Comments for Online Legal... http://www.michalsons.com ICT law with Insight Sat, 31 Jul 2010 11:03:52 +0000 http://wordpress.org/?v=2.7.1 hourly 1 Comment on The Consumer Protection Act - a heads up by Nicholas Hall http://www.michalsons.com/the-consumer-protection-act-a-heads-up/1382/comment-page-1#comment-301 Nicholas Hall Mon, 03 May 2010 14:36:55 +0000 http://www.michalsons.com/?p=1382#comment-301 Hi, The Consumer Protection Act will definitely apply in the situations you've mentioned above. The CPA specifically treats franchisees as 'consumers' and so you have the full protection of the Act. I haven't done much research into it, so any answer I give is speculative at best, If you'd like you can contact us at instruct@michalsonsattorneys.com and arrange that we do a full legal opinion on the matter which will lay out your rights and the possible recourse you can take under the Act. Short, unresearched answer is you might be able to challenge the franchise agreement using the the rights conferred in Chapter 2 part G (sections 48 to 52) which deals with the right to fair,just and reasonable terms and conditions. You could also maybe make an argument using Chapter 2 part H which deals with the rights to fair value and good quality products. There is also a section on referral selling (s38) but if I recall correctly it does not apply to franchise agreements. You can check out the Act by clicking on the link in the post above to view the sections I've mentioned. Another consideration you will have to bear in mind is that the Act may not apply to franchise agreements that where entered into before the Act came into effect. A definitive answer that I can give is, you will be able to report this conduct to the National Consumer Commission, when it gets created. They will have the power to review your problems and possibly act on it. Hope this helps Kind regards Nicholas Hi,

The Consumer Protection Act will definitely apply in the situations you’ve mentioned above. The CPA specifically treats franchisees as ‘consumers’ and so you have the full protection of the Act. I haven’t done much research into it, so any answer I give is speculative at best, If you’d like you can contact us at instruct@michalsonsattorneys.com and arrange that we do a full legal opinion on the matter which will lay out your rights and the possible recourse you can take under the Act.

Short, unresearched answer is you might be able to challenge the franchise agreement using the the rights conferred in Chapter 2 part G (sections 48 to 52) which deals with the right to fair,just and reasonable terms and conditions. You could also maybe make an argument using Chapter 2 part H which deals with the rights to fair value and good quality products. There is also a section on referral selling (s38) but if I recall correctly it does not apply to franchise agreements. You can check out the Act by clicking on the link in the post above to view the sections I’ve mentioned. Another consideration you will have to bear in mind is that the Act may not apply to franchise agreements that where entered into before the Act came into effect.

A definitive answer that I can give is, you will be able to report this conduct to the National Consumer Commission, when it gets created. They will have the power to review your problems and possibly act on it.

Hope this helps

Kind regards

Nicholas

]]> Comment on The Consumer Protection Act - a heads up by sunboy http://www.michalsons.com/the-consumer-protection-act-a-heads-up/1382/comment-page-1#comment-297 sunboy Mon, 26 Apr 2010 21:37:42 +0000 http://www.michalsons.com/?p=1382#comment-297 I am a franchisee in the biggest casual and quick dining franchise Company in South Africa. The holding Company of the franchises (there are 14 identities within the group) is not only the main Company, it is the main supplier of food to the franchisees as well. This situation is an example of rather a strong conflict of interest. More and more products that we use in the franchise have now become “licensed products”. These even include bottled water, juice, ice cream (soft serve), etc. This is obviously mainly due to the fact that the manufacturers of these products belong to the Main Company. We are now forced to use these products even if better or similar products are readily available at better prices. Surely this is 180 degrees out from what the consumer protection act and competitions act has in mind? Further to this, the Franchisor has now named their “licensed supplier” for any equipment that you purchase for a revamp. I am for instance restricted to buy stainless steel equipment which is more durable at the coast, versus mild steel products as the mild steel products are manufactured by their “licensed supplier”. The stainless products are to the exactly same spec except it is better quality and more durable, especially at the coast. These bully tactics escalates on abroad front and we need to be able to counter this. I believe the new consumer protection act may give us some respite….How do we go about addressing these issues as well as ensuring that the new franchise agreements (after end of October) conforms to the act? I am a franchisee in the biggest casual and quick dining franchise Company in South Africa. The holding Company of the franchises (there are 14 identities within the group) is not only the main Company, it is the main supplier of food to the franchisees as well. This situation is an example of rather a strong conflict of interest. More and more products that we use in the franchise have now become “licensed products”. These even include bottled water, juice, ice cream (soft serve), etc. This is obviously mainly due to the fact that the manufacturers of these products belong to the Main Company. We are now forced to use these products even if better or similar products are readily available at better prices. Surely this is 180 degrees out from what the consumer protection act and competitions act has in mind?

