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Archives: 2015

The Copyright Infringement Judgment – Moneyweb v Fin24

Judgment was recently granted out of the Gauteng High Court (Johannesburg) in favour of Moneyweb against Fin24 for copyright infringement. The court found that three of the seven articles published by Fin24, were in part original works of Moneyweb and that Moneyweb had shown that one of the articles had in fact infringed Moneyweb’s copyright.

 

Where the articles fell short of proving a copyright infringement was in terms of Section 12(1) of the Copyright Act, which provides that

“Copyright shall not be infringed by any fair dealing with a literary or musical work… for the purpose of reporting current events…in a newspaper, magazine or similar periodical…provided that… the source shall be mentioned, as well as the name of the author if it appears on the work.”

 

Section 12(1) of the Copyright Act, said the Court, only becomes relevant after it is established that there has been a substantial reproduction of the work. Furthermore, despite substantial reproduction, if the party who has reproduced the work can prove that it dealt ‘fairly’ with the work, then that party will not be liable for copyright infringement. The court will take into account certain factors when considering ‘fairness’.

 

The court found that publishing the article entitled “Amplats:CEO cits JSE rules” constituted an infringement of Moneyweb’s copyright under the Copyright Act, and further declared that Fin24 liable to Moneyweb for damages suffered as a result of the unlawful publication.

 

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Law of Property Casebook for Students (Eighth Edition) By AJ van der Walt- Reviewed by FWB's Louis Rood

If legislation is the recipe of law, then court cases are the ingredients. It

is the judgments of our courts that both interpret and apply the law,

evaluate the evidence, asses the facts, and establish the precedents

upon which we all rely.

 

The 60 cases selected for this book include not only some of the classic

decisions dealing with the law of property, but others that are particularly

interesting, recent or topical, and demonstrate a number of important

points or principles. Wisely, the author has avoided long and difficult

judgments and rather opted for relatively brief and more pertinent

decisions.

 

This is the eighth edition of this popular casebook, which forms a

companion volume to another work in the Juta Property Law Library,

namely Introduction to the Law of Property (2016 Juta) by the same

author with Professor Gerrit Pienaar.

 

The book contains both a bilingual English and Afrikaans version for

reasons of economy and will reach a wide readership of students and

practitioners of property law. Useful and practical hints on the reading

and analysis of both cases and legislation are included. There are

explanatory notes and commentary on each of the cases, and where

appropriate, the facts of each case are summarised.

 

The cases are conveniently grouped to deal with the various aspects of

the law of property, such as ownership, possession, limited real rights in

property such as servitudes, and constitutional property law. Extracts

from selected legislation such as the Prescription Act, Deeds Registries

Act, Security by Means of Movable Property Act and the Insolvency Act

compliment the text.

 

The distinguished author Professor Andre van der Walt BIur Hons(BA)

LLB LLM LLD of Stellenbosch University has with this work continued to

contribute to and further consolidated the ever-growing and

comprehensive range of the Juta Property Law Library series in this

very important branch of private law. Students who will become the

property lawyers and judicial officers of the future will welcome and

benefit from this quality casebook.

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Lessor permitted to evict lessee upon valid termination of the lease despite lessor's lack of title

In a recent case involving Engen, the Constitutional Court (CC) has found that a subtenant is not allowed to raise a sub-lessor’s lack of title as a defence to eviction. In this matter, Engen Petroleum Ltd (Engen), entered into a lease agreement with the owner of a property. Engen then sublet the property to Mighty Solutions, the applicant, to operate an Engen-branded service station.

Some time later, Engen terminated the sublease and provided Mighty Solutions with the required notice period to vacate. Mighty Solutions, however, did not vacate and continued to operate its business using Engen’s equipment and signage – without paying rental. Following the termination of the main lease, Engen applied for an eviction order against Mighty Solutions.

The High Court found that a lessor (or sub-lessor) is allowed to evict a lessee (or sub-lessee) upon the valid termination of the lease, even if that lessor has no title to the property.

After being refused leave to appeal against this decision by the Supreme Court of Appeal, Mighty Solutions applied to the CC. The CC unanimously agreed with the High Court’s decision that a lessee or sub-lessee, upon valid termination of a lease, cannot resist eviction on the basis that a lessor or sub-lessor has not proved a right to occupy the property. The CC emphasized that this rule serves a valuable purpose and is consistent with the spirit, purport and object of the Bill of Rights and therefore ought not to be developed.

Read the judgment here: http://www.saflii.org/za/cases/ZACC/2015/34.html

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ARIPO Developments

There are currently 19 States which are party to the Lusaka Agreement and therefore members of the African Regional Intellectual Property Organization (ARIPO). These are: Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, São Tomé and Príncipe, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.

ARIPO patents, utility models and industrial designs are governed by the Harare Protocol on Patents and Industrial Designs and Regulations whilst the ARIPO trade marks are governed by the Banjul Protocol on Marks and Regulations. This was updated on 17 November 2015 and has led to the implementation of various developments including fee increases from 1 January 2016.

The definition of a ‘mark’ has also been expanded to include ‘a sign, name, word, device, brand, heading, level signature, letter, numeral or a combination thereof’. Another welcome development will be launch of electronic filings, expected in near the future.

