Copyright in South Africa is regulated by the Copyright Act, 98 of 1978 (“the Act”).  The Act uses the term “Works” to describe all those types of works that are capable of copyright protection. Songs, photographs, paintings and cinematograph films are capable of being copyrighted and fall within the definition of “Works”.

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Chapter 6 of the new Companies Act, 71 of 2008 (“the Act”) introduces the concept of “Business Rescue” to rescue companies that are financially distressed and essentially replaces the concept of Judicial Management. In the past, Judicial Management had the sole purpose of assisting a company to overcome a temporary setback and to prevent it from going out of business. Section 128(1)(b) of the Act states that Business Rescue is a procedure to facilitate the rehabilitation of a company that is insolvent or imminently becoming insolvent. Business Rescue like judicial management has the effect of nursing a debtor company back to solvent trading status.

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Carte Blanche recently aired an insert on products known as Aquazone and Electrosmart.  The products are sold to consumers through direct marketing.  This means that consumers are approached directly by salespeople.

According to Carte Blanche, numerous people have complained that Electrosmart does not work and that they are not getting any value out of the product.  These people now want to cancel the purchase of the product and get their money back.

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Section 18A of the Income Tax Act (“the Act”) provides that a deduction is allowable from any taxpayer’s taxable income for an amount expended as a bona fide donation by such taxpayer to, amongst others, any public benefit organisation. Hau!? The purpose of this piece is therefore to shed some light on some benefits available to taxpaying individuals who gratuitously participate within the sphere of public benefit.

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It is an uncontested fact that South African labour laws were promulgated mainly to protect the vulnerability of employees who mostly do not have bargaining powers when it comes to employment relationships. However, it is important that the bona fide intention of protecting such employees, does not render employers’ rights and contractual freedom insignificant. Employers are often pushed into a corner and at times forced to accept and comply with terms of employment that they had never contemplated. 

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I recently applied for a store loyalty card and, with my wife apologetically saying to the assistant “He always does this. Can you believe it, he’s actually going to read the terms and conditions”, I read the terms and conditions. The marketing part of the application form caught my attention. It read:

• “I don’t want to get any marketing communication by: Email ; SMS ; Post ;”

This got me thinking and, to my wife’s dismay, I insisted that we go to each of the other major retailers in the centre and collect their loyalty or “store” cards, as they are known. My impromptu legal audit assistant and I collected four more application forms. They read:

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The National Consumer Commission (“the NCC”) has been pro-active in promoting the accreditation of ombudsmen for the various industries that may be impacted on by the Consumer Protection Act (“the CPA”).  Commissioner Mamodupi Mohlala released draft guidelines, on 8 March 2011, regarding the accreditation of industry ombudsmen and the codes of conduct which will govern them.  The Financial Services, Banking Services, Telecommunications, Advertising and Motor industries are some industries which may find it necessary to make submissions.  Organisations, such as the Independent Regulatory Board for Auditors and the Association of Law Societies, which regulate professions may also wish to make submissions on their codes of conduct or disciplinary rules.  The Commissioner requires interested parties to comment on the draft guidelines on or before 30 March 2011.

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In 2008, the National Treasury announced that Securities Tax on Companies (“STC”) would be replaced with Dividend Tax, where the tax levied against dividends will be paid by shareholders directly and not by the company. In this regard, a new definition of “dividend” was included in the Income Tax Act. In his budget speech of 2011, the Minister of Finance, Mr Pravin Gordhan, indicated that the proposed date from which dividend tax will become payable will be 01 April 2012.  In this piece, I will outline some of the effects the amendment will have on dividends and what shareholders may consider when negotiating shareholders agreements.

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The Consumer Protection Act (“the CPA / the Act”) was signed into law on 24 April 2009. The CPA has far reaching effects and has changed the face of Consumer protection law in South Africa bringing it in line with international law.

The CPA will come into effect in two phases. The first phase, which commenced on 24 April 2009, provided for the formation of those bodies which will regulate and enforce the CPA. The second phase, which comes into force on 1 April 2011, brings with it strict compliance for all businesses.   

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Section 8 of the CPA aims to protect the consumer against any act that amounts to discriminatory marketing. In terms of this act, a service provider will be prohibited from marketing or providing its  products and or services to restricted  communities or a category of persons. It further prohibits the exclusive provision of goods of a certain quality or specific prices to a particular community, person or market segment. An act will be interpreted as discriminatory if it is based on one or more of the grounds of unfair discrimination as contemplated in section 9 of the constitution example race, gender, age etcetera.

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In terms of the CPA, producers of goods must ensure that their target market understand the language used in their different advertisements or promotional activities.

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The CPA, amongst others, seeks to promote a fair, accessible and sustainable market place for consumer products and services, while requiring improved standards of information and prohibiting unfair marketing and business practices. With the magnitude of “new rights” created by the Act, in this note, the focus will be on consumers’ rights to fair and responsible marketing, fair and honest dealing and the right to fair, just and reasonable terms and conditions.

