Department of Mercantile Law
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Is South African trademark law out of shape? A comparative analysis of shape marks, in light of the recent SCA and CJEU Kit Kat decisions
(Juta Law, 2016-12)This article examines the recent litigation concerning the shape of the Kit Kat chocolate bar in South Africa, Europe and the UK in order to determine whether the South African legal position relating to shapes as trademarks ...
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The expediency of including claims based on disablement caused by sexual harassment in South Africas system of workers compensation
(Juta Law, 2016-12)This article investigates whether it is feasible to include compensation for disablement arising from a psychological disorder caused by sexual harassment in the South African workers’ compensation system. The authors argue ...
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Section 25 vortices (part 2)
(Juta Law, 2016-12)Even when he first identified the arbitrariness vortex, Roux pointed out that courts may well not follow the methodology set out in the FNB case strictly and that deviations might reduce the vortex effect in some cases. ...
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Section 25 vortices (part 1)
(Juta Law, 2016-10)Roux introduced the notion of the “arbitrariness vortex” to illustrate his observation that the constitutional court’s FNB decision could “telescope many of the issues that might have been addressed (and in comparative ...
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The right to a view reconsidered
(Juta Law, 2015-01)Traditionally, an existing, unimpeded view over or across neighbouring properties is considered a mere incidental advantage, interference with which is generally not actionable. Contrary to popular belief, the advantage ...
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Liability within company gr oups
(Juta Law, 2016-12)In Bank of Tokyo Ltd v Karoon the court held that the law does not involve itself with economics but with the law. This view was confirmed by the English appeal court in Adams v Cape Industries plc. These views were expressed ...
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Alternative strategies to protect the existing view from a property
(Juta Law, 2016-03)In terms of the common law, a South African property owner does not have an inherent right to the existing view from her property over adjoining properties, although the existing view from her property can be protected ...
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The interpretation of double taxation agreements : a comparative evaluation of recent South African case law
(Juta Law, 2016-10)Vogel and Rust describe the act of interpretation as unfolding a text, to bring it to be understood. The South African courts have recently had a number of opportunities to interpret double taxation agreements entered into ...
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Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 2)
(Juta Law, 2014-01)The proportionality test to determine the justification of execution against a home revolves around various contextual considerations. Yet, it appears that the enquiry will largely centre on the size of the outstanding ...
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Application of the housing clause during mortgage foreclosure : a subsidiarity approach to the role of the National Credit Act (part 1)
(Juta Law, 2014-04)Direct execution of a judgment debt against immovable property - including those burdened with mortgage bonds - is permissible in the high court on the condition that "where the property sought to be attached is the primary ...
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Some thoughts on the meaning of expenditure in the Income Tax Act
(Juta Law, 2013-01)In calculating a taxpayer’s taxable income under the Income Tax Act 58 of 1962 (“the act”), a deduction of his “expenditure … actually incurred” is allowed against the taxpayer’s income. The meaning of the word “expenditure” ...
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The enforceability of tenants rights (part 2)
(Juta Law, 2012-01)In terms of the doctrine of notice the holder of an unregistered real right is protected to the extent that the right can be enforced against outside parties on the basis of their prior knowledge of it. The doctrine ...
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The enforceability of tenants rights (part 1)
(Juta Law, 2012-01)The purpose of the article is ultimately to align our current understanding of the nature of tenants' rights, according to basic common-law property principles, with their nature and role in the new constitutional dispensation. ...
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The constitutionality of acquisitive prescription : a section 25 analysis
(Juta Law, 2012-01)Acquisitive prescription (“prescription”) is one of the original methods of acquisition of ownership in South African law. No assistance is required from the original owner; ownership vests in the possessor ex lege the ...
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Telemedicine: a South African legal perspective
(Juta Law, 2008-01)The provision of healthcare services has changed rapidly and extensively over the past century, from what we now believe to be the cruel and inhumane treatments of the past, to the brilliant advances in technology currently ...
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Copyright protection of computer programs
(Juta Law, 2016-01)This article seeks to address a misconception concerning the scope of copyright protection of computer programs. It has been suggested that unlike the US courts, the UK and South African courts have not drawn a proper ...
