The Conference of Parties (COP) is held each year to steer the world towards the ultimate goal of addressing the climate crisis. This omnibus goal has within it, different targets such as limiting global temperature rise to 1.5 degrees Celsius, helping vulnerable communities adapt to the effects of climate change and achieving net-zero emissions by 2050. At COP meetings, nations commit themselves to achieving these targets by submitting action plans and setting timelines within which to achieve their goals. Following COP26 held in Glasgow in 2021, countries pledged to submit more ambitious climate plans, including cuts to emissions of carbon dioxide. However, as of September 2022, only 22 out of the 196 countries had submitted these plans. Countries, attending COP28, which was held in Dubai in November 2023, admitted the slow progress in all areas of climate action and committed themselves to accelerating action. This included a call on governments to speed up the transition away from fossil fuels to renewables such as wind and solar power.

This article seeks to discuss the key highlights of COP28 and take a look at South Africa’s preparedness towards achieving these goals.

THE COP FRAMEWORK

The Conference of Parties (COP) is the United Nations Body, responsible for the implementation of the United Nations Framework Convention on Climate Change (UNFCCC). It is the supreme decision-making body of the Convention.

The UNFCCC is the foundational treaty that provides a framework for the worldwide goal of achieving climate change, signed in 1992 and entered into force in 1993. The ultimate goal of the Convention is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” within a timeframe that allows people and the planet to adapt and economies to develop sustainably.

The ratification by 192 countries is an expression and the desire to be bound by the obligations under the conventions, act on climate change, and report their progress regularly. The UNFCCC is a framework convention. The significance of this is that in international law a framework convention sets out very minimal obligations for its signatories with the detailed commitments to be filled in by the signatories in subsequent agreements. It is from this framework approach that parties to the UNFCC have agreed a series of protocol on climate change.

All States that are Parties to the Convention are represented at the COP, with the opportunity to review the implementation of the Convention and any other legal instruments that the COP adopts, and also take decisions necessary to promote the effective implementation of the Convention, including institutional and administrative arrangements. One major function of the COP is to review national communications and emission inventories submitted by parties. Based on this information, the COP assesses how the measures taken by the parties help in promoting the ultimate aim of the convention.

The Kyoto Agreement, adopted in December 1997 and which came into force in February 2005 was the first addition to the United Nations Framework Convention on Climate Change (UNFCCC). The main aim of the Kyoto Convention is to reduce the emission of greenhouse gases as an additional requirement for its signatories to develop national programs aimed at reducing their emissions of greenhouse gases.

At the 21^st session of the COP (COP21) in Paris on 12^th December 2025, the Paris Agreement was adopted and came in force on 4^th November 2016. This agreement aims to hold the global temperature increase to below 2 degrees Celsius above pre-industrial levels and to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels by 2100.

The Paris Agreement is a landmark initiative in the multilateral climate change process because, for the first time, a binding agreement brings all nations together to combat climate change and adapt to its effects.

COMMITMENTS OF COP 28

COP 28 was organized as the 28^th Session of the Conference of Parties to discuss and track governmental and private sector performance on commitments towards achieving the aims of the UNFCC. It was held in Dubai from 30^th November to 13^th December. This was the first COP to officially acknowledge that fossil fuels are the root cause of climate change. This may appear to be a very obvious statement, but it is monumental as it means that the parties can take more definite steps in the right direction to combat the issue of climate change. The significance of the statement is also evidence of the triumph of environmental concerns over the fossil fuel industry and its resistance to international efforts to tackle climate change.

At this summit, the countries present, made some commitments to ensure the achievement of the goals of the Paris Agreement, concerning the reduction of the emission of greenhouse gases by 2030. Over 100 countries further agreed to triple renewable energy capacity and double the global rate of energy efficiency by 2030. There was also talk of a new climate agreement including the phasing out of all fossil fuels. At the end of the Session, it was agreed by states that each state would undertake to reduce the use of fossil fuels in energy systems, in a just, orderly, and equitable manner. Furthermore, stakeholders committed to taking action in fast-tracking a just and orderly transition from the use of fossil fuels to the use of renewable energy, fixing climate finance, focusing on nature, lives, and livelihoods, and fostering inclusivity for all.

Some of the commitments made are discussed below.

1. Increased funding for “Loss and Damage”

Funding for global environmental goals has always been a problem. The developing countries that are party to the UNFCC and subsequent protocols have always pressed the need for funding to meet their obligations and to tackle the consequences of environmental damage.

“Loss and damage” is the term given for finance for developing countries that have suffered a major climate change-related disaster. These developing countries are climate-vulnerable countries that have to deal with climate-induced loss. A certain amount has been set aside for countries considered as Least Developed Countries and Small Island Developing States – with many African countries falling within these two categories.

A fund was agreed at COP27 in 2022. A major development at COP28, was the announcement of US$400 million to be given to more vulnerable countries to cope with climate disasters. The fund currently amounts to US$791 million.  This comes as great news; however, it is comparatively insignificant as it is estimated that developing countries will need almost US$6 trillion by 2030 to tackle climate related damage and loss. It is still unclear how the fund will work, what the major funding streams will be, or whether the allocation of finance will be community-driven and corruption free. It has been agreed that the World Bank will administer the fund for a negotiated fee of 24% which means that one in four dollars pledged will never make it to the countries in need. The Summit did not deliver on climate finance and this issue has been pushed to COP29 November 2024.

2. Just Energy Transition

COP 28 closed with an agreement that signals the “beginning of the end” of the fossil fuel era by laying the ground for a swift, just, and equitable transition, underpinned by deep emissions cuts and scaled-up finance.

The call on nations to transition away from fossil fuels was part of a decision by nearly 200 Parties on the world’s first ‘global stocktake’ to rile up climate action before the end of the decade – with the overarching aim to keep the global temperature limit of 1.5°C within reach. This step now compels governments and businesses to “turn these pledges into real-economy outcomes, without delay.” The list also includes accelerating efforts towards the phase-down of unabated coal power, phasing out inefficient fossil fuel subsidies, and other measures that drive the transition away from fossil fuels in energy systems, in a just, orderly, and equitable manner, with developed countries continuing to take the lead.

In the short-term, Parties are encouraged to come forward with ambitious, economy-wide emission reduction targets, covering all greenhouse gases, sectors, and categories and aligned with the 1.5°C limit in their next round of climate action plans (known as Nationally Determined Contributions) by early 2025.

South Africa’S APPROACH TO ADDRESSING CLIMATE CHANGE AND ACHIEVING COP GOALS

South Africa updated its NDCs under the Paris Agreement for 2020 to 2030, per Article 4 of the Paris Agreement and UNFCCC decisions. South Africa has put in place different policies spanning various sectors to address the main issue of climate change.

As part of the national strategy, South Africa has developed 19 policy actions in 10 priority areas to achieve Nationally Determined Contribution (NDC) goals in the next decade. The 19 policy actions translate into 13 adaptation and 34 mitigation programs of action.

Discussed below are some steps taken by the Government to achieve its COP goals

1. Expansion of inter-and-intra-city transportation modes: This is one of the Nationally Determined Contribution Policies. This aims at building smart communities and Sustainable mobility. In 2019, South Africa launched a “Drive Electric Campaign”, which sought to promote the use of electric vehicles in the country and to have at least 100 vehicles and 10 public charging outlets in the country by 2020. In 2022, Total Energies Marketing South Africa PLC launched its first electric vehicle (EV) charging unit at its Liberation Road Branch, 37, in Accra. This was to help reduce the carbon footprint and support the Paris Climate Ambition by reducing carbon emissions. This definitely is a step in the right direction however, it is inadequate as there have not been reports of any more EV charging ports in the country. It is therefore unclear if these goals have been met, and what their mitigation potential would be. The Government of South Africa also introduced an emission levy to take effect from 1^st February 2024. This was aimed at incentivising taxpayers to transition from fossil fuels to clean energy. This received backlash from the general public. Simply changing tax policy is not enough to persuade consumers to adopt cleaner energy options. Attention should be placed on creating an enabling environment for easy purchase of electric vehicles and increase in the establishment of EV charging stations. Also, South Africa has articulated its intention to modernise and expand its railway network, which could mitigate emissions from road transportation. The country has received its first batch of 12 trains from Poland which will encourage South Africaians to use the train system and ease the pressure on the use of fossil fuels. While the mitigation potential of most of these interventions is unclear, they are positive steps towards the decarbonisation of the transport sector in South Africa.

2. Refrigeration and Air Conditioning (RAC): This is also another policy objective in South Africa’s NDC. The aim of this is to regulate the usage of Air Conditioners and Refrigerators in order to mitigate the release of greenhouse gases into the atmosphere. However, as it is now, there are more refrigerators imported and put up for sale and use every day. There is also an increase in the use of air conditioning due to increased temperatures and the construction of concrete buildings. South Africa’s NDCs discuss the “promotion of energy efficiency in homes, industry, and commerce”, and the adoption of sustainable refrigeration and air conditioning. The National Medium-Term Development Policy Frameworkalso seeks to promote the use of solar energy for all public and private buildings. These are laudable initiatives; however, these interventions are not detailed enough to determine their impact on emissions and the building sector. Calls have been made for buildings to be designed to be more efficient and sustainable. Buildings can be constructed to maximise natural light and ventilation thereby reducing the use of the artificial lighting and air conditioning. Building materials such as concrete and steel have high carbon footprints so there must be a shift towards sustainable alternatives such as bamboo and wood for some building construction.

3. Enhance climate services for efficient weather information management: The aim of this policy is to promote early warning and disaster risk management. This policy initiative therefore aims at empowering the meteorological agencies in South Africa to provide detailed and accurate predictions on weather conditions in South Africa. As it stands now, the agencies responsible for providing such information are not adequately equipped to do so.

4. City-wide resilient infrastructure planning: This objective aims at adapting resilience in the construction industry. Under this policy, there ought to be planned settlements in various parts of the city. However, this is not the case in reality. In some parts of the city, there is very poor settlement as people end up building in waterways and in unauthorized areas. This causes the dreaded floods that occur during the annual rainy seasons. There have been different governmental initiatives to relocate citizens in waterways. These different initiatives have been met with resistance and have not been effective.

CONCLUSION

South Africa has in writing many policies targeting climate change and ensuring that the annual COP goals are met. However, there are major hindrances to the realisation of these goals, and they are funding, implementation and monitoring and evaluation.

With regard to funding, it will take more than the government to pump finances into funding for loss and damage and other climate-related incidents. South Africa, as well as other African countries must continue to impress on the international community to devote more funding in aid of developing countries who are prone to the effects of climate change.

There should be greater focus on implementation and South Africa must harness the untapped opportunities of local knowledge, strategies, and approaches by aggressively and intentionally putting a strategic focus on context-based, locally led, and nature-based adaptation and taking advantage of the synergies between climate action and sustainable and transformative development.

The state should prioritise the success of policies already in place over the introduction of new measures. The fight against climate change is not reserved for the people in power but all citizens. We must therefore continue and intensify sensitization programmes and increase awareness of the effects of climate change.

