The regional integration of African trade mark laws: challenges and possibilities

Doctor Legum - LLDThe need to harmonise laws in Africa has grown in importance in view of the envisaged African common market. Economic integration cannot flourish without an effective regional legal framework. There is fragmentation in trade mark protection in Africa as evidenced by the existing two sub-regional organisations namely, the African Regional Intellectual Property Organisation (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle (OAPI). The absence of a single regional legal framework has resulted in African countries not having a coherent strategy for advancing their common interests in regional and multilateral negotiations. African countries have acceded to agreements which do not reflect their interests such as Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). African countries have also been signing Regional Trade Agreements (RTAs) which contain higher intellectual property protection standards than the minimum standards prescribed by TRIPS. The purpose of this study is to formulate a proposal for the integration of trade mark laws in Africa, with a view to strengthening the regional legal framework. A consolidated regional position, based on an integrated legal framework, will strengthen Africa’s participation in negotiations. This will in turn ensure greater regard for, and better protection of, Africa’s interests and concerns. Trade mark laws are important as they can hinder or promote trade. Harmonised trade mark laws will create legal and commercial certainty as well as predictability, which is crucial for the promotion of trade and foreign direct investment. The central argument advanced is that the areas of convergence in the laws under study and in the way the laws are interpreted can form the basis for the harmonisation of Africa’s trade mark laws

Enforcement and effectiveness of consumer law in South Africa

This chapter discusses and evaluates the enforcement and effectiveness of Consumer Law in South Africa. It first provides the principal legal and policy framework, including the legislation and common law and consumer policy and strategic plans of the governmental authorities and enforcement agencies. It sets out details and some statistics regarding enforcement by specialised enforcement agencies, such as the National Consumer Commission, the National Credit Regulator and provincial consumer protection authorities. Alternative dispute resolution actors are discussed, including ombuds enforcing the Consumer Protection Act and ombuds in the financial services sector. Thereafter enforcement by the courts are considered, as well as enforcement through collective redress. The role of consumer organisations and private regulation are discussed, as well as sanctions for breaches of consumer law. External relations and cooperation of the State, enforcers and consumer organisations with bodies external to South Africa are considered. Finally, the effectiveness of the enforcement mechanisms is critically evaluated and some proposals for reform made

Alignment of Student Discipline Design and Administration to Constitutional and National Law Imperatives in South Africa

Higher Learning Institutions (HEIs) have an important role to play in the promotion of respect for fundamental human rights and other constitutional imperatives. This article will demonstrate that the design and administration of student discipline at HEIs qualifies to be administrative action. As such, the article will identify the constitutional and other legislative principles which can help student discipline to be aligned to the requirements of just administrative action, which are lawfulness, procedural fairness and reasonableness. The article will explore challenges faced by student discipline and proffer recommendations and suggestions for improved regulation and practice.Keywords: Higher learning institutions; student discipline; just administrative action; procedural fairnes

An Analysis of the Dispute Settlement Mechanism under the Consumer Protection Act 68 of 2008

This article critically analyses the provisions of the Consumer Protection Act 68 of 2008, which deals with the enforcement of consumer rights. The Act provides for various forums where consumers can seek redress in cases where their rights have been infringed, impaired or threatened. The article demonstrates that the consumer redress mechanism is an essential component of the Act. However, it argues that having various forums to do so may pose practical challenges, as this may cause confusion and may lead to forum-shopping in cases where an aggrieved consumer has to choose the appropriate forum to seek redress. It is proposed that section 52 should be amended and that section 69 should be purposively and narrowly interpreted to ensure that the consumer protection institutions are exhausted before approaching the ordinary courts.KEYWORDS: Consumer: consumer rights: dispute settlement mechanism:consumer protection institutions; enforcement and unfair terms

Exemption Clauses and the Consumer Protection Act 68 of 2008: An Assessment of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ)

Exemption clauses are a rule rather than an exception particularly in standard-form contracts. Consumers are usually forced to accept such terms on a "take-it-or-leave-it" basis. This state of affairs shows that freedom of contract is theoretical and could lead to injustices. In Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) the Court refused to uphold the exemption clauses based on the fact that it would have been unfair and unjust to the plaintiff who had sustained serious bodily injuries during his stay at the hotel. The article discusses this court decision in the light of the provisions of the Consumer Protection Act 68 of 2008 (CPA) against the background of the previous jurisprudence regarding exemption clauses, including the position of exemption clauses in a new constitutional dispensation.Keywords: Exemption clauses, consumer protection, fairness and reasonableness, public policy, constitutional values