December 2010


From My Window - December 2010 From My Window December 2010

I am not surprised to see that a call has been made for elements of the new Companies Act (71 of 2008) to be scrapped. I am surprised, however, that it has taken this long for responses of this nature to have been tabled. Probably the most significant of the sections causing concern is that which deals with reckless trading (s22). It says that companies may not trade if they are insolvent which sounds, on the face of it, eminently sensible. The problem is – as Banking Association MD Cas Coovadia told parliament – that most of the companies in this country are technically insolvent even though commercially secure. Then there's the issue of the health of CIPRO, the Companies and Intellectual Property Registration Office. Matters such as company compliance with fundamental regulatory issues are central to the proper operation of any Companies Act and, since the 2008 Act puts CIPRO at the centre of companies and IP administration, it follows that it needs to be in good order.

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Privacy matters Constitutional Law December 2010

Defence Minister Lindiwe Sisulu's refusal to provide details of President Zuma's travel arrangements “after the event" has led to a fair amount of controversy recently, particularly since these details were readily offered in the past. The Minister has classified the details of past presidential flights, claiming that divulging this information might endanger the President.

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Defamation, Dignity and Democracy: The Media Debate Constitutional Law December 2010

The past two decades have been an eventful period in the history of media freedom in South Africa. The early to mid-nineties were marked by judgements which affirmed the importance of the media in a healthy democratic state and that afforded the media increased protection as a result. Proposed restrictions on this freedom have sparked lively debate, with some labelling them as violations of the right to freedom of expression, and others declaring that the media's current licence constitutes a serious threat to many individuals' rights to dignity. How do we reconcile the apparent conflict between these rights, how are they analysed and what is the weighting to be afforded each right?

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Seize the judge not the court Intellectual Property December 2010

In a judgement handed down on November 29 2010 in the matter the Minister of Trade and Industry v E L Enterprises (193/10) [2010], the Supreme Court of Appeal considered the correct procedure to be followed in applications to confirm the seizure without a warrant of suspected counterfeit goods.

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Protecting the look and feel of a franchised restaurant Intellectual Property December 2010

The issue of protecting the look and feel of a franchised restaurant is considered in this article by having brief regard, first, to some cases in the United Kingdom and the United States, and then to the South African position.

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When ! raises a ? Intellectual Property December 2010

In the fast-paced world of today, people do not have time to read lengthy instructions or complicated brand names and, because of the multinational, multilingual mash that is today's society, the use of symbols to indicate use or origin of everything, from the green phone symbol on cellphones to the rigid male and female personas indicating restrooms, is not only increasing but necessary. Simple, bold images and logos are easily comprehended and effortlessly memorised by the human mind, which business has been exploiting for centuries in the sale of their goods and services. But, the use of a punctuation symbol as a logo?

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Jockeying for Screen Rights Intellectual Property December 2010

It is very unusual in today's multimedia society for a best-selling book to stay only that: a best seller. Book critics and media outlets seem to speculate about possible casting of famous actors and screen rights at the same time that they interview literary critics on Saturday morning shows across the world. Successfully adapted screenplays such as The Departed, The Lord of the Rings, Brokeback Mountain and Million Dollar Baby have, in the last few years, captivated audiences worldwide and generated massive hits for the studios.

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Issuing shares not fully paid-up Tax December 2010

S92 of the current Companies Act, 1973, prohibits a company, save in the context of a public offer, from issuing or allotting shares unless they are fully paid up. This position has been altered by the new Companies Act, 2008 (new Companies Act) which is due to become effective on April 1 2011.

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What role can the SADC play? Intellectual Property December 2010

As the Southern African Development Community (SADC) seeks to position itself as a conduit to promote economies of scale and contribute to the development of its member states, the importance of intellectual property (IP) as a driver for innovation, investment and thus economic activity should not be understated.

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Business Rescue Company Law December 2010

Derivative action in South Africa: s165 of the Companies Act, (71 of 2008) revokes the common law derivative action. The derivative action relates to wrongs done to the company, typically by its directors or shareholders.

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Privacy and Piracy in the digital world Intellectual Property December 2010

The advances of the digital world into society and the way in which it gathers and shares information has brought about radical changes in defining the scope of copyright protection and the manner of its enforcement.

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Grace under fire Company Law December 2010

The new Companies Act 71 of 2008 is now expected to come into effect on April 1 2011 (the effective date). Companies incorporated after the effective date of the Act will be governed not by their memorandum and articles of association as is currently the case, but by a consolidated document known as a Memorandum of Incorporation. Meanwhile, existing companies will have to consolidate their memorandum and articles of association into a single memorandum of incorporation (for convenience, reference to memorandum of incorporation shall mean the memorandum and articles of incorporation).

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Triggers for withdrawing from M&A deals Company Law December 2010

Press reports indicate that mergers and acquisition (M&A) activity in South Africa declined sharply during 2009 from its 2008 levels. This is unsurprising given the downturn in the capital, credit and securities markets around the world: acquirers are no longer able to source the funding for potential transactions on commercially viable terms; shares are a less attractive acquisition currency; and cash reserves are more valuable than ever before.

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New American guidelines on obviousness Intellectual Property December 2010

On September 1 this year the United States Patent and Trademark Office (USPTO) issued new guidelines for patent examiners to guide them when assessing obviousness in US patent applications. The aim of the guidelines is to remind examiners of the principles set out by the Supreme Court in KSR International Co. v Teleflex Inc (2007) (the KSR case), as well as to inform them of case law developments on obviousness during the past three years (since the KSR case). These guidelines should be used in conjunction with the principles set out in the Manual of Patent Examining Procedure.

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