faqFrequently Asked Questions

Intellectual Property FAQ’s

What is IP?
Intellectual property (IP) in a nutshell, can be described as being creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in business such as brand names. It is important to remember that things like computer programmes, databases and even directories are included in IP. IP confers on individuals, enterprises or other entities the right to exclude others from the use of their creations. As a result, intellectual property rights (IPRs) may have a direct and substantial impact on industry and trade as the owner of an IPR may – through the enforcement of such a right – prevent the manufacture, use or sale of a product which incorporates the IPR. For this reason control over the intangible asset (IPR) connotes control of the product and markets.
How is IP protected?
IP is protected in law, for example, patents, copyright and trademarks, which enable people to earn recognition and income from what they invent or create. A trademark, for instance, is used to distinguish your business or product from those of your competitors. Certain IP (such as trademarks and patents) are registered through the South African Companies and Intellectual Property Commission (link: http://www.cipc.co.za/index.php/trade-marks-patents-designs-copyright/what-ip/) whereas other IP such as copyright does not need to be registered, but you as author still enjoy protection under law.
Types of intellectual property
Copyright Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings. Patents A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how – or whether – the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document. Trademarks A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when craftsmen used to put their signature or “mark” on their products.

faqCOPYRIGHT FAQ’s

What is Copyright?
Copyright is an exclusive right granted by law to authors of original works of authorship. If you create an original work that people can see or hear, you have copyright. Having copyright means that you own that work and you can control its commercial use. Your copyright can protect your work from being copied or reproduced without your permission.
How do I obtain copyright on my idea?
If you have an original idea you cannot have copyright on it. You must put your original idea into material form such as a book, a CD, a painting, a picture, a screenplay or a film. Other works subject to copyright are published editions, computer programs, broadcasts etc.
When do I need copyright?
You need copyright if you want to control the use of your work for monetary gain (economic right). Copyright also gives you a moral right as the author of literary or musical works (this is the right to claim honour or reputation on your work as the author).
How do I apply for a copyright?
Most works eligible for copyright protection do not require registration or other formalities except for cinematograph films.
What works are protected?
The following works are eligible for copyright protection:

  • Literary works
  • Musical works 
  • Artistic works 
  • Cinematograph films 
  • Sound recordings 
  • Broadcasts 
  • Program-carrying signals 
  • Published editions
  • Computer programs
How to secure copyright?
Copyright is secured automatically upon creation provided that the work meets the requirements. Most works eligible for copyright protection do not require registration or other formalities except for cinematograph films.
How long does copyright protection endure?
Currently the duration of copyright is the life of the original creator and fifty years from the end of the year in which the author dies.
How does it assist me to have copyright?
Copyright affords you an exclusive right to stop others from copying or using your work without your permission. If somebody copies your work without your permission; this is called copyright infringement, which is a violation of your rights and you can sue the infringer. It is your responsibility though to prove ownership and also to sue in case of infringement. You can also conclude license agreements with other persons to use your copyright and enjoy payments of royalties payment from the licensees.

faqTRADEMARK FAQ’s

Must a Trademark be Registered ?
A trademark can only be protected if it is registered. Unregistered trademarks could be defended in terms of common law. The registration procedure results in a registration certificate which has legal status, allowing the owner of the registered trademark the exclusive right to use that mark.
What is the Lifespan of a Trade Mark?
A registered trade mark can be protected forever, provided it is renewed every ten (10) years upon payment of the prescribed renewal fee.
How will I know if I can register my brand as a trademark?
A trade mark is registrable if:

