February 2014


From My Window - February 2014 From My Window February 2014

When I last wrote this publisher's note former President Nelson Mandela was still alive. Quite properly we carry in this issue a modest appraisal of his role as a lawyer though that was, of necessity, both limited in scope and brief in time.

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Editor's Note - February 2014 Editor's Note February 2014

2014 – A new year and one that has at least two notable events; one will be celebrated and the other, commemorated. In July 1914 the First World War began; The Great War shattered the lives and dreams of millions of people. An horrendous war that swallowed young men like fodder and saw the use of chemical weapons and aerial bombings that contributed to the deaths of more than 16 million people, both military and civilian. It did not end “by Christmas" as many leaders at first believed and was considered “the end of the age of innocence."

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Potentially hazardous champertous contracts Contract Law February 2014

The action instituted by Nkosana Makate-Nhlapho against Vodacom in the so-called “Please call me" case has once again shone the spotlight on champertous contracts.

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Dykes, potholes and rolling reef Mining Law February 2014

No, this article has nothing to do with sexual preference, the state of the country's roads or the Highveld. Dykes, potholes and rolling reef are some of the underground geological features that negatively impact on a miner's ability to extract minerals. They also introduce significant safety risks to underground mining conditions.

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This is what happens when you fix what wasn’t wrong Advertising February 2014

Prior to September 2012, the Advertising Standards Authority of South Africa (the ASA) was the primary body tasked with adjudicating complaints lodged with it against advertisements promoting medicines and related health products and those containing health-related claims. This function has now been assumed by the Marketing Code Authority (the MCA), a self-regulating authority comprising pharmaceutical industry stakeholders that aims to regulate the ethical promotion and advertising of health products in South Africa.

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‘V’ for Victory for informal traders Municipal Law February 2014

During November 2013 the South African National Traders Association (SANTRA) launched a substantial application against the City of Johannesburg and the Johannesburg Metropolitan Police Department (JMPD) in respect of the conduct of the City and the JMPD in relation to thousands of street traders.

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The nanny state goes to war with Constitutionally-protected rights Consumer Law February 2014

As of December 6 this year you no longer see a nurturing mother feeding her happy baby a bottle of formula milk as an advertisement in any newspaper, magazine, on a website or on television. In fact, you will not see the names of any brand or logos of infant formula, follow-up formula or powdered milks, or feeding bottles, teats and feeding cups for infants being promoted anywhere.

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The march of the mammy state Intellectual Property February 2014

The colourful serpentine lines of French painter and sculptor, Guy de Rougemont, has become the latest commissioned artwork to adorn the label of Château Mouton Rothschild's 2011 Pauillac first growth.

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Moribund patenting industry now a national emergency Intellectual Property February 2014

Are we hiding our ingenuity or advertising our lack of it ? The activity at a country's patent office can be indicative of both the research and development activity of its local industry and the perception held by foreign companies of the country's receptiveness to novel or emerging technologies. In this regard one must look at the patent application trends of South African entities and of foreign entities.

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Creating annuity streams through IP licensing Intellectual Property February 2014

Globalisation in the past century has led to the growth and expansion of businesses at an unprecedented rate. Despite this, the exploitation of intellectual property (IP) as a means of creating a new revenue stream and increasing asset value continues to be a missed opportunity.

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In racemes veritas Intellectual Property February 2014

While trade mark infringement cases are not unusual, there are few decisions in which the central issue, which required determination was whether the respective goods involved were so similar that it would gave rise to a likelihood of deception or confusion. It is for this reason that the decision in Mettenheimer & Another v Zonquasdrif Vineyards CC & Others ([2013] ZASCA 152) deserves consideration.

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Protecting the get-up of a product and its benefits Intellectual Property February 2014

S2 of the Trade Marks Act (194 of 1993) defines a mark as “any sign capable of being represented graphically including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned." A trade mark is defined as a mark used or proposed to be used in relation to goods or services for the purpose of distinguishing those goods or services from the same kind of goods or services of others in the trade.

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Brand protection advisable in sub-Saharan countries Intellectual Property February 2014

According to a recent report,1 the population in sub-Saharan Africa, which currently stands at approximately 1.1bn, could double by the year 2050. Due to its growing population, the region presents huge opportunities for new investments and for the sale of goods to a growing consumer base.

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Trusts – much ado over nothing (so far) Financial Law February 2014

If the past year has taught us anything it is that the safer option is to believe nothing you hear secondhand and only half of what you see until something actually comes of it. In the legal community everyone has been up in arms, with some proclaiming the end of trusts and others fighting tooth and nail against reform.

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In the battle against white collar crime, attorneys can bring plenty fizz to the party Forensics February 2014

Not that long ago, in the time of the “Big 6" accounting firms, anyone of those firms in the USA employed more lawyers than all the lawyers in the top law firms in New York City put together.

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