Further to this, the Franchisor has now named their “licensed supplier” for any equipment that you purchase for a revamp. I am for instance restricted to buy stainless steel equipment which is more durable at the coast, versus mild steel products as the mild steel products are manufactured by their “licensed supplier”. The stainless products are to the exactly same spec except it is better quality and more durable, especially at the coast.

These bully tactics escalates on abroad front and we need to be able to counter this. I believe the new consumer protection act may give us some respite….How do we go about addressing these issues as well as ensuring that the new franchise agreements (after end of October) conforms to the act?

]]> Comment on Privacy law fast tracked by Nicholas Hall http://www.michalsons.com/privacy-law-fast-tracked/3152/comment-page-1#comment-284 Nicholas Hall Mon, 29 Mar 2010 09:01:33 +0000 http://www.michalsons.com/?p=3152#comment-284 Currently there are no laws that relates specifically to the collection and publication of Genealogical records, however the PPI Bill will definitely have an affect on what you are doing. The Bill makes no special provision for genealogy related research and publication, so the Bill as a whole will apply. I suggest you get a copy of the Bill <a href="http://www.michalsons.com/wp-content/uploads/2009/08/protection_of_personal_information_bill_090825b9-09.pdf" rel="nofollow">here</a> and read through it to get a full understanding of the implications. You are going to have to assess how you collect the data and see whether it complies with the new laws. I would recommend reading this <a href="http://www.michalsons.com/protection-of-personal-information-bill-the-implications-for-you/3041" rel="nofollow">article</a> and attending one of our <a href="http://www.michalsonsattorneys.com/how-will-the-ppi-bill-affect-you-2/2586" rel="nofollow">webinars </a>on privacy. Currently there are no laws that relates specifically to the collection and publication of Genealogical records, however the PPI Bill will definitely have an affect on what you are doing. The Bill makes no special provision for genealogy related research and publication, so the Bill as a whole will apply. I suggest you get a copy of the Bill here and read through it to get a full understanding of the implications.

You are going to have to assess how you collect the data and see whether it complies with the new laws. I would recommend reading this article and attending one of our webinars on privacy.

]]> Comment on Privacy law fast tracked by Isebelle http://www.michalsons.com/privacy-law-fast-tracked/3152/comment-page-1#comment-282 Isebelle Sun, 28 Mar 2010 18:09:21 +0000 http://www.michalsons.com/?p=3152#comment-282 If a genealgoist researches a family tree or line, does this law prohibit the publishing online, or in hard copy information of living people, relatives or people not connected to the researcher. In other countries publication of such information is limited to a 50 Privacy, or 100 year privacy protection. Please be so kind as to enlighten the Sa Genealogy population as to where they stand. I for instance am in charge of of the imaging or the procuring of records at State Archives, Church Archives and other sources for free research on our website. What years in South Africa would be the cut off point.? Thank you If a genealgoist researches a family tree or line, does this law prohibit the publishing online, or in hard copy information of living
people, relatives or people not connected to the researcher. In other countries publication of such information is limited to a 50 Privacy, or 100 year privacy protection.
Please be so kind as to enlighten the Sa Genealogy population as to where they stand.
I for instance am in charge of of the imaging or the procuring of records at State Archives, Church Archives and other sources for free research on our website. What years in South Africa would be the cut off point.? Thank you

]]> Comment on The Consumer Protection Act - a heads up by Nicholas Hall http://www.michalsons.com/the-consumer-protection-act-a-heads-up/1382/comment-page-1#comment-279 Nicholas Hall Fri, 26 Mar 2010 13:11:18 +0000 http://www.michalsons.com/?p=1382#comment-279 Section 51(j) talks about "depositing" the identity document. So long as the customer is not required to physically hand over the ID document to the supplier for keeping, the agreement won't be illegal. The scheme you described above is fine, your only using an ID number to generate an account, you are not actually keeping the person physical copy of the ID. Be aware that an ID number will fall under the definition of "personal information" under the Protection of Personal Information Bill (which is due to be enacted this year). When this Bill is enacted you will have to consider how you are processing this information, and may be required to change your processes, as it may fall foul of the Bill. For more information on this topic I suggest looking at some of the articles found <a href="http://www.michalsons.com/category/privacy" rel="nofollow">here</a> Hope this answers your question. Regards Nick Section 51(j) talks about “depositing” the identity document. So long as the customer is not required to physically hand over the ID document to the supplier for keeping, the agreement won’t be illegal. The scheme you described above is fine, your only using an ID number to generate an account, you are not actually keeping the person physical copy of the ID.