  • It serves the purpose of distinguishing your goods and services from those of your competitors
  • It does not consist exclusively of a sign or an indication which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of your goods or services, or the mode or time of their production or of rendering of the services
  • Has not become customary in your field of trade
  • It does not represent protected emblems such as the national flag or a depiction of a national monument
  • It is not offensive or contrary to the law or good morals or deceptive by nature or way of use
  • There are no earlier conflicting rights

faqCOMPANIES FAQ’s

What are the types of companies that can be registered in terms of the New Companies Act 71, 2008?
  • Private company (Pty) Ltd
  • Public company (Ltd) 
  • State-owned company (SOC) 
  • External company 
  • Personal liability company (Inc) 
  • Non-profit company (NPC)
What is a Memorandum of Incorporation?
The Memorandum of Incorporation (MOI) is a document that sets out the rights, duties and responsibilities of shareholders, directors and others in relation to a company and by which a company is incorporated under the Companies Act. It represents a set of rules that companies may accept, change or supplement to suit the particular needs of the company.  
Should I customise my Memorandum of Incorporation or use CIPC’s standard MOI?
The Companies and Intellectual Property Commission has made certain standard Memorandums of Incorporation (MOIs) available. It should be noted that these do not include some significant clauses, such as voting percentages required for passing resolutions, restrictions on transferability of shares in private companies and finances and distributions. With a customised MOI you compile a tailor-made MOI which meets the needs and preferences of you, your company, its shareholders, directors and stakeholders, resulting in a decrease of the commercial and legal risk of directors.
My company was registered before the new Companies Act – do I need a Memorandum of Incorporation?
For pre-existing companies any existing Memorandum of Association and Articles of Association are deemed to be replaced by the Memorandum of Incorporation (MOI). However, pre-existing companies must formally replace their Memorandum of Association and Articles of Association with a Memorandum of Incorporation (MOI) in order to bring the company in line with the Act. This is done by registering their new Memorandum of Incorporation (MOI) with the Companies and Intellectual Property Commission.
What is a private company?
Private companies are comparable to companies of the same status under the Companies Act, 1973 and are characterised by the following:

  • They are subject to fewer disclosure and transparency requirements.
  • A private company will still be prohibited from offering its shares to the public and the transferability of its shares will be restricted, but it may now have more than 50 shareholders. 
  • The name of a private company must end with the expression “Proprietary Limited” or its abbreviation “(Pty) Ltd”. 
  • The board of a private company must comprise at least one director, or any other minimum number as stipulated in its MOI. Each incorporator is a first director of the company.
What is a public company?
Public companies are comparable to companies of the same status under the Companies Act, 1973. They are characterised by the following: 

  • Their MOI permits them to offer shares to the public but restricts limits or negates their right of pre-emption.
  • The name of a public company must end with the word “Limited” or its abbreviation, “Ltd”.
  • A public company must have at least three directors.
What is an external company?
An external company is a foreign company that is carrying on business or non-profit activities within the Republic. It must register with the Companies and Intellectual Property Commission (CIPC) within 20 business days after it first begins to conduct activities within the Republic as an external non-profit company (NPC) or as an external company.
What is a non-profit company?
A non-Profit Company is a company that is incorporated for a public benefit or other object as required by Item 1(1) of Schedule 1 of the Companies Act.  Its income and property are not distributable to its incorporators, members, directors, officers or persons related to any of them, except as reasonable compensation for service rendered. Three (3) persons and 3 directors may form an NPC.

  • They are incorporated for a “public benefit purpose”.
  • Income and property may not be distributed to the incorporators, members, directors or officers of a non-profit company, except for reasonable compensation for services rendered by them. 
  • The name of a non-profit company will end with “NPC”. 
  • A minimum of three persons, called incorporators, must complete and sign the MOI. 
  • A minimum of three directors must be appointed.
  • All of a non-profit company’s assets and income must be used to advance its stated objectives, as set out in its MOI. 
  • Non-profit companies are subject to a varied application of the Act, as set out in section 10.

