Frequently Asked Questions
Intellectual Property FAQ’s
What is IP?
How is IP protected?
Types of intellectual property
What is Copyright?
How do I obtain copyright on my idea?
When do I need copyright?
How do I apply for a copyright?
What works are protected?
- Literary works
- Musical works
- Artistic works
- Cinematograph films
- Sound recordings
- Program-carrying signals
- Published editions
- Computer programs
How to secure copyright?
How long does copyright protection endure?
How does it assist me to have copyright?
Must a Trademark be Registered ?
What is the Lifespan of a Trade Mark?
How will I know if I can register my brand as a trademark?
- 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
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?
Should I customise my Memorandum of Incorporation or use CIPC’s standard MOI?
My company was registered before the new Companies Act – do I need a Memorandum of Incorporation?
What is a private company?
- 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?
- 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?
What is a non-profit company?
- 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.
MARRIAGE AND DIVORCE FAQ’s
What is a marriage in community of property?
What is a marriage out of community of property?
What is the accrual system?
How do I calculate accrual?
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:
|Value of assets||R1,850,000||R1,440,000|
|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?
- 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.
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.
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.
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.
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
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?
What is the Protection of Personal Information Act and how does it affect me?
- 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?
To whom does the Protection of Personal Information Act apply?
Do I need to implement compliance steps as a business owner under the Protection of Personal Information Act?
Promotion of Access to Information Act – does my business need to do anything?
- 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.