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- Volume 25, Issue 1, 2013
SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Volume 25, Issue 1, 2013
Volume 25, Issue 1, 2013
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 1 –12 (2013)More Less
Contemporary South African culture is riddled with parodies of every kind. Although a parody culture exists in practice, artists and other creators have a double-barrelled shotgun to face: they have to worry not only about infringing the dignity of the subject of their parody, but also infringing copyright if a creative work protected by copyright is their subject. The controversial painting The Spear by Brett Murray illustrates this conundrum, where the subject of the parody was not only President Jacob Zuma, but also the Soviet propagandist poster which originally featured Vladimir Lenin. As we shall show below, South African copyright law allows a work to be used for a number of purposes, including criticism and review (which is closely related to parody, as ridicule is often a form of criticism), but makes no concessions for blatant comedic expression as a defence to a copyright infringement claim. In the absence of a specific fair dealing exception for this purpose, the public is free to parody elements of South African culture, provided they refrain from using a substantial part of a work portraying the particular feature they wish to parody. If a user wanted to level criticism against a copyright work by means of parody, or use the characteristic elements of a work in a transformative and humorous way, he would find himself without protection. In this way the current copyright regime prevents many new works from coming to fruition, as users have to obtain permission from the author for the parody to be created.
Author Irma J. KroezeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 13 –29 (2013)More Less
This article is the result of personal experiences as well as the experiences of friends, family and colleagues at universities in South Africa. It is an attempt to deal academically with what seem like universal problems pertaining to performance contracts in higher education institutions. Although the examples cited in this article all come from documents at the University of South Africa, the contention is that the problems identified are applicable to all universities. However, the determination of whether performance contracts at other higher education institutions pass muster will be left to those with more localised knowledge.
It is no secret that performance management at institutions of higher education is not popular amongst academics. This is sometimes attributed to arrogance on the part of academics - the assumption being that academics think their work cannot be judged. There is good evidence that this is not the case. Academics are used to peer review of their research, external moderation of their course material and examination papers, external examination of their postgraduate students and so forth. These are all well-established and familiar forms of external evaluation of the work of academics. So it is not a case of arrogance. The problems that academics have pointed out have more to do with the content of performance agreements and the seemingly arbitrary nature of performance appraisals.
The legal effect of amalgamations and mergers upon third-party contracts containing anti-transfer provisionsAuthor Byron Lloyd NicolSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 30 –59 (2013)More Less
With the objects of facilitating the creation of business combination, and promoting flexibility and enhancing efficiency in the economy, the Companies Act 71 of 2008 introduced the innovative American concept of 'amalgamations or mergers' ('statutory mergers' or 'M&As') into South African law. In essence, a statutory merger is a simple and effective procedure by which two or more companies (the 'constituent companies' or 'merging companies'), along with their respective assets and liabilities, are combined into one or more surviving, or newly formed, companies (the 'merged company' or 'merged companies'). M&As are effected through the implementation of a merger agreement between the constituent companies together with the requisite consent of their shareholders.
The primary concern of this article is the legal effect of a statutory merger upon the transfer of third-party contracts - that is, contracts between the constituent companies and third parties ('non-merging parties') - to the merged company where these contracts contain anti-transfer clauses, in particular clauses prohibiting cession (pacta de non cedendo).
Is Due South the true north? Recent South African interpretations of 'similar goods' in the Trade Marks Act : analysesAuthor Roshana KelbrickSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 60 –73 (2013)More Less
Our Trade Marks Act 194 of 1993, in line with developments elsewhere, widened the scope of protection granted to trade marks, by creating three forms of trade-mark infringement. The first, most traditional form of infringement is where a registered mark is infringed by use of the identical or confusingly similar mark on the goods for which it is registered (s 34(1)(a)). The second type of infringement was introduced by the Act: this covers use of the identical or similar mark on similar goods, if 'in such use there exists the likelihood of deception or confusion' (s 34(1)(b)). This resulted in the introduction of the concept of 'similar goods or services' to South African trade-mark jurisprudence. The third, also novel, type of infringement covers use of the same or similar mark on any (usually dissimilar) marks, if the mark is well-known and use of the mark by another takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark (s 34(1)(c)) (infringement by dilution). Section 10 of the Act, on bars to the registration of trade marks, contains corresponding provisions. As a result, the Act contains two instances in which similarity must be determined. First, in respect of all three forms of infringement, if the marks are not identical, are they similar? And secondly, only relevant for section 34(1)(b) infringement purposes, are the goods or services similar? (For the sake of brevity, I shall refer only to 'similar goods' unless a service mark is in issue.)
The insurance broker and the insured's under-insurance : PFC Foods CC v Three Peaks Management (Pty) Ltd : case notesAuthor J.P. Van NiekerkSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 74 –83 (2013)More Less
There is the perception of an increasing range of legal duties being imposed on professionals towards their clients. No doubt that is as much due to the increasing sophistication and complexity of the services they offer as to their own claims of professionalism.
This is true also of insurance brokers. A steady stream of judicial decisions, both here and in other jurisdictions, continue to describe the range of duties they owe their clients, the insured, and in the process apparently to expand that range. In reality, though, it may merely be that these decisions illustrate the application of well-known and basic duties in modern circumstances.
One such decision is that of PFC Foods CC v Three Peaks Management (Pty) Ltd  JOL 29486 (KZD). It concerned the duties of an insurance broker towards its client insured as regards the prevention of under-insurance in the case of business interruption insurance and as regards the application of average.
Aesthetic design rights to spare parts? Bayerische Motoren Werke Aktiengesellschaft v Grandmark International (Pty) Ltd : case notesSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 84 –93 (2013)More Less
These were the facts before the court in Bayerische Motoren Werke Aktiengesellschaft v Grandmark International (Pty) Ltd and Another (50212/2010) 2012 ZAGPPHC 139 (25 July 2012): Bayerische Motoren Werke Aktiengesellschaft ('BMW') is a German company that, by itself and through licences, develops, manufactures, and distributes BMW motor vehicles, and their parts, components, and accessories. Grandmark International (Pty Ltd) ('Grandmark') is a South African company that imports, sells, and offers for sale spare parts for motor vehicles, including BMW vehicles. Allan Ho is the sole director, sole shareholder, and managing director of Grandmark. Needless to say, he was responsible for the control, management, and business operations of the business (para 11).
Source: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 94 –106 (2013)More Less
The merger between Walmart Stores Inc (Walmart) and Massmart Holdings Ltd (Massmart) was approved by the Competition Appeal Court (CAC) on 9 March 2012, subject to four public-interest-related conditions that addressed employment and local procurement concerns raised during the proceedings (Minister of Economic Development and Others v Competition Tribunal and Others; South African Commercial, Catering and Allied Workers Union v Walmart Stores Inc and Another  1 CPLR 6 (CAC) ('Minister'). The court set aside the decision of the Competition Tribunal in Walmart Stores Inc v Massmart Holdings Ltd  1 CPLR 145 (CT) ('Walmart').
Author Juanita EasthorpeSource: SA Mercantile Law Journal = SA Tydskrif vir Handelsreg 25, pp 107 –117 (2013)More Less
People living with HIV/AIDS are one of the most vulnerable groups living within our society. Even though there is anti-discrimination legislation in South Africa prohibiting discrimination on the basis of HIV status, the prejudice shown and stereotypical behaviour of society practised against this vulnerable group continue. False perceptions and lack of knowledge fuel the stigma and discrimination attached to this disease. Widespread discrimination on the basis of HIV/AIDS in South Africa has led to extensive comment in labour law and constitutional jurisprudence.