Without Prejudice - Volume 9, Issue 4, 2009
Volume 9, Issue 4, 2009
Author David GleasonSource: Without Prejudice 9 (2009)More Less
I am constantly taken aback by the laborious, frequently flawed and frankly dishonest rulings handed down by the courts. In one such case, reported in this issue (see Why bother to have rules? Petra Krusche, p21/22), the Competition Tribunal agreed that summonses issued by the Competition Commission against milk producers (collectively called Woodlands) were void by virtue of vagueness. As Krusche reports, Woodlands complied with the void summonses under protest: it had handed over documents demanded by the Commission and had permitted its employees to be subjected to interrogation.
Author Owen DeanSource: Without Prejudice 9, pp 4 –5 (2009)More Less
The honour of scoring the first goal in the 2010 Soccer World Cup has gone to FIFA. In the contest between FIFA and ambush marketers FIFA has shot into an early 1 - 0 lead. In the first encounter FIFA put a rocket past the defence of Eastwood Tavern in the opening exchanges. In so doing FIFA has shown its supporters and opponents alike what it is made of and what it can do.
Author Natasha OctoberSource: Without Prejudice 9, pp 6 –8 (2009)More Less
Under normal patenting procedures, a patent application should be rejected in cases in which information regarding the invention has been disclosed publicly. Therefore, in an effort to protect and avert groundless patenting leading to commercial exploitation of traditional medicines inherent to India, the Indian government recently permitted access to its Traditional Knowledge Digital Library (TDKL), a unique database that houses ancient texts and methods, to examiners at the European Patent Office (EPO). This initiative came into play after the startling discovery by scientists in Delhi of the extent of "bio-prospecting" of natural remedies by foreign countries.
Author Dana KretschmerSource: Without Prejudice 9, pp 8 –9 (2009)More Less
On July 20 2007, The Draft Regulations under the Foodstuffs, Cosmetics and Disinfectants Act (54 of 1972) relating to the labelling and advertising of foodstuffs and their accompanying Guidelines, were published. The Regulations and Guidelines were then reconsidered in October 2007 after industry, consumer groups and food manufacturers submitted their objections and recommendations to the Department of Health.
Author Heather IrvineSource: Without Prejudice 9 (2009)More Less
The Competition Commission has published a guideline which indicates that it may require notification of all small mergers in which any of the parties (or firms within their group) are either subject to an investigation by the Commission or are respondents in prohibited practices proceedings before the Competition Tribunal, at the time of entering into the transaction.
Author Jocelyn KatzSource: Without Prejudice 9, pp 16 –18 (2009)More Less
Given the state of relative infancy of current South African Competition Law, despite great strides made in terms of certain issues, a constant challenge for South African competition lawyers and regulators alike is the assessment of commercial activity for which there is little or no precedent.
Source: Without Prejudice 9, pp 19 –20 (2009)More Less
S12 of the Competition Amendment Bill1 contains one of the most hotly debated amendments to the existing South African competition law regime. The proposed inclusion of s73A of the Competition Act will introduce personal criminal liability for managers and directors of firms found to have engaged in a prohibited practice in terms of s4(1)(b)3 of the Competition Act. However, concern surrounding the constitutional validity of such a provision has generated considerable unease, and President Kgalema Motlanthe has refused to sign the proposed amendments into law.
Author Petra KruscheSource: Without Prejudice 9, pp 21 –22 (2009)More Less
In an interlocutory application brought by Woodlands and Milkwood (collectively Woodlands) before the Competition Tribunal against the Competition Commission in the ongoing dairy / milk case, Woodlands challenged the validity of document summonses issued by the Commission against it under s49A of the Competition Act. The Commission had interrogated employees of Woodlands and obtained certain documents under its summonses before initiating the milk complaint referral against Woodlands and other dairy processors.
Author Janine SimpsonSource: Without Prejudice 9, pp 22 –23 (2009)More Less
The recent increase of merger notification thresholds means that a number of transactions now fall outside of the requirements. The automatic reporting trigger must now be supplemented by factors other than simply whether it qualifies as a merger in terms of the Competition Act (89 of 1998), when determining whether a transaction should be notified to the Competition Authorities.
Author Pumzo MbanaSource: Without Prejudice 9, pp 24 –26 (2009)More Less
During the second half of 2008 milk tainted with melamine, an industrial chemical used in plastics and which can make the protein content of milk and other products appear higher, was discovered in Chinese baby formula. When consumed, melamine can cause kidney failure. In China, traces of melamine in baby formula resulted in the deaths of several children and tens of thousands fell sick. Inspections by the Chinese government discovered that 22 of that country's 109 milk powder producers used melamine to boost the protein content of their milk.
Source: Without Prejudice 9, pp 26 –27 (2009)More Less
Rule 13 of the Securities Regulation Code prohibits the favourable treatment of one holder of securities over other holders around the time of an affected transaction. Unless the Securities Regulation Panel (SRP) agrees otherwise, the person making an offer and concert parties may not :
- "(1) make any arrangements with holders of the securities concerned; or
- deal, or enter into any arrangements to deal, in securities of the targetcompany; or
- enter into arrangements which involve acceptance of the offer,
(2) either during an offer or when one is reasonably in contemplation, if
(3) there are favourable conditions which are not extended to all holders of the relevant securities. This contemplates that a favourable condition must be extended to all holders of the securities concerned."
Author Carmel RickardSource: Without Prejudice 9, pp 28 –29 (2009)More Less
The most famous of Somerset East former residents, artist Walter Batiss, once declared : "My father was a waterfall, my mother was a butterfly." I know what he means : there are gazillion waterfalls on the Bosberg Mountain behind the town, any one of which I would feel proud to call my father.
Author Pasno NyachoweSource: Without Prejudice 9, pp 30 –32 (2009)More Less
Despite South Africa having ratified the Hague Convention on Child Abduction in 1997, there is a growing number of cases involving children wrongfully removed or retained in another country without the consent of one parent. There are still no general legislative provisions concerning the principles applicable to the Convention. A working relationship has been established, however, between the Family Advocate in South Africa and the Central Authority in the country in which the child is retained (the contracting state). However, this does not provide a foreign court with the much-needed guidance regarding application of local laws.
Author Kate O'ReganSource: Without Prejudice 9, pp 33 –35 (2009)More Less
Justice is a complex and contested concept in most societies. In societies that are in transition from an oppressive or brutal past, this is particularly so, as is nowhere more evident than South Africa. Justice is a normative concept constructed politically and socially in each society. In that construction, history plays a significant role. It is the role of history in the construction of a democratic conception of justice in post-apartheid South Africa which is the focus of this address.
Source: Without Prejudice 9 (2009)More Less
Foss-Harbottle J : Counsel for the defendant began her argument by quoting Thornton Wilder : "Marriage is a bribe to make a housekeeper think she is a householder." It appears that the defendant's marriage to the plaintiff did not live up to expectations. She succumbed to her husband's requirement that she give up her career and take on the mind-numbing task of running the house. Now, after five years, he is seeking a divorce. Zsa Zsa Gabor once said her husband "taught me housekeeping; when I divorce I keep the house." The defendant in this matter does not even have that offer.
Author Myrle VanderstraetenSource: Without Prejudice 9, pp 37 –40 (2009)More Less
Source: Without Prejudice 9, pp 41 –42 (2009)More Less
The judgement of the SCA in the case of Surmon Fishing (Pty) Ltd v Compass Trawling (Pty) Ltd contains both an interesting dissertation on the voting threshold of a two-third majority as well as confirmation of the source of the powers of directors to act on behalf of a company.