BLOGS

Allowed to Sign Electronically

The Electronic Communications and Transactions Act 25 of 2002 governs that standard business and commercial agreements may be signed electronically. All that this electronic mark requires is an identification of the signatory, their approval of the contained information, and this mark may be any type of scanned or digital signature.

This exists a grey area for agreements that MUST be signed, but an electronic signature is still allowed. For example, a suretyship agreement that binds a person to the debt of another, may be signed with an Advanced Electronic Signature. This special signature is a more secure, digital device that has been accredited by the Department of Communication.

Contracts That Must Be Physically Signed

There are some legal documents that must be physically signed with ink on paper. They are agreements for the sale and transfer of immovable property, leases for a period longer than 20 years, wills, cheques, employee invention agreements and the transfer of intellectual property. This list also includes any contract of donation concluded after 22 June 1956.

Enforceability of Unsigned Contract

But what happens when all the material terms are contained in a contract, but it remained unsigned? Now the day comes for you to demand payment or performance, but the other party refuses by saying they never signed your agreement. Pacta sunt servanda directs that agreements that are seriously entered into should be enforced.

If there have been past agreements for the same transaction, there exists an implied agreement on the basis of your established relationship. If someone has shared a draft agreement, and there follows written negotiations on its terms that are then approved by the other party, this evidence shows implied acceptance of the negotiated terms.

Acceptance by Performance

If either party has already started to perform their obligations under the contract, the courts may deem this as implied acceptance by performance. An example of this is an employment contract. An employment contract does not need to be in writing or signed to be valid. Section 29 of the Basic Conditions of Employment Act 75 of 1997 requires employers to provide written particulars of employment, but not a written contract.

So the moment an individual agrees to perform services for another in exchange for remuneration, a legally binding relationship is formed, even in the absence of a signed document.

The Chery South Africa Rebrand

FROM ICar to ICaur, the new Chery South Africa brand of off roaders, is off to a rocky start. The recent emergence of Chery’s electric vehicle brand under the name iCaur, rather than its original iCar, has sparked understandable curiosity. For many observers, the immediate assumption was that a technology giant, most notably Apple, had stepped in to block the use of the name. After all, the resemblance to Apple’s longstanding branding conventions is difficult to ignore, and in the court of public opinion, that explanation feels intuitive.

Yet from a trade mark attorney’s perspective, the more interesting story lies not in whether a particular corporate giant objected, but in what this kind of rebrand reveals about the realities of modern trade mark strategy.

The Nuance of Trade Mark Law

Trade marks are often misunderstood by the public as straightforward name ownership rights: if you think of a clever name, apply for registration, and if no one else has it, the brand is yours. In reality, trade mark law operates in a far more layered and commercially nuanced way. The viability of a trade mark is rarely determined solely by whether an identical registration exists. Instead, the assessment often involves a broader consideration of similarity, market overlap, consumer perception, distinctiveness, and the practical risks associated with enforcement or opposition.

A name like iCar is particularly fascinating in this context because it occupies legally sensitive territory. On the one hand, it is simple, memorable, and commercially appealing. On the other, it carries all the hallmarks of a mark that may invite scrutiny. The prefix “i” has become culturally associated with technology, connectivity, and digital ecosystems. Coupled with a descriptive word such as “car”, the result is a brand that may be commercially intuitive but legally vulnerable.

Commercial Foresight Over Legal Postscript

This is where the role of trade mark attorneys becomes less about registration mechanics and more about commercial foresight. Businesses often approach branding with creativity first and legal strategy second. That sequence, while understandable, can be expensive.

What makes the Chery situation compelling is not necessarily the speculation surrounding who may or may not have stood in opposition, but rather the strategic response. Rather than forcing a potentially contentious brand through uncertain legal terrain, the apparent decision was made to adapt. From an intellectual property perspective, that is not a concession, it is strategic maturity.

Building Legally Resilient Brands

Trade mark law is often perceived as restrictive, as though its purpose is merely to tell businesses what they cannot do. In practice, effective trade mark counsel serves a far more constructive function. The objective is not simply to identify risk, but to preserve commercial momentum while ensuring that a business invests in a brand it can confidently build around.

A rebrand at launch stage may seem inconvenient. A rebrand after substantial market penetration can be devastating. This is why trade mark strategy should never be treated as an administrative afterthought.

