Page 10 11/08/09 01 01lr1108LAW daviest 02:55:22 PM 10/08/09

10 AUGUST 2009 B u s i n ess Day

Business Law & Tax Review — Best Lawyers

adequate laws to make good theassurances in regard to ambushmarketing that it gave to FIFA. What isalso required, however, and what isless certain, is that the laws in questionwill be properly implemented andenforced. However, he says there are anumber of problems.

Firstly, the police, customs andother state bodies must provide properpolicing and regulation of conductwhich can amount to ambushmarketing. Secondly, the legalmachinery for instigating criminal andcivil enforcement measures againstambush marketers must performproperly. Finally, the courts mustdeliver prompt pronouncementspursuant to ambush marketing casescoming before them.

Dean says that intellectual propertylaw is very specialised.

SA has been a pioneer in theadoption of specific ambush marketinglegislation, and our example has beenfollowed by other countries such as theWest Indian Islands with the 2007Cricket World Cup and New Zealandwith the 2011 Rugby World Cup.

“The South African judiciary isgoing to have to adjudicate disputesbased on intellectual property law andambush marketing legislation in apressurised situation in the next yearleading up to the Soccer World Cup in

June to July 2010.” It is possible thatinternational heavyweights such asVisa and MasterCard, or Coca-Colaand Pepsi-Cola (the former in eachinstance being a World Cup sponsorand the latter being a competitor) maydo battle in the South African courtsand, because of the internationalramifications of the Soccer World Cup,the world’s attention will be focused onsuch litigation, he says.

Further, guidance will be soughtfrom the South African courts by othercountries which have modelled theirambush marketing laws on SA’s laws.

It is imperative in thesecircumstances that the South Africancourts should be seen to deliver goodjustice in an efficient and expeditiousmanner, Dean says. He says the judgesmust be competent and must have theexpertise to deal with important andcomplex intellectual property andambush marketing matters. “At a timewhen it is becoming increasinglyimportant for SA to attractinternational trade and investment, itis imperative that the South Africanlegal system and judiciary should beregarded internationally as being atthe top level and capable of deliveringworld-class judgments in the field ofintellectual property.”

SANCHIA TEMKIN

Building up a skilled practice■ c o n st r u c t i o n

T HE construction industry usedAlternative Dispute Resolution(ADR) clauses in contracts long

before any other sector.The industry also tends to go to

ADR before any other sector, saysTerry Mahon, chairman of Evershedsand Best Lawyer (construction).

Currently the construction industryis one of the busiest in SA — and alsoone of the most heated in the light ofthe recent industrial action.

Mahon says disputes often arise onlarge building projects. “The projectmust go ahead and not be delayed.However, the dispute must also be

area — “no one starts out in theprofession saying they are going to be aconstruction lawyer”, Mahon says. Ittakes years of good practice as acommercial lawyer. One needs a goodunderstanding of the industry, anunderstanding of how such businessesoperate and how engineers think.

“A construction lawyer may have tosit up all night — immediate answers tosolutions are required. Time periodsare essential.”

Mahon says a lot of constructionlaw is based on international law. Manydisputes are referred to internationaltribunals for resolution. For instance,most of the sub-contractors on thesoccer stadiums for the 2010 WorldCup are international. If a disputearises, it will be referred to aninternational tribunal for resolution.

He says the construction lawyerneeds to be familiar with the laws ofinsurance, delict, insolvency,environmental, labour and criminallaw. “It is a concerted team effort.” Histeam has been involved in majorprojects such the 2010 Soccer WorldCup stadiums, toll roads, power

stations, the building of shoppingmalls, the construction of Gautrain,Coega, Durban Harbour andnumerous mining projects. Projectsinto Africa include jurisdictions such asKenya, Rwanda and Mauritius.

Mahon says that practisingconstruction in another jurisdictionincludes getting involved in matterssuch as mineral rights, and customsand excise.