faqMARRIAGE AND DIVORCE FAQ’s

What is a marriage in community of property?
Both husband and wife share equally in their assets and liabilities. Both husband and wife can act independently of each other, but need permission from each other to conclude certain transactions such as entering in to credit agreements, signing surety for a debt or buying or selling a house.
What is a marriage out of community of property?
Both husband and wife build up their own estates during the marriage and incur their own debts. Both husband and wife can conclude transactions separate from each other and do not need permission to do this. A marriage out of community of property can be concluded either with, or without the application of the accrual system.
What is the accrual system?
On dissolution of a marriage, whether as a result of divorce or untimely passing of a partner, the value of the assets obtained during the marriage are shared between husband and wife. Accrual is calculated as the difference in the gross value of the estate of each spouse and then subtracting the starting value declared by the spouses in their ante nuptial contract. On dissolution of the marriage, the difference in the accrual of the two estates is divided equally.
How do I calculate accrual?
Here is a practical example: At the time of getting married the husband owned a home worth R350,000 and also a car worth R120,000. The wife owned furniture worth R60,000 and a car worth R85,000. So their combined assets amounted to R615 000, with the husband responsible for R470 000 thereof and the wife the remaining R145 000. Husband and wife decide to get divorced and need to do an accrual calculation. The husband’s home is now worth R1,500,000 and his latest car is valued at R350,000. The wife in the meantime had built up a collection of furniture worth R450, 000 and also owned a new car worth R240,000. Her dad had also left her a holiday home which was currently worth R750, 000. Together their assets equalled R3, 290, 000 with the husband’s share of that being R1, 850, 000 and the wife’s share R1, 440, 000. So – at time of divorce:

 

 

Husband R1,850,000
Wife R1,440,000
Total R3,290,000

Accrual is calculated as follows: Step 1: The husband and wife should find out what the weighted consumer price index (CPI) rate was when they were married and now when they divorce. As an example : February 2000 : 60,40 / June 2010 : 111,50 Step 2: Both husband and wife need to adjust their asset values at the beginning of the marriage in order to take into account inflation. Using the above example:

Husband R470, 000 x 111,50 ÷ 60, 40 = R867, 632
Wife R145, 000 x 111,50 ÷ 60, 40 = R267, 674

Now both husband and wife know how much their original assets are worth in today’s money. Step 3: Husband and wife can now calculate value of their assets and estate at time of divorce:

  Husband Wife
Value of assets R1,850,000 R1,440,000
Less inheritance   (R750,000)
Total R1,850,000 R 690,000
Less value at beginning of marriage (R 867,632) (R 267,674)
Total value of assets at divorce R 982,368 R 422,326
     

Step 4: The husband and wife can determine the difference between each other’s respective assets (in this example, the wife clearly has the smaller of the two) and award half of that to the wife since hers is the smaller of the two. So to calculate the amount of accrual due to the wife:

Difference in assets / estates R982,368 – R422,326 = R560,042
Accrual R560,042 ÷ 2 = R280,021
What is divorce mediation and should I consider it?
In short, divorce mediation is a non-confrontational manner to settle any disputes with your spouse relating to a divorce and is aimed at obtaining a settlement between you, without having to fight it out in court.

 

 

  • An impartial and neutral third party facilitates the negotiation process in which the parties themselves make their own decisions.
  • The mediation operates under the auspices of the law.
  • The mediation process is confidential.
  • The aim of the mediation process is to assist parties to reach a mutually satisfying agreement which recognises the needs and rights of all family members.
  • The mediation process is flexible and creative and can be adapted according to the context of the dispute and the needs of the parties.
What are the advantages of divorce mediation?
  • It is a much less stressful and emotional experience than a contested divorce process in court.
  • Working together with a skilled mediator in a negotiation process results in much less animosity, aggression and sour grapes than the protracted confrontation that often occurs between aggressive lawyers and their clients. The shorter time of the process, as well as the considerably lower cost of mediation, also contributes to a lower level of emotional stress.
  • Divorce mediation is much less expensive and faster than the traditional divorce process.
  • The divorcing couples pays one mediator instead of two attorneys. Also, having both parties together during mediation sessions dramatically shortens the process and the billable time of the mediator. The cost of divorce mediation is on average 50% lower than the cost of traditional divorce litigation.
  • Divorce mediation is better for the children. The divorcing parents remain in charge of their children’s interests and needs, and are able to construct a cooperative parenting plan without turning the children’s futures over to judges and lawyers.
  • Mediated settlements are more comprehensive and cooperative in nature, producing a much higher rate of compliance by both parties, and a lower rate of expensive re-litigation. After all, the goal in mediation is to help the spouses come to an agreement that is suitable for their needs and lives.
  • 4Divorce mediation teaches parties how to deal with conflict in a non-aggressive way and gives them the opportunity to express their feelings of bitterness, disappointment and anger.
  • Divorce mediation can be cost effective
  • The stress and animosity often generated during litigation can be emotionally damaging not only for the couple, but for the children as well. Mediation is a more empowering choice for children because:
  • Separating parents maintain control of their children’s needs, and can develop a comprehensive parenting plan.
  • Mediation is more private than a traditional divorce.
What does the divorce process entail?

