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A Clearvu on endorsements
ENSafrica, February 2018

Every now and then, a dispute comes along that adds an extraordinary amount to the law. One such dispute is the Clearvu trade mark case.We have reported on the case of Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd on a number of occasions. This was the case in which a South African court had to consider whether or not it is unlawful for a company to bid on the trade mark of a competitor as a keyword/search term...

Akanamali: feeling like you can make some money?
ENSafrica, February 2018

In South Africa, the song Akanamali, sung by the artist Sun-El Musician and featuring Samthing Soweto, was one of the most popular songs of 2017. Towards the end of the year, South African financial services giant First National Bank (“FNB”) ran a campaign to promote its products and services. It called this campaign Akanamali and featured the hook of the song, which was about a lack of money...

Copyright: joint ownership and databases
ENSafrica, February 2018

A South African judgment dealing with joint ownership of copyright in databases has recently come to light. The judgment was handed down almost a year ago, but it seems to have slipped under the radar. This judgment will, however, be of interest to those involved in IP.The case is The Philanthropic Collection (Pty) Ltd v Girls & Boys South Africa...

Trade marks and politics
ENSafrica, February 2018

It’s interesting how often trade marks and politics intersect, especially in South Africa!In the most recent example, the issue was whether a political party that had broken away from the ruling African National Congress (“ANC”) – the African Democratic Change – had infringed the rights of the ruling party. As is commonly known, the logo of the ANC features the colours black, green and gold, as well as an image of a hand grasping a spear...

When will POPI come into force?
ENSafrica, February 2018

  The question of when the South African Protection of Personal Information Act, 2013 (“POPI”) will come into force has been asked many times since the Bill was signed into law by the president on 19 November 2013...

Greater B-BBEE disclosure requirements for JSE-listed companies
ENSafrica, February 2018

In an effort for the South African government to assess the state of transformation of publicly listed companies, the Broad-Based Black Economic Empowerment Act, 2003 (the “B-BBEE Act”), read together with the B-BBEE Regulations, requires that all companies listed on the Johannesburg Stock Exchange (“JSE”) report to the B-BBEE Commission annually on their compliance with broad-based black economic empowerment (“B-BBEE”)...

Is your organisation ready for POPI and the GDPR?
ENSafrica, January 2018

In an increasingly connected world, the protection of privacy and personal data has become a key concern for legislators in a number of jurisdictions. In South Africa, an attempt to give effect to the constitutional right to privacy resulted in the Protection of Personal Information Act, 2013 (“POPI”), which was gazetted on 26 November 2013...

Africa tax in brief
ENSafrica, January 2018

ANGOLA: Draft law on tax and foreign exchange compliance approvedParliament approved a draft law on the Extraordinary Regime on Tax and Foreign Exchange Compliance, regulating the repatriation of assets held abroad that have not been declared in Angola in December 2017...

Amendments to the taxation of debt restructures
ENSafrica, January 2018

Since 1 January 2013, section 19 of the Income Tax Act, 1962 (the “Act”) and paragraph 12A of the Eighth Schedule to the Act (the “Eighth Schedule”) have determined the tax implications where a debt owing by a taxpayer is cancelled, waived, forgiven or discharged for no consideration (or for consideration that is less than the amount of the debt)...

Are you aware of your B-BBEE compliance obligations?
ENSafrica, January 2018

Broad-based black economic empowerment (“B-BBEE”) is a policy of the South African government that is aimed at increasing participation by previously disadvantaged South Africans in economic activities. The Broad-Based Black Economic Empowerment Act, 2003 (the “B-BBEE Act”) is the primary legislation through which this B-BBEE policy is implemented...

Potential VAT cash flow problem for residential property developers
ENSafrica, January 2018

The recent end of the value-added tax (“VAT”) relief period for property developers in South Africa, who temporarily let their residential units, may have a significant impact on their cash flow.  BackgroundOrdinarily, property developers acquire or develop fixed property (including residential properties) for the purpose of resale...

Regulators join forces to ensure B-BBEE compliance
ENSafrica, January 2018

On 15 December 2017, the South African Department of Trade and Industry (the “DTI”) published a memorandum of understanding entered into between the Companies and Intellectual Property Commission (the “CIPC”) and the Broad-Based Black Empowerment Commission (the “B-BBEE Commission”) (the “CIPC MOU”)...

Employment discrimination outlawed if based on a criminal record irrelevant to the work in question
ENSafrica, January 2018

The Mauritian Equal Opportunities Act, 2008 (the “Act”) prohibits and sanctions discrimination in employment on the basis of a person’s status. Status encompasses age, ethnic origin, race, sex and sexual orientation, among others...

