Month: June 2017 (page 1 of 2)

DOMAIN NAMES AND INTELLECTUAL PROPERTY

There is often confusion when it comes to registering domains names and intellectual property. The reason for this is simple – when a company needs to decide on a domain name, it generally chooses one of its own trade marks. However, it might be that someone else has already registered a domain name that is similar, or the same, as a company’s trade mark.

As a result, the issues that surface in trade mark disputes often crop up in domain name disputes too. However, the court has already recognised that trade mark principles are applicable in domain name disputes.

Who handles domain name disputes?

When domain names first appeared on the scene, disputes as to who was entitled to the registration of a particular name were handled by the courts, usually by way of trade mark infringement or passing-off proceedings.

  1. But now there are Alternative Dispute Resolution (ADR) procedures that relate to the various domain names.
  2. So, for example, disputes regarding ‘.co.za’ domain names are handled by way of the ADR procedure that was established by the Regulations passed under the Electronic Communications and Transactions Act (ECT Act) 25 of 2002.

When does a domain name have trade mark infringement?

An example of a case which deals with the issue of domain name registrations and trade mark includes kingo.co.za and kingonumbers.co.za.

  1. It was found that, even though the registrant had got in first with a domain name registration (kingonumbers), the complainant, Kingo, had stronger rights to the trade mark Kingo through use, and Kingonumbers would be seen as a natural extension of Kingo.
  2. The review court used this quote from the panel’s decision: The crux of this decision is who owns “Kingo”? It is settled law that the person who has appropriated a mark for use in respect of goods or services as a trade mark, may claim to be the proprietor.

When it comes to domain names, if a name has been trade marked by someone else, then you shouldn’t try using it. It would be like registering a domain name such as nikeshoes.co.za – You would be treading on thin ice. However, if your chosen domain name has not been trade marked, then it shouldn’t be a problem, even if another company would seem to benefit from your registered domain name. For instance, registering a domain name such as greatshoes.co.za would not be a trade mark violation if “great shoes” has not be trade marked. If another shoe company wanted to use that domain name, they would have to buy it from you or find another.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

https://domaindisputes.co.za/news4.php?newsID=32

http://www.mondaq.com/x/247030/Trademark/Domain+Names+The+High+Court+Has+Its+Say

WHAT HAPPENS AFTER SOMEONE IS ARRESTED FOR A CRIME?

Arrest is one of the lawful methods of securing the attendance of an accused person in court. It is also the most drastic method. Section 38 of the Criminal Procedure Act states that methods of securing attendance of an accused person include:

  1. Arrest;
  2. Summons;
  3. written notice; and
  4. Indictment.

The basic principle of South African criminal procedure is that of access to courts, in accordance with section 34 of the Constitution.
When can a person be arrested?

A person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime.

What rights does a person have when arrested?

If someone has, or is in the process of being arrested, they have the right to be informed of the charges on which they are being arrested. Most importantly, they have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against them in court.

  1. A person has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after being arrested.
  2. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.

After an arrest a person will, more often than not, be detained at a police station. In detention, you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search.

What rights does a person have when being detained?

When being detained, a person must be informed promptly of the reason.

  • The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.
  • Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights.
  • Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.
  • Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner.
  • Be presumed innocent until proven guilty.  

Police bail and warning

For minor offences ’police bail’ can be granted or the police may release a detainee on a warning. In the case of police bail, the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail.

After payment of this amount the arrested person may be released from custody. There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference

http://www.daff.gov.za/doaDev/sideMenu/ForestryWeb/webapp/Documents/ForestFire/192.168.10.11/nvffa.nsf/4d2641997589c2e342256d72003e35fc/8ac6623a9dbe92ca42256ea700447f8302ec.html?OpenDocument

https://www.saps.gov.za/faqdetail.php?fid=8

ANTENUPTIAL CONTRACTS: WITH OR WITHOUT THE ACCRUAL SYSTEM?

If you don’t have an ANC, you are automatically married in community of property. This means that there is one estate between a husband and a wife. Everything is shared equally between spouses, which includes debts. However, with an antenuptial contract, the estates of each spouse remain separate. The difference comes with the addition of the accrual system.

What is an antenuptial contract?

An ANC determines whether a marriage will be out of community of property with/without the accrual system. It must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

What is the accrual system?

The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual.

