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Please note that the legal topics informally discussed here are general discussions of certain aspects and therefore certainly not intended as legal advice.  We look forward to discussing your particular case with you.

by Cody Haricombe on 10 October 2019
Broadly speaking, a contract is an agreement entered by and between two or more parties, creating binding rights and obligations between them.  Contracts can be tailored to meet the particular needs of the parties, and can be entered into in various ways, using various methods.  This post considers generally the concept of "smart contracts", from a South African legal perspective.

by Steven Stuart-Steer on 10 October 2019
Directors are tasked with the proper management of their company. In doing so, each of them is expected to (and carry the fiduciary duty) to navigate the requirements under applicable legislation and to obtain regulatory clearances where needed when they undertake any actions on behalf for a company for which they serve as a director, including specifically that the company satisfies all necessary corporate approvals.

by Steven Stuart-Steer on 10 October 2019
The time-honoured position in our common law is that contracting parties will be bound strictly to the terms of their agreement.  Accordingly, where parties have reached consensus and concluded an agreement with lawful terms, they are obliged to honour their agreement.  This principle of certainty in contract is a cornerstone of the South African law of contract and commerce generally.

by Cody Haricombe on 10 October 2019
Finding a Facebook "Like" button or similar social plugin on a website is commonplace these days.  Website operators often embed these plugins on their websites in order to enhance their presence, as well as the visibility of their products, on social media.  This post highlights a recent ruling of the Court of Justice of the European Union (herein "CJEU"), where it was held that if you have embedded such a plugin on your website then you are a joint data controller with the provider of the plugin, and considers the potential impact of such ruling from a South African legal perspective.

by Jan-Hendrik Gous on 10 October 2019
In the case of De Vasconcelos & others v Business Partners Limited (637/2018) [2019] ZASCA 80, the Supreme Court of Appeal considered a loan arrangement which was structured to include both a royalty payment and interest charges.  The court had to determine whether such an arrangement was against public policy, and furthermore whether the additional obligation to pay a royalty triggered the operation of the in duplum rule (rule which prevents arrear interest accumulating beyond the outstanding capital amount).

by Dérick Swart on 9 October 2019
Open source software is a term used to describe certain types of licences that allow for software to be used for free (i.e. gratis), but mostly not without obligation.  At their heart, these licences seek to ensure that where software was originally made available for free, it continues to be made available on those same terms– inclusive of the improvements thereto.  The idea is a noble one and many great innovations have come from the collective work of the open source community.[1] 

by Dérick Swart on 2 August 2019
Businesses – especially start-ups – do not have unlimited resources at their disposal and therefore the process of legal compliance is also a process of risk management – identifying risks, assigning a severity and probability of harm, putting controls in place to achieve compliance and finally (hopefully) measuring compliance against the agreed controls and their continued efficacy.  This post is an attempt to state what, in the writer's view, can be a process to developing a roadmap to substantive compliance with data privacy obligations in South Africa for the average business that has not yet taken any steps in this regard.

by Jan-Hendrik Gous on 3 July 2019
Section 74 of the Companies Act, No. 71 of 2008 ("Companies Act"), enables the board of a company to adopt so-called "round robin" resolutions.  Section 74(1)determines that "except to the extent that a company's memorandum of incorporation provides otherwise, a decision that could have been voted on at a meeting of the board of that company may instead be adopted by written consent of a majority of the directors, given in person, or by electronic communication, provided that each director has received notice of the matter to be decided". 

In the case of CDH Invest NV v Petrotank South Africa (Pty) Ltd & Others (438/2018) [2019] ZASCA 53, the Supreme Court of Appeal had to decide on the validity of such a round robin resolution adopted by the board of the company involved.

by Larissa Holtzhausen on 3 July 2019
Fortnite, the online video game developed by Epic Games, has become a cultural phenomenon since its release in 2017.  The free-to-play mode of the game, Battle Royale, was an unquestionable success, drawing more than 125 million players in less than a year.  The game is widely recognised for "emotes", which are brief animated sequences in terms of which a player’s avatar celebrates the player’s success in the game (by way of a dance) – often adopted from a well-known dance move.  One might be tempted to dismiss the emotes as trivial and not protectable by law, so we decided to consider the position under South African law.

