In the Supreme Court of Appeal judgment in the matter of Trinity Asset Management v Grindstone Investments the SCA found that the date upon which a debt becomes due must not be conflated with when repayment thereof was demanded:
In South Africa there is no specific legislation that criminalises online harassment although victims can approach the Magistrates’ Court for a harassment order. That order will not result in jail time for a perpetrator unless it is breached
What happens when the court that grants a decree of divorce to a couple, married in community of property, does not make a specific order declaring that the pension interest is to form part of the joint estate?
Was his presence on social media a key factor in Donald Trump's victory?
The Minister of Trade & Industry published a proposed threshold for the definition of "Major B-BBEE Transaction" which appears in section 13F of the B-BBEE Act.
The animosity between the home owners and the golf club at Atlantic Beach Golf Course has been caused by conflicting interests.
The Tax Court recently found in favour of the taxpayer when it said that there is nothing wrong in crediting a loan account in the funder's books of account by the taxpayer in the context of a funding agreement between the taxpayer and the funder.
Updated Draft Policy and Bill on the Preservation and Development of Agricultural Land - seeks to protect and develop agricultural land for food security purposes and to better control the subdivision of agricultural land.
It is interesting to note how the InBev/SABMiller merger was approved relatively quickly when compared to the protracted and embattled merger proceedings in the Walmart/Massmart transaction of 2012.
The recent Supreme Court of Appeal judgment in Muller v Sanlam Life Insurance Limited has clarified the position in respect of prescription, and when a debt of a long-term insurer becomes due.
According to the Business Day last week, Eskom is forging ahead with nuclear procurement, despite the absence of an updated energy blueprint and defying the government’s directive of first signing power purchase agreements with independent power producers.
In recent years, arbitration has become a widely recognised alternative mechanism to resolve disputes between parties. Arbitration may, in many circumstances, be a more suitable alternative to civil litigation.
Many Grade 12 pupils are already on study leave with the final exams looming. Every year there are stories of over exuberant teenagers getting too excited too soon and doing something stupid before writing their final exams.
A summary of various pieces of legislation that deal with “ownership” of land amongst black communities in KZN.
Even the taxman must stand in line with other Creditors before the Liquidator. This is according to the recent Supreme Court of Appeal decision of CSARS v Van der Merwe NO.
Property Developers that degrade the environment can incur huge financial costs as a result of directives that can be issued by the authorities to remediate the land at their own expense. Although the value of the land may depreciate in light of these directives, this does not mean that developers will automatically be entitled to compensation for the decrease in the value of the property.
Section 44 of the Medical Schemes Act empowers the Registrar of Medical Schemes to order an inspection of a scheme where he is of the opinion that such an inspection will provide evidence of any irregularity or of non-compliance with the provisions of the Act. The Registrar can also order an inspection for the purposes of routine monitoring of compliance with the Act.
Traditionally, a “demand facility” is a loan with no fixed repayment date, and one where the lender will “demand” repayment at some future uncertain date – this could be 1 month, 1 year or 10 years from the date that the amount was advanced.
The case of Transnet Soc Limited v Total South Africa (Pty) Ltd and Another raised the Q: Can a contract between the former Government of SA and Total South Africa continue to bind Transnet despite the change in legislative regime that governs the transport and conveyance of fuel in South Africa?
The appellate case of Tamryn Manor (Pty) Ltd v Stand 1192 Johannesburg (Pty) Ltd raised the Q: When is an agreement for the sale of land, on the face of it valid and compliant with the requirements of the Alienation of Land Act 68 of 1981, capable of being rectified?
Separation agreements are often underutilised to the detriment of both employers and employees. A separation agreement brings to an end an employment relationship by way of mutual consent, rather than unilateral termination.
On 26 September 2016, the Department of Home Affairs amended South Africa's immigration legislation to create more stringent penalties for foreigners who over stay on their issued visas.
The Sectional Title Schemes Management Act and the Community Schemes Ombud Service Act finally commenced on 7 October 2016.