It is always better to have an understanding of what awaits you in any legal process. These steps provide a brief overview of the steps involved in contested divorce proceedings.

1.    CONSULTATION

You should consult with a qualified and experienced attorney before you even consider litigation.
This is arguably the most important step in any litigious proceedings, and in the emotionally charged environment of divorces, even more so.
You need to understand what your rights and responsibilities are within our legal framework, and you need to accept this before you commence with a divorce. It is important to embark on this process with a clear understanding of what you are entitled to, and what you can expect. If you don’t do this, you are more than likely to waste time and legal expenses, sometimes at the expense of what the court eventually decides you are entitled to.
It is important to understand and accept this so that you can formulate your strategy and tactics before commencing proceedings, and so that you can realistically budget for your legal costs.

2.    SUMMONS

The first document that is prepared and is issued by the court by the person starting the divorce action (this person is called the plaintiff), is the summons.
The summons briefly describes the reasons for the divorce and what the plaintiff wishes to get out of the divorce. This can include how the estate is to be divided, what future obligations of support the parties have towards each other and the children (maintenance) and how the parties interact with the children after the divorce.

3.    INTERIM MAINTENANCE

A party to divorce proceedings can request the court to assist him / her with interim maintenance. This is to assist the party to maintain a certain standard of living where he / she cannot do so without the assistance of the other party, assist this party with paying legal costs and assist this party with the care for minor children.

4.    PLEA

The person receiving the summons is called the defendant. The defendant needs to deliver a defense to the statements made in the summons. This is called a plea.
The plea can also include what is called a counterclaim, which simply sets out claims that the defendant feels he / she has against the plaintiff. This could include different claims for maintenance or parental rights and responsibilities. If a plaintiff disagrees with this counterclaim, he / she can deliver a defense to this counterclaim, which is called a plea to the defendants counterclaim.

5.    APPLICATION FOR TRIAL DATE

The plaintiff then applies for a trial date, which will be allocated for a future time. The time for a trial date is dependent on the region in which the parties reside. This can vary from a few months to approximately fourteen months.
Usually, if a divorce process is instituted in the High Court, the duration from start to finish is in the region of 15 to 18 months. However, the divorce process is now also dealt with in the lower court (regional Magistrate’s Court), and the duration from start to finish will be shorter as some of the time periods are different and the Regional Magistrate’s Court doesn’t, at this stage, have the same backlog of trials as the High Court.

6.    DISCOVERY

While waiting for a trial date, a process called discovery takes place. This is when each of the parties asks the other party to deliver the documentation they are going to be using at trial. South Africa’s system of law does not allow anyone, without the judge’s consent, to ambush another party with a “surprise document” at trial. Every document utilised at trial needs to be “discovered” – given to the other party before the trial commences. It is during this discovery process that most of the documents that have been hidden up until that point in time are usually found, as there are processes that can require specific documents to be brought to court. This documentation may include bank statements, shareholdings in the stock exchange, credit card statements, and so forth.

