Workplace bullying in the legal profession

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Workplace bullying in the legal profession

Authors: Michele van Eck & Marthinus van Staden

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Private Law, University of Johannesburg; Associate Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 3, p. 647-677
https://doi.org/10.47348/SALJ/v140/i3a9

Abstract

The International Bar Association (‘IBA’) highlighted a disturbing trend of bullying within the legal profession in its 2019 report on bullying and sexual harassment in the legal profession, both internationally and in South Africa. The substantive forms of bullying (often described as victimisation, discrimination, or harassment) may overlap in the manner, mode or way in which bullying is perpetrated, and how bullying occurs may be grouped into several distinct categories: overt (or direct) forms, covert (or indirect) forms and, finally, so-called ‘mobbing’. This article investigates the current South African legislative framework addressing workplace bullying, including the indirect remedies available to victims in terms of (i) a claim of harassment as a form of unfair discrimination under s 6(3) of the Employment Equity Act; (ii) a claim for constructive dismissal under s 193 of the Labour Relations Act; and (iii) unfair labour practices as a remedy for workplace bullying or a claim of harassment in terms of the Compensation for Occupational Injuries and Diseases Act. After finding that these indirect remedies are inadequate to address workplace bullying in the legal profession, the article explores the conduct rules of the legal profession to establish how bullying is addressed in the legal sector and conducts a comparative analysis of the way in which bullying is addressed in the Australian and New Zealand jurisdictions to identify possible solutions to curb the scourge of workplace bullying in the South African legal profession.

Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

Author: Nomthandazo Mahlangu

ISSN: 1996-2185
Affiliations: Lecturer, North-West University
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 305 – 331
https://doi.org/10.47348/SAMLJ/v34/i3a1

Abstract

The appeal in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG 2021 JDR 0414 (SCA) turned on whether Beiersdorf could stop Koni from selling its product in a get-up much like that of NIVEA MEN by asserting unlawful competition in the form of passing off. This question is answered by analysing case law on assessing the acquisition of distinctiveness. Given the lack of South African cases on this form of acquisition, reference is made to cases from other common-law jurisdictions. The discussion evaluates whether evidence presented by Beiersdorf supports the decision that the features in question are distinctive of its products. The findings illustrate that even a long-standing use of a trade mark which is not inherently distinctive will not make it distinctive. The decision in Koni is significant because it (incorrectly) bestows the use of specific colours on one enterprise to the exclusion of its competitors.

Setting boundaries for image misappropriations through online catfishing

by | Jul 29, 2023 | SAMLJ, SAMLJ V34 I3

Setting boundaries for image misappropriations through online catfishing

Authors: Lisa Ndyulo & Nomalanga Mashinini

ISSN: 1996-2185
Affiliations: LLM Graduate, Rhodes University; Senior Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 332 – 347
https://doi.org/10.47348/SAMLJ/v34/i3a2

Abstract

Social networking platforms have popularised catfishing, which entails creating and using a fake social media account to exploit other users. Catfishing involves acts of online misappropriation because the traits of a person’s identity, such as a name and photograph, can be used by a catfish to pose as another person to deceive other users. Image rights are frequently affected by such acts of impersonation. This article determines whether mere misappropriation of identity suffices as a cause of action for image rights violations. The South African courts must clarify whether mere misappropriation constitutes a ground for violating identity in catfishing cases. Thus, the courts should recognise mere misappropriation as sufficient to yield a claim when the falsification and commercial exploitation of identity cannot be proven. Such an approach will allow for the speedy resolution of disputes and will also ensure that justice is served before the plaintiff suffers irreparable harm as a result of image misappropriations on social media.