July 2007

From My Window - July 2007 From My Window July 2007

Is it true that pretty soon it will no longer be possible to assure foreign investors and their legal representatives that swift entry to SA's courts is guaranteed, and that the judicial system is on a sound footing? This was a view expressed to me during a private conversation with a senior attorney, a man who has practised in this country for nearly four decades.

Hello, is there anyone out there? Intellectual Property July 2007

Copyright in South Africa runs the risk of becoming an endangered species and ultimately suffering the fate of the dinosaur. The reason for this unhappy state of affairs is that, like all species which have faded into extinction, it is failing to adapt to changed and ever- changing circumstances. The blame for this must be laid squarely at the door of government.

Raise a glass to the winner Intellectual Property July 2007

On June 12, the European Court of First Instance (CFI) delivered a much awaited decision in a dispute between Ireland's glassware giant, Waterford Wedgwood plc, and a Stellenbosch based wine producer, Assembled Investments (Pty) Ltd.

Resolving domain name disputes Intellectual Property July 2007

There has recently been a welcome development concerning domain name dispute resolution in South Africa.With the rapid expansion of the Internet and everything that goes with it, domain name disputes have arisen with increasing frequency. There have been many cases where a wellknown trade mark has been “hijacked" and registered as a domain name by a third party who then held the name to ransom when the trade mark owner tried to register it. Marks such as NANDOS, MARKS & SPENCER, HARRODS, GOOGLE, DELL and even HILLARY CLINTON have all fallen prey to these tactics. This phenomenon, known as “cybersquatting," is only one of the many different kinds of disputes that can arise in relation to domain names.

Beware those transfer pricing contraventions Intellectual Property July 2007

Anyone owning intellectual property (IP) that is used by a connected person outside of South Africa, and that foreign connected person is not required to make market-related royalty payments for the use of the IP, is most probably contravening the transfer pricing provisions of our Income Tax Act as well as Exchange Control Regulations.

Open season for comparative advertising? Intellectual Property July 2007

A recent judgement in the case of Verimark v BMW handed down by the Supreme Court of Appeal has reduced the scope of protection hitherto afforded by a registered trade mark. The Appeal Court found that s34(1)(a) of the Trade Marks Act (which deals with primary infringement) cannot be interpreted to give protection that goes beyond protecting the mark as a badge of origin.

Not everyone thinks the NCA will do its intended job Consumer Law July 2007

The National Credit Act's (NCA) remaining provisions came into full effect on June 1. In light of a recently televised Carte Blanche exposé of furniture retailer JD Group's credit granting practices, without prejudice decided to investigate how the Act's provisions will protect consumers in this new credit granting era.

As the National Credit Act looms, many are unaware of how far-reaching its effect will be Consumer Law July 2007

The National Credit Act (NCA) becomes fully operative on June 1 2007. It repeals and replaces the Credit Agreements Act, Usury Act and the exemption to the Usury Act which regulated micro-lending.

The rights of e-consumers Consumer Law July 2007

This is the second in a two-part series; part 1 appeared in the June 2007 issue In order to understand e-consumer protection it is essential to define a consumer. It should be noted that s1 of the Electronic Transactions and Communications Act (25 of 2002) (ECT) defines a "consumer" as “ …any natural person who enters into or intends entering into an electronic transaction with a supplier as the end user of goods or services offered by that supplier …“. There is a general consensus that a consumer means only natural persons and therefore the provisions do not apply to transactions between suppliers and companies and other juristic persons such as businesses and trusts.¹

Is a non-statutory fine or penalty subject to VAT? Tax July 2007

A member of a club, association, society or other similar organisation (association) becomes entitled to enjoy the use of the facilities and other benefits and privileges of that organisation in return for payment of a membership fee. The member undertakes to abide by the rules of the association. The rules generally provide for a fine or penalty to be imposed on the member if he or she does not comply with the rules, or if the member's conduct is prejudicial to its interests. The fine or penalty can either take the form of a monetary payment, or it could comprise the suspension of privileges, or both.

Are those easy judgements obtained against taxpayers really fair? Tax July 2007

An application for the rescission of a "judgement" obtained by the SA Revenue Service in the magistrate's court under s91(1)(b) and s91(2) of the Income Tax Act (58 of 1962) has resulted in some arduous court battles.

The Small Business Amnesty – expanding the tax base Tax July 2007

The Small Business Amnesty announced by Finance Minister Trevor Manuel in his 2006 Budget Speech, and which applied between August last year and May 31 2007 has now been extended to June 30.

Really generous tax incentives for scientific research Tax July 2007

Generous tax incentives that go far beyond the tax deductions and allowances previously granted have recently been introduced for research and development.

Those Codes raise concerns about narrow-based BEE BEE Law July 2007

Many critics of government's policy of broad-based black economic empowerment (BEE) have pointed to its failure to provide access to the economy to the poorest of the poor and to uplift those who need it most.

When sex gets muddled up with unenforceable employment contracts Labour Law July 2007

The recent arbitration award of the Commission for Conciliation, Mediation and Arbitration (CCMA) in the matter of “Kylie" / Van Zyl t/a Brigittes¹ highlights an interesting dilemma: does a person who may broadly fall under the definition of an employee² enjoy the protections of labour legislation if the service being rendered is unlawful? The Applicant was referred to as “Kylie" so that her identity could be protected for various reasons, one of which was that public disclosure of her true identity could jeopardise her work prospects both within the sex industry and elsewhere.