The ARIPO system covers all Member States but the regional system complements the national industrial property system of its Member States. The sovereignty of Member States remains with each designated State having a significant say as to whether any industrial property right given by ARIPO would have effect in the State concerned.

Generally, it is a recommended route when looking to obtain patent and design registrations in the Member States. However, this is not the case with trade mark protection and it is often advised not to rely on an ARIPO trade mark registration and rather apply for protection in the individual states.

 

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The constitutional right to emergency medical treatment

Last year, the Constitutional Court (CC) highlighted the importance of the constitutional right to emergency medical treatment. The case involved a 17 year old boy who had experienced serious spinal cord injuries whilst playing rugby. The hospital that first assessed the boy did not have the facilities to treat him and so he was eventually transferred to a larger hospital after waiting a long time for an ambulance. Although the larger hospital had the equipment necessary to treat him, the decision was made to transfer the boy to another hospital that specialised in spinal cord injuries. He was finally admitted for his procedure fourteen hours after sustaining the injuries. Unfortunately, due to lack of blood supply, the boy suffered paralysis from the neck downwards which resulted in permanent quadriplegia.

An application was then brought to the Cape Town High Court which ruled that the Western Cape Department of Health was liable for the damage caused by the injuries sustained as a result of the failure to provide the necessary emergency treatment.

This decision was reversed by the Supreme Court of Appeal before it eventually made its way on appeal to the CC. A medical expert suggested that if the boy had received reasonable medical attention within four hours, there was a 64% chance of making a full or substantial recovery from harm of permanent quadriplegia. The CC emphasized that the law requires hospitals to provide urgent and appropriate medical emergency medical treatment to a person in the position of the applicant. The Western Cape Department of Health had failed to provide a reasonable explanation for the delays in performing a simple and inexpensive procedure that was both available and necessary. The CC therefore decided that the Western Cape Department of Health had breached its legal duty to provide the applicant with urgent medical treatment and had acted unlawfully.

Read the judgment here: http://www.saflii.org/za/cases/ZACC/2015/33.pdf

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FWB Associate, Brittany Badham-Thornhill, provides some wisdom on wills on personal finance and insurance website Hippo.co.za

Brittany Badham-Thornhill recently contributed to an article entitled “Write a Will and Protect Your Legacy” on personal finance and insurance website, Hippo.co.za.

Here are some excerpts from the article:

“Unlike things like Life Insurance and Funeral Cover policies, you don’t have to be over 18 to draw up a will to determine what happens to your belongings when you pass away. Brittany Badham-Thornhill, associate attorney at Fairbridges Wertheim Becker Attorneys says that according to South African law, in terms of Section 4 of the Wills Act 7 of 1953, you only need to be 16 years or older to make a will, unless you are mentally incapable of appreciating the nature and effect of entering into a will.

Badham-Thornhill also recommends that you review your will after any life changing event, given the implications this may have on your estate, for example, getting married, purchasing a house or other asset, having a child, experiencing a death in the family, or inheriting. In particular, Badham-Thornhill says that having a child will impact how your estate is managed, because of the strict rules in place to ensure that children are cared for in your absence. “A will can simplify this process and ensure that your child is looked after immediately, without having to overcome any administrative barriers first,” she says.

To read the full article click here: http://www.hippo.co.za/blog/insurance/write-a-will-protect-your-legacy/

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Fairbridges Wertheim Becker: Terralex's exclusive South African Member Firm

TerraLex is one of the world’s leading international legal networks. With more than 155 top independent law firms and more than 17,000 attorneys in 100 countries, TerraLex members provide the legal resources and expertise needed to conduct seamless business worldwide.

Membership is by invitation only and requires a careful review process. Terralex members are well recognised and respected in their local jurisdictions as well as internationally.

Members represent clients effectively because of their knowledge of local law and business customs and their expertise and experience in the practice of law, especially in the context of transnational transactions and dispute resolution. TerraLex members collaborate seamlessly with colleagues from other jurisdictions regardless of differences in legal systems and cultures.

TerraLex provides its members with opportunities to develop close personal relationships with one another and to acquire an understanding of each other’s business and legal environments. These relationships are the key to providing responsive, quality service. No matter what the issue or where in the world a challenge presents itself, TerraLex members provide prompt, responsive, and highly competent service seamlessly. Terralex’s Mission is to help member firms serve their clients’ legal needs and business interests by developing close working relationships within a worldwide network of quality law firms that meet high professional standards.

As the exclusive South African member of Terralex since 1999, Fairbridges Wertheim Becker is uniquely positioned to engage this global network of independent and trusted legal practitioners for the benefit of our clients.

For more info go to http://www.terralex.org/.

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SARS Tax Clearance Certificates

A new tax clearance system is to be rolled out by SARS. This new system is said to improve efficiency and assist both the taxpayer and third parties to check the compliance status of the taxpayer. The taxpayer will no longer need to attend at a SARS Branch to collect tax clearance certificates, and this should ease up the queues! This should greatly assist both Conveyancers and Estates Attorneys, who require tax clearance certificates for almost all their matters.

