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  • Navigating through the landscapes of Employment and Immigration in South Africa

    Navigating through the landscapes of Employment and Immigration in South Africa

    The beginning of this year marked a pivotal moment in South Africa’s grapple with the complexities of its employment and immigration landscape. In the recent declarations by President Cyril Ramaphosa signalled a significant shift in policy in that, South Africa’s commitment to zero-tolerance approach towards employers hiring undocumented foreigners, which is poised to reshape the way businesses operate.

    According to the provisions of the Immigration Act 13 of 2002 “Immigration Act”, employers are strictly prohibited from employing illegal foreigners, that includes foreigners whose status does not authorise them to be employed by a particular employer and any foreigners on terms, conditions or in any capacity other than that is provided for based on their status.  To ensure that employers comply with the Immigration Act, employers can expect more rigorous audits and inspections from the “Department of Home Affairs” and the” Department of Employment and Labour”. This compliance may include verification of employees’ immigration status inter alia work visas, refugee or asylum permits the Department of Home Affairs.

     

    As part of the zero-tolerance approach, employing undocumented migrants is a criminal offense and a breach of section 49(3) and section 38(1) of the Immigration Act, which governs the entry, sojourn and employment rights of non-citizens in South Africa. Employers who are found guilty of these offences may face a fine or imprisonment of up to one year for a first offense.

    With the development of South African Immigration Act, employers are encouraged to ensure that all their employees comply with the immigration requirements. This includes conducting thorough pre-employment checks, such as the verification of relevant documentation.

    Key reforms aim to streamline the immigration process while ensuring rights of local workers are protected, that is:  

    • Focus on Skills Development -the reforms place strong emphasize on skills development among South African citizens, ensuring that training and employment opportunities are prioritized for locals to enhance the “Critical Skill List” thereby addressing priority skills shortages.
    • Simplified Work Visa Processes – the government aims to simplify the application process for work visas which include launching a digital platform that expands the visa to more countries. This will enable employers to access foreign talent more efficiently, when necessary, provided they can demonstrate a genuine skills shortage in the local market.

    What does this mean for Employers? There are a few key points that could possibly impact employers and employees:

    • Job Creation for Locals – the reform aims to create more job opportunities for South African citizens, particularly in sectors that have previously relied on undocumented foreign labour.
    • Sectoral Impact – industries such as agriculture, construction, and hospitality, which often employ a significant number of foreign workers, may experience disruptions. Employers in these sectors must adapt by investing in local talent and training.
    • Labour Rights and Protections – with increased scrutiny on employment practices, businesses will need to ensure compliance with South African labour laws, protecting the rights of all employees, regardless of their nationality.

    As businesses navigate these changes, staying informed about key deadlines and ongoing developments is crucial. To ensure compliance, employers should consider the following actions:

    1. Employers are urged to keep an eye on development from the DHA and the DEL, particularly regarding compliance deadlines and new regulations.
    2. Companies should implement training programs to ensure that Human Resource teams are well-informed about updated immigration policies and compliance requirements.
    3. Consulting, with legal experts will be essential to ensure that businesses remain compliant and avoid penalties or operational disruptions

    The South African employment and immigration landscape is undergoing significant transformation, driven by the government’s zero-tolerance approach to illegal employment. As these developments unfolds, businesses are encouraged to adapt to these changes by ensuring compliance with new regulations, protecting local labour, and embracing the opportunities that arise from these reforms, by prioritizing lawful hiring practices and investing in local talent.

     

    Phindulo Munyai is an Associate at Tshaya Mashabela Attorneys who specialises in labour law and commercial and civil litigation. Reach out to her to assist you navigate these changing waters.

    Author: Cindy Moshatane, Candidate Legal Practitioner

    Reviewed and approved by: Phindulo Munyai, Associate

     

    References:

    Immigration Act 13 of 2002

    State of the National Address (SONA) 2026

  • THE NATIONAL MINIMUM WAGE

    THE NATIONAL MINIMUM WAGE

    Throughout history, various organisations have advocated for a national minimum wage which will be legally enforceable. This emanated from the unfairness and pay disparity based on discrimination that had been normalised in the workplace. As far back as 1955, these sentiments were echoed in the Freedom Chater under the declaration; “There shall be work and security!” It was further substantiated by providing that there shall be a forty-hour working week, a national minimum wage, paid annual leave, and sick leave for all workers, and maternity leave on full pay for all working mothers. These sentiments sought to ensure the protection of the lowest-paid workers from exploitation and to improve their wages.