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With the introduction of the CPA and the ensuing Regulations, consumers' rights and the responsibility of suppliers of any goods or services is clearly spelt out.

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The dawn of the CPA brings with it a collapse of the “trading as” era and now requires both persons and entities alike to trade only with its registered name.

In addition, South African consumers will now enjoy protection which they were not previously afforded and will become some of the best protected consumers internationally.

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The Companies Act 71 of 2008 (“the Act”), due to come into force on 01 April 2011, is looking to bring about a number of changes, one of which is to change the name of the “referee” in the Mergers and Acquisitions (“M&A”) arena. The Act seeks to replace the Securities Regulations Panel (“SRP”) with the Takeover Regulation Panel (“TRP”). In this piece, I will outline the SRP’s role in the regulation of securities transactions and whether the role of the TRP is any different.

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The Protection of Personal Information Bill, B9-2009 (“the POPI Bill”), is likely to be passed into law this year.

The Constitution of the Republic of South Africa, 1996 (“the Constitution”) provides for the right to privacy, which includes a right to protection against the unlawful collection, retention, dissemination and use of personal information.

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The Geneva 2006 International Telecommunication Union (ITU) Regional Radio Communications Conference (RRC-06) set the stage for the migration of analogue broadcasting to digital broadcasting.  The move from analogue television broadcasting to digital terrestrial television broadcasting will make it possible for at least 8 new channels to be broadcast on the same frequency as analogue channel.  With more channels being made available, there are likely to be more television broadcasting licences.  This seems to have piqued the interest of some overseas broadcasters.  Some of the questions we have been asked, are listed below

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The new Consumer Protection Act, which comes into force in South Africa on 31 March 2011, brings with it strict compliance for all businesses and financial services firms and there have also been recent developments in relation to Consumer Protection in the UK / EU Countries.

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This article is probably going to cause a number of headaches for suppliers of goods and services who do so using prepaid vouchers.  After conducting a little research, it appears to me that consumers may be losing millions of rands to these suppliers.   

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There are numerous issues that should be considered when deciding to do business in South Africa, one of the most pertinent and unique is Black Economic Empowerment (“BEE”).

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Section 23 of our Constitution provides that “everyone has the right to fair labour practices. Every worker has the right: to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike.”

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A hedge fund is an investment pool specifically organised and usually open to a limited range of investors and seeks to provide high returns on investment and trading. Hedge funds as a class, invest in a wide range of investments such as, but not limited to, shares, debentures and commodities and can be used as a means of protecting investment or to include a level of risk management within an investor’s portfolio. There are, however, a number of hurdles a private investor is faced with when making an investment into a hedge fund, one of which is the regulation of the industry or lack thereof.

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The Information and Communications Technology (ICT) industry has become one of the most dynamic and economically influential industries. It has become a vital engine for growth of the world economy, service delivery, communications in general and more importantly education.

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The legal maxim “caveat subscriptor” essentially means “let he who signs beware”.  It is therefore an accepted principle that a person who signs a contractual document thereby signifies his consent to the contents of the document and is bound by it.

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A common question asked by Employers in South Africa, is whether or not polygraph testing is permissible within the employment relationship, if in fact it is permissible, is it admissible as evidence in a Disciplinary Enquiry.

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In a series of battles reminiscent of classic martial arts movies like The Seven Samurai or Crouching Tiger Hidden Dragon, a small dojo in Johannesburg defeated an international martial arts organisation in a dispute over a contested domain name.

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An overview of Apco Africa Incorporated v Acpo Worldwide (Pty) Ltd in relation to winding up as governed by the old Companies Act versus new mechanisms introduced by the new Companies Act. 

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South Africa, as well as many other countries, have suffered the misfortune of experiencing dire economic circumstances over the last year and regrettably continue to do so. Due to the continuing deterioration of the economy many businesses and employers have had to face not only closure but a serious slump in turnover. As a result of this, businesses have had to cut costs in order to survive and a vast number of retrenchments have taken place. This article will focus on the processes to be complied with by an employer during a retrenchment to ensure that it is carried out in a fair manner in accordance with the provisions of the Labour Relations Act 66 of 1995.

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A delegator’s duties do not stop following delegation, there is a continuous process of checks and balance that ensues. Neither does a board of a pension fund’s duty come to an end once an investment manager has been appointed or once an investment has been made. The board of a pension fund’s duty to monitor and review the investments of the pension fund continues long after the investment has been made. The state of affairs of the pension fund normally dictates the type of investment vehicles that the board of trustees should utilise when investing the fund’s assets.  The nature of the investment vehicle utilised in turn will determine the pervasiveness of such monitoring and the manner and methods that the fund can be utilised to circumvent unfavourable circumstances and curb poor investment returns.

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The National Credit Act, Act 34 of 2005 (“the NCA”) was assented to and came into effect during 2006 and has brought with it numerous changes. One of the most prevalent changes affects the way in which attorneys, on behalf of their clients, institute action.

