A business takes place within a specified legal context especially at the time its complete analysis, which is strictly regulated by law. The law that has been formulated and implemented for constraining the activities of a business is known as the business law (Kelly, Holmes & Hayward, 2005). The paper is organized in such a manner that proper information about the specific elements of the business law can be attained. Firstly, a precise analysis of South Africa’s legal structure will be conducted. It will be done so that the country’s three pillars, involving judiciary, legislation and executive can be assessed. Secondly, the question of an employer’s requirement will be discussed so that the businesses’ requirements can be understood. Thirdly, the country’s law that has been formulated around the contract is to be discussed and lastly, the IP (intellectual property) is analyzed. The scene involves an American retail brand, which is aiming to operate its business in South Africa. The aim of this paper is to distinguish in details all the legal specifications that are associated with the business law.
Legal aspects are actually an important part in the society, which aims to provide specified rules for individuals and businesses. There is a huge impact of the law on every possible aspect of the business (BPP Learning Media Ltd, 2012). According to Certified Management Accountants of Ontario (2012), “the difference between winning and losing in the business world often depends upon the ability to make good choices from a legal perspective” (Certified Management Accountants of Ontario, 2012). This precisely explains the effect that law has on the business. In order to prevent the business from facing hard choices or meet failures, it is important for an individual firm intending to operate a business in South Africa to have a global perspective towards the business-related laws. This can further enable the organization to establish in the international markets such as South Africa. Firstly, the legislation of the South African government constitutes the National Legislature or the Parliament. It actually possesses the ultimate legislative authority of South Africa that has the supreme power of formulating laws on the basis of the country’s constitution. The parliament of South Africa consists of the National Council of Provinces (NCOP) and the National Assembly. The work of the National Assembly is to ensure the fact that the rights of the people are protected. Moreover, it looks after the fact that democratic governance is executed in the country as stated in the Constitution. The laws that are formulated and implemented by the legislation ensure to encourage people’s participation in it(Government of South Africa, 2018). The retail brand can get highly affected by the laws that are formulated by the legislature. One such example is the South African Retail Council (SARC). It aims to focus on the labour relations and legislative affairs of the retailer. The benefits that are provided by SARC involve three factors. They are, networking, advocacy and resources and information (Gauteng Province, 2012).
The judiciary of the country is completely independent and is responsible to formulate laws and the Constitution. South Africa’s Constitution provides special allowances to some courts such as the Constitutional Court, high courts, Supreme Court of Appeal (SCA), Magistrate’s and other courts. Moreover, the judiciary system of South Africa has the presence of varied special courts and that involve the Land Claims Court, the Electoral Courts, equality courts, the Labour Court, Military Courts, and the Labour Appeal Court. (Brand South Africa, 2017). The judiciary of the country tends to maintain the equality among its residents, which makes it evident that the retailers would definitely enjoy the freedom of being equally treated in the country (The Nielsen Company, 2017).
The executive authority of South Africa depends on two dimensions and that involve Cabinet and the Presidency. The Cabinet is formed with the President as its head along with the ministers and the Deputy President. The President appoints the members, allocates them power and also bears the authority of dismissing them. On the other hand, the Presidency is at the center of the South African government system. There are five distinctive political principles that are involved in the Presidency and they are the President, the Minister of Planning, the Deputy President, the Deputy Minister of Scheduling, Monitoring and Assessment, and the Minister of Women (Government of South Africa, 2018 a). The executive system of South Africa lays emphasis on the common law. It tends to create equality among the institution’s operations in the long run (PWC, 2012).
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Applicable Legal Concepts in the Business |
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· Legislature is based on the Parliament |
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· Judiciary depends on Constitutional Court, high courts, Supreme Court of Appeal, Magistrate and other courts |
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· Executive relies on Cabinet and the Presidency |
Summary Table 1: Applicable Legal Concepts
There is an obvious need for an employer in the business to comply with the legal requirements in order to establish a significant position in the market. The common law that is prevalent in South Africa ensures the fact that the employer is attributed with responsibilities so that proper care and safety is provided to its employees. Basically, safety and health-oriented issues of the employees cannot be controlled by the trade union parties and hence understanding its necessity is highly essential for the betterment of the company and the employees. Furthermore, there are some contracts that are to be signed and maintained between the employer and the employee, as that alone takes the responsibility of sustaining healthy relationships between them. Although the common law makes sure that the employer looks after the well-fare of the employees it does not indicate that the safety measures can be effectively undertaken by the employers of every company. This signifies the fact that in some cases, the injured employees cannot claim damages against the employer, which is normal according to the contract of employment (Tshoose, 2011). The employment law that exists in South Africa provides some restrictions to the organizations that are operating at that place. For example, the country emphasizes avoidance of any kind of sexual harassment in the office. Furthermore, the employment law focuses on proper eradication of the corruption as well as the laundering of money within the institution (Botes, 2018).
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Employer’s Requirement |
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· Common law emphasizes on the existence of the employer |
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· Contracts are required to be signed by the employer |
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· Requirements such as maintenance of employees’ safety needs in the presence of employers |
Summary Table 2: Employer’s Requirement
A business contract is signed so that legal rights and duties are incorporated so that would benefit the parties and this specific reason makes it obligatory for the parties to abide by it (Oxford University Press, n.d.). The contract Law that exists in the country tends to look after the preservation of the consumer rights. The retail brand that intends to establish its business in the country needs to understand the fact the contracts that are to be signed in the country will be aimed towards the maintenance of the customer’s interest. Contracts are formulated by the Tribunals so that even the suppliers of the institution are kept under some sort of restriction (BrandSouthAfrica, 2012, Jul 10b).