In November 2015, following on the announcement made by the Minister of Finance in the 2015 Budget Speech, the National Treasury published the Draft Carbon Tax Bill for public comment. According to Treasury, carbon tax seeks to price carbon by obliging the polluter to internalise the external costs of emitting carbon, and contribute towards addressing the harm caused by such pollution.
Following the release of the draft Taxation Laws Amendment Bill on the 8 July 2016, National Treasury has focused the spotlight on hybrid debt instruments. In essence, in certain instances, section 8F and section 8FA of the Act reclassifies interest as a dividend in specie i.e. a distribution in a form other than cash. With the release of the draft Bill, National Treasury has proposed key amendments to section 8F and section 8FA.
Generally, a vendor is not entitled to deduct input tax on the acquisition of a "motor car." This general rule is however subject to certain exceptions which are contained in the provisos to section 17 (2)(c) of the Value-Added Tax Act 89 of 1991.
In October 2015, the OECD released its BEPS Action 4 Report on Limiting Base Erosion Involving Interest Deductions and Other Financial Payments. Chapter 6 of this report deals with a ‘fixed ratio rule’ - an entity should be able to deduct interest expense up to a specified portion of EBITDA, ensuring that a portion of an entity’s profit remains subject to tax in a country.
The South African Treasury has made far-reaching concessions on the draft Taxation Laws Amendment Bill and the draft Tax Administration Laws Amendment Bill after public hearings highlighted the concerns of many stakeholders, including leading tax experts.
The Davis Tax Committee released its final interim report on estate duty on 24 August 2016. Recommendations affect the existing tax exemptions applicable to transfers of assets between spouses. The Committee believes that the estate duty regime in South Africa must be reviewed in order to establish an effective and equitable package of major abatements and rates.
How to deal with your concerns regarding privacy and social media.
“Naming and shaming” on social media is an increasingly popular way for people to complain - however there is a risk to using social media to complain about professional people such as doctors and attorneys.
Over the past few months, there have been much press coverage of the SABC’s treatment and dismissal of 8 journalists who defied the public broadcaster’s controversial mandate prohibiting the footage of destruction of public property during protests. In the July judgment, the Labour Court ruled that the SABC’s dismissal of the four journalists was unlawful.
Take time to think before you 'tweet'. Sound advice on safely using social media to promote your brand.
Amendments to section 143 of the Labour Relations Amendment Act make it easier, inexpensive and accessible for a person to enforce a certified arbitration award.
On 7 September 2016, the Information Regulator for Protection of Personal Information (POPI) and Promotion of Access to Information (PAIA) has been appointed.
On 30 August 2016, following an in-depth state aid investigation launched in June 2014, the European Commission concluded that Ireland granted undue tax benefits of up to €13 billion to Apple.
On 18 April 2016, SARS updated the ITR14 to include new disclosure requirements in respect of transfer pricing, reflecting the Davis Tax Committee recommendations for inclusion in the Country by County report in terms of the OECD's BEPS Project.
For years, the SA securities lending industry had been lobbying for an exemption from STT for the outright transfer of listed equity securities as collateral. The exemption is for purposes of benefitting the industry by removing adverse tax consequences.
The trend developing with landlords and banks is that when there is a risk of business rescue and an existing breach of an agreement, the creditor must act immediately on the breach and, where possible, cancel the agreement.
King IV recommends that large funds should have more independent trustees on its board and suggests continuous development of trustees.
The Pension Funds Act provides for employers to recover compensation for damages caused by the misconduct of an employee. There have been significant developments in relation to these deductions.
A recent case sounds a warning to shippers/ consignees who may be liable to the carrier for demurrage on the late turn in of containers.
The Financial Sector Regulation Bill and the related Financial Sector Levies Bill will implement the Twin Peaks model for financial regulation and supervision.
When are companies legally justified in departing from the provisions of their disciplinary codes and procedures when disciplining employees?
When a societal campaign “goes viral” such as the #FeesMustFall or #RhodesMustFall authorities would do well to sit up and listen because it is a clear indicator that change is on the horizon.
REIT's have become a popular investment tool in SA. It is recommended that investors understand the anomalies of section 25BB of the Income Tax Act prior to investing in REIT's.
