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- Volume 19, Issue 1, 2008
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 19, Issue 1, 2008
Volume 19, Issue 1, 2008
Author Jacques Du PlessisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19 (2008)More Less
When the Stellenbosch Law Review was founded in 1990, it adopted a style which was quite progressive for its time: the layout was streamlined, punctuation was restricted to the minimum, and references had to be unembellished, leading the reader as directly as possible to the relevant sources. These features served the journal well and there is no reason to change them.
Commissioner, South African Revenue Service v Brummeria Renaissance (Pty) Ltd and others : does the judgement benefit an understanding of the concept "amount"?Author Enelia Jansen van RensburgSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 34 –50 (2008)More Less
In Commissioner, South African Revenue Service v Brummeria Renaissance (Pty) Ltd 2007 6 SA 601 (SCA) the Supreme Court of Appeal held that when an interest-free loan is made, the "right" to retain and use the loan capital interest-free constitutes an amount which accrues to the taxpayers and forms part of their "gross income" for purposes of the Income Tax Act 62 of 1958 (if it is of a non-captial nature). In response to this judgement, it is argued that only property accruing to a taxpayer is capable of constituting such an amount, and of thus forming part of gross income. Furthermore, it is submitted that the "right" to use the loan capital on an interest-free basis cannot be equated with "property" that is acquired by the borrower during the currency of the loan. Such a "right" can thus not be said to constitute an amount, and it follows that it cannot accrue for purposes of the Act's definition of "gross income".
Author Wim AlbertsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 51 –70 (2008)More Less
In terms of the previous Trade Marks Act 62 of 1963, provision was made for the determination of rights of competing applicants. The current Trade Marks Act 194 of 1993 allows an opposition of a later application by an earlier applicant; and conversely, the opposition of an earlier application by a later applicant, if the latter enjoys existing rights at the relevant time.
Although neither of the provisions concerned makes mention of prior use, it is submitted that such use would constitute an important factor. Insofar as an opposition on the basis of prior use is concerned, it is noted that section 16(1) of the current Act's predecessor was interpreted in WM Penn Oils Ltd v Oils International (Pty) Ltd1966 1 SA 311 (A) as excluding protection where there was no use creating a reputation or goodwill. In the case of an opposition in terms of section 10(15), use by the applicant prior to the filing date of the opponent should enable the applicant to prevail in the opposition. With regard to section 10(16), it is submitted that the legislature intended to give an applicant that opposes another application the benefit of a lesser burden of proof on account of the fact of filing.
Section 10(12) of the current Act resembles section 16(1) of the previous Act, in once again requiring the existence of a reputation. One issue that requires particular consideration is the possible difference in nature between an opposition in terms of section 10(12), and the remedy available in cases of passing off. The issue of what was referred to in Celine SA Trade Mark [ 1985] RPC 381 as"the degree of confusability" is discussed. Whereas the requirement for passing off in English law is deception, the position in South African law differs in that it is accepted that the likelihood of confusion is sufficient to found an action for passing off. Thus, scope for a distinction between that area oflaw and section 10(12 ) of the South African Act seems doubtful.
Finally, as regards the scope of comparison in opposition proceedings in terms of section 10(12), the existence of various and often contradictory opinions is noted. In the British Open Country Trade Mark case  RPC 477 it was held that regard could be had to the actual use of a mark by theapplicant. It is nevertheless submitted that it is the mark of the applicant as filed, and that of the objector, as used, that must be compared.
Author Melodie Nothling SlabbertSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 71 –100 (2008)More Less
Constructions of the human body in law display a series of ambiguous, incomprehensible, and often contradictory images, which are mainly aimed at addressing internal problems of legal discourse. This contribution investigates (in two parts) the way in which bodies have constituted the medium through which certain political, social and legal developments have manifested themselves throughout the ages. The resultant emergence of prescriptions and prohibitions relating to a range of issues such as, inter alia, abortion, genetic research, human reproduction, homosexuality and control of crime and disease, are also examined. Certain bodies have in the past been perceived as deviant or dangerous, and traces of such perceptions still linger in the present.
