July 2015


Editor's Note - July 2015 Editor's Note July 2015

Today is June 24 and as I write the July ed's note, many people are recalling the unbridled joy of the South African 1995 Rugby World Cup win. Twenty years on, I remember that match, and particularly those last few minutes, with absolute clarity.

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Still Unconstitutional and Unnecessary Expropriation Bill July 2015

The Expropriation Act of 1975 is unconstitutional and needs to be replaced. However, the recently released Expropriation Bill is just as unconstitutional as the present statute. The sweeping powers in the Bill will also encourage all organs of state to resort to expropriation, thereby curtailing growth, worsening joblessness, and deepening dependence on the state. At the same time, a better expropriation bill can easily be crafted, which makes government's proposal unnecessary too.

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How the Expropriation Bill will work in practice Expropriation Bill July 2015

To see how the Expropriation Bill of 2015 will work in practice, let us take the example of KwaNdengezi, a settlement near Pinetown in the vicinity of Durban. Here, there is a high demand for land for housing (both RDP and other) but much of the land is currently held in communal tenure by the local chief and allocated in plots to community members. Only some have "permission to occupy" documents, but the customary land-use rights of all residents are recognised within the community. The area is spacious and many people have used their plots to build formal houses, some with up to five rooms.

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Hot off the business rescue press Company Law July 2015

The recent unanimous judgement handed down by the Supreme Court Appeal in Panamo Properties (Pty) Ltd v Nel and Another NNO (35/2014) 2015 ZASCA 76 (27 May 2015) is one of the most significant and groundbreaking judgements handed down on business rescue to date.

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Beware the perceived blanket moratorium Company Law July 2015

Business rescue, in s128(1)(b) of the Companies Act (71 of 2008), is defined as "...proceedings to facilitate the rehabilitation of a company that is financially distressed...". In terms of s128(1)(b)(ii), one of the ways this is achieved is to provide the financially distressed company with time to pay its creditors by placing a moratorium on the rights of the creditors to enforce their claims. The moratorium provides for a period of respite to enable the company to restructure its affairs and adopt a plan to pay its creditors.

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PBOs, NPOs and NPCs Company Law July 2015

Much confusion surrounds the distinction between Public Benefit Organisations (PBOs), Non-Profit Organisations (NPOs) and Non-Profit Companies (NPCs). While there are similar characteristics between these charity vehicles, and although they are to a certain extent interlinked, each is different from the others as they serve different purposes and are registered with different governmental bodies or departments.

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Can a company in liquidation avoid the voidable? Company Law July 2015

The promulgation of the Companies Act (71 of 2008) saw the introduction of a myriad new rules relating to the application of Law and Regulations to companies. Amongst these were the provisions dealing with rehabilitation of financially distressed companies in an effort to avoid liquidation, namely business rescue, a principle juxtaposed with the failed regime of judicial management.

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G&A Compass Methodology to Business Rescue and Compromise Offers Company Law July 2015

The business rescue provisions contained in Chapter 6 of the new Companies Act, 2008 have turned out to be by far the most featured and litigated provisions under this statute since it came into force in May 2011. Whether this is a positive or negative sign probably depends on how one looks at it.

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What is done cannot be undone Company Law July 2015

When the new Companies Act of 2008 came into operation in 2011, there was much uncertainty as to whether reinstatement of a deregistered company in terms of s82(4) would have complete retrospective effect, including the validation of all corporate activities during the period of deregistration.

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Moodley decision Company Law July 2015

This article seeks to clarify the legal position in relation to the application and interpretation of s133 of the Companies Act as applied by the court and to answer the question: under what circumstances does a litigant require leave of the court in order to launch proceedings when a company is in business rescue?

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Highlighting the changes BEE Law July 2015

On 10 October 2014, the Minister of Trade and Industry released the draft codes of good practice in relation to QSEs, the development of sector codes, scorecards for specialised enterprises, recognition for sales of assets and equity equivalents for multi-nationals, for public comment by 14 November 2014 (Draft Codes). The Phase II Codes were gazetted on 6 May and came into operation on 1 May (Revised Codes).

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New tax rules on restraint payments "unworkable" Tax July 2015

Amendments to the Income Tax Act impacting so-called "restraint of trade" payments to individuals, which came into effect on 1 March, are proving to be flawed and unworkable, leading to considerable confusion.

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Joint procurement through the lens of Competition Law Competition Law July 2015

The practice of joint procurement describes a variety of arrangements in terms of which various purchasers come together to collaborate in the sourcing of either the whole or part of their requirements.

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South Africa's new Drone Regulations take off Aviation Law July 2015

Unmanned aircraft (known as Unmanned Aerial Vehicles (UAVs), Remotely Piloted Aircraft (RPAs) or, more commonly, drones) have become a significant regulatory topic worldwide. At a recent International Civil Aviation Organisation (ICAO) UAV symposium, South Africa presented draft regulations alongside a number of other countries. This is a milestone for South Africa as one of the protagonists in the development of a regulatory framework for UAVs.

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Deciding to die Constitutional Law July 2015

Death is steeped in human emotion and superstition. It is a dark concept instilling fear in those who live. Jurisprudentially, death has been treated in various ways – the most obvious of which is the criminal sanctions applicable to murder and culpable homicide. However, the law also endeavours to prevent a person taking his or her own life. In some jurisdictions, suicide was considered a crime and that remains the case in certain jurisdictions.

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