A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

A legislative framework for shareholder approval of political donations and expenditure by companies in South Africa

Author: Vela Madlela

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Law Journal, Volume 140 Issue 1, p. 126-169
https://doi.org/10.47348/SALJ/v140/i1a6

Abstract

Political donations and expenditure by companies raise serious concerns due to poor corporate governance practices, which include the lack of accountability of directors to shareholders. The shareholders’ right to vote is one of the company-law mechanisms that may be used to control the directors’ discretion regarding political donations and expenditure. However, the Companies Act 71 of 2008 does not give shareholders the right to approve a company’s political donations or expenditure. Consequently, the directors enjoy a wide general discretion regarding a company’s political donations and expenditure. The article examines certain key policy considerations concerning the introduction of prior shareholder approval of political donations and expenditure by companies in South Africa. It examines the legislative requirements regarding shareholder approval of political donations and expenditure in the UK under Part 14 of the Companies Act, 2006, the philosophical rationale underpinning these legislative requirements, and the extent to which the introduction of shareholder approval of political donations and expenditure in the UK has achieved the underlying objectives of promoting transparency and accountability. The article then advocates for the introduction of the requirement for prior shareholder approval of political donations and expenditure under the South African Companies Act, and provides detailed recommendations on how such requirements could be implemented.

Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

Reflecting on the tension between the development of the common law and the doctrine of separation of powers in Paulsen v Slip Knot Investments 777 (Pty) Ltd

Author: Ndivhuwo Ishmel Moleya

ISSN: 1996-2177
Affiliations: Attorney of the High Court of South Africa
Source: South African Law Journal, Volume 140 Issue 1, p. 170-193
https://doi.org/10.47348/SALJ/v140/i1a7

Abstract

This article analyses the adjudicative approaches adopted by the main judgment of Madlanga J and the concurring majority judgment of Moseneke DCJ in Paulsen & another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC). The point of divergence between the judgments concerns the discordant relationship between the doctrine of separation of powers and the powers of the courts to develop the common law under s 39(2) of the Constitution. The argument developed in this article is that the developmental powers of the courts should not be curtailed on the basis of a broadly and vaguely conceptualised doctrine of separation of powers, but on a clear and circumscribed doctrine that is congruent with the transformative objectives of s 39(2) of the Constitution. The article endeavours to set out the limited circumstances under which the developmental powers of the courts should be limited in terms of the doctrine of separation of powers.

The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

Authors: Amy Harpur Gevers & Vishal Surbun

ISSN: 1996-2177
Affiliations: Legal Practitioner of the High Court of South Africa; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 140 Issue 1, p. 194-219
https://doi.org/10.47348/SALJ/v140/i1a8

Abstract

The definition of ‘maritime claim’ in s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 is the gatekeeper to the exercise of admiralty jurisdiction. It is accordingly critical that the process of classifying a claim as a maritime claim is certain and predictable. However, the elasticity of the wording in the definition can create confusion for claimants in borderline cases. In Kuehne & Nagel (Pty) Ltd v Moncada Energy Group SRL 2016 JDR 0312 (GJ) the court formulated the ‘legally relevant connection’ test to assist it in classifying a claim to enforce a demand guarantee. The test was subsequently relied on in Twende Africa Group (Pty) Ltd v MFV Qavak 2018 JDR 0238 (ECP) in classifying a damages claim for unlawful contractual interference. This article examines the ‘legally relevant connection’ test in the context of both cases to assess whether it is consistent with the definition of ‘maritime claim’. We show that the reasoning followed in Kuehne & Nagel is flawed in several respects, revealing certain fundamental weaknesses of the test. However, the decision in Twende demonstrates that the test is capable of yielding results that align with the policy justification for the exercise of admiralty jurisdiction.

Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021)

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021)

Author: Gerhard Lubbe

ISSN: 1996-2177
Affiliations: University of Stellenbosch
Source: South African Law Journal, Volume 140 Issue 1, p. 225-233
https://doi.org/10.47348/SALJ/v140/i1a10

Abstract

None

Deficiencies in the tests for distinctiveness and reputation: A discussion of passing off in light of Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Deficiencies in the tests for distinctiveness and reputation: A discussion of passing off in light of Koni Multinational Brands (Pty) Ltd v Beiersdorf AG

Author Safura Abdool Karim

ISSN: 2521-2591
Affiliations: PhD candidate, University of KwaZulu-Natal; Pupil Advocate, Johannesburg Society of Advocates
Source: South African Intellectual Property Law Journal, 2022, p. 1 – 13
https://doi.org/10.47348/SAIPL/v10/a1

Abstract

The delict of passing off has evolved and expanded incrementally over time and remains a powerful means of protecting unique aspects of one’s products. While passing off seeks to prevent unlawful competition, courts are tasked with balancing which interests ought to be protected by passing off claims against the need to allow market forces and not to unduly constrain competition. The test for passing off has consisted of proof of reputation, misrepresentation and damage. A fundamental component of establishing reputation has been the need to demonstrate its distinctiveness. Notwithstanding this, the law on passing off has also developed to exclude ‘legitimate copying’ – especially where a particularly successful get-up transforms into a market standard. The Supreme Court of Appeal’s decision in Koni Multinational Brands (Pty) Ltd v Beiersdorf AG is an opportunity to consider how these concepts operate in a market where many products share similar features, and where the claimant controls a significant proportion of the market share. While Koni offers much food for thought, this article seeks to explore its treatment of distinctiveness in the context of proving reputation and to offer a pathway to develop this test in a manner that better promotes consumer interests and preserves fair competition.

