Environmental Law: What does 2018 have in store for us?
2018 will have a lot instore for us with respect to legislative amendments, and the introduction of new legislation to ensure a sustainable and effective management of the environment.
Articles
Matric Silly Season - Social Media Update
Don’t let the December holidays be ruined having to spend time with lawyers defending a social media case!
Don't Let Black Friday Become Black December
Your credit card can be used without it being stolen out of your wallet… online accounts can be hacked… don’t let your November shopping turn into a December nightmare.
Social Media Reaction to Fees Commission
President Zuma announced the findings of Judge Heher who chaired the Fee Commission. The reaction to the report on social media was swift and many of the comments expressed great disappointment in the findings.
Media Statement from the Dept of Labour on the Information Sessions for Employee Reps
The media statement issued by the Department of Labour regarding the start of its information sessions for employee reps on the NMW and other amendments.
Is There Ever an Excuse for Piracy?
In the last few days a PDF version of the Jacques Pauw bestseller The President’s Keepers, has been circulating on Whatsapp. It seems that the public were concerned that the book would be pulled from the shelves and so a “pirated” copy was spread virally.
Environmental, Health and Safety Audits: Are Your Ducks in a Row?
As part of the ISO standards, industries are required to conduct EHS legal compliance audits.
Cybersecurity Risk Exposure and Management: How Safe is Your Company From Cyber Attacks?
Cybercrime is an increasing global threat which has caused substantial damage over the years to public and private companies such as Maersk, Google, Yahoo, Rosneft, FedEx and Telkom. Cybercrimes can take the form of data loss, data breaches and data ransom.
BREAKING NEWS – CAPE TOWN PORT SUSPENDS SALE OF POTABLE WATER TO VESSELS
The port of Cape Town has suspended the sale and supply of fresh water to vessels calling at the port, with exceptions considered only in extreme cases and on merit
Mineral Royalty: Treatment of Transport, Insurance and Handling Expenses
The Mineral and Petroleum Resources Royalty Act, No. 28 of 2008 (as amended), (the Royalty Act) imposes the obligation on a person to 'pay a royalty for the benefit of the National Revenue Fund in respect of the transfer of a mineral resource extracted within the Republic'.
When SARS Must Provide Grounds for an Assessment
This case deals with SARS’ compliance with section 96 of the Tax Administration Act and the need to provide the taxpayer with a statement of the grounds for assessment.
Dividends Tax: South Africa's Most-Favoured Nation Clauses
Here we briefly outline the general tax implications when dividends are declared by a company that is a tax resident of South Africa to a shareholder that is not a tax resident of South Africa, as well as dividends declared by a company that is not a tax resident of South Africa to a shareholder that is a tax resident of South Africa.
Repealing the Unilateral Tax Relief Provision Pertaining to Foreign Remuneration 2.0
One of the proposals in the Draft Taxation Laws Amendment Bill,, is that the foreign employment remuneration exemption under section 10(1)(o)(ii) of the Income Tax Act be repealed. South African resident persons rendering services abroad will therefore have their remuneration subjected to South African tax as well as foreign tax. National Treasury and SARS have published a draft response document, and here follows the anticipated changes to this unilateral tax relief provision.
Voluntary Disclosure Programme: Understatement penalty requirement
In the event of an 'understatement' by a taxpayer, the taxpayer must pay, in addition to the tax payable for the relevant period, the understatement penalty, unless the 'understatement' results from a bona fide inadvertent error.
Political Parties, Social Media & Schools: Unlawful Mix?
What many people do not know is that in terms of the Schools Act there is a legal prohibition on political activity during school time at public schools.
Customs Update - Reporting of Conveyances and Goods
As has been widely publicized, licensing and registration is no longer going to be introduced as the first phase of implementation of the new Customs Legislation.
Social Media Plans Gone Wrong
It is often very difficult to anticipate how the audience will interpret an advert or whether it will cause offence.
Restraint of Trade: The Vexed Question – Is It Reasonable?
