Adams & Adams

The Tobacco Products and Electronic Delivery Systems Control Bill saw additional progress towards the end of June this year. Specifically, the Portfolio Committee on Health adopted a motion of desirability of the bill in an almost unanimous vote at a recent meeting.  This means that the committee acknowledged that the legislation is required in principle and must progress towards becoming law. This will see a clause-by-clause consideration of the bill going forward.  Based on minutes of the meeting, a common thread is the concern whether the proposed law is proportionate to the harm it seeks to address against the country’s socio-economic landscape.  In a media statement on Parliament’s website, it is stated that the committee, through its own deliberations and based on scientific representations, recognises that combustible and non-combustible products are not the same, with the former presenting the greatest public health risk. The committee also endorses the need for differentiation between these goods, but stresses that this differentiation does not imply less strict laws, but an improvement which is genuinely risk-proportionate, protecting against harm caused by smoking and which distinguishes between different goods.  A legal framework distinguishing between goods that burn and those that do not is not unheard of and has been adopted in different measures in countries like Singapore, Australia and the UK.  Whichever way South Africa swings, regulatory reform relating to, inter alia, the promotion of combustible and non-combustible goods, is ongoing.

As temperatures drop around the country, rugby is hotting up. South African rugby fans have plenty to look forward to in 2026, including the Rugby’s Greatest Rivalry Tour which will take place from 7 August 2026 to 12 September 2026. The tour will see South Africa hosting the All Blacks as they travel the country playing the DHL Stormers, Hollywoodbets Sharks, Vodacom Bulls and Lions, as well as their ultimate rivals, the Springboks. South Africans are accustomed to hearing calls to wear green and gold on “Bok Friday” during these types of tournaments. Yet a recently published government notice proposing restrictions on the unauthorised use of that term, as well as “Bok”, “Bokke”, “Bokkie” and various other rugby-related words and images, could put a damper on that. As part of broader efforts to protect the Rugby's Greatest Rivalry Tour, the Department of Trade, Industry and Competition has published a notice of the Minister's intention to declare the tour a “protected event” under section 15A of the Merchandise Marks Act, while simultaneously proposing that a wide range of words, slogans, emblems and images associated both with the event and individual teams be declared prohibited marks under section 15(1) of that Act. This would have been at the request of the organisers of the event, the South African Rugby Union (SARU). What does “protected event” status mean? The proposed protected event designation would apply for the duration of the tour and would confer on it the special anti-ambush marketing protections available under the Merchandise Marks Act. The legislation is designed to safeguard the substantial investments made by event organisers and sponsors. Businesses may not seek to derive promotional benefit from the event without authorisation. Ordinary trade mark and passing-off principles usually focus on whether a business creates the impression of an association with, or sponsorship of, an event. Protected event status goes further: it prevents traders from taking commercial advantage of the publicity surrounding the event, even if they stop short of claiming or implying any official connection. This status has previously been afforded to events hosted in South Africa such as the FIFA World Cup South Africa 2010, the British & Irish Lions tours and the Netball World Cup 2023, and provide welcome protections. Without them, the commercial value of sponsorships and, ultimately, the events themselves, could be undermined. Prohibited marks The proposed protected event designation is unlikely to generate significant controversy. The proposed prohibited marks, however, may raise some eyebrows, simply because the net appears to have been cast widely, and the notice itself is unclear about where the boundaries lie. The Minister is proposing a prohibition on the unauthorised use of a substantial list of words, slogans, emblems and images associated with the tour and South African rugby in general. The list contains a number of unsurprising entries, including RUGBY'S GREATEST RIVALRY, RGR, THE GREATEST RIVALRY, A TOUR LIKE NO OTHER, SPRINGBOKS and SPRINGBOK WOMEN. It also includes various Springbok emblems and jerseys, as well as names and logos associated with several rugby teams and organisations, including the All Blacks, Black Ferns, Sharks, Bulls, Lions, South African Rugby Union and New Zealand Rugby. However, the list does not stop there, and the proposed protection also extends to a number of terms that have become deeply embedded in everyday South African language and sporting culture. These include BOKS, BOK, BOKKIE and BOK FRIDAY, as well as SA RUGBY and SOUTH AFRICA RUGBY. While some of these names and terms have already been protected as registered trade marks by SARU, such as SPRINGBOK and THE BOKKE, that type of protection is more limited. Trade mark registrations afford rights in relation to the specific goods and services for which they are registered, and similar goods and services. In addition, in order to infringe a trade mark registration, the use must be as a trade mark, in the course of trade and, generally, in a manner likely to cause confusion. There are also exceptions, such as where a registered trade mark is used in a bona fide descriptive manner. A trade mark registration is not a blanket prohibition on the use of the mark. Why does this matter in practice? A prohibition under section 15(1) of the Merchandise Marks Act, on the other hand, is far more powerful. It prohibits the use of the specified mark without authorisation from the rights holder outright and it is a criminal offence to contravene the prohibition. This latest notice stands out because it does not contain any express limiting language. Many previous notices issued under section 15 have made it clear that the prohibition is directed at use that could cause confusion with, or take unfair advantage of, a particular trade, business or event. This notice does not place any conditions on the use and may be read as contemplating a broader prohibition. That matters because the proposed list includes words and phrases that are not confined to formal advertising campaigns. Just by way of example, “Go Bokke!” is a resounding cry heard across the country when our team plays and “Bokkie” is an affectionate term of endearment that appears in many contexts in South Africa. The same concern applies to “Bok Friday”. Schools, organisations, charities and individual fans have long celebrated Bok Friday by wearing official merchandise, or simply green and gold, to show support for the national team. The tradition does not even appear to have originated with SARU, although SARU has enthusiastically supported it. This raises a fair question: where should the line be drawn between legitimate protection of the commercial value of the tour and ordinary public expressions of support for South African rugby? Section 15 of the Merchandise Marks Act itself empowers the Minister to prohibit the use of a mark only “in connection with any trade, business, profession, occupation or event, or in connection with a trade mark, mark or trade description applied to goods”. There is a good argument that these statutory limits remain relevant, even if they have not been repeated in the notice. In other words, the notice is unlikely to be interpreted as prohibiting every conceivable use of the listed words or images. The practical question is how the prohibition will be interpreted and enforced. Much will depend on whether SARU adopts a measured approach, distinguishing between genuine commercial exploitation of the tour and ordinary expressions of public support for South African rugby, or whether it decides to be heavy-handed. What next? The heading of the Minister's notice states that it is an invitation for public comment on both the protected event status and the prohibited marks, but later in the notice it merely states that interested persons have fifteen calendar days from the date of publication of the notice to submit written comments on the protected event status. This appears to be an omission in the notice and it is likely that the Minister intended to invite comment on both aspects. The notice was published on 2 July 2026, meaning that affected stakeholders should move quickly if they wish to make representations. What should advertisers and brand owners do now? •        Review any planned rugby-themed marketing campaigns and steer clear of either direct or indirect references to the Rugby's Greatest Rivalry Tour, the Springboks and associated branding. •        Consider whether there are grounds to submit comments on the notice during the consultation process. •        Monitor the progress of the notice and any subsequent notices and assess marketing campaigns against the scope of the final prohibitions. •        Seek advice before launching campaigns intended to benefit from publicity surrounding the tour, since even indirect references to the event may breach the provisions of the Merchandise Marks Act. South Africans are famously passionate about rugby, and there is no prohibition on enthusiasm. But as the green-and-gold excitement rises, it pays to ensure that marketing teams do not find themselves tackled by the law before reaching the try line. by: Kelly Thompson Partner Adams & Adams

