Articles
What is the Role of a Commissioner when Settling a Dispute at the CCMA
When a matter is referred to the CCMA and is set down for conciliation, the conciliating commissioner will encourage the parties to settle the dispute with a view to bringing the matter to finality.
Be Afraid, Be Very Afraid, The Cybercrimes Bill and State Control of Computer Networks
There are many things wrong with South Africa but our Constitution remains something to be proud of. With the computer age and especially the Internet, instant communication has embarrassed governments and politicians the world over.
The Time Limit for a Review of Administrative Action
The newly reported judgement in Tasima (Pty) Ltd v Department of Transport (792/2015) [2015] ZASCA 200 (2 December 2015) highlights some interesting aspects regarding the review of administrative actions.
Overview of the Sectional Titles Schemes Management Act and the Community Schemes Ombud Services Act
The Department of Human Settlement has now published Regulations in respect of both the Sectional Titles Scheme Management Act No. 8 of 2011 and the Community Schemes Ombud Services Act No. 9 of 2011.
Proposed Changes to the Debt Collectors Act and its Effect on Debt Collecting Attorneys
There have always been negative connotations associated with the practice of debt collection, and people tend to associate it with "loan sharks" from the movies
The Requirements for a Successful Malicious Prosecution Claim
In the appeal case of George Magwabeni v Christopher Liomba, 2015, the Supreme Court of Appeal (“SCA”) reviewed the judgment of the Limpopo Local Division that found Magwabeni liable for damages for malicious prosecution.
What to Expect When the Draft Insurance Bill Becomes an Act in Early 2016
The South African insurance industry has been undergoing significant changes this year, with more to be enacted early next year.
Maintenance Defaulters Beware!!
On 9 September 2015, the Maintenance Amendment Act (Act No. 9 of 2015) became law. The Act, aims to take a harder line with maintenance defaulters and is definitely a step in the right direction for those trying to secure maintenance orders.
Girl Nearly Drowns in Fishpond: Are the Homeowners Legally Responsible?
Toddlers and small children are really difficult to keep track of and have an unerring attraction for danger; and danger seems to be just about everywhere. From trampoline to jumping castle, jungle gym to fountain or swimming pool, all can be very dangerous for children.
Beware of the Latest Customs Scam!
Recently, we have received calls from some distraught women who all fell victim to the same scam involving a supposed parcel at custom
Comparison of various BEE Industry Sector Codes
Since the coming into effect of the amended generic Codes of Good Practice on 1 May 2015, several industries which had formulated their own sector codes for their industries have aligned their sector codes with the generic codes. Others have not....
Home Affairs attempting to further clamp down on foreigners overstaying on visas
The Portfolio Committee on Home Affairs on 18 November 2015 applied for permission to introduce another amendment to our Immigration Act, which will provide stronger penalties to foreigners who have overstayed in the Republic beyond the expiry date on their visas.
Calculating a Capital Gain: Current Case Law
Capital Gains Tax (CGT) is payable on the disposal of capital assets that were in the seller's possession on, or were acquired after, 1 October 2001.
Will the Tax Hikes be Enough for a Struggling Economy?
Earlier this year, the Minister of Finance, Nhlanhla Nene, announced that after 20 years of consistency, there will be a 1 point increase in the percentage for personal income tax. This recently became law in the Rates and Monetary Amounts and Amendment of Revenue Laws Act.
Beware of efiling Scams!
Cyber criminals are attempting to take advantage of the fact that many people are using electronic means to manage their personal affairs. As a taxpayer you need to protect your email address. Many taxpayers receive fraudulent emails from criminals that look like they are from SARS.
The Importance of Tax Litigation Strategy
Recently, the Kwazulu-Natal High Court considered the nature of tax litigation between the taxpayer and SARS. The court discussed the need for authentic, clear and satisfactory evidence, confidentiality with regard to a section 50 inquiry and the requirement for SARS to act in a fair and constitutional manner.
Contradictory Legislation: VAT Zero-rating of Supplies to Custom Controlled Areas / IDZ Operators
Generally, the export of movable goods qualifies for VAT zero-rating. An exception can be found in section 11(1)(m) of the VAT Act, where movable goods are supplied to a customs controlled area enterprise or an Industrial Development Zone (IDZ) operator in South Africa.
How Must SARS Issue a Notice in Terms of s172(1) of the Tax Administration Act?
Lifman and Others v The Commissioner of the South African Revenue Services and others deals with an inquiry SARS conducted into notorious Cape Town underground boss, Mark Lifman’s affairs, that found that Lifman and a number of his close corporations owed approximately R13 million in taxes.
Employment Law Update - NUMSA v Transnet Port Terminals (2015) 10 BALR 1107 (CCMA)
NUMSA members were issued with final written warnings for wearing NUMSA t-shirts during working hours.
New Minimum Wage for Domestic Workers
The Minister of Labour has announced an increase in minimum wages for domestic workers. The increases will be gazetted shortly and will come into effect on 1 December 2015.
Win for Shepstone & Wylie: notable reduction in employee's take-home pay rectified in latest version of tax bill
The removal of a few words in the latest version of the Taxation Laws Amendment Bill, 2015, appears to have rectified a loophole contained in an earlier version of the Bill that would have resulted in a notable reduction in an employee's take-home pay if they belonged to a retirement fund.
Proposed Amendments to the EIA Regulations, 2014
On 30 October 2015, Minister Edna Molewa gave notice of her intention to amend the Environmental Impact Assessment Regulations, 2014 and Listing Notices 1, 2 and 3 of 2014. The deadline for public comment is 30 November 2015.
