July 2008


From My Window - July 2008 From My Window July 2008

An article in the June issue of without prejudice dealt with the principle of the rule of law and the problems faced by the Judicial Services Commission and Cape Judge President John Hlophe (pp4-6). At bottom, the rule of law means that no-one is above the law, and that everyone is presumed innocent until proven otherwise. In the case of Zimbabwe, however, a country now on the verge of catapulting into horror, its former president Robert Mugabe has pronounced himself responsible to no-one other than God. This presumes God is the slightest bit concerned with him.

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Economic uncertainty, falling confidence, constitutional quicksand Property Law July 2008

"If the country is too small, who has the greater right; the true owner or the foreign intruder?"

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Sectional title trustees and the legislation Property Law July 2008

Every member of a body corporate, but most especially its trustees, must ensure that they are familiar with the provisions of the Sectional Titles Act (95 of 1986) and the management rules which regulate the affairs of the body corporate.

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Belt and braces works better Property Law July 2008

The seller of an expensive property was recently reminded by the Supreme Court of Appeal that you must ask for what you want in an agreement and not try to impose unreasonable requirements afterwards.

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Training estate agents: is this a bridge too far? Property Law July 2008

New regulations concerning the required standards of training and education for estate agents came into effect on July 15 2008. Any person who now decides to embark on a career in real estate will discover that the barriers to entry into the industry have increased significantly.

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Even kings have to redeem their debts The Law July 2008

A curious article appeared in the British press recently. It was reported that on Tuesday, June 10 2008, Prince Charles paid off a debt of £453 owing by King Charles II (his ancestor) to the Clothiers Company in Worcester. The original debt arose in 1651 when the king commissioned uniforms for his troops to fight the republican forces of Oliver Cromwell at the Battle of Worcester that same year. Prince Charles was quoted as saying: “I suspect that it will not have escaped your notice, however, I am resisting the immense temptation to pay the debt with full interest. I was not born yesterday."

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Pro Bono – prevention is better than cure The Law July 2008

During May 2008 approximately 70 000 foreigners in South Africa were displaced by xenophobic violence. Seventy two people were killed and 670 injured.

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Those new reportable arrangements rules – is this advance notice or self-incrimination? Tax July 2008

With effect from April 1 2008 the new reportable arrangements rules, found in s80M to s80T of the Income Tax Act came into effect. Concurrently, the existing reportable arrangements rules found in s76A of the Act ceased to have any further effect.

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Regulating tax practitioners Tax July 2008

In recent years the SA Revenue Service (SARS) has taken a number of steps aimed at improving the compliance culture and reducing the tax gap in South Africa. As far as tax practitioners are concerned, a significant problem for SARS appears to be the fact that no minimum standard in respect of qualifications or experience is required and that not all tax practitioners are subject to a code of professional conduct.

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Is this the end of the road for benefits with no value? Tax July 2008

The judgement recently delivered by Erasmus J, President in the Cape Tax Court (Case 12244) comes hot on the heels of the highly publicised case of CSARS v Brummeria Renaissance (Pty) Ltd 2007 (6) SA 601 (SCA) (Brummeria). The judgement by Erasmus J relies strongly on the conclusion reached in Brummeria that a right given will always have a money value and the fact that the right cannot be alienated will not reduce the value.

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Descriptive trademarks Intellectual Property July 2008

The registration of trademarks is governed by the provisions of the Trade Marks Act 194 of 1993. The important criterion for registration is whether a mark is capable of distinguishing the goods of one trader from those of another (s9(1)).

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The use of acronyms in South African trade mark law Intellectual Property July 2008

In A&D Spitz (Pty) Limited v Turbek Trading CC and The Registrar of Trademarks (May 12, 2008), the high court ruled that the respondent's use of the KG trade mark amounted to passing off of the well known KURT GEIGER “KG" initialism. This was held to constitute an infringement of the applicant's KG registration in class 9. In addition, the respondent's KG registrations in class 25 and 35 were ordered to be removed from the Register.

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Exhaustion of rights and the conditional sale of protected articles Intellectual Property July 2008

The doctrine of exhaustion of rights or “first sale" is usually applied to prohibit a proprietor from imposing restrictions regarding the onward sale of an article that is the subject of a patent or registered design, where a party has purchased that article lawfully from the proprietor or his authorised agent. The basis of the doctrine is that the sale of an article does not grant the purchaser any rights in the intellectual property related to the article but rather extinguishes the proprietor's entitlement to control the movement of an article embodying that intellectual property, after the article is first sold.

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Yet more inconsistencies and contradictions Medical Law July 2008

In South Africa, clinical research on humans to establish the efficacy or safety (or both) of new drugs (and new indications of existing drugs) is governed by legislation, and by international and local principles and guidelines for medical and research ethics.

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Of suretyships and principal debtors … definitive court ruling Contract Law July 2008

Suretyships will be found invalid if they fail to record the identity of the principal debtor. This was the clear conclusion to emerge from Wallace, William Francis v 1662 G & D Property Investments CC.

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