Finance Minister Pravin Gordhan complained during the opening of the BDFM and Bloomberg TV station on June 19 that the media is far too pessimistic. “On the one hand we say that we want global investors to come to South Africa and on the other we say what a lousy country we are." And he added that it appeared to him that there is a perception that to be credible “you have to be anti-ANC."
The Supreme Court of Appeal (SCA), in its recent judgement in the matter of Tristar Investments (Pty) Ltd v The Chemical Industries National Provident Fund case number: (455/12)1, made a finding in relation to the definition of “intermediary service" as defined in the Financial Advisory and Intermediary Services Act (37 of 2002). This judgement is to be welcomed by the financial services industry in that it provides some clarity regarding what services constitute intermediary services and, accordingly, under what circumstances a financial services provider is required to apply for (or hold) a licence to offer intermediary services.
The Constitution (1996) provides that while "every citizen has the right to choose their trade, occupation or profession freely", "the practice of a trade, occupation or profession may be regulated by law" (emphasis added). This constitutional guarantee appears to acknowledge the necessity for regulation in respect of practising a certain "trade, occupation or profession", as opposed to business in general. That said, the Licensing of Businesses Bill (2013) attempts to regulate the practise of a "trade, occupation or profession", as contemplated in the Constitution
While business rescue practitioners around the country come to grips with the provisions of Chapter 6 of the Companies Act (71 of 2008), various interpretations of the Act's provisions are being bandied about by the legal community. Some interpretational issues relate to the number of voting interests required in order to adopt a motion in terms of s152 (1)(d).
Two years into the Companies Act, 2008 it is difficult to gauge how popular or useful the new statutory merger and amalgamation provisions in s113 and s116 have been in practice. Essentially these provisions allow companies to "fuse" into each other, with their respective assets and liabilities automatically, and by operation of law, being transferred and assigned into a merged or amalgamated company.
The Companies Act (71 of 2008) is, in many ways, conceptually innovative. s40(5), for example, permits a company to issue shares to a subscribing party before the company has received the subscription consideration, if the arrangements between the company, subscribing party and third party fit within the requirements of the section. Such an issue would have been void under s92 of the Companies Act 1973.
In recognising that competition contraventions impact heavily on consumers and businesses, there is an increased interest in class actions in competition matters both in South Africa and abroad. While the competition regulatory bodies are tasked with penalising the contraveners, the proceeds of administrative penalties imposed by the authorities do not reach those who suffered loss as effectively as would a direct damages claim.
For almost 25 years, since the promulgation of the Labour Relations Act, 1995, employers, employees, lawyers, trade unions and even the Labour Court itself have struggled with just what an unfair labour practice involving the provision of benefits means.
The ideals behind the enforcement of affirmative action in the workplace post-1994 are sound and understandable. There have, however, been many challenges to overcome to ensure that the empowerment of the previously disadvantaged does not defeat the Constitutional right to equality.