Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Improving access to medicines in the SADC region through patent opposition: Law reform inspirations from an unlikely jurisdiction

Author Lonias Ndlovu

ISSN: 2521-2591
Affiliations: Associate Professor and Interim Director, School of Law, University of Venda, Thohoyandou, South Africa
Source: South African Intellectual Property Law Journal, 2022, p. 105 – 130
https://doi.org/10.47348/SAIPL/v10/a5

Abstract

This article surveys the patent opposition legal landscape in the SADC region and justifies the importance of patent opposition for access to essential medicines by SADC citizens. The article uses Thailand as a comparative jurisdiction and, after taking a closer look at the patent opposition provisions of the laws of Botswana, Malawi, Zambia and Zimbabwe, the article advances the view that the SADC patent law reform agenda can learn a lot from its Thai counterpart on pharmaceutical patent opposition. Most SADC members with patent opposition provisions in their laws provide for pre-grant rather than post-grant opposition. Generally, pre-grant and post-grant patent opposition procedures ensure that only deserving patents may be successfully applied for and granted. The article concludes that the Thai pre-grant opposition procedures are an example of progressive law, which the SADC region should consider emulating to improve access to affordable essential medicines. The Thai experience may provide helpful and practical pointers for some SADC members when their patent opposition procedures are eventually tested before the courts and intellectual property tribunals.

Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

by | Feb 9, 2023 | SAIPLJ, SAIPLJ 2022

Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33

Author Bongiwe Zungu

ISSN: 2521-2591
Affiliations: Lecturer in Commercial Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2022, p. 131 – 143
https://doi.org/10.47348/SAIPL/v10/a6

Abstract

Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights of persons with print and visual disabilities. The threatened rights include the right of access to information, the right to education, the right to equality and the right to human dignity. South Africa has been undergoing a process of copyright reform for over 15 years to remedy the violation of these rights. However, pending the finalisation of this process, the threat to these rights persists, and the matter thus warranted the intervention of the apex court in Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33. This note first considers the regulation of copyright in South Africa to provide context. The note then analyses the Constitutional Court’s decision and considers the decision of the court a quo to provide some background on the matter. The note ends with an analysis of the implications of the judgment for persons with print and visual disabilities and a discussion of issues that the court did not consider.

Gender-based violence and the judiciary: Reflections on the role of the courts in safeguarding the dignity, safety and freedom of women

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Gender-based violence and the judiciary: Reflections on the role of the courts in safeguarding the dignity, safety and freedom of women

Author: Leona Theron

ISSN: 2958-4973
Affiliations: Justice of the Constitutional Court of the Republic of South Africa
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 1-18
https://doi.org/10.47348/JSAC-IAWJ/2023/a1

Abstract

The number of reported cases of sexual offences is rapidly increasing in South Africa. Parliament has responded to this phenomenon by making various important legislative reforms. Our Constitution recognises, however, that beyond legislative reform, our courts must ensure the transformation of society to ensure that South Africa truly belongs to all who live in it. This means that the courts must confront patriarchal norms entrenched in South Africa’s criminal justice system and in the law itself. The courts have responded to this challenge with commendable vigour. The most recent development is the Constitutional Court’s decision in Tshabalala v S. This case demonstrates the role that our courts can and must play during the ‘pandemic’ of sexual and gender-based violence.

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

Author: S E Weiner

ISSN: 2958-4973
Affiliations: BA LLB; Judge of the Supreme Court of Appeal
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 19-50
https://doi.org/10.47348/JSAC-IAWJ/2023/a2

Abstract

Since the advent of the constitutional era, the law of contract and the maxim pacta sunt servanda have been the subject of much jurisprudential discourse. Restraint of trade agreements have, on occasion, been regarded by our courts as distinct from other contracts, with some judges believing that such contracts should be treated with more circumspection and outside the confines of the principles applicable in our law of contract. In Magna Alloys the Appellate Division laid down the general principle that, prima facie, contracts in restraint of trade are valid and enforceable. The employee bears the onus of showing that the restraint is unreasonable and contrary to public policy. Some jurists believe, however, that the application of constitutional principles requires a revision of our jurisprudence in relation to contracts in restraint of trade. This article analyses some of the judgments dealing with the concept of pacta sunt servanda and the application of constitutional values in the decision-making process, and shows that there is no need to cavil against the existing jurisprudence and to treat contracts in restraint of trade as sui generis or more stringently. Although most of the authorities quoted in this article deal with our law of contract in general, such principles have been held by the Supreme Court of Appeal and the Constitutional Court to apply equally to contracts in restraint of trade.

Women pioneers in the judiciary programme – supporting women judges and law students in Southern Africa

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Women pioneers in the judiciary programme – supporting women judges and law students in Southern Africa

Author: Baratang Constance Mocumie

ISSN: 2958-4973
Affiliations: LLM (UNISA); Judge of the Supreme Court of Appeal, South Africa; member of the South African Chapter – International Association of Women Judges; former President, SAC-IAWJ
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 51-68
https://doi.org/10.47348/JSAC-IAWJ/2023/a3

Abstract

Most women in the judiciary and legal practice have no one to mentor them. Those potential mentors who are in senior positions are in court at the same time as the junior women are. The opportunity to empower each other (to bring about the achievement of equality, the empowerment of those previously disadvantaged, and the promotion of the rule of law and justice) is hard to find or create on an individual basis. Women who wish to share their experiences with others to empower them so that they can do the same for others can do so through programmes specifically designed by their associations to meet these objectives. This article explains what the South African Chapter of the International Association of Women Judges (SAC-IAWJ) has done over the years to empower women (those on the bench, those studying law, and those The Competition Appeal Court as a specialist court: in practice) and young people in general. The uniqueness of the various programmes lies not only in empowering women but also in instilling a sense of pride and acknowledging women and their contribution to the development of the law.