The judgment of the Free State Division of the High Court, delivered on 19 March 2026, serves as a compelling reminder that the decisions of professional regulatory bodies are not beyond scrutiny. The case concerned a Rule 53 review application brought by the applicant, a qualified accountant and Associate General Accountant member of the South African Institute of Chartered Accountants (“SAICA”), against the decision of SAICA’s Professional Conduct Committee (“PCC”). Brief summary of facts The applicant practised as an accountant and general tax practitioner in Bloemfontein. In April 2021, the second respondent, a company represented by its chief executive officer, appointed her to provide accounting and tax consulting services. The mandate was terminated in November 2022, and following a breakdown of the trust relationship, the applicant ceased all further services. On 11 May 2023, SAICA notified the applicant that the second respondent had filed a complaint against her, alleging that she had handled the management and control of the second respondent’s payroll system in an unprofessional and inadequate manner. Specifically, it was alleged that she was responsible for the payroll system and had only loaded eight employees onto the FNB payroll platform whilst the second respondent employed twenty-eight employees. The applicant’s consistent case was that the management and control of the payroll were never her responsibility. According to her evidence, the second respondent’s chief executive officer himself dealt with the payroll on an Excel spreadsheet, which he would send to her solely for the purpose of generating payslips. She further explained that after loading the first eight employees onto the FNB platform, she discovered it did not meet the required specifications, and it was abandoned. Her version was supported by contemporaneous WhatsApp messages and pre-complaint correspondence from her attorneys. On 14 November 2023, a disciplinary hearing was conducted before the PCC, which found the applicant guilty of punishable conduct for failing to administer the second respondent’s payroll system and sanctioned her accordingly. Issues for determination The review application was brought in terms of the Promotion of Administrative Justice Act (“PAJA”), as SAICA exercises a public power in regulating the accounting profession. The principal issues were: first, whether the PCC proceedings were procedurally fair, particularly whether the applicant was adequately informed of the charge and whether the PCC decided the matter on the same basis as the charge put to her; second, whether the PCC properly applied the balance of probabilities test when confronted with two conflicting versions; third, whether the decision was rationally connected to the information before the PCC; and finally, whether the matter ought to be remitted to SAICA or whether the Court should substitute its own decision. The court’s conclusions and reasons On procedural fairness, the Court held that the PCC decided the matter on a distinctly different premise from the original charge. The complaint alleged that the applicant was responsible for managing and controlling the payroll system, yet during the hearing, the line of questioning by panel members shifted towards whether the applicant had a duty to identify and rectify payroll mistakes — an issue never forming part of the charge. The Court emphasised that section 3(2) of PAJA requires adequate notice of proposed administrative action, and at common law a person facing disciplinary proceedings is entitled to have the charge formulated with sufficient particularity. This marked shift in ground violated the procedural fairness of the proceedings, constituting a ground of review under section 6(2)(c) of PAJA. On the balance of probabilities, the Court noted that SAICA’s own By-Law required the civil standard of proof and that SAICA bore the burden of proving that the complainant’s version was more probable than the applicant’s. The PCC gave no reasons for its decisions and there was no record of deliberations evaluating the probabilities. Whilst acknowledging that an administrative decision-maker is not expected to assess evidence with the same rigour as a court, the Court held that the PCC was nonetheless obligated to determine the probabilities, particularly when confronted with two mutually destructive versions. The failure to do so constituted a material error of law and a valid ground for review under PAJA. Regarding rationality, the Court found no rational connection between the impugned decisions and the evidence before the PCC. The applicant’s uncontradicted evidence was that she was solely responsible for generating payslips and not for managing the payroll system, supported by contemporaneous WhatsApp messages and pre-complaint correspondence. Even the prosecutor on behalf of the Secretariat conceded during the hearing that the applicant was not responsible for the payroll system in totality, yet the PCC gave no indication of having considered this concession. On remedy, the Court declined to remit the matter and instead substituted its own decision, holding that all evidence was already before the Court and that remittal would serve no useful purpose as the outcome was a foregone conclusion. The PCC’s decision was reviewed and set aside and substituted with a finding that the applicant did not contravene any of SAICA’s By-Laws or its Code of Professional Conduct. The regulatory significance of this judgment This judgment is significant for the regulation of professionals in South Africa. It affirms that the disciplinary decisions of professional regulators constitute administrative action subject to judicial review under PAJA, ensuring that members have recourse to the courts where proceedings are conducted unfairly or irrationally. For members of professional bodies, this judgment stands as a powerful encouragement that where the facts necessitate a challenge, regulatory decisions should not be accepted without question. Judicial review provides an effective and necessary mechanism to vindicate the rights of affected professionals and serves as a vital check on regulatory overreach, reinforcing the rule of law in the regulation of professions.

JOHANNESBURG — On 26 June 2026, the Constitutional Court of South Africa handed down its long-awaited judgment in Ex Parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers' Protection Amendment Bill (CCT 306/24). The majority judgment, authored by Justice Mhlantla, marks the first time the Constitutional Court has undertaken an "abstract review" of the substance of a bill before its enactment into law — a historic and constitutionally significant exercise of the Court's jurisdiction. Adams & Adams acted for the seventh amicus curiae in the matter. The ruling provides important, if partial, clarity on a legislative process that has been underway for nearly a decade. It is a ruling that the creative industries and rights-holder community will need to study carefully — not only for what it decided, but for what it leaves unresolved - and for the important constraints it places on how the provisions it upheld may be applied in the future. What the case was about The case dealt with the constitutionality of the copyright exceptions to be introduced to the Copyright Act of 1978 by the Copyright Amendment Bill B13F of 2017.  Copyright exceptions specify cases where the copying, publication, and other uses of copyright works may be made without permission and therefore without remunerating the copyright owner. The Bill had been passed by Parliament in 2024 and been sent to President Ramaphosa for signature. However, the President instead referred the copyright exceptions in the Bill to the Court in terms of the Constitution for his reservations that they could amount to an arbitrary deprivation of property that is unconstitutional in terms of the Constitution’s Bill of Rights. What the Court decided The Court declared that copyright is property that the Bill of Rights protects from arbitrary deprivation. It nevertheless upheld the constitutionality of the controversial policy shift from the system of "fair dealing" exceptions that are currently in the Act, to "fair use", finding that, based on the terms of the President’s referral and the text of the “fair use” clause, it is not an arbitrary deprivation of property. The Court similarly upheld the constitutionality of a broad range of other new exceptions for personal use, translation, educational institutions, and for libraries, archives, museums and galleries, that will replace most of the exceptions that are in the current Act. However, in the most significant ruling for rights holders, the Court held that sections 12D(1)–(5) are unconstitutional—the broad exceptions in favour of educational institutions that would have allowed the copying of textbooks. In finding that these provisions constituted an arbitrary deprivation of property, the majority of the Court found that those exceptions went further than necessary to achieve their stated public benefit purposes, failed to define key terms with sufficient precision, and placed the financial burden of funding public education on individual authors and rights holders rather than on the state. In a notable dissent, Justice Steven Majiedt argued that the majority placed insufficient weight on constitutional rights to education, equality and access to knowledge, and that he would have upheld those provisions. Because sections 12D(1)–(5) were found unconstitutional, the President may not sign the Bill into law. Parliament must first cure the constitutional defect. What the Judgment Does Not Resolve Some of the interested parties and amici curiae in the case drew the Court’s attention to numerous other provisions that were not in the President’s referral that they argued were unconstitutional. These included the time limit of assignments of copyright that would result in an effective term of 25 years within which to exploit copyright works (undermining the legislated copyright term of the life of the author plus 50 years); the Minister’s power to prescribe essential terms of copyright contracts; a contract override provision that would apply indiscriminately to all copyright contracts and amount to serious limitations of the freedom to contract; onerous reporting requirements that discriminate against companies in their sanctions for non-compliance; and the possible removal of performers’ rights from persons who have had those rights until now. The Court stated that its findings on the constitutionality of the upheld provisions are confined to the narrow facial context of the President's reservations. They are not a permanent seal of constitutionality, and the ordinary avenues of constitutional challenge remain fully available once the Bill is enacted into law. Significantly, the Court interpreted the exceptions that it upheld narrowly so that they could not be interpreted as allowing an unconditional deprivation of property. The reasoning the Court used to save the upheld provisions therefore simultaneously constrains their future scope. The interpretive rulings embedded in the majority judgment — that the inclusive wording "such as" before the list of permitted purposes in the “fair use” clause does not open the floodgates to any use of copyright works; that the substitution-effect factor in the “fair use” provision is a mandatory structural constraint; and that personal use is confined to the copying individual and forecloses redistribution even to friends — are therefore binding in the Court’s finding of the constitutionality of the exceptions. The Elephant in the Room: Generative AI The judgment delivers a ruling on legislation that, in an important sense, is already out of date. The Copyright Amendment Bill was drafted more than a decade ago. Neither the Bill nor the Court's judgment contemplates generative artificial intelligence (AI) — now the single greatest challenge facing the creative industries globally. The Court's binding constraints on the “fair use” clause have one immediate and important consequence for the AI debate: they effectively foreclose the argument that the Bill's exceptions can serve as a legal basis for AI machine learning and training data ingestion – in the sense of mass, systematic reproduction for commercial system development, that generate outputs that directly compete with, and substitute for, the source works – in South Africa. Such use does not qualify as personal use, does not share the attributes of the named educational and research purposes, and fails the mandatory substitution-effect test in the “fair use” clause. The “fair use” clause, that had before the judgment been interpreted by many commentators as a give-away of copyright works to tech companies to train AI without restraint, has been robbed of such a permissive interpretation. However, this brings the development of AI in a manner that respects the rights of copyright back to nearly zero. Neither the Act nor the Bill has a text and data mining exception and there is no statutory safe harbour for AI training. A Legislative Opportunity That Must Not Be Wasted The constitutional defect means Parliament must revisit the Bill. The minimum response — excising sections 12D(1)–(5) and returning the revised Bill to the President — would be a missed opportunity of historic proportions. The Bill was conceived in a pre-generative AI world. Parliament now has a rare and time-sensitive opportunity to do what was neglected throughout a decade of legislative process: commission a rigorous, independent socio-economic impact assessment that measures the actual consequences of the proposed exceptions and that asks the fundamental question of whether a framework designed in 2015 remains appropriate in 2026 and beyond. The stated objective of the Bill has always been to equip South African copyright law for the challenges and opportunities of the digital age. The President’s signing into law a set of exceptions conceived over a decade ago — without addressing generative AI and without an economic impact assessment — would produce the precise opposite of that stated objective: a copyright framework that is simultaneously constitutionally fragile, economically unassessed, and technologically obsolete, before the ink is dry. Parliament has been given a second chance. The creative industries of South Africa — and the constitutional rights of their creators — deserve more than a minimalist response to the Constitutional Court’s judgment on the Copyright Amendment Bill.

