Who is it suitable for?

Any publisher of works (like books, guides, manuals). It is crucial that every publisher sign a publishing agreement with each author, especially to deal with copyright.

What you get?

The agreement will be:

• drafted in plain language so you can understand it
• up-to-date with the lastest law
• includes the latest alternative dispute resolution clause
• in editable format so you can make changes
• comprehensive
• cleverly structured depending on your requirements

What is the process?

How do I get it?

If you are interested,

Enquire Now

We will contact you to find out more about your requirements and give you a quote.

For those of you who watched Carte Blanche last night, you will have been left even more unsure about the implication of the CPA on the sale of residential property. You can view the story here if you missed it: http://beta.mnet.co.za/carteblanche/Article.aspx?Id=4537&ShowId=1. As the presenters in Carte Blanche stated, the issue of property sales is not a simple one and the legal debate over whether the CPA will apply to private sales between individuals is not one that can be easily answered.

Who does the CPA apply to?

When looking at the sale of property we usually have three parties:

• the buyer,
• the seller, and
• the estate agent.

At face value it seems totally logical that the transaction between the seller and the buyer should fall within the CPA, but this is not the case.

Seller

A seller is usually a private person who sells property as a secondary form of income to what they do on a day-to-day basis. Unless the seller sells property in their “ordinary course of business”, they would not be a “supplier” in terms of the CPA.

Buyer

Can a buyer be a consumer, even though they do not buy from a defined supplier under the CPA? The answer is, no. The buyer also would not be a  consumer under the CPA, because they are not entering into a transaction with a defined supplier.

A consumer under the CPA is someone:

• to whom those particular goods or services are marketed in the ordinary course of the supplier’s business;
• a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, unless the transaction is exempt from the application of the CPA;
• if the context so requires or permits, a user of those particular goods or a recipient or beneficiary of those particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and
• a franchisee in terms of a franchise agreement.

This means that if the seller is not a supplier, then the buyer also cannot be a consumer.

The role of estate agents

You cannot argue that the contract must be regulated by the CPA, when none of the parties or the property sold fall within the ambit of the CPA.

The next question would then be whether the estate agent would be an intermediary in terms of the CPA, since they are in the business of “representing another person for “the actual or potential supply of any goods or services” and “offers to sell the property that belongs to a third person”.

But the definition of an intermediary goes further than that, because it excludes ”a person whose activities as an intermediary are regulated in terms of any other national legislation”. Since estate agents are regulated by the Estate Agency Affairs Act of 1976 it could easily be argued that they are not intermediaries as defined in the Act.

If we have three parties who do not fall within the ambit of the CPA, it would be hard to argue that the sale of a private property would fall within the ambit of the Act.  This includes the so-called “voetstoots” clause that has been eradicated by the CPA, because you cannot argue that the contract must be regulated by the CPA, when none of the parties or the property sold fall within the ambit of the CPA.

This, however, might be the only ray of light for buyers. If it is found that the estate agents are “intermediaries” under the Act, then it could be argued that the seller might now have to be jointly and severally liable with the estate agent if they contravened the CPA. This means that sellers will rather sell the properties themselves so as to evade the effects of the Act, unless they will be included by an amendment to the CPA as it stands.

The bottom line

For the time being, there is a lot of uncertainty. Unless the Act changes or there is a definitive decision about the application of the Act on the sale of residential property, the Act will not apply.

Possible solutions

Instead of trying to make the parties fit the definitions within the CPA, it would be a much better solution to adopt an act that deals with all the unique problems that the sale of property entails.  The other option would be to especially include the sale of property into the provisions of the CPA as an exception to the general rules that apply to transactions and agreements in the Act.

What is it?

The essence of a penalty clause is that if one party to a contract breaches it, that party will give something to the other party. Usually money. For example, if we agree that we will have coffee tomorrow at 3pm and that if I am late, I will pay for your coffe and mine. Then that is a penalty clause. If I am late, rather than you claiming damages through the courts, I simply pay you a penalty.  The objective to dissuade the party from committing the breach for fear of the consequences – I do not want to be late for coffee because then I have to buy yours and mine.