    It is thanks to such initiatives that we now have the National Minimum Wage Act 9 of 2018 (“the Act”). The Act was enacted for the purpose (Section 2) of advancing economic and social justice by improving the wages of the lowest paid workers, protecting workers from unreasonably low wages, and preserving the value of the national minimum wage, amongst others. In Section 1 of the Act, ‘‘wage’’ is defined as the amount of money paid or payable to a worker in respect of ordinary hours of work or, if they are shorter, the hours a worker ordinarily works in a day or a week, and ‘‘worker’’ as any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind. This piece of legislation applies to all workers from all walks of life in the country.

    The Act also aligns with the views of the International Labour Organisation (“ILO”). The ILO is an international body which sets international labour standards and promotes social justice and decent work. The ILO has found that minimum wages are a common labour-market policy tool. According to the ILO’s resolution No. 135, minimum wages are one element in a policy designed to overcome poverty and to ensure satisfaction of the needs of all workers and their families. Furthermore, the fundamental purpose of minimum wage fixing should be to give wage earners necessary social protection. This aspect is reflected in Section 7 of the Act which requires the National Minimum Wage Commission to, amongst others, promote the alleviation of poverty and the reduction of wage differentials and inequality when reviewing the minimum wage and recommending adjustments, with consideration to various economic factors.   

    The Act makes it illegal for employers to pay workers anything less than the minimum wage. Although the minimum wage applies to every worker, save for those excluded by the Act, it was created with those workers with the least paid type of employment in mind, and in comparison, to inflation, in order to assist workers to be able to afford basic needs. It is for this reason that the Act establishes the National Minimum Wage Commission; which is responsible for the review of the national minimum wage and recommending adjustments, in addition to investigating and reporting annually to the Minister of Employment and Labour on the impact of the national minimum wage on the economy, collective bargaining and the reduction in income differentials, and making such information available to the public.

    In the Constitutional Court case of Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24, the Court stressed the importance of protection of every worker within the broader labour legislations and thereby ensuring fair wage protection. The Act provides relief to those workers who have wage disputes against their employers. In the CCMA case, Siphokazi Mvambi and 4 Others v Crown Household (Pty) Ltd (GAEK10115-23) the Commissioner ruled in favour of employees in a matter where the employer decided to circumvent the Act. In this case, the employer changed the payment system from the normal minimum wage and instead introduced a “box system”. This system provided that employees will be paid based on the number of boxes they processed each day and daily targets were set in order for the employees to earn their salary. The Commissioner found that the employer had violated the Act and failed to comply with the Basic Conditions for Employment Act. The Commissioner ordered that salaries are to be calculated in terms of hours worked and not by set targets. As a result, the employer was also ordered to pay back the employees their outstanding wages. On an urgent basis, the employer sought to have the award set aside based on technicalities, however the Labour Court dismissed the application without going into the merits of the case.

    The Act has been praised as a democratic instrument of social justice. It protects the rights of employees, and it is for every employer to comply with the minimum wage requirements. The national minimum wage is currently R28.79 per hour and has been approved and set at R30.23 per hour, effective 1 March 2026.

    Know your rights and let us assist you with all your labour disputes.

    Author: Phindulo Munyai | Associate Attorney

    References:

    1. ILO, ‘Minimum Wage Systems’, International Labour Conference, 103rd Session, 2014 (International Labour Organisation, 2014)
    2. The Freedom Charter
    3. The National Minimum Wage Act 9 of 2018  
    4. Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 2
    5. Siphokazi Mvambi and 4 Others v Crown Household (Pty) Ltd (GAEK10115-23) 4
  • CRICKET AND INTELLECTUAL PROPERTY PROTECTION

    CRICKET AND INTELLECTUAL PROPERTY PROTECTION

    Using terms such as “ICC”, “International Cricket Council”, “ICC World Cup”, or “ICC Cricket World Cup” is subject to strict legal restrictions, primarily because they are registered trade marks owned by the International Cricket Council (ICC).1 Unauthorised use in a commercial context is generally prohibited, as it may constitute ambush marketing and/or trade mark infringement. For the purposes of this article, the discussion is confined to ambush marketing.