7.    FINALISING THE DIVORCE

During the process of the pleadings and prior to trial, the matter might be settled. At this point in time, an agreement of settlement is drawn up by either the attorney or the parties themselves, if they are able to do so. The agreement is signed by the parties and then settles the divorce process.
If an agreement isn’t signed, a trial would be held, during which time evidence is presented by both parties and the court makes a decision on how the matter should be resolved

faqCOMPLIANCE FAQ’s

What is the Consumer Protection Act and how does it affect me?
Do I need to implement compliance steps as a business owner under the Consumer Protection Act?
If your business provides goods or services, then yes! It is essential that you train and educate staff accordingly as well as update your engagement and disclosure documents, including standard agreements, to comply with the requirements of the Consumer Protection Act. Contact us to assist you with this.
What is the Protection of Personal Information Act and how does it affect me?
POPI significantly affects the manner in which you collect, store, process and disseminate personal information of other persons. In easy terms, the purpose of POPI is to ensure that all South African institutions act in a responsible manner when collecting, processing, storing and sharing another person’s personal information. In short, POPI results is a person’s personal information as being valuable and gives such person protection of this personal information and the ability to exercise control over:

  • when and how you choose to share your information (requires your consent)
  • the type and extent of information you choose to share (must be collected for valid reasons)
  • knowledge of how your data will be used (limited to the purpose) and notification if/when the data is compromised
  • providing you with access to your own information as well as the right to have your information removed and/or destroyed should you so wish
  • who has access to your information, i.e. there must be adequate measures and controls in place to track access and prevent unauthorised people, even within the same company, from accessing your information
  • how and where your information is stored (there must be adequate measures and controls in place to safeguard your information to protect it from theft, or being compromised)
  • the integrity and continued accuracy of your information (i.e. your information must be captured correctly and once collected, the institution is responsible to maintain it)
What is personal information under the Protection of Personal Information Act?
Examples of “personal information” for an individual could include: Identity and/or passport number, Date of birth and age, Phone number/s (including mobile phone numbers), Email address, Online/Instant messaging identifiers, Physical address, Gender, Race, Ethnic origin, Photos, voice recordings, video footage (also CCTV), biometric data, Marital/Relationship status and Family relations, Criminal record, Private correspondence, Religious or philosophical beliefs including personal and political opinions, Employment history and salary information, Financial information, Educational information, Physical and mental health information including medical history, blood type, membership to organisations/unions.  
To whom does the Protection of Personal Information Act apply?
The right to protection of “personal information” is not just applicable to individuals, but companies and also communities or other legally recognised organisations. All of these entities are considered to be “data subjects” and afforded the same right to protection of their information. So this means that while you as a consumer now have more rights and protection, you and your company/organisation are considered “responsible parties” and have the same obligation to protect other parties personal information. As a company this would include protecting information about your employees, suppliers, vendors, service providers, business partners, and so forth.
Do I need to implement compliance steps as a business owner under the Protection of Personal Information Act?
If you collect personal information, then yes! If you collect personal information you may only collect personal information directly from the owner, you must inform the owner when you are about to collect personal information and obtain the owner’s consent, you must have a good enough reason for collecting this information, and you must provide adequate disclosure on the purpose and intended use of this information and you may only share this information with authorised parties. You may only use the information for lawful purposes and purposes the owner has agreed to. It is essential that you train and educate staff accordingly as well as update your engagement and disclosure documents, including standard agreements, to comply with these requirements. Contact us to assist you with this.
Promotion of Access to Information Act – does my business need to do anything?
All private bodies (Private Companies; Close Corporations; Co-operatives; Partnerships; Natural Persons carrying on any trade, business or profession and the like) are required to compile and submit PAIA Manuals by 31 December 2015. PAIA Manuals must be submitted to the Human Rights Commission and the controlling body of which that private body is a member, if applicable, and must be available on that private body’s website. Failing to compile and submit a PAIA Manual could result in a fine or imprisonment for a period up to 2 (two) years. A PAIA manual must include the following:

  • Contact details of the head of the body;
  • A description of the guide on how to use PAIA issued by the Human Rights Commission;
  • The latest Government Gazette notice regarding the categories of record of the body which are available without a person having to request access in terms of PAIA;
  • A description of the records which are available in terms of any other applicable legislation;
  • Sufficient detail to facilitate a request for access to a record of a body;
  • A description of the subjects on which the body holds records; and
  • Categories of records held by each subject.

We will gladly assist you to draft a PAIA manual. Contact us to discuss your needs.

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