Developing countries suffer the most from the consequences of BEPS. In order to overcome these consequences, the OECD/G20 embarked on the BEPS Project, which seeks to eliminate opportunities and close the loopholes for cross-border tax avoidance.
One of the proposals under the draft Taxation Laws Amendment Bill is to widen the scope of the Income Tax Act regarding allowable capital allowances for supporting infrastructure used in producing renewable energy.
Although South Africa is a signatory to the United Nations Convention on Cross Border Insolvency, the provisions of that convention have not been given effect to in South Africa, with the result that there is no automatic recognition of Hanjin Shipping Co Limited bankruptcy proceedings.
Q&A including child care, parenting plans, access / contact to your child and If your child is removed without your consent.
Samantha Davidson, Head of Pension Law at Shepstone & Wylie Attorneys discusses what trustees can do to improve their funds with Joseph Maqhekeni and Manene Samela on Classic Business.
On 2 September 2016, Dormac Marine officially welcomed its new floating dock which is expected to substantially increase ship repair and maintenance capacity in Durban.
Section 34(1) was drafted to prevent traders in financial difficulties from disposing of their business to third parties who are not liable for the debts of the business.
Deadline for waste classification and other regulatory compliance for waste generators.
Labour Court: When an employee in a high-trust position continues to rely on a false defence, then the employer can legitimately say that the risk of continued employment is unacceptable.
During divorce or custody matters, it is unlawful to publish any information which could reveal the identity of any child who is the subject of court proceedings in the Children’s Court.
The Secretariat of the Indian Ocean Memorandum of Understanding on Port State Control has announced that its member Authorities will be undertaking a concentrated inspection campaign on Cargo Securing Arrangements, for three months from 1 September until 30 November 2016.
On 22 August, the Competition Commission announced that it has struck a deal with ArcelorMittal settling all the outstanding investigations and claims against it for a whopping fine of R1.5 billion payable in R300 million annual instalments for the next 5 years.
In an Olympic year it seems that every person is a sports expert, but one has to be very careful about the way that you share your opinions on social media, especially if you are just a passionate sports fan and not an expert.
SARS Customs rely on importers to declare the correct tariff heading and dutiable amount on their SAD500. Some importers try to avoid paying what is legitimately due in customs duty and VAT by misdeclaring the tariff code and / or customs value.
An overview of the judgment in the long-running competition law fight and subsequent civil damages claim between Nationwide Airlines and SAA.
The 2016 Tax Season opened on 1 July for taxpayers submitting for the March 2015 - February 2016 tax year.
On July 20 2016, the National Treasury announced its proposed changes to the Special Voluntary Disclosure Programme.
It is no secret that the legislator has wanted to close the perceived loophole that taxpayers use to avoid estate duty and donations tax by transferring assets to a trust through an interest-free loan
One of the largest fraud cases ever prosecuted in the High Court, involved 184 charges including defrauding SARS and reckless conduct of a business.
Obesity has become a major concern in South Africa. In order to tackle this problem, the government has proposed a tax on sugar-sweetened beverages (SSBs), with effect from 1 April 2017.
Local Government elections on Wednesday 3 August are definitely a significant day on our calendar, however, did you know that it would be an offence to share a picture of your ballot on social media?
The most often asked questions concerning child maintenance are answered in this article.
On-demand guarantees constitute primary independent obligations placed on a guarantor to make payment of a guaranteed amount.
The High Court certified two class action suits of silicosis and pulmonary tuberculosis (TB) against 32 mining companies. The judgment has set the stage for protracted legal proceedings in the largest class action suit in SA's history.
This is hugely significant in a country where the state electricity public utility has been battling to meet the electricity demands.
The case discussed in this article clarifies the often debated question of whether municipalities exercising their local government functions can legislate or assume authority over matters of the environment or nature conservation.
Samantha Davidson, Head of Pension Law, joins the panel to review pension pay-outs in South Africa.
Verlie has a regular slot on ECR's Breakfast Stack every Tuesday at 07.40 listen each week for practical tips on how to manage Social Media.
On Thursday 7 July 2016, the Competition Commission announced that it was investigating Transnet for various abuses of dominance including excessive port prices and various exclusionary practices. The investigation is long overdue and to be welcomed.