Employment Law Update - Importance of Picketing Agreements
In the recent unreported decision of Verulam Saw Mills (Pty) Ltd v AMCU and Others J1580/15 dated 20th October 2015, the court confirmed that a trade union is obliged to take all reasonable steps to ensure that its members comply with a picketing agreement.
Mining Industry and Petroleum Industry are Exempt from B-BBEE (For Now)
In a notice published on 31 October 2015, the Department of Minerals & Energy has given the mining industry and the upstream petroleum industry a reprieve from applying the principles of Broad-Based Black Economic Empowerment ("B-BBEE"), except the requirement to "continue maintaining compliance with ... the Mining Charter".
Having its Cake (or Bread) and Eating it - The Consequences of the Competition Commission's Decision Not to Include Premier in its Bread Price Fixing Complaint Referral
On 4 November the Supreme Court of Appeal found that the Competition Commission had to live with its choice not to refer the bread price fixing complaint against Premier Foods to the Competition Tribunal for determination.
Competition Law - Latest News
On Friday, 30 October 2015, the Competition Commission published its final Terms of Reference ("TOR") for its grocery retail sector market inquiry.
The Consumer Protection Act - Important Update
The Consumer Protection Act not only prohibits unfair, unreasonable and unjust contract terms but also “unconscionable conduct”.
The Tax Administration Laws Amendment Bill and the Taxation Laws Amendment Bill
The Tax Administration Laws Amendment Bill and the Taxation Laws Amendment Bill were introduced to Parliament on 27 October 2015.
Are Sector Charters Aligning with New BEE Codes?
On Friday, the Property Sector Charter was published as a final sector code in terms of the Broad-Based Black Economic Empowerment Act, 2003, giving it the same status as the generic Codes of Good Practice.
Environmental Update, Proposed Changes to the Definition of Waste
On 13 October 2015, the Minister of Environmental Affairs published the National Environmental Management Laws Amendment Bill ("the NEMLA Bill") in Government Gazette 39287 for public comment.
Impact of the Draft Default Regulations to the Pension Funds Act, 1956
National Treasury has extended the comment period on the draft regulations to the Pension Funds Act to Friday, 31 October 2015. The main impact of the draft regulations are the proposed obligations on retirement funds to offer a default investment strategy, default (not compulsory!) preservation and a default annuity strategy on retirement.
Government comes to the table at last regarding the implementation of amendments to SA's Immigration law
Recommendations just in from the Inter-Ministerial Committee the President investigating the unintended consequences and mitigating factors relating to the implementation of the Immigration Amendment Acts (2007 and 2011) and the Immigration Regulations, 2014, promise adjustments to be made to their implementation, to make it easier for people to comply.
Court Called on to Intervene in Dispute in Ballito Gated Community
Courts are frequently being called upon to intervene in disputes arising in gated communities, where trustees are put in charge of functions that were once the preserve of municipalities.
Amendments to Refugees Act in 2015, Worrying
According to the National Immigration Information System (NIIS), there are around 798 080 asylum seekers in South Africa, however only around 210 473 are active according to Home Affairs spokesman, Mayihlome Tshwete.
The Protection of Personal Information Act 2013: The Dangers of Employees and their Devices
In order to increase efficiency and productivity as well as to take advantage of developments in technology in the workplace, it is prudent for employers to provide certain of their employees with various mobile and hand held devices such as smart phones, tablets, laptop computers and the like
The Debt Collector's Amendment Bill has been published for comment
The Debt Collector’s Amendment bill 2016 has been published and the public are invited to comment thereon before November 30, 2015.
Family Law Update - Divorce Case Update
The assets are divided at date of divorce in marriages in community of property, as are the assets in marriages subject to section 7 of the Divorce Act. One can therefore hardly be criticised for thinking that the same would apply in marriages subject to the accrual system.
Can the Option for the Purchase of a Portion of Agricultural Land Be Granted Without Ministerial Consent?
Section 3(e)(i) of the Subdivision of Agricultural Land Act No. 70 of 1970 ("the Act") provides that "no portion of agricultural land, whether surveyed or not...shall be sold or advertised for sale...unless the Minister [of Agriculture] has consented in writing".
The Acquisition of Immovable Property and Transfer Duty / VAT
The acquisition of an immovable property triggers the payment of either VAT or transfer duty.
Legal Overview and FAQ: Section 34 of the Insolvency Act - Voidable Sale of a Business
The policy of this section of the Act is to afford protection to a trader's creditors against his dispossessing himself of his property without paying his debt before the disposition or from the proceeds thereof.
Telecommunications Mergers: Turf War Territory
The Competition Commission ("the Commission") considered two large telecommunications mergers this year and made diametrically opposing recommendations to the Tribunal.
"Daddy Day Care": Developing the Rights of Fathers to Paternity Leave
There is no doubt that the conventional familial landscape in our country has changed significantly in the last few decades
Proposed amendments to the Labour Relations Act rejected
Proposed amendments to the Labour relations Act (“LRA”), 1995, were introduced in Parliament on 18 February 2015 in a draft Bill to be considered by the National Assembly. On 20 May 2015, Parliament’s Labour Committee rejected Bill.
Revised Draft Code of Good Practice on the Employment of Persons with Disabilities
The revised Draft Code of Good Practice on the Employment of Persons with Disabilities ("the Code") was published by the Department of Labour on 12 June 2015 and was open for public comment until 12 July 2015.
Zero Tolerance Policies Challenged?
In the recent decision of Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others , the Labour Appeal Court (“LAC”) considered the reasonableness of a dismissal of an employee based on an employer's zero tolerance policy.