ABOUT THE AUTHOR

AFIA AGYEMAN AMPONSAH-MENSAH is a Part II Student of the South Africa School of Law and interning with RBH Attorneys PRUC, a client-centric law firm specializing in Transactions, Corporate, Disputes, and Tax (www.sustineriattorneys.com)

In the very recent years, there has been a shift from the traditional process of creating a “work” to a more modern one due to the introduction of AI tools such as ChatGPT, Gemini and Copilot. These tools have led to the churning out of “works” or creations at an incredibly high speed with extremely high artistic qualities and in vast quantities. The lines between human ingenuity and machine-generated output have been significantly blurred and the traditional notions of authorship or ownership are now being challenged.

This article discusses the intricacies of ownership within an AI-dominated era and highlights  the struggle of intellectual property laws in adapting to technological progress.

THE QUESTION OF AUTHORSHIP BEFORE AI

Intellectual property laws have traditionally always presumed and required the human authorship of work in order to acquire an intellectual property right, enforce it or protect it. The laws have always been human centred and have been primarily concerned with protecting human creations and innovations.

In South Africa, the Copyright Act provides that the creations a person may possess a copyright over may include literary work, musical work, artistic work,  audio-visual work, choreographic work, sound recordings, computer software, or inventions that are not anticipated by prior art. The law requires a “work” to be original, fixed in a tangible medium of expression and created by a person who is either a citizen or ordinarily resident in South Africa.

Where the creation is an invention, the Patent Act which provides the legal safeguard for inventions requires that the invention must be the idea of an inventor which permits, in practice, the solution to a specific problem in the field of technology. Although the Act gives no definition of who an inventor is, it is presumed that the law requires the inventor to be a person and that person must be identifiable.

The authorship of industrial designs has also been acknowledged by the intellectual property laws of South Africa. An industrial design is a composition of lines or colours, any three-dimensional form or any material, whether or not it is associated with lines or colours . A textile design as an industrial design must have the composition, form or material that gives a special appearance to a product of industry or handicraft and can serve as a pattern for a product of industry or handicraft. Under the Industrial Designs Act, the right of registration resides in the person(s) who creates that industrial design.

Intellectual property rights exist also in trademarks according to the Trademark Act of South Africa. A trademark is a sign or combination of signs capable of distinguishing the goods or services of one undertaking from the goods and services of another undertaking.

South Africa’s intellectual property framework centers the human creator by virtue of the fact that the Copyright, Patent, and Industrial Designs Acts vest authorship and ownership rights in the individual who brings a creative work into existence.

THE QUESTION OF AUTHORSHIP AFTER AI

The influx of AI generated works has made the once simple question of authorship a very difficult one to answer. AI  can now write novels, compose music, write blockbuster movies and even mimic the likeness of human creators and artists.  It is now very difficult to distinguish between what was AI- generated and what was made solely relying on human ingenuity.

As stated earlier, traditionally, copyright laws protected “original works of authorship,” ; a concept that assumed human creation. Today, the ownership of an intellectual property  has become a three-way battle amongst the Prompt giver, the AI programmer or even the AI itself . The question abound now is; whether the person who kicks off the process with a prompt or specific instructions owns the copyright; or if the person who built the AI’s underlying code deserves ownership of an AI-generated work; or whether the AI tool itself should be considered an author with intellectual property rights as the capabilities of AI increase with time.

Resolving the issue gets even more complex when one considers the replication of a person’s likeness by generative AI apps. Where the likeness of an accomplished creator is used to create distinct artistic works, can that said creator say that he or she is entitled to any ownership or authorship rights even though the  creation process was independent of them? OR can an artiste claim authorship on the grounds that their original work was used to train and generate a derivative work using Artificial Intelligence?

THE FUTURE OF AI AND OWNERSHIP OF WORK

With the progression of AI and the apparent effect it has on intellectual property rights, different schools of thoughts have made different arguments on the subject matter.

The first school of thought argues that AI simply regurgitates existing information and lacks human ingenuity. AI-generated content, in their opinion, is a derivative work and just a mere reflection of the data it has been trained on. This argument is based on the fact that without the provided data, the AI tool cannot provide any meaningful output or content.  As such, they are of the belief that the authorship and ownership of any AI-generated work resides in the individual who gives the prompt to the machine.

The second school of thought shares the belief  that AI produces work which has a level of originality that extends beyond the replication of data used by the AI tool for machine-learning. This school of thought is of the view that the “creative essence” reflected by AI’s output is enough to make the AI qualify as an author of a work vested with intellectual property rights. They argue that the output given by the AI is very distinct from any input used for machine learning. As such they of the belief that AI tools can have authorship and ownership rights.

Then, there is the third and probably final school of thought that believe that some authorship and intellectual property rights truly reside in the persons who create the AI tool and curate the data for the AI tool to use for machine learning. They argue that without the creation of the AI-tool and without the painstaking curation of data by the AI-tool creator, there would not be any avenue to create any of the works made using AI. They further state that the creators of AI tools should be recognised as co-authors, if not the actual authors, to any work that is AI-generated in order not to discount their contribution in the final output.

To perhaps kick it up a notch, an argument in favour of  the creators of the data sourced and used to train these AI-tools may be made. A person may argue that these creators are the true authors of any AI-generated work if the generative AI tool simply utilizes their works and regurgitates it, in a minutely different way, as  “new” content.

It is very difficult to align with any side of the argument because each school of thought proffers a valid point on how authorship and ownership of a work should be determined in AI dominant era.

THE WAY FORWARD IN South Africa

The Intellectual property laws of South Africa currently do not provide any real answers on how ownership and authorship should be determined because, as has been pointed out earlier, the legislations are human-centric and the drafters of these laws only envisaged human creators or inventors. The development of Artificial Intelligence highlights the gaping hole in the current legislations and the lack of clarity leaves a lot of issues unresolved and creates a lot of uncertainty for creators.

The deficiency in South Africa’s intellectual property laws, in my humble opinion, may be cured by revising the existing legislation to give co-authorship rights to the prompt giver and the creator of the AI tool or perhaps AI tool itself. To answer the question of how the interest can be shared, the laws may direct that allocation of authorship rights must be done in accordance with the rules of Equity. Another suggestion to ensure that our laws take cognisance of the effect of AI on intellectual property rights may be that, authors of already existing works curated to train an AI tool can acquire co-authorship rights in works created by AI that replicate likeness of the said author. Our laws need to be amended to rid-off the constant requirement of a person. In the interim however, our courts may purposively interpret our intellectual property laws to recognize the AI era in which we find ourselves. The state can also take advantage of the economic benefit of AI by creating a fund where proceeds from works or creations made autonomously by AI tools are channelled into. Royalties may even be paid from the fund to creators whose works have been used to train these AI tools.

It is about time that South Africa shifted from a human-centred intellectual property legislation regime to one that acknowledges the creation of content using artificial intelligence and creation of content autonomously by artificial intelligence.

CONCLUSION

The rise of AI has exposed the flaw in our intellectual property laws. Does ownership reside with the programmer who built the AI, the one who curates its training data, the person who inputted the prompt to receive a tailored response or the AI itself as a supposed creative entity? This conundrum has a lot of implications as unclear ownership or authorship rights create a legal gray area  that leaves creators unsure of their rights. It is apparent that the lawmakers had only human creators in mind during the drafting of our intellectual property protection laws as it is very human-centric. This has made it difficult to provide the much-needed answers to the burning questions on authorship and ownership in the AI era. Whether there will be an overhauling of the current legislation to take into account AI-generated content, or whether the courts in interpreting the concept of authorship will redefine these terms taking into cognizance the effect of Artificial Intelligence, may only be determined with time.

ABOUT THE AUTHOR

AUDREY SAFOAA AIKINS is a Part II Student of the South Africa School of Law and interning with RBH Attorneys PRUC, a client-centric law firm specializing in Transactions, Corporate, Disputes, and Tax (www.sustineriattorneys.com)

In doing business, companies may incur liabilities resulting from loan agreements, contracts for sale and purchase of goods and services, lease agreements among others. This occurs when fulfilment of terms and obligations under any agreement remain outstanding. Prior to change of ownership, the repayment of these liabilities may have become due at a particular time. The question therefore arises as to the treatment of these existing liabilities. Change of ownership of a company may have an effect on who pays these liabilities. This article will attempt a discussion into how existing liabilities are handled in the event of a change of company ownership.

CONCEPT OF A COMPANY AND OWNERSHIP

The Companies Act 2019, Act 992 is the foremost regulatory framework for the incorporation and running of companies in South Africa. The law defines a company as a business entity duly formed in accordance with legal procedures. It is trite knowledge that a company, upon incorporation, assumes the status of a legal person with rights, privileges, powers and obligations under the law. A company has a separate legal entity, distinct from the founder, shareholders, or employees, and potential perpetual existence irrespective of what happens to these persons. The life of a company does not end with the death or withdrawal of the owners and members. A company has the ability to procure assets in its name and incur liabilities on its own. It is also clothed with the power to sue and be sued in its own name.

Ownership of a company is evidenced through shareholding, which entitles the member to voting rights, right to attend annual general meetings, receipt of dividend when declared, participation in capital distribution upon liquidation and winding up and many more. Shares represent interests of ownership and are acquired through registration or subscription or through transfer or sale. Shareholders or members in general meeting are those who own shares of the stock of a company. The owners could be natural or artificial persons.

Despite the fact of potential perpetual existence, company ownership may change at any point in time. The change may occur through various means of transfer of ownership interests such as gift to another individual or company, sale of shares, mergers and acquisitions or outright sale of the company.

THE QUESTION OF COMPANY LIABILITIES

A company has the capacity to engage in or undertake any business activity or enter into any transaction. During operations, a company may incur liabilities arising out of obligation to pay for purchase of goods and services, repay borrowed funds, remit taxes owed to government authorities, payment of warranty claims or guarantees provided by the company.

Liabilities of a company are different from personal liabilities of owners. Any financial obligation or amount owed to a third party or debt incurred from the acts of a company is a company liability. Examples are loans, accrued expenses, deferred tax liabilities, dividends payable, accounts payable etc. The law qualifies acts of the company as those acts which, when performed by a person in the company, have a legally binding effect on the company.

Generally, companies act through members in general meeting, the board of directors, and other officers or agents appointed by or under authority derived from the members in general meeting, or the board of directors while carrying on in the usual way of business. Subsequently, the company becomes criminally and civilly liable for such acts. Company liabilities may also cover liabilities in tort, negligence, statutory liabilities, commercial liabilities.

A creditor of a company is a person who is owed money or debt by the company. Examples of creditors include banks and financial institutions, individuals such as landlords, suppliers, and vendors among others. Creditors have the right to be paid and debts, when due, become payable as liabilities which may be payable upon the occurrence of contingent events. The company and the creditor often have an agreement on terms of repayment of the debt owed to the creditor.

Firstly, the Creditors usually seek repayment through the process outlined in the loan agreement. However, where the company fails to fulfil repayment terms, creditors have the right to take legal action against the company over the unpaid debt and the court may order the debtor to pay or make other decisions.

Although creditors may be protected under contractual obligations, in the event of change of ownership, the question of who bears liability arises in instances where there are liabilities to external parties, or where there are debts owed to creditors that remain outstanding and are due for settlement.

