Book Bench 2
Book Bench 2
Author: Hugh Corder
ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 140 Issue 3, p. 684-695
https://doi.org/10.47348/SALJ/v140/i3a11
Abstract
None
Running out of colour in a passing-off claim: Koni Multinational Brands (Pty) Ltd v Beiersdorf AG
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
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.
A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008
A purposive perspective on piercing the corporate veil under Section 20(9) of the Companies Act 71 of 2008
Author: Etienne Olivier
ISSN: 1996-2185
Affiliations: Lecturer, Department of Mercantile and Labour Law, Faculty of Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 348 – 381
https://doi.org/10.47348/SAMLJ/v34/i3a3
Abstract
Section 20(9) of the Companies Act 71 of 2008 (the Act) is a statutory version of the common-law remedy of piercing the corporate veil. Unfortunately, the legislature, by leaving undefined the phrases ‘interested person’, ‘unconscionable abuse’ and ‘any further order necessary to give effect to the declaration’ in s 20(9) of the Act, has left room for uncertainty regarding the interpretation of the section. After discussing the purpose of s 20(9) of the Act, the article makes recommendations for how the statutory veil-piercing remedy should be interpreted. The article suggests the inclusion in the Act of an extensive and open-ended definition of ‘unconscionable abuse’ that describes categories of abuse sufficient to justify piercing of the corporate veil. It is argued that the term ‘interested person’ should be read to exclude a company’s controllers acting for their own benefit when the controllers themselves have committed the unconscionable abuse. It is argued further that a court’s power to grant ‘any further order’ in addition to a disregarding of separate legal personality should be limited to orders that are necessary to provide adequate relief for the litigant that invokes s 20(9), namely impositions of rights and liabilities.
Accountability in the twin peaks model of financial regulation in South Africa
Accountability in the twin peaks model of financial regulation in South Africa
Authors: Gerda van Niekerk & Hoolo ’Nyane
ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Limpopo; Associate Professor of Public Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 382 – 403
https://doi.org/10.47348/SAMLJ/v34/i3a4
Abstract
The Financial Sector Regulation (FSR) Act 9 of 2017 implemented the first stage of the Twin Peaks model of financial regulation in South Africa. The Act established the Prudential Authority and the Financial Sector Conduct Authority to make the financial sector safer by using a more robust prudential and market conduct framework. The South African Reserve Bank received an enhanced mandate to promote and maintain financial stability. Since accountability is a core goal in financial regulation, this paper analyses the notion of accountability and specifically the accountability of the regulators in a Twin Peaks model of financial regulation. The legislative framework put in place by the FSR Act goes a long way in adhering to principles of accountability. The financial sector regulators are obliged to consult with various stakeholders such as the Minister of Finance and financial institutions. The regulators are subject to control measures, and Parliament holds them accountable. Nevertheless, the authors suggest that one more step is necessary. There should be more debate and engagement by the regulators with the general public to increase public knowledge of financial sector regulation in South Africa.
An analysis of the causes of violence during strike action in South Africa: A psychological perspective
An analysis of the causes of violence during strike action in South Africa: A psychological perspective
Author: Carlos J Tchawouo Mbiada
ISSN: 1996-2185
Affiliations: Senior Lecturer in Law, University of Venda
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 404 – 420
https://doi.org/10.47348/SAMLJ/v34/i3a5
Abstract
Peaceful strikes in post-apartheid South Africa are uncommon. Most industrial action is associated with violent acts to the extent that violence seems to be the norm. Different scholarly contributions regarding the causes of the high number of violent strikes in South Africa have been made; most of these, this article argues, are sociologically and legally inclined. Using the Freudian political psychology theory and the frustration-aggression hypothesis, this article opines that episodic waves of violent activities during strike action are subject to the psychological imbalances and frustrations emanating as a twin phenomenon of intrinsically motivated apartheid posttraumatic effects and people’s inability to meet their basic needs of life. Using an orderly and systematic review of the literature, the article unpacks the causes of violent strikes in South Africa in a psychological manner.
Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited
Case Notes: Interdicting a disciplinary enquiry: Golding v HCI Managerial Services (Pty) Ltd (2015) 36 ILJ 1098 (LC) Revisited
Author: Vuyo Ntsangane Peach
ISSN: 1996-2185
Affiliations: Associate Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 3, 2022, p. 421 – 434
https://doi.org/10.47348/SAMLJ/v34/i3a6
Abstract
None
DNA phenotyping: A possible aid in criminal investigation
DNA phenotyping: A possible aid in criminal investigation
Authors: Lirieka Meintjes-van der Walt and Adebola Olaborede
ISSN: 1996-2118
Affiliations: B Juris LLB (UPE) LLM (Rhodes) DJuris (Leiden); Adjunct Professor of Law and Leader of the Law, Science and Justice Research Niche Area, University of Fort Hare; LLB (Nigeria) LLM (Stellenbosch) LLD (UFH); Time on Task Lecturer, Faculty of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 1 – 23
https://doi.org/10.47348/SACJ/v36/i1a1
Abstract
This article examines DNA phenotyping in general and highlights international perspectives regarding the use of this technique. The article interrogates the genetic basis of predicting externally visible characteristics, the potential value of the technique, and the pitfalls regarding its use. Despite the ethical and legal concerns and debates concerning DNA phenotyping, the potential value of this technique should not be underestimated. In the context of the high number of serious crimes such as rape and murder that remain unsolved in South Africa, the responsible and scientific application of DNA phenotyping might prove to be an effective additional tool in criminal investigation.
Fair trial rights, pre-trial civil motions in pending criminal cases and abuse of court process with reference to the Free State asbestos pre-trial motion proceedings
Fair trial rights, pre-trial civil motions in pending criminal cases and abuse of court process with reference to the Free State asbestos pre-trial motion proceedings
Author: CF Swanepoel
ISSN: 1996-2118
Affiliations: BA LLB (Stellenbosch) LLM LLD (University of the Free State), Research Associate, Department of Public Law, University of the Free State
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 24 – 41
https://doi.org/10.47348/SACJ/v36/i1a2
Abstract
South Africans have become accustomed to almost daily news reports of litigation in our courts that involve politically powerful and well-connected individuals. The perception by the public is that in many instances litigants approach the courts for other reasons than achieving justice and are therefore misusing our courts and its processes.1 This becomes a matter of concern when such perceptions affect the trust and confidence that the public holds in respect of the judicial system and the rule of law. The recent Free State asbestos pre-trial motion proceedings illustrate some of these concerns. This article first comments on the judgment of the Free State high court in this matter, and focusses on the unmeritorious aspects of the applications made. These aspects included a claim that the applicants’ right to a fair trial were infringed, and the applicants’ disregard for the established principle against preliminary civil motions emanating from criminal proceedings. Legal practitioners advise their clients and must do so responsibly. For that reason, the second part of the article comments on the professional rules of conduct against the abuse of the court process in relation to legal practitioners’ obligations to both their clients and the court. This duty includes not to litigate causes or raise defences that have little chance of success or where they are initiated by litigants for purposes other than achieving justice. Improper purposes include delaying the proceedings to escape criminal liability and ultimately, accountability. In order to curb pre-trial litigation in any court other than the criminal trial court, the article proposes an extension of the Criminal Procedure Act to clarify when such other court may be approached for relief. It also proposes that a certificate of probable cause accompanies all pre-trial motions that emanate from criminal proceedings in a court other than the trial court.
Court’s power to order the minister to place a prisoner on parole in South Africa: Walus v Minister of Justice and Correctional Services and Others 2023 (2) BCLR 224 (CC)
Court’s power to order the minister to place a prisoner on parole in South Africa: Walus v Minister of Justice and Correctional Services and Others 2023 (2) BCLR 224 (CC)
Author: Jamil Ddamulira Mujuzi
ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (UP) LLM (UFS) LLD (UWC). Professor, Faculty of Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 42 – 57
https://doi.org/10.47348/SACJ/v36/i1a3
Abstract
Section 78 of the Correctional Services Act (the Act) empowers the Minister of Justice and Correctional Services (the minister) to grant parole to an offender serving a life sentence (lifer). Between 2004 and 2008, a court had the power to place a lifer on parole. However, this power was transferred from the court to the minister in 2008. In Walus v Minister of Justice and Correctional Services, the Constitutional Court relied on the pre-2008 version of s 78 of the Act to hold that a court has the power to release a lifer on parole. The court ordered the minister to place the offender on parole after finding that the decision to decline his parole application was irrational. It is argued that although the court correctly invoked the principle of rationality to order the minister to place the offender on parole, it erred when it held that s 78 of the Correctional Services Act empowered it to order the minister to place the offender on parole. It is also argued that the court erred when it equated the non-parole period with a sentencing remark. It is argued further that since rehabilitation is the most important factor in deciding whether an offender should be granted parole, the Correctional Services Act may have to be amended to provide for the offender’s right to access effective rehabilitation programmes.