Forum Shopping: Finding the Right Balance between the Enforcement of Competition Law and the Protection of Intellectual Property Rights

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I3

Forum Shopping: Finding the Right Balance between the Enforcement of Competition Law and the Protection of Intellectual Property Rights

Authors Itumeleng Lesofe

ISSN: 1996-2185
Affiliations: Principal Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 450 – 477

Abstract

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.

The Effect of the Moratorium on Property Owners during Business Rescue

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I3

The Effect of the Moratorium on Property Owners during Business Rescue

Authors Maleka Femida Cassim

ISSN: 1996-2185
Affiliations: Associate Professor, Mercantile Law Department, University of Pretoria; Attorney and Notary Public of the High Court of South Africa.
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 419 – 449

Abstract

A burning issue in South African company law is the encroachment of the business rescue provisions of the new Companies Act 71 of 2008 on the rights of landlords and other property owners. A landlord who has concluded a contract of lease with a company, frequently finds himself in an unenviable position if the company goes into business rescue. The company often remains in occupation of the leased premises during business rescue and, if this is done without the payment of rent, the business rescue endeavour is effectively driven at the landlord’s expense. The focus of this two-part series of articles is on the two chief predicaments facing the property owner who finds its property in the possession of a company under business rescue, namely, the recovery of the property by the property owner; and the ongoing payment of rent and other recurring charges. This article discusses the moratorium in business rescue with a specific focus on its effect on the property owner. A critical analysis of recent judicial decisions on the moratorium is included, together with a discussion of the legal position in comparable foreign jurisdictions. The second article will focus on the safeguards and protective measures for property owners during the business rescue process. It will be published in the following issue of this journal.

The role of comparative law in consumer protection law: A South African perspective

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

The role of comparative law in consumer protection law: A South African perspective

Authors Jacolien Barnard

ISSN: 1996-2185
Affiliations: Associate Professor, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 353 – 389

Abstract

This article illustrates the role of comparative law as a possible law reform mechanism in consumer protection law from a South African perspective. The South African legislature introduced very comprehensive legislation in the area of consumer protection law in the form of the Consumer Protection Act 68 of 2008. Certain provisions in the Act mimic core European Union (EU) directives on consumer protection. This article aims to establish why elements of a foreign law model were introduced as part of law reform in South African consumer law, how this was done, and whether it could assist in the effective interpretation and enforcement of consumer protection measures. The focus is on a general discussion of unfair commercial practices regulated by the EU Unfair Commercial Practices Directive 2005/29/EC. It is argued that comparative law plays a significant role in the effective interpretation and enforcement of consumer protection law in South Africa. However, cognisance must be taken of South Africa’s unique position, as well as its societal and economic needs.

A comparative overview of the legal reform of non-possessory real security rights over movables in South Africa and Belgium with specific reference to the legal nature of the security object and court intervention

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

A comparative overview of the legal reform of non-possessory real security rights over movables in South Africa and Belgium with specific reference to the legal nature of the security object and court intervention

Authors Lefa Ntsoane, Mitzi Wiese

ISSN: 1996-2185
Affiliations: Lecturer, Department of Private Law, University of South Africa; Senior Lecturer, Department of Private Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 325 – 352

Abstract

South Africa and Belgium have acknowledged the economic need for legal reform of the law regulating real security rights over movable property. South Africa enacted the Security by Means of Movable Property Act 53 of 1993 (SMPA), which provides for a fictitious pledge, and Belgium enacted the new Belgian Pledge Act 11 of 2013, which provides for a registerpand. This article examines the historical background, development and legal reform of non-possessory real security rights over movables in both legal systems. The research focuses on the difference in the legal position regarding the security object of the non-possessory real security right and court intervention in realising the security. South African law excludes incorporeal property, revolving assets, and future property from the strong legal protection offered to debtors and creditors by the SMPA. Belgian law, by contrast, has an inclusive as opposed to exclusive approach to the legal nature of the security object. The new Belgian Pledge Act is applicable to all corporeal and incorporeal movable property. The position of summary execution clauses under the new Belgian Pledge Act is the opposite of that under South African law. The South African summary execution clauses principle, as developed in Roman-Dutch law, has in recent years been interpreted more strictly with the result that its application is limited. The aim of the Belgian reform is to simplify the creation and realisation of a ‘pledge without possession’. The Belgian Pledge Act now grants the pledgee the right to sell, rent, or appropriate the security object without court intervention. Court intervention is only required if the pledgor is a consumer.

