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DON'T SCORE AN OWN GOAL IN 2010!
Take advice before you market your products and/or services with any allusion - direct or indirect - to the 2010 World Cup. You cannot use words or images in a way that amounts to "ambush marketing" or "unlawful competition" - essentially any attempt to take unauthorised advantage of the publicity surrounding the event.
FIFA is actively protecting its sponsors' rights to exclusivity in this regard, and recently obtained a High Court order against the marketing of a lollipop branded "2010 Pops", with depictions of soccer balls, and partial depictions of the South African flag, on its packaging.
Every case will be different, but if there is any risk of your falling foul of these rights, don't launch an expensive marketing campaign without taking full advice first.
DEVELOPERS TAKE NOTE: NEW RISK FACTORS IN SCHEME APPROVALS
Developers should take note of the recent Supreme Court of Appeal decision which confirmed the setting aside of development rights (in the form of a 1957 township approval) for portion of the farm Oudekraal on the eastern slopes of Table Mountain.
Holding that "the entire area is regarded as sacred by Muslims…………… a formerly marginalised section of South African society", and that "the ecology of the area…………… is unequalled", the Court decided that the original township approval had been invalid.
Constitutional requirements, and post-1957 environmental legislation, add further considerations - the High Court in another case recently held that "pure economic factors are no longer decisive. The need for development must now be determined by its impact on the environment, sustainable development and socio-economic interests".
Clearly, in assessing the development opportunities of any property, you need to look far beyond the zoning and other technical issues - consider also any broader issues that may impact on approval. Include at least these in your checklist: - - Environmental impact
- "Heritage" issues
- Religious rights or considerations
- Cultural factors
- Socio-economic interests (which must, per the High Court case, relate to the development itself, not to extraneous matters)
- Sustainability.
CHECK YOUR WILL - ESTATE DUTY CHANGES EFFECTIVE 1 JANUARY
It has always made sense to structure your financial affairs so as to minimise estate duty - at 20% of your net assets, it can make a huge difference to what your heirs ultimately inherit.
In the past, estate planners have frequently recommended the use of trusts for this purpose, but new tax legislation - effective from 1 January 2010 - could change that. The new law provides for any unused part of your current estate duty deduction (R3.5m) to be rolled over to your surviving spouse's estate, i.e. the final deduction will potentially be R7m - even without the use of a trust.
That certainly doesn't mean that trusts are dead - they will always be essential estate-planning tools in particular situations. Take advice on what to do in your specific case; and have your will reviewed at the same time.
ESTATE AND MANAGING AGENTS: WHEN MUST YOU REGISTER AS A DEBT COLLECTOR?
Many estate agents offer the service of collecting rentals and levies on behalf of clients such as landlords, Bodies Corporate, or Home Owners Associations.
No problem there, unless the service extends to collection - for remuneration - of arrear levies. The Council for Debt Collectors, in finding an agent guilty of improper conduct for attempting to recover collection costs from a defaulting sectional title owner, has effectively held that only registered debt collectors and attorneys are entitled to charge for collection of overdue levies and rentals.
There is talk of an application for agents to be exempted from this requirement, but unless and until such exemption is granted, your choices seem to be: -- Refer the collection of arrears to your attorney/registered debt collector; or
- Register yourself as a debt collector, in which event be aware that the fees you can charge are strictly limited; or
- Don't charge anything at all for collecting arrears.
BUSINESSES BEWARE! NEW CONSUMER PROTECTIONS WILL RAISE RISK FACTORS
The media has been awash with stories of how the new Consumer Protection Act will shield consumers from a range of unfair marketing and business practices, but consumers need to note that these protections are not effective yet - the Act will be implemented incrementally, with certain provisions kicking in only late next year.
On the other side of the coin, businesses involved in the supply of goods and/or services (i.e. most businesses!) should start preparing now for the additional risks - and probably cost - that the Act will expose them to.
For a start, your cash flow projections will need to factor in new provisions for implied warranties, return of goods, cancellation of contracts by customers etc.
Factor in also another significant danger - the greatly increased liability for damages caused by defective or unsafe products. All participants in the chain of supply of goods - including producers, importers, distributors, retailers and installers - will be equally liable for any damage caused as a result of any "unsafe product characteristic, failure, defect or hazard". The risk is high - you could be sued for virtually any type and level of resultant loss - "economic loss", death, injury, illness, property damage or loss, etc.
And it won't be easy to escape liability, because liability will now be "no-fault" or "strict", i.e. the consumer will not have to prove that you were negligent in any way - instead you will have to prove any defence you may raise, and the defences open to you here are limited.
Start planning now!
THE DECEMBER WEBSITES: A LITTLE BIT OF THIS, AND A LITTLE BIT OF THAT…………
Make the most of your December holidays with these ideas - - Keep in touch with your loved ones overseas - without paying a fortune in international call charges - via Skype. A lot of people have heard of it but hold back from using it, not realising just how easy and cheap it is to use. In a nutshell, you are making voice calls over the Internet, and all you need at each end is: -
- A computer
- A good Internet connection (ADSL is ideal)
- A basic headset, or separate earphones and microphone (watch out for feedback if you use the latter, or if your computer has a built-in mike and speakers)*
- Some free software - download it from www.skype.com
- For the cherry on top, add a basic webcam for real-time video - used to be science fiction, now it's in your home!
* You won't need the mike if your webcam has a built-in one. Special handsets (they look like mobile phones) are available, but not required for casual use.
Don't pay too much for any of this stuff, top range is not essential. Find the best deals at price comparison sites like Price Check at www.pricecheck.co.za, Jump.co.za at www.jump.co.za, or ShopMania at www.shopmania.co.za.
- Travel somewhere for a break. Many regional destinations are offering special discounts - find them at sites like Africa Bespoke www.africabespoke.com/travel-specials/, or by searching on Google with details of what you want with added search terms like "special", "specials" or "special offer". Then phone and ask if they have any really really special deals for locals (some such deals are kept off the Internet, presumably to hide them from strong-currency foreigners!).
- Do you need to keep a mob of kids happily occupied? "Your Parenting's Holiday Survival Guide" on their website at www.yourparenting.co.za/article.asp?ArticleID=437 has "10 Things To Do At Home", "10 Cool Car Games" and 10 Beach Games". Keep the little ones out of harm's way with the "Holiday Safety Tips" on ChildSafe's website at www.childsafe.org.za/holidays.htm.
- Or just chill at home with a good book or two. For inspiration, browse The Library Booklists' "Recommended books of the 20th and 21st Centuries" at http://librarybooklists.org/fiction/adult/postmodern.htm#recommended
Thanks for your support in 2009. Have a Fantastic Festive Season, and a Happy and Prosperous 2010!
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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