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Die aftrekbaarheid van rente en huurgeld vir inkomstebelastingdoeleindes
(Juta Law, 2007-01)In die onderhawige saak het BP Suid-Afrika (Edms) Beperk ("BPSA") op 'n kwartaallikse grondslag dividende aan sy houermaatskappy, BP Plc, verklaar. Sodanige verklarings is deur die houermaatskappy vereis. BPSA het in die ...
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Transformative constitutionalism and the development of South African property law (part 2)
(Juta Law, 2006-01)South African courts and academic commentators had relatively frequent re- course to German theory on the application issue during the early stages of constitution writing and the development of a new constitutional ...
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Transformative constitutionalism and the development of South African property law (part 1)
(Juta Law, 2005-01)One of the most complicated and controversial questions in contemporary South African legal theory is whether (and how, and why) constitutional provisions - particularly the rights provisions in the bill of rights - can ...
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Vicarious liability of employers : reconsidering risk as the basis for liability
(Juta Law, 2005-02)Vicarious liability is a doctrine of liability without fault in terms of which one person is held liable for the unlawful acts of another. In the context of the employment relationship, the employer can be held liable ...
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Extending the lessors tacit hypothec to third parties property
(Juta Law, 2015-01)In case law the lessor’s tacit hypothec has been extended to cover movable property belonging to a third party. This extension of the hypothec is reasonably well established, but there is some uncertainty about the reasons ...
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Protection for homes during mortgage enforcement : human-rights approaches in South African and English law
(Juta Law, 2015-01)This article investigates the enforcement of mortgages in South Africa and England. It specifically focuses on the influence of human-rights housing principles in so far as they may require courts to conduct a proportionality ...
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The case in favour of substantive tenure reform in the landlord-tenant framework : the Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele; City of Johannesburg Metropolitan Municipality v Blue Moonlight
(Juta Law, 2011-01)The tenure reform programme, which forms part of the land reform programme, consists of two strategies. These are, first, the transformation of weak tenure through the implementation of dedicated structural reforms, and ...
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Sport and nuisance law
(Juta Law, 2010-01)The author analyses the Supreme Court of Appeal decision in Allaclas Investments (Pty) Ltd v Milnerton Golf Club and concludes that there is a good explanation for the seemingly harsh decision to interdict the golf club ...
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Replacing property rules with liability rules : encroachment by building
(Juta Law, 2008-12)According to South African common law, movables attached permanently to land lose their independence and become part of the land; the landowner 'acquires' ownership of them through accession. In encroachment cases it has ...
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Developing the law on unlawful squatting and spoliation
(Juta Law, 2008-01)The Supreme Court of Appeal (SCA) made it clear from the outset that it was determined somehow to rectify the situation. The court pointed out that the illegal eviction did not merely violate the constitutional and statutory ...
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Steel and propane : the efficiency defence and horizontal mergers
(Juta Law, 2008-01)This contribution evaluates the impact of s 12(1)(a)(i) of the Competition Act 89 of 1998 (the 'efficiency defence') on horizontal mergers - that is to say, mergers between firms that compete in the same markets. Horizontal ...
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To debar or not to debar : when to endorse a contractor on the register for tender defaulters
(Juta Law, 2008-01)The Prevention and Combating of Corrupt Activities Act 12 of 2004 (the Corruption Act) provides in s 29 for the creation by the National Treasury of a Register for Tender Defaulters. A court convicting a contractor on ...
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Constitutionalization and the International Criminal Court : whither individual criminal liability for aggression
(Juta Law, 2008-01)The Rome Statute of the International Criminal Court provides for the criminalization of the most serious crimes under international law, including aggression. However, the International Criminal Court can only exercise ...
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Reconciling the state's duties to promote land reform and to pay just and equitable compensation for expropriation
(Juta Law, 2006-01)The apparent conflict between the state’s duties to promote land reform (specifically equitable access to land, as provided for in s 25(5) of the Constitution, 1996) and to pay just and equitable compensation for expropriation ...
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