Labour Court rules on automatically unfair dismissals in the context of changes in employment conditions
ENSafrica, January 2018

The recent decision of the Labour Court in National Union of Metalworkers of South Africa obo members and Aveng Trident Steel (A division of Aveng Africa (Pty) Ltd) may provide some cheer to employers facing the challenges of restructuring their workforce in difficult economic times. Since 2014, the employer in this matter has faced strong economic headwinds caused by a downturn in sales and increased costs...

Introduction of the in duplum rule in Rwanda
ENSafrica, January 2018

The third quarter of 2017 saw a number of changes in the regulatory framework of the Rwandan financial sector, the most significant of which included a change in the law governing the regulator of the financial sector (the National Bank of Rwanda) and the enactment of the New Banking Act governing the organisation of banking, both of which were gazetted in October 2017...

Draft Carbon Tax Bill released for comment
ENSafrica, January 2018

On 14 December 2017, the South African National Treasury published a Draft Carbon Tax Bill (the “Bill”) for public comment, with the comment period commencing immediately and continuing until 9 March 2018...

Does resigning with immediate effect put a stop to disciplinary proceedings?
ENSafrica, December 2017

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...

The National Minimum Wage Bill released for public comment
ENSafrica, December 2017

On 17 November 2017, the National Minimum Wage Bill was gazetted for public comment. Given that the Bill was the subject of negotiation and agreement at the National Economic Development and Labour Council (“NEDLAC”), its progress through the legislative process is likely to be fairly smooth. The Bill envisages that it should be in force by 1 May 2018. We highlight its most important provisions below...

Patent prosecution highway to advance Africa-China IP relationship
ENSafrica, December 2017

  The 41st session of the administrative council of the African Regional Intellectual Property Organization (“ARIPO”) recently took place in Lilongwe, Malawi. Several documents on the administrative aspects of the organisation were discussed at the meeting, including the proposed programme of activities for 2018, and proposals to amend some ARIPO treaties to continually keep them in line with international trends...

Black cabs and trade marks
ENSafrica, December 2017

The trade mark laws of many countries specifically mention product shapes among the items that can enjoy trade mark protection – shape trade marks are often referred to as “3D trade marks”. Yet, registering and enforcing 3D trade marks can be very difficult, particularly in Europe. This is evident from the latest UK court decision regarding London taxis...

Black Friday: is it a trade mark?
ENSafrica, December 2017

Black Friday tends to lead to unseemly physical scuffles, but, somewhat unexpectedly, this year’s Black Friday also resulted in some interesting trade mark scuffles! Black Friday, the retail and marketing phenomenon that originated in the US before spreading to much of the world, officially happened earlier this year, although many readers will have noted that this particular Friday seems to go on for the best part of a week...

Stop using our trade mark … please … pretty please
ENSafrica, December 2017

If you have ever received a trade mark letter of demand, the chances are that you thought one or more of the following things: long, scary, legalistic, absurd, incomprehensible. It is far less likely that you thought any of these things: perfectly reasonable request, clearly explained, a tricky issue handled with charm and tact – but things may be changing. Recently, the trade mark counsel of US company TGI Fridays sent a letter of demand to a bar in Chicago called Moneygun...

South Africa releases Competition Amendment Bill
ENSafrica, December 2017

On 1 December 2017, the South African Minister of Economic Development, Ebrahim Patel, published Government Notice no. 41294, which announced the release of the Competition Amendment Bill, 2017 (the “Competition Bill”) for public comment.Members of the public are invited to submit written comments on the Competition Bill to the Economic Development Department within 60 calendar days of publication of the notice (ie, by 30 January 2018)...

What Constitutes Membership or Shareholding of a Company in Uganda?
ENSafrica, November 2017

When is one a shareholder or member of a company? This issue was recently considered by the Supreme Court of Uganda in Matthew Rukikaire v Incafex Limited, which ruled that a person who has not fully paid up their shares may be considered a member and shareholder of a company with rights to full participation in the affairs of the company to the extent allowed by the types of shares they hold...

Africa Tax in Brief
ENSafrica, November 2017

ANGOLA: Introduction of transfer pricing unitA transfer pricing unit, set up as an administrative technical structure forming part of the Large Taxpayers Directorate of the General Tax Administration, was launched on 25 September 2017 and will be responsible for monitoring compliance with Angola’s transfer pricing regime introduced by Presidential Decree No.147/13 of 1 October 2013...