On 26 June 2026, the Competition Commission published draft Terms of Reference for a proposed market inquiry into South Africa’s franchising sector. The market inquiry is initiated because the Commission believes that features in the industry may impede, distort or restrict competition in the South African franchise industry. The proposed inquiry matters because franchising is a significant part of the South African economy, contributing an estimated 15% of South Africa’s GDP. With 800 franchisor brands, 30,000 franchise outlets, and an estimated 500,000 employees, the impact of the inquiry cannot be overstated. At the heart of the inquiry is whether franchising is fulfilling its potential as a route into the formal economy for small and medium-sized enterprises and historically disadvantaged persons. The draft Terms of Reference identify three broad areas of focus. First, the Commission will examine finance and funding requirements, including whether upfront capital contributions and franchise finance criteria create barriers to entry for SMEs and HDP-owned businesses. Secondly, it will assess franchise agreement terms and related business practices, including restrictive supply arrangements, rebates and discounts, pricing and promotional requirements, and royalty or franchise fee arrangements. Thirdly, it will consider whether information asymmetries affect prospective franchisees’ ability to make informed investment decisions. For franchisors, franchisees, suppliers, financiers, industry bodies and investors, this is an important opportunity to engage early and help to shape the Commission’s understanding of the sector. Stakeholders should consider now whether their franchise agreements, funding models, supply arrangements, pricing practices, disclosure documents and operational controls may become relevant to the inquiry. Interested parties have until 7 August 2026 to comment on the draft Terms of Reference. The final Terms of Reference will then be published, and the inquiry will commence 20 days after publication, with the final report to be completed within 18 months. Our Competition Law team is available to assist interested parties with commenting on the Terms of Reference, preparing submissions, assessing competition-law risks, reviewing franchise arrangements and engaging with the Commission throughout the inquiry process. -          Mia de Jager (Partner) -          Naledi Pooe (Associate) -          Neo Mosima (Candidate Attorney)

Article by Marcelle Samons, admitted attorney and associate in the Trade Mark Prosecution department and overseen by  Alicia van der Walt a partner in the Trade Marks Department both from Adams & Adams South Africa has officially adopted the 13th Edition of the Nice Classification (NCL 13-26) with effect from 1 January 2026, following its implementation by the World Intellectual Property Office on the same date. The Companies and Intellectual Property Commission gave notice to this effect through Practice Note 3 of 2025, published on 9 December 2025, which provides that the updated classification applies to all trade mark specifications from 1 January 2026. The 13th Edition introduces changes across numerous classes, including additions, deletions, and refinements in wording, generally to better reflect the intended purpose of the goods or services. One of the most notable changes concerns essential oils, which no longer fall squarely within class 03. Instead, the classification thereof now depends on their purpose. Essential oils for cosmetic use remain in class 03, while oils for medical or pharmaceutical purposes fall within class 05 and the phrase “other than essential oils” has now been removed from class 05 indications. Essential oils used as ingredients in the manufacture of cosmetics or pharmaceuticals fall under class 01. The phrase “other than essential oils” has now been removed from classes 30 and 34, and flavouring used as food or beverage (whether oils or not) are classified in class 30, and those intended for tobacco flavouring (whether oils or not) are part of class 34. Other changes include the deletion of eyewear from class 09 and the movement of optical products such as eyeglasses, contact lenses, sunglasses and eyeglass cases from class 09 to class 10, which covers medical apparatus and articles. This narrows the scope of the notoriously broad class 09 and aligns the classification of these goods with their functional purpose. Interestingly, also concerning the optician field, spectacle and eyeglass repair and maintenance have been added to class 37. Other articles were also transferred from class 09 to other classes, further limiting the ambit of class 09. Nose clips for swimmers have similarly moved from class 09 to class 10, as its purpose and nature arguably align more closely to medical apparatus and articles than with the scientific, technological or safety-related articles typically falling in class 09. Fire engines and trucks are no longer part of class 09 as well, and are now classified in class 12, which is sensible as class 12 covers vehicles. Electrically heated clothing now falls within the broader clothing category and has shifted from class 11 to class 25. Umbrella and parasol ribs are no longer recorded as such in class 18 but are now described as “umbrellas and parasols being small portable goods for protection against weather conditions”, “ribs for hand-held umbrellas or parasols” and “handheld parasols.” Accordingly, patio umbrellas, which are neither small nor intended to be handheld, have been added to class 22, including nets, tents and tarpaulins and awnings, among other things. In the services classes, a timely addition pertains to smash rooms and rage rooms, which falls under class 41 for entertainment purposes. Another forward-looking addition pertains to artificial intelligence as a service (AIaaS) in class 42. The adoption of the 13th Edition of the Nice Classification (NCL 13-26) ensures that South Africa remains harmonised with international standards, providing clarity for brand owners and trade mark prosecution teams, specifically those with multinational interests. On the other hand, these changes may require reclassification, trade mark portfolio audits and broader suites of classes for search purposes. Overall, these changes, however, seem to reflect a more purpose-driven approach to classification.