    Ambush marketing is the practice by which a non-sponsor company attempts to create a commercial association with an event, thereby deriving benefit and exposure, without paying for official sponsorship rights. For an event like the T20 World Cup, official sponsorship packages run into millions, granting exclusive rights to use event logos, terminology, and direct association with the tournament.2 Ambush marketers seek to circumvent sponsorship costs, leveraging the event’s popularity to enhance their own brand image and sales through dubious tactics.

    While the ICC’s brand protection spans international jurisdictions, South African law provides a robust framework for combating ambush marketing. Key legislation and common law principles include:

    • The Merchandise Marks Act 17 of 1941 (as amended); with Section 15A which specifically addresses protected events.3 For example, the 2010 FIFA Soccer World Cup, which was hosted in South Africa, was designated as a protected event under the Merchandise Marks Act.
    • The Consumer Protection Act 68 of 2008; with Section 40 which speaks to unfair business practices, and Section 41 addressing misleading representations.4
    • Common Law Principles; also account for the prohibition of unlawful competition, and passing off (when a brand misrepresents its goods or services as those of another, or as being associated with another).

    Attempting an unauthorised “googly” in the world of intellectual property can result in significant penalties. Playing fair and respecting the rights of official partners is not just good ethics; it is a sound legal and business strategy.

    References:

    1. International Cricket Council – Brand and Content Protection Guidelines
    2. The Economic Times
    3. The Merchandise Marks Act 17 of 1941 (as amended)
    4. The Consumer Protection Act 68 of 2008

    Author: Tumelo Mashabela | Managing Director and Registered Patent Attorney

  • MAXIMISING VALUE AND MINIMISING RISK: WHY YOUR BUSINESS NEEDS AN IP AUDIT

    MAXIMISING VALUE AND MINIMISING RISK: WHY YOUR BUSINESS NEEDS AN IP AUDIT

    In the modern economy, intellectual property (IP) is often an organisation’s most valuable asset. Yet, many companies lack a clear understanding of what they actually own, use, or have acquired. An IP Audit serves as a systematic review to compile a comprehensive inventory of these assets. While a standard audit identifies what is there, IP due diligence takes the process further by investigating the “health” of those assets; verifying ownership, validity, and potential risks like third-party infringement.

    Not every audit requires the same level of intensity. The scope and resources used depend entirely on the audit’s purpose.

    • A general-purpose IP audit is used for routine management and strategic planning. It is often conducted when establishing a new business or developing new internal policies.
    • An event-driven IP audit is triggered by a specific milestone, such as a merger, acquisition, or a new product launch.
    • A limited purpose IP audit is a narrow, situational audit often used for specific legal justifications, such as preparing for litigation or determining ownership after staff turnover.

    Failing to perform a comprehensive IP audit can lead to multi-million-rand mistakes. A real-world case which highlights these risks is the BMW // Volkswagen // Rolls Royce case:

    In a prominent example of insufficient IP due diligence, Volkswagen (VW) intended to acquire the Rolls Royce Motor Cars Group, including the brand, from Vickers PLC. While VW successfully purchased the factory, equipment, and automobile designs, they failed to secure the Rolls Royce trade marks because they were actually owned by Rolls Royce PLC rather than the selling party. Vickers held only a non-transferable licence to use the marks, which allowed BMW to subsequently acquire the trade marks and lease them to VW for only a limited duration. This oversight demonstrates how a failure to perform an exhaustive IP audit during a merger or acquisition can result in a company paying for assets without securing the essential rights to own the intellectual property.

    A thorough audit looks beyond just registered IP rights. It requires identifying both registered and non-registered IP. Registered IP includes patents, trade marks, designs, plant breeder’s rights and domain names. Verification is key here, as one must inspect registers at various patent offices to confirm the current status and ownership. Non-registered IP is often more complex to track and includes:

    • Copyrights and trade secrets, which are essential for software and proprietary processes.
    • Contracts – reviewing employment agreements, lab books, and collaborative R&D agreements to see who actually holds the ownership rights.
    • Chain of title is the chronological history of ownership transfers. Investigating whether the links in ownership from the creator to the current holder are legally sound.

    Best practices for conducting an IP audit should include these core steps, to ensure a successful outcome:

    1. Secure Stakeholder Support: Management buy-in is essential for accessing the necessary resources.
    2. Formulate a Plan: Define the purpose, scope, and methodology before you begin.
    3. Tailor Your Checklists: Do not inundate researchers or engineers with standard forms; customised questionnaires yield more accurate data.
    4. Verify Everything: An IP audit is a factual exercise—never take ownership at face value.