Another example, is in the context of service levels for ICT services.

Questions?

Is a penalty clause enforceable? How high can the penalty be? Can it be more than the damages suffered? Can one claim damages and the penalty?

Read on for the answers

There is a whole body of law that has developed dealing with penalty clauses. You have to be very careful when drafting them and including them in contracts.

We have extensive knowledge and experience regards penalty clauses. If you need help, please contact us.

For example:

• They might know that they need to protection the personal information they process, but not know where to start.
• They might want to start using open source software, but are afraid of the risks involved.
• They might find that getting their customers to sign their agreement is a real problem. They have marathon contract conference calls where hours of time is wasted arguing legal technicalities.
• Do they need a default or an altered MOI with a Shareholders Agreement.
• They want to address the legal aspects of IT Governance, Risk and Compliance.

They need solutions, but are not sure what they are. Is it a due diligence, a corporate policy, or new template agreements? What type of template?

They are still trying to decide what, when, where and how. It is crucial that they (and us) understand exactly what they require. Otherwise, a lot of time and money can be wasted doing the wrong thing. Requesting people to submit proposals for the wrong thing can also be a waste of time and resources.

How can we help you?

This is why we offer a Requirements Assessment. For a relatively low fee, we do an assessment of exactly what you need, when you need it, and where you need it. We interview divisions and determine what you require, the time frame for delivery, and the specific challenges you face. We will ask you questions (sometimes using questionnaires) to gather information and help define the issues.

We find this almost always saves the client money in the long run and reduces the overall fee.

Often the client, then engages us to provide further services. But they don’t have to. If not, the client still has a great working plan or specification to help them select the service provider of their choice. Sometimes we recommend other people who are more suited to provide the service. We only do what we do well.

What we will deliver?

We will present our findings and make our recommendations in:

• A comprehensive written report
• A presentation

Who is it for?

• Legal advisers
• Privacy officers
• Compliance officers
• Company secretaries

How you benefit

• Be sure you are going to get it done correctly
• Make sure you get what you need
• Get a great working plan or specification to help you select the service provider of your choice
• Save time and money

Interested?

If you are interested,

Enquire Now

We will contact you to find out more about your requirements.

We often get asked:

• whether an electronic signature is legal?
• whether a particular type of technology used to create an electronic signature is legal?
• whether you have to use a particular type of electronic signature technology in order for the electronic signature to be legal?
• whether the ticking of a checkbox or entering of a password is an electronic signature?
• whether a voice recording can constitute an electronic signature?
• whether any laws specify how electronic signatures must be applied?

How can we help you?

Our services will help you to understand:

1. what is a “signature”;
2. the legal concept of a signature;
3. the different types of signatures;
4. what constitutes an electronic signature;
5. the different  electronic signature technologies;
6. whether electronic signatures are legal in South Africa;
7. the validity of electronic signatures produced by signature pads;
8. whether a particular electronic signature technology will be recognised by a Court;
9. the difference between an “ordinary” electronic signature and an “advanced” electronic signature;
10. the advantages of ”advanced” electronic signatures.

What we offer

We offer the following services:

1. We can hep you by providing an opinions on electronic signatures relating to the issues mentioned above;
2. Assist you decide whether you need an  an “ordinary” electronic signature and an “advanced” electronic signature (now that advanced electronic signatures are commercially available);
3. Guidance of appropriate electronic signature technologies to use.
4. Provide suggested wording to be used in websites where people will be “signing”.

Our clients

Our clients include electronic signature technology providers and electronic signature users.

Interested?

If you are interested,

Enquire Now

We will contact you to find out more about your requirements and give you a quote.

New Findings, Judgments and Announcements

Minister of Communications

• The Minister and Deputy Minister delivered their budget vote speeches on 8 May 2012.

