In a press release today, 17 March 2020, the Department of Employment and Labour (the “Department”) appealed to employers to use the prescriptions of the Occupational Health and Safety Act, 1993 in governing workplaces in relation to Covid-19, also known as the Coronavirus. The Department has implored employers to prepare themselves and their employees as far in advance as possible for potentially worsening outbreak conditions ...
Two recent European IP decisions are a welcome reminder of that much-overlooked area of IP law: registered designs. If patent protection is primarily about functionality, design protection is primarily about product appearance (more on this later). These European cases are worth discussing because there are very few court decisions on registered designs in South Africa. They are also worth discussing because they highlight two fundamental aspects of design law ...
In Ismail v Life Entabeni Hospital, the Commission for Conciliation, Mediation and Arbitration (“CCMA”) had to decide whether an employee had been unfairly discriminated against on the basis of her religion as a result of the employer’s “bare below the elbow” policy (“BBE policy”) which did not permit the wearing of long sleeves by those employees working in general wards and the ICU ...
In a previous ENSight, we discussed the decision of the Labour Court in Mtati v KPMG Services (Pty) Ltd. In this case, it was decided that employees may not be disciplined if they have resigned “with immediate effect”. The resignation is regarded as terminating the contract of employment immediately and the consequence is that the employer is denied the opportunity to pursue disciplinary action against the employee. A subsequent dismissal will be null and void ...
On 12 June 2019, the Tax Court of South Africa delivered its judgment in ABC (Pty) Ltd v C:SARS (case no. 14287). The court was tasked with determining the application and interpretation of South African double taxation agreements (“DTAs”) entered into with the State of Kuwait (the “SA-KW DTA”), the Kingdom of the Netherlands (the “SA-NL Protocol”), and the Kingdom of Sweden (the “SA-SE Protocol”) ...
Section 64E(1) of the South African Income Tax Act, 1962 (the “Act”) provides that dividends tax must be levied at a rate of 20% of the amount of any dividend paid by any company, other than a headquarter company. In terms of section 64EA(a) of the Act, the beneficial owner of a cash dividend is liable for dividends tax in respect of that dividend. However, in terms of section 64F(1), a cash dividend is exempt from dividends tax in various instances ...
The Companies and Intellectual Property Commission reported that between 2011 and 2018, a total of 2 867 South African companies initiated business rescue proceedings in terms of Chapter 6 of the Companies Act, 2008 (the “Companies Act”), with South African Airways SOC Limited (“SAA”) being the latest addition to this list ...
Does a change of the terms of a share constitute a new “date of issue” for purposes of section 8E of the Income Tax Act? In terms of section 8E of the South African Income Tax Act, 1962 (the “Act”), dividends received by or accrued to a person in respect of certain shares and “equity instruments”, as defined, must be deemed in relation to that person to be an amount of income if that share or equity instrument constitutes a “hybrid equity instru
The past year has seen a number of high-profile instances of employees resigning, allegedly to avoid disciplinary proceedings against them. This issue was dealt with in the case of Mtati v KPMG Services (Pty) Limited.The employee in this matter was informed by her employer that an investigation was being conducted into allegations of misconduct levelled against her. She then provided her employer with a letter in which she tendered her notice of resignation ...
Section 187(1)(c) of the South African Labour Relations Act, 1995 (“LRA”) has always been controversial because of the interplay between the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining ...
Section 187(1)(c) of the South African Labour Relations Act, 1995 (“LRA”) has always been controversial because of the interplay between the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining ...
The relationship between the periods set for pursuing unfair dismissal claims in terms of the Labour Relations Act, 1995 (“LRA”), and the prescription periods set in the Prescription Act, 1969 (“PA”) has been the subject of some confusion and debate. At the heart of the debate is the interpretation and application of section 16(1) of the PA ...
With intellectual property (“IP”), the focus is often on protection (generally in the form of registration) and enforcement, which often takes the form of an infringement action. Yet, there is also always a great deal of transactional activity taking place in respect of IP assets. This activity tends to fly under the radar, but two recent deals have made the news. These deals are examples of two of the most common IP transactions: licences and sales ...
On 11 December 2015, shortly before the holiday season began, the Minister of Telecommunications and Postal Services published an amendment to the Alternative Dispute Resolution Regulations (“the regulations”) in the Government Gazette. The amendment states that Internet domain names registered in the .co.za, .net.za, .web.za and .org.za are open to alternative dispute resolution under the regulations ...
By its own very high standards, Real Madrid is not having the greatest of soccer seasons, although it has, at least, triumphed in a recent domain name case.The decision in the case of Real Madrid Club de Futbol v Jose Delfim Mendosa de Vasconelos was handed down by panelist Eduardo Machado on 24 January 2018. The issue in the case was straightforward: an individual in Brazil registered the domain name www.realmadrid.com.br ...
Most employers are familiar with the principle of “no work, no pay” in the context of strike action, but what about the concept of “work, pay, extra pay”? Can employers incentivise or reward non-striking employees who pick up the slack? This question was recently considered by the Labour Court inNational Union of Mineworkers obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd ...
Donald Trump comes up in our articles from time to time, as does the issue of bad faith. Both come up in this one. In a recent case in the UK, a company called Trump International, which is owned by a German by the name of Michael Gleissner, filed applications to register the trade mark Trump TV in the communications and entertainment categories (classes 38 and 41). The US President, via a rights management company, opposed these applications ...
“The Trump Organization also earns income by licensing the Trump name to building developers around the world.” – BBC news site in an article entitled “What conflicts of interest could Donald Trump have?” Donald Trump has hogged the headlines for many months. So it’s perhaps no surprise that he’s even managed to make trade mark news ...
This is a story of the age, a story of a character that became a global sensation thanks to the internet. The story is also about the creator of that character, who had the foresight to understand that the character might well become a valuable marketing property and took steps to legally protect the character (its name and image) through IP law, particularly trade mark and copyright law, thus creating “the IP rights” and making the creator “the IP owner” ...
On 20 June 2016, the South African National Treasury published draft Carbon Offsets Regulations (“draft regulations”), intended as a component of the proposed carbon tax. The draft regulations mark the next step in the process of bringing the carbon tax into operation by early 2017 ...
The South African Revenue Service (“SARS”) is, in accordance with section 3(2)(j) of the Tax Administration Act, 28 of 2011 (the “TAA”), responsible for giving effect to the Country-by-Country Reporting Standard for Multinational Enterprises (the “CbC Reporting Standard”) which was developed under the Organisation for Economic Co-operation and Development’s (“OECD’s“) base erosion and profit shifting (“BEPS”) Action Plan 13 – “Re-examine Transfer Pricing Documentation” ...
The long-awaited draft South African Regulations Relating to the Protection of Personal Information, 2017 (the “draft Regulations”) were published today, 8 September 2017. Direct marketers have been speculating for years about the manner and form that the regulations will take under section 69(2) of the Protection of Personal Information Act, 2013 (“POPI”) ...
The pervasiveness of the Internet of Things has spawned a recent fear that the devices are listening to the conversations of their users. For instance, the My Friend Cayla doll talks to children and answers their questions by connecting to the internet and using a combination of voice recognition software and Google searches to provide these responses ...