  • If there is no accrual system, then the spouses have their own estates which contain property and debts acquired prior to and during the marriage – nothing is shared.
  • The underlying philosophy of the accrual system is that each spouse is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.
  • The accrual system only applies if the marriage ends – either by divorce or death. You cannot claim your share of the joint estate while you’re still married.

Whether or not you decide to include the accrual system in your antenuptial contract depends on the couple. Some may see the relevance while others do not.

It’s important that both of you consult the lawyer who’s drawing up the ANC because both spouses need to be fully aware of the consequences. It’s also important to see someone who’s neutral, and who can mediate what goes into your ANC, because emotions can cloud your judgment, and it can be a stressful negotiation if one spouse has a lot of assets and the other doesn’t, for example.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

http://www.biznews.com/thought-leaders/2014/11/09/nine-things-need-know-antenuptial-contracts/

https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages/

HOW TO REGISTER A NEW COMPANY

The basic steps to register a company under the Companies Act of 2008 at the Companies and Intellectual Property Commission (CIPC) involves certain forms and supporting documentation that must be lodged and the accompanied fees paid.

The steps

The first step in registering a new company is optional. A CoR9.1 form must be completed and lodged with the CIPC in order to reserve a name for the company to be registered. However, the Act does make provision for a company to be registered without a name. The company registration number will then be the name of the company until such time as the company properly registers a name. A certified copy of the identity document of the applicant must be submitted as supporting documentation with this form and a filing fee is payable.

The next step is to complete and lodge the CoR14.1 Notice of Incorporation form together with the CoR15.1 Memorandum of Incorporation.

The Notice of Incorporation specifically contains information regarding the type of company to be registered, the incorporation date, financial year end, registered address, number of directors and the company name if applicable. A certified copy of the identity document of the applicant must be submitted as supporting documentation and a filing fee is payable. A CoR14.1A form contains specific information about the directors of the company who will be appointed at registration, and this form must be lodged together with the Cor14.1. Certified copies of the identity documents of all directors to be appointed must be submitted as supporting documentation. An optional form CoR14.1D may be lodged together with the CoR14.1, which indicates any company appointments to be registered with the CIPC, such as a company secretary or auditor.

The Memorandum of Incorporation is probably the most important document when registering a company, since the provisions contained herein will govern the company. It can be short and simple, or long and extremely technical, depending on what type of company is being registered. In this regard, it is best to seek professional advice. The supporting documentation and filing fees applicable will depend on what type of Memorandum of Incorporation is being registered.

If an auditor or company secretary is appointed at registration as contained in the CoR14.1D, a CoR44 form must also be completed and submitted. No filing fee is payable for this form. An original acceptance letter and certified copy of the identity document of the auditor or company secretary must be submitted as supporting documentation.

The CoR21.1 Notice of Registered Address must be completed with the particulars of the registered address of the company. Again a certified copy of the identity document of the applicant must be submitted as supporting documentation, but no filing fee is payable.

Once all the necessary forms and supporting documentation has been submitted and applicable fees paid, the CIPC will issue a Registration Certificate form CoR14.3 if it is satisfied that all provisions in the Act has been satisfied.

Any changes to the information placed on record at the CIPC at the original registration of the company, must be registered without delay and on the proper forms and possible payment of applicable filing fees.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE RIGHT TO PROTEST: WHAT EMPLOYEES SHOULD KNOW

The right to protest is an integral part of South Africa’s constitution and has recently come to the forefront with mass protest being organised across the country in response to President Jacob Zuma’s reshuffling of cabinet, and the subsequent downgrade of South Africa to junk status. It is also something which often comes under inspection by the people being protested against, as well as employers who raise questions regarding their employees’ right to protest during normal working hours.

Section 17 of the Bill of Rights in the Constitution entrenches the right of everyone, “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”

Can employees protest during normal working hours?

If an employee of a private company wants to join a protest march during regular working hours, it is necessary that they clear it with their superior first.

  • Any absence from work that is not authorised by the employer constitutes misconduct and gives the employer the right to take disciplinary action against the employee.
  • The type of disciplinary action depends on the circumstances, but can include dismissal if the employer is able to show significant inconvenience caused as a result of the employee’s absence and/or if the absence was in defiance of an express instruction to attend work.

Despite this, the Labour Relations Act does give every employee who is not engaged in an essential service‚ the right to take part in protest action for the purpose of promoting or defending the socio- economic interests of workers.

