0836 Knowledge management Newsletter NEW · of the case of Alfred McAlpine & Son (Pty) Ltd v...

This KM Alert offers a high level overview of selected recent developments with regard to case law and legislation and reflects the position as at date of publication.

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(The KM Team)

IN THIS ISSUE

1 CASE LAW UPDATE

A SELECTION OF RECENT CASES

1.1 BANKING

1.2 ELECTRONIC COMMUNICATIONS

1.3 APPEALS

2. EMPLOYMENT LAW UPDATE

3. LEGISLATION UPDATE

3.1 ACTS PUBLISHED

3.2 BILLS

3.3 MISCELLANEOUS

4. LEGAL DEVELOPMENTS ACROSS A RANGE OF PRACTICE AREAS AND SECTORS

5. TRAINING, LEARNING AND SKILLS DEVELOPMENT

7 DECEMBER 2015 NEWSLETTER

KNOWLEDGEMANAGEMENT

2 | KNOWLEDGE MANAGEMENT NEWSLETTER 7 December 2015

KNOWLEDGE MANAGEMENT NEWSLETTER 7 DECEMBER 2015

debtor and creditor relationship, using the

oft-quoted paragraph in Standard Bank of

SA Ltd v Oneanate Investments (Pty) Ltd

1995 (4) SA 510 (C) at 530G-H:

“The law treats the relationship between

banker and customer as a contractual

one. The reciprocal rights and duties

included in the contract are to a great

extent based upon custom and usage.

Although historically the original

objective of a depositor was to ensure

the safekeeping of his money, over time

jurists have considered characterising

and explaining the basic relationship

as one of depositum, mutuum or

agency. All of these approaches have on

analysis proved to be inadequate. It is

now accepted that the basic, albeit not

sole, relationship between banker and

customer in respect of a current account

is one of debtor and creditor.’”

The court accepted that ABSA employees

had been negligent in the execution of

this bank and client contract because they

allowed someone other than the Plaintiff

to operate the account (whilst he was

unauthorised). On the basis of an analysis

of the case of Alfred McAlpine & Son (Pty)

Ltd v Transvaal Provincial Administration

1974 (3) SA 506 (A) the court stated

that ABSA should not have allowed

Huang, who was not authorised by the

accountholder, to operate the account,

and held that:

“On the basis of the legal principles

set out above, it was clearly an implied

term of the agreement between the

parties, by the nature of things, that

the defendant agreed to only make

1.1 BANKING

D A Ungaro & Sons (Pty) Ltd

v Absa Bank Limited (Case no

20063/2003) Gauteng Local Division,

Johannesburg (7 September 2015)

In this matter the Defendant (ABSA)

opened an Active Savings Account in the

name of the Plaintiff, on the instructions

of one of the Plaintiff’s employees

(Huang), who was authorised only to

open the account for the Plaintiff. Huang

turned out to be a fraudster who saw to it

that a number of unauthorised debits and

transfers were made out of the account.

In total the Plaintiff lost over R2 million

to the fraudster. The questions before

the court were whether ABSA had acted

negligently in allowing Huang to transact

on the account; how the bank should

have (but did not) ascertain whether

Huang was in fact authorised to transact

on the account and whether the account

could only be used, or transactions

authorised, by the Plaintiff company (and

not Huang himself).

The factual matrix is complex but in

brief, Huang was authorised to open the

account but not to transact on it by the

Plaintiff. The directors of the Plaintiff had

signed the forms to open the account –

Huang was their emissary to the bank.

