Services

Energy Law

Our offering covers a full range of legal matters including but not limited to the following:

Energy Laws, Policies, Rules and Regulations (including bi-national agreements such as the Mozambique and Namibia Gas Pipeline agreements);
Restructuring and deregulation;
Planning, development, environmental and regulatory;
Acquisitions and disposals of assets and entities;
Operating and maintenance agreements;
Engineering, procurement and construction (EPC) agreements;
Connection and transmission agreements;
Use of systems agreements and fuel supply agreements;
Structuring complex joint ventures and project entities;
Procurement, competition law, employment law, property/real estate law, social investment policies, black economic empowerment, governing law, dispute resolution and health and safety.

We provide truly commercial and balanced energy law advice which takes into account, among others, the following stakeholders and/or interested parties:

Shareholders and staff;
Government (e.g. the Department of Energy, PetroSA, Petroleum Agency SA, iGas, etc.);
Regulators (e.g. National Energy Regulator of South Africa and the Competition Authorities);
Energy related associations (e.g. SABITA, SAPGA, SAPIA, etc.);
Customers and suppliers;
Competitors;
Banks and other financial organisations; and
Trade unions and other pressure groups.

One of our directors was previously involved in one of the vast cartel cases in the energy sector, i.e. Bitumen (Black Fuels) cartel and also authored an article herein. He also shadowed and assisted one of the Partners and Head of the Renewables Business Unit at Beauchamps Solicitors, in Europe (Ireland) in respect of a commercial transaction leading to the sale of shares in one of the energy companies in Ireland.

Our energy sector expertise is located across the many practice areas of K&K allowing a seamless service to clients. In other words, our understanding of commercial law particularly competition law (including regulatory issues), commercial litigation and intellectual property law, enables our team to render seamless, sophisticated and forward-thinking advice to our energy clients.

Our team is also able to leverage the most beneficial commercial outcomes for clients in this regard, in an informal and less bureaucratic manner as a direct result of our expertise and effective communication with the relevant stakeholders such as the National Energy Regulator of South Africa (NERSA), Competition Authorities and the Department of Energy (DoE).

Our energy law department focuses on all legal, policy, regulatory, economic and business matters of the energy industry (including other subjects in the energy industry such as emerging issues and/or stakeholder developments affecting the energy industry).

We combine a detailed legal knowledge of the energy sector and commercial awareness of the industry in general. We constantly renew our knowledge to ensure our expertise remains unrivalled within the legal fraternity and that we are best placed to support our clients’ needs in every way possible.

Competition Law

Competition Law (Anti-trust) including Mergers and Acquisitions

Our firm provides competition law services to public and private sectors. We believe competition law forms a critical part of the business landscape and plays a vital role in influencing both government, corporate and commercial strategy. K&K has a clear understanding of competition’s far-reaching implications for local and foreign businesses. Our competition law practice is therefore ideally placed to provide professional services to clients on all aspects of competition law both locally and internationally.

Our firm provides a full range of competition law services including:

Merger control;
Instituting, defending and/or settling complaints (involving prohibited restrictive horizontal practices [cartels], prohibited restrictive vertical practices and abuse of dominant position issues);
Interim Relief Applications;
Exemption Applications; and
Compliance Advice and Education.

Our services are not only limited to the public law of competition, regulated by the Competition Act. Our services also cover the private law of competition which deals with, amongst other things, the following:

Misappropriation of confidential information or trade secrets;
Misappropriation of the advertising value of trademarks, trade names etc. and character merchandising;
Piracy of competitor’s performance;
Comparative advertising; and
Ambush marketing.

One of our directors was formerly employed by the Competition Commission of South Africa; he trained in European Competition Law at the Kings College in Cambridge; he also completed training on the Identification and Proof of Agreements Under the United States of America’s Anti-Trust Laws (Federal Trade Commission Certificate); and at some point held a position as Manager: Market and Competition Regulation at a South African-based multinational mobile telecommunications company, operating in many African, European and Asian countries. He was involved in some of the most dynamic, large and leading competition law matters in South Africa (including a number of merger transactions; exemption applications, enforcement matters including cartel prosecutions).

One of our directors also shadowed and assisted one of the Partners in the Commercial Law Department at Beauchamps Solicitors in Europe (Ireland), in a significant business sale transaction where a Five-Star Hotel & Golf Resort was sold for an estimated 30 million Euros.