What happens if the system identifies you as non-compliant? You will be able to review where you have defaulted, because the online system will provide the taxpayer with an audit trail for all tax types.

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The battle between Apple and Samsung continues

Apple initially claimed that Samsung had infringed eight of its software patents (for example, the ‘slide-to-unlock’ feature) and claimed US$2.2 billion in damages. Apple was awarded US$120 million to be paid by Samsung in lieu of damages but in February this year the US Circuit Court of Appeals overturned the ruling stating that Samsung need not pay any infringement damages nor alter any of its designs.

As a result, Apple has argued that the court violated its Seventh Amendment of the US Constitution right to trial by a jury due to the fact that the appeal court considered new evidence, which was not introduced as evidence in the original case and facts that were put before a jury.

Accordingly, the battle between Apple and Samsung continues. The case may end up in the US Supreme Court.

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Raising a workplace dispute at the CCMA

If you have been unfairly suspended or dismissed; are in a dispute with your employer over working conditions, wages, workplace changes; or have experienced discrimination, sexual harassment or violence at the workplace, you may approach the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA is an independent dispute resolution body established in terms of the Labour Relations Act (LRA).

If the dispute concerns an unfair dismissal, you must approach the CCMA within 30 days from when the dispute arose. If the dispute concerns an unfair labour practice or discrimination, however, you have 90 days and 6 months respectively to lodge the dispute. You do not need the other party’s consent before bringing the matter to the CCMA and no lawyers are required. A union or employers’ organisation may also initiate this action.

In order to lodge a dispute, you need to complete a case referral form (LRA Form 7.11). These forms are available from the CCMA offices, Department of Labour and the CCMA website (click on the link below). A copy of the completed form must be delivered to the other party by fax, registered mail, courier or in person. A copy must also be delivered to the CCMA with the other party’s proof of receipt. The CCMA will then contact the parties and inform them of the date, time and venue of the hearing.

The first meeting is usually conciliation where the parties are led by a Commissioner in an attempt to settle the matter. No legal representation is allowed at this stage. If the parties are unable to reach an agreement, the matter will go to mediation where the Commissioner plays a more active role in trying to resolve the dispute.

If the parties are still unable to resolve the dispute, the matter may be referred to the CCMA for arbitration. Arbitration proceedings are more formal and parties are allowed legal representation. Evidence is also permitted and the parties and witnesses may be cross-examined. The Commissioner will make a final and binding decision, called an arbitration award, within 14 days after the date of the hearing. If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

Please note that disputes involving independent contractors, disputes where a bargaining or statutory council exists for that sector, disputes where a private agreement exists for their resolution (e.g. private arbitration) and cases that do not deal with an issue in the LRA or Employment Equity Act cannot be referred to the CCMA.

For more information on the CCMA, click here http://www.ccma.org.za

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Prescription: use it or lose it

Prescription is the process by which legal rights are lost as a result of a failure to take action over a period of time. Prescription is regulated primarily by the Prescription Act 68 of 1969 [http://www.saflii.org/za/legis/hist_act/pa68o1969190/pa68o1969a7a1992310.html].

It is generally accepted that the purpose of prescription is to provide certainty, especially in the case of debtors, and to encourage members of the public to actively pursue debts rightfully owed.

The Act provides that “a debt shall be extinguished after prescription of the relevant period”. Prescription, therefore, can be pleaded in any action by the Defendant but a court cannot on its own accord raise prescription as a defence.

The periods of prescription of debts are:

thirty years in respect of

Any debt secured by a mortgage bond;
any judgment debt
any debt in respect of any taxation;
any debt owed to the state in respect of mining;

fifteen years in respect of any debt owed to the state on a loan or sale or lease of land, unless a longer period  applies;
six years in respect of a debt arising out of a negotiable instrument or notarial contract unless a longer period applies;
three years in respect of any other debt unless specifically provided otherwise by statute.

Prescription begins running as soon as the debt is due unless the debtor wilfully prevents the creditor from knowing of the existence of the debt, in which case it commences to run when the creditor becomes aware of its existence.  There are a number of ways in which prescription can be interrupted but primarily, if there is an express or tacit acknowledgement of existing liability made by the debtor to the creditor or if the debtor is served with a summons, prescription will be interrupted.

To find out more about prescription and its application, in particular with regards to when prescription begins to run, see the recent case FNB & Naude v Scenematic One (Pty) Ltd which concerns the defence of prescription raised in relation to claims arising out of unauthorised debit orders.

The case is available here: http://www.saflii.org/za/cases/ZASCA/2016/60.html.

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Fairbridges Wertheim Becker at the University of the Western Cape Career Fair

Fairbridges Wertheim Becker was one of the law firms that attended the University of the Western Cape Career Fair on Tuesday 19 April. It was an exciting day speaking to law students about their studies, legal practice and working at Fairbridges Wertheim Becker. We wish you well for your studies and future legal careers.

The closing date for 2017 candidate attorney applications is 30 April 2016.

For more information about applying for articles at Fairbridges Wertheim Becker please see: http://www.fwbattorneys.co.za/candidate-attorneys/

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