The Taxation Laws Amendment Bill, 2017: far-reaching changes to debt reduction rules
ENSafrica, November 2017

  The new South African Taxation Laws Amendment Bill, 2017 (the “TLAB 2017”) was released following the public consultation process for the Draft Taxation Laws Amendment Bill, 2017 (the “Draft TLAB 2017”). While some of the changes in the TLAB 2017 following submissions made on the Draft TLAB 2017 are welcome, others are problematic...

Unutilised Capital Losses – Can SARS Impose Understatement Penalties?
ENSafrica, November 2017

In terms of section 222(1) of the South African Tax Administration Act, 2011 (the “TAA”), “[i]n the event of an ‘understatement’ by a taxpayer, the taxpayer must pay, in addition to the ‘tax’ payable for the relevant tax period, the understatement penalty determined under subsection (2) unless the ‘understatement’ results from a bona fide inadvertent error” (our emphasis)...

Relocating from South Africa? Key steps to undertake in the emigration process
ENSafrica, November 2017

There are a number of considerations when relocating to another country that involve much more than a mere physical departure and the taking up of permanent residence in a foreign country. In South Africa, an individual will continue to be regarded as a South African resident for exchange control purposes until such time as the South African Reserve Bank (the “SARB”) has provided him/her with formal emigration approval...

Playing with fire – understanding future financial commitments
ENSafrica, November 2017

Section 66 of the South African Public Finance Management Act, 1999 (“PFMA”) places certain restrictions on the powers of national and provincial public entities, government departments and constitutional institutions (“public institutions”) in regard to specified transactions, namely borrowing, the issue of guarantees, indemnities and security, and entering into transactions that bind or may bind that public institution or the revenue fund to any other so-called future f

With child, without pay
ENSafrica, November 2017

In the Labour Court judgment, dated 7 November 2017, of Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd, a pregnant employee claimed she was unfairly discriminated against due to the application of the maternity leave policy of her employer, a gold mining company...

UGG, what a legal mess!
ENSafrica, November 2017

There’s an interesting trade mark dispute under way about UGG. It touches on a range of IP issues – geographical indications, generic terms, country-of-origin brands and Chinese manufacture.Many readers will know that UGG is a sheepskin boot originating from Australia. UGG has apparently been around since the1930s, when it was created to deal with the cold winters in Australia (the Blue Hills region of New South Wales apparently can get cold)...

Huawei/Wawei, it’s all a bit confusing
ENSafrica, November 2017

In this article, we look at two recent trade mark opposition decisions. These remind us of the many issues that need to be considered when comparing trade marks. They also highlight the growing importance of Chinese brands.The first involves a case that was before the European Union IP Office (“EUIPO”). In this case, the Taiwanese company Wawei filed an EU trade mark application for Wawei for food and drink in classes 29, 30 and 32...

Brexit: is it offensive?
ENSafrica, November 2017

The issue of offensive trade marks has been in the news quite a bit of late. Now, the European trade mark authorities have considered whether Brexit, the term used to describe the UK’s departure from the European Union, is a trade mark that might offend. It might seem like an unlikely trade mark, but clearly some people think that Brexit works as an indicator of commercial origin...

Uganda Insurance Regulatory Authority clarifies new bancassurance guidelines
ENSafrica, November 2017

The Ugandan Insurance Regulatory Authority (“IRA”) has released clarification on its recently published bancassurance guidelines. Following the publication of the Insurance (Bancassurance) Regulations, 2017, the IRA published guidelines on the licensing of financial institutions as bancassurance agents...

“Breaking ground” to calculate mineral royalties on unrefined minerals
ENSafrica, October 2017

The 2014 changes to the South African Mineral and Petroleum Resources Royalty Act, 2008 (the “Royalty Act”) have left mining companies and extractors (“taxpayers”) in uncertain territory...

Dividends tax: The importance of determining when a dividend is “due and payable”
ENSafrica, October 2017

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...

From Functional Analysis to Value Chain Analysis
ENSafrica, October 2017

Attacks by the South African Revenue Service (“SARS”) on the transfer pricing practices of multinational enterprises (“MNEs”) are on the rise, leading to tax disputes with SARS over significant amounts of tax. MNEs operating in South Africa provide information to SARS in various forms such as annual Corporate Income Tax returns, Country-by-Country reports as well as the extensive Transfer Pricing documentation...

Finally some clarity on impending margin requirements for OTC derivatives
ENSafrica, October 2017

On 8 August 2017, the South African Financial Services Board (“FSB”) released for comment the second draft of the Board Notice entitled “Margin Requirements for OTC Derivative Transactions” (the “Second Draft Board Notice”)...