ICT Law

Information and Communications Technology (“ICT”) Law

This area also includes Domain Names, dealt with in more detail under Intellectual Property Law service offering.

We have provided services to Chambers of Commerce in respect of legal, policy and regulatory matters including SMME member companies. One of the Chambers is one of the five chambers comprising the National ICT Forum launched by the Department of Telecommunications and Postal Services in 2015 under the leadership of Minister, Dr Siyabonga Cwele.

We have also provided services to the Domain Name Authority the scope of which included the development of namespace policies, regulations, standards and procedures, internal policies and procedures, and provision of other general legal services such as corporate governance.

We have also advised a Communications Forum in the ICT sector the scope of which included services pertaining policy, legislative and regulatory development and interventions (including regularly assisting with making inputs, comments and submissions on any regulations, policy and legislation that have impact on the ICT industry).

ICT Law is led by one of directors backed by a team of specialist consultants in the ICT sector. One of our directors held a manager position at a South African-based multinational mobile telecommunications company, operating in many African, European and Asian countries.

One of our directors was involved in the National Integrated ICT Policy Review process through one of the Forums in the ICT sector.

K&K understands complex ICT issues quickly and is able to provide clients with the necessary innovative solutions. K&K’s ICT law practice is located across the many practice areas of the firm, allowing an all-round legal service to clients. Our understanding of other areas of the law such as intellectual property law, competition law, corporate governance and commercial litigation, enables our team to render seamless, sophisticated and forward-thinking advice to clients in the ICT sector.

Our team is also able to leverage the most beneficial commercial outcomes for clients, in an informal and less bureaucratic manner as a direct result of our expertise and effective communication with the relevant stakeholders such as ICASA, Competition Authorities, ICT Associations and relevant government departments.

We combine detailed legal knowledge and commercial awareness of the ICT sector and constantly renew our knowledge to ensure that our expertise remains unrivalled within the legal fraternity and that we are best placed to support our clients’ needs in every way possible.

K&K is aware that ICT plays a fundamental role in economic and administrative activities of any country and it is imperative that the necessary legal framework does not limit or restrict progress in the sector. Our integrated service means clients receive the best all-round assistance to the most complex local and international regulatory issues within the ICT sector. Our ability to cross-reference between business areas in our firm when necessary, offers clients an all-round solution to their ICT legal/regulatory needs.

K&K is alive to the fact that the ICT sector is growing strongly, driven by innovative technologies and regulatory changes which are designed to promote competition and the proliferation of new technologies in South Africa (underpinned by customer demand for ever faster and more innovative ways of communicating).

K&K acknowledges that all participants in the sector (i.e. network operators, service providers, value-added resellers, content providers, equipment suppliers or major corporate/public sector users, etc.) need to be constantly and commercially aware of the developments and look for new routes to market and move quickly to take advantage of existing opportunities in line with the applicable laws.

Our innovative offering in this regard includes amongst others regulatory (legal) advisory services in relation to consumer issues, policy making matters, licensing, facilities issues (including leasing), interconnection, competition matters, mergers and acquisitions (including BEE transactions). In addition, we have extensive expertise in a number of areas of communications law, including:

Corporate Commercial: advising on risk (due diligence), and advising on corporate and commercial transactions involving operators, service providers and suppliers;
Regulatory: negotiating and/or liaising with regulatory authorities, industry bodies and government ministries; and
Policy development: making written and oral submissions to Parliament and regulatory bodies (including the DoC, DTP&S and ICASA).

Our practical experience in this fast evolving field of the law is versatile. Accordingly, our firm is well positioned to provide the following ICT services:

ICT Related Compliance Audits / Due Diligence – Our capabilities include the drafting and vetting of:

Web-site Terms and Conditions;
IT Security Policy;
Electronic Communications Policy;
E-Commerce Policy;
Internet-Based Invoicing Policy;
Internet-Based Marketing Policy;
IT Equipment Use and Disposal Policy;
Data Collection, Use and Management Policy; and
Document Management and Retention Policy.

Information and Communication Related Agreements – We are able to draft, vet and comment on the following types of agreements, inter alia:

IT Hardware Purchase agreements;
IT Outsourcing agreements;
Hardware Support and Maintenance agreements;
Software License agreements;
Software Support and Maintenance agreements;
Software Development agreements;
Source Code Escrow agreements;
Web-site Development and Hosting agreement;
Internet Trading Agreements (such as Merchant Agreements);
Employment Agreement (with a focus on ICT-related protections); and
Other ICT Related Policies.