by Shona Nicoll on 2 July 2019
In Seabeach Property Investment No 28 v Candice Lauren Nunn (18310/18) [2019] ZAWCHC 9 the Western Cape High Court was tasked with determining whether the parties were bound to the arbitration clause in spite of an allegation that the sale agreement including the arbitration clause was null and void. 

by Shona Nicoll on 2 July 2019
In eThekwini Municipality v Mounthaven (Pty) Ltd [2018] ZACC 43 the Constitutional Court was called upon by eThekwini Municipality to set aside the Supreme Court Appeal's decision which held that a revisionary right, registered in the deeds registry, constituted a "debt" that had prescribed under the Prescription Act.

by Jan-Hendrik Gous on 2 July 2019
The Gauteng Division of the High Court issued a practice directive on 3 October 2018 providing for the operation of a specialist Commercial Court.  The court will for now only be established in the Pretoria and Johannesburg High Courts, but the idea is for other High Courts to follow suit.

by Reneé Olmstead on 27 November 2018
With Brexit looming on 30 March 2019, trade mark owners are anxious for certainty as to what impact Brexit may have on their existing trade mark rights in the European Union, given that this exit naturally involves substantial changes to the current intellectual property landscape in Europe.

by Steven Stuart-Steer on 24 November 2018

The United Kingdom Financial Conduct Authority has announcedthat it will phase out the London Interbank Offered Rate (commonly abbreviatedas "LIBOR") by the end of 2021. LIBOR is a benchmark rate indicating the unsecured loan rate at whichbanks within the UK are prepared to borrow from one another.  As such, this has been widely used as a dependable variable rate of interest rate by financial institution throughout the world as well as for purposes of many commercial contracts (especially for cross-border transactions).   

by Larissa Holtzhausen & Marko de Wet on 16 November 2018
The common law of contract appears to be under construction, if the string of recently decided cases in our courts is anything to go by. As our judicial system endeavours to reconcile established legal principles with Constitutional imperatives, the status of your agreements may be more than a little uncertain.

by Liezal Mostert on 15 November 2018

A recent decision of the Supreme Court of Appeal in Moris Material Handling Limited v Moris Material Handling SA (Pty) Ltd (829/2017) [2018] ZASCA 67 again highlighted the importance of the manner in which owners allow others to use their trade marks, and the dangers inherent in not having proper licensing arrangements in place with the authorised users of a mark. 

by Liezal Mostert on 14 November 2018
You have finally registered your mark and received the registration certificate. Now what? Do you simply file it away somewhere and wait for the renewal date to come up, all the while being safe in the knowledge that the registration will prevent others from using your mark?  Unfortunately, it is not that simple. In exchange for the exclusive rights to your mark, the trade mark owner has to mange and care for those rights, otherwise he runs the risk of losing the investment made in a trade mark.

by Dr Stuart Gardiner on 14 November 2018
Practitioners in the branch of law known as “Intellectual Property” or “IP” are often asked whether a certain idea can be “patented” or otherwise protected by the law. It must be stated immediately that the law does not protect ideas before the concept is turned into some physical or concrete form recognised by specific laws governing the four main defined categories of IP, namely, Patents, Designs, Trade Marks and Copyright.  It is useful, therefore, to clarify the differences between them with reference to the forms they take and the functions they perform.

by Liezal Mostert on 14 November 2018
CompuMark, an industry leader in trade mark research, recently released a survey indicating that trade mark infringement is on the rise and that it has a tremendous impact on the value of brands. This is true for large multinational organisations and smaller brands and start-ups alike, as it is becoming easier to compete and conduct business around the world. Consequently, competition with regard to the creation of unique brands and the need to protect them is heating up.

by Technology team on 7 August 2018
Having received updates to privacy policies from every corner of the world, it probably known to all that the General Data Protection Regulation ("GDPR") became effective on 25 May this year.  The question you may have asked is whether this could affect South African businesses? 

by Larissa Holtzhausen on 7 August 2018
Debicheck, the new system being introduced by The Payments Association of South Africa (PASA), will go a way towards providing increased peace of mind and control to both parties involved in a debit order transaction. 