This article will focus on: the definition and scope of credit agreements in terms of the NCA and the impact of credit agreements when instituting action in particular the effect of section 129(1)(a) of the NCA.

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In the Jacobz[1] determination, being a disability benefit claim complaint, the Adjudicator held that the “trustees failed to apply their own mind to the complainant’s claim and simply rubberstamped the recommendations made by the fund’s medical experts”.

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The requirement for companies to lodge Annual Returns and to pay Annual Duty to the Companies’ Office has been in existence since 1973 when the Companies Act came into law. Through the years, this requirement as stated in section 173 and 174 of the Companies Act was modified and later repealed by the Companies Amendment Act. The latter completely did away with the duty on companies to lodge Annual Returns.

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The last year has probably seen the most rapid progress the South African communications and information technology industry has experienced in years.  The new Seacom cable, the pitched battle being fought over interconnection rates, the Department of Communications’ rumblings over the unbundling of the local loop and Mweb’s recent uncapped data offerings are definitely going to benefit the consumer, with the cost of data dropping rapidly.

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Section 31 of the ITA provides special anti-avoidance rules to regulate certain international transactions and this article intends to define and explain the two concepts referred to in this Section of the ITA being transfer pricing and thin capitalisation. The Katz Commission’s interim report found that general anti-avoidance provisions were not sufficient to counter practices where prices for the supply of goods or services are set between related parties not at market levels but at levels which recognise the incidence of a potential tax burden and seeks to minimise that burden. The Katz commission proposed that counter legislation should be devised which would operate, not as a set of rigid rules, but as a series of guidelines to provide policies for assessing adequacy of pricing.

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It is a supported view that the primary objective of enacting the numerous amendments to the Pension Funds Act has always been to enhance the protection of pension interests of fund members, given that dedicated contributions towards their retirement often extend across their lifetimes and serve as the most significant source of saving for most individuals in formal employment.

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Negotiating the contractual aspects of supplying IT hardware doesn’t have to be the downside of landing the deal. Providing the right information from the project’s inception can go a long way in making the contractual process less of a hindrance to getting the job done.

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The electronic communications industry has been abuzz recently with discussions on whether or not value added network service providers (“VANS”) will be permitted to provide their own infrastructure (“self-provide”) under the current draft of the Electronic Communications Bill (“the Bill”). This article seeks to analyse the Bill in order to determine whether it permits VANS to self-provide.

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Facebook. One does not need to define that ‘word’ if I may call it that. It’s new speak. If you are not on it where have you been, and where are you going? So many of us are on the ‘social utility that connects you with people around you’. Yet how many of us actually read those terms of use before we clicked ‘accept’?

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In the fast paced and ever changing society in which South Africans live and work, we are constantly bombarded with advertising via different media such as television, billboards and radio. Society as a whole has certain norms and ethical codes to which it adheres, taking cognizance of the rights to freedom of expression of the press and media. The public have a right not to be exposed to advertising which it finds offensive, explicit, exploitative or harmful. This is where the Advertising Standards Authority of South Africa (“the ASA”) comes in.

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Section 1(h) of the Corporate Laws Amendment Act, 24 of 2006 (the “Act”) inserts a new subsection 6 into the Companies Act, 61 of 1973 (the “Companies Act”) and provides that a company is a widely held company if:

1.      its articles provide for an unrestricted transfer of its shares;

2.      it is permitted by its articles to offer shares to the public;

3.      it decides by special resolution to be a widely held company; or

4.      it is a subsidiary of a company described in paragraphs 1 to 3 above.

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While everyone is focused on the contentious value added network services (“VANS”) licence con process, currently taking place, the lines are quietly being drawn for the next big battlefront – the local loop. 

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It is imperative that I introduce this article by making reference to the foundation of our law, the Constitution. Section 14 of the Constitution deals with the right to privacy over one’s property and one’s person. This section, for instance, protects us and our properties from being searched, and our ‘things’ from being seized and removed from our properties.

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The firm's attorneys have substantial experience in the field of Corporate Law.  The work in this area is undertaken mainly by Malesela Phukubje, Yasmin Masithela and their respective teams.

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The firm's attorneys have substantial expertise and have been involved in numerous financial transactions. The work in this area is undertaken mainly by Malesela Phukubje, Yasmin Masithela and their respective teams.

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The firm's attorneys have substantial experience in the field of Litigation.  The work in this area is undertaken mainly by Malesela Phukubje, Lucien Pierce and their respective teams.

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The firm's attorneys have substantial experience in the field of Local Government and Procurement Law as well as Public Private Partnerships.  The work in this area is undertaken mainly by Malesela Phukubje, Yasmin Masithela and their respective teams.

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The firm's attorneys have substantial experience in the field of Technology, Media and Telecommunications Law.  The work in this area is undertaken mainly by Lucien Pierce and his team.  

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