    A proactive IP audit is not just a cost; it is an investment in stability and a prerequisite for sustainable growth. By identifying IP that is no longer fit for purpose, organisations can save on maintenance fees while aligning their portfolio with long-term strategic goals.

    Contact our team today to schedule a preliminary discussion about your business’ IP health.

    Author: Tumelo Mashabela | Managing Director and Registered Patent Attorney

  • THE ROLE OF IP IN THE CLEAN ENERGY REVOLUTION

    THE ROLE OF IP IN THE CLEAN ENERGY REVOLUTION

    26 January marks the International Day of Clean Energy, a significant moment for the global community to reflect on our progress towards sustainability.1 While the world policy and carbon credits, there is an invisible engine driving the actual technological transition: Intellectual Property (IP).

    In the current climate, clean tech has evolved from a niche interest into a primary driver of the global economy. At Tshaya Mashabela Attorneys, we see IP not as a barrier, but as the essential accelerant for scaling green technology.

    Achieving net-zero by 2050, demands radical innovation, and radical innovation requires massive Research and Development (R&D) investment.2 IP protection is the mechanism that renders such high-stakes investment possible, ensuring that innovation is a sustainable business model rather than a “charitable endeavour”. For the clean energy sector to truly thrive, IP must be integrated into the core of every corporate strategy.

    One of the most practical contributions of Patent Offices to the climate crisis is the offering of accelerated examination programmes. Patent Offices such as the USPTO, UKIPO, and CIPO, offer “Green Fast-Tracks” which can reduce grant times by 40% to 75%.3 For a startup, this speed is the difference between securing capital and exhausting resources.

    Contrary to the misconception that IP “locks away” proprietary knowledge, it is actually the primary facilitator of technology transfer. Through clearly defined IP rights, companies gain the legal certainty required to engage in licensing and joint ventures, ensuring tech moves across borders.

    Furthermore, clean energy relies heavily on market trust. Trade marks including certification marks are essential tools in the fight against “greenwashing”. In response to heightened expectations for demonstrable sustainability, an effective trade mark strategy provides the legal protection and credibility required for environmental marketing claims such as “Carbon Neutral” and “Eco-Friendly.”

    Innovation is undoubtedly our most potent tool against climate change. A sophisticated IP framework ensures that the clean energy revolution is not only technologically possible but economically inevitable.

    Contact us to assist you with your global protection strategies.

    References:

    1. United Nations
    2. The International Energy Agency (IEA)
    3. The World Intellectual Property Organization (WIPO)

    Author: Tumelo Mashabela | Managing Director and Registered Patent Attorney

  • “BOGUS” TERTIARY INSTITUTIONS AND INTELLECTUAL PROPERTY INFRINGEMENT

    “BOGUS” TERTIARY INSTITUTIONS AND INTELLECTUAL PROPERTY INFRINGEMENT

    The commencement of the academic year is a significant period for matriculants seeking enrolment in tertiary institutions. However, this period is also marked by an increase in the establishment of “bogus” institutions, luring vulnerable students through deceptive practices.

    The Department of Higher Education and Training (DHET) has identified a number of higher education institutions (HEIs) that claim to offer qualifications without registering with the DHET as is required. It is a statutory requirement for all HEIs to be registered with the DHET. Prospective students are strongly advised to verify the registration status of any institution via the official DHET website: https://www.dhet.gov.za/ prior to registering with any institution.

    The most recent trends and indicators of fraudulent activity include:

    • Offering degrees within improbable time frames, such as fifteen days.
    • Claims of awarding of multiple degrees within one year.
    • Misleading representations regarding the institution’s physical location or international affiliation.

    These “bogus” institutions frequently leverage the power of intellectual property (IP) to create the appearance of legitimacy. Their strategic exploitation of IP typically involves:

    • The unauthorised use of the name and logo of DHET, making it appear as though they are operating legally, and are offering accredited courses.
    • The use of official seals, crests and logos belonging to public universities and government bodies to appear official.
    • Adopting names that are confusingly similar to world-renowned institutions such as the University of South Africa, Oxford University, the University of Cambridge, Harvard University, and more.

    A trade mark serves to distinguish the goods or services of one provider from those of another. A mark “means any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned.”1

    Trade mark registration provides the owner of the mark an exclusive right to use the mark and the authority to exclude others. Provided that they are renewed every 10 years, these protections can be maintained indefinitely. Trade marks are fundamental to brand recognition and the assurance of quality.

