Without Prejudice - Volume 16, Issue 5, 2016
Volume 16, Issue 5, 2016
Source: Without Prejudice 16 (2016)More Less
The last of the Top Student features for 2016 appears in this issue of without prejudice. Many of them have in common with the Class of 2006 the desire to set off on the road less travelled by LLB graduates. What they do not have in common is jobs abroad - perhaps a sign of the global economy.
Author Carmel RickardSource: Without Prejudice 16, pp 6 –7 (2016)More Less
Obviously the people living in the platteland are a little out of touch with the real world, so it came as something of a shock to Bra Jakkals and me, living in the middle of nowhere, south-east Free State, when we read a judgement recently about a case of alleged company hijacking.
Author Sadulla KarjikerSource: Without Prejudice 16, pp 8 –10 (2016)More Less
The recent decision involving Moneyweb and Media24 (Moneyweb (Pty) Limited v Media 24 Limited & Another  ZAGPJHC 81) is an important one for copyright lawyers in South Africa. It is the first time that two provisions relating to news reporting of the Copyright Act, 1978 have been judicially considered, namely, s12(1)(c)(i) and s12(8)(a). In fact, it is the first time that the application of the fair-dealing provision, s12(1), has received any judicial consideration, whether in the context of news reporting or otherwise.
Author Meghan DormehlSource: Without Prejudice 16, pp 11 –12 (2016)More Less
Makate v Vodacom (Pty) Ltd (CCT52/15)  ZACC 13 (26 April 2016) has garnered enormous media attention in recent months. This case, referred to as the "Please Call Me" case, provided the public with a rare opportunity to grapple with intellectual property, the laws which govern it and the implications for persons wishing to preserve ideas in the future. The media fixated upon the "David v Goliath" aspect, where a man who had an idea for a new product went head-to-head for nearly a decade with South Africa's telecommunication giant and ended up in the highest court in the land, the Constitutional Court. But what can be taken from this case from an intellectual property perspective?
Author Nola BondSource: Without Prejudice 16, pp 14 –15 (2016)More Less
Author Lisa LumleySource: Without Prejudice 16, pp 16 –17 (2016)More Less
The protection of shapes is inevitably a controversial issue in intellectual property law. In the law relating to unlawful competition, one may find protection for the shape of a braai or, in the famous case of Schultz v Butt 1986 3 SA 667 (A) (the Schultz case), protection for the shape of a boat. One could on the other hand find the denial of protection to the shape of boats in Van der Merwe and Another v Els and Another 2008 BIP 404 (C) and Heyneman v Waterfront Marine CC  2 All SA 382 (C), two (not so famous) cases, or another ruling in Premier Hangers CC v Polyoak (Pty) Ltd 1997 1 All SA 134 (A) (the Premier Hangers case) virtually neutralising the Schultz case.
Author Jaco MeyerSource: Without Prejudice 16, pp 18 –19 (2016)More Less
Author Gail SchimmelSource: Without Prejudice 16, pp 20 –21 (2016)More Less
The question of whether or not the Advertising Standards Authority of South Africa (ASA) has jurisdiction over non-members has, in recent years, been a contentious one. My own view has always been that, while the ASA is a creature of contract, it has a contractual duty to its members to make decisions on complaints against non-members. While the non-member may choose to ignore the decision, the member may apply it.
Author Patrick BracherSource: Without Prejudice 16, pp 22 –23 (2016)More Less
Fingerprint ID on smartphones may have less protection
Top attorney litigator sues mother for defamation
Judge serves time with accused
Court issues three opinions and overrules them the same day
Lawyer withdraws claim for lunch without soup
New jury required after juror questions lack of diversity
Prince estate required to value publicity rights
Drunken driving in one's own driveway is not a crime
Supreme Court refuses to hear challenge on life sentence for pot possession
Lawyers face ethics probe for violating Facebook privacy
Women lawyers at Wall Street firms are rarely partners
Amazon must refund parents for app purchases by children
Nine years in prison and $1.69m debt for hacking computer system
Journalist gets two years for helping Anonymous alter online story
Cell-site data didn't violate Fourth Amendment
Six months for stealing two paintbrushes and six months for contempt
Author Mmaphuti MorolongSource: Without Prejudice 16, pp 26 –27 (2016)More Less
Source: Without Prejudice 16, pp 28 –30 (2016)More Less
While no-one disputes that the advent of the digital age has meant that the world has become a much smaller place, the reach of the law must increase in reaction. Consumers are ever more easily able to gain remote access to goods and services (including online digital media and content services) without physical borders or long distances impeding the conclusion of contracts or delivery of the goods and services.
Author Andrew KnightSource: Without Prejudice 16, pp 30 –32 (2016)More Less
The OECD's Common Reporting Standard (CRS) is about to hit the world. While it is modelled on the US Foreign Account Taxation Compliance Act (FATCA), the CRS has a far wider impact in terms of the number of countries that will receive information about their taxpayers and, in many cases, the information exchanged goes beyond what governments require to ensure their taxpayers pay all due taxes. We also focus on the potentially invasive nature of the CRS and the threat that this presents in terms of an individual's right to privacy and security.
Author Pranith MehtaSource: Without Prejudice 16, pp 32 –33 (2016)More Less
The South African Revenue Service (SARS) initially introduced a tax amnesty and exchange control amnesty that ran from June 2003 until February 2004. The amnesty included a waiver on all interest and exchange control penalties prior to 28 February 2003, as well as a waiver on all taxes due prior to 1 March 2002.
Author Gizela ParkerSource: Without Prejudice 16 (2016)More Less
Over the past few years, unmanned flying machines, variously described as Remotely Piloted Air Systems (RPAS), Unmanned Aerial Vehicles (UAV), Unmanned Aerial Systems (UAS), or more commonly known as "drones", have mainly been used in targeted killings, surveillance or gathering intelligence. Recently, innovators have expanded their use to applications in the commercial sector that could lead to revolutionising industries like agriculture and urban development.
Author Keshia De KlerkSource: Without Prejudice 16, pp 38 –40 (2016)More Less
It is a well-established rule of Company Law that directors have a fiduciary duty to exercise their powers in good faith and in the best interests of the Company. They may not make a secret profit or otherwise place themselves in a position where their fiduciary duties conflict with their personal interests (Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 169 at 177).
Author Bouwer Van NiekerkSource: Without Prejudice 16, pp 42 –43 (2016)More Less
Section 135(3) of the Companies Act, 2008 deals with, amongst others, a business rescue practitioner's (BRP) claims for remuneration and expenses. More specifically, it stipulates the preference that such claims will enjoy over other claims in business rescue proceedings. In turn, s135(4) stipulates that "[i]f business rescue proceedings are superseded by a liquidation order, the preference conferred in terms of this section will remain in force, except to the extent of any claims arising out of the costs of liquidation".