Merging the unmergeable: The distortion of competition law principles by constitutional rights in the Constitutional Court [Discussion of Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC)]

Merging the unmergeable: The distortion of competition law principles by constitutional rights in the Constitutional Court [Discussion of Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC)]

Author: Lauren Loxton

ISSN: 1996-2193
Affiliations:BCom PPE LLB, BCL, Researcher, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 61 – 77
https://doi.org/10.47348/SLR/2024/i1a4

Abstract

The aspirations of the Constitution of the Republic of South Africa, 1996 are expressly recognised in competition legislation. Competition authorities and courts must, accordingly, adjudicate competition matters in a manner that gives effect to the Constitution. This has resulted in the Constitutional Court assuming jurisdiction over appeals from the Competition Appeal Court, thereby raising questions about the Constitutional Court’s competence to adjudicate specialised competition matters that cannot be understood solely through the lens of constitutional interpretation. The Constitutional Court’s decision in Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC) is a cautionary tale that exposes the dangers that arise when the Court enters this specialised realm of the law and imposes constitutional interpretation without engaging with the principles of competition law.

The case concerned a dispute about whether a merger in the healthcare sector would lead to an increase in the price of healthcare. The Constitutional Court’s judgment emphasises the constitutional imperative to quell the harmful effects of the inequalities that loom over South Africa’s post-apartheid economy, but it is not legally sound in all respects. This note explores the weaknesses in the judgment under the following themes: the approach to jurisdiction that contradicts jurisprudence and untenably extends the Constitutional Court’s jurisdiction; the problematic assertion that precedent severely constrains the appellate powers of the Competition Appeal Court; and the Constitutional Court’s inconsistent appreciation of the specialised nature of competition law and its consequent failure to engage with the evidence.

This analysis concludes that this attempt to import constitutional rights into competition law, without adequately engaging with competition law itself, reveals an urgent need to re-examine the true scope of the Constitutional Court’s jurisdiction and its powers to adjudicate complex and highly specialised areas of the law.

A title deed should only be cancelled if there is convincing evidence that it does not reflect the true state of affairs [Discussion of Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022)]

A title deed should only be cancelled if there is convincing evidence that it does not reflect the true state of affairs [Discussion of Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022)]

Author: Reghard Brits

ISSN: 1996-2193
Affiliations:BCom (Law) LLB LLD, Extraordinary Professor, University of the Western Cape; Research Fellow, Stellenbosch University
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 78 – 92
https://doi.org/10.47348/SLR/2023/i1a5

Abstract

The court in Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022) ordered the cancellation of five deeds of transfer to restore the original owners as the registered owners of the property in question. The order was based on a finding that the sale in execution of the property two decades before was invalid because the creditor did not follow the correct judicial process. Because the transfer pursuant to the sale in execution was invalid, all subsequent transfers were invalid as well, with the result that the current registered owner was not the rightful owner. This note does not question the manner in which the court applied the substantive law regarding invalid transfers of property. In light of the negative nature of the deeds registry system, it is correct for a court to order the cancellation of a title deed that does not reflect the rightful owner. Instead, the note takes issue with the manner in which the court drew conclusions from a very unclear factual matrix based on almost no documentary or other evidence. The argument is made that a title deed (such as a deed of transfer) should be regarded as prima facie correct and should only be cancelled if the person who alleges that the deed is inaccurate can supply sufficient evidence to prove that person’s allegation on a balance of probabilities. The registered owner should not have to disprove mere allegations of inaccuracy or prove that all previous transfers were valid.