A Gauteng High Court judgment handed down on 1 June 2026 concludes that Bitcoin is both "capital" and "money" under South Africa's Exchange Control Regulations. The capital finding is defensible. The money finding is not. And the court's treatment of what "export" actually means on a distributed ledger leaves the most difficult question unanswered. Case No. 2022-029979·Wilson J, Gauteng Division, Johannesburg,·Decided 1 June 2026 I. Background Between January 2018 and March 2020, the first applicant used two Luno accounts — one his own, one belonging to his co-applicant — to purchase just under 1,680 Bitcoin in South Africa, worth approximately R182 million. The Bitcoin was then transferred to wallets held on cryptocurrency exchanges registered outside South Africa. The Reserve Bank treated this as the unlawful export of capital without Treasury permission, and the Deputy Governor ordered forfeiture of approximately R6 million in Bitcoin and fiat assets standing to the applicants' credit. The applicants sought to review and set aside the forfeiture orders, principally on the basis that the Exchange Control Regulations, 1961 do not apply to cryptocurrency at all. Wilson J dismissed the application, finding that Bitcoin is "capital" — and indeed "money" — for the purposes of the Regulations, and that transferring it to foreign exchange wallets constituted an "export" in breach of Regulation 10(1)(c). The judgment is also notable for expressly departing from an earlier decision of the same division — Standard Bank of South Africa v South African Reserve Bank 2025 (5) SA 289 (GP) — in which Motha J had reached the opposite conclusion. II. The Capital Finding: Sound The court's conclusion that Bitcoin is "capital" under Regulation 10(1)(c) is the strongest part of the judgment, and it is largely unassailable. Following Oilwell (Pty) Ltd v Protec International Ltd 2011 (4) SA 394 (SCA), the court defines capital in its financial sense: a financial asset capable of holding value or being used as a medium of exchange. Bitcoin plainly satisfies both limbs. It can be bought and sold for rand. It is held in the expectation of appreciation. It is, in the language of the regulations, a financial capital asset. The purposive argument is equally compelling. If Bitcoin falls outside the Regulations, exchange controls become trivially circumventable. Any person wishing to move value offshore need only convert rand to Bitcoin on a local exchange and transfer it to a foreign wallet. The entire architecture of capital controls would be defeated by the availability of a domestic smartphone app. On any principled reading, that cannot have been the intended effect of the Currency and Exchanges Act. "Courts should be careful not to ascribe unusual or irreducibly exotic properties to phenomena which, though novel and perhaps unique in some respects, exhibit precisely the attributes an enactment is intended to regulate." The court's rebuke of what it calls "magical thinking" — the tendency to treat Bitcoin's technological novelty as a legal shield — is pointed and, on the capital question, well-aimed. III. The Money Finding: Questionable The court's analysis becomes considerably less persuasive when it turns to the question of whether Bitcoin is "money." The Regulations define money to include "any bill of exchange or other negotiable instrument," and the court concludes that Bitcoin qualifies as a negotiable instrument because it is a right to a specified sum exchangeable for fiat currency and other things of value. This characterisation is strained. A negotiable instrument is a written document that unconditionally promises or orders payment of a fixed sum, by or to a specifically identified or identifiable party. Bitcoin is none of those things. It is a cryptographic record of entitlement to a quantity of a scarce digital asset. There is no issuer, no obligor, no fixed sum, and no written promise. To describe a UTXO — an unspent transaction output on the Bitcoin blockchain — as a negotiable instrument requires the concept to do more work than it was designed to do. More fundamentally, the court conflates money-like utility with money as a legal and economic category. The classic tripartite definition of money requires three attributes: medium of exchange, unit of account, and store of value. Bitcoin functions as a medium of exchange in limited contexts, and as a store of value in a manner analogous to gold. But it fails the unit of account test almost entirely. Its price volatility is so pronounced that virtually no merchant prices goods or services in Bitcoin natively. Those who nominally "accept" Bitcoin typically do so through payment processors that convert it to fiat at the point of sale. Bitcoin is tolerated as a settlement mechanism, not adopted as a monetary denominator. The court's observation that Bitcoin can be used to pay for goods and services therefore proves less than it claims. Atticus Finch, in Harper Lee's To Kill a Mockingbird, accepted payment in vegetables from clients who could not afford his fees. That did not make turnips legal tender, or money, or a negotiable instrument. The fact that something is accepted in exchange tells you only that the parties agreed to treat it as having value in a particular transaction. It tells you nothing about whether the thing accepted meets the legal or monetary definition of money. IV. The Export Analysis: Technically Undercooked The most significant analytical gap in the judgment lies in its treatment of "export." The court holds that transferring Bitcoin to a wallet on a foreign-registered exchange is self-evidently an export: "once the Bitcoin was placed beyond the Reserve Bank's jurisdiction, it was exported." The court supports this with an ATM analogy — a person drawing on a UK bank account at a Johannesburg ATM imports money; a person drawing on a South African account at a London ATM exports it. The analogy is intuitively appealing but technically inapt, and it conceals a distinction the judgment never squarely addresses. A bank account is the liability of a legal entity incorporated and regulated in a specific jurisdiction. Its location, for regulatory purposes, is determinate. A Bitcoin UTXO is not the liability of anyone. It is an entry on a distributed ledger — the blockchain — which is simultaneously replicated across thousands of independent nodes worldwide, many of them physically located within South Africa. Bitcoin does not exist in any single place. It exists as a consensus state of a global, jurisdictionally agnostic network. This matters because the court's export analysis elides two factually distinct scenarios. In the first, a South African resident converts rand to Bitcoin on a local exchange, then transfers the Bitcoin to a foreign wallet. In the second, a resident transfers rand directly to a foreign exchange, purchases Bitcoin offshore, then moves the Bitcoin between wallets or to cold storage. In the second scenario, the export event — the moment at which value leaves South Africa — is the rand transfer, not the subsequent movement of Bitcoin. When Bitcoin "moves" between wallets, what actually occurs is that the blockchain's distributed ledger is updated: a cryptographic key changes hands, and a new address becomes associated with a particular quantity of Bitcoin. No thing crosses a border, because the ledger has no geographic location. The judgment does not distinguish between these scenarios. It treats the transfer of Bitcoin to a foreign-registered exchange wallet as sufficient, in itself, to constitute export. But the registration jurisdiction of an exchange tells you where the exchange's corporate entity is incorporated — not where the Bitcoin "is," because Bitcoin is not "anywhere" in the physical sense the Regulations assume. When Bitcoin "moves" between wallets, nothing crosses a border. The ledger has no geographic location. The court's export analysis assumes a physicality that the underlying technology does not possess. A more rigorous judgment might have avoided these difficulties by reasoning purposively rather than literally. The practical effect of the transactions was to remove R182 million in value from the Reserve Bank's supervisory reach. Whatever the mechanics, the economic substance was a capital outflow. That argument — grounded in effect rather than in a geographic conception of where Bitcoin "is" — would have been more technically defensible and would not have required the court to map 1960s regulatory language onto distributed ledger architecture it was never designed to describe. V. Bitcoin as Commodity: The Direction of Travel Viewed against international developments, the judgment's money finding is swimming against the tide. The price dynamics of Bitcoin are instructive. Empirical analysis consistently shows that Bitcoin's price is driven primarily by two factors: liquidity conditions and network effects. When central banks expand their balance sheets — when they create more money — the price of scarce assets rises. Bitcoin, with its mathematically fixed supply of 21 million coins, is among the most inelastic assets in existence. Its appreciation during periods of monetary expansion is not coincidental. It is a predictable consequence of scarcity in the face of currency debasement. This is not the behaviour of money. It is the behaviour of a commodity — more specifically, of a monetary commodity akin to gold. Money, by design, is elastic. Central banks exist precisely to expand and contract its supply in response to economic conditions. Bitcoin's supply cannot be altered. It is constitutionally fixed in the protocol. In this narrow but important respect, Bitcoin is the antithesis of fiat money: it is used, as gold is used, to preserve value against the erosion of purchasing power that monetary expansion produces. United States legislators have recognised this. The Commodity Futures Trading Commission has treated Bitcoin as a commodity since at least 2015. The GENIUS Act (Guiding and Establishing National Innovation for US Stablecoins), passed in 2025, draws a sharp distinction between dollar-pegged payment stablecoins — regulated as money-adjacent instruments — and Bitcoin, which is explicitly excluded from the stablecoin framework. The legislative logic is telling: Congress was acknowledging that Bitcoin is not designed to function as a payment medium in the way a stablecoin is. The CLARITY Act (presently being debated at Congress), representing the most comprehensive attempt at digital asset classification in the US, goes further. Its central innovation is a decentralisation test: an asset issued or operated without meaningful central control falls under CFTC commodity jurisdiction, not SEC securities jurisdiction. Bitcoin passes this test unambiguously. No person or entity controls its issuance, its protocol, or its monetary policy. Under the CLARITY framework, Bitcoin is the paradigm case of a digital commodity — fungible, scarce, issuerless, and priced by global supply and demand. The combined direction of US legislation is therefore: stablecoins are regulated as money; Bitcoin is regulated as a commodity; other tokens are assessed on a spectrum. This taxonomy is both more technically accurate and more jurisprudentially coherent than the South African court's approach, which forces Bitcoin into a 1961 definition of "money" that was drafted during an era of Bretton Woods fixed exchange rates. VI. Conclusion The Wilson J judgment reaches a defensible outcome. The transactions described — the funnelling of R182 million in Bitcoin through two accounts to foreign exchange wallets, without Treasury permission — are precisely the kind of capital flows that exchange controls exist to regulate. The capital finding, and the dismissal of the procedural fairness complaint, are both well-reasoned. But the reasoning that supports the money finding, and the analysis of what constitutes an "export" on a distributed ledger, deserve scrutiny. The court dismisses the technological architecture of Bitcoin as irrelevant novelty. In doing so, it avoids the harder questions: Where, precisely, does Bitcoin exist? At what moment, exactly, does value leave South Africa? What is the export event when the asset being "moved" is an entry on a jurisdiction-agnostic global ledger? The corrective to magical thinking about technology is not to ignore the technology. It is to understand it well enough to reason about it accurately. As digital assets become an increasingly significant feature of cross-border capital flows, South African courts will need to develop a more granular analytical framework — one that can distinguish between the export of fiat, the conversion of fiat to a digital commodity, and the subsequent movement of that commodity between cryptographic addresses on a global ledger. The present judgment conflates all three. Future cases will need to disentangle them. Mangundhla and Another v South African Reserve Bank and Others, Case No. 2022-029979, Gauteng Division, Johannesburg. Wilson J. Heard 11 May 2026, decided 1 June 2026. Reportable. See also Standard Bank of South Africa v South African Reserve Bank 2025 (5) SA 289 (GP) (expressly departed from). Exchange Control Regulations, 1961; Currency and Exchanges Act 9 of 1933. Dale Healy Adams & Adams 3 June 2026

