Enforcement

The Commission’s ENFORCEMENT objective in relation to the Companies Act, No 71 of 2008, section 186 (1) (e), is to ensure the efficient, effective and widest possible enforcement of this Act, and any other legislation listed in Schedule 4 of this Act.

As the Commission is the custodian of the Companies Act, No 71 of 2008, the Commission’s Enforcement arm intends to provide leadership in its enforcement approaches which will be executed in terms of the legislative provisions outlined hereunder.

It needs to be mentioned that the Companies Act, No 71 of 2008 allows the Commission to continue investigations pending under the Companies Act No 61 of 1973 and also provides for the Companies and Intellectual Property Commission (CIPC) to exercise any power of the Minister or the Registrar of Companies to investigate any breach of that Act, subject to the fact that the breached must have occurred during the period of three years immediately before the effective date.

Alternative Dispute Resolution

In terms of terms of the Companies Act, No 71 of 2008, provision is made in sections 156, 157, 159 and 166 and 169 for alternative dispute resolution procedures.

A person as provided for in section 157(1) may seek to address an alleged contravention of this Act, or enforce any provision, right, transaction or agreement contemplated in terms of this Act or Memorandum of Incorporation (MOI) or rules through alternative dispute resolution by the Companies Tribunal or accredited agency, provided it is within three years after the act or omission causing the complaint.

If the Companies Tribunal or accredited entity has resolved, or assisted parties in resolving a dispute, it may record the resolution in the form of an order, and if the parties consent to that order, submit it to a court to be confirmed as a consent order.

The application for a consent order must be heard by the court. The court may make the order as agreed and proposed in the application, make changes to the draft order before making it an order of the court; or refuse to make the order.

A confirmed consent order may include damages; and only when the confirmed consent order includes an award of damages that person can apply for an award of civil damages.

A court may order the proceedings closed to the public if confidentiality is in the interest of the parties.

Intellectual property (IP) enforcement

When a right holder discovers that his intellectual property (IP) rights have been infringed, or are about to be infringed, the focus of his attention shifts. He may have previously concentrated on how to obtain and make use of his respective rights, but now his attention will concentrate on making sure that the rights he has obtained through the IP system are respected. This includes stopping unauthorised use, deterring future infringements, and obtaining recovery for damages resulting from the infringing act.

An effective IP enforcement regime depends on a number of different elements. As a result, IP enforcement policies may encompass a range of different issues. IP enforcement may concern details of civil procedure, available remedies, structure and specialisation of courts and appellate bodies, cost of litigation and legal advice.

Additionally, alternatives to court procedures, such as arbitration or mediation, assistance for right holders in enforcing their rights, and technological measures that right holders may take to prevent others from illegal uses of their IP rights, may be relevant. Also relevant may be criminal sanctions, and the role of customs services. In order to enforce their IP rights successfully, the right holder therefore has to take into account a large number of legal issues and practical considerations.

Entities involved in the enforcement of IP rights

Essentially, intellectual property rights are private rights. It is therefore the primary responsibility of the right holder to seek remedies in order to protect those rights. They must monitor the activities of competitors as well as developments in the marketplace, and take action to stop any infringement of rights or obtain recovery of losses.

In serious cases, however, in particular when the infringement of IP rights is intentional and for commercial purposes, many countries will consider such infringements to be criminal, and therefore also provide for action to be taken by the respective authorities.

Accordingly, effective enforcement may require the involvement of a number of persons or entities, such as attorneys, judges, customs, police, prosecutors, administrative authorities, and, in the area of copyright, collective management societies. In many countries, it may also be possible to obtain information and assistance through contacting national organisations or right holder associations concerned with fighting counterfeiting, piracy and other forms of intellectual property infringement.