Department of Private Law
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- ItemDeprivation of trade marks through state interference in their usage(Stellenbosch : Stellenbosch University, 2013-05) Dean, Owen H.; SU Language Centre; SUNMeDIAOwen Dean holds the degrees BA (Law), LLB and LLD from Stellenbosch University, obtained in, respectively, 1964, 1966 and 1989. He is admitted to practice as an attorney in South Africa, Namibia and Botswana. Dean is a previous Chairman, presently a consultant, of Spoor and Fisher, leading intellectual property attorneys. His personal fields of specialisation include trade mark and copyright law, with a special emphasis on litigation and opinion work. He served on the Government’s Advisory Committee on Intellectual Property Law for 20 years and as Chairman of the Copyright Subcommittee of that committee. He is also a former President of the South African Institute of Intellectual Property Law. He conceived and chaired the Drafting Committee of the Counterfeit Goods Act and also conceived and drafted section 15A of the Merchandise Marks Act (ambush marketing). Dean is the author of the Handbook of South African Copyright Law; the author of the chapter on “South Africa” in International Privacy, Publicity and Personality Laws, edited by Michael Henry; the author of the chapter on “South Africa” in Copyright: World Law and Practice, edited by Morag McDonald, Uma Suthersanen and Cristina Garrigues; and co-author of the title “Copyright” in Butterworths Forms and Precedents. Dean has served as a member of the international editorial boards of Copyright World and Entertainment Law Review. He has published articles in, inter alia, the following journals: Trademark World, Copyright World, Managing Intellectual Property, European Intellectual Property Review (EIPR), Entertainment Law Review, Canadian Intellectual Property Review, De Rebus, Tydskrif vir Hedendaagse Romeins-Hollandse Reg/Journal of Contemporary Roman- Dutch Law, South African Law Journal, Businessman’s Law, Stellenbosch Law Review, SA Mercantile Law Journal, Juta’s Business Law, Responsa Meridiana and Encyclopaedia of Brands and Branding. Dean is a frequent speaker on intellectual property matters at seminars and conferences, including international meetings organised by the International Trademarks Association (INTA), the Institute of Trademark Agencies (ITMA) the World Intellectual Property Organisation (WIPO) and the International Association of Entertainment Lawyers (IAEL). He has lectured on intellectual property law at the University of the Witwatersrand, the University of Cape Town, Rhodes University, Stellenbosch University and the Rand Afrikaans University (now University of Johannesburg). Dean has been appointed to the Panel of Adjudicators for South African Domain Name Disputes, the World Intellectual Property Organization Panel of Arbitrators for Domain Name Disputes, the Stellenbosch University Business School Panel of Mediators and the Intellectual Property Panel of the Arbitration Federation of South Africa (AFSA). He was listed as a Senior Statesman of Intellectual Property and a Key Individual of Spoor and Fisher by Chambers and Partners in 2012 and 2013 in the Global- Wide and Pan-Regional sections of the Chambers Global rankings. With effect from 2011, he was appointed as a professor at the Faculty of Law at Stellenbosch University, where he is the incumbent of the Anton Mostert Chair of Intellectual Property Law.
- ItemRe-evaluating the court system in PIE eviction cases(Juta Law, 2018) Cloete, Clireesh; Boggenpoel, Z. T.The nexus between the court system (meaning in this note the civil-procedure rules and conventions according to which a matter is litigated) and the application of ss 4(1) and 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE’) is the focus of this note.
- ItemThe role played by trust in imposing vicarious liability on the state for the intentionally committed violent crimes of police officers(Juta Law, 2018) Wessels, A. B.In recent years the state’s delictual liability has been expanded to a significant degree. Although the state has been held liable in delict for harm arising from a diverse array of factual scenarios (see eg the South African Law Reform Commission “Medico-legal Claims” Paper 33, Project 141 (2017)), the overwhelming number of the state-liability cases appear to deal with harm arising from violent crime. In this context, courts have held the state (mostly the minister of safety and security or, as the office is now known, the minister of police) vicariously liable in two types of circumstances. On the one hand liability has followed where state employees (mostly police officers, but also other state employees such as public prosecutors) negligently and wrongfully failed to prevent the plaintiff’s harm arising from a crime (eg Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA); Van Eeden v Minister of Safety and Security 2003 1 SA 389 (SCA); Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) and Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA)). In other instances vicarious liability has been imposed on the state for the harm that was intentionally and wrongfully caused by its employees (eg K v Minister of Safety and Security 2005 6 SA 419 (CC) and F v Minister of Safety and Security 2012 1 SA 536 (CC)). This note focuses on aspects related to the judicial expansion of the state’s liability for harm arising from crime in the latter situation. It does so for the following reason. Two recent judgments by the supreme court of appeal have been criticised as undermining the stability that was introduced into this area of the law by the leading judgment of the constitutional court in the K (CC) case (Scott “Intentional delicts of police officers: a hiccup from the supreme court of appeal” 2017 TSAR 872 874-875). In Minister of Safety and Security v Morudu ((1084/13) 2015 ZASCA 91 (29 May 2015)) and Minister of Safety and Security v Booysen ((35/2016) 2016 ZASCA 201 (9 December 2016)), where state employees respectively assaulted and murdered members of the public, the supreme court of appeal declined to hold the state vicariously liable for the harm arising from these intentionally committed crimes of its employees. Scott has argued that these judgments raise “the question of a possible turning-point in the approach towards application of the K test for establishing a sufficiently close link between an employee’s delict and his or her employment” (Scott 876). The judgments in the Booysen and Morudu cases therefore call for a fresh evaluation of the reasoning espoused in the K case and subsequently entrenched in the F (CC) case. Such an analysis may assist in better understanding the reasons for the court’s perceived deviation from the dispensation introduced by the K and F cases. This article, however, does not aim to engage solely with the judgments in the Morudu and Booysen cases (for such an analysis, see Scott), but attempts to provide an explanation for the court’s decision to deny vicarious liability in both cases. In particular, critical attention will be paid to the absence or presence of a relationship of trust between the victim of a crime and the perpetrator. Ever since the judgments in the K and F cases, this factor has played a central role in holding the state vicariously liable for the intentionally committed violent crimes of police officers.