The reasonableness of a restraint of trade agreement is a matter for the court to determine, and the fact that parties to the restraint of trade may have accepted or described it as reasonable is of no consequence.
Historical Municipal Debt: A Thing of the Past for New Property Owners
The courts have finally come to the rescue! The North Gauteng High Court handed down a judgement on 7 November 2016 in the case of Chantelle Jordaan and Others v The City of Tshwane Metropolitan Municipality and Others.
Retirement Funds Required to Implement Default Arrangements
The final version of the Default Regulations to the Pension Funds Act, 1956, was signed into law by the Minister of Finance on 25 August 2017 and came into effect on 1 September 2017. The media statement issued by National Treasury together with the regulations explained that the regulations are “meant to improve the outcomes for members of retirement funds by ensuring that they get good value for their savings and retire comfortably”.
Competition code of Conduct for the Automotive Sector: Calls for Submissions
On 26 September 2017, the Competition Commission published for comments its Draft Competition Code of Conduct for the Automotive Industry. Comments to be submitted by 3 November 2017.
Competition Law Update
On 15 September 2017, the Minister of Economic Development announced that the Competition Commission’s merger filing fees will increase on 1 October 2017 from R100 000 to R150 000 for an intermediate merger and from R350 000 to R500 000 for a large merger.
Stopping the Snoopers - Social Media Update
There have been all sorts of allegations about a “dirty tricks” campaign that has been launched against the Deputy-President, Cyril Ramaphosa.
Extension of Zimbabwean Special Permits Announced
On Friday 8 September 2017 the Minister of Home Affairs, Professor Hlengiwe Buhle Mkhize, announced the commencement of the new Zimbabwean Exemption Permit (“ZEP”), which will take effect from 1 January 2018, for a period of 4 years.
The Shock Value of Viral Videos
It is important to remember that the social media universe should not play the role of the police and prosecutor and judge regarding crimes that they perceive have been committed and documented on platforms such as Facebook.
The Political “Twitterverse” - Social Media Update
It has been an extremely busy week for politicians and their detractors on social media...
Business Rescue Practitioners Do Have Skin in the Game, But Watch This Space…
Business Rescue Practitioners are at risk for fees and disbursements incurred in the business rescue proceedings of an entity where the business rescue proceedings are converted to liquidation proceedings...
Social Media Detective Work
Parents need to realise that teenagers are sometimes too immature to handle what they are presented with online and it can lead to incredible danger. Educate them on the pitfalls.
Beware! The FSB Can Replace the Board of Your Pension Fund!
The Registrar of Pension Funds can deconstruct the board of a pension fund and appoint a new interim board. It’s happening with increasing frequency and this more intrusive approach of the regulator is in keeping with Twin Peaks and the intention to advance a safer financial services sector.
Social Media and School Protests
Recently high schools have been the sites of protests where significant assistance in organising pupils and getting their message across has been provided by social media.
Pre-Emptive Right to Purchase Immovable Property: Constitutional Court Develops The Common Law
In the recent case of Mokone v Tassos Properties CC and Another [2017] ZACC 25, the Constitutional Court developed the common law dealing with a pre-emptive right to purchase immovable property. The court held that, since a right of pre-emption is not in itself an agreement for the sale of land, it need not comply with the formalities of the Alienation of Land Act 68 of 1981, which requires the sale agreement for land to be signed by both parties.
Are Municipalities Entitled to Levy Rates for the Full Financial Year on Transfer of a Property
The recent SCA case of Nelson Mandela Bay Municipality v Amber Mountain Investments 3 (Pty) Ltd dealt with the issue of whether, following the sale of immovable property, the property owner is liable to pay the total rates on the property determined for the entire financial year or only the rates calculated until the property is transferred.
Exception to the Without Prejudice Rule
The recent judgment of KLD Residential CC v Empire Earth Investments 17 (PTY) LTD 1135/2016) [2017] ZASCA 98 is ground-breaking, as the court took an exception to the “without prejudice” rule.