The second part of the article embarks on a closer analysis of the ambivalent constructions of the body as apparent in law, by primarily focusing on the effect of developments in the field of genetic research. The article demonstrates how conventional constructions of the body in law have become wholly inadequate in addressing recent scientific developments, seeing that such developments have undermined and reversed many traditional, fundamental premises relied upon in the law, philosophy and science.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 101 –121 (2008)More Less
In Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) the Constitutional Court held that an organ of state was not liable in delict for a successful tenderer's out-of-pocket losses following the setting aside of the tender because of a bona fide error on the part of that organ of state in the tender process. The Court ruled that the organ of state's negligent but bona fide conduct in the public tender process was not wrongful since it owed no legal duty to tenderers, whether successful or unsuccessful, to avoid such losses and that there were no public policy considerations that justified the recognition of such a duty. From a public procurement perspective, this judgment is unfortunate. Moseneke DCJ's majority judgment is based on a number of highly contestable assumptions and holds implications for public procurement that may largely undermine the very public policy considerations upon which it is based. The dissenting minority judgment of Langa CJ and O'Regan J is to be preferred, because it is not only much more sensitive to the general realities of public procurement, but specifically the realities of South African public procurement. However, the problem raised by the Steenkamp matter, judged from a public procurement perspective, is not one of delictual liability but rather the hitherto fairly unsophisticated approach to remedies following the judicial review of public tender decisions in South Africa. In order to overcome the problems illustrated by the Steenkamp case, we should focus our attention on the development of appropriate judicial review remedies within the public procurement context. The recent judgment of the Supreme Court of Appeal in Millennium Waste Management v Chairperson Tender Board 2007 JOL 21170 (SCA) provides a solid point of departure for such a development.
The promotion of equality and prevention of unfair discrimination Act 4 of 2000 : court-driven or legislature-driven societal transformation?Author Anton KokSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 122 –142 (2008)More Less
This article considers which institution - the legislature or the courts - is best able to effect societal change or transformation, within the context of the application of The Promotion of equality and Prevention of unfair Discrimination Act 4 of 000, which was promulgated with the express purpose of achieving such societal change.
It is shown that a debate exists between authors who, on the one hand (and sometimes implicitly) argue that the legislature is without doubt the appropriate institution to accept responsibility for driving societal changes, while, on the other hand, other authors are more optimistic about the (potential) role of courts in effecting changes in society.
It is argued that illustrate that courts have a very limited ability to realise social transformation. Attention is paid to inter alia, courts' (possible lack of) legitimacy, which includes the current race and gender profile of the men and women who constitute our judiciary; the institutional nature of courts, which includes the fact that courts function by primarily solving the particular dispute before them; and the limited reach remedies typically granted by courts.
As regards discrimination specifically, it is shown that the drafters of the Constitution envisaged a legislature-driven programme, but that discrimination is not easily combated in legal fora other than courts. It follows that "the law" cannot effectively address discrimination. A possible solution is then discussed, namely, the creation of an inter-institutional debate between the executive authority (as concretised in the Department of Justice and Constitutional Development), the legislative authority, the judiciary (as concretised in the equality courts) and civil society.
Author Barbara E. LootsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 143 –169 (2008)More Less
This article argues that the South African doctrine of vicarious liability should be extended to bring it in line with international trends, in order to accommodate instances where members of political parties abuse their positions of power in sexual harassment scenarios. The fact that sexual harassment is unquestionably present in our society as well as in the conduct of political figures who abuse their power, necessitates legal transformation in South Africa if the progressive promotion of gender equality is to become a true characteristic of our country.
The flexible doctrine of vicarious liability can help realise this goal by making provision for special relationships, such as that between a political party and its chief whip, in accordance with common law requirements. These requirements include the presence of an employer-employee relationship,and the commission of a wrong by an employee acting within the scope of his employment.
It is argued that the relationship between a political party and its chief whip is akin to that between an employer and employee, in that a chief whip acts in accordance with the will of his political party when fulfilling his duties in Parliament. It is further explained that the mere fact that a chief whip is remunerated by Parliament does not constitute an insurmountable obstacle.
Thereafter, it is argued that the abuse of political power in the form of sexual harassment by a chief whip indeed falls within the scope of his employment. Furthermore, it is shown that if the flexible doctrine of vicarious liability is viewed within the context of constitutional values such as equality, freedom and dignity, as well as the constitutional duty to develop the common law in line with the Constitution in terms of section 39(2), it becomes apparent that the doctrine must be interpreted so as to cover special relationships such as the one discussed.
Die fiducie von Quebec und der trust : ein Vergleich mit verschiedenen Modellen fiduziarischer Rechtsfiguren im civil law, by Rainer Becker : book reviewAuthor M.J. De WaalSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 170 –172 (2008)More Less
Author Christoph GarbersSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 172 –174 (2008)More Less
Collective labour law and the primary relationship it seeks to describe (between employers and trade unions) are not easy to come to grips with - not too many lawyers actually deal with it (except perhaps the odd strike interdict), students conceptually have little feeling for it, and ordinary persons often see it as a moral insult large enough to awaken all their prejudices.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 174 –175 (2008)More Less