Intellectual Property

Intellectual Property (IP) Law (including Trade Secrets, etc.)

Our practical experience in the field of Intellectual Property Law (non-patent) gained at a boutique intellectual property law firm, enables us to provide a full range of IP legal services to our clients.

Trade Mark Law

The services encompass the full trademark life cycle from selecting the trademark up to issuance of registration certificates, including renewals to maintain legal existence and conducting litigation to protect the mark from infringement. The services encompass:

Assisting clients in the selection of trademarks by conducting availability trademark searches;
Providing advice on the availability of trademarks for registration;
Filing and prosecution of trade mark applications;
Undertaking trademark opposition proceedings;
Litigation to protect trade marks from infringers and defending infringement actions;
Instituting action to protect trade marks against counterfeiters;
Attending to the assignment of trademarks;
Proactive trademark management through conducting periodic trademark audits;
Conducting trademark valuations;
Attending to trade mark renewals and restorations;
Preparing franchising, license and registered user agreements;
Attending to company name objections; and
Drafting non-disclosure agreements.

Our competency in this regard is not only restricted to the Republic of South Africa, but extends to other jurisdictions such as the European Union countries and other countries in the continent of Africa.

Copyright Law

In this regard our firm adds value to clients by providing the following services:

General advice on copyright;
Filing of applications to register copyright in cinematograph films;
Drafting a variety of copyright agreements, such as copyright license contracts, copyright deed of assignment agreements, etc.; and
Use of copyright to prevent parallel importation.

Domain Names

In this regard our firm adds value to clients by providing the following services:

Domain name searches;
Domain name registrations;
Domain name renewals; and
Domain name dispute resolution.

K&K was involved in the development, maintenance and execution of regulations, policies and procedures across the .ZA namespace in line with the .ZA Domain Name Authority’s legislative mandate.

Our IP competency is also not restricted to the Republic of South Africa, we are able to deliver in other continents through our correspondents. One of our directors shadowed and assisted one of the partners and Head of intellectual Property/Information Technology at Beauchamps Solicitors in Europe, in respect of the impact of Groundless Threats Provisions for Ireland in so far as it relates to Intellectual Property (from a United Kingdom perspective).

Company Secretarial Services

Company Secretarial and Administrative Services

Establish a Company Secretarial function and ensure company secretarial practices are fully and consistently applied;
General preparation for meetings in consultation with the client’s Board Chairman (“the Chairman”) and CEO (“the CEO”), including drafting of agendas, preparation of Board packs and distribution thereof prior to meetings;
Ensure Board and Management papers are fit for purpose and distributed in a timely manner;
Management of interface leading up to and after meetings (Annual General Meeting “AGM”, general meetings and Committee meetings);
Provide Company Secretarial Services to the Board and chosen/agreed Committees;
Organizing and ensuring smooth running of AGM, other general meetings and chosen/agreed Committee meetings;
Contribution of relevant material/information to the annual report;
Effectively communicate client’s information to the Board, Committees and Management;
Oversee the annual Board calendar and Committees’ calendars;
Ensure that the Board, Committees and Management are informed of all appropriate matters;
Conduct research, evaluate and report on special projects as requested;
Draft minutes of Board meetings, AGM, other general meetings and Committee meetings;
Preparation of annual meeting schedule in consultation with the Chairman and CEO;
Ongoing communication with Board members on relevant administrative matters;
Constantly liaise with the CIPC (and other organizations) on all governance matters, to ensure that developments at client’s business are updated and captured accurately (including presentations on compliance related issues, if necessary);
Lodge annual returns as required by the Companies Act;
Maintain a register of Director’s interests and ensure that this is tabled at each Board meeting in terms of the Companies Act;
Draft Compliance Reports and presentation of same at Board meetings, general meetings and/or Committee meetings; and
Maintain database of all relevant company secretarial information.

