Latest Issue - July 2019


VENDANTA V LUNGOWE – FOREWARNING FOR PARENT COMPANIES INVESTING ABROAD BANKING & FINANCE IN AFRICA FEATURE

In handing down its judgment on a jurisdictional challenge in the case between Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20 (Vedanta) on 10 April 2019, the United Kingdom Supreme Court may very well have dramatically raised the risk of potential exposure of holding companies relating to the operations of their subsidiaries and joint ventures.

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SUB-PARTICIPATION TRANSACTIONS IN AFRICA BANKING & FINANCE IN AFRICA FEATURE

The issue

It is generally accepted that debt transactions in Africa are expensive for borrowers, and risky for the lenders. There are various reasons why debt is comparatively expensive on the African continent but generally we find that it is related to the perception of risk – "What are the chances that I will I get my money back with the expected interest in the normal course of business?"

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THE TWIN PEAKS MODEL OF FINANCIAL REGULATION IN SOUTH AFRICA BANKING & FINANCE IN AFRICA FEATURE

On 21 August 2017, as a result of the enactment of the Financial Services Regulation Act (9 of 2017) (FSRA), the financial regulation system in South Africa was transformed. It was divided into two distinct regulatory sectors, namely, prudential regulation (regulated by the Prudential Authority (PA)) and conduct regulation (regulated by the Financial Sector Conduct Authority (FSCA)). The new financial sector regulatory model is commonly referred to as the Twin Peaks model.

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ARE WE ONE STEP CLOSER TO THE ADVENT OF A SARB DIGITAL CURRENCY? BANKING & FINANCE IN AFRICA FEATURE

Historical position on e-money

As far back as 2009, the South African Reserve Bank (SARB) outlined its position on the concept of e-money. In its position paper published at the time, SARB defined e-money as "monetary value represented by a claim on the issuer". E-money is "stored electronically and issued on receipt of funds, is generally accepted as a means of payment by persons other than the issuer and is redeemable for physical cash or a deposit into a bank account on demand".

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CONSIDERATIONS FOR FOREIGN LENDERS AND SOUTH AFRICAN BORROWERS BANKING & FINANCE IN AFRICA FEATURE

In addition to the need to consider the South African Exchange Control Regulations, 1961 in the context of cross-border loan transactions, further requirements in respect of both the borrower and lender in these transactions must typically be considered.

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Cartels and joint ventures Competition Law

This article examines three recent cases on the treatment of joint ventures under South African competition law, which provide welcome clarity in this complex area.

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Looming changes to the taxation of expats in South Africa Tax Law

Some South African tax residents working abroad, often referred to as "expats", are unsettled by changes to the Income Tax Act, 1962, which come into effect on 1 March 2020.

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Commercial certainty in contracts and judicial intervention Contract Law

The recent case of Beadica 231 CC v Trustees, Oregon Unit Trust and Others 2018 (1) SA 549 (WCC) has exposed what appears to be a judicial battle about the future of our law of contract. On one side of the battle, we have judicial activists such as Dennis Davis who take the view that the Constitution should allow judges to examine the substance of an agreement, and to allow the strict application of legal principles (such as pacta sunt servanda) to be relaxed when the key intention of the parties can be divined from the contract. In other words, a judge who reviews a contract and finds it to operate unfairly on one of the parties should be able to revise the contract to comply with notions of fairnessand justice (Beadica at paragraph [43]).

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Can a trust be a beneficiary of another trust? Trust Law

The practice of treating a trust as a person has evolved in the drafting of deeds, wills and conveyancing documentation. The question as to whether or not this is correct in law gives rise to a number of other questions that need to be considered first.

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The Supreme Court of Appeal pronounces on what constitutes mining Mining

In the recent, as yet unreported, decision of Benhaus Mining (Pty) Ltd v Commissioner for the South African Revenue Service [2019] ZASCA 17 (22 March 2019), the Supreme Court of Appeal definitively pronounced on what activities constitute "mining" as defined in s1 read with sections 15(a) and 36(7C) of the Income Tax Act (58 of 1962). The court also touched on a procedural issue when it, perhaps incorrectly, failed to give effect to the provisions of sections 36(7E) and (7F).

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Bridging the gap between development and heritage preservation Property Law

Since the 2018 decision of Le Grange J in Bo-Kaap Civic and Ratepayers Association (BOCKRA) & Others v City of Cape Town and Others (7031/17) [2018] 4 All SA 93 (WCC) (17 August 2018), in which it was concluded that the City of Cape Town's Municipal Planning Tribunal, and the decision by the Mayor of Cape Town acting in the capacity as the appeal authority, acted reasonably and rationally to grant rights and consent to a development in the Bo-Kaap area, there has been visible and growing intransigence from the residents of the Bo-Kaap towards the local authority and developers alike.

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Symptoms of withdrawal Employment Law

The procedural directives issued by the Judge President of the Labour Court in the 2013 Practice Manual have played an invaluable role in promoting consistency and certainty in the practices of the Labour Court, particularly in relation to the prosecution of review applications under s145 of the Labour Relations Act, 1995 (LRA). However, despite the best intentions of the Judge President, one such directive has resulted in considerable procedural uncertainty.

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Dismissal for incapacity is not limited to ill-health and injury Employment Law

In Solidarity and Another v Armaments Corporation of South Africa (SOC) Ltd and Others [2019] 3 BLLR 248 (LAC), Mr Jacobus Martinus Joubert was employed by Armscor for over thirty years. His employment required that he have a security clearance certificate from the Intelligence Division of the South African National Defence Force (SANDF).

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Turning a blind eye to strike violence Employment Law

The recent strike at Sibanye once again highlighted the sorry state of South Africa's industrial relations. The strike lasted some five months and, disappointingly, was marred by more than 100 acts of violence, some of them grievous in nature. The violence was perpetrated by persons seeking to apply undue pressure on Sibanye in the hopes that it would capitulate to the Union's demands. It was reported that during the strike, 10 people died and nearly 100 homes and vehicles were torched.

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Employees can now report employers who don’t comply with the National Minimum Wage Act Employment Law

According to reports, employees will now be given the opportunity to report employers who don't comply with the National Minimum Wage. They will be able to do this via the proposed Impimpi Alive system. How will this system work and why has this decision been taken?

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