The evidence of bank employees and

experts suggested that, to be allowed

to transact on another’s account,

one would need signing powers or a

power of attorney to that effect. Huang

undoubtedly ‘duped’ ABSA, and included

his personal bank details on the account

opening forms (in answer to the question

of whether the applicant (for the account)

had other accounts at the bank), and even

listed the address of the accountholder as

an address in Ruimsig (the area in which

he lived although with a non-existent

street address). But Huang had neither

signing powers nor was he in possession

of a power of attorney. He was however,

able to transact on the account,

occasionally by phone, in branches,

sometimes with and sometimes without

signatures of bank staff being appended

to the completed instructions, and

always without a comparison of Huang’s

signature being made to a specimen

signature (even though this would have

been the only method of verification

of an instruction to ABSA because no

bank card nor PIN was ever issued to the

Plaintiff). In fact, there was no specimen

signature in existence.

ABSA countered that Huang had

represented to it that he was authorised

to open the account and to enter into

the bank and customer agreement with

the bank, which would have included

transacting on the account. Accordingly,

ABSA plead that the Plaintiff was estopped

from claiming from it, because the bank

had been led to believe that Huang was

authorised, relied on this belief and

had acted to its detriment on this basis.

However, in the fullness of time, no

evidence was led by ABSA in regard to the

misrepresentation, detriment or reliance,

nor in regard to the allegation that it was

in fact the Plaintiff that was negligent

in clothing Huang with the authority to

operate the account – even partly.

An expert (Wills) who previously worked

at Standard Bank for some 49 years

opined that ABSA should have obtained

all company documents of the Plaintiff

and also proof of Huang’s authority to

operate the account - it did not. Wills also

suggested that when Huang asserted that

he ‘owned’ the Plaintiff company, ABSA

should have carried out necessary checks

to confirm this, because a proper check

would have revealed that Huang was only

a manager at the Plaintiff. This would have

raised alarm.

The court confirmed the concept that the

bank and client relationship is sui generis,

although based on mandate, and on a

1. CASE LAW UPDATEA SELECTION OF RECENT CASES

The court confirmed the

concept that the bank and client

relationship is sui generis, although

based on mandate, and on a

debtor and creditor relationship



Link Africa notified the City of Tshwane

Metropolitan Municipality (Municipality)

of its decision to install fibre in the

Municipality’s existing underground

infrastructure. This was the genesis of

the present dispute. The Municipality

approached the High Court in Pretoria

for an interdict to halt further installation

of fibre by Link Africa, and to force Link

Africa to remove what fibre was already

laid. It also sought a declaration that

s22 of the ECA should be interpreted

to require Link Africa to obtain the

Municipality’s consent prior to the

installation of the fibre or alternatively,

that certain sections of the ECA were

unconstitutional insofar as they allowed

licensees such as Link Africa to arbitrarily

deprive the Municipality of its property

and force municipalities (in general) to

acquiesce to licensees’ notifications

contrary to procurement provisions in

the Constitution of the Republic of South

Africa, 1996 (Constitution).

The High Court found in favour of

Link Africa and held that the sections

of the ECA did not permit an arbitrary

deprivation of property as alleged by the

Municipality but “[i]nstead, the fibre-optic

cables installed by Link Africa … would

benefit business and the residents of the

City.” The High Court did not decide on

whether the implicated sections of the

ECA forced municipalities to act contrary

to the procurement provisions of the

Constitution.

payments and transfers out of the

account on specific instructions by

the plaintiff. The credible evidence

presented by the plaintiff proved

convincingly that the defendant failed

in its obligations and breached the

agreement.” [at par 30]

As for allegations of negligence on the

Plaintiff’s part, the court held that the

fact that the account was an investment/

savings account did not affect the duty

of the banker to its client. The same

principles apply to the account implicated

in this matter as do to a cheque account

for example. The court cited Absa

Bank v Hanley 2014 (2) SA 448 (SCA) at

457F-458A, re-affirming the limited duty of

a client to their bank:

“ ‘Save in respect of drawing

documents to be presented to the

bank and in warning of known or

suspected forgeries he (the customer)

has no duty to the bank to supervise

his employees, to run his business

correctly, or to detect frauds. The

negligence or carelessness of the

customer must be real, direct or

immediate cause of the bank having

been misled, and must be evident in

the transaction itself, in the manner

in which the cheque or payment

instruction was drawn.’ (my insertion)”

Finally, the court ensured that it

distinguished the present case from the

scenario in Columbus Joint Venture v Absa

Bank Ltd 2002 (1) SA 90 (SCA) and the

decision of the court a quo in that matter.