The 2026 FIFA World Cup has produced no shortage of memorable moments. One of the most interesting, however, did not happen on the pitch but it did happen outside a stadium in California, under a white sheet. FIFA's commercial framework for the World Cup is designed to safeguard the exclusivity enjoyed by its official sponsors. To achieve this, host venues are required to remove or obscure branding associated with non-sponsoring companies during the tournament. Consequently, Levi's Stadium in Santa Clara was temporarily rebranded as the "San Francisco Bay Area Stadium", with Levi's signage concealed for the duration of the event. Similar branding restrictions have been applied at a number of World Cup venues throughout North America. From a legal perspective, there is nothing unusual about this. FIFA's sponsorship programme depends on exclusivity, and protecting the rights of official sponsors has long been a feature of major sporting events. Indeed, we recently discussed the importance of respecting those rights and avoiding unauthorised associations with the tournament in our article World Cup Marketing: A Practical Legal Guide for Brands. What followed, however, offers a valuable lesson in the power of branding and reputation. Levi's responded in an unexpected way. Rather than simply concealing its branding, it transformed the cover-up into part of the campaign itself. The company's iconic batwing device was obscured by a plain white covering, but the familiar outline remained instantly recognisable. Levi's then incorporated the altered logo into its social media presence, inviting consumers to engage with the irony that the brand had been "hidden" while remaining unmistakably visible. The response quickly gained momentum online as consumers identified the brand without needing to see its name. That response worked for a simple reason: people already knew who Levi's was. This was symbolised by the shape of the batwing device alone, something we call a naked trade mark. However, it was also symbolised by the locality of trade mark – adjacent the stadium name through which it had over time become synonymous. This illustrates that goodwill can exist in the location of a brand, alone. The upshot of this Levi’s opportunism neatly explains that trade marks can exist in all distinctive elements of a brand from word marks, to devices, shapes and colours and even naked trade marks. Further, that franchise, license and sponsorship agreements should take care to acknowledge the value of location. The real value of a trade mark lies in what it comes to represent in the minds of consumers. Many businesses would struggle if their name suddenly disappeared from view. Levi's found itself in a different position. Decades of consistent use, distinctive branding and accumulated goodwill meant that consumers did not need to see the word "Levi's" to know exactly what they were looking at. The shape of the logo, the heritage associated with the brand and a reputation built over more than a century did the work that a word mark ordinarily would. That is the difference between a trade mark and a brand. A trade mark identifies the source of goods or services and protects a brand. A brand encompasses reputation, consumer trust, familiarity, personality and the emotional associations that consumers develop over time. The role of the trademark practitioner is to audit the value in the brand and protect each component separately and together within a budget that reflects the value of the brand and objectives of the owner. In effect, FIFA created a real-world test of brand recognition. Would consumers still know the brand without seeing its name? In Levi's case, the answer appears to have been yes. The story is not only about the strength of the Levi's brand. It is also about the strength of the response. By embracing the situation rather than resisting it, Levi's turned a potential obstacle into an opportunity to reinforce its brand identity. That said, there is a question mark on compliance. FIFA and its sponsors will argue that Levis were not compliant in removing all branding (they left the naked trade mark) and/or are unlawfully continuing to create an association with the event in doing so and through social media. This case shares similarities with the arguments raised for and against ambush marketing in the World Cup Football® event in 2010 where Bavaria was alleged to have ambushed the event even though its orange dresses bore no visible logo of the company when viewed on television. FIFA argued that the design of the dress itself had become a symbol of the family owned beer company and their location – in FIFA allocated seats – helped create the association with the brand. Brand owners should take note. Brand recognition is rarely created overnight, nor is it achieved through visibility alone. It is built through consistency, distinctiveness and the trust that develops between a brand and its consumers over time. These are the factors that transform a trade mark from a legal asset into a valuable commercial asset. The Levi's World Cup moment serves as a reminder that the most valuable brands are not necessarily the most visible. They are the ones that consumers can recognise instinctively, even when the most obvious indicators have been removed. When a brand can still be identified after its name has been covered, what remains is more than a logo. What remains is reputation. By: Maureen Kiugu (née Makoko) and Darren Olivier

INTRODUCTION In a recent Johannesburg High Court judgment, the plaintiff, Karanie, instituted action against the life insurer, the defendant, in December 2012 for payment of benefits allegedly due under a life insurance policy. The Defendant defended the action and filed a counterclaim to recover payments already paid under the policy. The matter was then enrolled for trial on 4 May 2015. The case was, however, postponed to a future unknown date with the Plaintiff being ordered to pay the costs for postponement. The costs were then taxed, but the Plaintiff failed to pay these taxed costs. For several years, the Plaintiff took no meaningful steps to advance the matter and the matter remained dormant. In 2023, the court stayed the proceedings pending the payment of the taxed costs. Despite an undertaking in 2024 to settle the costs, the Plaintiff still failed to do so, leaving the matter effectively stalled and incapable of progression. The Defendant consequently applied for dismissal of the Plaintiff’s claim due to inordinate delay and failure to prosecute. The question before the court was whether it should exercise its discretion and dismiss the Plaintiff’s claim for want of prosecution. THE LAW & THE REQUIREMENTS FOR BRINGING SUCH AN APPLICATION The court confirmed that courts have inherent jurisdiction to dismiss the action for want of prosecution. However, the power should still be used sparingly. The court referred to the case of Cassimjee v Minister of Finance wherein the Supreme Court of Appeal held that the following requirements must be present: There should be a delay in the prosecution of the action. The delay must be inexcusable. The Defendant must be seriously prejudiced by such delay. The court stated that this will involve a close examination of all the relevant circumstances and these include the length of the delay, the reasons thereof and prejudice caused. The court confirmed that no hard-and-fast rules and nor is a single factor decisive. All the relevant factors should be weighed together holistically. FINDINGS OF THE COURT The court held that the requirements for dismissal for want of prosecution were satisfied and exercised its discretion to dismiss the Plaintiff’s claim. The court first made it clear that even where delay is inordinate, the application will not succeed in the absence of serious prejudice to the defendant. However, in the present case, prejudice to the Defendant was not only “real but substantial”. More than thirteen years had elapsed since the institution of the action, and nearly eleven years since the matter was last enrolled for trial. During this period, the plaintiff took no meaningful steps to advance the proceedings. The explanations advanced by the Plaintiff were found to be inadequate and unsupported by the objective facts. The Court emphasised the Plaintiff’s persistent failure to comply with the costs order, which resulted in a stay of proceedings and rendered the action incapable of progression. The Court found that the Defendant had suffered serious prejudice, as the claim arose from events dating back to 2009, and the passage of time had adversely affected the availability and reliability of evidence, especially expert testimony. The Defendant also faced ongoing uncertainty due to the unresolved claim and was procedurally constrained from progressing the matter while the stay remained in place. CONCLUSION The decision illustrates a compelling and justified application of the Court’s discretion in circumstances of prolonged and unexplained delay. Several years had passed without any concrete progress being made and without justified reasons. Litigants should not be prejudiced by inordinate delays. The Defendant did everything on its part to comply with court procedures, however, the same was not done by the Plaintiff. Since the Plaintiff did not comply with the costs order and the proceedings were stayed as a result thereof, the Defendant was also not able to finalise its counterclaim. Therefore, the continued existence of the action is inconsistent with fairness and proper administration of justice, as the delay was evidently inordinate, Inexcusable and prejudicious to the Defendant. Article authored by: Sifiso Dlamini, Candidate Attorney in the Insurance & Financial Services department Article guided and reviewed by: Mtho Maphumulo, Partner in the Insurance & Financial Services department

Cannabis is once again in the news in South Africa, with the recent announcement by various government departments of a national cannabis master plan to establish a formal cannabis and hemp industry. At the same time, the government has a long-standing commitment to protecting its local biodiversity, which is embodied in the National Environmental Management: Biodiversity Act 10 of 2004 (the NEMBA). Among its other functions, the NEMBA serves to regulate biotrade and bioprospecting by means of a permit system. Conducting bioprospecting or biotrade activities without a permit is an offence, and can result in a fine of up to ten million Rand and/or imprisonment for up to ten years. The permit process itself is quite involved and requires, among other things, the conclusion of suitable Material Transfer Agreements (MTAs) and Benefit Sharing Agreements (BSAs) with any access providers and/or traditional knowledge holders relevant to that specific instance of biotrade or bioprospecting. To understand when the NEMBA is in play, one must conduct a three-fold enquiry: Firstly, is the activity bioprospecting as understood by the Act? Secondly, is the bioprospecting activity being done with an Indigenous Biological Resource (IBR) in terms of the Act? Finally, are there any exemptions or exceptions which would exclude that particular IBR from the operation of the Act? For the first enquiry, “bioprospecting” in relation to IBRs means any research on, or development or application of, IBRs for commercial or industrial exploitation. In practice, this is broad enough so that almost any activity related to IBRs which has a commercial aim in mind counts as bioprospecting. For the second enquiry, IBRs include any indigenous animal, plant or other organism of an indigenous species (whether living or dead), as well as any derivatives thereof, including compounds or genetic material derived from such an indigenous species. It also includes cultivars, strains, derivatives, hybrids or fertile versions of indigenous species, as well as exotic species which have been altered to include genetic material or compounds found in any indigenous species. In general, anything which flows from an indigenous species may be considered an IBR. And here, since the definition of an “indigenous species” in terms of the NEMBA means a species that occurs, or has historically occurred, naturally in a free state in nature within the borders of the Republic, but excludes a species that has been introduced in the Republic as a result of human activity, we finally arrive at the impact on cannabis and hemp.  Cannabis, although extensively cultivated, is one of those plants that can survive on its own in nature (the name ‘weed’ is very apt here). It was also introduced into the country far enough in the past that the exact mechanism for its arrival is uncertain, with the tentative scholarly consensus being that Arab traders may have introduced it in the 1300s. In such circumstances, there is a possibility that Department of Forestry, Fisheries and the Environment (DFFE) may take the view that cannabis is an IBR. For the final leg of the enquiry, we look to exclusions. The NEMBA currently excludes genetic material of human origin, exotic plants and animals other than those mentioned above, and IBRs listed in the International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty). The Minister also has the power to exempt specific species and activities by way of notice, something which has already been done for species used in the international cut flower and ornamental plant markets. At present, the Treaty does not list cannabis, and we are unaware of any notice by the Minister declaring an exemption for cannabis or hemp. Such an exemption may well be a logical next step if the intention by government is to create a formal cannabis and hemp industry on a mass scale. Alternatively, should government wish to compensate local communities for the potential value inherent in the local landraces and the traditional knowledge now associated with them that have been developed in South Africa over time, then a clarification of the status of cannabis as an IBR in terms of the NEMBA would be welcome. Meanwhile, it remains to be seen how the cannabis industry as a potential source of IBRs will progress. We will continue to monitor developments and provide updates as they arise.