    By replicating the trade marks of prestigious HEIs, “bogus” institutions attempt to illegally benefit from the established reputations of legitimate and prestigious institutions. This often leaves students under the false impression that the “bogus” institution is endorsed by, and/or associated with a reputable institution.

    We extend our best wishes to all first-year students as they embark on their academic journeys. It is essential for students to check the DHET website to verify institutional credentials before paying any fees.

    Should you require further assistance regarding the protection of intellectual property rights, please do not hesitate to contact our office.

    References:

    1. Trade Marks Act 194 of 1993

    Author: Tumelo Mashabela | Managing Director and Registered Patent Attorney

  • THE REQUIREMENTS FOR A VALID AND ENFORCEABLE CONTRACT

    THE REQUIREMENTS FOR A VALID AND ENFORCEABLE CONTRACT

    The South African law of contract is rooted in Roman-Dutch law principles but continually shaped by the values enshrined in the Constitution of the Republic of South Africa (“the Constitution”). The Constitution guarantees the right to freely contract, which is a cornerstone of a modern economy. South African law recognises both verbal and written agreements, however, for a contract to be considered legally binding and enforceable, the following key requirements ought to be met:

    • Consensus: Consensus ad idem (a meeting of the minds) is the foundational element of any contract. It requires that the parties that wish to enter into an agreement must genuinely agree and understand the essential terms of the agreement. The test for consensus is a stringent one and the Supreme Court of Appeal (SCA) has once more emphasised its stringency in Cooper N O and Another v Curro Heights Properties (Pty) Ltd (1300/2021) [2023] ZASCA 66. The SCA stressed that for consensus to exist, the parties must have a clear and common intention regarding the material terms. The court scrutinised the correspondence and conduct of the parties leading up to the agreement and found that there was no true meeting of the minds on a critical aspect of the deal. This case serves as a critical reminder that subjective understanding is not enough; the outward manifestations of intent must demonstrate a clear and unambiguous agreement on all essential matters.
    • Capacity: The law requires that parties to a contract must have the legal capacity to act. This means the parties need to be the bearer of rights (including juristic persons) and be of sound mind or of legal age. Any contract entered into with a minor or a person that is not of sound mind is void. In Vallaro v Road Accident Fund 2021 (4) SA 302 (GJ), the claimant had suffered a head injury as a result of a motor vehicle collision which then resulted in compromised mental faculties and the neuropsychologist described the server head injury similar “to a patient with moderate to serve dementia”. The Court found that the Contingency Fee Agreement signed by the claimant was invalid as the claimant was not of sound mind and could not have participated in the juristic act due to the impairment of his mental faculties. This judgment highlights the protective function of this requirement and underscores that contractual validity is dependent on the parties’ cognitive ability at the precise moment of agreement.
    • Legality: The contents of the agreement must not be illegal or in violation of any statute or common law. Any contract that is against public policy will render the contract invalid. In Barkhuizen v Napier 2007 (5) SA 323 (CC), 2007 (7) BCLR 691 (CC), the dispute centred on a time-limitation clause in an insurance contract that required legal proceedings to be instituted within 90 days – with the insured party having missed this deadline. The Court emphasised that the principle of pacta sunt servanda (agreements must be honoured) is not absolute, and cannot apply to immoral agreements which violate public policy.
    • Possibility: The terms of the agreement must be capable of performance. This means that the obligations undertaken in the contract must be physically and legally possible to perform at the time the contract is concluded. If performance is objectively impossible from the outset (initial impossibility), the contract is void. A related concept is supervening impossibility, where an event occurring after the contract’s formation, through no fault of either party, renders performance impossible. In Maher v Avianto (Pty) Ltd (A2023/097547) [2024] ZAGPJHC 1163, the Court was faced with dealing with the common law doctrine of supervening impossibility in the context of the COVID-19 lockdown regulations. The case involved a lease agreement for a wedding venue that could not be used due to government-imposed lockdowns that prohibited large gatherings. The Court reaffirmed that where a contract has become impossible to perform after it had been entered into, the general rule is that the position is the same as if it had been impossible from the beginning, and therefore, the contract and resultant obligations are extinguished. As such, nobody can be obliged to do the impossible.
    • Certainty: The terms of the contract must be definite and not vague. The parties must clearly understand their rights, obligations, and the terms of the contract. In the case of Shell SA (Pty) Ltd v Corbitt and Another 1986 (4) SA 523 (C), the Court confirmed that a contract cannot be valid if an essential term, such as price, is left open to an unspecified or ambiguous future determination. Issues of prices need to be defined clearly in agreements to avoid ambiguity, and will include stipulating price fluctuations depending on the industry. The judgment also acknowledged that in certain commercial contexts, especially where price fluctuations are common, the parties can agree on a definite formula or mechanism for determining the price. The key is that the method for ascertaining the term must be objective and certain, leaving no room for unilateral discretion or further negotiation.
    • Formalities: Generally, a contract will be valid if all the above listed requirements are met. As a general rule, no formalities are required for a contract to be valid; consensus alone is sufficient – this is why verbal agreements can be binding. However, certain types of contracts require specific formalities to be met in addition to the aforementioned list. Non-compliance with these formalities renders the agreement void. For example, Section 2(1) of the Alienation of Land Act 61 of 1981 provides that all agreements under this Act must be in writing, therefore, oral agreements will not be valid. Similarly, Section 87 of the Deeds Registries Act 47 of 1937 provides that Antenatal Contract (ANC) must be registered with the Deeds Registry Office, by implication, an ANC must be in writing, signed and notarised by a practising notary.

