June 2008


From My Window - June 2008 From My Window June 2008

It is said that it's always darkest before dawn. If this means the long night of our discontent is drawing to a close, it is fervently to be embraced. We have had a terrible time of it recently. The country has had to grapple with a litany of unprecedented disasters. The farrago that is Eskom has produced a withering assault on its management by the regulator; rolling load-shedding has sent companies reeling in dismay, notably those involved in mining and manufacturing.

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Good ship RSA in trouble The Law June 2008

The Rule of Law is a formula employed so frequently that it is in danger of being debased. And defining what it means has occupied academics for decades. At bottom, however, it is based on the premise that no-one is above the law and, conversely, that everyone is subject to the law. It is this meaning that is encapsulated in the English King John's capitulation at Runnymede (1215).

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Why should the State be beyond the reach of the law? The Law June 2008

The case of Nyathi v MEC of Health, Gauteng and Department of Justice is currently before the Constitutional Court. It raises significant issues that concern the rule of law, compliance with court orders, rights of access to courts, equality before the law, and the utilisation of state assets.

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Counsel’s fees in magistrates courts The Law June 2008

Counsel fees in magistrates' courts have been a contentious matter over recent months. There is a continuing tendency by magistrates to hand down judgements which include the words “The cost is to include the cost of counsel as per the Bar Council parameters"

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Certainty in tax law: Humpty Dumpty and all the king’s taxmen Tax June 2008

All tax is legalised theft; it is the expropriation by the state of the hard-earned money of its citizens.

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Section 45: The good, the Treasury, and the unknown Tax June 2008

The 2008/9 Budget has catapulted private equity transactions to the fore, specifically focusing on transactions which are concluded utilising the intra-group provisions of s45 of the Income Tax Act.

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Ambushed by a ticket? Intellectual Property June 2008

Ambush marketing is a multi-legged creature. It occurs whenever a marketer attempts to use an event to promote his brand without incurring the usual sponsorship costs. It can happen when a marketer implies that it is the sponsor of an event, without having paid the rather hefty fees that official sponsors pay. It can also happen when a marketer uses the event as a marketing opportunity – for example, if it places advertising around the stadium or refers to the event in advertising without actually saying that it is a sponsor.

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Trademark translation – a literal problem Intellectual Property June 2008

(In this article, Mandarin is presented in both the simplified and traditional textual forms)

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World Cup victory for Heineken Intellectual Property June 2008

With Rugby World Cup fever in the air it wasn't only the rugby fields in France that saw competitors fighting it out for top spot. South African Breweries (SAB) decided to go the "battlefields" itself by referring a complaint against a television commercial for Heineken Beer to the "referee" of the Advertising Industry (the Advertising Standards Authority).

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Where danger lurks: buying property at a sale in execution Property Law June 2008

If you are buying property at a sale in execution, be acutely aware of the risk, particularly where the execution debtor whose property is being sold is a company, rather than an individual.

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What matters is who induced the sale Property Law June 2008

Does an estate agent have a right to commission on a property he is mandated to sell, if it ends up being sold to the existing tenant who takes advantage of the first right of refusal clause in his lease? Or, in the likely words of a landlord – why should an agent benefit in circumstances when it was not the effective cause of the sale to the existing tenant.

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Filling in the blanks Property Law June 2008

It is well known that the alienation of land will not be of “any force or effect unless it is contained in a deed of alienation signed by both parties thereto or by their agents acting on their written authority" according to s2(1) of the Alienation of Land Act, 1981.

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All at sea over fair dismissals Labour Law June 2008

In the wake of the Constitutional Court judgement in Sidumo & Another v Rustenburg Platinum Mines & Others [2007] 12 BLLR 1092 (CC) lawyers, I.R. practitioners, trade unions and employers have scrambled to understand the new test and requirements, not only to dismiss an employee fairly, but to bring a successful review application once the matter has been determined in the Commission for Conciliation Mediation and Arbitration.

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Putting the brakes on conciliation hearing dismissals Labour Law June 2008

The recent decision by the LAC in Premier of Gauteng & others v Ramabulana NO & others [2008] JOL 21316 (LAC), means that a conciliator may not dismiss a dispute referred to the CCMA or a bargaining council merely because the referring employee failed to make an appearance at the conciliation hearing.

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