The Copyright Amendment Bill and the right to property in section 25 of the Constitution: A discussion in support of expansive copyright exceptions and limitations for educational purposes

The Copyright Amendment Bill and the right to property in section 25 of the Constitution: A discussion in support of expansive copyright exceptions and limitations for educational purposes

Author Bongiwe Zungu

ISSN: 2521-2591
Affiliations: Lecturer in Commercial Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2024, p. 1-29
https://doi.org/10.47348/SAIPL/v12/a1

Abstract

The relationship between copyright law and the right to education has been a prominent topic for several decades. Attainment of the right to education is inextricably linked to copyright and the materials under it. Therefore, the proper construction of copyright rules is essential. The current copyright regime has been criticised for being out of touch with the educational needs of learners and students in South Africa. The South African government has been engaged in copyright reform to remedy this issue and other issues raised against the current regime. This reform process resulted in the Copyright Amendment Bill B13F of 2017. In June 2020, the President addressed a letter to Parliament and expressed concern that various copyright exceptions in the Bill, including ss 12A,
12B and 12D through which the attainment of the right to education is promoted, run the risk of violating the property rights of copyright holders under s 25(1) of the Constitution. This paper evaluates this claim. As part of this evaluation, this paper also considers whether intellectual property constitutes property under s 25 of the Constitution. The latter question is important because the current jurisprudence of the Constitutional Court on s 25 relates to the validity of the state’s regulation of corporeal property. The claim has been evaluated by copyright scholars before.

This paper builds on the work of other scholars by considering the nature of intellectual property and its theoretical underpinnings. The consequence of recognising intellectual property as property for constitutional purposes is that it will be protected against arbitrary state interference and unlawful expropriation under s 25 of the Constitution. To contextualise this, it should be reiterated that references to intellectual property in this paper include copyrights, patents, trademarks, designs and other traditional forms of intellectual property. This paper will demonstrate that an inquiry into the constitutionality of copyright exceptions and limitations in the Copyright Amendment Bill is unlikely to result in a finding of constitutional invalidity under s 25(1) of the Constitution.

The ‘tax cost’ of cross-border use of intellectual property: A South African perspective on transfer pricing

The ‘tax cost’ of cross-border use of intellectual property: A South African perspective on transfer pricing

Author Tracy Gutuza

ISSN: 2521-2591
Affiliations: Associate Professor, University of the Witwatersrand
Source: South African Intellectual Property Law Journal, 2024, p. 30-56
https://doi.org/10.47348/SAIPL/v12/a2

Abstract

IT 14302, a decision of the Tax Court, is the first South African judgment dealing with the substantive application of the transfer pricing provisions in the Income Tax Act. The decision addresses the application of the transfer pricing provisions to cross-border payments for the use of intellectual property, specifically from foreign subsidiaries to a South African company. The article considers the use of terminology such as brand, goodwill and intellectual property by the parties and the court in determining the tax liability of the taxpayer and second, the application of the transfer pricing methodologies to determine the arm’s length price for the ‘good’ licensed by the South African taxpayer company to its associated foreign subsidiaries.

The regulation of copyright in digital trade: A case for the Southern African Development Community

The regulation of copyright in digital trade: A case for the Southern African Development Community

Author Vongai Chimeri

ISSN: 2521-2591
Affiliations: Post doctoral fellow, Department of Mercantile Law, University of the Free State
Source: South African Intellectual Property Law Journal, 2024, p. 57-80
https://doi.org/10.47348/SAIPL/v12/a3

Abstract

The protection of intellectual property rights, particularly copyright in digital trade, has raised concerns about the applicability of existing frameworks to the digital paradigm, especially considering that these frameworks were not negotiated in anticipation of intangible assets and content as central components of commercial transactions. Although digital trade presents an opportunity, particularly for small to medium enterprises in the Southern African Development Community to access new trading platforms and new business opportunities, it has also led to a surge of unlawfully distributed copyright-protected music, films, art, photos, scripts, books and software over the internet thereby causing serious losses for copyright holders. Enforcing copyright in digital trade is difficult as the infringer may be based in a different jurisdiction, often hiding under the veil of anonymity. It is in this context that this article examines the regulation of copyright in the Southern African Development Community and questions whether the existing framework effectively harmonises copyright law in a way that accommodates the technological developments in international trade. The article argues that the regulation of copyright in the Southern African Development Community is fragmented and, in many instances, outdated in dealing with the emerging digital paradigm. To this end, the article recommends the development of a regional framework on copyright. It submits that a regional framework that supports the creation, protection, administration and enforcement of copyright in digital trade can promote innovation and enhance competition thereby enabling Southern African Development Community countries to effectively participate in the digital trade.