Case Law
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Coldplay copying other artists? Coldplay’s latest single, “Every Teardrop Is A Waterfall” had been released for only hours, if not minutes, when accusations of plagiarism surfaced from all corners. It only takes listening to the first few seconds of the new Coldplay song to recognise the striking similarity between it and the opening melody of the piano riff of the 1976 song performed by Peter Allan, “I Go To Rio”. |
| 20/06/2011 |
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SWARTLAND – A Double Agent The case of Groupe LFE (SA) (Pty) Limited v Swartland Winery Limited (467/2009) turned on whether “Swartland” is the name of a wine growing area in the Western Cape, a trade mark under which the Respondent sells its wine (grown in the same area), or, surprisingly, both. |
| 20/06/2011 |
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What is the effect of an incomplete deed of suretyship? In terms of our law and in particular the General Law Amendment Act No. 50 of 1956 (“the Act”) no contract of suretyship shall be valid unless the terms thereof are embodied in a written document signed by or on behalf of the sureties. There are 5 essential terms which need to be contained in a contract of suretyship, namely the identity of the creditor, the debtor, the surety and the nature and amount of the principal debt. Failure to complete the essential terms of the suretyship agreement would mean that the contract would be invalid for failure to comply with the statutory formalities. |
| 18/03/2011 | Posted in: Civil Litigation |
 Is an attorney allowed to set-off fees due to him against money collected by him on behalf of client The above question was raised in the matter of Blakes Maphanga Incorporated vs Outsurance Insurance Company Limited, a matter which was heard in the Supreme Court of Appeal (SCA). |
| 18/03/2011 | Posted in: Commercial Law |
 In the matter of Lombaard vs Droprop CC and Others, the Supreme Court of Appeal (SCA) was called on to adjudicate on the validity of an agreement of sale concluded when an option was exercised. Briefly, the purchaser applied for an order compelling the sellers to transfer certain immovable property to him. The purchaser alleged that an agreement of sale had come into being pursuant to the exercise of an option to purchase, contained in an agreement of lease between him (as the lessee) and the seller (as the lessor). |
| 18/03/2011 | Posted in: Commercial Law |
 For just over a decade, promotional competitions have been regulated by the Lotteries Act, 1997, which has been in effect since 1 March 2000. Attorneys, in-house counsel and other legal practitioners have become used to advising on the legality of promotional competitions with reference to section 54 of the Lotteries Act and the regulations promulgated under that section. But when the Consumer Protection Act, 2008 (“the CPA”) comes into force on 31 March 2010, as expected, the regulation of promotional competitions in South Africa will change significantly. The CPA will replace the Lotteries Act’s current definition of “promotional competition”. In future, section 1 of the Lotteries Act will define a “promotional competition” as having the meaning set out in section 36 of the CPA. |
| 18/03/2011 | Posted in: Competition Law and Commercial Law |
 In a judgment handed down on 29 November 2010 in the matter between the Minster of Trade and Industry v E L Enterprises (193/10) [2010], the Supreme Court of Appeal considered the correct procedure to be followed in applications to confirm the seizure without a warrant of suspected counterfeit goods. The procedure is prescribed by Section 5(4)(a) of the Counterfeit Goods Act No. 37 of 1997 (“the Act”). Since the commencement of the Act, the practice has been to bring a full-blown High Court application under the section on notice to the respondents. The court held that this is not the procedure contemplated by the section; though an applicant would not be non-suited by doing so provided that the application is at least issued within the prescribed time period. |
| 18/03/2011 | Posted in: Intellectual Property |
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SMEs underusing Competition Act’s powers Small and medium-sized enterprises (SMEs) are underusing the Competition Act’s powers that afford such businesses the opportunity to enter into preferential agreements with larger com- panies, says legal firm Adams & Adams competition law practice group member Jac Marais. The Act’s aims, in section 2, include the promotion of equal opportunities for SMEs, as well as the spreading of ownership to historically disadvantaged persons. |
| 18/03/2011 | Posted in: Competition Law and Commercial Law |
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When is research & development tax deductable? The South African government introduced Section 11D of the Income Tax Act number 58 of 1962 to encourage and incentivise private sector investment towards the research and development of scientific or technological activities. The Act assists in ensuring that research and development activities are conducted within South Africa, and this will ultimately resulting in a positive economic growth. Section 11D of the Act provides for two types of incentives - a 150 percent deduction of operating expenses and accelerated depreciation of any building or part thereof, machinery, plant, implements, utensil or article. |
