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A JOGI Attorneys, 570 Fehrsen Street, 3rd Floor Steven House, Brooklyn Bridge Office Park, Brooklyn, Pretoria (2026)

19/12/2024

As the year draws to a close, we would like to express our sincere gratitude and thanks to all of our clients and professional colleagues that we work with. Your trust and collaboration have been instrumental to our success, and we are deeply thankful for the opportunity to work with you.

16/11/2024

A huge privilege to have been part of an intimate women empowerment training initiative today with inspirational women that are leading the way for many other women in the Legal profession.....thanks to the Chief Justice and the Judge Presidents, Deputy Judge Presidents, Judges of the various High Courts for showing us today that we can never give up. As we continue this endeavor we are going to see more females on the bench

03/05/2024

AMENDMENTS CONCERNING BEE RULES FOR REAL ESTATE AGENTS IN SOUTH AFRICA
The Property Practitioners Regulatory Authority (“PPRA”) is imposing a requirement for all real estate agencies with a turnover of more than R2.5 million to meet 40 points or more level 8 Broad-Based Black Economic Empowerment (B-BBEE) requirements.

Section 48 of the new Property Practitioners Act No. 22 of 2019 (which came into effect in February 2022) states that “no entity may act in the capacity of a property practitioner without a valid Fidelity Fund Certificate (“FFC”)”. Section 50(a)(x) further makes it clear that an FFC may not be issued without a BEE certificate.

There are three BEE categories: EME (Exempt Micro Enterprise), QSE (Qualifying Small Enterprise), and Generic.

Exempt Micro Enterprise Annual Turnover Less than R2.5 million

Qualifying Small Enterprise Annual Turnover Less than R35 million Or >R2.5m but

24/12/2021

To all our valued clients and suppliers, may you have a blessed Christmas and prosperous new year🎅🤶 We thank you for choosing us and were blessed to have walked the journey with you. Until we meet again in 2022.

14/12/2020

NEW INITIATIVES FOR SMALL, MEDIUM AND MICRO-ENTERPRISES

14 December 2020
Anisha Jogi

Small Business Development minister Khumbudzo Ntshavheni has gazetted the National Small Enterprise Amendment Bill 2020, which aims to further regulate the small, medium and micro-enterprises (SMME) sector. The bill also sets out the following rights and responsibilities for small businesses in the country, including: the right to fair and unambiguous business contract; the right to a reasonable payment date and interest on late payments; the right to disclosure of information; the right to fair and honest dealing; and the right to accountability from large enterprises and organisations.

The bill aims to provide a cost-effective dispute resolution mechanism and as part of this initiative it provides for the establishment of a SMME Ombud Service which will act as a support function to the minister. Ntshavheni said, “The Ombud service will become a vital legal instrument to enforce SMME contracts and resolve business-to-business disputes as well as considering and disposing of complaints by small enterprises in relation to the interpretation of the terms of agreement for procurement of goods, services or late and non-payment of amounts due and payable to small enterprises.”

Ntshavheni further stated that the bill will further assist with handling complaints in a “procedurally fair, economical and expeditious manner” based on what is equitable in all the circumstances, with due regard to the contractual or other legal relationship between the complainant and any other party involved in the complaint.

On issues of “unfair trading practices”, the bill will also empowers the minister and Ombudsman to further regulate small businesses in South Africa. On recommendation by the Ombudsman, the bill will allow the minister to declare certain practices in relation to small enterprises to be prohibited unfair trading practices.

The minister may also make regulations requiring specified enterprises to provide in the prescribed manner, information about their contracting and payment practices and policies relating to small enterprises.

Whilst SMME’s will face additional clamping down on in terms of the bill, it will also bring cost effective and efficient relief to them in terms of unfair practices.

10/11/2020

ON-LINE AGM MEETINGS IN THE TIME OF COVID-19

24 October 2020
BY ANISHA JOGI
Director A Jogi Incorporated Attorney

The conducting of annual general meetings in the time of Covid-19 has not been problematic for many companies than could be said for those in many other jurisdictions. This is due to the fact that the South African Companies Act already provided for virtual or electronic-only meetings, so there was no regulatory or governance hurdle to overcome to be able to use this system during lockdown.

