Amendment To Exchange Control Regulations Causes A Stir

For many years the Financial Surveillance Department of the South African Reserve Bank (FSD), which administers exchange controls, has taken the view that intellectual property may not be exported without their approval (and, it must be said, approval was not readily forthcoming). The FSD relied on regulation 10(1)(c) of the exchange control regulations which states that no person may, without permission, export any capital or the right to capital.

Last year in the case of Oilwell Proprietary Limited v Protec International Limited, the Supreme Court of Appeal (SCA) held that an assignment of a trademark to a foreign company was not a breach of regulation 10(1)(c). (It will be noted that the FSD and the Minister of Finance were not parties to this litigation. The parties were the two contracting parties, and one of them sought to have the assignment set aside on the basis that it was in breach of regulation 10(1)(c).) The SCA held that the trademark remained in South