Without Prejudice - Volume 15, Issue 9, October 2015

Efficient productivity, a strong currency (and no, not so strong that exports suffer), a lack of corruption, enthusiastic foreign investment, a confident business sentiment and sensible planning all mean increased job creation and low crime levels. Do we have this - no. The official police stats show crime levels up. Would we blanche further if we could see unofficial stats? Why does the police service do its own audit? Our population is around 54m and nearly 18 000 people were murdered in the year to March. So normal has this violent crime become that a mere fraction of those deaths made it to the newspapers at all, never mind making front page news.

For those of us who worked in advertising law in 2010, the arrival of any major sports event is now inevitably associated with thoughts of ambush marketing. And as the Rugby World Cup 2015 arrives, there is no doubt that this rugby mad nation may find marketers trying to push the boundaries.

On 17 June 2015, the Competition Appeal Court of South Africa (CAC) overturned the Competition Tribunal's decision which found Sasol Chemical Industries Limited guilty of excessive pricing.

With trade marks it's very much about getting in early, and then marking out and fiercely protecting your territory. So it may seem odd that in this hard-nosed field notions of morality and good faith play any role. But they do.

The Copyright Amendment Draft Bill (GG No 39028,27 July 2015) is by all accounts a grave misfortune and a study in amateur law-making. Enough has been said on this point to make it clear that the DTI has tripped at the first hurdle and that a re-evaluation is the only hope of achieving a grade that would admit it to the Introduction to Copyright Law 101 examination.

The Trademark Clearing House (TMCH) is a centralised repository service for the validation and protection of trade marks. The TMCH is operated by ICANN, which is in the process of launching some 1 900 new generic top level domains (gTLDs). The gTLDs that have been launched to date include world, business, network, software, auction, property and investments, to name a few. A bank, for example, may want to register its trade mark under the gTLD bank. There may also be several additional relevant gTLDs, such as finance and loan.

In the article published in without prejudice in September (DTI dishes up a hopeless curate's egg - p 46) and on the Stellenbosch University website (http://blogs.sun.ac.za/iplaw/2015/08/24/unscramblingthe- curates-egg-full-review-of-the-copyright-amendment- bill/), the Copyright Amendment Bill published in Government Gazette (39028, 27 July, 2915), was described as a curate's egg. The view was expressed that the Bill could not be cured by piecemeal amendments, and that it was necessary to go back to the beginning, decide rationally what is actually wanted and warranted, and then re-draft it afresh. We stand by and reiterate this view.

As any taxpayer and tax adviser knows, the pinnacle of a successful (and obviously legitimate) tax plan is an outright saving of tax. But if tax cannot be saved, a good second prize is a deferral of tax. And the longer the deferral, the greater the benefit, which is why one of the mantras of tax planning is "tax deferred is tax saved". (Of course, SARS is well aware of this and is always on the lookout to prevent it, whether legislatively or by interpretation of the facts or law.)

The concept of an "independent non-executive director" is firmly entrenched as an element of good governance in corporate South Africa.

We have in the recent past received queries from some of our clients on the interpretation of s60 of the Companies Act (71 of 2008) and, more specifically, on when a written resolution as contemplated in that section becomes effective. This is our view on the interpretation of s60.

The question of retrospective effect of corporate activities performed during the period of deregistration of a company appears to have been a very challenging issue under the Companies Act (71 of 2008). This article discusses the effects of the deregistration and reinstatement of companies, and how the Supreme Court of Appeal (SCA) interpreted the relevant provisions of the Act governing the reinstatement of the companies in the case of Newlands Surgical Clinic v Peninsula Eye (086/2014) [2015] ZASCA 25 (20 March 2015).

Legal professional privilege is a topic that gives rise to debate, as it is not always clear what will be covered by the protection afforded and who can claim such protection. This has led to matters being brought before a number of international courts, specifically in the realm of tax advice.

Proving the negligence of a medical professional can present many challenges to a plaintiff. From the outset, in most claims of professional negligence the professionals are at an advantage due to their qualifications, experience and knowledge. Lay people do not generally have the same level of understanding. When patients are under general anaesthetic, they are at a further disadvantage as they have no recollection of events that caused injury.

Imagine that you are a lawyer in one of South Africa's tiny platteland towns - Smith field, for example, where I live. You practise on your own, and though you have an interesting range of cases, it's often hard to manage when something out of the ordinary pops up. How will you know what the courts have said about the issue? How can you advise your client the best strategy to follow?

A "fishery" is defined by the Marine Living Resources Act 18 of 1998 as "one or more stock or stocks of fish or any fishing operations based on such stocks which can be treated as a unit for purposes of conservation and management, taking into account geographical, scientific, technical, recreational, economic and other relevant characteristics".

In the previous article "The business of law" (August2015), I analysed the dichotomy between the interests of the individual practitioner and the law firm. This dichotomy (as in any industry) is an important concept. The interests of both the individual and the firm need to converge;without this, the firm's vision cannot be achieved.

I applied for articles in 1983, to start in January 1984. It was a different world then. There was no internet and no law firm websites, and as a group of fairly uninformed Wits Law School students, we relied on very anecdotal and no doubt incorrect information about the opportunities available to us, as well as using the Hortors directory of law firms to identif your prospective employers and find their contact details. No law firm was running any vacation programmes, nor did there seem to be any visible recruitment efforts on campus.

In 2014 we introduced "So you want to be a lawyer" - a featured aimed at students who want to be lawyers but don't really know what the procedure is to secure articles. Time waits for no man (read women in that). Another year has flown but despite the ever increasing ability to attain knowledge, some things remain the same, probably because they are seemingly simple and everyone "knows" the answers. But assuming is a dangerous thing, and not everyone knows the answers and not everyone thinks to ask.

Social media usage is growing rapidly in South Africa. There are reportedly 11.8 million Facebook users, followed by YouTube with 7.2 million users and Twitter with 6.6 million users. Social media does not come without its risks and, unfortunately, one of the most significant risks is the threat to privacy. The right to privacy, enshrined in the Constitution, aims to protect the dignity of all South Africans. This right also protects reputation, honour and identity. However, Justice J Ackermann of the Constitutional Court held that "privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly".

One of The Best People I Know asked me to write something about this not being true:

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If you don't get great marks and big firm articles upfront, then your career is over before you have even started. I got great marks but I didn't get big firm articles. I got small firm articles.