Affirmative action and the Employment Equity Act
Affirmative action in South Africa is defined in the Employment Equity Act No. 55 of 1998 (“the Act”)
BEE Update: What Constitutes "Fronting"?
The Broad-Based Black Economic Empowerment Amendment Act, 2013 ("the Act") introduced a definition of "fronting", a concept which had previously been based on the common law criminal concept of "fraud".
The Rights of Minority Shareholders in a Company
In Grancy Property (Pty) Ltd v Manala and Others 2013, which was recently decided in the Supreme Court of Appeal ("SCA"), the court came to the assistance of a minority shareholder (Grancy) which sought the appointment of two independent directors to investigate the affairs of the company of which Grancy was a minority member.
#rant: How Far is Too Far for Employees on Social Media?
Careless use of social media has been in the forefront of the news in the last few weeks.
More Changes to the National Environmental Management Act 107 of 1998 Coming...
On 13 October 2015, the Minister of Environmental Affairs published the National Environmental Management Laws Amendment Bill ("the NEMLA Bill") in Government Gazette 39287 for public comment.
The National Environmental Management Laws Amendment Bill ("the NEMLA Bill") 2015: Key Changes to National Environmental Management Act 107 of 1998
One of the most notable changes to NEMA proposed in the Bill is the insertion of subsection 1A in Section 24G which will allow a person who has taken ownership or control of a property on which infrastructure or development was built unlawfully, to apply to have it legalised going forward.
Overview of the Expropriation Bill
The purpose of the Bill is: - To provide for the expropriation of property for a public purpose or in the public interest; To provide for the payment of just and equitable compensation when expropriation has taken place. Once the Bill is passed into law, it will repeal in its entirety the Expropriation Act 63 of 1975, as amended.
Return of a Child in Terms of The Hague Convention
If a child is removed from the country of its habitual place of residence without the consent of a parent who has rights of custody over that child, and is taken to another country which is a signatory to the Convention, then the latter country is obliged to send that child back to the first country
5 Important Factors to Remember When Employing Fixed Term Contract Staff
Employers must take the following factors into account when employing fixed term contract staff:
Competition Law Update - Extended Deadline for Completion of the Health Care Market Inquiry
Today, 19 October 2015, the Competition Commission extended the deadline for completion of its health care industry market inquiry to 15 December 2016.
Jail Time for Fraudulent VAT Refund Claims
In a recent case, Grundling v the State, the Supreme Court of Appeal (''SCA'') handed down a judgement regarding the imprisonment period for the appellant, who was an accomplice in a scheme defrauding the South African Revenue Service by falsifying VAT refund claims between April 2006 and July 2008.
Cancellation, Termination or Variation of Disposals Subject to Capital Gains Tax
When two people transact, they normally negotiate the terms in good faith, but things happen to transactions and the seller may agree to repay part of the purchase price to the purchaser.
Is the Failure to Pay VAT Equal to Common Law Theft?
It is mandatory for all companies to register for Value-Added Tax (“VAT”) if the income earned in any consecutive twelve month period exceeds or is likely to exceed R1 million?.
Taxation of Offshore Trusts
Extensive use has been made of trusts in South Africa, both for tax planning and for the purposes of reducing (or eradicating) one's estate duty liability upon death. As the use of offshore trusts as a estate and wealth planning vehicle increases, one needs to consider if and how offshore trusts are taxed in South Africa.
Tax Update: Section 12I Tax Allowance Supported Projects
In 2010, the Department of Trade and Industry ("DTI") had launched a tax incentive programme (section 12I of the Income Tax Act) that is geared towards developing the South African manufacturing sector and promoting the growth of sustainable employment.
Competition Commission carries out Dawn Raids on Suppliers of LPG and Gas Cylinders
Today, 14 October 2015, the Competition Commission is carrying out dawn raids on AFROX, Oryx Oil, EasiGas and the Liquefied Petroleum Gas Safety Association of Southern Africa (LPG Association) in Gauteng and KayaGas (Pty) Ltd and Totalgaz in the Western Cape.
Proposed Changes to Unemployment Insurance Fund Benefits
On 9 October 2015, the Minister of Labour published an explanatory summary of the Unemployment Insurance Amendment Bill, 2015 ("the Bill") and also gave notice of intention to introduce the Bill in the National Assembly.
Employees Must Think Twice Before Refusing to Obey an Instruction
On 31 July 2015, the Johannesburg Labour Court , in Shoprite Checker v CCMA & 2 Others handed down a judgement in which it set aside an arbitration award issued by the CCMA.
Don't take what's not yours...
The Supreme Court of Appeal ("SCA") has recently, in the judgment of Maarten Opperman v The Minister of Defence and Military Veterans (2015)...
Return of a Child in Terms of The Hague Convention
If a child is removed from the country of its habitual place of residence without the consent of a parent who has rights of custody over that child, and is taken to another country which is a signatory to the Convention, then the latter country is obliged to send that child back to the first country if:
Proposed Amendments to the Mine Health and Safety Act, 29 of 1996
The draft Mine Health and Safety Amendment Bill of 2013, together with its 2014 amendments, are currently being considered by the National Economic Development and Labour Council.
New Explosives Regulations
Mining companies using explosives must comply with the new Explosives Regulations promulgated in terms of the Mine Health and Safety Act, 1996.
BBBEE Fronting
Mining companies must ensure that their operations do not constitute a 'fronting practice'.
Withdrawal of Decisions to Grant Prospecting Rights
There have been several instances, where the DMR has issued a "Preliminary Notice of Withdrawal of Decision to grant a Prospecting Right".
