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 newly reported judgement in Tasima (Pty) Ltd v Department of Transport (792/2015)  ZASCA 200 (2 December 2015) highlights some interesting aspects regarding the review of administrative actions.
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.
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.
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.
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....
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.
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.
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.
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.
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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
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 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.
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 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.
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.
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.
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.
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".
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.
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.
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.
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
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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...
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.
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...
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.
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.
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).
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.
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:
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.
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.
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?
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”)
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."
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.
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.
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
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 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.
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'.
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.
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.
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.
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),
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.
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.
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.
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.
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.
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:
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").
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.
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 ....
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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....