October 2007


From My Window - October 2007 From My Window October 2007

A couple of curious events took place over the last month. The first was when the tiresome Health Minister Manto Tshabalala- Msimang took on the Sunday Times in a case that ended up in a one-all draw. The second was the suspension by President Thabo Mbeki of Vusi Pikoli, the National Director of Public Prosecutions, an action that, predictably, seized the legal community by the scruff of the neck and attracted international attention.

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Better writing would help Letters October 2007

Better writing would help

Sir

Your review in the August 2007 issue of without prejudice of Bob Woodward's book “State of Denial" makes interesting reading.

You criticise Woodward's use of language. In her autobiography Katherine Graham reports that she put Carl Bernstein with Woodward because Woodward was not a good enough writer.

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Enforcing debt repayments will become cumbersome and prolonged Consumer Law October 2007

One of the most significant impacts of the National Credit Act involves the process of debt enforcement by credit providers. The NCA has served to curtail severely the ability of a credit provider to enforce its rights under a credit agreement.

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The wheels go round exceeding slow… The Law October 2007

ALL those hopeful headlines make depressing reading now. “Victory at last for Alix Carmichele" – November 2003. “Life returns to normal for Carmichele after Cape High Court finds in her favour" – May 2002. And, the most poignant of the lot, this 2003 paragraph, celebrating her umpteenth legal battle: “Alix Carmichele has won a battle for the women of our time and scored a victory for the daughters of tomorrow. Her legal team has fought the final battle in Carmichele's seven-year fight against the people who allowed her attacker, a known sex offender, to go free."

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Resolving jurisdictional rights The Law October 2007

The restitution of rights in land to persons or communities dispossessed of rights after June 19 1913 as a result of past racially discriminatory laws or practices, is extremely important. Among other important functions, the Commission on Restitution of Land Rights established in terms of the Restitution of Land Rights Act, 1994 must be clear on what matters are required to be decided by the Land Claims Court. It does not follow as a matter of course that the Land Claims Court has jurisdiction in respect of all matters arising pursuant to restitution in terms of the Restitution Act.

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Using arbitration to reduce court caseloads The Law October 2007

An exciting legal hybrid is brewing in the mother city. Since 1998 the Arbitration Forum has been easing the load on the Cape High Court's congested roll as part of a pilot project to assist claimants for the Road Accident Fund (RAF). Though this project was terminated in 2005 pending a decision for national rollout, the Arbitration Forum has decided to join forces with FutureLAW in an effort to stimulate the growth of alternative dispute resolutions in the region.

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Instant justice, cyber style – “artificially intelligent” judges The Law October 2007

The judiciary is in the early stages of transformation in which artificially intelligent (AI) technology will make the judicial process faster, cheaper and more predictable without compromising the integrity of judges' discretionary reasoning.1

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Just how far do the SA Revenue Services’ VAT powers stretch? Tax October 2007

The Value-added Tax Act, 1991 bestows sweeping powers on the SA Revenue Service to collect funds from debtors or other persons holding money on behalf of taxpayers liable for Value-Added Tax.

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Yet another legislative mess Tax October 2007

Ill-considered amendments made to income tax laws almost two years ago hold potentially disastrous consequences for shareholders of any company distributing certain capital profits in anticipation of liquidation, winding up or deregistration. Though these consequences were neither foreseen nor intended by the legislature, they have yet to be corrected.

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Trust benefits and tax exemptions Tax October 2007

The “conduit principle" in relation to the taxation of trusts is well-established. It provides that where trust income or capital that has been vested in beneficiaries it is taxed not in the hands of the trust, but rather in those of the beneficiaries.

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Dealing with the disposal by Public Benefit Organisations of capital assets Tax October 2007

Public benefit organisations (PBO) previously enjoyed complete exemption from income tax and, therefore, from capital gains tax where the PBO only engaged in qualifying public benefit activities. The exemption from CGT was dealt with under para63 of the Eighth Schedule to the Act, which applied to exempt persons. Under this para, PBOs disregarded all capital gains or losses on the disposal of an asset on the basis that its gross income of whatever nature was exempt from income tax in terms of s10 of the Act.

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Balancing individual rights with those of public interest Media Law October 2007

At the end of August, the high court handed down judgement in one of the key media cases of the year, the privacy case brought by the Health Minister, Manto Tshabalala- Msimang, against the Sunday Times.

The litigation followed the publication by the Sunday Times of an article entitled “Manto's Hospital Booze Binge" in which it was claimed that the Minister's medical records of her two hospital stays at the Cape Town Medi Clinic in 2005 revealed the amounts of alcohol she had consumed both before and after her shoulder surgery.

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Whatever else, pick a trademark for China with care Intellectual Property October 2007

China is regarded as the largest emerging market in the world today. Given its population of 1,3 billion – all potential consumers – high economic growth rate and cheap labour, it is not surprising that it has become a sought after foreign investment area. This includes South African exporters. With the Beijing Olympic Games just around the corner, this economic pressure cooker is about to explode.

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Copyright and employees – King flies into a storm Intellectual Property October 2007

The general rule relating to ownership of copyright is that the author of a work is also its first owner. The Copyright Act (98 of 1978), however, provides for certain exceptions. One is in s21(1)(d) which holds that where a work is made in the course of the author's employment with another person under a contract of service, that other person (the employer) shall be the owner of any copyright subsisting in the work.

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Protecting designs – the devil’s in the detail Intellectual Property October 2007

Necessity may well be the mother of all inventions, but sometimes the temptation to copy another person's design can be dangerously overwhelming. It is important, therefore, for businesses to know the parameters of registered design protection, both for designers wishing to protect your work as well as for businesses possibly considering utilising another person's design.

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