by Dr Stuart Gardiner on 26 July 2018

The draft of the Copyright Amendment Bill 2017 was published on 16 May 2017 and the date for public comment in response to the Bill expired on 19 June 2017.  This was an extraordinarily short period for responses to the complex legislation contemplated by the Bill to be made.  The Bill has not been met with universal acclaim and much of the academic response to the Bill has been cutting.

by Steven Stuart-Steer on 26 July 2018
Mr Abraham Albertus Cilliers (hereinafter "Cilliers") succeeded in a precedent setting claim against La Concorde Holdings Limited (KWV Holdings Limited as it was previously named) (hereinafter "La Concorde"), a public company listed on the JSE and forming part of the HCI group of companies, in the Western Cape High Court on 14 June 2018.  This landmark case held that dissenting shareholders of a disposing company's holding company are entitled to follow their rights for a statutory buyout at fair value in certain circumstances. 

by Jan-Hendrik Gous on 26 July 2018
In the recent case of Shaw & another v Mackintosh & another (267/17) [2018] ZASCA 53, the Supreme Court of Appeal had to consider the position of sureties under the National Credit Act, No. 34 of 2005 ("the Act").  

by Larissa Holtzhausen on 11 June 2018
A recent decision of the Kwazulu-Natal High Court, Laser Junction (Pty) Ltd v Fick (2017), dealt with a particularly interesting issue regarding restraint of trade agreements, namely whether such agreements will survive the transfer of a business as a going concern.   

by Larissa Holtzhausen on 11 June 2018
The recent High Court decision in Honda Giken Kogyo Kabushiki Kaisha t/a Honda Motor Co Ltd v Big Boy Scooter [2017] ZAGPPHC 513 is a lesson to all businesses and trade mark proprietors to keep a wary eye on the market as well as the Registry and ensure that the use of confusingly similar marks by competitors is attended to swiftly and without hesitation. 

by Jan-Hendrik Gous on 11 June 2018
The "without prejudice" rule has the effect that statements made by one party to another during settlement negotiations are not admissible as evidence in later formal proceedings, should negotiations between the parties fail.  Until recently our courts had recognised limited exceptions to the rule, which included the admission of commercial insolvency and the making of fraudulent misrepresentations. 

by Jan-Hendrik Gous on 1 June 2018
In the recent case of Mohamed's Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd the court had to consider the landlord's right to cancel the lease agreement due to late payment of rent resulting from an error by the tenant's bank.  

by Dr Stuart Gardiner on 18 April 2018
Recently the Supreme Court of Appeal denied registration of PEPSI TWIST as a trade mark for a soft drink by PepsiCo. Why? 

by Steven Stuart-Steer on 11 March 2016
Broadly speaking, resolutions of the board of directors and the shareholders may be adopted in one of two ways: (i) at a meeting by way of a vote (whether on anonymous voting cards, a poll, by show of hands or otherwise); or (ii) written round robin resolutions. One of the many innovative features of the Companies Act, 2008 (the “Act”) is that it has brought the corporate decision-making procedure in line with modern business practice by expressly allowing for the adoption of resolutions by way of a round robin method.

by Steven Stuart-Steer on 11 March 2016
The well followed case of the suspension of the former group CFO of PetroSA was recently decided upon in the Cape Town High Court, which case once again highlights the importance of having a practical grasp of the area of law concerning directors’ duties and in particular the duty to avoid a conflict of interest. The new Companies Act, 2008 (the “Act”) has partially codified certain of these directors’ duties in sections 75 and 76.

by Derick Swart on 26 February 2015
In Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another, the Supreme Court of Appeal ("the SCA") held that it was permissible for a written agreement, which required cancellation to be in writing and signed by the parties, to be cancelled by email.

by Derick Swart on 10 September 2013
Trade marks are capital assets of a business that serve the purpose of securing the goodwill between a customer and the proprietor of a product or service. Failure to properly secure exclusivity of a trade mark can have costly consequences, including having to change your trading style and ending up in litigation. Through the trade mark registration process, the protection afforded by trade mark legislation can be used to secure the goodwill that resides in that connection to the exclusion of others. In this post we discuss one approach to a cost effective trade mark strategy. There are many nuances to the topic which fall outside the scope of this post and each particular therefore needs to be assessed on its own merit.