Umbrella funds have typically attempted to draft their rules so that the assets and liabilities of members in each sub-fund will be ring-fenced from other sub-funds and the umbrella fund as a whole.
On 29 June 2016, the Competition Tribunal confirmed a consent order agreed by the Competition Commission with Murray & Roberts and Freyssinet Posten ("Freyssinet"). Murray & Roberts and Freyssinet admitted price-fixing, market division and collusive tendering on over 60 projects and between them agreed to pay a fine of just over R4.7 million.
The South African Maritime Safety Authority (“SAMSA”) has issued a Marine Notice, No. 27 of 2016, regarding “lessons learnt” from three serious marine casualties that have occurred off the coast of South Africa over a six-month period.
With your wedding fast approaching, you are asking yourself: “Do I need an Ante Nuptial Contract? Who can assist me with drafting one?”. The Child & Family Law team at Shepstone & Wylie Attorneys is here to assist you.
Verlie has a regular slot on ECR's Breakfast Stack every Tuesday at 07.40 listen each week for practical tips on how to manage Social Media.
Strike action by employees is routinely accompanied by violence. This legal decision shows that provided employers carefully manage strikes and rely on sound legal advice, they need not be impotent against violent strikes.
South Africa is signatory to a number of international agreements and has a number of domestic laws in place that regulate the utilisation and conservation of our marine living resources.
The National Treasury published the Draft Regulations on the Carbon Offset, these are open for public comment .
Verlie has a regular slot on ECR's Breakfast Stack every Tuesday at 07:40 listen each week for practical tips on how to manage Social Media.
On June 9th the amendment to the Competition Act implementing fines of up to R500 000 and prison sentences of up to 10 years or both for cartel crimes commenced.
Overview of the Supreme Court of Appeal Judgment in a case relating to the contribution by members of a medical scheme to their savings accounts with that scheme.
The Labour Court found the South African Municipal Workers’ Union and its general-secretary, Simon Mathe, guilty of contempt of court after it was found that they did not do enough to persuade their members to comply with a court interdict during a wage strike at Pikitup.
What happens when a taxpayer is unaware of certain facts relating to their compromise offer application (thus not disclosing them) and only becomes aware of those facts after an agreement of compromise has been entered into? Can SARS then claim that it is not bound by the compromise agreement?
The launch of a pilot programme aimed at cutting delays in the issuance of Letters of Authority.
It is important for vendors to ensure that they keep records of all invoices they receive or issue when conducting business, as SARS is entitled to reject a vendor's claim upon failure to provide sufficient documentary evidence.
The strict requirements of an ex parte application - if material facts are not disclosed in an ex parte application or the facts are deliberately misrepresented to the Court, the order will be erroneously granted.
An update on our previous reported case of Palala Resources (Pty) Ltd v Hectocorp (Pty) Ltd.
Price fixing, market division and tender collusion between competitors will be criminal offences in terms of the Competition Act
The importance of the Rights of a Child under The Hague Convention.
Make sure you are aware of the laws that govern your marriage.
The implications of entering into a debate on a social media platform.
What are the scope of the powers of Trustees?
The result of the OW Bunker Appeal.
A Bill amending Section 32 of our Immigration Act 13 of 2002 was passed before Parliament on 19 May 2016.
Information to help deal with the negative side of social media
Landmark SCA Judgment involving Vodacom
Useful information for owners of immovable property
Employers need to be aware of the most important categories of evidence
The case in the court a quo was that of PST Energy Shipping and Product Shipping and Trading SA v. OW Bunker Malta and ING Bank SA. Unfortunately, the Supreme Court has now dismissed Owners’ appeal, confirming that SOGA did not apply. The Supreme Court found that the contract was not one "for the sale of goods" as ownership did not pass before consumption of the bunkers.
Answers to the most often asked Customs & Excise questions
The Practical implications to the iSimangaliso Marine Protected Area
OSIS Weather Warning - South African Coast, Table Bay to East London
Overview of SAMSA Guidelines
From 1 May 2016 price fixing, market division and tender collusion between competitors will be criminal offenses in terms of the Competition Act, 1 2009.