New Proceedings

None

Pending Proceedings – Representations Due

ICASA

• ICASA has given notice that it has requested a court to review and set aside portions of its regulations regarding spectrum fees. Licensees wishing to oppose the matter have until 17 May 2012 to do so. For more information, go to https://www.icasa.org.za/AboutUs/CourtRulings/tabid/291/Default.aspx.
• ICASA issued invitations to apply for:

1. individual commercial subscription broadcasting service licences, due 11 July 2012
2. individual commercial sound broadcasting service licences in Gauteng, Cape Town and Durban (primary markets), due 4 July 2012
3. individual commercial sound broadcasting service licences in the Eastern Cape, Northern Cape and Free State (secondary markets), due 27 June 2012

Pending Proceedings - Outcome Awaited

Parliament

• Protection of Information Bill
• Protection of Personal Information Bill

Minister of Communications

• Policy  Directions in respect of 800 MHz and 2.6 GHz radio frequency bands
• ICASA Amendment Bill
• Cyber-security Policy
• Strategy on local and digital content development
• Repeal of policy direction re the conversion of USALs
• Set top box manufacturing sector development strategy
• Study on the trends of digital local content and uptake rates

ICASA

[Pending decisions about individual licenses and complaints are not included in this list]

• A Review of the Broadcasting Regulatory Framework towards a Digitally Converged Environment
• Repeal the digital migration regulations and replacement with digital terrestrial television regulations.
• List of under-serviced areas
• Regulatory Framework for Broadcasting Transmission Services
• Introduction of local loop unbundling
• Report re wholesale transmission services
• Report re universal service obligations
• Radio f requency spect rum fee regulations applicable to broadcasting
• Numbering Plan Regulations
• Ownership and control regulations
• Amended E-rate regulations
• Must carry obligations
• Schedule for periodic review of markets; Regulations for monitoring and investigating anti-competitive behavior; Significant market power determinations; Pro-competitive licence conditions; Methodology to determine effectiveness of competition; and Methodology to define and identify markets
• Technical standards for power line communications
• Essential facilities regulations

Department of Trade and Industry

•  ICT Sector Charter, Broad Based Black Economic Empowerment Act Minister of Science and Technology

Minister of Science and Technology

• Regulations to prohibit activities in core astronomy advantage areas
• Regulations on radio astronomy protection levels in astronomy advantage areas.
• Regulations in terms of the Astronomy Advantage Areas Act

Minister of Justice and Constitutional Development

• Tariff of compensation payable to ecommunciations service providers in terms of the Protection from Harassment Act
• Promotion of Access to Information Amendment Bill
• 17th Amendment Bill to the Constitution, permitting national govn’t to require municipalities to particulate in infrastructure plans
• 18th Amendment Bill to the Constitution and State Liability Bill
• Ratification of Council of Europe’s Convention on Cyber crime (dealing with computer-related fraud and forgery and infringement of copyright). Additional protocol regarding racist and xenophobic acts committed through computer systems has yet to be signed by South Africa.

National Treasury

• New Standardised PPP Provisions

Dept of Environmental Affairs

• Amendments to the Environmental Impact Assessment Regulations, 2010
• Additional Implementation Guidelines (Sector Guidelines) in terms of the National Environmental Management Act
• Implementation Guidelines in terms of the National Environmental Management Act
• Guidelines on environmental impact assessments for facilities to be included in the electricity plan and for strategically important developments of state owned enterprises

National Consumer Commission

• Guidelines for the accreditation of Ombud Schemes
• Guidelines for the development of industry codes of conduct

.za Domain Name Authority

• Amended Memorandum and Articles of Association of the Authority
• Registry and Registrar licensing regulations

City of Johannesburg

• By-laws re rights of way for electronic communications facilities

South African Law Reform Commission

• Issue Paper on electronic evidence
• Discussion Paper 122 on Project 25: Statutory law revision, legislation administered by DoC.

If you would like to subscribe to the ICT Weekly Update, please go to http://lists.internet.org.za/mailman/listinfo/weeklyupdate.

Who is it suitable for?

The owner or “purchaser” of any intellectual property.

What you get?

The agreement will be:

• drafted in plain language so you can understand it
• up-to-date with the lastest law
• includes the latest alternative dispute resolution clause
• in editable format so you can make changes
• comprehensive

We will answer your questions and ensure that you do it correctly.

What is the process?

How do I get it?

If you are interested,

Enquire Now

We will contact you to find out more about your requirements and give you a quote.