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.

04 Dec 2015

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.

01 Dec 2015

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

01 Dec 2015

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....

01 Dec 2015

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.

19 Nov 2015

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.

19 Nov 2015

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.

19 Nov 2015

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.

18 Nov 2015

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.

11 Nov 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.

10 Nov 2015

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".

09 Nov 2015

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.

04 Nov 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.

30 Oct 2015

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.

28 Oct 2015

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.

27 Oct 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.

27 Oct 2015

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.

22 Oct 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.

22 Oct 2015

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".

22 Oct 2015

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.

22 Oct 2015

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.

21 Oct 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

20 Oct 2015

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.

15 Oct 2015

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.

15 Oct 2015

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.

14 Oct 2015

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.

13 Oct 2015

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)...

09 Oct 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:

09 Oct 2015

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.

07 Oct 2015

BBBEE Fronting

Mining companies must ensure that their operations do not constitute a 'fronting practice'.

07 Oct 2015

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.

02 Oct 2015

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".

21 Sep 2015

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.

15 Sep 2015

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.

15 Sep 2015

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.

14 Sep 2015

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.

09 Sep 2015

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.

09 Sep 2015

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

09 Sep 2015

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.

09 Sep 2015

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.

09 Sep 2015

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.

08 Sep 2015

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.

07 Sep 2015

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.

07 Sep 2015

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.

28 Aug 2015

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...

24 Aug 2015


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.

19 Aug 2015

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.

18 Aug 2015

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.

27 Jul 2015

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.

27 Jul 2015

"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).

23 Jul 2015

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.

22 Jul 2015

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:

10 Jul 2015

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.

10 Jul 2015

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.

07 Jul 2015

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?

07 Jul 2015

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”)

07 Jul 2015

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."

07 Jul 2015

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.

07 Jul 2015

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.

07 Jul 2015

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.

07 Jul 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.

07 Jul 2015

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.

07 Jul 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.

24 Jun 2015

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.

19 Jun 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.

07 May 2015

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.

20 Apr 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.

20 Apr 2015

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").

20 Apr 2015

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.

20 Apr 2015