There it was suggested that bankers

should not necessarily be forced to make

inquiries of clients where such inquiries

would offend the client or invade his or her

privacy where the client is known to the

banker – that is, the right balance should

be struck, and a bank should inquire where

it is put on inquiry or where the transaction

is out of the ordinary. However, in the

present matter the fact that Huang was

known to some employees of ABSA did not

assist the bank - the weight of evidence

suggesting that the bank should have

made inquiries and did act negligently.

Ultimately, the court summed up its

findings in paragraph 43 which appears

below, and found for the Plaintiff:

“In the circumstances, I concluded

that the plaintiff has succeeded in

proving, on a balance of probabilities,

that there was an agreement

between the parties in the opening

of the account in question. Further

that, during the opening of the

account, which was on instructions

of the plaintiff, and subsequently,

the defendant proceeded to breach

its duty of care towards the plaintiff

as its client, and acted wrongfully

and negligently in regard to the

account. This was a direct cause of

the plaintiff’s loss, as claimed. In her

evidence Taylor of the defendant

… informed the court that in the

event the plaintiff proved that the

withdrawals in the account were

indeed unauthorised, the defendant

admitted the quantum of the

plaintiff’s claim. This was the amount

of R2 680 928,74, as pleaded.”

1.2 ELECTRONIC

COMMUNICATIONS

City of Tshwane Metropolitan

Municipality v Link Africa (Pty) Limited

and Others (Case no CCT 184/14)

Constitutional Court (23 September

2015)

This matter concerned certain provisions

of the Electronic Communications Act,

No 36 of 2005 (ECA). Link Africa (Pty)

Limited (Link Africa) is a ICASA license

holder in terms of s5(5) of the ECA,

which carries on the business of

constructing infrastructure in the field of

electronic communications, and installs

its fibre infrastructure underground in

municipalities’ underground infrastructure.

The court held that the fact that

the account was an investment/

savings account did not affect the

duty of the banker to its client.

CASE LAW UPDATE...continued




The High Court and subsequently the

Supreme Court of Appeal refused the

Municipality leave to appeal. Leave to

appeal was however granted to the

Municipality by the Constitutional Court

(CC). The CC considered sections 24 to

27 of the ECA and s22 which enables

those sections and states the following:

“22 Entry upon and construction of

lines across land and waterways

(1) An electronic communications

network service licensee may:

(a) enter upon any land, including

any street, road, footpath or land

reserved for public purposes, any

railway and any waterway of the

Republic;

(b) construct and maintain an

electronic communications

network or electronic

communications facilities upon,

under, over, along or across any

land, including any street, road,

footpath or land reserved for

public purposes, any railway and

any waterway of the Republic; and

(c) alter or remove its electronic

communications network or

electronic communications

facilities, and may for that purpose

attach wires, stays or any other

kind of support to any building or

other structure.

(2) In taking any action in terms of ss(1),

due regard must be had to applicable

law and the environmental policy of

the Republic.”

The majority of the CC held that this

provision, read with the other sections of

Chapter 4 of the ECA did not allow for an

arbitrary deprivation of property in terms

of s25 of the Constitution, which, so the

CC said, must be interpreted with due

regard being had to the spirit, purport

and objects of the Bill of Rights. The CC

also held that the common law of South

Africa “is sufficiently flexible to allow

license holders to enter upon any property

without the consent of the land owner

provided that they exercise these rights [ie

section 24 to 27 rights] respectfully and

with due caution.” The minority of the CC

disagreed, but the decision of the majority

is what binds the parties and creates the

precedent.