Facts On 10 April 2016, the Plaintiff was admitted to a private hospital complaining of pain in her left knee. Unbeknown to anyone at the time, the Plaintiff had suffered a ruptured aneurysm in her popliteal artery, resulting in limited blood flow to her lower left leg. The rupture went untreated for a critical period, and the condition of the Plaintiff's leg deteriorated to such an extent that it had to be amputated above the knee on 19 April 2016. On 14 August 2017, the Plaintiff instituted an action for damages arising from the allegedly negligent treatment she received at the hospital. The suit was initially brought against the hospital and three of the Plaintiff's treating physicians (the First to Fourth Defendants). It became apparent from their pleas that none of the original defendants accepted direct responsibility for the treatment the Plaintiff received in the hospital's accident and emergency department, which they said was run by the Fifth Defendant, an incorporated medical practice. On 21 June 2018, the Plaintiff sued the Fifth Defendant, which pleaded on 5 December 2018. In its plea, the Fifth Defendant identified the Seventh Defendant as its employee who had treated the Plaintiff "in the course and scope of his duties," and a Sixth Defendant as a locum physician not in its employ. The Plaintiff's legal representatives made what they described as a "strategic decision" not to sue the Seventh Defendant personally, reasoning that the Fifth Defendant could be held vicariously liable for any negligence proved against him. They did, however, sue the Sixth Defendant in her personal capacity on 31 August 2020, as she was acknowledged not to be in the Fifth Defendant's employ. At around the same time, the Fifth Defendant amended its plea to withdraw the admission that the Seventh Defendant was its employee, now pleading that both the Sixth and Seventh Defendants were independent contractors over whom it had no control. Despite this material amendment, the Plaintiff's legal representatives did not act upon it until June 2022, when they finally appreciated the need to sue the Seventh Defendant in his personal capacity. The summons against the Seventh Defendant was served on 22 June 2022. The Seventh Defendant raised a special plea of prescription. Issues The central issue the Court had to determine was whether the Plaintiff's claim against the Seventh Defendant had prescribed. The Prescription Act (“the Act”) provides that an ordinary debt prescribes three years after it falls due. Section 12(3) of the Act provides that a debt falls due when the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises. The Court therefore had to determine when the Plaintiff first became aware of the Seventh Defendant's identity and his role in the chain of events leading to her injury. Complications: the peculiarity of Prescription in this matter What made the prescription issue peculiar in this matter was the manner in which the Seventh Defendant pleaded his special plea. While the case, in the Court's view, turned upon two straightforward and common cause facts — that the Plaintiff became aware of the Seventh Defendant's role in her treatment on 11 December 2018 (when the Fifth Defendant's plea was served), and that the Plaintiff did not institute proceedings against the Seventh Defendant until 22 June 2022, some four and a half years later — the Seventh Defendant's legal representatives overcomplicated the matter. The Seventh Defendant persisted with the argument that the Plaintiff should be deemed to have been aware of the Seventh Defendant's identity as early as August 2017, when the hospital records were discovered. Those records included a form signed by the Seventh Defendant, but the Court noted that the Seventh Defendant's signature was illegible and the form did not otherwise identify him. The Seventh Defendant's counsel argued that it was unreasonable of the Plaintiff to wait until the Fifth Defendant identified the Seventh Defendant in its plea. The Court expressed doubt about this more ambitious argument, observing that the Plaintiff was investigating a complex chain of medical causation. The hospital had sought to shift liability onto its separately incorporated constituent practices, which in turn sought to shift liability onto the physicians working for them as independent contractors. In those circumstances, the Court held that the Plaintiff could not be criticised for seeking relief against the hospital rather than a treating physician who, at the time the medical records were received, was identified by no more than "his scrawled signature on a single sheet of paper". Court's determination and reasons The Court upheld the special plea of prescription and dismissed the Plaintiff's claim against the Seventh Defendant. The Court's reasoning was as follows: The Plaintiff plainly became aware of the Seventh Defendant's identity and his role in her treatment when the Fifth Defendant named the Seventh Defendant in its plea dated 5 December 2018, which was served on the Plaintiff's legal representatives on 11 December 2018. The three-year prescriptive period therefore expired on 12 December 2021. Since the Plaintiff only served the summons against the Seventh Defendant on 22 June 2022, the claim had prescribed. The Court rejected the Plaintiff's reliance on section 12(2) of the Act. The argument that the Fifth Defendant had "wilfully prevented" the Plaintiff from discovering her cause of action by initially pleading that the Seventh Defendant was its employee was found to be misguided. The Court reasoned that the Plaintiff's strategic decision not to sue the Seventh Defendant personally, because the Plaintiff's representatives believed they could hold the Fifth Defendant vicariously liable, did not mean the Plaintiff was prevented from suing the Seventh Defendant in his own right. The Court further reasoned that the very decision to pursue vicarious liability against the Fifth Defendant entailed the proposition that the Plaintiff's representatives already knew about the Seventh Defendant and his potential role in causing the Plaintiff's injury. Conclusion This judgment offers important guidance in the field of medical negligence litigation on the operation of prescription, particularly regarding knowledge of a debtor's identity under section 12(3) of the Act. It underscores that the prescriptive period begins to run from the date the plaintiff acquires knowledge of the debtor's identity and the facts giving rise to the debt — not from the date a plaintiff makes a strategic decision to act on that knowledge. Practitioners in medical negligence matters should take careful note: when the identity of a potential defendant becomes known through the pleadings of a co-defendant, the clock starts immediately, regardless of whether the plaintiff has elected to pursue a vicarious liability strategy against another party. Article by: Mtho Maphumulo Litigation and Alternative Dispute Resolution Attorney, Adams & Adams Partner, Insurance & Financial Services department

14 April 2025 - Adams & Adams has been recognised as Africa Firm of the Year at the annual Managing Intellectual Property (IP) Awards for Europe, the Middle East and Africa (EMEA), which took place on 10 April at the Royal Lancaster Hotel in London. The firm also received the distinction of South Africa Patent Firm of the Year, with Senior Associate Lisa van Zuydam named South Africa Rising Star of the Year for her growing impact on the IP field. “To be awarded South Africa’s top patent firm and Africa’s leading IP firm is a powerful endorsement of our continued leadership in the IP landscape. This prestigious award underscores  our unwavering commitment to service excellence and innovation, reflecting the core values that drive Adams & Adams forward. Congratulations to Lisa on her achievement, which speaks volumes about the exceptional IP talent at Adams & Adams,” says Kelly Thompson, Chairperson at Adams & Adams. Now in its 20th year, the Managing IP Awards programme is the most comprehensive and widely respected IP law firm awards event in the legal industry. Recipients are selected through a rigorous research methodology based on comprehensive submissions, peer review and independent research. As Africa Firm of the Year for 2025, Adams & Adams demonstrated its expertise in handling challenging IP cases. The recognition as South Africa Patent Firm of the Year highlights the firm’s outstanding results in patent services in the region. The success of Adams & Adams at the 2025 Managing IP Awards builds on a series of accolades recognising the firm’s expertise in IP. In the latest Chambers Global rankings, the firm’s IP team once again secured a prestigious Band 1 ranking. Several of our IP attorneys were also recognised by The Legal 500 as leading IP attorneys this year. In the WTR1000 2025, which rates the world’s top trade mark lawyers, 21 of the firm’s  attorneys were recognised and the firm again earned a Gold ranking, re-affirming its leading position in South African IP law “These prestigious achievements across our firm’s practice areas strengthen our reputation in a highly competitive market. As a trusted partner to our clients, we offer strategic solutions to help them navigate the complexities of the legal field and realise their potential on the African continent,” concludes Thompson.