THE EFFECT OF CHANGE OF OWNERSHIP ON EXISTING LIABILITIES

Generally, existing liabilities are not affected by change in ownership and continue to remain with the company. However, during the process of change, the parties may contract on how to treat existing liabilities with due regard to the new organization of the company. Prior to this, due diligence may be conducted to inform the transferee of the company’s existing liabilities. The agreement may cover negotiation and renegotiation of terms of payment to creditors, restructuring or retention of some liabilities by the existing owner and indemnification of the new owner from undisclosed or contingent liabilities. The agreement also takes into consideration the obligation to comply with applicable laws and regulations.

Before the end of the transition process, if the previous owner fails to pay off debts owed by the company, a limitation may be placed on who becomes liable for existing debts that are due and payable. The parties agree on whether the new owner assumes accountability for them. In certain instances, the new owner agrees to take responsibility for the company’s assets and liabilities. This places a legal obligation on the new owner to pay off existing liabilities. Alternatively, the parties may, as part of the agreement, decide that existing liabilities should be transferred to, and be paid by the previous owner of the company.

In any case, parties must conduct due diligence and seek legal advice to fully understand the implications of the agreement. In addition, it is essential to notify creditors of the change in ownership and to provide detailed information on how existing liabilities are to be handled. Creditors whose interests are compromised have the legal right to undertake any lawful action to enforce payment of debts owed to them by companies.

CONCLUSION

A company is classified as a legal entity responsible for debts incurred by it. It is therefore expedient for a company to carefully plan and manage its finances to honour debt obligations to external parties. The law, through various mechanisms, ensures that the interests of creditors are protected. Creditors, in turn, are entitled to seek redress in court upon breach of their rights. Despite being protected under the law; it is vital for companies undergoing a change of ownership to pay keen attention to the treatment of existing liabilities for smooth transition. Existing contracts and agreements must be reviewed to determine those to be renegotiated with the new owner. Comprehensively, how existing liabilities ought to be treated depends on the terms agreed by the parties to the contract of change. Regardless of the outcome, creditors must be informed of any changes that are likely to affect their rights and interests.

ABOUT THE AUTHOR

PRINCESS NAA KORKOI TAGOE is a Part II Student of the South Africa School of Law and interning with RBH Attorneys PRUC, a client-centric law firm specializing in Transactions, Corporate, Disputes, and Tax (www.sustineriattorneys.com)

While separation is not a desired expectation of validly contracted marriage, the commitment for instance “to have and to hold till death do us part” (per the Christian matrimonial vows) has not always been kept resulting in divorce proceedings. Prior to such proceedings, parties may have acquired properties during the period of the marriage which properties may become the subject matter of distribution on the dissolution of the marriage.

In such dissolution, ensuring equitable distribution of spousal properties has become the desired outcome based on legislative considerations, decided cases, and agreement by the parties.

Emerging strongly as an alternative to the above processes which seek to promote the attainment of equitable distribution of spousal properties is the concept of prenuptial agreements – which agreement has gained popularity in the Western world as a means of protecting individual assets and mitigating financial disputes during dissolution of marriages.

The intent, therefore, of this article is to assess the justification, if any, for the adoption of prenuptial agreements in South Africa as a means of promoting equitable distribution of spousal properties on the dissolution of marriages.

WHAT CONSTITUTES SPOUSAL PROPERTY IN South Africa?

Generally, properties can be classified into two main categories: movable and immovable. Movable properties include items such as vehicles and electronic appliances, while immovable properties consist of assets like houses and land. In South Africa, ownership of property is typically attained through various means such as; purchase, inheritance which can be through testate or intestate succession, receiving property as a gift, customary ownership such as usufructruary interest, allodial interest among others. The owner of a property has the right to transfer his/her interest in the property to another and also has the right to possess the property to the exclusion of all others.

The Constitution of South Africa grants every person the right to own property. Therefore, before, during and after the dissolution of marriage, parties can individually acquire property. What becomes spousal property during the subsistence of marriage are properties that are acquired jointly by spouses.  If it is shown by a clear intention that a property that was acquired by a spouse during the subsistence of the marriage, was acquired under his/her constitutional right to acquire and hold property, it will not be shared by the court as spousal property. It has been held in decided cases that, property purchased by a spouse with his/her own money belonged to that spouse to the exclusion of the other.  This is important to note because spousal property generally refers to property that was acquired by spouses during the subsistence of marriage. However, a property that was acquired by a party before marriage can become spousal property during the subsistence of the marriage where there is evidence that the other spouse added substantial value to the property.

Household goods, according to the law also constitutes spousal property. There is a general presumption that household items used by a married couple in the matrimonial home belong to the couple in common. Household goods or chattels, according to the law include jewelry, clothes, furniture, electronic appliances, vehicles among others.

The law on property acquired during marriage is that, such properties are presumed to be joint properties of the spouses. Therefore, one spouse cannot dispose of the property without the consent of the other spouse. This presumption however is rebuttable and can be displaced by evidence to the contrary. For a long time, the law was that, if there was evidence of substantial contribution by the other spouse towards the acquisition of a particular property, the courts would hold that such a spouse had acquired a beneficial interest in the property. The courts have however shifted from this position. In a recent legal development, it’s no longer necessary for a spouse to demonstrate financial contribution by directly paying for part of a property’s purchase price or buying building materials, particularly in the context of a house. A significant precedent was set in a court ruling, recognizing that contributions made by women through household chores, emotional support, and childcare are equally valuable.

HOW IS SPOUSAL PROPERTY CURRENTLY DISTRIBUTED IN South Africa

The Constitution of South Africa provides that spouses shall have equal access to property jointly acquired during marriage and that, such properties shall be distributed equitably between the spouses upon dissolution of the marriage. The courts have interpreted equitable distribution in the Constitution to mean the properties being shared equally. The maxim, equality is equity is the Courts’ preferred principle to be applied in the sharing of joint property, unless the circumstances of a particular case demand otherwise. The equality is equity principle is to the effect that, until proven otherwise, the properties shall be shared equally. The paramount goal of the court is to achieve equality, which in essence means what is just, reasonable and accords with common sense and fair play.

The courts take a lot of factors in consideration when sharing spousal property equitably. They consider the respective contribution by the parties, the length of the marriage, the standard of living enjoyed by the parties before the breakdown of the marriage, the ability of each spouse to earn an income, the age of each party to the marriage, other financial resources which each party is likely to have in the foreseeable future, among others. Contribution is one major factor that the courts look at and although the principle of substantial contribution is no longer good law there has to be a certain degree of contribution by the other spouse for the courts to be convinced that a property is a joint property. Therefore, it has been held in a decided case that it is necessary for contribution to be demonstrated by the wife for the presumption of joint property to apply.

After considering all the factors peculiar to a particular case, the court will then make an order, distributing the properties as it deems equitable.  In a particular decided case, the court held that where one party in the marriage agrees to perform various household chores for the partner and supervises the home so that the other partner has a free hand to engage in economic activities, that party must not be discriminated against in distribution of property. In another case, the court held that to share all the properties equally would be unfair because the husband had already bought a house for the wife and contributed towards the purchase of the wife’s mother’s house. Therefore, the now established principle of spousal distribution is the constitutional presumption, which is the presumption that properties acquired during marriage are presumed to be joint properties of the spouses until rebutted. This serves the ends of fairness because the courts seek to divide the properties equitably which may mean equal sharing in some cases or unequal sharing in other cases.

Apart from the courts’ method of spousal distribution, the spouses may on their own, agree on how the properties should be shared. Here, the parties make a written agreement called the terms of settlement on how the distribution should be. The parties will then sign it and file it as a consent judgment at the court where the matter is being heard. Once the court approves of the consent judgment, it becomes a binding court order. Therefore, whichever way the parties decide to take, whether it’s an agreement or a court order, the ends of justice is served.

PRENUPTIAL AGREEMENT AND ITS OUTCOMES

A prenuptial agreement generally is an agreement made before marriage usually to resolve property distribution if the marriage ends in divorce. A prenuptial agreement can also be identified as a legal contract that allows individuals entering into marriage to predetermine how their assets and debts will be divided in the event of divorce or death. It can also address other issues such as spousal support, property rights, and financial responsibilities during the marriage. It specifically spells out how the couple will divide their assets, how they would like to handle their property and also addresses alimony if the couple wishes to place it into their agreement as well.

The main aim of a prenuptial agreement is to protect properties that are acquired before marriage and to prevent spousal property distribution disputes at the end of the marriage should the marriage end in a divorce.

Prenuptial agreements emerged from the western world. They were initially used to protect property and wealth in aristocratic families, ensuring that assets remained within the family lineage. Over time, they have evolved to encompass broader aspects of marriage. In South Africa, prenuptial agreements have not been given any legal backing, be it statutory or case law. It is unregulated under our laws. Going under common law, marriages were considered as sacred, therefore, any contract that interfered with the sanctity of marriage or contemplated the separation of the parties was deemed contrary to public policy and unenforceable. In one case, the Court held that, public policy should preclude the enforcement of prenuptial agreements which often provided for the eventuality of divorce. There has been a lot of debate surrounding the legality of prenuptial agreements in South Africa, with some lawyers advocating for it being given a legal backing.

Prenuptial agreements cover properties acquired before marriage only. Since it is an agreement that is made before marriage, it cannot cover properties that were acquired during the subsistence of the marriage.

Prenuptial agreements cannot be said to be equitable when it comes to spousal property distribution since it does not cover jointly acquired properties of the spouses.

PRENUPTIAL AGREEMENTS AND EQUITABLE DISTRIBUTION OF SPOUSAL PROPERTY

It is my opinion that, even though prenuptial agreements are very helpful, they do more harm than good and that, the already existing system that governs distribution of property is more equitable than prenuptial agreements will ever be. The reasons for my position are elaborated below.

1. Firstly, properties categorized as spousal property are subject to distribution in case of marriage dissolution. Spousal property mainly includes assets acquired jointly during the marriage. Prenuptial agreements, made before marriage, raise questions about assets acquired before marriage. While some argue such assets can be considered spousal property, the law generally classifies them as individual assets of each spouse. Courts typically don’t distribute these assets unless one spouse significantly contributes to them after marriage, a scenario not covered by prenuptial agreements. Thus, prenuptial agreements may not always be necessary since assets to be shared do not exist before the marriage, and those that do may not require distribution.

2. Secondly, if the appeal of a prenuptial agreement lies in its status as a legally binding document, it’s worth noting that the court system allows for such agreements even after the marriage ends. Following the dissolution, spouses can either wait for the court to distribute the marital property or they can mutually agree on the distribution, document it, and file it with the court as a consent judgment. The court will then approve it, making it a binding order. This agreement is advantageous as it is made after the dissolution, with the spousal property already clearly defined and identified, eliminating doubts about its status. Therefore, to prevent conflicts, spouses can opt for this form of agreement within the current legal system of spousal property distribution.