Are Pastors Employees of the Church
The Labour Appeal Court recently held, in the judgment of Universal Court of the Kingdom of God v Myeni and others (2015) that the pastor was not and employee of the Church.
Jail time for fraudulent VAT refunds Claims
In a recent case the Supreme Court of Appeal handed down a judgment to an accomplice in a scheme defrauding SARS by falsifying VAT refund claims.
Overview of the Transnet National Ports Authority (TNPA) Tariff Application for 2016/2017
The National Ports Act No. 12 of 2005 requires the Transnet National Ports Authority to determine the tariffs for the services and facilities it offers each year but requires those tariffs to be approved by the Regulator.
Judgment Causes Unions to be Wary
Join Liability of Unions and its Members for Delictual Claims Occasioned by an Unprotected Strike.
Renewed Impetus to Promote a Policy of Cargo Reservation to South African Registered Ships
The launch of 'Operation Phakisa' in October 2014 which saw the government unveiling its stated policy to unlock the economic potential of South Africa's oceans has led to many interesting developments over the past year.
Legal Update - Interpretation Note 22 -Transfer Duty
On 22 September 2015 the South African Revenue Services Issue 3 of Interpretation Note No. 22 ("N22")
BEE Update: What Constitutes "Fronting"
The Broad-Based Black Economic Empowerment Act, 2013 introduced a definition of "fronting", a concept which had previously been based on the common law criminal concept of "fraud".
Retention Permits: Commodity Crisis
In light of the current sinking of commodity prices, holders of Prospecting Rights may wish to avail themselves of the right to apply for a Retention Permit due to the uneconomical market conditions.
Ensuring BEE Compliance
All mining companies must ensure compliance with the Mining Charter. One of the essential objectives set out in the Mining Charter is for mining companies to enable "meaningful economic participation" of HDSAs by 2014, which includes the requirement that some cash flow goes directly to the HDSA partner (and not only to a third party to pay off a loan to the HDSA). Having said that, the purpose of the Mining Charter is to set out how the objects can (not must) be achieved, and there may be other ways in which an applicant for a Mining Right may undertake to enable meaningful economic participation of HDSAs.
Risks in Negotiating a Contract
The Supreme Court of Appeal recently handed down a Judgment which will serve as a precedent on the question of when parties can be said to have concluded a binding agreement.
New BEE Sector Code for the Media Industry
The new Sector Code for the Media Industry was published in it final form
Competition Appeal Court Cautions the Competition Tribunal over Excessive Pricing Decision
The Competition Appeal Court ("CAC") recently grappled with the question of excessive pricing.
English Law Refund Guarantees
In a recent case the Commercial Court looked at the nature of refund guarantees and whether or not a foreign court order affects the bank's liability to pay on demand.
Jurisdiction: Choice of Law May Have Unintended Consequences
Southern African Companies will often find themselves faced with a request or insistence that a contract they wish to conclude be subject to English law.
High Court Rules Unsecured Credit Collection Process To Be Changed
On 8 July 2015, the Western Cape High Court, in the matter of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice And Correctional Services and Others, found sections of the Magistrates Court Act 32 of 1994 ("MCA") inconsistent with the constitution.
Proposed amendments to the Labour Relations Act rejected
Proposed amendments to the Labour Relations Act ("LRA"), 1995, were introduced in Parliament on 18 February 2015 in a draft Bill. On 20 May 2015, Parliament's Labour Committee rejected the Bill.
Costs in Matters Concerning the Best Interests of Children
At arriving at a decision as to costs in matrimonial matters, judicial officers take into account a variety of factors.
Child Maintenance: New Amendments Soon to be Implemented Include Credit Blacklisting for Defaulters
On 19 May 2015, the National Assembly adopted the Maintenance Bill.
Muslim Marriage and Rule 43 Proceedings
What can you do about money while you await the allocation of a rial date for divorce proceedings?
Cyber Crime and Cyber Insurance
Cyber crime, including data kidnapping and date ransom remains on a steady increase.
The Validity of Tender Contracts: Recent Case Law
On 2 July 2015, the Supreme Court Of Appeal of South Africa ("SCA") handed down judgment in a case dealing with the law surrounding a unilateral mistake rendering an agreement void ab initio
Is Business Rescue Possible After a Final Liquidation Order?
Can an application for business rescue be brought even after a company has been placed in final liquidation?
When Are Companies Required to Furnish Security for Costs?
In terms of s13 of the old Companies Act 69 of 1973 read with High Court rule 47, a South African Company could be ordered to provide security for costs if the party seeking security had reason to believe that such a company would be unable to satisfy a costs order which may be awarded against it.
Islamic Marriages and Retirement Funds
The Pension Funds Adjudicator recently determined that a retirement fund might potentially pay a share of a member's benefit to the member's former spouse on the dissolution of their Islamic marriage.
Overview of the Spatial Planning and Land Use Management Act, 2013 ("SPLUMA") and its Regulations
The Spatial Planning and Land Use Management Act, 2013 and its Regulations provide a framework for spatial planning and land use management in South Africa
Precedent-setting ruling will affect the future conduct of developers
On 29 June 2015, the KwaZulu-Natal High Court handed down judgment in Aboobaker N.O and Others v Serengeti Rise Body Corporate and Another.
Retention Permits: Commodity Crisis
In light of the current sinking of commodity prices, holders of Prospecting Rights may wish to avail themselves of the right to apply for a Retention Permit due to the uneconomical market conditions.
Proposed Repeal of the VAT Zero Rating Under the National Housing Programme
In the Explanatory Memorandum to the Draft Taxation Law Amendment Bill of 2015, it is proposed that the VAT zero rating provision will be abolished with effect from 1 April 2017.