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Contract |
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· Formulating legal rights |
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· Incorporation of legal rights and duties |
Summary Table 3: Contract
The import control law that is present in the country is to be abided by the external exporters. Basically this law is important for a specific reason and it involves the controls and the regulations that remains imposed on the external operators (The International Trade Administration (ITA) (n.d.). Therefore, it can be understood that proper agency is to be located by the company so that no issues are faced by it in advertising.
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Agency |
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Abide by Import Control Law |
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Agency is an essential factor |
Intellectual property is actually the knowledge and skills demonstrating creativity and initiative of the individuals (WIPO Publication, n.d.). There are basically four varieties of intellectual property and that involves copyright, trade secrets, patent, and trademark (Purvis, 2018). The South African intellectual property (IP) laws are linked with the Trade Marks Act, the Patents Act, the Plant Breeders’ Rights Act, the Copyright Act, and the Design Act. This particular legislation together with the decided case law and common law formulates the rights that are granted to the owner of intellectual property. Moreover, there are other various other IP laws followed in South Africa such as registered designs and plant breeders’ rights (Crown, 2016). The acts that are involved in the intellectual property are the ones that signify the preservation of the secrets of the retail company. The company has to abide by all the acts that are prevalent in South Africa so that its originality is maintained
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Intellectual Property |
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· Intellectual property is the knowledge and skills defining creativity |
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· Four main types of intellectual property i.e. copyright, trade secrets, patent, and trademark |
Summary Table 4: Intellectual Property
The tort law is applicable to the product liability of the company that is interested in pursuing operations in South Africa. Any kind of negligence shown towards the product liability can bring in claims from the consumers and that in turn will largely affect the retail company (Strydom, 2012).
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Tort Law |
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Product Liability |
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Claims from the consumer |
The findings that have been attained by evaluation of the topics make it certain that the laws and regulations that are prevalent in the country are necessary to be abided by the retail brand so that no issues are faced by the external company within the country’s boundary.
The recommendations that can be provided is that starting from the legal law to the law of torts, each and every law has to be properly focused so that the retail brand can be easily established in South Africa. Each law has hints of international and legal arrangements for the institutions in the company and that is the reason as to why all of these are mandatory for the company to abide by.
Conclusion
Proper evaluation of South Africa’s legal system will ensure benefits for starting an organization in it. In order to start a business, it is important to understand the country’s laws in a detailed manner. Starting from discussions about the three pillars of the South African government to the intellectual property laws of it, everything needs to be understood and properly aligned with the requirements so that success can be attained by the organization in the South African market. An American company to properly operate in an international market such as South Africa requires the understanding of all these laws, policies and procedures in details and that too in a precise manner.
References
BPP Learning Media Ltd. (2012). Fundamentals of business law. CPA Australia, 1-277.
Certified Management Accountants of Ontario. (2012). Business law notes. CMA, 1-160.
Crown. (2016). Intellectual property guide South Africa 2016. Intellectual Property Office (IPO), 3-14.
Department of Economic Development and Tourism. (2010). What you should know about Contracts. Western Cape Government, 1-16.
Government of South Africa. (2018 a). Executive authority (president, cabinet and deputy ministers). Retrieved October 7, 2018, from https://www.gov.za/about-government/government-system/executive-authority-president-cabinet-and-deputy-ministers
Government of South Africa. (2018). National legislature (parliament). Retrieved October 7, 2018, from https://www.gov.za/about-government/government-system/national-legislature-parliament
Kelly, D., Holmes, A., & Hayward, R. (2005). Business law. Great Britain: Cavendish Publishing Limited.
Oxford University Press. (n.d.).The nature and importance of contract law. OUP, 1-10.
Purvis, S. A. (2018).The fundamentals of intellectual property for the entrepreneur, Department of Commerce, 1-29.
Tshoose, I. C. (2011). Employer’s duty to provide a safe working environment: a South African perspective. Journal of International Commercial Law and Technology, 6, 1-12.
WIPO Publication. (n.d.).What is intellectual property?. World Intellectual Property Organization, 1-25.
Gauteng Province. (2012). The retail industry on the rise in South Africa. Quarterly Bulletin, 1-40. https://www.gauteng.gov.za/government/departments/provincial-treasury/Documents/QB1%20The%20Retail%20Industry%20on%20the%20Rise.pdf
The Nielsen Company. (2017).The rise of the private-label retail category in South Africa. Fmcg and Retail. Retrieved October 20, 2018, from https://www.nielsen.com/ssa/en/insights/news/2017/the-rise-of-private-label-retail-category-in-south-africa.html
PWC. (2012). South African retail and consumer products outlook 2012-2016. South African Edition, 1-52. https://www.pwc.co.za/en/assets/pdf/retail-and-consumer-products-outlook-2012-2016.pdf
Botes, J. (2018). #BizTrends2018: Five trends in employment law we can expect in 2018. Republish Permission. Retrieved October 20, 2018 from https://www.bizcommunity.com/Article/196/727/171972.html
The International Trade Administration (ITA) (n.d.). South Africa – Using an Agent to Sell US Products and Services. Export. Retrieved October 20, 2018 from https://www.export.gov/article?id=South-Africa-using-agent
Strydom, Z. (2012). A critical analysis of strict product liability in South Africa. University of Pretoria, 1-170.
BrandSouthAfrica. (2012, Jul 10b). South African consumer rights and protection. Governance. Retrieved October 20, 2018 from https://www.brandsouthafrica.com/governance/services/rights/south-african-consumer-rights-and-protection
Brand South Africa. (2017, Jul 21). South Africa’s judiciary. Retrieved October 7, 2018, from https://www.brandsouthafrica.com/people-culture/democracy/south-africas-judiciary
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