ALERT TO LANDLORDS - EVICTION PROCESS STILL A NIGHTMARE

We have previously mentioned the complications and delays inherent in any attempt by a landlord to evict a tenant from the leased premises (see "The Pitfalls of PIE" in the December 2005 issue).

The lengthy and expensive legal procedures imposed by the PIE Act were designed to protect occupants of land other than contractual tenants, but they currently still apply to tenants as well.

As a consequence, landlords have sometimes resorted to extreme measures, such as not paying for municipal services to the premises, and then asking for them to be cut. Now however the right of municipalities to cut such services is being challenged (in respect of the supply of water), in the Port Elizabeth High Court. A free basic water supply of 50 litres a person a day is being sought in another matter before the Johannesburg High Court.

There has been much talk of amending the PIE Act to exclude tenants from the protection afforded to other occupants, but media reports suggest that although amendments are in the pipeline, they are still a long way from promulgation. You are, therefore, still on your own. Make sure that your documentation is as tightly worded as possible. And take the biggest deposit you can get.


WHO OWNS SOURCE CODE COPYRIGHT?

If you produce computer source code as an independent contractor and want to retain copyright, make sure that for each job you have a contract with your client that spells that out. Otherwise, per a recent Supreme Court case, copyright vests in whomever "exercises control over the making of the computer program" - in that case it was held to be the client, not the contractor.


PRACTICAL PROTECTION FROM PASSING-OFF

Once your business has built up goodwill in its products or services, how do you stop a competitor from riding on the back of your hard-earned reputation by copying your branding?

You are entitled to protect yourself from "unlawful competition", which includes "passing-off". This involves others representing that their products or services are yours, in such a way that the public is likely to be confused into thinking that they are indeed yours.

The misrepresentation could relate to the brand name of the product, its form of presentation, logo, get-up, packaging, "trading style" - indeed anything in which the goodwill of your product/service resides. Recent cases here and overseas give an idea of the wide variety of elements that applicants seek to protect. It could be a colour (e.g. Cadbury's dark purple), a container (such as the "bocksbeutel" wine bottle shape), or a name (witness the fights over the magazine names "Wegbreek" and "Weg").

If you can prove that a substantial number of consumers are likely to be confused or deceived, and if that is likely to cause damage to your goodwill, your remedy is to have the competitor interdicted from proceeding, and to claim damages for any loss suffered.

Of course a good bit of pro-active protection to consider up front is to have your attorney register all your trademarks and designs (and patents for any inventions involved).


DEFAMATION: DANGEROUS GROUND (AND WATCH WHAT YOU SAY ON THE WEB)

Recent high-profile defamation claims have drawn attention to the balancing act between our Constitution's guarantee of freedom of expression on the one hand, and the individual's right to protection of personal reputation on the other. It can be difficult to know where the boundaries are, and the penalty for overstepping the mark may be a substantial damages claim. The practical danger is that, as soon as you are proved to have published anything defamatory, you are presumed to have done so both wrongfully and intentionally - so the onus is on you to defend yourself.

Worse, defamation takes place wherever the publication is read - so publish something defamatory on the Internet, and you could be paying damages in Dollars or Euros. In fact, if you are on the other side of the fence - i.e. the victim of defamation - you will want to follow the overseas trend of "forum shopping" (you choose which country to sue in - you can sue in any country where publication took place provided that you have a reputation to be damaged in that country).

There are defences - for example, in a recent High Court case, allegations against an employee made objectively in the course of disciplinary proceedings were held not to be unlawful. However these defences are limited and complex - seek legal advice before publishing anything that could be defamatory, anywhere.


UIF - MAXIMUM EARNINGS CEILING INCREASED

The maximum earnings ceiling for contributions to the UIF was increased on 1st July this year from R10 966 p.m. to R11 662 p.m. (R139 944.00 p.a. or R2 691.23 p.w.). The Department of Labour advises that "All workers who earn above the maximum level will only contribute up to the maximum and when they become unemployed will then receive benefits at the rate of their contribution."


EXPROPRIATION - CALCULATING THE COMPENSATION

There is nothing new in the practice of governments expropriating land or other property - the principle has been applied for centuries around the world, including South Africa. But the factors to be taken into account in arriving at the compensation to be paid are not what they used to be - and that could be highly relevant to both owners and taxpayers.

The Expropriation Act of 1975 refers to only two factors - market value and actual financial loss. In other words, the idea was to compensate the owner for what was actually lost; no less and no more.

The Constitutional Court has held however (in a case where gravel was expropriated from a farm by the Roads Board) that the Court must further determine (both in regard to amount, and time and manner of payment) what is "just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances".

In this second leg, market value is only one of many factors - others include current and historical use, history of acquisition, extent of state investment and subsidy, and purposes of expropriation. Anyone considering a "willing buyer, willing seller" offer for land would do well to bear that in mind - the alternative could be expropriation and an uncertain level of compensation.


DISMISSAL FOR THEFT - BURDEN OF PROOF CLARIFIED

Where an employee is accused of theft, proof beyond a reasonable doubt is of course needed for a criminal charge to succeed. But, as confirmed in a recent Labour Court judgment, an employer seeking to dismiss an employee on the grounds of alleged theft need only prove the misconduct on a balance of probabilities.

This is a vital distinction in practice - "balance of probabilities" means anything over a 50/50 chance that the allegation is true, a substantially lower burden of proof than "beyond a reasonable doubt".



WEBSITES OF THE MONTH: MARKETING, AND BLOGS

Marketing is the lifeblood of every business, and the enterprise that constantly prioritises it will be richly rewarded.

There is so much advice on the Internet on every aspect of marketing - some of it free, much of it for sale (and the latter is not necessarily the better stuff) - that it can be quite a challenge to find something both comprehensive, and comprehensible.

A good start for SMEs looking for advice with a local flavour is the Small Enterprise Development Agency website. Lots of advice and many links for further reading.

For some overseas perspectives, go to The Business Link Sales and Marketing pages and The Business Owners' Idea Café ("a fun approach to serious business").

Now to the buzz-word: Blogs. They've been touted as the future of successful marketing - get some perspective at "Blogging as a marketing tool." "Secrets of Successful Blogging" on the Daily India website which is full of practical guidance.

Then come back home and have a look at local example Cherryflava ("a web magazine dedicated to hot new trends emerging in business, marketing, advertising and fresh thinking that's igniting a creative revolution"). You'll find it at www.cherryflava.com.

And when you decide to take the plunge and launch your very own marketing blog, you can get a free blog template at www.blogger.com.


Blog on!

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