Exchange Control: Constitutional Court Ruling on SARB 10% Exit Charge
In 2003, a 10% exit charge was imposed on monies leaving the country in excess of R750 000. In 2009, Mark Shuttleworth applied to the SARB for permission to transfer approximately R2.5 billion out of South Africa.
Buying Back Shares from Shareholders: Dividends Tax Liability
The liability for dividends tax only arises on the day on which each instalment payment of the dividend is actually paid or when each instalment of the dividend payment becomes due and payable, whichever comes first.
Permanent Establishments in South Africa
Two countries can only request a preservation order after the specific articles of the Double Taxation Agreement between them came into effect, but the application can be in relation to taxes that arose before the articles came into effect.
Ex parte Preservation Orders: Krok v CSARS
A foreign company with exclusive use of a room within a client's premises can, depending on the terms of the relevant DTA, create a permanent establishment (PE). A PE can also be created if the foreign company has rendered services for more than 183 days in any 12 month period.
Proposed Updates to the Existing Customs Legislation
The major talking point within the South African Customs environment was the recent promulgation by Parliament of the Customs Control Act, 2014 and Customs Duty Act, 2014.
Precedent-setting ruling will afect the future conduct of developers
On 29 June 2015, the KwaZulu-Natal High Court handed down judgment in Abooker N.O and Others v Serengeti Rise Body Corporate and Another. Judge Esther Steyn ordered most of a nearly completed, 60 million rand, nine-storey luxury block of flats in Berea be torn down.
Zero Tolerance Policies Challenged
Many companies have adopted a zero tolerance policy to various acts of employee misconduct. The Labour Appeal Court has confirmed that the mere implementation of a zero tolerance policy will not on its own be sufficient grounds for dismissal...
COMPETITION IN THE MOBILE MARKET UNDER SCRUTINY
The Competition Commission recommended the prohibition of a proposed transaction between MTN and Telkom. The transaction involves an acquisition by MTN of Telkom's radio access network (RAN) assets.
National Treasury Signals Intention to Introduce Long-Awaited Tax Changes to Retirement Funds
National Treasury has proposed changes to the law so that all retirement funds are treated the same. All contributions to pension, provident and retirement annuity funds will attract the same tax relief, subject to an annual cap. The requirement to purchase an annuity on retirement will be extended to all members of provident funds who are under the age of 55 on 1 March 2016. Samantha Davidson of Shepstone & Wylie’s pension law team explains that no vested rights will be affected and it is hoped that members of funds will receive wise counsel from their representatives to guard against the unfortunate mass resignations and withdrawals that were experienced last year.
New BEE Rules Exclude Indian and Coloured and Promote "tenderpreneurs"
Recently released draft regulations to the Preferential Procurement Policy Framework Act state that for tenders under R10 million 50% of the weighting of the bid must be allocated to the price and 50% must be allocated to specific goals, primarily ownership...
Port of Durban set for first major revamp in 90 years
TRANSNET National Port Authority (TNPA) will on Tuesday kick off its five year multibillion rand project to revitalise its neglected dry docks for ship repairs and ship building nationally starting with the Port of Durban.
South African Revenue Service - Voluntary Disclosure Programme
On 9 July 2015 the South African Revenue Service ("SARS") issued a media statement informing all South African resident taxpayers, who hold foreign bank accounts, that an investigation was underway and taxpayers were therefore requested to make use of its Voluntary Disclosure Programme ("VDP") to regularise their tax affairs.
"You Always Get Something 'Out': Non-disclosure in Insurance Contracts
The Sherwin Jerrier vs Outsurance judgment was handed down by the Kwa-Zulu Natal High Court on 7 July 2015 and highlights the consequences for an insured who does not report an incident for which he did not at the time or in the future intend to claim for, to his insurer (material non-disclosure when an insurance contract is already in place).
Shepstone & Wylie Winner of KZN Top Business Award
Shepstone & Wylie are delighted to announce that they have been awarded the KZN Top Business Award for the Financial and Business Services category.
PST Energy Shipping and Product Shipping and Trading SA v. OW Bunker Malta and ING Bank SA (Res Cogitans): The implications of the judgment
On 7 November 2014 OW Bunker A/S was made the subject of a bankruptcy order by the Probate Court in Aalborg, Denmark, and on 12 November 2014, its South African subsidiary, O W Bunkers South Africa (Pty) Ltd, applied for provisional liquidation that was subsequently confirmed. Since that time our International Trade and Transport department has received a number of enquiries regarding the rights of owners and/or charterers faced with competing claims by the liquidators of OW Bunkers and physical suppliers who had not been paid by OW Bunkers. Owners and Charterers faced the risk of having to pay twice for the same bunkers.
Use of Labour Brokers in context of the amended Labour Relations Act: Many Unanswered Questions
Labour brokers / temporary employment services (TES) place employees with their clients to carry out work over a temporary period of time, for example, Green Labour Brokers sends their employee, Joe Smith, to work for Plasma Pharmaceuticals. Section 198A of the Amended Labour Relations Act states that a “temporary employment service” (“TES”) means work for a client by an employee:
The New Draft Construction Industry Development Regulations
Proposed amendments to the Construction Industry Development Regulations of 2004 were published in the Government Gazette on 29 May 2015 and giving 60 days for public input. The proposed amendments are in line with international best practice and aim to facilitate timeous payment of contractors and suppliers in the construction sector and propose the implementation of statutory dispute resolution / adjudication processes applicable to construction contracts.
Business rescue: Whom does a binding offer bind?
