December 2011


From My Window - December 2011 From My Window December 2011

As this issue, the last of 2011, was going off to the printer, Stats SA came out with a statement that we all take for granted. It was to the effect that corruption is fast becoming endemic to the country. Reading this in an official communiqué from a state institution brings home the gravity of the situation. At the same time, Transparency International says more than half of South Africans expect to have to pay civil servants to do the job for which the state already pays them.

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Editor's Note - December 2011 Editor's Note December 2011

2011 proved a difficult year for many individuals, companies and countries; the global economy was dismal and the downward trend shows no sign of abating, as David Gleason graphically describes in from my window; the so-called Arab Spring that began in December last year is far from over; many people have lost their lives, and nearly 29 000 people died in the devastating tsunami and earth- quake that hit Japan while hundreds of Americans lost their lives in tornadoes that hit the country. Steven Jobs, who changed the way we think about communicating, died after a valiant fight against cancer. A hacking and bribery scandal saw News of the World close its doors after 168 years.

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Warrantless searches and the new Tax Ombud Tax December 2011

The Tax Administration Bill (TAB) was introduced in the National Assembly in June. The Standing Committee on Finance (SCoF) was formally briefed on the TAB in August and, subsequently, in September SARS released its formal response document on the submissions received on the TAB.

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Who will foot the bill? Tax December 2011

The Taxation Laws Amendment Bill (the TLAB), which was first released in draft in June 2011, was finally issued as a money bill (subject to signature by the President only) on October 25 2011.

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STC credits and the new dividends tax Tax December 2011

The new dividends tax will take effect on April 1 2012, replacing the current Secondary Tax on Companies (STC).

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Lacking clarity Tax December 2011

The current s11D of the Income Tax Act ( 58 of 1962) provides for research and development (R&D) incentives which include a 150% deduction of operating expenses and accelerated depreciation of any building or part thereof, machinery, plant, implements, utensil or article.

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To bequeath or not Tax December 2011

Intention is the key

In the case ITC 1835 1 the Tax Court in Kimberley deliberated on whether a debt due to a deceased estate had been discharged for no financial consideration and was therefore subject to Capital Gains Tax (CGT) on the full value of the claim in terms of paragraph 12(5) of the Eighth Schedule to the Income Tax Act. 2

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Are you or aren’t you? Tax International Law December 2011

The UK government has consulted on a new statutory residence test to determine whether an individual is tax resident in the UK for tax purposes.

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Catalyst or Hindrance? Financial Law December 2011

South Africa has not been immune to recent volatile global capital markets and economic conditions brought about largely by the Eurozone debt crises and the slow-down in American growth.

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Moving towards a low-carbon economy Financial Law December 2011

This is the last in a three-part series

C. WHAT IS THE INDUSTRY POLICY FOR SUSTAINABLE INVESTMENT?

Voluntary codes like CRISA work perfectly if people own both their letter and spirit, and show that they are making an impact..."

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Who lives in the fourth residence? Financial Law December 2011

Can the results of a Muslim polygamous marriage prevent a bank from enforcing its security? This was at the core of a recent opposing affidavit. The bank in this instance is owed around R10m by a company which has, inter-alia, registered mortgaged bonds over three properties owned by the surety of the company.

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Beware the white knight whistleblower Competition Law December 2011

This article examines the incentives motivating whistleblowers when tipping off the competition authorities about cartel conduct. It suggests that, following the guidance of the European Courts, the statements that whistleblowers provide should be assessed cautiously and supported by corroborative evidence.

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Couching complaints Competition Law December 2011

When submitting a complaint to the Competition Commission, it is important that the prescribed form is used and that sufficient particulars are provided in respect of the respondent and the alleged anti-competitive conduct. If this isn't done the complaint may be found to be non-existent. This was the fate suffered by the Commission in the recent Competition Appeal Court (CAC) decision involving two fertilizer businesses, Yara and Omnia. 1

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And the ASA amends itself out of its Code Advertising December 2011

Aaah – lucky me! The proud recipient of the very latest Code of Advertising Practice updates. No finer opportunity to stretch my lawyer's brain in the on-going business of trying to understand what the ASA intends with a particular update, why it was done, and what it will mean to my clients. And the latest changes (Service edition 19) give me some fine food for thought – in particular an innocuous looking little addition to Clause 4 which states, “All complaints, by consumers or competitors, regarding medicinal claims, excluding complementary medicines, must be lodged in terms of Appendix A".

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Who’s entitled to vote on a scheme of arrangement Company Law December 2011

Under s311 of the previous Companies Act (1973), the scheme of arrangement was a very useful tool in corporate restructurings, reorganisations and takeovers. Its fundamental premise was that a scheme proposed by a company would, if supported by a certain majority of scheme members (being shareholders or creditors, or both) and if sanctioned by the high court, bind all scheme members, even those who did not vote in favour of the scheme.

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