The role of trade mark law in food-labelling regulation: A buttery battle between Clover SA (Pty) Ltd and Siqalo Foods (Pty) Ltd

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

ARTICLE

The role of trade mark law in food-labelling regulation: A buttery battle between Clover SA (Pty) Ltd and Siqalo Foods (Pty) Ltd

Authors: Jeanette Visagie

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, North-West University
Source: South African Law Journal, Volume 142 Issue 3, p. 600-625
https://doi.org/10.47348/SALJ/v142/i3a8

Abstract

This article considers the role of trade mark law in food-labelling regulation with reference to Clover SA (Pty) Ltd v Siqalo Foods (Pty) Ltd (ZAGPPHC) and the subsequent appeal in Siqalo Foods (Pty) Ltd v Clover SA (Pty) Ltd (SCA). Our courts accept that the test to establish if the use of a mark contravenes s 6 of the Agricultural Product Standards Act 119 of 1990 (‘APS Act’), as read with the relevant regulations, is synonymous with establishing whether or not there is a likelihood of deception or confusion under trade mark law. The article also discusses the meaning of a trade mark and its relevance to labelling letter-size restrictions under the Dairy Regulations issued in terms of the APS Act. The article also highlights the different roles and functions of the Minister of Agriculture under the APS Act and the Registrar of Trade Marks under the Trade Marks Act 194 of 1993 in considering the distinguishing features between trade mark law and food-labelling regulation.

Labour-law remedies in South Africa: Contractual and statutory avenues

by | Aug 12, 2025 | SALJ, SALJ V142 I3 2025

ARTICLE

Labour-law remedies in South Africa: Contractual and statutory avenues

Authors: Marthinus van Staden & Sieg Eiselen

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand; Professor Extraordinarius in Private Law, University of South Africa
Source: South African Law Journal, Volume 142 Issue 3, p. 626-657
https://doi.org/10.47348/SALJ/v142/i3a9

Abstract

This article examines the complex interplay between contractual and statutory remedies in South African labour law. It highlights how statutory remedies now coexist with common-law contractual remedies. The authors analyse the key principles that the courts have established, including the conceptual separation between contractual and legislative matters, distinctions between ‘unlawful’ and ‘unfair’ dismissals, and the strategic implications for litigants making a choice of remedy avenues. The article explores three primary contractual remedies — specific performance, compensation and damages — detailing their applications and limitations. It discusses how courts have sought to balance employee protections with employer rights while considering practical workplace realities. The authors note that while contractual and statutory remedies overlap to some extent, they operate independently. This offers flexibility, but choosing a suitable remedy does require careful consideration. Based on this analysis, the article proposes several recommendations to improve the system. These include clearer legislative guidelines on remedy interactions, enhanced training for legal professionals, improved public education on labour rights, the encouragement of alternative dispute resolution mechanisms and the potential harmonisation of prescription periods for different claim types. Implementing such recommendations could refine South Africa’s labour-law system, ensuring that it balances stakeholder rights effectively while providing clear, accessible remedies for workplace disputes. The authors conclude that the dual system of remedies, when properly understood and applied, offers comprehensive protection and a fair resolution of labour issues in the South African context.

Application of the Kenyan Bill of Rights: Legal Insights from Comparative Constitutional Law and Jurisprudence

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Application of the Kenyan Bill of Rights: Legal Insights from Comparative Constitutional Law and Jurisprudence

Author Brian Sang YK

ISSN: 2521-2613
Affiliations: LLB (MU), LLM (UCT), PhD (Can) (UCT), Faculty of Law, University of Cape Town
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 1 – 40

Abstract

Unlike any of its legal antecedents, the Constitution of Kenya, 2010, foregrounds the Bill of Rights, its repository of all fundamental rights and freedoms, and expressly provides that its content applies to all law and binds all State organs and all persons. The logical implication of this is that, since fundamental rights in the Bill of Rights bind State actors and non-State actors, they consequentially are also enforceable against both classes of actors. But, there is a better and more nuanced view: that, while fundamental rights in the Bill of Rights are, in general, enforceable against the State, the nature of a right and the correlative duty imposed by it may limit such enforceability against private persons, albeit in line with the Constitution. And yet, despite the Constitution’s clarity of purpose in this respect, lately the High Court of Kenya has rendered conflicting rulings in constitutional matters wherein the vexed issue of application arose. This article contends that, the legal position adopted by some learned judges that constitutional rights are not enforceable against natural or juristic persons is as misconceived as it is unsupported by a holistic construction of the Constitution. Rather, it advocates the maximal enforceability of fundamental rights subject only to the lawful strictures of the limitation clause as enshrined in the Kenyan Bill of Rights. Accordingly, the article analyses comparative constitutional law and jurisprudence on the application of fundamental rights in the private sphere with a view to gleaning some instructive legal insights that can inform the development of Kenya’s nascent constitutional law doctrine.

Whose Marriage Is It Anyway? An Analysis of the Compatibility of Polygamy with International Human Rights Law

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Whose Marriage Is It Anyway? An Analysis of the Compatibility of Polygamy with International Human Rights Law

Author Melba Wasunna Kapesa

ISSN: 2521-2613
Affiliations: BA, LLB (UCT); SJD (Monash); Legal Researcher, Supreme Court of Kenya
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 41 – 61

Abstract

This article aims to assess the compatibility of the practice of polygamy with international human rights law. The article begins by briefly exploring the historical context of polygamy including its roots in many religions and cultures and also discusses how the practice has evolved in modern times. The article then gives an overview of the debate surrounding the universality of human rights and cultural relativism and suggests a conciliatory viewpoint. The article discusses the international human rights stance on polygamy and its implications on women’s rights as well as competing human rights which favour consensual polygamous marriages. Finally, the article reviews the international human rights strategy to combat polygamy and argues that it fails to adequately protect women’s rights. It then proposes an alternative framework for the treatment of polygamy which is compatible with international human rights. The article ultimately concludes that although (consensual) polygamy has weaknesses, it nonetheless conforms to the spirit and letter of international human rights instruments and its legal regulation is vital to protect women’s rights.

Revisiting the Principle of the Best Interests of the Child in the Law on Children: Its History, Meaning, Legal Prescriptions and Minimum Operational Standards

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Revisiting the Principle of the Best Interests of the Child in the Law on Children: Its History, Meaning, Legal Prescriptions and Minimum Operational Standards

Author Elisha Z Ongoya and Ibrahim K Alubala

ISSN: 2521-2613
Affiliations: Advocate of the High Court of Kenya; Partner, Ongoya & Wambola Advocates; Lecturer and Acting Head of Department of Public Law, Kabarak University; Advocate of the High Court of Kenya; Advisor, Child Rights Governance, Save the Children International, Kenya Country Office
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 62 – 82

Abstract

At the centre of the legal regime for the protection and welfare of children are a number of principles. A key principle is one on the best interests of the child. This article interrogates the historical origins of this principle. The article then looks at the same principle as prescribed by international and Kenyan legal instruments and as applied by international and Kenyan juridical institutions.