by Jos Floor on 26 August 2013
The parties to a corporate transaction do not always have the same level of legal expertise or representation, which can have the effect that unintended consequences can arise for one of the parties, such as such as an entrepreneur being forced to exit or an investor being forced to buy out the remaining shareholders. Accordingly, before negotiating a corporate transaction, even one in respect of a private company, it is imperative to consider the impact that various laws will have on the proposed transaction to ensure the deal can be completed without unintended consequences. This article briefly highlights some of these statutory requirements that private companies should consider before a corporate transaction.

by Derick Swart on 29 July 2013
The development and use of Internet-based applications have become prevalent due to the major improvements in terms of reliability and performance that so-called “cloud computing” offers. Applications such as these are often referred to as “software as a service” or “SaaS” applications, because the end user is presented with a secure service that is accessible (typically via an Internet browser), rather than a physical installation at the end user’s site. It is easy to assume that SaaS services will never leave one in the lurch due to the excellent uptime and performance that users typically enjoy. There are however a number of risks that arise from the use of SaaS. In this article we will take an introductory look at two of these issues, namely managing service levels and business continuity.

by Derick Swart on 10 July 2013
In this post we deal with some pertinent issues arising from section 75 of the new Companies Act, which constitutes a partial codification of director’s duties where direct or indirect personal financial interests are involved. The scope of the section in question is wider than some people may anticipate and therefore directors (and other stakeholders) should consider their rights and obligations carefully.

by Inge Wever on 11 April 2013
It is easy to make the mistake of thinking that the logo you had commissioned is your property, correct? The law in South Africa states otherwise by default.

by Nerien Coetzer on 28 March 2013
One of the most important changes brought about by the new Companies Act (“the Act”) is the creation of a new founding document for companies, called a Memorandum of Incorporation (the “MOI”), which combines the current memorandum of association and articles of association of a South African company into one document. The MOI stipulates the rights, duties and responsibilities of shareholders, directors and others within and in relation to a company and other related matters.

by Jeremy Speres on 12 October 2012
The IP rights governing codecs depend to a large extent on the form a codec takes. Generally, codecs take two forms. Firstly, at the most basic level, they are algorithms for the compression and decompression/coding and decoding of data streams. Secondly, a codec can refer to software that is used to implement the codec algorithm, i.e. software used to compress and decompress or code and decode data streams. We use codecs in our everyday lives – one example is the popular MP3 audio codec which was invented and patented by the Fraunhofer Society in Germany and which generates hundreds of millions in licensing fees.

by Jeremy Speres on 6 August 2012
Trade mark marking refers to the use of symbols or wording to identify a trade mark over which an owner claims exclusive trade mark rights. Two common examples include the ® and ™ symbols. Each country has its own laws pertaining to marking and not all countries require or even provide for the use of common marking indications. This can complicate packaging, labelling and general marketing for businesses trading in multiple countries.

by Jeremy Speres on 11 June 2012
Walk into any wine retailer and you’ll be confronted with any number of wines bearing the name of some or other place as a brand. Brands such as SWARTLAND, NAMAQUA and ROBERTSON WINERY come to mind. As Eben Sadie once said: “…the notion of sense of place is what wines are about and the reason they have fascinated mankind since the very inception”.

by Jeremy Speres on 22 May 2012
The outsourcing of software development is common place, with many businesses outsourcing all of their development needs or certain mission critical components thereof. This very often leaves such businesses in a precarious position. The software developer is not prepared to assign its copyright in the software to the business nor is it prepared to reveal the software’s source code, or is only prepared to do so for a sum the business is not prepared to pay. The business (‘the licensee’) is therefore forced to merely license the software from the developer.

by Jeremy Speres on 21 May 2012
Will the doctrine of notice come to the aid of a licensee, or the holder of some other personal right in a registered trade mark, where that mark is assigned to a third party who refuses to take on the previous proprietor's personal obligations to the holder of the earlier personal right?

by Derick Swart on 15 December 2002
SLA's should be seen as vehicles promoting effective communication between parties, thereby increasing the likelihood of achieving strategic objectives to the advantages of both the client and the service provider.

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