SA Should Act Decisively to Realise Regional Hub Potential
The Comprehensive Maritime Transport Policy for South Africa launched by the Department of Transport (DoT) last month could potentially boost the industry and economic growth – but only with sufficient financial allowances and transparency to prevent corruption.
Can Public Officials Exercising a Public Duty be Ordered to Pay Litigation Costs Out of Their Own Pocket?
In a recent matter the Constitutional Court grappled with the issue of whether the Minister of Social Development should be ordered to pay the costs of the litigation surrounding SASSA's failure to ensure the continued payment of government grants.
Claims Secured by Special Notarial Bonds Prescribe After 30 Years
In the recent case of Factaprops 1052 CC and Another v Land and Agricultural Development Bank of South Africa t/a Land Bank, the SCA clarified the matter of what prescription period applies to a debt secured by a special notarial bond.
Medical Aid Funds Win Appeal Against Competition Ruling in Namibia
On 19 July 2017, the Supreme Court of Namibia decided that the Namibian Association of Medical Aid Funds was not an undertaking subject to the Namibian Competition Act. With the question of high medical costs under the spotlight of the South African Competition Commission's healthcare market inquiry, perhaps the issue of benchmark tariffs in the healthcare price context will be revisited.
SARS Annual Performance Plan 2017 and 2018
It is advisable to ensure that those licensed and registered with Customs and Excise are fully compliant with the current legislation and that each movement of goods is secured by way of a clear paper trail.
Divorce Update: Holiday Contact with Your Child – Be Prepared in Advance
One of the unfortunate repercussions of divorce is the splitting of school holidays with one's ex-spouse in respect of time spent with the children of the marriage. This often becomes the subject of urgent and expensive High Court litigation.
Locus Standi for Interested Parties in Legal Proceedings with SARS
In the unreported case of Sariette Groenewald v Commissioner for the South African Revenue Service, the High Court had to determine whether a sole member of a close corporation had legal standing in an application brought by the Commissioner against the Close Corporation (the Taxpayer).
The Constitutionality of Implementing Retrospective Fiscal Legislation
In the recent High Court case of Pienaar Brothers (Pty) Ltd v Commissioner for the South African Revenue Service and Another, the Court had to decide whether retrospective fiscal legislation conflicts with South Africa’s constitutional principle
Transfer Pricing Regulations Pertaining to the Capital Sum of a Loan
Although South Africa no longer has a safe harbour rule, this does not mean that one will be entitled to deduct all interest paid on a loan. One will only be entitled to do so if one can show that the capital amounts obtained from the loan are of an arm’s length nature.
Repealing the Unilateral Tax Relief Provision Pertaining to Foreign Remuneration
The Draft Taxation Laws Amendment Bill published on 19 July 2017 proposes inter alia that the foreign employment remuneration exemption under section 10(1)(o)(ii) of the Income Tax Act 58 of 1962 be repealed, which means that South African resident persons rendering services abroad will have their remuneration subjected to South African tax as well as foreign tax.
Trusts Update: The New Proposed Amendments to Section 7C
On 19 July 2017, National Treasury published the Draft Taxation Laws Amendment Bill 2017, which proposed inter alia that section 7C be extended so as also to apply to interest free or low interest loans, advances or credit that are made by a natural person or a company to a company that is a connected person in relation to a Trust.
Cellphone Users Be Warned!
It is illegal to hold your cellphone to your ear whilst driving, so we have come up with other ways to communicate whilst driving, contrary to what most people believe, all of these ways are illegal
Public Violence Caught on Camera - Social Media Update
Everyone, and more especially public figures, need to remember that everyone with a smartphone is potentially a cameraman and unruly behavior is likely to be recorded and posted online.
Stealing Hearts (and more) on Social Media
It seems that the news surrounding social media is getting stranger and stranger by the day!
Cyberstalker Convicted
This case makes it clear that the criminal courts are taking this type of behaviour seriously and it is not just the risk of civil claims that cyber stalkers face when engaging in these types of actions.