In terms of Section 153 (1)(b)(ii) of the Companies Act, a creditor who votes against the adoption of a business rescue plan runs the risk of having their claim purchased by another party at a value of what the creditor would have received on liquidation of the company. In the terms of the bankruptcy laws of the United States of America this procedure is referred to as a "cram down" which is imposed on creditors in business rescue situations.
How to Substantiate an input tax deduction without a tax invoice
The VAT process is fairly simple if you have a tax invoice to substantiate your entitlement to an input tax deduction. However, if the supplying vendor fails to issue you with a tax invoice, the question then arises as to whether you, as the recipient vendor, can rely on section 20(7) or section 16(2)(f) of the Vale-Added Tax Act No 89 of 1991 (the “VAT Act”) by using the contract between the parties to substantiate your entitlement to an input tax deduction?
A How To Guide for SARS Objections and Appeals
As a taxpayer, if you receive an assessment from the Commissioner of the South African Revenue Services (“SARS”) that you disagree with, you can lodge an objection in line with the Tax Administration Act, No. 28 of 2011 (“the Act”)
Competition Commission draft Terms of Reference for the Grocery Sector Market Inquiry
This is the Commission's latest foray into the retail sector in respect of which it has expressed concern about food prices for some time. The market inquiry will examine whether there are features of the grocery retail sector, which lessen, prevent or distort competition. The inquiry is initiated in terms of Chapter 4A of the Competition Act, 89 of 1998 as part of the Commission's statutory mandate to "implement measures to increase market transparency."
Constitutional Court judgment on the in duplum rule does it limit interest payable on a tax debt?
The recent Constitutional Court judgment of Paulsen and Another v Slip Knot Investments 777 (Pty) Limited 2015 centered on the common law in duplum rule. The in duplum rule operates to protect debtors from becoming over-indebted to creditors by only allowing arrear interest to accumulate up to the capital amount loaned to a debtor. Interest ceases to run once the accumulated arrear interest equals the capital amount.
The State of Renewable Energy in South Africa
South Africa’s Renewable Energy Programme was launched in 2011 and has helped turn South Africa into one of the leading renewable energy investment destinations. According to CNBC Africa, an estimated R193 billion has already been committed to renewable energy investment in the country.
Labour Courts Hits Trade Union with R1.4million in Damages for Unprotected Strike
In the 7 May 2015 judgement of Algoa Bus Company (Pty) Limited v Transport Action Retail And General Workers Union (Thor Targwu) and Others, the South African Labour Court in Port Elizabeth ordered Thor-Targwu to pay R1.4 million in damages for conducting an unprotected strike at the Algoa Bus Company
Shepstone & Wylie Partner to be Maritime Law Association of South Africa's 2015 Conference Guest of Honour
Every year, the Maritime Law Association of South Africa (“MLASA”) conference honours those who have contributed to South African admiralty law. Past years’ recipients have included judiciary and prominent advocates. Shepstone & Wylie is proud to announce that Shane Dwyer, a partner in the Shipping and Logistics practice area, has been invited by the MLASA to be their guest of honour for 2015.
The Liability of Financial Services Representatives and Supervisors
The recent case of Moore, Johnsure Investments CC v Black (“the Moore case”) has affirmed the position that despite a financial services representative being exempt from particular requirements, they still have an obligation to comply with the codes of conduct imposed by law, and a failure to do so may result in the being held liable of contravening these obligations.
Construction and Interpretation of Tax Legislation: Then and Now
As early as 1926 Judge Stratford held in Farrar's Estate v CIR that '[the] governing rule on interpretation is to endeavour to ascertain the intention of the law-maker from a study of the provisions of the enactment in question'.
Proposed Changes to the Customs Duty Deferment Scheme, what is happening now?
The proposed changes are SARS’ attempt at achieving comparable fiscal neutrality through amending the deferment period to align it with the VAT period. Business is concerned about the impact that changing the deferment period will have on cash flow. For customs brokers, for example, the payment date for SARS would now coincide with all other vendor payments, increasing cash flow requirments at month end. Also, the ability to allow customers a few extra days to settle accounts becomes greatly diminished. There are also questions around the status of approved deferment applications when / if SARS decides to implement the proposed changes.
SCA Rules on Proper Procedure to be Followed for Tax Disputes
On 27 May 2015 the Supreme Court of Appeal (the "SCA") delivered judgment in the case of Medox Limited v The Commissioner for SARS (20059/2014) [2015] ZASCA 74 (27 May 2015)
Government Revenue Shortfall Rings the Alarm Bells
On 17 June, Finance Minister Nhlanhla Nene stated that the South African revenue collection was poor because of weak economic growth which, in turn, had led to increased government debt accumulation. This means that South Africa is faced with a double deficit as the country’s balance of payments on imports versus exports then also results in a deficit.
Competition Commission draft Terms of Reference for the Retail Grocery Sector Market Inquiry
On 12 June 2015, the Competition Commission published its draft Terms of Reference for the Grocery Sector Market Inquiry. This is the Commission's latest foray into the retail sector in respect of which it has expressed concern about food prices for some time. The market inquiry will examine whether there are features of the grocery retail sector which lessen, prevent or distort competition.
Increased Limits of Liability for Maritime Claims Comes into Force
Amendments to increase the limits of liability in the 1996 Protocol to amend the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC Protocol 1996) entered into force on Monday (8 June 2015),
Supreme Court of Appeal rules on Calculation of the Duration of a Prospecting Right
Last week our Supreme Court of Appeal ruled that the duration of a prospecting right must be calculated from the date of receipt of the granting letter, and not from date of the notarial execution of the prospecting right.