Corporate Governance, Compliance and Advisory Services

Ensure compliance with Governance Principles, Code of Conduct, the Companies Act, King Code III and other applicable laws, regulations and statutory matters (including alignment to best practice);
Ensure compliance with client’s Memorandum of Association/Incorporation and Articles of Association;
Develop, maintain and update client’s Corporate Governance manual which should contain policies and procedures ranging from the ethics policy, Board and Audit Committee charters, etc.;
Introduce and draft the necessary policies (in terms of King Code) and update such policies on an annual basis;
Benchmark local laws, rules and regulations against those of authorities in other jurisdictions and providing advice to the client on alignment where there are differences;
Provide advice and support to the Board, Committees and Management in respect of effective governance processes;
Constantly advise Board members, collectively and individually, on their responsibilities in terms of applicable laws and relevant regulations;
Consider client’s image and brand building in the market place in relation to compliance issues and mitigate possible reputation risks;
Develop a mechanism that will facilitate the cascading of the Code of Conduct approved by the Board throughout the organization;
Monitor progress and report on the effectiveness of processes to ensure that all client’s employees are knowledgeable with regards to the Code of Conduct and have accepted and conform to the Code of Conduct;
Conduct corporate governance risk analysis and provide input pertaining to restructuring or reorganization issues;
Coordinate the operation of client’s formal decision making and reporting processes (delegations of authority) to ensure company-wide standardization and consistency, and to ensure that delegations are not given to incorrect levels within client’s business;
Advise the Chairman and various Committees, CEO / Management on their powers, duties and matters of procedural nature;
Ensure that the administration and implementation of administrative and governance changes pertaining to client’s Board, various Committees and Management are effected;
Formulate client’s complaint’s policy and implementation of complaint procedure (including acting as an internal client complaint’s ombudsperson);
Ensure that requirements and ongoing changes in terms of the Companies Act and King Codes are implemented and adhered to;
Advise the Chairman, CEO/Management on all compliance and governance issues, act as primary point of contact and provide ongoing support in this regard;
Draft contracts and/or review commercial agreements in line with corporate governance principles;
Provide advice in respect of the negotiation and conclusion of commercial transactions, such as sales of assets, joint ventures, etc. in line with corporate governance principles;
Conduct due diligence investigations; and
Provide skills development and training workshops.

Annual Report

Draft the following sections in the Annual Report:

Chairman’s Statement, Corporate Governance Report, Directors Statutory Report, etc.;
Provide additional input to relevant sections in the Report; and
In addition, assist in the overall project management of the annual report until final printing stage.

Interaction with Chairman and CEO

Ensure that the Chairman and CEO are appraised of all issues prior to the meeting (including agenda items);
Ongoing interaction on all governance related issues and updates;
Discuss appropriate training for Directors;
Plan and implement annual evaluation process for Directors, and ensure that the agreed way forward is implemented; and
Draft the Chairman’s statement and directorate for the Annual Report (already covered in part C above, but important to cover here as well).

Labour Law

Labour Law (employment law including pension funds)

K&K provides opinions and advice to clients on labour legislation, which includes, amongst others, the Labour Relations Act, the Skills Development Act, the Skills Development Levies Act, the Basic Conditions of Employment Act, the Employment Equity Act, the Unemployment Insurance Fund Act, the Pension Funds Act and the Medical Aid Schemes Act.

We provide training in respect of the above-mentioned pieces of legislation and have a well-developed litigation unit which handles CCMA, Labour Court and High Court Litigation.

We are qualified to advise on sales of businesses, outsourcing and transfers of undertakings, mergers and acquisitions in so far as it relates to labour law, such as the provisions of section 197 of the Labour Relations Act. We also provide training and support on how to handle disciplinary enquiries and arbitrations in both the CCMA and Bargaining Councils. We also provide training on amendments in respect of labour legislation.

Our firm has participated in performance management processes and is suitably qualified to advice on this subject as well. We draft and review human resources policies, structures and strategies and provide the relevant training.

Our firm has chaired a number of disciplinary hearings of both junior and senior employees, for small and large companies and has conducted compliance audits on all human resource policies and procedures.

Our pension fund law services include, but are not limited to, the following:

Advising on retirement benefits;
Advising on death benefits, disability benefits and withdrawal benefits;
Lodging complaints with the Pension Fund Adjudicator on behalf of claimants;
Drawing opinions on specific aspects of the Pension Fund Act including withdrawal benefits and preserved benefits;
Preparing agreements that relate to enforcement of divorce benefits and maintenance benefits;
Appearing at enquiries in insolvent estates where liquidation benefits are dealt with;
Training of trustees and principal officers on Pension Fund Act;
Acting on behalf of claimants in review of determinations made by the Pension Fund Adjudicator in the High Court; and
Preparation of filings in the Magistrate’s Court for determination.

