SOUTH AFRICA IP GUIDESouthern Africa

Intellectual Property South Africa
The Republic of South Africa ceased to be a member of the British Commonwealth of Nations and became an independent republic in 1961. After 1994 it rejoined the Commonwealth. South Africa lies at the extreme southern tip of the African continent, bordered to the north by Namibia, Botswana and Zimbabwe, and on the northeast by Mozambique.

Area: 1 219 090 km2

Population: 56,72 million

Capital: Pretoria (administrative), Cape Town (legislative)

Currency: South African rand (ZAR)

GDP: $349.4 billion (2017)

Trade Marks

South Africa is a member of the Paris Convention and the WTO/TRIPS. South Africa is expected to accede to the Madrid Protocol within the near future.

The Act provides for the registration of trade marks in respect of goods and services. It is important to note that registration of a trade mark does not necessarily confer an absolute right to use the mark. Prior rights, recognised by law, to a mark may have been secured in ways other than by registration, eg by use.

The protection afforded by a trade mark registration extends to the use of an identical mark or a mark so nearly resembling it as to be likely to deceive or cause confusion, in relation to identical goods or services, or goods or services which are so similar that a likelihood of deception or confusion exists.

Patents

South Africa is a member of the Paris Convention, the Budapest Treaty, the PCT and the WTO/TRIPS.

Patent protection is obtainable by way of a national filing, or via a PCT filing. A national filing can be in the form of a provisional application or a complete application, and the complete application can be a non-convention or a convention application.

A patent confers on the patentee for the duration of the patent (ie as long as it is maintained in force by the payment of renewal fees), the right to exclude all other persons in South Africa from making, using, exercising, disposing of or offering to dispose of, or importing the patented invention, so that the patentee shall have and enjoy the whole profit and advantage accruing by reason of the invention.

The sale in South Africa of a patented article by or on behalf of the patentee gives the purchaser the right to use and dispose of that article.

Designs

South Africa is a member of the Paris Convention and the WTO/TRIPS. It is expected to accede to the Hague Agreement in the near future.

Design protection is obtained by the filing of an application for the registration of a design.

The effect of a design registration is to grant to the registered proprietor the right, for the duration of the registration, to exclude other persons from making, importing, using or disposing of any article included in the class in which the design is registered and embodying the registered design, or a design not substantially different therefrom, so that the registered proprietor shall have and enjoy the whole profit and advantage accruing by reason of the registration.

The disposing (in South Africa) of an article embodying a registered design by or on behalf of the registered proprietor gives the purchaser the right to use and dispose of that article.

Copyright

South Africa is a member of the Berne Convention and the WTO/TRIPS.

The following works, if they are original, are eligible for copyright:

  • literary works
  • musical works
  • artistic works
  • cinematograph films
  • sound recordings
  • broadcasts
  • programme-carrying signals
  • published editions
  • computer programs.

A work (except a broadcast or programme-carrying signal) is not eligible for copyright unless it has been written down, recorded, represented in digital data or signals, or otherwise reduced to material form.

The requirement of originality has been interpreted by the courts to mean that the author must have expended creative effort, labour and skill in creating the work.

Plant Breeders' Rights

South Africa is a member of the UPOV Convention for the Protection of new Varieties of Plants, and the WTO/TRIPS.

Protection by way of a plant breeder’s right may be obtained in respect of new varieties of certain ‘kinds of plants’ by filing an application for registration (see the section on Application below) under the Plant Breeders’ Rights Act.

The effect of the protection is that prior authority must be obtained from the holder of the right by way of a licence, by any person intending to undertake any of the acts set out below, in respect of propagating material of the protected variety, or harvested material (including plants) obtained through the unauthorised use of propagating material of the protected variety, namely:

  • production or reproduction (multiplication)
  • conditioning for the purpose of propagation
  • sale or any form of marketing
  • exporting
  • importing
  • stocking for any of the above purposes.

In addition to the protected variety, the protection is extended to –

  • essentially derived varieties of the protected variety
  • varieties which are not distinguishable from a protected variety
  • varieties the production of which requires the repeated use of the protected variety.

The protection may also be extended by notice in the Government Gazette to products made directly from harvested material of a protected variety.