Whether Apple had anything to do with the transition from iCar to iCaur may ultimately be less important than the lesson the situation offers. In a global marketplace crowded with overlapping innovation, memorable branding alone is no longer enough. The strongest brands are not merely creative, they are legally resilient.

Unregistered and operating in isolation, a "trading name" leaves your business completely exposed to legal entanglements, fines, and forced shutdowns.

Since its inception, the Consumer Protection Act 68 of 2008 has created an abundance of rules and regulations specifically aimed at aiding and protecting the consumer. However, the Act goes much further by protecting consumers from fraudulent business practices, defective products, and dangerous goods and services.

This objective becomes clear as you peruse the Consumer Protection Act, which sets up extensive administrative structures and provisions dealing with the strict obligations of businesses.

Section 79(1) of the Consumer Protection Act states that a person will no longer be allowed by law to trade, advertise, promote, sell, or enter into transactions under any name unless it is their full identity document name or the business's formally registered name.

The second requirement demands that a business name must be officially registered to, and for the use of, that person in terms of Section 80 or any other public regulation. It is equally important to look at Section 11 of the Companies Act 71 of 2008, which sets out strict requirements for any company wishing to register a name with the Companies and Intellectual Property Commission (CIPC).

The Companies Act explicitly prohibits registering a business name that matches or is confusingly similar to an existing company name, a close corporation, a co-operative, or a pending or registered trade mark belonging to someone else.

From the statutory framework and common legal practice, it is evident that name disputes can be filed easily whenever a brand name overlaps with an existing corporate identity or a well-known trade mark.

The illusion of safety in "Trading As" conventions

Many businesses mistakenly believe that simply appending a "trading as" name to their registered company gives them the right to use it.

For example, if a registered company is called “Peter Knows Best (Pty) Ltd trading as Peter XYZ”, the name “Peter XYZ” cannot just exist in a vacuum—it must be properly vetted and legally registered as the business name of “Peter Knows Best (Pty) Ltd”.

Therefore, it is highly prudent for business owners and current brand holders to register formal trade marks for their operational business names, and most importantly, for their "trading as" names.

Warning: Using a trading name in isolation without formal registration leaves your brand entirely ungoverned.

Securing long-term business resilience through registration

Operating an unregistered trading name in isolation presents massive operational vulnerabilities. If another entity claims the statutory rights to that name, you will instantly find your business entangled in costly "passing off" allegations, regulatory fines, and disruptive legal proceedings.

Trade mark registration should never be viewed as a mere administrative afterthought. It is the definitive mechanism that secures your commercial identity, protects your marketing investment, and ensures your long-term business scalability.

Conclusion

Do not leave your business open to unnecessary vulnerability. The strongest corporate structures are built on foundations that are legally resilient.

Ultimately, a business often discovers far too late that what sounded like a perfect marketing concept can have severe financial consequences if it isn't legally protected.

The Ship of Theseus is philosophy's oldest paradox, and interestingly enough, it poses the same issues intellectual property lawyers wrestle with today.

Basically, it's asking: “if something wears down a bit at a time over the years, is it the same thing?” But let us start with some background—Who Was Theseus?

Theseus was the legendary Greek hero most widely known to have slain the Minotaur and united Athens under one hand. His deeds made him an object of civic pride, and his ship was retained by the Athenians in commemoration of his victories.

The ship was displayed in Athens for centuries as a museum artifact. But with time, the wooden planks of the ship decayed. Athenians replaced every plank with a new one to save it. Years went by, and all of them had been replaced.

Philosophers subsequently started asking: was it then the Ship of Theseus? If identity comes from continuity and past, then yes it can be regarded as the same ship, blessed by tradition. If identity comes from its material building blocks, then no it is a completely new ship.

Now you are probably asking yourself, why does this philosophical analogy matter for Intellectual Property?

Brands and Trademarks

Logos shift, slogans do, packaging redesigns, but the brand identity persists because of consistency of reputation and goodwill.

Patents and Innovation

Inventions are usually renewed through improvement and modifications. Under what circumstances is a renewed product no longer the original invention that is covered by a patent?

Copyright and Creative Works

Books are translated, films remastered, songs re-recorded. Each is both the "same" work and something new. Copyright identity depends upon originality and connection with the author's expression.