General Corporate and Commercial Law

K&K offers services in the field of commercial law which overlap to a large extent departmentally within the firm including, including but not limited to:

Statutory compliance advice;
Negotiation and decision-making support;
Drafting, reviewing and vetting of various types of commercial contracts/agreements (including employment contracts and other agreements);
Incorporation of companies and other legal entities (including Trusts);
Preparation and lodging of applications to register defensive company names;
Preparation and lodging of special resolutions at the office of the Registrar of Companies; and
Mergers and acquisitions transactions.

Constitutional and Administrative Law

Policy, Legislative and Regulatory

K&K provides legal advice in respect of the Constitution of the Republic of South Africa, in so far as it relates to amongst others the Bill of Rights, the Promotion of Administrative Justice and the Promotion of Access to Information. Individual members of the firm have litigated for and against a number of administrative bodies, provincial authorities, local government and other organs of the state.

K&K aims to support the development and facilitation of effective regulation (coherent and consistent regulatory system) to regulators, agencies, government departments and/or private undertakings/individuals, within the Republic of South Africa. There is wide recognition that different forms of regulation require dedicated regulators and/or agencies and K&K believes that regulation, whether sectoral or economy-wide, requires a range of expertise and skills which should assist in promoting consistency, certainty and transparency in the development and application of the relevant laws, policies and/or regulations.

In view of the need for consistency and legal certainty, the roles and activities of government, regulators and/or agencies need to be clarified and monitored from time to time to ensure there is no abuse of process, irregularities and that there is compliance with the Rule of Law.

K&K believes that certain functions are best placed in specific institutions, depending on levels of expertise and/or specialisation. Although there are moves towards promoting coherence and consistency in the regulatory system, regulation in South Africa remains fragmented and contradictory in some respects. At times, difficulties arise in the administration of different forms of regulation hence the need for coherence and integration in the legislative/policy/regulatory environment has become an increasingly important issue (not only in South Africa, but also in both developed and developing economies). A more integrated policy/legislative/regulatory framework is necessary to promote transparent, consistent and coherent business regulation such as the following:

Regulation that involves adoption, interpretation and enforcement of framework and rules designed to ensure that markets are efficiently “self-regulating” as possible. Which also include preventing firms from concluding anticompetitive agreements, engaging in abuse of dominant position conduct and carrying out anticompetitive mergers.
Regulation that involves directly controlling or specifying production technologies, eligible providers (granting and policing licenses), terms of sale (output process and terms of access) and standard marketing practices (advertising).
Regulation that involves setting and enforcing product and process standards designed to deal with safety, environment and switching costs externalities, and allocating publicly owned or controlled resources.

In South Africa, although responsibility for different types of regulation appears to have been allocated, some ambiguity remains and needs to be considered carefully. As a result, K&K aims to provide regulatory support services in line with amongst others the following:

promoting and facilitating the flow and exchange of information and the application of consistent decision-making practices and procedures;
fostering an understanding of roles and activities mandated by law;
avoiding duplication of functions, activities and resources;
harmonization of regulatory policies and legislation across different industries and/or sectors and to standardize regulatory policies, practices and procedures;
establishing sound relationships with other regulatory bodies, national and provincial government, the public and other stakeholders;
monitoring and evaluating regulatory practices and determining training and/or legal support needs;
developing, conducting and managing information and capacity building programs;
promoting coherent and consistent regulatory policies, legislation and regulations, where applicable;
preparing position papers on key aspects of regulation, including but not limited to examination of policies, strategies and legislation in the sectors in comparison with international trends and best practices;
investigating and deliberating on issues which impact negatively on the development of regulatory policies and procedures; and
promoting working relationships with other national and international agencies that have similar objectives on regulation and related matters.

Litigation and Alternative Dispute Resolution

Our firm also provides extensive litigation services in respect of its fields of practice in such forums as the High Courts, the Magistrates Courts and Administrative Tribunals. Where appropriate, we also engage in arbitration and/or mediation in order to resolve disputes speedily and inexpensively.

Additional Services

The list of our services provided is not exhaustive. Where the services of Counsel or any Expert are required, we are able to advise on the selection of such Counsel or Expert if necessary. K&K has a panel of well-established Counsels and other Experts (Economists, Regulatory Consultants, etc.) with expertise in various disciplines of the law and/or sectors of the economy which form the subject of legal services provided by our firm.