December 2016


Editor's Note - December 2016 Editor's Note December 2016

Well, here we are at the end of 2016. It has been an interesting year punctuated by surprise political change globally. In Britain, the High Court ruled that parliamentary approval and a vote from the MPs is required in order for Article 50 to be triggered. Lord Chief Justice Thomas ruled that the government's arguments are "contrary to fundamental constitutional principles of the sovereignty of parliament".

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How to address corruption Anti-Corruption Law December 2016

In the introspection and self-analysis that followed the outcome of the local government elections on 3 August, the National Executive Committee of the African National Congress identified three national issues that require urgent attention.

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Not in my name, not in my culture Human Rights Law December 2016

It has been almost eight years since Banyana Banyana star, Eudy Simelane, was raped and murdered in Kwa Thema, just outside Johannesburg, for being a lesbian. She was a victim of gender based violence – rape.

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Wear and Tear life insurance Not The Law Reports December 2016

OLDMAN V LONGLIFE INSURANCE COMPANY LIMITED Foss-Harbottle J: I have been brought out of retirement to help with the end-of-year rush. The refusal by the defendant insurer to pay this life insurance claim is, I was told in argument, at the instigation of the English reinsurer.

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Rights of illegal foreigners to temporary emergency accommodation Human Rights Law December 2016

South Africa has become a home to many immigrants fleeing political and economic turmoil. Each year, thousands of immigrants enter South Africa illegally in search of greener pastures. With no legal documentation regulating their status in South Africa upon arrival, most of the immigrants end up occupying properties unlawfully.

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Forfeiture of fault Divorce law December 2016

Society's attitude towards marriage and divorce has changed significantly over the years. However, the law is slow to reflect these changing norms.

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Divorce, death and insurance and an unhappy ending! Insurance Law December 2016

Mrs M was killed in an alleged hijacking on 3 September 2006. There were four life insurance policies on her life at the time of her death. The policies had been taken out in 2005 and 2006. Mrs M owned two of these policies, while her ex-husband was the owner of the other two. The beneficiary of all four policies was Mr M. Mr and Mrs M were divorced several years before her death, for business reasons, Mr M said.

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Final changes to the Special Voluntary Disclosure Programme Tax December 2016

On 26 October 2016 the Minister of Finance tabled the Rates and Monetary Amounts and Amendment of Revenue Laws Bill, Bill 19 of 2016 in Parliament when he introduced the so-called Mini Budget. This Bill contains the legislation regulating the Special Voluntary Disclosure Programme ("SVDP") which commenced on 1 October 2016 and which will come to an end on 30 June 2017. The Bill, as tabled confirms that the SVDP will run for nine months as opposed to the originally announced period of six months. Subsequently, on 22 November, the Finance Standing Committee proposed that the SVDP period should be extended by a further two months. The SVDP will now end on 31 August 2017 instead of 30 June 2017.

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VAT consequences of tourism Tax December 2016

It seems that certain South African travel companies like taking risks when it comes to Value-Added Tax (VAT).

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Privacy planning Tax December 2016

Many people seem to think that secrecy and tax avoidance – which is not unlawful – are the only reasons why international financial centres exist. This is not the case. International financial centres are important parts of the international financial system, they channel resources effectively, and in a tax neutral manner, into investment in both developed and developing economics and thriving industries.

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“Garden leave” Tax December 2016

"Garden leave" refers to a situation where an employee is required by his employer to stay away from work during his notice period or when an employee is dismissed. During the period of garden leave the employer will still pay the employee his usual remuneration.

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The establishment of a company is not purely a private matter Company Law December 2016

In our article "Corporate transparency and the right to information" published in the July issue of without prejudice (pages 8 and 9), we discussed the Supreme Court of Appeal's (SCA) finding in Nova Property Group Holdings Ltd and Others v Cobbett and Another 2016 (4) SA 317 (SCA). That is, that s26(2) of the Companies Act (71 of 2008) confers an absolute and unqualified right on members of the public and, importantly, the media, to access the securities registers of profit companies and, accordingly, that the motive for seeking such access is irrelevant.

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Is there still hope? Company Law December 2016

On 21 September 2016, the Western Cape High Court handed down judgement in the case of Tyre Corporation Cape Town (Pty) Ltd and Others v GT Logistics (Pty) Ltd and Others (Rogers J) [2016] ZAWCHC 124, in terms of which the court considered, among other questions:

  • whether GT Logistics (Pty) Ltd (Company) could be placed into business rescue despite it being commercially and/or factually insolvent; and
  • if the answer to question 1 was in the affirmative, were reasonable grounds for the belief that the Company could be rescued established?

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Safeguarding the right of access to information Company Law December 2016

The extent of the right of access to information is frequently the subject of legal challenges. Information about the identities of persons behind companies is particularly topical given the recent "Panama Papers" exposé – the largest ever leak of data concerning companies registered in offshore tax havens famed for their secrecy. The Panama Papers have exposed how people often exploit the secrecy offered by these jurisdictions to conceal corporate activity and, in many cases, fraud and corruption.

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Bound by contract? Company Law December 2016

Much has been written in the past about the doctrine of Constructive Notice, and the application of the Turquand rule. Further, a fairly large body of case law clarified the application of the doctrine of Constructive Notice, the rules relating to establishing whether a representative of a company had ostensible authority to act, and when the application of the Turquand rule could aid third parties who have entered into a transaction.

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