for the bursary was limited to European girls who were born of British South African or Dutch South African parents. It was further required that they must have been resident in Durban for a period of at least three years immediately preceding the grant

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A change of direction for the Road Accident Fund? Road Accident Fund

Mabunda Incorporated and Others v Road Accident Fund and Others

On 27 March 2020, the North Gauteng High Court handed down judgment in the case of Mabunda Incorporated v Road Accident Fund (15876/2020) (the RAF Judgment).

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