To video link or not to video link? Safeguarding vulnerable persons’ right of access to courts in civil matters

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

To video link or not to video link? Safeguarding vulnerable persons’ right of access to courts in civil matters

Author: YT Mbatha

ISSN: 2958-4973
Affiliations: B Proc, Judge of the Supreme Court of Appeal
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 69-102
https://doi.org/10.47348/JSAC-IAWJ/2023/a4

Abstract

The purpose of this article is to highlight the need for video link conferences, particularly in civil cases. The articles also deals with the challenges faced by the courts during the COVID-19 pandemic and its impact on access to justice. The article traverses various judgments which highlight the need for South African courts to adapt their systems in line with the technology of foreign jurisdictions, especially the United States, Australia and the United Kingdom. This article emphasises that access to court via video link should not only be available in emergency situations but should also be used to safeguard the rights of vulnerable persons.

The Competition Appeal Court as a specialist court: The challenge of retaining judges

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

The Competition Appeal Court as a specialist court: The challenge of retaining judges

Author: NP Mabindla-Boqwana

ISSN: 2958-4973
Affiliations: BProc LLB (Wits); Judge of the Supreme Court of Appeal
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 103-110
https://doi.org/10.47348/JSAC-IAWJ/2023/a5

Abstract

Competition law is about promoting competition in economic markets. It exists to prevent market distortion caused by anti-competitive conduct and practices. To help that process, policymakers have chosen competition law as one of the tools to promote that aim through the Competition Act 89 of 1998. The Competition Appeal Court (CAC) was created centrally to give effect to the aims of the Act. This article focuses on the CAC as a specialist court and considers how the challenge of retaining its judges in the long term can be overcome.

Dismantling South Africa’s scourge – the Constitutional Court rules rape an abuse of power: Tshabalala v S; Ntuli v S

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Dismantling South Africa’s scourge – the Constitutional Court rules rape an abuse of power: Tshabalala v S; Ntuli v S

Authors: Sisi Khampepe and Emily van Heerden

ISSN: 2958-4973
Affiliations: B Proc (Zululand) LLM (Harvard); Justice of the Constitutional Court of South Africa; BA (Law) LLB (Stellenbosch) BCL MPhil (Law) (Oxford); Law clerk to Justice Sisi Khampepe
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 111-117
https://doi.org/10.47348/JSAC-IAWJ/2023/a6

Abstract

In December 2019, the Constitutional Court handed down a significant judgment in the matter of Tshabalala v S, Ntuli v S 2020 (5) SA 1 (CC), holding that the doctrine of common purpose applies to the common-law crime of rape. The judgment has been hailed as an important contribution to South Africa’s jurisprudence and, particularly, to the judiciary’s promise to address gender-based violence in South Africa at a time when numerous cases of gender-based violence and femicide are facing the courts. This case note argues that the judgment is noteworthy for three main reasons. First, the judgment settles the uncertainty in South African law regarding the concept of instrumentality and the applicability of the doctrine of common purpose to the crime of rape. Secondly, it emphasises that rape is more than a sexual act; it is also an unconscionable abuse of power over the most vulnerable members of society. Thirdly, the concurring judgments centre the lived experiences of black women and acknowledge intersecting power inequalities in our society, thereby advancing the project of substantive and meaningful adjudication in South African jurisprudence.

The implications of Office of the Children’s Lawyer v Balev 2018 scc 16 for the interpretation of ‘habitual residence’ in the Hague Convention on the Civil Aspects of International Child Abduction (1980)

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

The implications of Office of the Children’s Lawyer v Balev 2018 SCC 16 for the interpretation of ‘habitual residence’ in the Hague Convention on the Civil Aspects of International Child Abduction (1980)

Author: H K Saldulker

ISSN: 2958-4973
Affiliations: BA LLB (University of Durban-Westville); Judge of Appeal, Supreme Court of Appeal.
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 118-127
https://doi.org/10.47348/JSAC-IAWJ/2023/a7

Abstract

The Hague Convention on the Civil Aspects of International Child Abduction (1980) is aimed at securing the prompt return of children wrongfully removed to or retained in any contracting state so that the rights of custody and access under the laws of the contracting state are effectively respected. This case note discusses the implications of Office of the Children’s Lawyer v Balev 2018 SCC 16 for the interpretation of the words ‘habitual residence’. The case adopts a hybrid approach instead of a parental intention or a child-centred approach. The hybrid approach is premised on a fact-based inquiry which takes into account the actual circumstances of the child’s life. Using this approach, a judicial officer considers all connections and circumstances, namely, the child’s links to and the circumstances in country A, the circumstances surrounding their move to country B, and the child’s circumstances and environment in country B. Other considerations such as the reasons for the child’s stay and the circumstances of the parents are also relevant. This method envisages a purposive approach into the inquiry for the prompt and expeditious return of the children.

Book Review: The Art and Craft of Judgment-Writing: A Primer for Common Law Judges. Max Barrett

by | Jan 29, 2023 | JSAC-IAWJ, JSAC-IAWJ 2023

Book Review: The Art and Craft of Judgment-Writing: A Primer for Common Law Judges. Max Barrett

Author: Elmien du Plessis

ISSN: 2958-4973
Affiliations: North-West University
Source: Journal of the South African Chapter of the International Association of the Women Judges, Issue 1, 2022, p. 128-132
https://doi.org/10.47348/JSAC-IAWJ/2023/a8

Abstract

None