The appraisal remedy and the oppression remedy under the Companies Act of 2008, and the overlap between them

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

The appraisal remedy and the oppression remedy under the Companies Act of 2008, and the overlap between them

Authors Maleka Femida Cassim

ISSN: 1996-2185
Affiliations: Associate Professor, Mercantile Law Department, University of Pretoria; Attorney and Notary Public of the High Court of South Africa.
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 305 – 324

Abstract

The appraisal right of dissenting shareholders is a new remedy introduced to South African corporate law by the Companies Act 71 of 2008, which is aimed at maintaining the equilibrium between minority shareholders and controlling shareholders. The fundamental question must thus arise whether there is an overlap between the appraisal remedy and the oppression remedy, or whether the two remedies are mutually exclusive. Are minority shareholders entitled to rely on both remedies, or should a minority shareholder’s exercise of the appraisal right preclude his or her recourse to the oppression remedy? This burning question is the focus of this article, and is discussed with reference to both Canadian and United States law, as well as the South African case of Juspoint Nominees (Pty) Ltd v Sovereign Food Investments Ltd in which the High Court recently had the opportunity to consider this issue. Other important and related aspects of the appraisal remedy and the oppression remedy are also discussed in this article.

Towards a unanimous global remedy for breach of athlete contracts: A comparative analysis

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

Towards a unanimous global remedy for breach of athlete contracts: A comparative analysis

Authors Kenneth Mould

ISSN: 1996-2185
Affiliations: Senior Lecturer in Law of Contract in the Department of Private Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 270 – 304

Abstract

The problem of the repudiation of professional athlete-contracts is significant not only in South Africa, but globally. One need only daily media reports to confirm that while academics have raised the issue of the repudiation of athlete-contracts, the problem persists and is increasing. One of the primary reasons for this is that there is little or no unanimity among jurisdictions across the world as to not only the most suitable, but, more importantly, the most effective remedy for a breach of athlete-contract. This article aims to address this ongoing problem from a fresh perspective by analysing the approaches taken by different jurisdictions to the most suitable remedy for breach of this type of contract, in order finally to suggest the most effective single remedy that is most likely to limit or reduce the prevalence of repudiation of an athlete-contract not only in South Africa, but globally.

Income tax-related search and seizure in South Africa: Lessons from Canada and New Zealand

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

Income tax-related search and seizure in South Africa: Lessons from Canada and New Zealand

Authors Carika Fritz

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 240 – 269

Abstract

The article identifies certain aspects that prevent the current search-and seizure provisions in the Tax Administration Act 28 of 2011 from achieving a balance between effective tax administration, on the one hand, and respect for the fundamental rights of taxpayers, on the other. It is shown that, whilst obtaining a warrant on an ex parte basis achieves this required balance, the same cannot be said for not requiring specific details with regard to what items may be searched for in terms of a warrant and allowing warrantless searches based on the subjective discretion of a South African Revenue Service (SARS) official. The article further considers the income tax-related search-and-seizure provisions in Canada and New Zealand in order to address the identified imbalances. From this comparative analysis, it is apparent that it is unnecessary for the SARS to be permitted to conduct warrantless searches based on its subjective discretion in the current search-and-seizure framework, together with certain provisions found in these two jurisdictions, would provide a more suitable alternative.

Franchise disclosure documents through the lens of the CPA and the Regulations

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I2

Franchise disclosure documents through the lens of the CPA and the Regulations

Authors Lynn Biggs

ISSN: 1996-2185
Affiliations: Lecturer, Mercantile Law Department, Nelson Mandela University
Source: South African Mercantile Law Journal, Volume 29 Issue 2, 2017, p. 219 – 239

Abstract

The promulgation of the Consumer Protection Act 68 of 2008 and Consumer Protection Regulations has resulted in the introduction of the right to disclosure of information for franchisees and the obligation to disclose information on the part of franchisors in terms of section 7 and regulations 2 and 3. The article examines whether and to what extent regulation 3 provides clarity regarding the information to be disclosed. Regulation 3 requires that every franchisor must provide a prospective franchisee with a disclosure document and lists the type of information the disclosure document must contain. It is submitted that regulation 3 contributes to overcoming lack of pre-disclosure and formal regulation experienced in franchise relationships in the past. However, the wording of regulation 3 requires clarification. This article proposes amendments to some of the provisions of regulation 3, with the aim to further enhance the disclosure requirements. The article furthermore identifies and examines concerns regarding the confidentiality of the information contained in the disclosure document especially during the negotiation stages and the section 7(2) cooling-off period. The signature of a confidentiality agreement is proposed as a solution to overcoming these concerns.