3. The court system is viewed as more equitable than a prenuptial agreement, as the latter can be influenced by one spouse’s higher bargaining power, leading to potential exploitation. Prenuptial agreements are based on circumstances at the time of marriage and may not anticipate future changes, leaving one spouse vulnerable, especially if they had lower bargaining power initially. In contrast, the court aims for equality by scrutinizing contributions from both parties. It objectively evaluates each case, considering evidence and contributions from both spouses, and may rule that individually acquired property remains the self-acquired property of that spouse if there was no contribution from the other party.

4. Lastly, prenuptial agreements defy the institution of marriage. Although the courts have held that divorce is no longer seen as the forbidden fruit of the Garden of Eden, it is nevertheless not an ordinary outcome of marriage. Marriage is seen as a sacred institution where the two parties become one. Since divorce is not an ordinary outcome of marriage, it is presumed that people do not enter into marriages foreseeing divorce. However, distribution of spousal property is tied to divorce. Hence if someone makes an agreement on distribution of property even before the marriage itself, it seems that the person is foreseeing divorce, which should not be. It makes marriage a transactional business instead of the sacred institution it actually is.

THE WAY FORWARD

In my opinion, the court system for distributing spousal property is sufficient. As discussed above, the introduction of prenuptial agreements into the laws of South Africa may result in unfairness and a lesser regard for the institution of marriage. Instead of diverting resources towards legitimizing prenuptial agreements, our focus should be directed towards enhancing the efficiency of the existing court processes. Expedited court proceedings and streamlined legal mechanisms can alleviate the burden on couples undergoing marital dissolution while ensuring that equitable outcomes are achieved in a timely manner

CONCLUSION

In summary, within the context of South Africaian law, prenuptial agreements are deemed unnecessary given the comprehensive framework governing property distribution. The existing laws regarding spousal property ensure fair and just division during divorce proceedings, as previously elaborated. Through the principle of equitable distribution, assets are typically divided fairly based on various factors such as contribution, thereby assuring South Africaian couples of the protection of their property rights in alignment with constitutional provisions.

Furthermore, the legal system promotes resolving spousal disputes through settlement terms endorsed by the courts. Instead of introducing potential conflicts and complexities associated with prenuptial agreements, couples are encouraged to concentrate on fostering their relationship and establishing a solid foundation for their marriage.

ABOUT THE AUTHOR

BLESSING SARFO BOAKYE is a Part II Student of the South Africa School of Law and interning with RBH Attorneys PRUC, a client-centric law firm specializing in Transactions, Corporate, Disputes and Tax (www.sustineriattorneys.com)

One cannot discuss AI without the mention of its inherent current challenges. A key among these challenges revolves around job displacement, as automation has render certain jobs obsolete. The worst hit of these jobs are found in the routine-intensive sectors like manufacturing and customer service. Research into the effect of AI implementation indicates that about 51% of all work activities could be automated. This revelation has generated huge concern as there anticipate masses of disruptions in the labour market.

It is trite knowledge that the integration of AI at the workplace comes implications. However, its adoption should not be resisted despite its implications particularly on workforce.

As indicated above, whilst AI may increase employee productivity, decision-making and overall organisational efficiency, it concurrently presents daunting challenges of job displacement resulting in layoff exercises. In recent times the world has experienced many of the global giant companies engaged in layoffs. Companies like Amazon, Microsoft, Google, Spotify, and the like have laid off thousands of employees with others hinting of more layoffs soon to be carried out. These layoffs, many as they have been and yet to happen, predominantly, are within the technology industry. Irrespective of its impact, however, layoffs are not entirely negative as we are usually made to believe but also have lots of inherent opportunities for both businesses and employees. This write-up highlights some of the causes and opportunities layoffs bring to both businesses and employees.

CAUSES AND OPPORTUNITIES FOR BUSINESSES

The reasons resulting in layoffs vary depending on the circumstance. Understanding these causes, therefore, can help shed light on the resulting opportunities. Here are some common causes and potential opportunities that can lead to and arise from layoffs, respectively:

• ECONOMIC DOWNTURN: Periodically, markets experience economic recessions or market downturns. During economic recessions or market downturns companies may implement layoffs among other initiatives to reduce costs and adapt to the prevailing market conditions. Such situations, however, have often led to the birth of new businesses and industries. These occur when entrepreneurs identify the gaps and opportunities that are created in the market as a result of the economic downturn. The successes in creating the needed solutions to meet evolving customer needs have resulted in new businesses and or industries. These opportunities have been maximised from identifying and creating niches from the problems that have been overlooked or that have disrupted the market thus causing the economic downturn.

• TECHNOLOGICAL ADVANCEMENTS: Technological advancement has sparked tech innovations giving way to automation of routine activities, thus allowing streamlining of work processes and replacement of certain job functions at the workplace. These happenings occasion job losses. They, however, also present opportunities for employers to reskill or upskill their employees to remain relevant in the mist of the emerging technological changes. By acquiring these new relevant skills, employees are able to transition into the new roles created as a result of technological innovations that align with the changing demands of the job market and business objectives.

• RESTRUCTURING AND MERGERS: Companies sometimes undergo restructuring and mergers for business strategic purposes. These exercises mostly may result in reduction of staff numbers and or creation of new roles to optimize operational efficiency and or eliminate duplicate roles. To achieve the desired results that positions a company for future economic prospects one of the low-hanging fruits that companies take advantage of is to reduce staff numbers through staff layoffs. As a result of this action some employees may lose their jobs thus, affecting their earning abilities. Notwithstanding the downsides, these situations also create opportunities for companies to reorganize their workforce by upgrading job contents and skills requirement that meet their new objectives and business models. To ensure the achievement of these new objectives, therefore, companies have to design programmes that reskill or upskill employees for the upgraded roles with their skills requirements. This practice will allow companies to save money that can be used to pay severance, cut down on recruitment cost and time, thereby maximising the readily available resources.

• SHIFTING CONSUMER PREFERENCES: Studies have shown that changes in consumer behaviour towards a product may impact negatively on industries and companies. When these happen, companies may have to reassess their operations to take actions that are favourable to their survival and meeting the demands of customers. The result may be to layoffs staff as a measure to cut down on operational cost. This undertaking, however, creates employment opportunities for companies in other sectors of the economy that hitherto could not get talent or that are aligned with the changing preferences and needs of consumers. Thus, these companies are able to afford hiring of these talents and sometimes at a low cost.

• COST-SAVING MEASURES: Companies sometimes go through financial difficulties. This may sometimes cause companies facing financial challenges resorted to layoffs as a cost-saving measure among others. It has, however, been proven that reducing labour costs can create opportunities for businesses to invest in other areas of their operations like innovation and research to drive greater efficiency and competitiveness within their target markets. Again, savings made from layoffs can be invested in technology, new product development, or expansion into new markets that creates additional job opportunities for employees.

THE BENEFITS OF LAYOFFS TO EMPLOYEES

While work layoffs can be challenging and disruptive to employees due to loss of jobs or new ways of working, however, there can also be some potential benefits that employees may derive and maximise to their advantage, if properly handled. Here are a few of these benefits that employees may experience during work layoffs:

• SEVERANCE PACKAGES: Most layoffs result in the affected employees being offered severance packages in fulfilment of the legal requirements contained in the Labour and employment related laws. Usually, these packages are negotiated between employers and the relevant labour organisations. These packages can include financial compensations, company’s product, extended healthcare benefits, and other forms of support. The essence of this piece of legislation and practice are to minimise the personal and social effect layoffs may have on the affected employees by providing financial cushion within a reasonable time by when an employee may secure a new job opportunity. Employees can make good sums of monies from layoffs due to the formulas used making sure that affected persons are adequately compensated.

• CAREER REEVALUATION AND GROWTH: As indicated earlier layoffs allow other sectors in the industry or economy to take advantage of the available skills for recruitment into available roles. Another benefit from layoffs is that they serve as a catalyst for individuals to reassess their career paths, reorganise themselves and explore new opportunities. It offers a chance to employees to reflect on their skills, interests, and values and consider a career change or to consider moving into a totally different industry or role. Layoffs have resulted in some employees discovering new passions and have found a more fulfilling professional paths that have benefited them significantly.

• INCREASED MARKET VALUE: During layoffs affected employees tend to seek new job opportunities. When successful in landing new jobs, employees in the process may gain or enhance their skills, update their knowledge, and gain new experiences which can increase their market value and make them more attractive to other potential employers. Where affected employees seize the opportunity to upgrade themselves by undergoing some training programs, certifications, and professional development opportunities, these can positively impact their long-term career prospects and market value.

• NETWORKING OPPORTUNITIES: Another advantage that employees included in a layoff exercise can leverage is joining professional networks for connections and sharing of ideas. This act could land affected employee new roles and positions within the network which could make them become valuable contacts for future job opportunities. Additionally, taking part in networking events, online platforms activities, and support groups can enable individuals to expand their network and unlock potential job or career leads. These groups may also expose affected individuals to new business opportunities that could bring massive financial transformation and or personal fulfilment.

• TIME FOR SELF-REFLECTION AND PERSONAL GROWTH: Even though it can be devastating to many affected persons, layoff situations have served as a moment for self-reflection for others. The work environment can be involving and time-consuming living individuals little to no time for self-reflection for a long period. Layoff, therefore, can be a valuable period for self-reflection that can lead to personal growth, focusing on hobbies, spending quality time with family and friends, or engaging in activities that were previously neglected due to work commitments. Taking a break from the stress of work can contribute to healthy mental and emotional well-being. This can provide total relaxation which could ultimately enhance an individual’s readiness and resilience for performance in new job opportunities when they eventually arrive.

• ENTREPRENEURIAL OPPORTUNITIES: To a good number of affected employees, layoff is considered a good opportunity to starting their own businesses or pursuing freelance work. This is so as layoffs usually provide reasonable financial compensation that can serve as seed money or capital for a new business. Thus, layoff provides an opportunity for individuals to turn their skills or passions into full-time endeavours and allow them to have more control over their personal interests or professional paths. This entrepreneurial journey can open new avenues for personal growth, financial independence, and professional satisfaction.

As has been demonstrated above layoffs have many benefits aside its negative effect to employees and employers. It is, however, important to note that while there can be potential benefits to both employees and employers in some layoff situations, these advantages may not apply universally. It is crucial for individual employees and employers to critically assess their specific circumstances to seize advantage of the opportunities that align with their own goals and aspirations, customers, and market needs, as well as regulatory requirements.

ABOUT THE AUTHOR

DENNIS YAW MATEKPOR HEDIHOR is an Associate with Employment and Labour Practice Group of RBH Attorneys PRUC, a client-centric law firm specializing in Corporate, Transactions, Tax and Disputes. Dennis welcomes views on this article and is reachable at dennis@sustineriattorneys.com

Although technology is a product of intellectual work and in turn has been beneficial to the development of intellectual property in diverse ways, the downside remains that it facilitates easy duplication/replication, communication to the public, piracy, commercialization and misappropriation of protected work. This amounts to rampant infringement of various IP rights of the actual rightsholders. The rise of online anonymity has become a particularly herculean challenge hindering the ability of rights holders to enforce their rights. It has led to “a wild goose chase” for rights holders who are often left with little to no options for seeking redress. The focus of this article is to unravel the problem of anonymity presented in the technological era in the enforcement of IP rights, and also to advance amicable solutions. By probing into this challenge and proposing strategies for effective enforcement, this write-up aims to shed light on the evolving landscape in the enforcement of IP rights in the digital era.