    Understanding the requirements for a valid contract is crucial for anyone engaging in legal transactions. The aforementioned cases and laws illustrate how the principles of consensus, capacity, legality, possibility, certainty, and formalities, are applied in real-world disputes, highlighting the risks of unclear or improper agreements. Given these complexities, seeking professional legal assistance for drafting and reviewing contracts is not just prudent—it is essential for ensuring that your agreements are binding, enforceable, and aligned with your intentions.

    Let us assist you with drafting and reviewing your contracts. Contact us today.

    Author: Phindulo Munyai | Associate Attorney

    References:

    1. The Constitution of the Republic of South Africa
    2. Cooper N O and Another v Curro Heights Properties (Pty) Ltd (1300/2021) [2023] ZASCA 66
    3. Vallaro v Road Accident Fund 2021 (4) SA 302 (GJ)
    4. Barkhuizen v Napier 2007 (5) SA 323 (CC), 2007 (7) BCLR 691 (CC)
    5. Maher v Avianto (Pty) Ltd (A2023/097547) [2024] ZAGPJHC 1163
    6. Shell SA (Pty) Ltd v Corbitt and Another 1986 (4) SA 523 (C)
    7. Alienation of Land Act 61 of 1981
    8. Deeds Registries Act 47 of 1937
  • THE INDIGENOUS KNOWLEDGE ACT – SAFEGUARDING OUR SOUTH AFRICAN HERITAGE

    THE INDIGENOUS KNOWLEDGE ACT – SAFEGUARDING OUR SOUTH AFRICAN HERITAGE

    In an era where a traditional recipe can be a global food brand and a medicinal plant can form the basis of a billion-rand pharmaceutical, the line between communal heritage and private property has never been more contentious. This raises an important point: are the current intellectual property (IP) systems enough to protect our rich heritage?

    For centuries, the rich tapestry of South Africa’s Indigenous Knowledge (IK), from the healing properties of the Umckaloabo (South African geranium) plant to the intricate patterns of Ndebele beadwork, has been exploited, patented, and commercialised without the consent or benefit of its rightful custodians. In 2004, South Africa adopted the Indigenous Knowledge Systems Policy. The Policy was developed through an interdepartmental effort which aimed to provide guidance for the “recognition, understanding, integration and promotion of South Africa’s wealth of indigenous knowledge resources.”1 A key focus area of the policy is the protection of IK and the holders of this knowledge against exploitation. This includes ensuring communities are adequately remunerated and given due recognition for use of their IK.

    IP systems alone are not enough to protect IK, and must be accompanied by other unique laws that will ensure adequate protection of this traditional knowledge. To this end, South Africa enacted the Protection, Promotion, Development and Management of Indigenous Knowledge Act 6 of 2019 (IK Act). This legislation has the monumental task of repositioning IK from the realm of the public domain, into a protected, ownable, and commercially viable form of intellectual property.

    The IK Act is built on a dual foundation: safeguarding against misappropriation and enabling equitable development. The IK Act establishes IK as a legally recognised form of IP. It creates a National Indigenous Knowledge System and a National Database for the recording and registration of IK.2 This is crucial, as it moves IK from oral tradition to a formal, admissible record, helping to prevent its wrongful patenting by third parties.