In South Africa, a restraint of trade does not automatically fall away because employment has ended. If the restraint protects a legitimate business interest and is reasonable in duration, area and scope, it may be enforced regardless of whether the employee resigns, is dismissed, is retrenched or retires. In GNG Pine Products CC and Another v De Beer and Another, the Labour Court recently considered whether a restraint could still bind a retired branch manager. Mr De Beer had managed GNG’s Polokwane branch for almost 18 years and helped build a customer base of about 460 active customers. His restraint applied for two years after termination “for any cause” and barred him from competing in the coffin, casket and dome industry or soliciting GNG’s customers. Shortly before his retirement, a competing business was registered in his sons’ names and operated from his home address. Although he denied involvement, the Court found that the arrangement was “nothing more than camouflage” and that his “fingerprints” were “all over” the competing business. The Court confirmed that restraints are valid and generally enforceable unless the employee shows that enforcement would be unreasonable. The phrase “for any cause” meant that the restraint survived the end of employment, including retirement. A restraint will usually be enforceable only where it protects a legitimate interest, such as confidential information, trade connections, customer relationships or goodwill. It must also go no further than reasonably necessary to protect that interest. The Court did not enforce the restraint exactly as drafted. It narrowed the period and area to what was justified by the facts, showing that an overly wide restraint may still be enforced in a limited, reasonable form. Why this matters 1.      How employment ends does not matter. A reasonable restraint may still apply after resignation, dismissal, retrenchment or retirement. 2.      Courts look at substance over form. An employee cannot avoid a restraint simply by acting through family members or related entities. 3.      Reasonableness remains central. The restraint must protect a real business interest and must not go further than necessary. For employers, restraint clauses should be specific, up to date and tied to identifiable business interests such as key customers, confidential information or goodwill. They should also reflect the employee’s actual role, area of influence and the risk posed by a competing business. For employees, retirement or any other form of termination is not, on its own, a way around a restraint. Before joining or assisting a competing business, it is important to understand whether the restraint remains reasonable and enforceable. Adams & Adams can assist employers and employees with drafting, reviewing and enforcing restraint provisions. By Mia de Jager (Partner), Shannon Busacker (Associate)

Artificial intelligence is no longer a future concept in Africa. It is here, it is being used, and it is now reshaping regulatory agendas and courtroom practice across the continent.  Over the last two years, we have seen a decisive shift in how African governments approach AI. What was once discussed in policy workshops and position papers has moved firmly into national strategies, draft legislation, and judicial scrutiny. A major catalyst for this shift was the African Union’s Continental AI Strategy, adopted in July 2024. This strategy provides a unified roadmap for AI development across Africa for the period 2025 to 2030. It sets out a shared framework for innovation, data governance, risk mitigation, skills development, and investment, and it now operates as an umbrella under which national AI approaches are being developed or aligned. In practical terms, this means that African states are no longer regulating AI in isolation. Instead, they are increasingly coordinating their approaches, ensuring a degree of consistency across member states while still responding to local priorities. National AI Strategies: Momentum across the continent At a national level, the pace of development has been striking: – Kenya has taken a leading role, launching its National AI Strategy in March 2025, positioning AI as a key driver of economic growth and public sector reform. Zambia followed closely behind, rolling out its own strategy in late 2024, developed with support from the United Nations and the Tony Blair Institute. In Central Africa, Cameroon unveiled an ambitious National AI Strategy in 2025, with a strong emphasis on local language models and sovereign AI development. South Africa, meanwhile, has taken its first formal steps toward comprehensive AI legislation and is on the verge of circulating a draft AI policy for public comment (after having published its Draft AI Policy Framework in October 2024). While this is not yet an AI Act, it clearly signals the direction of travel and would place South Africa among the first African jurisdictions with a fully developed AI regulatory regime. AI governance in South Africa has also been reinforced through the new King V Code, which explicitly positions artificial intelligence within corporate governance structures. Principle 10 requires boards to exercise oversight over data, information, technology and AI, embedding AI governance at board level and reinforcing the broader regulatory trajectory. Elsewhere on the continent, Ghana has finalised its National AI Strategy, with enabling legislation now anticipated, while countries such as Mozambique and Mauritius are progressing through structured consultation processes to shape their own frameworks. Taken together, these developments reflect a continent actively building the regulatory scaffolding needed to adopt AI responsibly, competitively, and with accountability. Policy Meets Practice: AI in the Courts This policy landscape forms important context for what is already happening in African courts. Across the continent, judges are being confronted with artificial intelligence not as a theoretical construct, but through real disputes and real misconduct that test professional ethics and the integrity of judicial processes. In South Africa, the most prominent example remains the Pietermaritzburg High Court decision in Mavundla v MEC: Department of Co-Operative Government and Traditional Affairs KwaZulu-Natal and Others. There, Judge Bezuidenhout refused leave to appeal after discovering that seven of the nine authorities cited in the applicant’s submissions were entirely non-existent, apparently generated by an AI tool. The court described the conduct as “irresponsible and downright unprofessional” and referred the matter to the Legal Practice Council. It remains the clearest example to date of AI hallucinations contaminating court filings in Africa. Crucially, however, Mavundla was not an isolated incident. In Northbound Processing (Pty) Ltd v South African Diamond and Precious Metals Regulator and Others, decided on 30 June 2025, Smit AJ delivered another early judicial warning about the misuse of AI in legal practice. Several authorities cited in the applicant’s heads of argument were again found to be fictitious. Upon investigation, the court determined that the fabricated citations had been generated by an AI tool known as “Legal Genius”. Counsel conceded that time pressure and inadequate verification, not bad faith, had led to the inclusion of incorrect authorities. But the court made its position unambiguous in stating that such conduct is unacceptable. The judicial message has been consistent and increasingly firm: lawyers may use AI tools, but they remain personally responsible for every authority they cite. Persuasive writing is no substitute for authentic sources, and AI outputs must always be independently verified. These judgments are shaping the ethical baseline for AI use in legal practice in South Africa. A Continental Pattern South Africa is not alone in confronting these issues. In Kenya, the judiciary reached a similar inflection point in 2025 after submissions were filed containing entirely fabricated authorities. A Supreme Court judge publicly warned both judges and practitioners against using generative AI tools in court proceedings until formal guidelines are in place, citing the reputational and procedural risks when AI-generated errors make their way onto the record. In Ghana, legal commentary has echoed the same concerns, warning that the use of unverified AI content in court could amount to professional misconduct, deception of the court, and potentially even negligence. What is emerging is a recognisably global pattern. Courts, often ahead of legislators, are setting practical rules for AI through the cases that come before them. The Takeaway Across the continent, the message from both policymakers and judges is consistent. AI is here to stay, and it can be a powerful tool when used properly. But it does not replace professional judgment, ethical obligations, or fundamental duties to clients and the courts. As Africa’s AI regulations continue to take shape, these early court decisions offer a clear preview of how responsibility will be assessed in practice. The technology may be artificial, but accountability remains entirely human.

With the prolific rise of online gambling, the trade mark and regulatory landscape is also an area of growing interest worldwide, including in South Africa. In the USA, Kalshi Inc., which describes itself as a “regulated exchange dedicated to trading on the outcome of future events”, previously applied for trade marks covering “Bookmaking services” and “organizing, arranging, conducting sports betting and gambling tournaments, competitions and contests”. This was seen as being at odds with representations that it is not offering gambling services and is rather a prediction market operator that offers a financial product. There is debate about whether its betting exchanges differ markedly from traditional bookmaking and therefore how these should be regulated. The latter is strictly regulated and even prohibited in some states of the USA. With the intensified debate and scrutiny over the corporation’s principal business, its subsequent trade mark applications were devoid of gambling services and the earlier trade mark application on the records of the US Patent and Trademark Office no longer covers “Bookmaking services”. This is an interesting strategy that raises important questions, including whether the corporation has intention to use its trade marks for the specific services applied for and whether it, in fact, does not offer gambling services, which are subject to tighter regulatory control. It will be interesting to see how the matter finally plays out in the USA, but for now we can consider it briefly against our own position in South Africa. Our gambling scene is strictly regulated with the application of national and provincial laws. The National Gambling Act of 2004, administered by the National Gambling Board, is meant to coordinate the concurrent national and provincial laws regarding gambling and establish national norms regarding the licensing and regulation of gambling, whilst also ensuring the safety of society against the negative consequences of gambling. The Provincial Licensing Authorities control gambling operations and activities within the specific provinces, and gambling operators engage these provincial authorities, each with their own requirements, to operate in that province. There is no single licence to operate nationally, and this framework is quite federalist, similar to the USA. In addition, under our law, only certain gambling activities are permitted. Notably, online betting may only be conducted via a licensed bookmaker in South Africa, specifically authorised by a Provincial Licensing Authroity to offer online betting services limited to fixed-odd betting, including betting on sports and horse racing.  Online gambling or interactive gambling online is strictly prohibited. Enforcement, of course, is a separate issue especailly in realtion to offshore companies that are not subject to our laws and trading solely online. However, key take aways from the case concerning Kalshi Inc. is that the specific services applied for in trade mark applications could consistute an intention, or even an admission, to trade in relation to those services, because an intention to use a trade mark is a requirement for its registration. It is also arguable that the same representation, or admission, can be made in advertising claims. In Kalshi’s case, many state regulators governing gambling sought restraining orders against the corporation on the basis that the gamification of prediction market services amounted to unlicensed gambling. This included a consideration of its advertising. In South Africa, a parallel can be drawn with the billboard alongside the R21 which states that Hollywoodbets is “SA’s biggest online casino”. The issue was whether this was an admission that the company offers online gambling, which is prohibitied. However, Hollywoodbets claimed that the claim made is intended to show the scale of its authorised services. The National Gambling Board, although steadfast in its view that online casinos or interactive gambling is prohibited, has merely called on the Provncial Licensing Authorities to address the conduct of licensees. However, the National Gambling Policy Council is also reported to be fast-tracking new law intended to address online gambling, amongst other challenges, and the National Gambling Board will reportedly also develop its own regulations to deal specifically with gambling advertising. This will apply in tandem with the gambling advertising appendix to the Advertising Regulatory Board’s Code of Advertising Practice. We are not hedging any bets yet, but watch this space with great interest as government seems to double down on this new wave of regulation.