VAT registration for non-executive directors
On 10 February 2017, SARS issued Binding General Ruling 41 ("BGR41") with regard to the VAT implications for non-executive directors.
A Sale of Immovable Property - When Does the Taxpayer's Liability Arise?
Review of a case that dealt with the issue of whether a taxpayer’s liability arises in the year in which the sale of immovable property is concluded or in the year in which payment is received and transfer is made.
Judicial Sales of Vessels in South Africa Pendente Lite - The MV "Silver Star"
The MV "Silver Star" was arrested in rem pursuant to the provisions of section 3(6) and 3(7) of the Admiralty Jurisdiction Regulation Act at Port Elizabeth as an associated ship of the MV "Sheng Mu".
Imported Goods: The Price Reference Tool Dilemma
SARS officials on the ground have lost sight of the fact that the reference index is only a tool and not a method of valuation
Brand Damage on Social Media
There is no doubt that the social media space is vital for marketing in this day and age but when things go wrong they can quickly spiral out of control and it is very difficult to have a strategy in place that anticipates all of these issues.
Competition Law Update - Draft Changes for Comment
On 9 June 2017, the Competition Commission published proposed changes to the lower threshold used for calculating whether a merger has to be reported to the Commission for investigation and approval.
Social Media & Schools
Schools will often be placed in the spotlight when one of their learners does something silly on social media.
Admission Revoked - Social Media Update
Young people in South Africa are starting to secure their places in Universities for the coming years and would be well advised to be very careful not to make the same mistakes as these students in the USA.
Email Snoops: Social Media Law Update
In terms of the Regulation of the Interception of Communications Act (RICA), you are allowed to “intercept” communications such as emails if you are a party or recipient of that email.
The Digicall Solutions Case: Trafficking in Tax Losses
Shepstone & Wylie Attorneys' Johan Kotze and Jenifer Woker successfully defended Digicall Solutions (Pty) Ltd in its recent dispute against SARS. This Western Cape High Court case dealt with trafficking in tax losses.
Social Media Update: #Bluewhale
There are certainly many dangers on social media which can undoubtedly cause harm to young teens which deserve the focus and attention of the public such as cyber bullying or sexting or other unlawful activity.
Landmark Judgment: Package Limitation Under the Hague-Visby Rules
The recent landmark judgment of Kyokuyo Co Ltd v A P Moller-Maersk A/S, Kyokuyo considered, for the first time, package limitation for containerised cargoes under the Hague-Visby Rules. The court also considered the applicability of the Hague-Visby Rules where waybills were issued instead of bills of lading.
High Court Provides Clarity Regarding Payments From Retirement Funds into Third Party Bank Accounts
Case Review of a matter that provided clarity regarding payments from retirement funds into third party bank accounts
Death Benefit Distributions: When Will Payment Be Made?
The distribution of lump sum death benefits payable by retirement funds is a contentious issue that forms the topic of many complaints lodged with the Pension Funds Adjudicator, complaints mostly related to unreasonable delays in the finalisation of investigations by retirement funds prior to distributing death benefits.
The MV "Silver Star": Are Arresting Parties Liable to Pay for the Crew's Wages?
The arrest of the MV "Silver Star" in Port Elizabeth was fraught with complex legal issues disputed in various interlocutory applications and even an appeal to the Supreme Court of Appeal. Of interest, was the ruling of the High Court in Port Elizabeth that the arresting party be liable for the wages of the crew.
The South African Human Right Commission: National Hearing on Racism and Social Media
Recently the South African Human Rights Commission held a national hearing on Racism and Social Media. The Department of Justice, the National Prosecuting Authority, Facebook, academics, civil society organisations such as the Freedom of Expression Institute, FW de Klerk Foundation, Afriforum and journalists presented their thoughts on the increasing incidence of online racism.
Pension Law: Structural Independence and King IV
In addition to the accepted good governance principle that board members act with an independent mind, the King IV Report has suggested further requirements regarding structural independence when considering good governance best practice, including those for retirement funds.
