August 2018


Editors Note - August 2018 Editor's Note August 2018

One of the most important things a country can provide for its citizens is a decent education. The rewards, in years to come, are vast. The crisis in education has contributed to our current economic position. President Ramaphosa has inherited many problems and poor quality education, badly educated teachers and pass rates that are considered unacceptable are right up there.

Read More

Screening medical device prices using Competition Law principles Competition Law August 2018

This article examines whether competition law principles could help with interpreting s18A of the Medicines and Related Substances Act, when applied to medical devices and IVDs.

Read More

Does the National Credit Act allow financing for a startup business? Financial Law August 2018

The issue

Small businesses are vital to addressing economic growth and unemployment in SA. However, to start and run a business requires money and usually financing is the only way to do that. The challenge is that a new business has no financial statements or records of accomplishment and might not have commenced generating income. This makes obtaining financing a challenge from both a credit and legal point of view.

Read More

Gender parity in private equity Financial Law August 2018

Despite being a traditionally male-dominated industry the world over, there has been a definite shift towards gender parity in the South African private equity industry in recent years.

Read More

No oral modification clauses under English law Contract Law August 2018

Is it possible to verbally amend a "no oral modification" (NOM) clause? A recent decision of the Supreme Court in England supports the position that, in most circumstances, these clauses should be upheld and, in doing so, provides a far greater degree of contractual certainty.

Read More

POPIA – A cost-effective starting point Communications Law August 2018

South Africa has suffered numerous data breaches in recent months and, although the Protection of Personal Information Act, 2013 (POPIA) is only partially in effect, the Information Regulator has urged both public and private companies to comply with their data protection obligations in terms of the Act.

Read More

Without prejudice? Not always . . . The Law August 2018

It is an accepted principle of South African law that negotiations between parties which take place with a view to settling the disputes between them are privileged and cannot be disclosed. This is known as the "without prejudice" principle and provides parties with substantial protection so that they can ventilate their issues freely in an attempt to resolve their disputes out of court.

Read More

Our take on the recent labour law legislation Employment Law August 2018

May and June saw the National Assembly adopt the Labour Relations Amendment Bill (LRAB), the Basic Conditions of Employment Amendment Bill and the National Minimum Wage Bill. Minister Oliphant published the regulations to the National Minimum Wage Bill for consideration. The question is, what are the consequences of these amendments and regulations?

Read More

Constitutional damages: punitive damages? Constitutional Law August 2018

In March, people waited with bated breath to hear retired Deputy Chief Justice, Dikgang Moseneke's, ruling in the Life Esidemeni arbitration. He was tasked with determining the most appropriate relief for the families of some 144 psychiatric patients who tragically passed away after being transferred from Life Esidemeni homes to various ill-equipped NGOs around Gauteng. These patients were exposed to torturous conditions, including starvation and deprivation of psychiatric treatment and medication critical to their continued survival.

Read More

INTRODUCTION - AUGUST 2018 Tax Law Feature August 2018

Treasury's tables for 2018/2019 indicate that 2 015 522 taxpayers will pay 81.4% of income tax; it also shows that of those, the top end: 1.5% pay 26.6% of the tax. And, 67% of tax collected comes from 14.5% of taxpayers. Seven million people will have paid income tax in the 2017/18 year. The figures for 2016/17 show personal income tax accounted for 37.1% of revenue, VAT contributed 25.3% while company income tax brought in 17.9%.

Read More

SECTION 7C’S REACH SPREADS EVER WIDER Tax Law Feature August 2018

The introduction of s7C into the Income Tax Act with effect from 1 March 2017 created shock waves in the trust industry, with some ominously prognosticating that the provision spelt the death-knell for trusts. There is no doubt that s7C has significant impact, and advisers in the trust industry need to pay close heed to its effect.

Read More

THE SARS SERVICE CHARTER Tax Law Feature August 2018

The Davis Tax Committee issued its report on Tax Administration during October 2017 and pointed out that the SARS Service Charter, published in 2005, had been removed from the SARS website. The report called for the finalisation of the SARS Service Charter and recommended to the Minister of Finance that a Taxpayer Bill of Rights should be drafted and enacted. The rationale was to guarantee taxpayers' rights in their interactions with SARS, to ensure SARS' responsibility in its dealings with taxpayers, and to regulate the interactions and expectations of the relationship between SARS and taxpayers.

Read More

A TRUE STATEMENT OF INTENT OR EMPTY PROMISES? Tax Law Feature August 2018

In the context of the Commission of Inquiry into the "Tax Administration and Governance by the South African Revenue Service (SARS)" (Government Gazette 41652, 24 May 2018. Led by Judge Nugent.), and the disciplinary charges (12 misconduct charges – Inquiry to be led by Advocate Azhar Bham, SC.) brought against suspended SARS Commissioner, Tom Moyane, both instigated by President Ramaphosa since he took office, it was a brave move for SARS to launch the "South African Revenue Service: Service Charter" on its website on 1 July - the day the tax season opened. Presumably the objective was to show that, in the absence of those allegedly under the influence of "state capture", SARS has returned to its former glory of the highly respected and efficiently operated organ of state that prevailed throughout the 2000s up to 2014, when Moyane was appointed.

Read More

THE SARS AUDIT: 50 SHADES OF PAY Tax Law Feature August 2018

The Tax Administration Act (28 of 2011) (TAA) came into operation on 1 October 2012 as a new dispensation in the tax regime. It is intended to incorporate into one piece of legislation the administrative provisions generic to all tax Acts in South Africa and to simplify the administrative provisions. The TAA seeks to promote a better balance between the power and duties of SARS in collecting tax and the rights and obligations of tax payers. Significantly TAA also strives to make this relationship more transparent and thus contribute to the equity and fairness of tax administration, and recognise the Constitutional rights of taxpayers.

Read More

IS SARS' APPROACH IN DETERMINING WHETHER TO GRANT A SUSPENSION OF PAYMENT CORRECT? Tax Law Feature August 2018

As anyone who has been involved in dealing with an objection or an appeal to an assessment knows, one of the issues that assessment invariably arises is whether the taxpayer should pay the amount as per the revised assessment, or seek suspension of the payment in the hope and expectation that, at the very least, the objection will be allowed in whole or in part, thereby reducing the amount payable, if not eliminating it. And if the objection is disallowed one might seek a further suspension of payment until the outcome of any alternative dispute resolution meeting provided for in the rules promulgated under s103 of the Tax Administration Act, 2011 (TAA). If a settlement cannot be arrived at at such a meeting, and one can really make a good case, one might attempt to obtain suspension until the outcome of the court proceedings.

Read More