Software and Digital Assets

Software keeps being patched up and updated. Is it still the same program? The question of continuity remains relevant when assessing adaptations and modifications.

You see how we brought these two worlds together? Philosophy and Intellectual Property. Very mindful.

Lessons for clients

1. Continuity is paramount: Legal protection normally stems from the continuity of a work, invention, or brand, even as it changes.
2. Record modification: Keeping records of updates and modifications creates evidence of ownership and continuity.
3. Anticipate contention: Companies can anticipate arguments over whether something is "new" or "the same" and IP law provides the vehicle to settle them.

Conclusion

The Athenians preserved Theseus' ship for the sake of their heritage. Today, we are faced with the same question in intellectual property: how do we preserve and define things that shift, bit by bit, over time?

Therefore, next time you modify a long-standing asset, ensure your legal strategy evolves alongside your execution. Identity is built over time; make sure you build it on a foundation you can defend.

Arbitration has become an increasingly popular method for resolving disputes, especially in commercial and contractual matters. While it offers flexibility, speed, and expertise, understanding the exact wording of your dispute clauses is critical.

When drafting contracts, parties often include dispute resolution clauses to specify exactly how conflicts should be handled. These clauses usually state that the parties “may” or “must” refer disputes to arbitration—two small words that carry massive legal consequences.

The Impact of "May" vs "Must"

"May" Refer to Arbitration: This wording gives the parties an option but does not make arbitration mandatory. The parties retain the right to choose whether to refer the matter to arbitration or pursue litigation in court.

"Must" Refer to Arbitration: When a contract states that the parties "must" refer the dispute to arbitration, it makes arbitration a binding and exclusive mechanism for dispute resolution.

What happens if you proceed straight to court despite a "must" clause? The other party can file an application to stay the proceedings. If the court finds the arbitration agreement valid, it will halt the lawsuit and refer you straight back to arbitration.

Does Arbitration Limit Access to Court?

The short answer is yes—especially if the clause uses the word "must." However, it does not entirely eliminate the role of the judiciary.

1. Review Arbitration Awards: A party can approach the court to set aside an award in appropriate circumstances.
2. Provide Interim Relief: Parties may seek urgent relief from the court while arbitration is ongoing.
3. Enforce Arbitration Awards: If a losing party fails to comply with an arbitration award, the court may need to be approached to enforce it.

The Reality of Arbitration Costs

One critical factor that parties must consider when agreeing to arbitration is the budget. While arbitration is praised for its speed, it can also be substantially more expensive than standard litigation.

1. Arbitrator’s Fees: Highly skilled professionals with specialized subject-matter expertise charge professional rates.
2. Venue and Administrative Costs: Boardroom rentals, recording services, translation services, and transcription may all be paid for by the parties.
3. Legal Representation: Complex arbitrations still require experienced legal teams.

Warning: While arbitration offers agility and privacy, it is not a cost-free shortcut. The wording of a single clause can have significant consequences.

Conclusion

Arbitration offers a stellar alternative to traditional court litigation, but it is not without its strategic complexities. The choice between a "may" and a "must" clause dictates your legal path long before a dispute even arises.

At Brits Law, we are specialists in commercial law and can guide you through the complexities of arbitration—from drafting precise dispute resolution clauses to representing your business in active proceedings.

From human lyrics to algorithmic beats, a fresh South African music project forces us to rethink the boundaries of modern creativity.

AI is changing the creative world fast. You see it everywhere especially in music, where algorithms now help write songs and even perform. People are talking about what this means for artists, audiences, and the rules that hold it all together. In South Africa, there’s a fresh example: Jakkals Vibes. This project blends human songwriting with beats and production shaped by AI.

Jakkals Vibes forces us to rethink what it means to create something new, stay true to your roots, and be honest with listeners who connect emotionally to music. This piece digs into those questions, looking at Jakkals Vibes from the angles of copyright law, moral philosophy, and the shifting dynamic between people and their digital partners.

The core setup is pretty straightforward: a South African artist writes all the lyrics, but lets AI handle the beats, arrangements, and sound engineering. The project’s done well, it's registered with SAMRO and hit some high marks on local streaming charts.