Supreme Court Of Appeal Rules on Proper Procedure to be Followed for Tax Disputes
On 27 May 2015 the Supreme Court of Appeal (the "SCA") delivered judgment in the case of Medox Limited v The Commissioner for SARS (20059/2014) [2015] ZASCA 74 (27 May 2015)
Travelling with Minors across South African Borders, Latest Rules come into effect on 1 June 2015
The new unabridged birth certificate requirement for children travelling to and from South Africa will come into effect this Monday, 1 June 2015.
DTI withdraws its Notice limiting points for employee share schemes and broad-based schemes!
On Friday afternoon, Minister Rob Davies undid the damage to Broad-Based Black Economic Empowerment (“BEE”) schemes done by acting Minister Lindiwe Zulu on 5 May 2015.
Proposed Criminalisation of Transfer Pricing
South Africa’s Parliamentary Trade and Industry Committee have called for the criminalisation of transfer pricing. Transfer pricing is the setting of the price for goods and services sold between controlled / related legal entities within an enterprise, for example, if a subsidiary company sells goods to a parent company, the cost of those goods is the transfer price.
DTIs attempt to change BBBEE policy from broad-based to narrow based could have disasterous effects
The South African Department of Trade and Industry issued a notice on Tuesday 5 May 2015, relating to the Broad-Based Black Economic Empowerment (“BBBEE”) Act and stating that broad-based ownership schemes and employee share ownership programmes will no longer allowed to contribute more than a maximum of 3 points of the total of 25 points on the ownership scorecard.
Update: Consumer Goods & Services Industry Code of Conduct and Ombud
Following our previous article titled 'Do you have to comply with the Consumer Goods and Services Industry Code of Conduct' the Minister of Trade and Industry has prescribed the Consumer Goods and Services Industry Code of Conduct ("the Code") as an Industry Code and accredited the Consumer Goods and Services Ombud as an accredited industry Ombud with effect from 29 April 2015.
Quorums and Resolutions under the Companies Act
To the extent that it has not yet amended or replaced its constitutive documents to bring them into line with the Companies Act, 2008 ("the Act"), a company incorporated before 1 May 2011 is required to call shareholders' meetings and pass resolutions in accordance with the provisions of the Act, and not in accordance with the provisions of its Memorandum and Articles of Association.
To Use or Not Use a Tax Practitioner - Some Considerations for the Taxpayer
In terms of section 240(1) of the TA Act, any natural person who provides advice to another person in respect of the application of a tax act or who completes or assists in completing a tax return must:
Secure Your Purchase Before it's Too Late
You intend to buy shares from an existing shareholder in a private company, you need to be aware of the restrictions on the transfer of those shares in the company's Memorandum of Incorporation ("MOI").
Dual Distribution Clarified by the Competition Appeal Court
2015 started with a key but largely unsung victory for South African Breweries ("SAB") in its ongoing battle with the Competition Commission. The Competition Appeal Court finally provided some clarity on the critical question of how the Competition authorities should deal with the vexed issue of dual distribution.
News Update from the Corporate & Commercial Department, Are Your Annual Returns and Director Changes Up-to-date?
Each year, within 30 business days after the anniversary of its date of incorporation, a company (including a non-profit company), is required to lodge an annual return and pay the prescribed fee to the Companies and Intellectual Property Commission ("CIPC"). An annual return is essentially ....
Environmental Law: Compliance moves from back office to boardroom, comments from Ian Sampson, Head of the Environmental & Clean Energy Law department, reported in Engineering News
In a recent case, a company director was convicted of transgressing environmental laws and handed a five-year sentence, suspended for five years on condition that the director undertakes rehabilitation of environmental damage.
SCA Rules on Abandonment of Mineral Right: Update from the Mining, Minerals & Energy Department
Last week the SCA ruled that abandonment of a mineral right is never presumed. In order for abandonment to be proved, there must be clear evidence that the holder intended the result with the full knowledge of the implications of abandonment
New CCMA Rules Effective from 1 April 2015 - Update from the Employment Law department
The amended Rules of Conduct before the CCMA were promulgated on Tuesday, 17 March 2015 and will come into effect on 1 April 2015. In addition, the earlier Guidelines on Misconduct Arbitrations (2011) have been repealed and replaced by new Guidelines also to come into effect on 1 April 2015.
Coega IDZ to get container depot - Update from the International Transport, Trade & Energy department
The Coega Development Corporation (CDC), operator of the Coega Industrial Development Zone (IDZ) in Nelson Mandela Bay, has announced that Mediterranean Shipping Company (MSC)
Minister to launch National Coastal Management Programme - update from the International Transport, Trade & Energy department
The Minister of Environmental Affairs, Edna Molewa will lead the official launch of the National Coastal Management Programme (NCMP) on March 14, 2015 in East London
Quarries not certain of SARS status, comments by Camilla du Toit reported in Business Day
A new draft interpretation note that classifies certain quarries as manufacturers rather than mines, if accepted, will have far reaching effects on the quarrying industry, warns the Aggregate and Sand Producers Association of Southern Africa.
Coega plan under way for cargo airport - Update from the International Transport Trade & Energy department, informationn taken from SA Shipping News Biz Community
Coega could soon become a multi-platform international transportation hub with plans for a cargo airport under way.
Port Ngqura creates jobs...Update from the International Transport, Trade & Energy department, information taken from SA Shipping News Biz Community
The Port of Ngqura has managed to create over 800 permanent jobs in the Eastern Cape, Public Enterprises Minister Lynne Brown said on Monday...
Taxation Update - Foreign Investment Allowances to be Increased...