Conclusion

It is also not a crime to attend a protest unless it has been prohibited and protests can only be prohibited in very specific circumstances. However, employees should confirm with their employers about taking time off to protest and employers should be reasonable about letting their employees protest, considering it is within their right to do so. However, all things that are otherwise illegal, such as violence, vandalism, arson or hate speech, are also illegal during a protest.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE) 

References:

http://www.timeslive.co.za/consumerlive/2017/04/05/Planning-to-skip-work-for-the-protests-on-Friday-Read-this-first

https://www.dailymaverick.co.za/article/2017-04-06-groundup-dont-fall-for-illegal-protest-nonsense/#.WOd7JIiGPIU

NEW TRAFFIC RULES APPROACHING

Up until this point, many people have not paid attention to the traffic rules, or simply not cared. That is about to change with new, stricter traffic regulations being introduced onto South Africans roads in the coming months. This is particularly important for those who take speed limits for granted. 

What are the new rules?

The new regulations from the Department of Transport are expected to be implemented from 11 May, 2017.

These new regulations include:

  • Drivers will have to undergo a practical re-evaluation when renewing a licence;
  • A complete review and revamp of the current K53 test;
  • Speed limits to be reduced from 60km/h to 40km/h in urban areas, from 100 to 80km/h in rural areas and from 120 to 100km/h on freeways running through a residential area; and
  • Goods vehicles above 9,000kg GVM to be banned from public roads during peak travelling times.

A long overdue K53 revamp

Apart from the new road rules, the K53 learner’s manual will be getting a review to cater for the developments in cars and road users.

  • The review would include updates and improvements suggested by examiners, the driving school industry, and the general public.
  • The code 10 test for heavy motor vehicles such as buses and trucks would also be reviewed, to ensure people did not choose it because it was easier than the code 8 test for light motor vehicles.

Conclusion

Breaking the speed limit is never a good idea, and although it may not lead to your imprisonment, it could still result in a lengthy, and unnecessary, court process.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

https://businesstech.co.za/news/motoring/151475/__trashed-14/

http://www.wheels24.co.za/News/Guides_and_Lists/finally-new-sa-road-rules-20kmh-speed-limit-reduction-20161201

CAN I AMEND MY WILL?

Having a will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and what to add him/her into your will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.

What is a codicil?

When you want to add something to your will or make a minor change, then you can make use of a codicil. A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

  1. Amendments to a will can only be made while executing a will or after the date of execution of the will.
  2. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading.
  3. When amending a will, the same witnesses who signed the original will need not sign it.

Must I amend my will after divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.

  1. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
  2. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce.
  3. Should you however fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

GOVERNMENT ADMINISTRATORS MAKING WRONG DECISIONS

Occasionally, government administrations make decisions that people don’t understand or agree with. In cases such as these there are procedures to follow that ensures administrative justice. The Promotion of Administrative Justice Act allows you to have a say in matters that affect your rights.

The Promotion of Administrative Justice Act of 2000 (PAJA) gives people the right to fair, lawful and reasonable administrative action. Furthermore, it gives the right for individuals to be provided with reasons for any administrative actions that affect them negatively.

Administrative action?

If a person applies for an ID, for example, home affairs has to decide on whether or not the person should get one. They could perhaps decide that an ID should not be granted. This process is an example of an administrative action.

Government departments, the police, the army and parastatals such as ESKOM all make up the administration. PAJA applies when a decision made by the administration has a negative effect on someone’s rights. Maybe someone has been denied a work permit, for example, and the administrator did not give specific or good reasons why. PAJA gives them right to know what the reasons were and why they were made.

What does PAJA do?

PAJA requires that administrative decisions follow fair procedures and it allows you to have a say before a decision is made with possible negative implications to your rights. Those who make administrative decisions also have to clearly explain their decisions and tell you about any internal appeals within their department. You are also allowed to ask a court to review their decision when it’s made. An important benefit of PAJA is that you can request the reasons for their decisions.

Know your rights

Administrators are not allowed to simply make decisions without consulting you in several ways first. First, they have to tell you what decisions they are planning to make and how they will affect you. They also have to give you enough time to respond to their plan.

When a decision has been taken and it has negatively affected your rights, administrators must give you a clear statement of what they decided and a notice of your right to review the decision. They also have to give you notice that you can request written reasons for their decision, which you should pursue if you believe an administrators decision was unreasonable or unlawful.

These are some reasons that would make an administrative decision unlawful:

  • There was no good reason for the decision.
  • The decision-maker was not authorised to do so by legislation.
  • The person who took the action applied the law incorrectly.

What can you do?