The quest to use CRISPR technology in tackling the South African tuberculosis epidemic: Examining how the crispr patent and licensing regime may impact access to CRISPR-related tuberculosis therapies

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

The quest to use CRISPR technology in tackling the South African tuberculosis epidemic: Examining how the crispr patent and licensing regime may impact access to CRISPR-related tuberculosis therapies

Author Tamanda Kamwendo

ISSN: 2521-2591
Affiliations: Lecturer, Private Law Department, University of the Free State
Source: South African Intellectual Property Law Journal, 2022, p. 14 – 37
https://doi.org/10.47348/SAIPL/v10/a2

Abstract

Tuberculosis (TB) continues to be the top killer disease in South Africa; there is little hope of a very efficient treatment in the near future. It is therefore becoming increasingly clear that the long-term solution to TB requires more than simply adding to the current arsenal of TB drugs. A treatment that provides quicker and long-lasting results is needed. Public health innovations such as genome editing present a promising therapeutic paradigm shift in terms of TB immunisation or treatment. The diversity of the Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR)-Cas9 genome-editing technology holds promise in its ability to alter the genome and to control gene expression. While the promotion of CRISPR research is a crucial public health intervention, the realm of patent laws clashes with promoting public health needs, which may delay the speedy use of this technology for disease treatment. For that reason, in this article, I discuss the South African CRISPR patent landscape and its impact on the proposed applications of genome editing technology in public health. I explore the complexities raised by the CRISPR patent landscape and how that may lead to high prices for these CRISPR therapies – thereby limiting patients’ access. I conclude by proposing recommendations on how we can efficiently bridge the disconnect between the existing CRISPR patents and access to CRISPR therapeutics as a public health benefit.

Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Nigerian intellectual property protection for small and medium-sized enterprise (SME) fashion designers in the digital economy

Author Ifeoma Ann Oluwasemilore

ISSN: 2521-2591
Affiliations: Senior lecturer, Department of Commercial and Industrial Law, Faculty of Law, University of Nigeria, Nigeria.
Source: South African Intellectual Property Law Journal, 2022, p. 38 – 65
https://doi.org/10.47348/SAIPL/v10/a3

Abstract

Nigerian fashion entrepreneurs are finding the market increasingly appealing due to the growing viability of small and medium-size enterprises (SMEs) in the fashion industry, particularly online retail fashion stores, and the easy accessibility of the Internet and digital media. However, with intellectual capital being the hallmark of the fashion industry, the nearly constant violation of intellectual property (IP) rights is a threat to the fashion sector’s continued existence and profitability in Nigeria. Fashion businesses are thwarted by an antiquated IP regime and the conflicting decisions of the courts on infringement cases which continue to frustrate the marketing of fashion brands on social media. This study used a descriptive and analytical approach, relying on both primary and secondary data, to analyse and assess the laws available for the protection of fashion designers’ intellectual works. The study also considers the various developments in fashion IP protection in more advanced countries, such as the United States and in the European Union, and makes practical recommendations to support the growth of IP law, fashion legislation and the Nigerian fashion industry in the digital economy.

Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals

Author Sanya Samtani

ISSN: 2521-2591
Affiliations: Postdoctoral research fellow at the South African Research Chair Initiative in International and Constitutional Law, Department of Public Law, University of Pretoria
Source: South African Intellectual Property Law Journal, 2022, p. 66 – 104
https://doi.org/10.47348/SAIPL/v10/a4

Abstract

Although the COVID-19 pandemic has receded from daily news coverage, it still continues. Despite states committing to a human rights approach to ending the pandemic, and bearing human rights obligations to that effect, they have under-realised these obligations during this crisis. This article identifies the institutional design of the international trade regime as one of the key reasons for this failure. The article analyses the COVID-19 TRIPS waiver proposals and the Geneva package outcome emerging from the World Trade Organisation (WTO). It focuses on one aspect of both waiver proposals that is absent from the Geneva package outcome: states’ commitment to refrain from approaching the WTO Dispute Settlement System (DSS). The article argues that state parties to international human rights treaties and the WTO-covered agreements bear concurrent trade, intellectual property and human rights obligations. While international law requires states to harmoniously interpret these obligations to give effect to all of them, states have failed to do so. Instead, states’ trade and intellectual property obligations have become hegemonic, leading to the prioritisation of the market at the cost of human lives during one of the biggest humanitarian crises in recent memory, and necessitating the waiver proposals. The article concludes that, in the short term, waivers of intellectual property obligations as well as commitments not to bring actions at the WTO DSS are crucial to ensure that states can fulfil their human rights obligations during pandemics. In the longer term, this state of affairs highlights the need for rethinking existing international legal structures and the values that they promote.