Be aware that an ID number will fall under the definition of “personal information” under the Protection of Personal Information Bill (which is due to be enacted this year). When this Bill is enacted you will have to consider how you are processing this information, and may be required to change your processes, as it may fall foul of the Bill. For more information on this topic I suggest looking at some of the articles found here

Hope this answers your question.

Regards

Nick

]]> Comment on The Consumer Protection Act - a heads up by Nicholas Hall http://www.michalsons.com/the-consumer-protection-act-a-heads-up/1382/comment-page-1#comment-278 Nicholas Hall Fri, 26 Mar 2010 12:54:47 +0000 http://www.michalsons.com/?p=1382#comment-278 I apologies for the lateness of this response, Unfortunately there isn’t a clear answer to your question. The Act does not give a definition of “refund”, and “refund” is used quite liberally in the Act without much clarification of what is exactly intended. As such, one would need to try and give a definition to refund by looking at the context that it is in, and intent of the clause and statute as a whole. Given that the Act was drafted to empower consumers and promote consumer rights, one would probably have to give definition to “refund” that benefited the consumer. Basically I think it will come down to why the person is returning the product. If they are suffering from buyer’s remorse, or simply don’t want the item, then a non-cash refund would be fine. If the product was faulty or broken, then a cash refund would probably have to be offered alongside a non-cash refund. At the very least in such circumstances I don’t think a customer could be denied a cash refund if they demanded one. I’m sorry that I can’t give you a clearer answer, to do so would require quite a lot more research into the topic. If you would like us to formally research the topic, please don’t hesitate to contact us at Michalsons Attorneys at instruct@michalsonsattorneys.com . Regards Nick I apologies for the lateness of this response,

Unfortunately there isn’t a clear answer to your question. The Act does not give a definition of “refund”, and “refund” is used quite liberally in the Act without much clarification of what is exactly intended. As such, one would need to try and give a definition to refund by looking at the context that it is in, and intent of the clause and statute as a whole. Given that the Act was drafted to empower consumers and promote consumer rights, one would probably have to give definition to “refund” that benefited the consumer.

Basically I think it will come down to why the person is returning the product. If they are suffering from buyer’s remorse, or simply don’t want the item, then a non-cash refund would be fine. If the product was faulty or broken, then a cash refund would probably have to be offered alongside a non-cash refund. At the very least in such circumstances I don’t think a customer could be denied a cash refund if they demanded one.

I’m sorry that I can’t give you a clearer answer, to do so would require quite a lot more research into the topic. If you would like us to formally research the topic, please don’t hesitate to contact us at Michalsons Attorneys at instruct@michalsonsattorneys.com .

Regards

Nick

]]> Comment on The Consumer Protection Act - a heads up by nicolem http://www.michalsons.com/the-consumer-protection-act-a-heads-up/1382/comment-page-1#comment-270 nicolem Wed, 17 Mar 2010 07:30:07 +0000 http://www.michalsons.com/?p=1382#comment-270 I refer to point 51.(j) (i) and (ii) in the CPA - can we still use an SA ID number to activate a Loyalty card? It is important to note that no retention of the ID document/or copy is required thereafter. Plus the only access to use is the Loyalty Card which is initially activated against this ID number as it is unique and cannot be duplicated on the system. I refer to point 51.(j) (i) and (ii) in the CPA - can we still use an SA ID number to activate a Loyalty card? It is important to note that no retention of the ID document/or copy is required thereafter. Plus the only access to use is the Loyalty Card which is initially activated against this ID number as it is unique and cannot be duplicated on the system.

]]> Comment on The Consumer Protection Act - a heads up by nicolem http://www.michalsons.com/the-consumer-protection-act-a-heads-up/1382/comment-page-1#comment-269 nicolem Wed, 17 Mar 2010 07:10:54 +0000 http://www.michalsons.com/?p=1382#comment-269 What is the definition of a refund - does a retail business have to refund cash or can they offer a credit note/gift voucher for returned goods? What is the definition of a refund - does a retail business have to refund cash or can they offer a credit note/gift voucher for returned goods?

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