SANCHIA TEMKIN

Legal system will be scrutinised■ intellectualpropert y

T HE Soccer World Cup will posesignificant challenges to theSouth African judiciary and

legal system in the build-up to theevent.

It is important that the judiciaryand the legal system should be up tothese challenges.

Owen Dean, a partner at Spoor &Fisher and Best Lawyer (intellectualproperty), says that event organiserssuch as FIFA pay extremely closeattention to the ability of a host countryto protect intellectual property andother rights attaching to an event suchas the Soccer World Cup. In particular,a host country is required to providesatisfactory laws dealing with so-called“ambush marketing”, he says.

The main means of curtailingambush marketing is byimplementation of intellectualproperty laws and other associatedlaws, and more particularly, byenacting special legislation to dealspecifically with ambush marketing.

He says SA is in the fortunateposition that its intellectual propertylaws compare favourably with suchlaws anywhere in the world.

Dean says that SA has more than

Working to help othershas its own reward■ pro bono

B EING the best at anythingusually takes immensededication, sacrifice and

passion. Other than having a trulyobjective scorecard, it is difficult, if notimpossible, to ascertain who is actually“best” at any particular skill or service.

While so many of us want to be partof a best list, the most rewardingfeeling of knowing we are best at whatwe do is when we not only do our beston a daily basis, but also go the extramile and fulfil more than is expected.

However, another important aspectof being a “best” lawyer is listening.This applies to lawyers on every level,no matter how junior or senior.Listening does not only apply tohearing what clients have to say, butalso listening to what our communities— rich and poor — are saying.

Edward Nathan Sonnenbergs(ENS) recently opened a pro bonooffice in the Johannesburg township ofAlexandra, which has a history ofpoverty and suffering. Four years ago,the firm opened its first pro bono officein Mitchell’s Plain, Cape Town. Thefirm’s lawyers are required tocontribute at least 32 hours of probono work each year.

The firm encourages attorneys todo more than merely satisfy the firm’s

pro bono goals by literally going outinto the communities and offeringaccess to justice to all. This innovativestrategy was implemented as much tohelp the communities as it was toexpose the firm’s own people to theexperiences and difficulties faced bythose less fortunate.

Justice and ConstitutionalDevelopment Minister Jeff Radebe,who was at the launch of the AlexandraClinic, said that it came at anopportune time when theimprovement of access to justice is partof the government’s agenda.

The delivery of free legal serviceswithin the community was paramount.

During the past year a total of113 928 poor South Africans wereassisted, largely by paralegal staff.

Currently the Legal Aid Board isunder immense pressure. There areonly 62 justice centres and 55 satelliteoffices in operation.

The government is also in theprocess of building and improving themajority of court facilities in previouslydisadvantaged areas.

ENS chairman Michael Katz saidhe felt honoured to handle the firm’sfirst Alexandra pro bono matter, whichinvolved halting the eviction of anonprofit AIDS hospice.

SANCHIA TEMKINsettled at the same time. That iswhy dispute resolution boardshave been set up.”

He says a combination ofprofessionals, such as lawyers,engineers and quantitysurveyors usually sit on suchboards, the chairman of which isa retired judge. Mahon saysdispute resolution boards aremuch speedier and efficient atresolving disputes than thearbitration process.

After the completion of the2010 World Cup, theconstruction industry is going towill continue to be busy, he says.“There is no slowing down.” Thegovernment is going to have tomaintain the country’sinfrastructure. The focus is goingto be on improving housing forlower-income people; there willbe greater impetus on shoppingmodels in certain areas, such asSoweto; maintenance of thecountr y’s road and railwaysystems; and the upgrading ofnuclear plants. “There are goingto be huge opportunities forconstruction lawyers.”

Construction law is a niche

The poverty stricken residents of Alexandra will benefit from free legal aid.

Even after the rush of 2010 construction, the industry is still going to be bus y.Above: Soccer City in Johannesburg is being refurbished into a 95 0 0 0 - s e a te rstadium. Picture: THE TIMES