November 2016


Editor's Note - November 2016 Editor's Note November 2016

There are a few things that have taken place in the past month that will probably stay indelibly printed on my mind. The first is the ongoing student protests. This issue will no doubt be added to some social event conversation lists in the "do not" column – "Do not discuss politics, religion or student protests".

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Fingers on the rating trigger Financial Law November 2016

In June South Africans heaved a collective sigh of relief when, after much speculation about a possible downgrade of the country's credit rating to sub-investment grade (damningly known as junk status), South Africa's investment-grade rating was affirmed by the big three credit rating agencies.

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Prescription revisited Financial Law November 2016

In terms of the Prescription Act (68 of 1969), "debts" prescribe after a period of three-years. In order to avoid losing the legal right to enforce a claim, a creditor must interrupt prescription by instituting proceedings against a debtor before the end of the three-year period.

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The commencement of prescription where there is an acceleration clause Financial Law November 2016

In the case of Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd & Another [2016] 3 All SA 487 (SCA), the Supreme Court of Appeal overturned a decision of the Johannesburg High Court regarding the moment prescription begins to run on a debt arising out of a loan agreement which provides that repayment of the loan could be accelerated at the election of the creditor.

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The Baliso warning Financial Law November 2016

One of the provisions of the National Credit Act (34 of 2005) (NCA) that has not received much attention from our courts is s127, which is triggered when a consumer elects to surrender goods purchased on credit to a credit provider.

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The last opportunity to come clean Tax November 2016

Part 2

The draft SVDP legislation deals with foreign trusts whereby either a donor or the deceased estate of the donor or a beneficiary may elect that any asset held by the discretionary trust outside South Africa from 1 March 2010 to 28 February 2015 be regarded as having been held by that applicant for purposes of all tax acts.

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Alas, sometimes you can’t appeal Tax November 2016

A certain question has been the subject of a number of recent court cases: Is an interim order or a decision which does not dispose finally of a case appealable? The Constitutional Court recently had to answer this question in two separate cases – one involving the changing of street names in Tshwane and the other involving the provisions of the National Credit Act (34 of 2005). The issue has now also reared its head within a tax context in the Supreme Court of Appeal (SCA). In Wingate-Pearse v CSARS (830/2015) [2016] ZASCA 109 (1 September 2016), a taxpayer wanted to appeal, among other things, the Tax Court's decision regarding the onus of proof and the duty to commence leading evidence.

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Expert, expert, read all about it! Company Law November 2016

Around the world, experts are hailed for their indepth knowledge and experience in a particular field. Experts are paid exorbitant amounts for the specialised knowledge and skills they claim to have acquired with years of training and experience and which are highly sought after. But what happens when the expert makes a mistake? Worse yet, what happens when the expert's mistake could cost a company millions?

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Guarding against deregistration Company Law November 2016

In Palala Resources (Pty) Ltd v Minister of Mineral Resources and Energy and others [2016] 3 All SA 441 (SCA) (Palala), the Supreme Court of Appeal (SCA) had to determine whether or not a mineral right granted under the Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA) lapses irrevocably when the company that holds it is deregistered because it failed to submit an annual return to the Companies and Intellectual Property Commission (CIPC). The SCA had to determine whether, as a matter of law, the re-registration of a company under the Companies Act (61 of 1973) had the effect of reviving a lapsed right.

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General moratorium on legal proceedings under attack Company Law November 2016

It is now generally accepted that the Companies Act (71 of 2008) is an overhaul of our corporate law landscape. This shift is even more evident with the introduction of a new business rescue regime and, along with it, the general moratorium on legal proceedings against a company in business rescue.

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Fronting, fraud and the long arm of the BEE commission BEE Law November 2016

The recent Amendments to the Broad-based Economic Empowerment Act (53 of 2003) followed by the publishing of the strongly debated BEE Regulations on 6 June, signals government's strong stance against empowerment circumvention and has ushered in a new Black Economic Empowerment Commission that is geared to enforce compliance and combat practices that undermine the Act.

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So many odd things Platteland Perspective November 2016

The excuses given by attorneys for missing funds that lead to them being struck off the roll are many and various. This is one of the newest and more unusual cases in the history of striking off.

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Stop insulting your employees! Employment Law November 2016

How would you feel if you were called "a fat pig"; "stinky" and "unclean" on a daily basis by your employer? A humiliating tirade like this can be demeaning and demoralising for any employee. In addition, there can be severe legal repercussions for an offending employer.

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JAIL FOR CARTEL EXECUTIvES – A NEW ERA Competition Law November 2016

It is a matter of time before managers involved in price-fixing, market allocation and bid-rigging in South Africa will be prosecuted in the criminal courts and imprisoned. However, it is still too early to evaluate whether the introduction of criminal sanctions will have a positive impact on the enforcement of competition law and significantly reduce cartels, which remain rife in South Africa, despite steadily increasing financial penalties.

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INTENTION IN COMPETITION LAW Competition Law November 2016

When determining whether a firm has contravened the Competition Act, an extremely difficult question arises as to whether the firm's intention should be relevant. This article introduces some of the contentious issues raised by this question.

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