Can an employer make deductions from remuneration for work not done?
ENSafrica, October 2017

In Mpanza and another v Minister of Justice and Constitutional Development and Correctional Services and others, the South African Labour Court dealt with a dispute about whether an employer was entitled to make deductions from the remuneration of two employees in circumstances where they were absent from work...

What are the Tax and Exchange Control Implications of Bitcoin?
ENSafrica, October 2017

With virtual currencies such as Bitcoin becoming ever more popular and accessible, it is important that South African taxpayers carefully consider the tax and exchange control uncertainties that accompany the incorporation of these relatively new systems into businesses and/or investment portfolios. We highlight below some of the tax and exchange control consequences arising from transactions involving Bitcoin...

GDPR - New EU Privacy Rules: African Organisations Take Note
ENSafrica, October 2017

  On 25 May 2018, a new set of privacy rules formed by the European Union (“EU”) will take effect. The General Data Protection Regulation (“GDPR”) seeks to replace the Data Protection Directive 95/46/EC. Organisations – including many African ones – will need to make changes to their oversight, technology, processes, and human resources to comply with the GDPR...

Imagine there’s no protection
ENSafrica, October 2017

The recent spat between Yoko Ono and a Polish drinks company highlights the importance of registering trade marks.What happened in this matter was that John Lennon’s widow, Yoko Ono, threatened a small Polish lemonade manufacturer with legal action. The issue? The product that the Polish company sells in a number of European countries is called John Lemon...

Let’s (not) twist again
ENSafrica, October 2017

South Africa’s Supreme Court of Appeal (“SCA”) has handed down an important trade mark judgment. The case of PepsiCo Inc v Atlantic Industries deals with the issues of distinctiveness and likelihood of confusion, with a special emphasis on sub-brands. There are a lot of important points in this short judgment, so I am going to quote liberally.The facts: PepsiCo applied to register the trade mark Pepsi Twist (with and without a device) for soft drinks...

ASA’s jurisdiction regarding non-members finally settled
ENSafrica, October 2017

The issue of the jurisdiction of the South African Advertising Standards Authority (“ASA”) to determine matters involving individuals and companies that don’t belong to the body has now been resolved by an agreement that has been made an order of the Supreme Court of Appeal in the case of Advertising Standards Authority v Herbex (Pty) Ltd...

Trade marks in China: a New Balance
ENSafrica, October 2017

There was a time when companies were sceptical about IP protection in China, with the general impression being that the law was heavily weighted in favour of local companies, some of whom seemed to make a habit of hijacking foreign brands. But things have changed considerably over the past few years, and a recent trade mark development should further persuade African businesses that their IP rights, and particularly their trade marks, will be properly protected in China...

FSB Victory in Market Abuse Case
ENSafrica, September 2017

The Supreme Court of Appeal decision in the matter of Pather v Financial Services Board concerns a challenge to the jurisdiction of the Enforcement Committee of the Financial Services Board (“FSB”) to deal with market abuse, specifically in this case publishing false statements that resulted in an overstatement of the performance of their company.  The two appellants were Maslamony Pather and Ah-Vest Ltd (formerly All Joy Foods Ltd)...

A Legal Obligation to Monitor your Social Media Pages?
ENSafrica, September 2017

Many of us are aware of the popular myth that ostriches believe burying their heads in the sand will make them invisible to predators. In other words, an “if I can’t see you, you can’t see me” approach. Even though scientists will tell you that this is not true, the approach seems to bear a resemblance to the online behaviour of some humans...

Appointment and duties of an information officer in terms of South Africa’s POPI draft regulations
ENSafrica, September 2017

he office of the South African Information Regulator recently published its first draft regulations in terms of the Protection of Personal Information Act, 2013 (“POPI”), entitled “Regulations relating to the Protection of Personal Information, 2017”. The draft regulations are open for public comment until 7 November 2017...

Unintended consequences of the new CFC rules
ENSafrica, September 2017

In the 2017 South African Budget speech, the Minister of Finance raised government’s concern that the current Controlled Foreign Company (“CFC”) rules do not capture foreign companies held by interposed trusts or foundations, and it was announced that countermeasures for the treatment of foreign companies held by trusts or foundations will be considered...

The Countdown Begins for Retirement Funds to Comply with the Final Default Regulations
ENSafrica, September 2017

The final Default Regulations, issued in terms of section 36 of the Pension Funds Act, were recently issued by the South African Minister of Finance. They aim to provide retirement funds with greater discretion and flexibility in relation to their default investment portfolios and annuity strategies. To comply with the regulations, many funds will need to amend their rules and investment policy statement...

 

 

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