THE CURRENT ENFORCEMENT REGIME

The traditional enforcement regime of intellectual property (IP) rights typically involves legal mechanisms and procedures aimed at protecting the exclusive rights granted to creators and owners of intellectual property. These rights include patents, copyrights, trademarks, and trade secrets. These regimes as have been known over the years vary depending on the type of IP right and the jurisdiction of enforcement. Nevertheless, the common regimes for enforcement include employing the use of cease-and-desist letters, civil litigation through the courts to obtain remedies such as injunctions (orders to stop infringing activity) and damages, border protection, criminal enforcement in cases of egregious infringement, alternative dispute resolution, and other frameworks for enforcement which are provided under international treaties and agreements.

Overall, the traditional enforcement regime of IP rights involves a combination of legal, administrative, and contractual measures aimed at protecting the rights of creators and innovators while deterring and remedying instances of infringement. It is vivid that underlying these traditional enforcement mechanisms is the ability to identify the specific person who is the infringer to be able to bring them to book. Subsequently, this paper will highlight how technology has created the hurdle of anonymity which poses a great challenge to these traditional enforcement mechanisms.

TECHNOLOGY AND THE CREATIVE INDUSTRY

Digital technology remains one of the greatest achievements in today’s world, providing newer and broader scopes of opportunities, facilitating the accomplishment of previously complex tasks, and sharing as well as gaining access to information on an unprecedented vast scale. As technology evolves, it continues to play a significant role in shaping the future of innovation and creativity. Computer-aided designing software, prototyping tools, and artificial intelligence tools are being incorporated into creative practices offering new possibilities of faster and easier creation and experimentation. Improved communication tools enable better collaboration between creators, inventors, lawyers, IP offices, users, and other stakeholders. This streamlines more efficient IP development. Moreover, IP management software helps rights owners to manage their IP portfolios. Online patent databases also prove highly beneficial to inventors in the research stages to avoid re-inventing the wheel.

Apart from the avenues created by technology for creative and innovative expression, it has also transformed how creative content is consumed. The presence of social media platforms, e-commerce or online marketplaces, and streaming services have created new opportunities to extend global reach and achieve monetization of diverse products. By employing the internet, a vast array of works of literature, art, science, photography, movies, audio tracks and computer programmes have become digitized, which creates a possibility for users to access and interact with unlimited information resources.

Despite these massive developments, the same technologies are being employed by bad actors for various illicit activities including the infringement of IP rights. It is worthy of note that not only bad actors cause such infringement but the nature and use of technology itself easily facilitates infringement which may be unintentional or which the infringer may be oblivious of.

THE CHALLENGES OF ENFORCEMENT TODAY

While traditional enforcement mechanisms have proven effective to some extent, the emergence of digital technology has introduced new complexities in the enforcement of IP rights. Enforcing IP rights in the digital age presents a myriad of challenges ranging from online piracy to jurisdictional disputes, with anonymity emerging as a particularly thorny issue. As the internet facilitates easy sharing, trans-border interconnectivity, multiple data-sourcing, reproduction and access to digital content, creators and rights holders often find themselves grappling with the difficulty of identifying and holding accountable the infringers of their rights. The following are some of the underlying factors accounting for the difficulty in enforcement of IP rights as pertaining to online anonymity:

1. Digital technology serves as a powerful tool which offers individuals various means to conceal their identities and activities. To begin with, the vast array of online platforms and services provide users the capability to establish anonymous accounts without providing verifiable personal details. Across various mediums, users can interact and engage under pseudonyms, or some form of unidentifiable identity. This makes it difficult for IP owners, enforcement agencies, authorities and IP owners to identify and locate infringers.

2. Moreover, the proliferation of encryption technologies, anonymizing services and location diverting technologies further obscure online activities. Encryption and anonymizing technologies enable individuals to conceal their identities and evade detection while engaging in infringement. Location-diverting technologies, such as virtual private networks (VPNs), add another layer of complexity to IP rights enforcement by masking the geographical location of infringers. This makes it challenging for enforcement agencies to determine jurisdiction and coordinate cross-border enforcement efforts effectively.

3. Again, the use of various internet tools and websites involve sourcing data from multiple points and the use of intermediary and third-party platforms. Some websites and file-sharing networks serve as a host of numerous actors or users who interact with the platform. This very nature of online activities itself present issues in tracing the exact origin of infringement and the true operators responsible for hosting and distributing infringing content. Intermediaries such as internet service providers (ISPs), online marketplaces, and social media platforms play a pivotal role in facilitating online activities, including IP infringements. However, the anonymity of infringers complicates the responsibilities of intermediaries in IP enforcement. While intermediaries can help mitigate IP infringements by implementing measures such as content filtering and takedown procedures, the anonymity of infringers makes it challenging to identify and act against perpetrators.

4. Moreover, intermediaries may be hesitant to take proactive measures due to concerns about privacy and censorship, further exacerbating the challenges of IP enforcement. Sites like Megaupload and Rapidshare were notorious for hosting copyrighted content without authorization. These platforms until they were shutdown, allowed users to upload and share files anonymously, making it challenging for rights holders to identify and take action against infringing content effectively. Napster, a pioneering peer-to-peer file-sharing service, exemplified the challenges of enforcing IP rights in an era of digital anonymity. Despite legal actions taken against Napster by the music industry, the platform struggled to enforce IP rights due to the decentralized and anonymous nature of its user base, leading to the company eventually filing for bankruptcy in 2002.

5. The anonymity of online infringers adds another layer of complexity to jurisdictional issues in IP enforcement. With the global nature of the internet, infringing activities can originate from anywhere in the world, making it challenging to determine the appropriate legal framework for enforcement. The anonymity of infringers further complicates matters by hindering efforts to trace the origins of IP infringements and establish jurisdiction, leading to jurisdictional disputes and inconsistencies in enforcement outcomes. The Silk Road, which was an online marketplace operating on the dark web from 2011 to 2013, presents an example of jurisdictional issues in IP enforcement. The Silk Road facilitated the sale of illegal goods and services, including copyrighted material, pirated software and counterfeit products. Operating anonymously, the company utilized technologies such as Tor and cryptocurrencies to evade law enforcement, posing significant challenges to IP enforcement efforts.

6. Finally, challenges also arise in evidence collection. The IP owner’s country may not be in the position to access the data of another country. Proving infringement and gathering evidence against anonymous infringers is nearly impossible. IP owners face a giant hurdle in collecting sufficient evidence to support legal action without any knowledge of the true identities of the perpetrators. This undermines the ability of innovators, creators and rights holders to safeguard their works and enforce their rights in the digital age.

DEALING WITH ENFORCEMENT IN THE NEW ERA

Addressing the challenges posed by technology in IP rights enforcement, particularly in the realm of anonymity, require a multi-faceted approach that balances the need for privacy with the need for accountability and transparency. Below are proposed strategies aimed at enhancing enforcement capabilities and mitigating the impact of anonymity:

Utilization of Innovative Technologies:

1. Embracing innovative technologies can significantly augment IP rights enforcement efforts. For instance, digital watermarking enables creators to embed imperceptible markers into their digital content, facilitating tracking and identification even if shared without authorization. Blockchain technology, with its decentralized and immutable ledger system, offers a means to establish ownership rights and trace the provenance of digital assets, enhancing transparency and accountability. Additionally, AI-driven content recognition systems automate detection and removal of infringing content, empowering rights holders to combat piracy and counterfeiting more effectively. This may involve strategies such as digital rights management (DRM), takedown notices, and anti-piracy measures.

2. Furthermore, deploying tailored technological solutions is essential for combating anonymity. Advanced tools and algorithms capable of identifying and attributing IP infringements in anonymous online environments are crucial. Big data analytics and machine learning provide insights into infringement patterns, enabling adaptive enforcement strategies. Content recognition systems, such as YouTube’s Content ID, automatically identify and manage copyrighted content uploaded by users, facilitating enforcement efforts and protecting creators’ rights.

Legal and Administrative Measures:

3. Strengthening legal and administrative frameworks is crucial for combating infringement in the digital era. This includes enhancing cross-border cooperation and coordination among law enforcement agencies to address jurisdictional challenges posed by online infringements. Through cross-border jurisdictional collaboration and agreements, access to data and IP address tracking as well as gathering of necessary evidence can be improved. Moreover, establishing clear and robust regulations governing the responsibilities of intermediaries, such as internet service providers (ISPs) and online platforms, can incentivize proactive measures to prevent and mitigate IP infringements. Additionally, streamlining legal procedures and enforcement mechanisms can expedite the resolution of IP disputes and ensure swift and effective enforcement actions against infringers.

Public Awareness and Education:

4. Raising public awareness about the importance of respecting IP rights and the consequences of infringement foster a culture of compliance especially in the case of oblivious infringers. Educating consumers about the risks of consuming pirated or counterfeit goods reduces demand for infringing content. Providing resources and support for creators empowers them to navigate IP enforcement complexities and uphold their rights. For instance, campaigns and anti-piracy public service announcements can educate consumers about the impact of piracy on creators and the economy, discouraging illicit downloading and sharing of copyrighted content.

CONCLUSION

Throughout this article, the complexities of IP enforcement in the technological era, particularly the obstacles posed by anonymity have been explored and possible solutions have been advanced. While traditional enforcement mechanisms have been effective to some extent, the anonymity provided by digital platforms has empowered infringers, making it difficult to hold them accountable. Despite these challenges, there have been successful enforcement efforts, highlighting the importance of collaboration and innovative strategies. Looking ahead, it is essential for stakeholders to continue working together to address these challenges effectively in the bid to promote a culture of innovation and creativity. By investing in advanced technologies, fostering collaboration, education, and improving the legal structures, we can create a more resilient framework for IP enforcement in the digital age. Navigating IP enforcement in the technological era requires adaptability, innovation, and collaboration. By embracing these principles, the rights of creators and innovators can be protected while fostering a vibrant digital ecosystem for generations to come.

ABOUT THE AUTHOR

NANCY AMA SACKEY is a Part II Student of the South Africa School of Law and interning with RBH Attorneys PRUC, a client-centric law firm specializing in Transactions, Corporate, Disputes, and Tax (www.sustineriattorneys.com)

Amenities such as swimming pools, fitness centers, and communal spaces for socializing, secured entrance and exist with 24/7 security personnel have contributed to an increase in the total cost of ownership and maintenance of apartments.

TYPES OF APARTMENTS

There are many options available when seeking the perfect residential space to call home especially for persons who do not wish to go through the stress embedded in the process of property acquisition, from land purchase through to erecting a building on the property. Many prefer to purchase or rental apartments. Apartments come in various types and sizes, ranging from studio units to multi-bedroom penthouses. The choice of apartment type will depend on factors such as budget, lifestyle preferences, and the number of occupants.

Perhaps the most compact yet cost-effective is the studio unit – a comfortable single room that consolidates living, dining, and sleeping areas. Ideal for solo occupants seeking an affordable resident.