15 May 2026 South Africans can’t stop saying it: “kyk wat doen ’n blazer”! What started as a single video has turned into a nationwide trend — and potentially something far more valuable: a commercial asset. Goodwill and reputation are invaluable assets in a business.  They are known as the forces that attract custom, the things that make customers choose you over everyone else.  Traditionally, brands earned that recognition through years of advertising, consistent use and significant commercial investment. Reputation was something built slowly - campaign by campaign, sale by sale.   Enter the blazer.  And a goue tekkie.   In today’s digital economy, a single viral moment can create more public recognition in 24 hours than traditional advertising campaigns achieve in years.  A phrase, logo, image, or brand can explode across TikTok, X, Instagram, or YouTube overnight, instantly embedding itself in public consciousness and potentially generating enormous commercial value.   The viral storm around “Kyk wat doen ’n blazer” is the perfect example of this shift. What began as a video posted by social media influencer Farming Blonde in March 2026 to promote the launch of her local clothing line has, within days, swept across South Africa, generating instant virality, with many brands joining the conversation.     The entire country is now “kyking wat doen ’n blazer”, and in the process the brand has gained immediate traction and widespread recognition.   This raises an important trade mark question: can a brand acquire protectable goodwill overnight?   Traditionally, building that protectable consumer recognition meant incurring extensive use and advertising spend.  It was considered as needing long-standing market presence and significant sales figures.  But virality disrupts the traditional formula. A business no longer necessarily needs years of investment to achieve widespread consumer recognition and the goodwill that goes hand in hand with that.  It may well be the case that one viral clip, celebrity moment, meme, or trending hashtag could be enough.   Whilst virality does not automatically translate into enforceable rights, it does change the speed at which enforceable recognition can arise.   Consumers engage with viral content voluntarily, share it rapidly, and emotionally connect with it in ways that paid advertising often struggles to achieve.  The power of virality cannot be overstated and IP rights that come into existence as a result, must not be underestimated.   The peculiarity of a viral moment is of course that there is no way of knowing the brink of success.  Farming Blonde could not have foreseen the substantial impact this one video would have and the value it would add to her business.   Today it’s a viral slogan. Tomorrow, it could be a protected brand. Kyk nou net wat doen ‘n blazer!   By Werina Griffiths (Partner) and Nontando Tusi (Senior Associate)

2 May 2026 - Adams & Adams has been named Africa Firm of the Year for the second consecutive year at the 2026 Managing Intellectual Property (IP) Awards for Europe, the Middle East and Africa (EMEA), which was hosted in London on 2 May. The accolade cements the firm’s leadership position in IP law across the continent. In addition to retaining the top continental honour, the firm was presented with three further awards, reflecting the breadth of its expertise across multiple jurisdictions and practice areas. Adams & Adams was named South Africa Trademark Firm of the Year, reaffirming its market-leading trade mark practice since its previous win in the category in 2021. Adams & Adams also received the South Africa Impact Case of the Year award for Yossi Barel v Popular Trading CC – an acknowledgement of the matter’s legal significance in the market and the decisive outcome that the firm secured for its client. Recognising the firm’s multi-jurisdictional litigation ability, Adams & Adams was named in the Europe Cross-Border Patent Litigation Team of the Year award, for the Astellas (Xtandi) proceedings against generics. "Back-to-back recognition as Africa Firm of the Year at the Managing IP Awards is a powerful validation of our team’s technical expertise in trade marks and patents, delivered consistently at the highest level. We are proud of our achievements at this year’s event, which reflect our investment in our people and capabilities as we continue to be a trusted partner to clients navigating an increasingly complex IP environment,” says Jac Marais, Chairperson of Adams & Adams. The Managing IP Awards are widely regarded as one of the most authoritative benchmarks of excellence in the global IP profession. Winners are selected through a rigorous research and review process, incorporating detailed firm submissions, peer and client feedback, and independent analysis of case work and market impact.

South Africa is a constitutional democracy, which means that it is a country which observes human rights principles and is governed by the rule of law.All decisions taken by State organs must promote, and not frustrate, constitutional principles. In 2018, the then President of the Republic of South Africa established a commission of enquiry into allegations of State Capture, Fraud and Corruption. From the work of this commission, it was envisaged that several commercial crime matters would find their way to the commercial crimes court. In 2019, the NPA elected to remove all criminal matters emanating from the seizure of counterfeit goods from the commercial crimes court roll. The main rationale behind this decision was to free the commercial crimes court roll in preparation for the criminal matters that would flow from the work of the commission. It was accepted by brand holders and their legal representatives that the NPA would ensure that the required training and transfer of knowledge would take place to ensure that the Regional Court Prosecutors were sufficiently equipped to deal with Intellectual Property Crimes. However, it is clear that this never happened. The Complainants in counterfeit goods criminal matters are often companies that own registered trade marks. These companies are entitled to enjoy various applicable rights in the bill of rights (chapter 2 of the constitution), including the right of access to justice. In this regard, Section 8(4) of the Constitution provides: “A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person”. It is settled legal principle that a juristic person is an entity with a separate legal personality and with a capacity to hold rights and responsibilities. Companies have separate legal personality and have a capacity to hold rights and responsibilities. Therefore, they qualify as juristic persons. Companies,  as juristic persons, are entitled to applicable rights in the bill of rights, including the right of access to justice. Section 34 of the Constitution provides that “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” The Human Rights Commission, in its pamphlet of 15 April 2024, dealing with the promotion of access to justice, stated that the right of access to justice involves bringing a matter before a relevant court and for the matter to be adjudicated fully, with fairness and expeditiously. In the context of criminal matters, this means that the Prosecutors on behalf of the State must be able to prosecute competently and expeditiously. The same principle applies with equal force to presiding officers when they adjudicate on criminal matters. In the case of Social Justice Coalition and Others v Minister of Police and Others [2022] ZACC 27, the Constitutional Court grappled with the question of whether it has the power to grant declaratory relief in incomplete proceedings before another court where there has been an unreasonable delay in finalising proceedings on the basis that this is in conflict with Section 34 of the Constitution. The Court held that “The right to access to court is more than simply the right to approach a court and initiate a case in support of a justiciable dispute. The object of going to court is to secure a decision on a dispute and the language of section 34 expressly extends to the right to have a dispute decided. Similarly, the process by which a decision is reached is also covered by the right in its reference to a ‘fair hearing’. Put differently, section 34 is a right that guarantees access to court to have a dispute decided in a fair public hearing.” The court further held that “It must follow that, if section 34 is to have its proper effect it must be interpreted as both encompassing a right to bring a dispute to court, a right to have it litigated to finality and a right to have it decided. All the components of the litigation process are meant to flow seamlessly into each other, and they all collectively give expression to the right of access to court. No single component is more important than the other.” Finally, on this score, the court held that an unreasonable delay on the adjudication of a matter may well, in certain situations, result in an infringement of the right of access to a court. The general feeling has been that criminal cases pursued under the Counterfeit Goods Act were finalised more expeditiously in dedicated Commercial Crimes Courts. It would be unfair to place the blame for such delays only at the feet of the Court Prosecutors themselves.  With limited recourses, the Regional and District Court Prosecutors are already inundated with “conventional” criminal cases assigned to them. Prosecuting offences under the Counterfeit Goods Act involves aspects and knowledge of various pieces of legislation including the Trade Marks Act, The Copyright Act, and, in some instances, the Customs and Excise Act. From the above, it is clear that proper training by the Commercial Crime branches to Regional and District court prosecutors should have formed part of the process in transferring the mandate to prosecute these matters. There is no indication that this will happen soon. A recent News Article published by The Citizen News on 26 October 2024, revealed that the South African Police seized more than 6000 counterfeit items, valued over R3 million, in Johannesburg CBD (Police seize counterfeit goods worth millions in Joburg CBD). The Constitutional Court in the abovementioned case has made it abundantly clear that unreasonable delay in the adjudication of matters, in appropriate circumstances, may constitute an infringement of a litigant’s (in this case a Complainant’s) right of access to justice in terms of section 34 of the Constitution. Even though criminal matters are between the State and the Accused persons, Complainants generally have a legal and a vested interest in the cases. It can be further argued that this legal and vested interest is more pronounced in counterfeit goods matters because the Complainants/trade mark proprietors incur storage costs of seized counterfeit goods until such time that the criminal matters are finalised, as required by the Act. Whilst brand holders are battling to fight the unending influx of counterfeit goods in the South African market, the above arguments raise real concerns and thoughts on whether the prosecution process serves and protects the interest of brand holders in the best possible way.