In his maiden Budget Speech Nhlanhe Nene announced that with effect from 1 April 2015 the limits in respect of foreign investment allowances will be increased:
Unions to be Held Accountable: Proposed Amendments to the Labour Relations Act - update from the Employment Law department
A further amendment to the Labour Relations Act,1995 has been proposed in the form of a "Private Member's Bill" by a member of Parliament, Mr Ian Ollis.
UIF Contributions May Temporarily be Reduced, Update from the Employment Law department
South Africans will be putting some money back into their pockets via the Unemployment Insurance Fund (UIF) which has a R90-billion surplus. This was the word from Finance Minister, Nhanhla Nene in his 2015 National Budget speech.
Tax Update - UIF Contributions Reduced
Finance Minister, Nhlanhla Nene announced a reduction in the monthly contributions payable by employers and employees.
Cape Town has recently started classifying unauthorised persons found on board ships as "stowaways" and not "tresspassers" warns Skuld
South Africa’s Port of Cape Town has recently started classifying unauthorised persons found on board ships as ”stowaways” and not ”trespassers,” which can have serious implications for shipowners, Skuld warns.
IMMOVABLE PROPERTY AND THE BUDGET: 25 FEBRUARY 2015 Commentary by David Warmback
A summary of some taxation issues affecting immovable property, including those dealt with in the budget
Uneventful Budget Speech comments Anton Lockem, Partner Tax Department
There appears to be a gradual move towards taxing the wealthy, manifesting itself through, amongst others, an increase of 1% on maximum personal tax rates; increase of transfer duties for properties above R2,25 million.
Do You Have to Comply with the Consumer Goods and Services Industry Code of Conduct - update from the Corporate & Commercial Law Department
On 3 October 2014, the Department of Trade and Industry (DTI) published the draft Consumer Goods and Services Industry Code of Conduct ("the Code") for public comment.
Competition Commission Proposes Increase in Administrative Penalties - news update from the Corporate & Commercial Law Department
At 12:00 on 16 February 2015, the extended deadline for commenting on the Competition Commission's draft guidelines for the determination of administrative penalties for anticompetitive conduct expires.
Can Your Agreement be Validly Cancelled Via Email? - News Update from the Corporate & Commercial Law Department
In the recent Supreme Court of Appeal ("SCA") judgment of Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and another, the SCA had to deal with the issue of whether or not an agreement could validly be cancelled via a chain of emails.
Should Your STC'S Reserve Ownership in the Goods That You Sell? - News Update from the Corporate & Commercial Law Department
It is common practice for those who sell goods to others (on credit) to expressly reserve ownership in those goods until payment of the price is received in full – but should it be?
Property Owners Not Liable for Old Historic Rates Rules Court - News Update from the Corporate & Commercial Law Department
Owners are not liable for the payment of outstanding municipal debts, older than two years which were incurred by former owners of the property.
Landmark decision for electronic business communication - Litigation news update from Ian Chadwick
Electronic signatures have been given the legal thumbs up, following a recent appeal court judgement.
News Update from International Transport, Trade & Energy Law, Recovery in dry bulk shipping rates is not expected until at least the second quarter of 2015, according to shipping consultancy Drewry.
"We expect rates to remain under pressure through the first quarter of 2015,” said Rahul Sharan, Drewry’s dry bulk shipping lead analyst.
Taxation Update affecting company vehicles
The determined value in calculating the benefit on the use of a company vehicle will change with effect from March 1st 2015.
Shipping Update from the International Transport, Trade & Energy department - Shipping Industry Faces Erroneous Payment Risks
The shipping industry is at a high risk of unauthorised and/or erroneous payments due to the nature of the movement of cash throughout the industry, according to UK-based consulting firm Moore Stephens.
International Transport, Trade & Energy News Update - Burgan Cape Terminals now an Operation Phakisa Project - information taken from Ports & Ships Newsletter produced by Terry Hutson
Burgan Cape Terminals, which was awarded a 20-year contract by the Transnet National Ports Authority to develop a fuel storage and distribution facility at the Eastern Mole of the Port of Cape Town, has been identified as a strategic Operation Phakisa project.
International Transport, Trade & Energy Update - African Union agrees 'substantive' transport deal with China
China and the African Union agreed Tuesday, 27 January, an ambitious plan to develop road, rail and air transport routes to link capitals across the continent.
Tricky retirement reform posers for National Treasury, published in Today's Trustee
In the evolving structure of umbrella funds, there are different views about management committees. Should the umbrellas have mancos at all? If so, should they be voluntary or mandatory? Who should sit on them? What should be their role and responsibilities? Industry opinion is divided.
Competition Law Update, Competition Act penalties to increase in key areas, featured in Business Report.
The administrative penalty imposed on companies who contravene the Competition Act is set to increase substantially in certain key instances.
Conveyancing & Property Update, How well should you know your Conveyancer?
It is an all-too-common scenario. Paul sells his immovable property to Sue. The contract of sale requires Sue to pay a deposit to Paul's appointed conveyancer, where it will be held in trust pending transfer to the property to her.
Employment Law Update, Employers urged to seek advice on 'team liability'
Many retailers face a difficult problem where they suffer from shrinkage of large volumes of stock but are unable to pinpoint the perpetrator or perpetrators who should be held accountable and where necessary, disciplined
Customs, Excise, VAT & Trade Remedies Update -Safety4Sea | WSC: Preparing for container weight verification requirements
At the end of 2014, the International Maritime Organization (IMO) adopted amendments to the Safety of Life at Sea Convention (SOLAS) that will require every packed export container to have a verified container weight as a condition for loading aboard a vessel....