Clarification on how interest on lump sum benefits should be treated.
In this case, the Court had to decide whether Section 76(1) of the Income Tax Act was applicable or whether the comparable sections in the Tax Administration Act had application.
Where the Customs & Excise Act provides that Customs must conduct itself in a certain manner, then it is irrelevant if an official has interpreted the Act differently in a guideline.
The Voluntary Disclosure Programme announced by Pravin Gordhan in the recent Budget Speech.
Should PAYE be deducted from non-executive directors’ fees or should directors register as VAT vendors?
Update on how POPI will impact the security of information on social media sites.
Case review where the SCA had to determine whether the taxpayer was conducting farming operations for the purposes of section 26(1) of the Income Tax Act read with paragraph 14 of the first schedule.
In this case the Court dealt with an alleged fraudulent claim of arson and the onus on the insurer to prove that the insured was the arsonist and that he failed to take reasonable steps and precautions to prevent the loss.
The new legislation explained
A summary of the case of Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co. Ltd.
The SCA upheld an appeal by the owners of the fishing vessel Lindsay against Mutual and Federal Insurance Ltd ("M&F") for payment of R3.99 million under a marine insurance hull policy.
The Notice invites members of the public to submit written comments on the Bill within 30 calendar days of the publication of the Notice.
In the recent case of NUMSA v Transnet SOC Limited, the Labour Appeal Court considered Transnet's Refusal to Engage the National Union of Metalworkers (“NUMSA”) on the granting of organisational rights.
An over view of the Labour Court judgment in the case of EWN v Pharmaco Distribution (Pty) Ltd.
Constitutional Court of South Africa, in the matter of Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal and Others.
The issue of pay discrimination came before the courts in a recent decision of South Africa Municipal Workers Union on behalf of Tetyana v Nelson Mandela Bay Municipality.
Supreme Court of Appeal handed down judgment in the case of City of Tshwane Metropolitan Municipality v PJ Mitchell.
Minister of Environmental Affairs promulgated in terms of section 34G of the National Environmental Management Act 107 of 1998 the admission of guilt fine regulations for certain activities.
The Constitutional Court handed down judgment regarding the constitutionality of a decision made by the President on the 2nd of June 2014, to publish into law, the National Environmental Management Laws Amendment Act .
The answer to the question concerning what constitutes ‘own primary production’ as contemplated in the Customs and Excise Act No.91 of 1964.
From the days of the first Dutch settlement at the Cape, locals have described themselves as a "seafaring" nation.
On 3 February 2016, the Labour Appeal Court ("LAC") delivered a judgment in the matter of Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd & 1 Other in which it had to consider the validity of a separation agreement.
Hearings in the Healthcare Market Inquiry resumed in Cape Town yesterday (01 March 2016), and much was made of potential conflicts of interest facing the Board of Healthcare Funders. Today, (02 March 2016) Discovery Health is front and centre and is making its submissions to the panel.
The wealthy have again been targeted to contribute much more to the fiscus in the form of transfer duties when purchasing high value immovable property on or after 1 March 2016.
In the main, the tax proposals seek to reduce the fiscal deficit through an increase in excise duties, the general fuel levy and environmental taxes. There will also be an increase in capital gains tax and transfer duty, together with fiscal drag on personal income tax to account for inflation.
A summary of some taxation issues affecting immovable property, including those dealt with in the budget, as well as some proposals affecting immovable property in the pipeline, are detailed in this article.
Additional tax amendments proposed for the upcoming legislative cycle.
Additional tax amendments proposed for the upcoming legislative cycle.
Additional tax amendments proposed for the upcoming legislative cycle.
Additional tax amendments proposed for the upcoming legislative cycle.
Additional tax amendments proposed for the upcoming legislative cycle.
Additional tax amendments proposed for the upcoming legislative cycle.
Additional tax amendments proposed for the upcoming legislative cycle.
Additional tax amendments proposed for the upcoming legislative cycle.
The respondents in this case are all foreigners who had had their applications for asylum under Section 21 of the Refugees Act rejected.
The draft Regulations to the Broad-Based Black Economic Empowerment Act, 2003, published on 17 February 2016 contain some alarming new developments which, if they are finalised in their current form, will severely impact on commercial activities and foreign investment in South Africa.