Company Law

Business vehicles

There are four forms of companies commonly used by foreign investors:

  • Private companies.
  • Personal liability companies.
  • Public companies.
  • Non-Profit companies.

A private company is prohibited from offering its shares to the public and is restricted in the transfer of its shares. A private company is owned by its shareholders who contribute to the company via share capital.

A public company is largely similar to a private company, with the main difference being

that a public company can freely offer its shares to the public, which facilitates the raising of capital for the company.

The transferability of the shares is not restricted. Due to their public nature, public companies have greater transparency requirements.

Personal liability companies are similar to private companies, however do not attain limited liability and are mainly used by professions which are prohibited from restricting their liability.

Non-profit companies are companies whose purpose is not to make a profit and are aimed at altruistic ventures.

Competition Law

Competition Act 89 of 1998.

The Act is enforced by the Competition Commission, the Competition Tribunal (in Pretoria) and the Competition Appeal Court (in Cape Town).

Consumer Protection

Consumer Protection is regulated by the Consumer Protection Act, 2008 (CPA). The CPA applies to, among other things:

  • Every transaction occurring with the Republic of South Africa
  • The promotion or supply of any goods or services within the Republic of South Africa

However, the CPA will not apply if the consumer is a juristic person (i.e. a company, close corporation, body corporate, partnership, association or trust) whose asset value or, annual turnover equals or exceeds R2 000 000.

Data Protection

The President of South Africa signed the Protection of Personal Information Act, 2013 (POPI) on 19 November 2013. However, POPI did not come into force on that day.

Certain sections (relating to establishments of the Information Protection Regulator and the drafting of regulations) commenced on 11 April 2014. The remaining sections are still pending and, when they come into force, there will be a one year phase in period during which organisations can implement compliance with POPI.

Dispute Resolution

The Constitutional Court is the highest court in all constitutional matters, and deals exclusively over constitutional matters and related issues. The Supreme Court of Appeal is the highest court of appeal, except in constitutional matters, and its decisions are binding on all lower courts. The Magistrate’s Courts are lower courts dealing with less serious criminal and civil cases.

Employment Law

Governing legislation

  • Labour Relations Act, 66 of 1995, as amended.
  • Basic Conditions of Employment Act, 75 of 1997, as amended.
  • Employment Equity Act, 55 of 1998, as amended.

Particulars of employment

Contracts of employment must be in writing and comply with s29 of the BCEA.

Exchange Control

South Africa has exchange control systems in place which regulates the transferring of capital (goods or money) in and out of South Africa.

Exchange control is regulated by the Exchange Control Regulations of 1961 (promulgated in terms of the Currency and Exchanges Act 9 of 1933) (Excon Regulations) together with certain orders, rules and rulings, promulgated in terms of the regulations.

The National Treasury has delegated the administration of exchange control to the South African Reserve Bank (SARB), which is responsible for the day to day administration and regulation of exchange control. SARB has, in turn, delegated some of its powers in relation to exchange control matters to certain banks, which are known as authorised dealers in foreign exchange.

A transaction dealing with the in or outflow of capital from South Africa may require exchange control approval from SARB. Exchange control approval is required for inter alia dealings in non-resident owned securities and an outward transfer of capital.

The Excon Regulations further provide that no person may acquire or dispose of a controlled security without the permission of SARB. A controlled security is any security which is registered in the name of a non-resident or of which a non-resident is the owner, or in which a non-resident has an interest. The control over the acquisition or disposal of controlled securities is exercised by placing the endorsement “non-resident” on all securities owned by non-residents or in which non-residents have an interest. The purpose of this form of control is to ensure that the proceeds of any sale are remitted abroad or to the relevant non-resident.

South African residents, for purposes of exchange control, is any person (i.e. natural person or legal entity) who has taken up permanent residence i.e. domiciled or registered, in South Africa, irrespective of whether that person is of South African nationality or not.

Tax Law

South Africa has a national tax system predominantly governed by the Income Tax Act (ITA). Residents of South Africa are taxed on a residence basis whist non-residents are taxed on a source basis.

Any income accruing from a South African source is taxable within South Africa, and residents are taxed on their worldwide income, with relief granted in some instances for taxes paid in other jurisdictions.

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