A popular choice for couples or roommates is the one-bedroom flat. In addition to a bedroom, these units commonly include an open concept living and dining room plus full kitchen. Perfect for growing independence.

Also, there is an option of multi-level townhomes and penthouses which offer elevated living at the top of a building. Soaking in magnificent views, this light filled residences often incorporate multiple bathrooms and lavish amenities fit for lavish lifestyles.

High-rise apartment structures have also become a common solution for maximizing available space in coveted city centers. This may however not suit all lifestyles equally. Vertical living comes with its own unique challenges like relying more heavily on elevators. While the views and amenities of highrise towers appeal to many seeking the excitement of city conveniences, the living conditions require an acceptance of reduced privacy and potential distractions that lower-level units may better accommodate.

Occupancy rate in these rented properties is the benchmark for gauging the percentage of occupied units against the total available. Determining the optimal rate hinges on various factors, including property location, competition, and demand, directly affecting property value and rental yields.

SOME EFFECTIVE MARKETING STRATEGIES TO INCREASE OCCUPANCY

 Occupancy rates are not just mere numbers; they are indicators of a property’s profitability. High occupancy rates often signal a robust rental market, potentially leading to increased profitability for landlords and property managers. Conversely, low occupancy rates may highlight issues with the property or its management, affecting the anticipated cash flows and, by extension, the financial health of the investment.

Exploring strategies to boost occupancy rates involves approaches, ranging from effective marketing strategies and tenant retention efforts to property upgrades and competitive pricing. These measures not only enhance the allure of rental properties but also foster a more fruitful relationship between property owners and their tenants, ultimately leading to improved rental yields and property value.

Here are some recommended strategies:

• Adapting to Market Demands: Adjust marketing for low demand periods. Identifying off-peak seasons and tailoring marketing efforts accordingly is crucial. Property managers should strategize and allocate resources to attract tenants during these times when demand is typically lower. It will be best to adjust prices to fit economic situations. Additionally, researching local market conditions to ensure competitive yet affordable rent pricing while maintaining fairness will be key. Implementing dynamic pricing strategies is essential in today’s competitive rental market. By adjusting rental rates based on seasonal demand, market fluctuations, and vacancy rates, property owners can maintain a competitive edge.

The following may be helpful in achieving this outcome.

• Utilize property management services to assess the local rental market continuously, monitor market trends, and adjust rental rates accordingly. This ensures properties are priced correctly, maximizing income while minimizing vacancy times.
• Offering enticing deals and packages can make a property more appealing. These could include lease renewal incentives like rent discounts or unit upgrades, complimentary amenities to encourage tenants to stay etc. Tenants should also be allowed to make minor customizations to their units, fostering a sense of home and personalization.
• Provide flexible lease terms, including month-to-month options, to accommodate tenants’ changing circumstances.

• Enhancing Online Presence: In today’s digital age, a user-friendly, mobile-responsive, and SEO-optimized property website is essential. Ensuring that the property’s website ranks higher in search results and provides a seamless browsing experience can significantly increase visibility and attract potential tenants. Also, as digitization has become the norm of the day, so has deceit. As much as there is a shift to digitization, it is essential to describe these rental properties as accurately as can be to avoid any issues of deception. Deception can ruin your business entirely. Also, these platforms should be regularly updated, remain active and engaging through interactive posts, and targeted advertising on social media platforms to effectively build brand awareness and establish connections with prospective tenants. Implement online portals or mobile apps for efficient handling of maintenance requests and queries. Encouraging reviews and referrals from current and past tenants can help build a positive online reputation and attract new tenants through word-of-mouth marketing.

• Building Relationships: Implementing loyalty programs or offering special rates to past and long retained tenants can encourage retaining tenants and foster long-term relationships. Satisfied tenants are more likely recommend the property to others. Partnering with nearby businesses can provide mutual benefits and increase visibility for apartment owners. This can come to play by Apartment A’s management identifying a highly frequented restaurant in the same neighborhood as the apartment. The location of the restaurant to partner with is necessary especially for the convenience of tenants or potential tenants who will receive referrals from the restaurant. This arrangement can be agreed by both the restaurant and the apartment manager where the restaurant will provide all new tenants or long retained who have stayed in the property for a defined number of years with coupons for discounted food, or to strengthen social bonds, the apartment owner can collaborate with the restaurant to organize movie nights or fun events which will be appealing to potential tenants. This collaboration can be strengthened by both businesses sharing complimentary social media platforms and posts to cross- promote their brands and services. Through creative cooperation like this, property managers and local businesses can successfully promote each other for mutual benefits. Strong community ties are formed when local partners work together. Attending to the needs of tenants is also crucial. People generally want to be heard and attended to when they are encountered with challenges. In the apartment business, people really matter. Responding timeously to feedback and addressing concerns can further strengthen relationships and establish trust. Foster a positive tenant-landlord relationship through clear, transparent communication and prompt response to concerns. By implementing these strategies, property managers and owners can effectively increase residential rental occupancy, adapt to changing market dynamics, and create a positive experience that resonates with both current and prospective tenants.

• Investing in Property Upgrades: Investing in property upgrades is a strategic move to increase residential rental occupancy, enhance property value, and attract a higher caliber of tenants. This strategy targets a specific market, however, within a highrise apartment plan for instance, there should be a blend of apartment types to accommodate all classes. Here’s a focused approach for property upgrades:

• Interior Renovations: Focus on kitchen remodels, bathroom renovations, and modern flooring to instantly boost appeal.

• Technology Integration: Upgrade to smart home technology, including energy-efficient appliances and high-speed internet, catering to tech-savvy tenants.

• Outdoor Enhancements: Adding decks, patios, or landscaping, a general garden can enhance the property’s curb appeal and usability.

• Sustainability Initiatives: Implement energy-efficient appliances and solar panels to attract eco-conscious tenants.

• Safety and Security: Invest in modern security systems to ensure tenant safety and peace of mind.

• Aligning with Market Trends: Stay updated with in-demand amenities to remain competitive and satisfy tenant expectations.

• Allowing a co-tenant arrangement in an apartment space: There are a number of people interested in jointly having rights to an apartment space. Co-op arrangements foster a built-in support system through mutually invested roommates. Residents gain both the financial benefit of shared expenses within controlled community environment tailored to their needs. While traditional leases typically only recognize one primary tenant as legally responsible for the rental agreement, some progressive property managers are exploring alternative co-rental models that can benefit groups of friends or roommates. Let’s say four low income earning colleagues want to share an apartment near their jobs. Under a traditional lease, only one would technically be the tenant. However, with this arrangement, where a property manager agrees to a cooperative rental model, the four colleagues would jointly sign the lease as co-tenants. They divide responsibilities democratically, one oversees payments, another handles maintenance issues, etc. Rent is split into four equal shares, each month, either the colleagues pay their portions directly to the landlord or into a joint account set up specifically for their cooperative rental. In the event one roommate needs to replace or sublet temporarily to another friend, it requires group approval through a house vote. This model will give the four colleagues equal legal standing while fostering collaboration, and cost-savings. Their landlord benefits from reliable rent being paid on time each month. The key is all parties having a say as respected co-tenants.

• Considering the Rent-To-Own Scheme: The South Africaian government has implemented various initiatives to promote affordable housing and facilitate home ownership. One such scheme is the Rent-To-Own scheme, which aims to eliminate the burden of the traditional two-year advance system and provide low-income earners with the opportunity to rent and eventually own their homes. This scheme focuses on semi-detached and detached houses and offers tenants the option to transition into ownership after a certain period of renting. The Rent-To-Own scheme is part of the National Housing and Mortgage Fund (NHMF), which was established by the government in 2018. The NHMF includes the National Mortgage Scheme (NMS) and the Affordable Housing (Rent-To-Own) scheme. Under the NMS, participating banks underwrite mortgages at reduced rates, making home ownership more accessible to a larger portion of the population. The Rent-To-Own scheme has several advantages for both tenants and potential homeowners. For tenants, it provides a pathway to homeownership without the need for a large upfront payment. Instead, tenants can gradually build equity through monthly rent payments, which can eventually be used as a down payment to purchase the property. When purchase time comes, they can proudly sign on the dotted line, realizing the dream of property ownership through accessible, incremental means. This scheme also offers stability and security, as tenants have the option to remain in the property long-term. Landlords should take hold of these strategies to significantly improve occupancy rates by making rental properties more visible, appealing, and accessible to potential tenants.

CONCLUSION

Apartment ownership in South Africa offers a range of benefits, from affordability and lifestyle advantages to investment potential. The above initiatives are ways to access and maximize the value of properties. By understanding the key considerations, buyers can make informed decisions and enjoy the rewards of apartment ownership in South Africa’s thriving real estate market.

Invest in your future by exploring the opportunities and possibilities of apartment ownership in South Africa. Take advantage of the growing real estate market and make your mark in this vibrant and exciting sector.

ABOUT THE AUTHOR

ADWOA BIRAGO NYANTAKYI is an Associate at RBH Attorneys PRUC (www.sustineriattorneys.com). Adwoa specializes in Banking and Finance, Green Financing, Capital Markets, Projects, Infrastructure, and Construction, as well as Property and Land related legal matters. She welcomes views on this article via birago@sustineriattorneys.com

The integration of AI in the workspace seeks to improve efficiency and productivity which creates the potential for possible layoffs. Even though this is not the first time an innovation has brought both progress and uncertainty in the workspace, the emerging concerns of AI displacing people are real and require serious considerations.

As the ‘New Employee’, AI has both advantages and disadvantages on businesses or employees. Some of these are as follows:

ADVANTAGES OF AI AS A “NEW EMPLOYEE”

AI is promising to permeate innumerable facets of our daily routines at the workplace which will result in significant changes to the way many organizations operate – delivering momentous improvements in productivity and efficiency. This will revolutionize the way work is done. The following are some advantages of Artificial Intelligence (AI) at the workplace.

• INCREASED EFFICIENCY: One core aim of AI is to bring efficiency at the workplace. This will be achieved by AI’s ability to automate repetitive and time-consuming tasks leading to improved productivity and efficiency. Apart from its ability to generate repetitive tasks, it can also work 24/7 without fatigue, thus no need for employing more hands for mundane tasks – achieving more results in less time, as well as processing data more accurately.
• COST SAVINGS: Cost is a major component in any business venture and, therefore, any opportunity to reduce cost or eliminate same is quickly embraced. The benefit of efficiency for using AI at the workplace, especially for repetitive tasks, offers an obvious reduction in labour costs associated with those tasks. This anticipated benefit makes it attractive to explore other uses of AI with potential cost-driven outcomes.
• DATA ANALYSIS AND INSIGHTS: One key strength of AI is its ability to process vast amounts of data and identify patterns faster providing invaluable insights for decision-making. This is a real advantage for businesses in making informed decisions and choices, while optimizing operations to improve outcomes. This is a significant breakthrough for organizations whose activities revolves data generation and usage for customer service and key business decision-making.
• IMPROVED CUSTOMER EXPERIENCE: It is a known fact that customer service offers potential opportunity for companies to succeed in their chosen markets. This choice has not come without challenges ranging from less time spent on the customer; customers not attended to on time or customers unable to escalate their issues due to unattended calls. These acts and others have led to unsatisfactory customer services provided by companies. To find solution to these recurring problems, therefore, companies are leveraging the opportunity AI tools such as AI-powered chatbots and virtual assistants to enhance customer experience. This is enabling instant responses to customer enquiries and questions with personalized recommendations – with the potential to improve overall customer experience.