Section 63(2) of the Companies Act provides that an annual general meeting can be conducted entirely by electronic communication, provided that “all people participating are able to communicate concurrently with each other without an intermediary, and to participate reasonably effectively in the meeting”.

Despite the advantages presented in the conducing of online annual general meetings, there have also been challenges presented during the annual general meeting’s of certain listed companies that require regulators, such as the Department of Trade and Industry, to intervene in order to protect shareholder interests. An example of such challenges is breaches of the Companies Act provision over the past six months of an annual general meeting where shareholders were warned early on in the meeting that questions would be moderated and those deemed to be inappropriate would not be aired. This was exacerbated by the use of an inadequate technology platform that left several shareholders unable to access the meeting until halfway through. Notably, no shareholders appear to have challenged the legal status of the meeting and there has been no intervention on the part of regulators when it comes to JSE-listed companies.

At another on-line annual general meeting, shareholders were exposed to a conversation in which one of the directors, unaware that she was audible, made disparaging comments about the imminent proceedings.

There have also been annual general meeting’s, where no person was visible for the entire meeting. All that shareholders could see was a static screen containing the company’s logo. The question-and-answer session was conducted within minutes of the start of the meeting, that a number of written questions from shareholders only appeared on the online platform after the session had ended. This was out of shareholders’ control due to the delay between submitting a question on the platform and its appearance on the company secretary’s screen. Those questions were simply ignored by the board.

A number of service providers offer online meeting platforms with some more user-friendly than others. As a result, shareholders are presented with an array of formats across the various annual general meetings. This subjects the meetings to inconsistency as to when shareholders may present their questions, how much time is allocated to questions and answers, whether questions can be submitted verbally or in writing only, whether shareholders are allowed to actively participate, and whether the board and executives of the company are visible on camera to the shareholders or which board members are even present.

The discrepancies and lack of consistency stemming from the on-line meeting format make it particularly difficult for shareholders to participate effectively. There has been no guidance from regulators, and as a result many boards have taken advantage by deploying virtual annual general meetings to protect themselves from challenge or debate with shareholders. As one of the only occasions in a company’s annual calendar that allows shareholders to engage with the board, the annual general meeting plays a crucial role in effective corporate governance.

Covid-19 has revealed both the benefits and challenges of a substantial reliance on technology as a replacement for in-person human interaction. However, there is argument for the fact that hybrid meetings, which shareholders can choose to attend either in person or virtually, is the way of the future. In the meantime, we need clear guidance from regulators on the minimum requirements for virtual-only annual general meetings in order to protect shareholders’ rights from the companies that host them.

24/10/2020

THE IMPACT OF POPIA ON RESIDENTIAL COMPLEXES AND ESTATES

24 October 2020
BY ANISHA JOGI
Director A Jogi Incorporated Attorneys

The new privacy laws under the Protection of Personal Information Act (POPIA) will not only have an impact on businesses. Residential schemes also need to ensure that they comply with the privacy rules under the POPIA and they have just a few months to address the requirements before the Act becomes operative on 30 June 2021.

It is important for owners and occupiers in residential schemes and gated developments run by Home Owners’ Associations (HOAs) to understand that the collection of personal information of the residents or owners of such schemes, or the request of certain personal details from visitors at controlled access points to their schemes in furtherance of security, must be properly managed and protected. Where the trustees and managing agents of an HOA or body corporate have to keep a significant amount of personal information about owners and tenants on record in order to send levy accounts and statements, send out communications concerning the body corporate or HOA meetings or other issues concerning the particular residential scheme, they have to ensure that their recording keeping systems are compliant with the POPIA, which became effective on 1 July 2020.

There are two parts of the Act that trustees need to be particularly concerned about. The first of which is the general requirement that a consumer’s consent must be obtained before any of their information can be collected or used, and that they must be properly informed about the reason for collecting the information, what will be done with it and how it will be protected. In practical terms, trustees do not need to obtain the permission of owners in their schemes to collect or hold whatever personal information is needed for the effective management of those schemes. However, they have the obligation to inform them if this information is being shared with a third party. They will also need to obtain the consent of owners to collect and hold any information that they intend to use for any other purpose other than the effective management of the schemes.

