October 2014


Editor's Note - October 2014 Editor's Note October 2014

In discussions with lawyers in various fields, candidate attorneys and from comments received from graduates who have appeared in our Top Student feature over the past few years, a missing link has increasingly been brought to the fore: a need for law students to recognise how early they must apply for vacation programmes and articles if they are to have a snowball's hope in hell of getting articles.

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Surviving foreign laws Corruption - International October 2014

Lawyers in Kenya (as will be the case in many other countries) are frequently asked whether their clients should accept covenants, representations and warranties relating to anti-bribery and corruption laws of other countries. Explaining their relevance to clients who question why on earth they should have to comply with the laws of a country that has no direct relevance to the transaction can sometimes be a tricky matter.

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More red tape Tax International Law October 2014

FATCA has been the catalyst for a dramatic change in global tax transparency between taxpayers and their home jurisdictions. It started as a US effort to compel international financial institutions to report on the international accounts of US taxpayers, using its global dominance of the world's financial system to get the show on the road. But as the bandwagon started to roll, so other countries joined the effort.

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10 Most Frequently Asked Questions Tax International Law October 2014

1. Q: Does FATCA affect financial institutions even if they have no United States investors?

A: Yes. Any non-US financial institution must register under FATCA regardless of whether or not it has US investors. The FATCA agreements and regulations apply to all financial institutions but the actions required of the financial institutions depend on a number of factors, one of which is whether they hold accounts of US persons (or any Specified Persons). For example, even without US investors, they have to undertake a search of pre-existing accounts to ensure they have no reportable accounts, and they have to report payments they make to non-compliant financial institutions.

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No place to hide Tax International Law October 2014

Recent international developments have made it increasingly difficult for taxpayers to hide their assets or to avoid tax. South Africa has joined the list of countries that fully comply with international standards on the transparency and exchange of taxpayers' information.

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Are you resident in the UK? Tax International Law October 2014

Does it matter? Whether you are resident in the UK is important in determining the extent to which you are liable to pay UK tax. Broadly, a non-UK resident individual is only subject to tax on his UK source income and has no liability, at present, to UK Capital Gains Tax (although this is changing for residential property in the UK). In contrast, a UK resident is potentially liable to UK tax on his worldwide income and capital gains.

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Employer participation in pension funds Pension Law October 2014

South Africa has a tightly regulated labour framework and that, together with the demands of organised labour, is placing greater pressure on employers to offer comprehensive pension benefits to remain competitive. Occupational pension benefits are likely to be compulsory in the near future, so we are seeing increasingly complex interaction between labour law and pension law.

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It’s not over until the ink is dry Employment Law October 2014

In the recent case of Elliott International (Pty) Ltd v Veloo and Another,1 the Labour Appeal Court considered whether employees' receipt of and failure to offer to repay a severance package, calculated in terms of a voluntary retrenchment agreement which had been offered to the employees, amounted to an acceptance of the voluntary retrenchment agreement.

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Impairment is not abandonment Company Law October 2014

Whether a party to an agreement has abandoned an accrued right is a question of fact. A debtor wishing to succeed in a defence that its creditor has abandoned the right to claim payment must be able to show that the creditor intentionally abandoned its right to claim such monies.

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The mine field of legal compliance Company Law October 2014

In practice, dealing with the situation where shareholders of a private company, who are also its directors, have had a dispute and can no longer work together, is a frequent occurrence. In this situation, one of the shareholders may look to having the other shareholder removed from his capacity as a director and may take control over the business and affairs of the company to the exclusion of the other shareholder.

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Costs of business rescue Company Law October 2014

Business rescue practitioners often experience difficulties in deciding what costs can be paid by the company in business rescue and in respect of what services. In many cases the practitioner inherits a financial disaster, where proper records have not been kept. Pre-existing management has often resigned or is not co-operative or is unavailable. In short, practitioners are, commonly faced with a company with either no or dysfunctional management and unreliable or incomplete information.

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Estoppel as a restriction Contract Law October 2014

The recent decision of the Supreme Court of Appeal in Roshcon v Anchor Auto Body Builders 2014 (4) SA 319 (SCA) will be best remembered for setting precedent regarding simulated agreements. Its decision regarding the issue of estoppel as a restriction upon the vindication of property appears less prominent. It is not even mentioned in the headnote.

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An addition to the arsenal Contract Law October 2014

Immovable properties are normally sold by virtue of a deed of sale in terms of which the full purchase price is paid on the date of registration of transfer of the property in the name of the purchaser, with no funds being received by the seller prior to date of registration of transfer. The Alienation of Land Act (68 of 1981) deviates from this principle by providing for instalment sale transactions with regard to immovable property.

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Affordability assessment regulations Consumer Law October 2014

On August 1, the Department of Trade and Industry (DTI) published draft regulations to the National Credit Act (NCA) for public comment. These Draft Regulations include provision for a standardised approach to credit affordability tests that may introduce a new business process in the hands of credit providers.

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A not so private world Protection of Personal Information Law October 2014

The recent scandal involving the online distribution of explicit private images obtained from the iCloud accounts of several celebrities has placed the issue of data security firmly back on the public agenda. The incident apparently resulted from hackers obtaining access to the digital storage facility that Apple makes available to users of Apple devices. Most users of iPhones and iPads set up their iCloud accounts to result in automatic backups of all their photos, music and other content, resulting in highly sensitive or private information being copied to the cloud storage facility automatically. Following the incident, Apple has denied that its security systems were inadequate to begin with, but has nevertheless announced its intention to introduce new measures to tighten access to iCloud accounts.

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