    At the heart of the IK Act is the principle that no one may use IK for commercial or industrial purposes without the prior informed consent of the relevant indigenous community. Furthermore, any benefits arising from such use, be they financial or otherwise, must be shared fairly and equitably with the community through a negotiated agreement. This directly addresses the historical wrongs of biopiracy. The IK Act seeks to actively promote IK systems, encouraging its integration into education, innovation, and industry, thereby ensuring it is not merely preserved as a relic but thrives as a living, evolving resource.

    The IK Act does not operate in a vacuum; it intersects and, at times, challenges conventional IP regimes.

    • Copyright: A traditional song or story, previously vulnerable to unattributed use, can now be protected. The IK Act ensures the community is recognised as the perpetual owner of the copyright, preventing individual expropriation.
    • Patents: If a company seeks to patent a drug based on a traditional healer’s knowledge, the IK Database can be used to prove the knowledge is not novel, thus blocking the patent. If a patent is legitimately filed with community consent, the IK Act mandates benefit-sharing.
    • Trade marks: The IK Act prevents the registration of trade marks that derogate from, exploit, or are contrary to the norms of an indigenous community, stopping the misuse of culturally significant symbols and names.

    In essence, the IK Act creates a sui generis system that runs parallel to mainstream IP law, plugging the gaps where traditional IP, designed for individual, corporate, and time-limited ownership, fails to protect perpetual, communal knowledge.

    For a country that celebrates its diversity and has such a rich heritage, it is encouraging to see our indigenous knowledge afforded such protection. While the path to its full and effective implementation is fraught with complexity, the IK Act provides a powerful tool to transform the narrative. It seeks to ensure that the communities who have nurtured and developed this knowledge for generations are no longer passive subjects of exploitation but are active, empowered agents in the commercialisation of their own intellectual heritage.

    Author: Tumelo Mashabela | Managing Director and Registered Patent Attorney

    References:

    1. https://www.gov.za/about-government/government-programmes/square-kilometre-array-ska
    2. https://www.gov.za/sites/default/files/gcis_document/201908/4264719-8act6of2019protectpromodevelopmanagementindigenousknowledgeact.pdf
  • THE TRUST TEST: DISCLOSURE DURING THE RECRUITMENT PROCESS

    THE TRUST TEST: DISCLOSURE DURING THE RECRUITMENT PROCESS

    When applying for a job, there is no general rule or law that places an obligation on job applicants to disclose their criminal history unless they are specifically asked by the potential employer. During the recruitment process, there are instances where one is required to disclose certain information to the potential employer, to assist the potential employer in making informed decisions about the applicant’s eligibility for a specific position.

    The Employment Equity Act 55 of 1998, was enacted to promote equal opportunity and fair treatment in employment through the elimination of unfair discrimination. It is not considered a discrimination or unfair to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.[1]

    The Labour Relations Act 66 of 1995, through the Code of Good Practice, provides that dishonesty is a ground for dismissal. This also applies if a conduct of dishonesty was made during the job application process.[2]

    In the case of Office of the Chief Justice Republic of South Africa v General Public Service Sector, Mr Siphephelo Luthuli had applied for two positions, in November 2019, which were advertised by the Office of the Chief Justice (OCJ). During varying stages of the application process, Luthuli was required to indicate if:

    1. “He has ever been convicted of a criminal offence or been dismissed from employment”;
    2. “Disclose if he has ever been criminally charged and, if yes, he was required to provide the details of the charge”; and
    3. He was required to “disclose if he had any criminal record or charges against him or pending against him. If yes, he was required to disclose the circumstances of the aforesaid criminal record or charges.”

    Luthuli responded ‘No’ to all aforementioned questions. Luthuli had also scored the highest points in the interviews.[3]

    However, the OCJ established that in August 2019, Luthuli had been arrested for driving while under the influence of alcohol, ultimately resulting in the OCJ’s decision to remove Luthuli as a viable applicant due to his failure to disclose this criminal matter. In response, Luthuli referred an unfair labour practice dispute to the General Public Service Sector Bargaining Council – which ruled in Luthuli’s favour. In turn, the OCJ requested a review of the arbitration award which was in favour of Luthuli. The Labour Court found that the job applicant had a duty to disclose a pending criminal case, regardless of the status of the investigation of the case or the decision by the National Prosecuting Authority, as the employer had explicitly asked for this disclosure.