What makes it interesting is how it blurs the line between human and machine. The goal isn’t to replace people, but to let AI boost what the artist can do. Think of AI as a high-tech bandmate or producer, not the star of the show. Still, while insiders see this division clearly, most fans probably don’t realize how much of the music’s sound comes from AI. That gap matters. It affects how people view the music’s authenticity and the artist’s role.

People care about authenticity in music. At its best, music feels personal, deeply human, and rooted in shared emotion and cultural identity.

With Jakkals Vibes, the lyrics come straight from a person, but the emotional feel of the music is shaped by algorithms. So, are fans connecting with genuine feelings, or just a clever copy? The question gets trickier when listeners start to bond with the artist, not realizing how much of the sound is automated. That can lead to confusion about what or who they’re actually celebrating.

South Africa’s music scene adds another twist. Genres like amapiano, maskandi, and gqom all carry deep cultural stories. If AI starts cranking out these sounds without understanding where they come from, there’s a real risk of losing something important or even crossing the line into cultural appropriation. Anyone using AI in this space has to be upfront about it and show respect for the roots of the music.

Ownership, originality, and the statutory human requirement

South African copyright law is pretty clear: only humans can be recognized as authors. The Copyright Act says you need real, human input to protect a work. AI can’t own anything—it is just a tool. Although some may argue that AI generated material falls within the ambit and definition of a computer programme / software entailing that the person responsible for the input and receiving a specific outcome will be considered the owner of that output work, there is still some lively debate pertaining to this interpretation in our law.

With Jakkals Vibes, the human artist owns the lyrics, hands down. But things get murkier with the music and sound itself. If AI played a big role in creating the track, the person who guided the AI (or maybe the producer) gets the credit as author. The law says whoever makes the key creative calls owns the rights.

There’s also another issue: originality. AI tools learn from massive piles of existing music. Sometimes, without meaning to, they might spit out something that’s a little too close to somebody else’s work. That opens up a whole new set of copyright headaches for anyone using AI to make music.

Warning: Until South Africa’s copyright regime is amended to address AI-assisted works explicitly, legal uncertainty will persist for creators.

Why performance rights and human connection still matter

Once you bring AI into music, performers’ rights get tricky fast. Traditionally, these rights protect how a human brings a song to life—their own spin, their presence, the way they connect with an audience. But when AI steps in, suddenly there’s no real person interpreting the work. That makes the old rules feel out of step.

Take Jakkals Vibes, for example. Sure, there’s a human songwriter behind it, but the whole identity, the sound, the branding, that digital vibe people see online, is tightly woven with AI. As Jakkals Vibes gets bigger, fans start wanting live shows, interviews, maybe some behind the scenes moments. But AI can’t step onto a stage or chat in real time. So what happens then? Should people know upfront if they’re seeing an avatar, a hologram, or maybe just a stand-in? If you don’t tell them, it starts to feel dishonest, maybe even misleading. In turn, the essence of what makes art, music, and creative works special falls through the floor due to a lack of human connection eliciting a specific emotion.

There’s another layer, too. The voice and look of an AI persona can become valuable on their own. Suddenly, you’re dealing with trademark issues, personality rights, and the risk of someone passing off a copycat as the real thing. The law needs to catch up and figure out how to tell the difference between living, breathing performers and digital creations, especially when money’s on the table.

Securing the future of South African musical heritage

South Africa needs a clear plan here. AI’s only going to get more involved in music, and creators and listeners deserve some ground rules. The law should spell out who owns what in AI-assisted music, set standards for crediting work, and make sure fans know when AI’s in the mix.

One obvious fix: require artists and producers to come clean when AI plays a significant role in creating or performing a song. That kind of honesty helps people make real choices about what they support, and keeps the cultural scene genuine.

There’s also the bigger picture. South Africa’s musical heritage matters, and it’s easy for AI to take without giving back. Lawmakers and cultural leaders need to make sure that when AI learns from traditional music or community songs, it does so with proper permission and fair sharing of any benefits. If AI-generated culture wants to stand on solid ground, it should respect the people and traditions it borrows from.

Jakkals Vibes shows both the thrill and the messiness of AI in music. While technology blows open what artists can do, it creates entirely new moral and legal headaches. Ultimately, the music industry can’t forget the human spirit behind the art, and the law needs to stand up for the deeper values that give music its staying power.