Fake whisky, chocolates and grass – case law you need to be on top of

02 November 2020 00:00

Fake whisky, chocolates and grass – case law you need to be on top of

Is ‘whisky flavoured’ an actual thing, and is it anything close to real, Scottish whisky? Can failure to declare a gift of chocolates land you in hot water with your employer? And can a summons that is affixed to grass still be considered lawful? These are just some of the interesting cases contemplated by South Africa’s courts recently and among those captured in the September index of the online LexisNexis Case Law repository.

The free to download LexisNexis Case Law Index details the latest cases from the previous month, as selected by a team of legal experts, to help professionals stay abreast of the latest legal developments. It also provides useful, practical guidance and an understanding of how the law may be interpreted by the court, especially when guidelines may be unclear.

Shebash Pillay, Managing Editor LexisNexis Law Reports, says, “Because understanding and reviewing Case Law is an important aspect of the administration of justice and pivotal to advancing the Rule of Law, we review each and every new case, determine which specialist series it bears relevance to, and provide access to case law containing summaries and keywords to help legal practitioners stay up-to-date.”

Louis Podbielski, Case Law Content Manager at LexisNexis South Africa, rounds up some of the recent judgments packaged in the September 2020 Index to keep lawyers learning, enriched with insights and practical knowledge, and generally on top of things.

“My top case of the month,” says Podbielski cheekily, “relates to whisky, including some excellent descriptions of what the expert whisky tasters thought after performing an olfactory and tasting test of each of the offending products.”

In this recent Corporate and Commercial matter between a wines and spirits company and a whisky association, the liquor producer in question set out to appeal a High Court ruling against them which interdicted them from referring to their products as Scottish or as whisky. However, the Supreme Court of Appeal found unlawful competition due to misrepresentation of the character, composition or origin of the product, with an expert taster confirming that the product could not be recognised as a whisky without the distinctive taste and feel of Scottish whisky. The appeal was dismissed and the High Court order adjusted.

Also covered in the September index is a Labour Law matter between a major supermarket chain and an employee, in which the Labour Appeal Court heard how the employee had worked for the store for 24 years since 1992 but was dismissed after processing a refund for a gift of chocolates given to her by an elderly customer. She had not declared the gift nor followed store procedure for both the refund or a subsequent attempt to reverse it. She was charged with four counts of misconduct, breach of company rules, attempt to defraud the company, contravening company procedure by performing a return on her till without authorization and changing till procedures in that she performed a fraudulent transaction on her till. The CCMA dismissed her claim against her dismissal, however the Labour Court noted her clean service record of 24 years and reviewed and set aside the arbitration award, remitting the matter to the CCMA for an arbitration hearing de novo. The Labour Appeal Court discussed whether the incident amounted to fraud and whether the employee's conduct had been deceitful. The court found that nothing merited interference with the CCMA award and upheld the appeal.

In a recent Civil Procedure matter between a bank and the respondents, an appeal was sought by the appellant against a High Court order rescinding a default judgment in favour of the bank, following the first respondent’s default on mortgage payments. The bank argued argued that the statutory notice and the summons were left at the domicilium citandi in terms of rule 4(1)(a)(iv) of the Uniform Rules. However, right at the start of the proceedings, as it turned out, the sheriff had left the summons on the grass outside the respondent’s home, where it could have potentially blown away, been removed, or simply be invisible. The court ruled that the duty rests upon the sheriff to effect delivery of a notice in a manner by which, in the ordinary course, the process would come to the attention of the recipient. The court said it would equally not have been enough merely to drop the notice over a perimeter fence or to put it into a hedge. A full bench of the High Court also set aside the subsequent sale in execution and the transfer to the purchaser.

In the Corporate and Commercial matter between a major home improvement, DIY and building materials retailer and a construction company, the plaintiff sued for the balance of an account, the first defendant being in liquidation and the second defendant denying a suretyship agreement. The court contemplated whether the second defendant had signed the agreement, its authenticity,

and whether the documents relied on by the plaintiff complied with s 13(1) of the Electronic Communications and Transactions Act 25 of 2002. The court found that the plaintiff had failed to establish a valid suretyship, because the document was a data message and the signature did not comply with the Act. The claim against the second defendant was thus dismissed with costs.

Says Podbielski, “This latter case highlights the importance of secure, legitimate electronic signing tools because where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used, as is the case with tools such as Lexis Sign.”

As a leading legal technology company, LexisNexis provides access to the widest range of case law, including civil, criminal, labour, divorce, property and tax. The online LexisNexis Case Law interface is easy to navigate with indices that allow for ease of access, quick referencing and deeper research. Topical and precedent setting cases provide key insights ensuring that subscribers stay abreast of new developments in the law.

To access the free September Case Law Index from LexisNexis, visit xxx

To connect with Shebash Pillay and Louis Podbielski on LinkedIn, where they each have an active following and post daily Case Law updates, visit https://www.linkedin.com/in/shebash-pillay-764697185/ and https://www.linkedin.com/in/louispodbielski/?originalSubdomain=za.

To view the dedicated Case Law blog on the LexisNexis website, visit https://www.lexisnexis.co.za/case-law/latest-cases