Legal Environment

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In this page: Business Contract | Intellectual Property | Legal Framework of Business | International Dispute Resolution

 

Business Contract

General Observation
You must be particularly vigilant about the terms of the contract and the methods of conflict resolution. In fact, South Africa is not a signatory to the Vienna Convention on International Contracts.
Law Applicable to the Contract
The South African law of contract is in many respects similar to the English common law. There is no requirement that each party should give a consideration in order to form a binding contract. The basis of the contract in South African law is offer and acceptance.
Advisable Incoterms
Choose FOB or CIF, or more. When importing, avoid EXW if you do not want to be involved in organizing domestic transport in South Africa , as it could be complex at times.
Language of Domestic Contract
English, Afrikaans
Other Laws Which Can Be Used in Domestic Contracts
Consumer legislation could be used to prescribe or limit the provisions of a business contract.

The terms of a contract may be tested against the provisions of the Bill of Rights. Provisions which significantly infringe certain basic human rights may be void.

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Intellectual Property

National Organisations
The national organisation for the protection of trademarks and patents is the CIPC (Companies and Intellectual Property Commission).
The South African Institute of Intellectual Property Law is another organisation.
South Africa signed the Paris Convention for the protection of industrial roperty, as well as the agreement establishing the World Intellectual Property Organisation (WIPO).
Regional Organisations
African Regional Intellectual Property Organisation (ARIPO)
International Membership
Member of the WIPO (World Intellectual Property Organization)
Signatory to the Paris Convention For the Protection of Intellectual Property
 

National Regulation and International Agreements

 
Type of property and law Validity International Agreements Signed
Patent
 
Patents Act, 1978.
20 years Patent Cooperation Treaty (PCT)
Trademark
 
Trade Marks Act, 1993.
10 years Trademark Law Treaty
Design
 
South African Designs Act 195 of 1993
Aesthetic design: 15 years, Functional design:10 years  
Copyright
 
Copyright Act of 1978
50 years Berne convention For the Protection of Literary and Artistic Works
Industrial Models
 
South African Designs Act 195 of 1993
 

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Legal Framework of Business

Equity of Judgments

Equal Treatment of Nationals and Foreigners
Foreign nationals can expect to receive an impartial trial from the country's judicial system.
The Language of Justice
Any of the 11 official languages of South Africa.
Recourse to an Interpreter
Interpreter services are available if the language of the proceedings is not understood by the accused.
Legal Similarities
The legal system is based on Roman-Dutch law and English common law.
South African commercial laws and company laws are similar to the laws of the United Kingdom.
 

The Different Legal Codes

 
Constitution of South Africa South African Constitution
South Africa - Companies Act (2008)
Companies Amendment Act (2011)
South Africa - Companies Act (2008)
Companies Amendment Act (2011)
The Criminal Procedure Act (1977) The Criminal Procedure Act (1977)
The Insolvency Act, 1936, Act 24 (1936) The Insolvency Act, Act 24 (1936)
The Consumer Protection Act Consumer Protection Act (2008)
 
Checking National Laws Online
Acts Online
Legislation South Africa
Other Useful Resources
Judicial Officers Association of South Africa
Constitutional Court of South Africa
Pretoria Bar Association
Country Guides
Doing Business in South Africa
 

The Jurisdictions

 
Constitutional Court Has the final say on all matters relating to the Constitution of South Africa. Its decisions on the constitution are binding on all other courts.
Supreme Court of Appeal Has the final say on all matters, except those that involve the constitution. It only hears cases on appeal and its decisions are binding on all courts of a lower order.
High Courts of South Africa They have jurisdiction over all matters in their geographical area, but usually only hear civil matters involving more than ZAR 100 000 and serious criminal cases.
Circuit Courts Part of the High Court, they move around to serve more rural areas.
Special Income Tax Courts Deals with any disputes between a taxpayer and the South African Revenue Service, where the dispute involves an income tax assessment of more than ZAR 100,000 .
Labor Courts and Labor Appeal Courts They have jurisdiction over labor matters and are on the same level as the High Court.
Divorce Courts There are three such courts: the Central, North Eastern and Southern Divorce Courts. They hear divorce matters.
Land Claims Court It was established in 1996 and hears cases dealing with the return of land taken away during Apartheid (land reform cases).
Magistrates' Courts These are the lower courts which deal with most matters. They are divided into regional courts and district courts.  They do not have jurisdiction to deal with civil matters dealing with more than ZAR 100,000.
 
 

Court Officials

Judges
High Court judges are mainly drawn from the ranks of senior advocates (barristers), attorneys (solicitors) and academics.
 
 

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International Dispute Resolution

Arbitration
Recognised under South African law as a means of dispute resolution and has been the principal form of dispute resolution in sectors like construction, engineering, insurance and other commercial disputes.
Arbitration Law
Arbitration Act 42 of 1965.
Conformity to International Commercial Arbitration Rules
Party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Appointment of Arbitrators
Free determination of the number (one or more) and the method of appointment by the parties.
Arbitration Procedure

Dispute resolution provisions in agreements usually stipulate the procedural rules that will be applicable to the arbitration process. Thus, in domestic arbitrations, one would find that rules such as those of the Arbitration Foundation of Southern Africa (AFSA).

There is no right of appeal to the courts against the decisions of an arbitrator. There is only a right of review.
Permanent Arbitration Bodies
Commission for Conciliation, Mediation and Arbitration (CCMA)
Association of Arbitrators

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Latest Update: November 2022