The second area of concern under the POPIA for trustees is the security of their record storage and management systems, irrespective of whether these are in digital or paper-based form. The Act provides for personal information to be kept in such a way that it is protected from unauthorised access such as cyber hackers. In short, there is an obligation on trustees to ensure that all practical steps are taken to safeguard the personal information such as ensuring that computer records are encrypted, or that paper records are safely locked away and only accessible to certain accountable individuals in the company. If the trustees are not storing their own records, they would still remain responsible for any information collected on their behalf.

Any legal entity that is not compliant with the POPIA may face prosecution and exorbitant fines. Thus, trustees and directors of HOA’s need to act now to ensure that their scheme and that any third parties such as a managing agents or security company that they have appointed are gathering, storing and using personal information correctly to ensure that this information is protected.

21/07/2020

BEAT THE POPIA DEADLINE

21 July 2020
BY ANISHA JOGI
Director A Jogi Incorporated Attorneys

Data is now regarded as the new “gold” particularly as we become more submerged into the realm of the Fourth Industrial Revolution, Data Mining and Artificial Intelligence, technology that feeds on data. As a result, laws governing privacy and data protection are not only highly relevant but crucial to protecting clients and ultimately your organisation’s reputation. The Protection of Personal Information Act, commonly known as POPIA, is South Africa’s first data protection law intended to protect people’s personal information, to prevent their money being stolen, to stop their identity being stolen, and generally to protect their privacy, a fundamental human right enshrined in section 14 of our bill of rights.

President Cyril Ramaphosa finally announced that the commencement date of the Protection of Personal Information Act (no 4 of 2013) is 1 July 2020. With this pronouncement, the preponderance of the statute commences, such as its purpose, its application provisions, the conditions for lawful processing of information and exemptions, prior authorisation, a code of conduct. The deadline within which organisations are required to comply has now been postponed to 1 July 2021, possibly due to Covid-19.

POPIA involves three parties (who can be natural or juristic persons): The Data Subject (the person to whom the information relates); The Responsible Party or Controller (the person who determines why and how to process the information, such as, profit companies, non-profit companies, governments, state agencies and people; and The Operator or Processor (a person who processes personal information on behalf of the responsible party, such as, an IT vendor).

POPIA places various obligations on the Responsible party and lays out the conditions under which information can be lawfully processed. For example, the data subject must consent to their information being stored and how it can be processed, and they can demand for it to be obliterated. Given the great deal of accountability placed on the Responsible party, they should only use Operators or Processors that are able to meet the requirements of lawful personal information processing prescribed by POPIA. Non-compliance with POPIA carries severe penalties of up to R10m in fines or 10 years’ imprisonment, or both. In addition, organisations can find themselves being ordered by the regulator to pay compensation to the Data subject, and they can further be sued by affected parties for damages arising from matters such as theft of money and identity theft.

The question is what can organisations do in practical terms in order to abide by the law? Here are recommendations they can consider taking:
1. Identify the person in your organization that is responsible for information privacy, who will manage and oversee compliance with POPIA. This person would be the “Information Officer” and typically, for juristic entities this is the head of the organisation such as the chief executive officer or equivalent officer of the juristic person or any person duly authorised by that officer, or the person who is acting as such or any person duly authorised by such acting person.

2. Create a data privacy or security policy that sets the principles of action adopted or proposed by an organization on managing personal information within the organisation, who will have access to such information, and how it will be processed and stored. Such a policy could incorporate the eight POPIA principles: the responsible party taking accountability for information in their domain; limitations on processing information; using information for a specific purpose; limitations on the further processing of information; ensuring that information is correct, complete and up to date; openness about why information is collected; the safeguarding of information; and participation by the data subject.

