Regarding your final point, I guess the true test of Santam’s intentions would be if another party who is a competitor does something similar again.

Of course, given the causes of action relied upon by Santam in the Dial Direct matter, it shouldn’t matter that Nandos isn’t a competitor, at least from the copyright angle. If Santam’s sole basis for not pursuing Nandos is merely that they are not a competitor then it seems a bit hyprocritical not to pursue them, provided the rest of the merits are equivalent with those in the Dial Direct matter.

Nevertheless, well done to both brands for the way in which they handled this.

To: “H.E. Sameh Shoukry”
Subject: Unlawful detention of Alaa Abd El Fattah in Egypt

The Ambassador of Egypt to the United States
3521 International Court NW
Washington DC 20008

Dear Sir,

I have been following the tumultuous events in your country this year,
and have been inspired by the popular expression of democracy there.
However, I was terribly disappointed to receive news that the Egyptian
military has unlawfully detained Mr. Alaa Abd El Fattah.

Mr. Alaa Abd El Fattah was apparently detained by a military prosecutor
because he refused to accept the jurisdiction of the prosecutor over
civilians. Detention of anyone by a government official other rather
than a court is contrary to the Universal Declaration on Human Rights
and the United Nations International Covenant on Civil and Political Rights.

Article 9 of the Universal Declaration of Human Rights requires. “No one
shall be subjected to arbitrary arrest, detention or exile.” Article 11
(1) of the United Nations International Covenant on Civil and Political
Rights requires “Everyone charged with a penal offense has the right to
be presumed innocent until proved guilty according to law in a public
trial at which he has had all the guarantees necessary for his
defense.” Allowing a prosecutor to order imprisonment is to allow a
prosecutor to act as judge in his own trial. A prosecutor cannot make an
impartial or unbiased decision. Detention on order of a military
prosecutor also violates The United Nations International Covenant on
Civil and Political Rights which stipulates in Article 9 that:
“(1) Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law.

(2) Anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time
or to release. It shall not be the general rule that persons awaiting
trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for execution of the judgment.”

Mr. Alaa Abd El Fattah objected to the competence of military tribunal
to try civilians. Trial by a military tribunal instead of civilian
court in both principle and in practice in Egypt violates both the
Universal Declaration on Human Rights and the United Nations
International Covenant on Civil and Political Rights.

Article 10 of the Universal Declaration on Human Rights requires that:
“Everyone is entitled in full equality to a fair and public hearing by
an independent and impartial tribunal, in the determination of his
rights and obligations and of any criminal charge against him.” Article
14 of the United Nations International Covenant on Civil and Political
Rights requires that: “(1) All persons shall be equal before the courts
and tribunals. In the determination of any criminal charge against him,
or of his rights and obligations in a suit at law, everyone shall be
entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law.”

The members of a military tribunal are subject to military discipline,
lack security of appointment and thus cannot be competent or independent
or impartial. Since Mr. Alaa Abd El Fattah has been critical of the
involvement of the Egyptian military in violence against civilians and
of military courts trying civilians a military tribunal cannot possibly
behave in a competent, independent and impartial manner in respect of
allegations against him.

Kindly convey to your government that Americans such as myself are
outraged by the unlawful detention of Mr. Alaa Abd El Fattah. His
detention without trial is reminiscent of the invidious methods of
anti-democratic regimes throughout the world and suggests that the
Egyptian military are not committed to a transition to democracy.

Alexander Dupuy

The ENS firewall seems to be a bit paranoid and didn’t let my email reply to you through so I’ve had to respond to you here. Colleagues who are currently based in Cape Town have examined the court file to find the final versions of the documents filed in court, but the court file apparently contains only the founding papers with no sign of the Answering and Responding affidavits or Rule 16A notice.

Perhaps the attorneys for one of the parties will assist you in obtaining the court documents which are, after all, public records.

The attorney for the Respondent is: Ms Wapnick of TWB
The attorney for the Applicant is: Ms J Hollesen at Werksmans in Cape Town.

Regards
MJ Machacha

The papers can be accessed at the following link:

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B0955Kr46tSWZWFiYjUzZjMtOTU0YS00YWVhLTgzOWEtZTlkZTA3NThlOTcw&hl=en_US