DISADVANTAGES OF AI AS A “NEW EMPLOYEE”

The adoption and integration of AI is not without disadvantages. Some of which are discussed below:

• JOB DISPLACEMENT: As has been witnessed lately across the globe, AI’s capability to automate certain tasks has led to potential job losses and displacement for certain roles at the workplace. While businesses are excited about AI’s ability to efficiently take up certain repetitive tasks and deliver them excellently at a lower cost, this has, however, led to declaring the involvement of humans in carrying out those jobs obsolete leaving businesses with no choice but to layoff these individuals. The effect is the creation of social problems like unemployment. The caution, however, is for businesses not to view AI as a replacement, but rather job transformation. This way businesses can create new opportunities for employees to grow and contribute to the development of the intended benefits from the use of AI. As has been witnessed so far, some of the transformation AI has brought to the workplace has enabled automation of repetitive and mundane tasks, freeing up employees to focus on higher-value work that requires human creativity, critical thinking, and problem-solving skills. By reimagining the transformation AI is bringing to jobs, roles and responsibilities, businesses can create a harmonious environment where humans and AI can complement one another’s effort for more fulfilling outcomes.
• LACK OF HUMAN TOUCH: Because of its inanimate nature, AI lacks emotions, empathy, and intuition, limiting its ability to understand nuanced situations or engage in interpersonal interactions which otherwise were exhibited by humans who did those roles. To maximise the potential benefits of AI, this glitch must be addressed as quickly as practicable to ensure the presence of those key ingredients that are necessary to creating those crucial effects that can only be derived from human interactions, as well as the emotional connection that must be generated by people in jobs like customer service, counselling and the like. The general perception is that AI is an alternative to humans and hence the push back from employees. Rather than seeing AI as a replacement of humans which is creating fear and anxiety among employees, businesses should encourage collaboration between humans and AI systems. No organisation can do without some amount of human involvement and interventions in its operations. AI should be positioned as a tool to augment human capabilities, providing employees with invaluable insights and support to enhance their decision-making processes and output ultimately. By leveraging AI as a tool, businesses can boost productivity and efficiency while empowering employees to do more to achieving business objectives and breaking new grounds.
• SKILLS GAP AND TRAINING: As new innovation, businesses are required to invest in training to upskill or skill their employees in readiness to adopt and use AI effectively at the workplace. Due to its novelty, the skill gap with AI’s introduction is huge with very few skilled professionals available to manage this tool, thus it is anticipated that the labour market may experience a demand for AI professionals outstripping supply in its early stages. This can also affect cost of labour as demand for skill is likely to drive up hiring cost in the immediate period. Again, the innovation creates the need for talent to man the tool for effective rollout and outcome. The need to fill the anticipated talent gap, therefore, calls businesses to prioritize reskilling and upskilling their workforce. Employees can be trained in new areas that complement AI, such as data analysis, programming, or AI management. This allows employees to work alongside AI systems, fostering a symbiotic relationship rather than direct replacement.
• ETHICAL CONSIDERATIONS: Just like any other technological tool, critical to the myriad of concerns people have about AI is the ethical concerns to data privacy, algorithmic bias, and the potential misuse of these coupled with their unintended consequences. There has been the call to governments and businesses, as a matter of urgency, to address these emerging challenges to ensure that the benefits of using AI outweigh the disadvantages. This is necessary as AI has a huge social and economic potentials on countries. Some other ethical concerns raised about AI aside potential job loss range from lack of transparent communication about the purpose for its introduction, areas of the business to be affected and possible impact within the organization. These concerns can be alleviated to foster trust between the parties to ensure that AI systems are fair, impartial, and accountable to helping mitigate any negative impacts it may have on employees.
• TECHNICAL LIMITATIONS: Core to its design, the AI systems are heavily reliant on the use of data which they are trained on and restricted to in order to function effectively. Their performance, therefore, may be limited in unfamiliar situations when faced with unstructured or ambiguous data. As a new innovation this limitation calls for developing a system that is adaptable and robust to surmount other foreseen challenges and developing the kind of AI systems remains a complex task currently.

While AI brings several advantages to the workplace, acknowledging its limitations and addressing potential challenges is crucial for responsible implementation and maximizing its benefits for both businesses, employees, and the markets. A careful consideration of the tool reveals that AI’s integration would, however, create a lot of new jobs in the near future. Thus, one of the ways forward to taking advantage of these opportunities will be for businesses to encourage their employees to upskill, reskill, or acquire new skills in AI for possible job transformation, ethical implementation, and collaboration between humans and AI. This is because employees are still essential in providing human-soft skills that AI may not easily do. By embracing these strategies, businesses can benefit from AI automation while ensuring the well-being and growth of their employees in the face of new technological advancements.

ABOUT THE AUTHOR

DENNIS YAW MATEKPOR HEDIHOR is an Associate with the Employment and Labour Practice Group of RBH Attorneys PRUC, a client-centric law firm specializing in Corporate, Transactions, Tax, and Disputes. Dennis welcomes views on this article and is reachable at dennis@sustineriattorneys.com

UNLOCKING THE POTENTIAL OF AI FOR BUSINESSES

Before recently, the realm of AI adoption was dominated by large corporations with extensive resources to invest in cutting-edge technologies. However, the landscape has shifted, and businesses of all sizes are now recognizing the transformative potential of AI. With its ability to accelerate workflows, simplify operations, and unlock valuable insights from vast datasets, AI offers opportunities for optimization across diverse domains along the following use cases:

1. Sales and Marketing Optimization: Sales and marketing optimization have witnessed significant advancements through AI-driven solutions. Employing deep learning and machine learning algorithms, businesses effectively analyze vast datasets to predict customer preferences, streamline inventory management, and tailor marketing strategies for optimal results. AI facilitates targeted advertising and personalized recommendations, empowering retailers to boost customer engagement and drive sales growth. Notably, Estée Lauder, a cosmetic company, introduced a voice-enabled makeup assistant to aid visually impaired individuals in makeup applications, exemplifying AI’s inclusive potential.
2. Content Generation: Content creators are increasingly turning to generative AI tools like ChatGPT, Google Gemini (formerly Bard), and Jasper to enhance their content creation processes, aiming for efficiency and productivity gains. These platforms enable users to input text prompts, generating various content types such as outlines, emails, and blog posts. Similarly, solutions DALL-E, Midjourney, and Stable Diffusion, produce images based on textual cues. Findings from a survey conducted by Descript and Ipsos indicate a significant uptake, with approximately two-thirds of content creators already leveraging generative AI, and more than three-quarters considering future adoption. The advantages of AI-powered content creation include heightened productivity, scalability, creative stimulation, and data-driven insights for content optimization. However, it’s imperative to recognize that AI-generated content serves as a starting point and requires human review, editing, and alignment with brand standards before publication.
3. Streamlining HR Processes: AI is revolutionizing HR operations by automating recruitment processes and meticulously analyzing extensive job applications. Through AI-driven algorithms, businesses can impartially evaluate candidate suitability, optimizing resource allocation while mitigating subjective biases. Moreover, AI-powered solutions are streamlining workforce management and fostering talent development, empowering organizations to cultivate high-performing teams and nurture employee growth. For instance, industry leaders like Unilever, in handling a vast influx of job applications annually, collaborate with innovative platforms such as Pymetrics to implement sophisticated evaluation tools using video software. Leveraging advanced technologies including natural language processing and body language analysis, these platforms are enhancing the selection process by objectively assessing candidates’ responses.
4. Enhancing Security Measures in Finance: In an increasingly digitized world, AI emerges as a crucial guardian of business operations, particularly within the Finance sector where data security is paramount. Harnessing the power of deep learning techniques, AI fortifies security measures across diverse applications, swiftly identifying and neutralizing threats like hackers and fraudulent activities. Through continuous data analysis and pattern recognition, AI-driven systems are empowering businesses to react promptly and decisively, minimizing potential risks and safeguarding valuable assets. Also, in dealing with repetitive tasks such as billing and invoicing, AI is being leveraged to make the process error-free and automated saving considerable time.
5. Operational Efficiency: AI-driven solutions optimize processes and streamline workflows across diverse business functions, from supply chain management to customer service. Chatbots powered by AI technology are providing instantaneous customer support, reducing response times, and improving service quality. By harnessing AI technologies, businesses are able to achieve unprecedented levels of efficiency and competitiveness in today’s dynamic marketplace in areas such as customer service, IT support, sales and marketing, and financial services, among others.

SOME RISKS ASSOCIATED WITH AI ADOPTION IN BUSINESS OPERATIONS

1. Ethical Concerns: AI systems can perpetuate biases and discrimination if trained on biased data, leading to unfair practices. Lack of transparency and accountability in AI decision-making processes raises ethical concerns.

2. Job Displacement and Workforce Challenges: The automation of tasks by AI may lead to job losses in certain industries, necessitating workforce reskilling and adaptation to new job roles. The changing job landscape requires careful planning and investment in education and training.

3. Privacy and Security Risks: AI systems raise concerns about data privacy and security, particularly regarding the collection and use of personal data. Adversarial attacks and vulnerabilities in AI algorithms pose risks to data integrity and confidentiality.

4. Dependency on AI Systems: Businesses risk becoming overly dependent on AI technologies, leaving them vulnerable to system failures, disruptions, or cyberattacks. Robust backup plans and contingency measures are essential to mitigate these risks and ensure business continuity.

SOME RECOMMENDED APPROACHES TO DEALING WITH THE RISKS

1. Encouraging AI-Human Collaboration: Instead of adopting AI as a substitute for human labor, businesses and policymakers must prioritize fostering collaboration between AI and human workers. AI systems possess distinctive capabilities such as data analysis and pattern recognition, which can complement human skills, thereby enhancing productivity and decision-making processes. Encouraging collaboration between AI systems and human workers can result in more efficient outcomes. Businesses should strive to develop AI systems that augment human capabilities and provide tools for seamless collaboration. For instance, AI can automate repetitive tasks, freeing up human resources to focus on higher-level decision-making and creative endeavors.
2. Developing Ethical Guidelines for AI Development and Use: Ethical considerations hold the utmost importance in the integration of AI technologies. Clear ethical frameworks and guidelines are vital to guarantee responsible AI development and utilization, covering principles like fairness, transparency, accountability, privacy, and human rights. Collaboration among policymakers, industry experts, and academia is imperative to formulate comprehensive and inclusive ethical guidelines. Businesses must incorporate ethical considerations into their AI development processes, conducting thorough ethical reviews and impact assessments to identify and address potential risks. Regular audits and transparency in AI systems play a crucial role in building trust with users and stakeholders, thereby promoting responsible AI adoption.
3. Strengthening Data Protection Laws and Regulations: The widespread adoption of AI technologies relies heavily on data collection and analysis. Therefore, it is crucial to strengthen data protection laws and regulations to safeguard individual privacy and mitigate the risks of data misuse. Regulatory bodies should ensure that businesses adhere to data protection principles, imposing strict penalties for non-compliance. Businesses should implement robust data security measures and adopt a privacy-by-design approach to embed privacy and data protection into AI systems from the outset.