3. Foster employee training and awareness about information privacy and security. Employees contracts should affirm that the employee will be committed to their responsibilities to safeguard privacy and security as enshrined in the organization’s policy. Review and amend the employment contracts of those employees who process information, so that they are in line with POPIA. The organisation ultimately remains accountable for data breaches and must be able to hold its staff accountable too.

4. Have processes in place deal with information that must be collected or shared and to report data breaches to all affected parties, including the Data Subject and the Information Regulator. The cost of cleaning up a data breach should also be taken into account, which can run into the millions for large organisations.

5. Establish a central data repository system where all information with which the organisation has been entrusted is stored, both internally and externally and ensure that they are subject to proper data privacy laws.

Compliance with POPIA should not be undermined and organisations of all sizes must review, assess and improve their current data security practices to mitigate risks. There is the long-term reputational damage and loss of confidence in an organisation following an information breach, which will almost certainly mean a huge knock to its bottom line. The news is rife with high-profile examples of data breaches worldwide. In the past year or two, major South African organizations such as, Liberty, Nedbank and the City of Johannesburg have been the victims of headline-grabbing data breaches. Further abroad, in February 2019, hotel chain MGM Resorts suffered a data breach in which more than 142 million personal details from former guests at the MGM Resorts hotels, including names, addresses, telephone numbers, e-mails and birthdays was stolen and placed for sale on the Dark Web evidence that a data leak. They included high-profile guests such as pop stars and senior US government officials guaranteeing extensive media coverage on the matter.

Given the reputational risk, much more rides on an organisation’s ability to secure the personal information of third parties, than the negligible penalties contained in POPIA. Organisations thus have every reason to ensure that their systems are secure. Those that are serious about data privacy will not be waiting around for 1 July 2021.

05/06/2020

Right now, there’s little scope to implement new taxes, including a wealth tax. Instead, we need to focus on policies that will answer SA’s deepest questions

27/05/2020

PROTECTING INTELLECTUAL PROPERTY IN THE DIGITAL AGE

By ANISHA JOGI
27 May 2020

With technology advancing at the rapid pace that it is today, intellectual property (IP) has become a significant element for the success and continued growth of a business. However, the protections for intellectual property in the internet and electronic age are often overlooked, and it is important for companies developing and creating them to seek adequate safeguards in IP protections.

Many companies employ their own engineers, scientists, software developers, graphic designers and other skilled personnel to engage in the development of their own new products and services. The alternative option is to outsource the work to third parties with the specialized skills and experience. In most commercial environments, a company would want to own all of the IP rights that originates from the work created by the appointed skills, on account of the company’s financial investments towards the development stages.

The Conventional Legal Protections
The standard uses of protection applied to IP usually exist in the form of trademark for products or brand logos, and patents for creations by an inventor. The creator or owner will need to file for ownership protection manually to enjoy protection of these IP’s. In the event of infringement of these standard protections, the owner or creator has legal recourse by usually starting with a cease and desist letter to resolve the matter before it becomes a lawsuit. At this point, the owner should employ the services of a lawyer to initiate legal action..

Company Policies and Contracts
Other protections that can be enforced by companies are through IP policies, non-disclosure agreements (NDA) or non-compete and restraint agreements with employees working in the same industry or that have access to the information or client lists. The relevant policies will ensure that employees are familiar with certain codes of conduct relating to disclosure of confidential company information and trade secrets. The NDA will ensure that there is a legal obligation to keep certain company details confidential, while the non-compete will prohibit employees working in the same industry in the same territory for a period of time as specified in the legally binding agreement.

Other legal documentation used to protect the IP can exist in confidentiality agreements between affected parties similar to an NDA, or other commercial contracts that a person or company can use to transfer or retain IP ownership such as when hiring service providers or independent contractors. These protections are crucial to keeping the IP safe from those that would want to steal the idea and develop it without the help of the owner or creator.

The Use of Copyrights
Original content or modifications thereof by the creator or owner can be protected by making use of a copyright. If there is a work built by the individual that has words, phrases, story and artwork, he or she can acquire a copyright to protect the materials from reproduction, distribution and uses other than the standard guidelines already available. The creator of the work can even protect it from others that help to develop it.