A Blow for Asylum Seekers
This recent SCA made two important decisions concerning asylum seekers living in South Africa who have exhausted internal remedies to become Refugees, and the role of the courts to intervene when an extension of an Asylum Seeker Permit is refused by a Refugee Reception Officer.
Health Care Risk Waste: Management and Liability
Recent reports of and fines imposed by the Green Scorpions relating to the illegal disposal of waste suggest a lack of understanding and training with regards to the safe and legal disposal of medical waste by most companies and service providers. Health Care Risk Waste is that hazardous portion of healthcare waste that includes wastes from natal care, diagnosis, treatment or prevention of disease in humans, infectious waste.
Arbitration Awards, CCMA Referrals and Prescription – What Does the Constitutional Court Say?
The Constitutional Court recently handed down judgment in the case of Mogaila v Coca Cola Fortune (Pty) Ltd, finding that an arbitration award does not prescribe in terms of the Prescription Act. The Court made this finding in line with Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus (where a divided court reached the same conclusion, with none of them holding the majority).
Border Management Authority Bill: Should We Be Concerned?
The Border Management Authority Bill proposes a new standalone entity, which includes elements of the South African Police Service (SAPS), the South African National Defence Force (SANDF), the Department of Agriculture, and Customs, all overseen by the Department of Home Affairs.
Meetings of Shareholders or Members of Companies: The Delivery of Proxies
The recent Judgement of the Supreme Court of Appeal in the case of Richard du Plessis Barry v Clearwater Estates NPC and others is important for companies and those individuals tasked with convening meetings of shareholders or members of companies.
The Regulation of Agricultural Land Holdings Bill: Changing the Face of Farming in South Africa
The controversial Regulation of Agricultural Land Holdings Bill was published for comment on 17 March 2017. The deadline for commentary on the Bill has been extended to 17 May 2017. This Bill is an interesting political statement with noteworthy timing. The land claims process has left many dissatisfied; the vision of emerging farmers benefiting from the claims process and making a meaningful contribution to SA’s food security still largely just a dream. Against this background, redistribution of farmland is one of the most emotive and highly politicised issues facing SA.
Edcon Club Fee Charge Unlawful
The club fee charged by Edcon to its credit customers has been found to be unlawful and in contravention of the National Credit Act (NCA). The NCA does not allow for any other fees‚ charges or costs to be included in a credit agreement or credit agreement documents‚ irrespective of the nature of the charge‚ fee or cost.
Divorce: Can a Trust Be Declared an Asset in a Spouse's Estate?
What courses of action are available to a spouse wanting to penetrating a trust in a divorce action? In the reviewed case, a husband was alleged to have deliberately concealed assets by establishing trusts and placing assets and funds into trusts for the sole purpose of defeating the wife's accrual claim.
Income Tax: Remuneration Derived by a Person as an Officer or Crew Member of a Ship
This Note provides guidance on the circumstances under which section 10(1)(o)(iA) exempts the remuneration, derived by a person as an officer or crew member of a South African ship, from normal tax.
Marine Insurance: VAT Treatment of Goods Supplied on Cost, Insurance and Freight (CIF)
Is the seller or the buyer the insured in terms of the insurance contract? What is the correct VAT treatment to be applied to premiums and claims?
Can Payment in the Form of a Loan Account Constitute Payment for VAT Purposes?
This case deals with Section 22(3) of the VAT Act - does the crediting of a loan account constitute payment of consideration?
Related Finance Charges vs Similar Finance Charges: How Broadly Will the New Definition of Interest Be Interpreted?
Under the Taxation Laws Amendment Act, the word 'related' is now to be substituted by the word 'similar', so that the definition of interest will read "interest or similar finance charges". This change is more than likely to narrow the courts' previous interpretations.