CONCLUSION

In conclusion, the adoption of AI generally and in particular Generative AI presents immense opportunities for businesses to enhance efficiency, drive innovation, and achieve competitive advantage. However, to fully realize the benefits of AI while mitigating associated risks, organizations must navigate complex legal, ethical, and societal considerations. By embracing collaborative approaches, fostering transparency, and prioritizing ethical principles, businesses can harness the transformative power of AI to optimize operations and thrive in an increasingly digital world.

ABOUT THE AUTHOR

DENNIS AKWABOAH is an Associate at RBH Attorneys PRUC with its Technology and Emerging Innovations, Corporate, Tax and Trade Practice Group, specializing in legal service provision for Startups and SMEs, Fintechs, and other Technology companies. He welcomes views on this article via a.dennis@sustineriattorneys.com

At its early stages of adoption, AI has already made verifiable impacts and shown great potential to become one of the most impactful tech tools developed in the last decade with universal and tailored business case use applications and relevance. At the MTN CTIO Roundtable Africa event last month, speakers, panelists, and participants were convinced by its usefulness and agreed on the need for its accelerated adoption by every business seeking to drive value despite its associated risks.

However, one unresolved concern not only from the roundtable event but generally about the use of AI has been whether we need to regulate it now or in the future. On this question of when to regulate, two schools of thought have emerged strongly – regulate it now versus regulate it in the future.

I intend to use this article to illustrate why I strongly support the latter school of thought and demonstrate how existing legal frameworks provide regulatory safeguards and remedies for the concerns with AI adoption.

ARTIFICIAL INTELLIGENCE (AI), ITS USE CASES AND CONCERNS

In simple terms, “Artificial Intelligence” (AI) connotes the demonstration of “intelligence” by computers or machines in the delivery of assigned tasks.

By design, human beings are the primary creatures gifted with the cognitive power to think, act, and produce outcomes in rational and logical forms. Over time, the exhibition of such powers has proven human beings as intelligent creatures – and such display of intelligence has accounted for all human inventions, innovations, and developments including the making of computers.

Comparably, human beings have remained superior to any creation or creature on the question of intelligence. Nonetheless, human ingenuity has also led to the development of advanced computing devices with competitive and superior power to iterate outcomes closer, sometimes, surpassing human intelligence, outputs, and capacities.

The use of these supercomputers and their underlying technologies, algorithms, and training on datasets is producing outputs, only capable of human intelligence. And because it is computers or machines exhibiting these human comparable levels of intelligence, the use of such technological tools to deliver incredible outputs is credited as “Artificial Intelligence” (AI).

In less than a decade, we have witnessed transformational advances in AI-related tech tools across almost every industry – the fastest-evolving technology. In the process, innovative ways of performing tasks, designing new products and services, manufacturing, delivering healthcare, agriculture, financial services, telecommunications, and customer service, among others are upon us. Countless use cases are being demonstrated in ways to improve efficiency, ensure quality of work, and enhance productivity.

The overall impact of AI on businesses going forward will be comparable to the effects of the invention of the internet on business today (remember the effects of the internet downtime on Thursday 14^th March 2024?). AI will become to businesses what oxygen is to humans. The relevance of its subcategories such as Generative AI to everyday life and work is even more immensely compelling. With AI, the cognitive powers of computers and machines have been unlocked to simplify work and life.

These benefits notwithstanding, there are raging concerns with its adoption and use. According to Forbes, 15 of such concerns include the lack of transparency, bias and discrimination, privacy concerns, ethical dilemmas, security risks, the concentration of power, dependence on AI, job displacement, economic inequality, legal and regulatory challenges, AI arms war, loss of human connection, misinformation and manipulation, unintended consequences, and existential risks.

It is these concerns that are heightening the calls for the immediate regulation of AI.

THE CALLS FOR ITS IMMEDIATE REGULATION

It is instructive to note that, the full potential of AI has not yet been realized. At best, we are just beginning to experience its experimental use cases and are not able to fully understand its real scope, potential, and limitations.

Its rate of application spanning several industries, remarkable outputs, and our inability to predict its full scope and limitations have resulted in some of the concerns listed above. The fear particularly of its potential to develop AI systems that do not align with human values and priorities has increased the call for its regulation.

However, such calls have only resulted in limited legislative initiatives in Europe (the European Union (EU) AI Act), the United States (the National Artificial Intelligence Initiative Act of 2020 (H.R. 6216)), and the United Nations (the recent 1^st General Assembly adopted Resolution on AI) despite its widespread usage.

While these legislative or regulatory interventions seek to ensure ethical and responsible development and use of AI systems to advance human development, the biggest challenge remains the lack of opportunity to fully understand and appreciate how AI technologies work – the black box syndrome.

It is practically impossible to regulate what one does not know or understand. By legislative designs, we regulate what we know and understand and largely prohibit those we do not know. However, the risk of legislating to prohibit AI because we do not understand its workings is undoubtedly impossible due to its demonstrated usefulness so far – society stands to lose in any attempt at prohibition.

Therefore, the legislative approaches so far have been to set up a legal framework that ensures safe, secure, and trustworthy AI systems. For example, according to the EU, the aim of its AI Act is to provide AI developers and deployers with clear requirements and obligations regarding specific uses of AI. Additionally, the Act seeks to “foster trustworthy AI in Europe and beyond, by ensuring that AI systems respect fundamental rights, safety, and ethical principles and by addressing the risks of very powerful and impactful AI models.”

These objectives have been set from the standpoint of some appreciable understanding of how AI systems work. The definition of 4 levels of risks namely unacceptable risk, high risk, limited risk, and minimal or no risk associated with AI systems has helped the EU to design a regulatory framework which provides clear guidelines for addressing the various levels of risk.

The collective power of the EU, its technological resources, and expertise in terms of AI developers, researchers, and innovators justifies its regulatory response or approach. Many developing countries do not have such resources to respond boldly to the risks of AI systems. There is limited capacity to understand, regulate, and enforce compliance for AI systems. These limitations have compelled other governments instead of legislating to regulate AI to consider National AI Strategy Frameworks – providing comprehensive outlines of how AI use cases can be integrated and adopted in a transparent, ethical, and responsible manner.

EXISTING REGULATORY FRAMEWORKS AND AI RISK MANAGEMENT

Certainly, one form or another of AI is in use in many businesses in South Africa today. Equally, some government institutions may be relying on AI to optimize their service offerings, particularly in the areas of customer service and data analysis. These use cases are increasing across several industries despite the absence of AI regulation in South Africa. One reason we may not immediately be exposed to AI-related risks is the opportunity of inherent provisions in existing legislation and how they deal with such related risks.

We have in place regulations covering intellectual property assets and rights, data protection and privacy, cybersecurity and fraud, electronic transactions, and organized crime among others.

Although these existing regulations may predate the AI revolution, their general and specific applications can accommodate and deal fairly with some of the concerns with AI systems.

Specifically, there exist clear guidelines on asserting intellectual property rights over creations, inventions, and works, among others. The Copyrights Act, the Patent Act, the Industrial Design Act, the Trademarks Act, and the general acceptability of trade secret regimes will offer protections for innovations underlying AI systems. The grey area will be the ascertainment of authorships and ownerships for AI-generated outputs – and in such circumstances, our courts may on a case-by-case basis depending on the degree of contribution by humans and AI systems provide guidance and standards for such determinations.

For concerns related to privacy, data protection, and cybersecurity, there are provisions in the 1992 Constitution, the Data Protection Act, and the Cybersecurity Act respectively to deal with them. Additionally, the registration, certification, and compliance mandates under the Data Protection Act and the Cybersecurity Act for institutions and individuals in areas of data collection, use, storage, sharing and cybersecurity services provision reinforce the ability of the existing regulatory framework to deal with any immediate AI risks in these areas.

More of such regulatory frameworks exist for civil and criminal remedies for some anticipated risks and their resulting breaches. For instance, through the instrumentality of the established cybercrime unit of the South Africa Police Service, the Economic and Organized Crime Office (EOCO), the powers of specialized regulators such as the Bank of South Africa, Security and Exchange Commission (SEC), National Communication Authority (NCA), etc, institutions and individuals who leverage the power of AI in an unethical manner, misinform and manipulate citizens and for fraudulent purposes could be punished – with imposed civil or criminal sanctions.

Admittedly, existing regulatory frameworks do not fully provide for all AI-related risks.  Risks such as biases and discrimination, lack of transparency, ethical dilemmas, etc relative to how AI systems are designed and developed are currently not regulated. Primarily, these risks result from underlying data sets used in training the related AI system and are in the domain of technology itself. To mitigate these, AI systems must be trained on accurate, verifiable, and quality local datasets to reduce the likelihood of biases, discrimination, and misinformation.

THE APPROACH FORWARD

At some point in the future, it will become imperative to regulate AI in South Africa as the EU has done. What will inform this will be a proven stakeholder understanding and appreciation of how AI systems work, the availability of local expertise to develop localized AI systems, strong evidence of collaboration between government and private institutions on AI adoption, and proven implementation and adaption of regional and global AI commitments from institutions such as the UN, among others.

However, we must not adopt a “wait and see” attitude in anticipation of the arrival of such regulation. The immediate first step should be to develop a National AI Strategy Framework based on inputs from all stakeholders on the scope, considerations, and acceptable use cases of AI systems across all industries in South Africa.

Further, we must build the capacities of existing regulatory institutions to respond timely and enforce compliance with regulatory dictates that address some of the AI concerns discussed above. Investments must be channeled into people development, procurement of leading technologies and devices, the establishment of protocols, etc to help build institutional preparedness for dealing with AI risks. The regulatory institutions should also adopt collaborative work plans to permit knowledge sharing, resource leverage, and proactive remedial responses.

Also, to improve AI adoption by businesses, adoption pioneers must be prepared to share their experiences, lessons, and pitfalls to help build the best-case scenarios for AI adoption by businesses in South Africa. Such practical feedback will provide proven roadmaps for the adoption of relevant AI systems to improve business competitiveness and increase productivity.

CONCLUSION

The demonstrated potential of Artificial Intelligence (AI) to become an imperative tech tool to improve work, optimize operational competitiveness, and deliver accurate tailored services among others is not without concerns. The related risks are informing the calls for the immediate regulation of AI in most countries. But as discussed above, we must hasten slowly towards the ultimate AI regulation and in the meantime adopt a National AI Strategy Framework while strengthening the institutional capacities of existing regulators to deal with some of the associated risks.

ABOUT THE AUTHOR

RICHARD NUNEKPEKU is a Technology Consultant and the Managing Partner of RBH Attorneys PRUC (www.sustineriattorneys.com) a client-centric law firm specializing in transactions, corporate legal services, dispute resolutions, and tax. Richard is a lawyer with an entrepreneurial mindset working at the intersection of law, technology, and business in South Africa. He welcomes views on this article and is reachable at richard@sustineriattorneys.com