Licensing IP
Licensing offers owners the opportunity to license certain IP in products or services to a third party, that would contribute to the sales and marketing efforts necessary for a new market or geographic area. The license would be made awarded in exchange for a reasonable royalty and/or other compensation. In some cases, the business receiving the license may also be prepared to fund the customization of the product or service, in order to adapt to its own clientele. It is important that the license agreement should identify the IP initially owned by each party and deal with ownership pertaining to any modifications, improvements, and derivative works made by each party.

Legal Support for Protection
It is important that business owners regularly review the IP to products and services, to ensure that any rights thereto are always protected and to evaluate any shortcomings in existing safety measures The support and advisory of lawyers are recommended when creating new IP. The lawyer can help with establishing and implementing legal protections or in pursuing cases for IP infringement against violators.

25/05/2020

We would like to wish all our clientele celebrating today a joyous Eid Al Fitr.

07/05/2020

THE IMPLICATIONS OF SCHOOL FEES DURING THE SA LOCKDOWN

Following the lockdown in South Africa on 26 March 2020 on account of the COVD-19 pandemic, South Africa’s schools were closed for more than six weeks and we have received questions from many of our clients concerning the issue of school fees. Recently, the Minister of minister of Basic Education Angie Motshekga, announced a phased in approach for children to attend school, commencing from 6 May 2020.

There has been a call from government urging parents to continue to pay school fees. However, many parents are arguing whether or not they should be expected to pay the full school fees even though their children were not physically attending school and not enjoying the full schooling experience. There are also instances where children do no have access to online platforms to continue their schooling from home and hence they have not undertaken any schooling activities.

The pivotal question is whether schools have the right to enforce the payment of fees in the above-mentioned circumstances? To answer this, one has to refer to the legislation that applies to schools.

The Constitution establishes two types of schools, public and independent schools. Public schools exercise a constitutional purpose of providing basic education in terms of section 29(1) of the Constitution. The Schools Act prohibits the refusal of “admission, suspension or expulsion of a learner” due to non-payment of school fees so that learners are not deprived of their right to basic education in terms of the Constitution.
In term of the Schools Act, parents of learners in public schools are liable for school fees, but a parent may appeal to the Head of Department against a decision of a governing body regarding the exemption of such parent from payment of school fees if they are unable to pay due to a change in their financial circumstances. Therefore, where parents have been rendered unemployed due to the national lockdown, they can apply for the exemption from fees. Nevertheless, parents are urged to exercise the right to claim an exemption with due circumspection having regard to the schools commitment to cover the salaries of teachers.

In the case of private schools the position varies as they are “independent schools” in term of the Act and do not perform the same constitutional purpose as public schools do. According to the Constitution, independent schools must operate at their own cost, while public schools are funded by the State. This means that all the facilities, resources and services of an independent school must be paid for by the school. Fees are often the primary income for independent schools.

There is therefore, a contractual relationships with the parents that clearly outlines their responsibility to pay school fees to an independent school.. As such, private schools have the remedies as incorporated in their contracts to enforce and recover the payment of school fees. Such contracts would also normally provide that private schools have the right to terminate their contractual relationships in the event of non payment.

This would mean sending one’s children to an independent school is a choice, not an obligation. The concept of informed choice was one of the findings of the Pietermaritzburg High Court in the case of St Charles College v Du Hequet de Rauville and others. Other educational options exist. There is a wide range of quality schools, both independent and public, with an equally diverse fee requirement. This means that parents can find a school that best meets their needs and falls within their means.

Schools are fully cognizant of the current economic challenges whilst they endeavor to balance their their own finances and remain fiscally sound. All efforts should be made to contact a parent and communicate with them as to the nature of the debt and alternative options for settlement thereof. But, the responsibility also lies with parents to communicate with a school in an attempt to reach an amicable resolution.

Wriiten by: Anisha Jogi
Owner A JOGI INC. ATTORNEYS

A JOGI Attorneys

19/12/2024

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Monday	08:00 - 17:00
Tuesday	08:00 - 17:00
Wednesday	08:00 - 17:00
Thursday	08:00 - 17:00
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