    The Court has consistently emphasised the importance of trust between an employee and the employer. In the matter of ABSA Bank Ltd v Naidu, the Court upheld the court a quo’s sentiments in that dishonesty has a corroding effect to the trust which the employer is entitled to expect from its employees.[4]

    In essence, one should disclose pertinent information when requested to do so, regardless of how minor one might perceive the issue to be. Honest disclosure builds the foundation of trust for employment relationships.

    At Tshaya Mashabela Attorneys we have capable attorneys who are able to assist you with all your labour related matters.

    Author: Phindulo Munyai | Associate Attorney

    References:

    1. Employment Equity Act 55 of 1998, as amended
    2. Labour Relations Act 66 of 1995, as amended code of good practice
    3. Office of the Chief Justice Republic of South Africa v General Public Service Sector & Others [2025] ZALCPE 15 (6 August 2025)
    4. ABSA Bank Ltd v Naidu [2015] 1 BLLR 1 (LAC)

  • MALOPE vs ARIEL: A BATTLE FOR PERSONALITY RIGHTS

    MALOPE vs ARIEL: A BATTLE FOR PERSONALITY RIGHTS

    Gospel music icon Dr. Rebecca Malope has expressed outrage after discovering that her image was used without permission to promote Procter & Gamble (P&G) laundry detergent brand – Ariel washing powder. Malope took to social media to voice her frustration, and condemned the misuse of her image and reputation, which mislead consumers into believing she was still affiliated with the brand. Fans and fellow celebrities rallied behind her, criticising the brand for exploiting her image without consent.[1]

    The musician’s legal team has reportedly taken action against P&G for the unauthorised use of her image. News outlets reported that Malope’s endorsement deal with Ariel washing powder was valid from 2016 to 2022. Subsequent to the expiration of the endorsement deal, the brand continued to use her image on packaging, leading to the dispute and eventual settlement. According to City Press, Malope demanded R1 million from P&G for using her image beyond the contract period – the parties have allegedly settled the matter out of court.[2] P&G has not publicly commented on the matter.

    In South Africa, a celebrity’s image is not explicitly recognised as intellectual property (IP) in the same way as trade marks or copyrights. However, protection for a celebrity’s image can be sought under common law through the concept of personality rights, which are related to privacy and the right to identity. Personality rights are legally protected aspects of an individual’s identity and well-being, encompassing factors such as physical integrity, reputation, dignity, and privacy. These rights are safeguarded under the common law of delict, specifically through the actio iniuriarum, and also find protection within the constitutional Bill of Rights.

    In a similar case; Kumalo v Cycle Lab (Pty) Ltd which centred around the misuse of former Miss South Africa, Basetsana Kumalo’s image and likeness by Cycle Lab, to endorse its goods without her permission, Boruchowitz, J stated that “…Use of her image in this manner constitutes a violation of her right to identity. The appropriation and misuse of the plaintiff’s image is wrongful and would be considered by persons of ordinary and reasonable sensibilities to constitute an iniuria which is deserving of legal protection.” [3]

    A publication by (Mangope & Alberts, 2022) stated that in South Africa, “the unauthorised use of a person’s photograph in an advertisement was first considered as a ground to institute the actio iniuriarum in the case of O’Keefe v Argus Printing & Publishing Co Ltd. This case was the first to recognise the right of identity as a protectable interest that is violated where advertising involves the unauthorised use of a person’s image for commercial purposes. The Supreme Court of Appeal in Gruffer v Lombard recognised that a person’s right to identity is infringed when a part of that identity is used without consent and for commercial exploitation.” [4]

    These cases highlight the ongoing issue of celebrities’ likenesses being used without permission for commercial gain. Unauthorised endorsements can damage a public figure’s brand and credibility. This matter serves as a reminder of the importance of protecting one’s image and IP rights, through mechanisms such as IP tracking, and publicity rights monitoring.

    Author: Tumelo Mashabela | Managing Director and Registered Patent Attorney

    References:

    1. The South African
    2. City Press
    3. Julia Basetsana Kumalo v Cycle Lab (Pty) Ltd (31871/2008) [2011] ZAGPJHC 56 (17 June 2011)
    4. Mangope, K., & Alberts, W. (2022). “Something old, something new” – aspects of personality rights in the United States and South Africa. Obiter, vol.43 n.3