ISSN: 1996-2185
Affiliations: Stellenbosch University
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 543 – 559
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ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Law, University of Venda
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 527 – 542
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ISSN: 1996-2185
Affiliations: Monash South Africa and Wits Business School
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 515 – 526
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ISSN: 1996-2185
Affiliations: Professor, Department of Mercantile Law, Faculty of Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 478 – 514
In a recent case, the question arose as to whether the applicant in an application for the voluntary surrender of his or her estate may forfeit his or her salary with a view to establishing the requirement of advantage for creditors as envisaged by the Insolvency Act. Such forfeiture is impermissible, for example, because of the constitutional challenges that may arise should the insolvent in future require the forfeited amount for his or her basic needs. However, to exclude debtors from a debt relief measure because they do not have sufficient assets to prove advantage, may also be unconstitutional. It is argued in this article that the current system must be reviewed in order to afford these debtors relief in terms of an alternative discharge procedure. A comparative investigation into the manner in which certain foreign consumer insolvency systems deal with income contributions indicates that the Act does not regulate this issue fairly or adequately. However, income contributions as part of the sequestration process are not truly appropriate and it is submitted that the American approach, which provides for an exclusively asset-liquidation procedure and a separate income-restructuring procedure should be followed. It is concluded that an unconditional exclusion of an insolvent’s income from his or her insolvent estate could provide a mechanism through which the insolvent could be assisted to rebuild a new estate and eventually return to economic productivity.
ISSN: 1996-2185
Affiliations: Principal Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 450 – 477
Much has been said and written about forum shopping of late. Some courts and scholars have even recognised and, to some extent, endorsed the practice. This phenomenon also appears to have surfaced in disputes relating to the protection of intellectual property rights (IPRs). In this regard, there appears to be a growing trend among litigants with disputes relating to patents, to use forums and institutions that are not necessarily designed to resolve such disputes. This is notable in a recent decision by the Competition Commission of South Africa to prosecute two firms accused of abusing their dominant positions by enforcing IPRs beyond their period of protection. While there may be benefits associated with the practice, pervasive forum shopping can also lead to the concentration of cases in one or very few forums which, in the eyes of litigants, are likely to make favourable determinations. Thus, forum shopping may encourage litigants to make an outcome-determinative choice when selecting an appropriate forum. This in turn can create inefficiencies. The aim of this article is to determine how best to approach the quandary of forum shopping in cases relating to the protection of IPRs. The article focuses on the interplay between intellectual property law and competition law, and determines whether the intervention by competition agencies in intellectual property matters is necessary.