If a decision has been made that you believe contravenes your rights, you can request that the particular department provide reasons for the decision, if reasons have not already been given. The request should be in submitted in writing and within 90 days of the decision having been made. If you don’t agree with the decision or reasons, you can go through an internal appeal. This step must be taken before you can take further action. Government administrations will usually have their own internal appeals process, which they should notify you about. If you’re still not happy you can complain directly to the department involved or go to a court to take the matter further. Going to court is expensive so it’s advisable to settle the matter through internal appeals, if possible.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) Department of Justice and Constitutional Development. Accessed: http://www.justice.gov.za/paja. 09/05/2016.

CREDIT BUREAUS: CAN I BE BLACKLISTED?

There is no such thing as a black list. It simply means that there are negative data on your credit report that is hosted at a Credit Bureau. This negative data can be anything, from a plain collection on one of your loans right through Judgment data or even Debt review.

This negative data will have an impact on your ability to get loans or open retail accounts as the credit provider will see this negative behaviour towards your current credit as a potential way that you will handle their loan; if granted.

A Credit bureau is an organisation that keeps a record of your credit information. Your credit record shows how you manage your debts and is used by credit providers and moneylenders to decide if you can afford to borrow money or pay back a new loan.

The National Credit Act says each credit bureau must be registered with the National Credit Regulator – who decides how your credit information can be used and who can see your credit record.

What is the role of a Credit Bureau?

When you take out your first loan with a credit provider, you have to fill in a form that asks for consumer credit information – including your credit history, financial history, education, employment and identity details. This information, and the details of the loan, is given to a credit bureau that then puts together credit report.

What are your rights regarding a Credit Bureau?

  • To be told that a credit provider intends to report negative information on you to a credit bureau 20 working days before they do so
  • To get a copy of your credit record from a credit bureau when you ask for it – you can get one free record each year but may be charged a small fee for further records
  • To challenge information kept by a credit bureau if you are unhappy with it
  • For your information to be kept confidential, and for it to be used only for the purposes that are allowed

How can your credit information be used?

  • To decide whether or not you can afford credit
  • To investigate fraud, corruption or theft
  • To consider you for employment in a position that requires trust, honesty and the handling of cash or finances

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

http://www.legal-aid.co.za/selfhelp/?p=750

http://www.maxlaw.co.za/faqs/#toggle-id-4

IS YOUR BUSINESS LEGALLY COMPLIANT?

Compliance refers to a company obeying all of the legal laws and regulations regarding how they manage the business, their staff, and their treatment towards their consumers. The point of compliance is to make sure that corporations act responsibly.

Is compliance for every business the same?

Certain businesses may be required by law to register with an industry association. For instance, if you want to practice as a public auditor and issue an opinion on assurance engagements, you must be registered with the South African Institute of Chartered Accountants (SAICA) and the Independent Regulatory Board of Auditors (IRBA). Compliance in this regard would depend on the type of business involved.

What are general requirements for all businesses:

Tax compliance (SARS, VAT Act) – First and foremost, the business enterprise must be registered with SARS for tax purposes (to be taxed on the income that it makes), secondly, if the business is an employer it must register itself as such and as an agent of government required to deduct employees’ tax from the earnings of employees and pay the amounts deducted over to SARS on a monthly basis. Thirdly, if applicable, a business may register for VAT in terms of the VAT Act.

The Occupational Health and Safety Act – The government requires businesses that employ people to provide a work environment that is safe and without risk to the health of employees.

Skills Development Levy (SDL) – Employers must pay 1 percent of their workers’ pay to the skills development levy every month. The money goes to Sector Education and Training Authorities (SETAs) and the Skills Development Fund to pay for training.

The Compensation for Occupational Injuries and Diseases Act (COIDA) – This Act seeks to ensure that employers are duly covered to provide compensation for disablement caused by occupational injuries or diseases sustained by employees in the course of their employment, or for death resulting from such injuries or diseases.

Unemployment Insurance Fund (UIF) – Employers must register with the Department of Labour to ensure that their employees are appropriately covered when out of employment.

Auditing requirements – Depending on the type of company you register, it may be required to be audited on an annual basis.

Financial Intelligence Centre Act (FICA) – If your company will be engaged with financial services, estate agencies, insurance, etc. you are required to comply with this Act in order to combat money laundering.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

http://www.bonaman.co.za/business-compliance-101-for-entrepreneurs/

https://bizconnect.standardbank.co.za/manage/operations-compliance/reference-documents/legislation-business-compliance.aspx

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