Following virulent opposition to the changes by the trade unions and increasingly widespread speculation regarding the implementation of the changes, the Ministry of Finance has now announced proposals for the delay of the annuitisation requirements for provident funds.
In a Notice published on 17 February, the DTI has released for comment draft regulations to the BEE Act. These regulations pertain largely to the conduct of and the referral of complaints to the newly created BEE Commission which was established by the BEE Amendment Act.
Social Media, the consequences of using Social Media and the law applicable to Social Media use have all come under the spotlight in recent months on the back of certain individual’s controversial social media posts and the subsequent termination of their work contracts. A high profile example of this was the cancellation of Gareth Cliff's Idols judging contract by M-net after he tweeted a comment that was viewed unfavourably by the general public in the wake of the Penny Sparrow furore.
Until now, South African Labour Courts have not had the opportunity to consider what impact, if any, a ‘garden leave’ clause contained in a contract of employment may have on the enforceability of a restraint of trade. In a landmark judgment, the Johannesburg Labour Court, on 9 February 2016, confirmed that garden leave does form part of South African law.
The intention of the investor is important when considering whether an investment falls under gross income or capital; the tax consequences of the two being very different.
This case review puts employees’ tax implications of a company-car scheme back in the spotlight.
SARS’ increased administrative powers to extend prescription periods is a cause for concern and a departure of a long-standing administrative procedure.
Government is facing a dilemma in deciding how taxpayers will fund the State as the increase in tax will be tricky this year due to South Africa’s weakened economy.
On 5 February 2016, the Chief Inspector of Mines published four guidelines in the government gazette for the compilation of mandatory codes of practice.
This is an urgent alert to all businesses. Many of you may have any potential outstanding amount (albeit that they are disputed) that is due to Customs or the Revenue section of SARS. We have already from the customs side seen the start of a drive for collection of revenue by SARS.
In the recent case of ABSA Bank Limited vs De Beer & Others (2015), the Judge held that a loan made to a Mr de Beer, retired farmer, constituted reckless credit and did not need to be repaid. Whilst that decision may provide relief to the De Beers', it may be a chill wind for other consumers of similar ages and positions when seeking bank finance.
Section 118 (3) of the Local Government: Municipal Systems Act serves as a form of security for services rendered by the Municipality. Under this section the Municipality enjoys the protection of being a preferent creditor over bond holders of the property.
"You cannot register a bond over a property you do not own." This was re-confirmed by the SCA in ABSA Bank Limited vs. Christina Martha Moore and Jacques Moore.
What is a Community Scheme? It is any scheme or arrangement in terms of which there is shared use of and responsibility for parts of land and buildings.
While the Incoterms 2000 is an extremely valuable tool in international trade, the CFR ("Cost of Freight") and CIF ("Cost Insurance and Freight") terms sometimes give rise to unexpected consequences.
Dawn raids are an extremely effective weapon in the Competition Commission's arsenal, and they are a weapon the Commission uses often and effectively.
The Labour Court recently considered whether years of erroneous payments by an employer to its employees could result in the payments forming part of the employees’ terms and conditions of employment.
In the week of 11 January 2016, the European Court of Human Rights delivered a landmark decision regarding the inappropriate use of social media messaging platform, Yahoo Messenger, by an employee in Romania.
The Minister of Environmental Affairs has published two related pieces of legislation for comment under the National Environmental Management: Air Quality Act 39 of 2004, namely Declaration of Greenhouse Gases (GHGs) as Priority Air Pollutants and National Pollution Prevention Plans Regulations.
The legislation giving effect to the tax harmonisation reforms of retirement funds has finally been signed into law by the President.
In the wake of the recent Penny Sparrow and Chris Hart debacles, there has never been a better time for employers to familiarise both themselves and their employees on Social Media Law...
The case in this matter reiterates the legal principle that "it is not a requirement for a valid contract of sale that the seller must be the owner of the thing sold".
IT News Africa - Since its release, according to IAB SA, the Cybercrimes and Cybersecurity Bill has come under intense scrutiny for being too general in its approach.
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