October 2011


From My Window - October 2011 From My Window October 2011

This country's labour laws are inflexible and run against the best interests of workers and employers. Providing someone with permanent employment in South Africa is a matter that requires profound thought and not a little courage. Why? Because if circumstances require that individual to be dis- missed the process is overweight with regulation and costs. In August the International Monetary Fund said the South African labour market had failed the unemployed and was effectively "broken." According to the IMF the labour policies and legislation we have adopted has inhibited all those devoutly expressed desires by government to reduce our colossal unemployment; without labour reform, the economy would have to grow at between 6% and 7% every year if we are to meet the goal of creating five million new jobs in the next decade.

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Editor's Note - October 2011 Editor's Note October 2011

The opportunity to be part of a new magazine is rare and even more seldom is it that the publication is a “one of a kind." I was extremely fortunate to have been invited by David Gleason to be a part of the without prejudice team at its inception. We started without prejudice in October 2001 and you will see from the copy of that issue that the magazine had a very different look. While this may have changed over the years what has not changed is our aim to produce a magazine of note, one that provides current and relevant information written in a way that does not make your eyes glaze over and your mind slip into neutral. In this fast-paced world knowledge is essential and accurate information vital for informed opinions. Our objective is to provide that to our readers through articles that are concise, critically analytical and, at the same time, interesting.

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Star Wars Intellectual Property October 2011

UK Supreme Court confirms its jurisdiction over foreign IP infringement The Supreme Court of the United Kingdom, in the matter of Lucasfilm Limited and others (Appellants) v Ainsworth and another (Respondents) [2011] UKSC 39 (the Stormtrooper case), has recently confirmed that UK courts have jurisdiction, in certain circumstances, to rule on the infringement in a foreign country of foreign intellectual property rights where the infringer resides in the United Kingdom.

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Innocence to be ignored m’lud? Intellectual Property October 2011

The UK courts recently handed down three important copyright judgements, Newzbin; Lucasfilm and The Newspaper Licensing Agency Limited and others v Meltwater Holding BV and others. As South African copyright law is very similar to UK copyright law, these judgments are significant. Of the three cases, I'll limit myself to commenting on the third, an unreported judgement of the Court of Appeal (July 27 2011). This is probably the most interesting.

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Whose red is it anyway? Intellectual Property October 2011

Recent news reports covered a court case in America relating to the colour of the soles of high-heeled shoes for women. Shoe-wear designer Christian Louboutin is said to have registered the colour “red" for the soles of shoes for which his brand is known and which he claims he first produced in 1992 (for a depiction - fashionablyjust.com). Yves Saint Laurent was said to have infringed Louboutin's trade mark by using red on the soles of YSL shoes.

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Where personality and patrimony converge Intellectual Property October 2011

In the case of Julia Basetsana Kumalo v Cycle Lab (Pty) Limited [South Gauteng High Court, Johannesburg, Case No. 31871/2008], the court explored the interesting dynamic that exists between the infringement of a personality right and a related claim for patrimonial loss.

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Time to pay for play Intellectual Property October 2011

On June 25 2002, the Copyright Amendment Act (9 of 2002) and the Performers' Protection Amendment Act (8 of 2002) respectively amended those acts by introducing needle-time rights. The term “needle-time rights" refers to the right of an owner of a sound recording (embodying a musical work) and the performer of the musical work, to receive a royalty in respect of the broadcast, or performance, of that sound recording.

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The impact of broccoli and tomato Intellectual Property October 2011

The South African Patents Act s25(4)(b) states that: "A patent shall not be granted for any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a microbiological process or the products of such a process."

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The dog that caught the bus Anti-Corruption Law October 2011

What does an old dog, who has been chasing a bus for years, do when he actually catches it? Not an easy question, especially when the chase lasts from 2008 to September 2011. The temptation is to cock a leg at the nearest tyre and retreat into the long grass to recover from the exertions of the chase. But “lawfare" is a demanding mistress and her pound of flesh has not yet been exacted in full when it comes to the notorious arms deals.

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Squaring up for government tenders The Law October 2011

This is a follow-up to my earlier article, "Preferential Procurement: urgent legislative reform required" (without prejudice September 2010 p41), which addressed the implications of Sizabonke Civils CC t/a Pilcon Projects v the Zululand District Municipality 2010 JDR 0565 (KZP) (Sizabonke).

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Setting up a catch-22 Competition Law October 2011

The business environment has experienced major legislative changes over the past few years, most notably, the enactment (and confusion) of the Companies Act (71 of 2008 (the Companies Act)) and the passing of the Competition Amendment Act (1 of 2009 (the Amendment Act)), which will come into effect on a date still to be proclaimed.

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Class actions – then and now Litigation October 2011

Ten years ago I wrote an article Class actions - joining the world for without prejudice Much has changed since then.

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Personal liabilities Company Law October 2011

A striking feature of the Companies Act, 2008, is the requirement that the board of directors apply a solvency and liquidity test at prescribed times, such as when the company makes a distribution.

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Shifting mindsets Company Law October 2011

With the introduction of the new Companies Act (71 of 2008), there has been a flurry of new legal terminology. "Business rescue practitioners," "post commencement finance," "business rescue plan," "moratorium on creditors' claims" and "cram down on dissenting creditors" are all part of the new vocabulary that is changing South Africa's legal landscape, particularly the insolvency field.

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The Social and Ethics Committee Company Law October 2011

The Companies Act No. 71 of 2008 (Companies Act), which became effective on May 1 2011, requires certain companies to appoint a social and ethics committee and stipulates the rights and functions of that committee. This is in line with latest governance trends and the focus of the King Report on Governance, 2009 (King III) on sustainability, ethics and sustainability as some of its main themes.

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