Submissions Open: The Desirability and Feasibility of New Forms of Wealth Tax
The controversial Regulation of Agricultural Land Holdings Bill was published for comment on 17 March 2017. The deadline for commentary on the Bill has been extended to 17 May 2017. This Bill is an interesting political statement with noteworthy timing. The land claims process has left many dissatisfied; the vision of emerging farmers benefiting from the claims process and making a meaningful contribution to SA’s food security still largely just a dream. Against this background, redistribution of farmland is one of the most emotive and highly politicised issues facing SA.
Social Media Update: Targeting Teens
Facebook came under fire in Australia recently when an internal Facebook analysis was leaked in which Facebook reported that it can monitor when users are feeling inter alia, 'overwhelmed', 'defeated' and 'stressed', and this information can be used by advertisers to target their campaigns.
Ensure Confidence in our Courts!
Court proceedings can often result in heated exchanges. A recent judgment highlighted this.
Immigration Law Update: "Valid" Visas in Expired Passports
Some clarity on recent confusion surrounding the validity of visas in expired passports.
Immovable Property and the Budget: 22 February 2017
An overview of the Budget in relation to immovable property
The South African Human Rights Commission: National Hearing on Racism and Social Media
The reason for the hearing is clear... increasingly and most unfortunately, the SAHRC is receiving complaints of racism and discrimination and citing the location of the incident as “social media”. the SAHRC has received 505 race-related complaints over 20 years after our first democratic election.
NEWSFLASH: New Property Valuation Roll for Ethekwini Municipality Published 10 February
Owners have a limited period to examine the roll and to submit any objections to such valuation. Property rates are a major expense for owners of immovable property and it is essential that owners are satisfied that the value placed on their property by the Municipality is correct.
2017 Budget Predictions
On 22 February, Finance Minister, Pravin Gordhan, will again have the unenviable task of presenting the 2017 budget, which, amongst other directives, will aim to alleviate the concerns of the international ratings agencies.
The Special Voluntary Disclosure Programme Has Arrived
On 19 January 2017, the legislative framework for the Special Voluntary Disclosure Programme finally came into effect in an effort to allow taxpayers with undisclosed offshore income and assets to regularise their tax affairs and correct/remedy any consequent exchange control contravention.
It is Now in Black and White: Tax Implications on Interest-Free Loans to
On 19 January 2017, we saw the promulgation of the Taxation Laws Amendment Act. The legislator has now deemed the interest forgone in respect of interest-free or low interest loans as an on-going and annual donation as opposed to income in the hands of the seller.
Poultry Industry Cries Fowl! The Status of Import Duties on Poultry
For more than 3 years now, the South African poultry industry has cried foul over the import duties charged on foreign poultry products. These import duties have come under scrutiny due to the surge in imports of foreign products.
Ignore the Dispute Process and Time Period At Your Own Peril
Taxpayers must be sure to familiarise themselves with the tax dispute process and be sure of the issues that they are objecting against and the time periods within which to object in. Knowing what needs to be done and by when is half the battle.
Pension Law Update - Will Sick Funds Be Forced to Register as Medical Schemes?
The recent appellate Sable Hills Waterfront Estate case looks at a dispute regarding the obligation of the members of the Home Owner’s Association to pay levies in terms of the Articles of Association.
Property Law Update: Obligation of Members of the Home Owners Association to Pay Levies
The recent appellate Sable Hills Waterfront Estate case looks at a dispute regarding the obligation of the members of the Home Owner’s Association to pay levies in terms of the Articles of Association.
Non-Profit Organisations and B-BBEE
B-BBEE legislation has brought more complexity for NPO's to deal with, particularly as most corporates now prefer to channel their donations to those NPO's that qualify both as "SED Beneficiaries" and as "public benefit organisations with section 18A status".
Competition Law Update - Search Warrants: How Far do they Stretch
How you deal with a dawn raid is critical.
Shipping Update: Stowaways in SA
Overview of a recent case involving stowaways in South Africa and an explanation of the legal position of stowaways in South Africa.
Social Media Update - Fake News on Facebook: Getting Tough on the Liars
Facebook introduces tools to combat fake news and media hoaxes.
Social Media Update - Social Media "Detox"
The benefits and risks of stepping away from your social media presence.