| 18/03/2011 | Posted in: Commercial Law and Tax Law |
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Recognition of a decision on restoration of priority under PCT in South Africa In terms of the Paris Convention, a patent application may claim priority from a prior filed application in a convention country relating to the same subject matter, provided that the prior filed application in the convention country was lodged not earlier than one year before lodgement of the application claiming priority. In other words, there exists a 12 month period in which to claim priority. Rule 26bis.3 of the regulations of the Patent Cooperation Treaty (PCT) makes provision for the restoration of the right to claim priority if an international application has an international filing date which is later than the date on which the priority period expired but within the period of two months from that date. Upon request of the applicant, the receiving Office shall restore the right of priority if the Office finds that a criterion applied by it (“criterion for restoration”) is satisfied, namely, that the failure to file the international application within the priority period: (i) occurred in spite of due care required by the circumstances having |
| 18/03/2011 |
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The impact of the Road Accident Fund Amendment Act on the legal profession On 25 November 2010, the Constitutional Court delivered judgment in the Law Society of South Africa and 10 others’ constitutional challenge to certain provisions of the Road Accident Fund Amendment Act of 2005 (“Amendment Act”). To qualify for a reasonable claim under the Amendment Act, a claimant has to prove that he/she sustained at least a serious injury. The Amendment Act not only limits the number of road accident victims who will be able to claim from the RAF, but also limits the value of their claims, as a result of the limiting provisions relating to general damages and the caps imposed on loss of income or support. |
| 18/03/2011 |
 This was the question which the Supreme Court of Appeal (SCA) had to answer in the matter of Delphisure Group Insurance Brokers Cape (Pty) Ltd vs Dippenaar and Others. The first and second respondents in the appeal, Dippenaar and another, were wheat farmers in the Western Cape who instituted a claim against the appellant, Delphisure. The appellant was an insurance broker that sole crop insurance product known as Farmsure. |
| 18/03/2011 |
 In terms of our law and in particular the General Law Amendment Act No. 50 of 1956 (“the Act”) no contract of suretyship shall be valid unless the terms thereof are embodied in a written document signed by or on behalf of the sureties. There are 5 essential terms which need to be contained in a contract of suretyship, namely the identity of the creditor, the debtor, the surety and the nature and amount of the principal debt. Failure to complete the essential terms of the suretyship agreement would mean that the contract would be invalid for failure to comply with the statutory formalities. In the recent matter of Nedbank Limited vs Wizard Holdings (Pty) Ltd and Others the Johannesburg High Court considered an application or summary judgment by the Bank against the defendants who were sureties for a close corporation. |
| 18/03/2011 |
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South Africa: a debtor’s paradise or not? In terms of Section 86(10) of the National Credit Act No. 34 of 205 (“the NCA”), where a consumer is in default under a credit agreement that is being reviewed in terms of that Section, the credit provider in respect of that agreement may give notice in the prescribed manner to the consumer, to terminate that review, to the debt counsellor and the National Credit Regulator, at any time at least 60 business days after the date on which the consumer applied for debt review. |
| 18/03/2011 |
 The Consumer Protection Act, 2008 (the CPA) is coming into force on 31 March 2011. It will have a significant effect on the supply of goods and services. The act will also regulate the relationship between suppliers and consumers in detail. One of the most controversial provisions of the CPA relates to the liability of suppliers. If someone supplies goods, and those goods cause harm to the consumer, the supplier will be liable for the harm. This will be the case even if the supplier was not negligent. Further, all parties in the supply chain can be held liable by the consumer. This includes the manufacturer, the wholesaler and the business that sells the goods to the public. |
| 18/03/2011 | Posted in: Banking Law and Civil Litigation |
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The firm practises directly in several Southern African countries and through long-established associates in others.