Ultimately, the Municipality’s appeal failed.

1.3 APPEALS

Döman v Selomo (Case no 20455/14)

[2015] ZASCA 124 (21 September

2015)

Section 16(2)(a)(i) of the Superior Courts

Act, No 10 of 2013, the successor of the

Supreme Court Act, 1959 provides that:

“(i) when at the hearing of an appeal

the issues are of such a nature that the

decision sought will have no practical

effect or result, the appeal may be

dismissed on this ground alone.

(ii) Save under exceptional

circumstances, the question whether

the decision would have no practical

effect or result is to be determined

without reference to the consideration

of costs.”

This section was at the centre of this

matter.

The appellant, Döman, refused to allow

Selomo to bury his daughter on the farm

called Pennsylvania in Limpopo, where

Selomo’s other family members (including

his parents) were buried. Selomo launched

an urgent application in terms of s6(2)(dA)

of the Extension of Security of Tenure Act,

No 62 of 1997 which deals with the burial

of persons living on land that an occupier

occupies. Selomo had lived on the farm

since 1948, and his daughter had been

resident on the farm at the time of her

death.

Döman acknowledged the cultural and

historical links of the Selomos to the

farm, but resisted the claim on the basis

that Selomo no longer resided on the

farm subsequent to a 2005 agreement

concluded between one van Staden and

Selomo. Selomo alleged that he had only

been asked to sign for receipt of his annual

bonus and was effectively “duped” into

signing the agreement on which Döman

now relied.

The Land Claims Court granted the order

sought by Selomo (however, not on the

basis claimed by Selomo but in terms

of the Land Reform (Labour Tenants)

Act, No 3 of 1996) and his daughter was

subsequently buried on the farm in 2013.

The Supreme Court of Appeal noted that

the more than two and a half years since

had rendered the matter moot - Selomo’s

daughter having long since been buried

on the farm. Döman however, persisted

with the appeal on the basis that he felt

the decision of the court below could lay

the groundwork for Selomo and others to

establish more graves on the farm.

Ultimately, counsel for Döman conceded

that to exhume the body of Selomo’s

daughter, particularly given the lapse of

some two and a half years would be highly

offensive, and accepted that the appeal

should be dismissed on the basis of s16(2)

(a)(i) of the Superior Courts Act. The court

exercised its discretion in this regard and

the appeal was dismissed.

CASE LAW UPDATE...continued



Claiming mandatory grants under the Skills Development Act: worth the trouble?

A compulsory levy is payable by all employers in terms of the Skills Development Levies

Act, No 9 of 1999 for the purpose of funding education and training of employees. This is the

training funding scheme envisaged by the Skills Development Act, No 97 of 1998 (SDA). The

levy amounts to 1% of an employer’s employee remuneration cost. It was intended that these

levies would be utilised for developing the skills of the South African workforce. Such training

was intended to be financed (at least in part) by the levies collected. The opportunity to claim

back a portion of the levy paid was an incentive for employers to adopt a proactive approach to

skills development.

The levy is collected by the South African revenue service, with 80% of levy income allocated to

the relevant sector education and training authority (SETA). The SETA uses a part of this (12.5%)

for administrative costs and the remainder should be used to pay training grants. Such training

grants either take the form of mandatory grants paid to employers, or discretionary grants paid

in respect of activities that implement the seta specific sector skills plan. Not only employers

may benefit from discretionary grants.

Provided that contributing employers comply with the eligibility criteria for mandatory grants

(primarily submission of workplace skills plans (Plans) and annual training reports (Reports)),

they are entitled to benefit from the mandatory grants.

Participation in discretionary grants is subject to additional, more onerous requirements.

Participating employers have found that the process of completing the Plan and Report is

very time-consuming, and since 2013, the refunds received from SETAs have been materially

reduced. For many, the cost of completion of Plans and Reports are therefore no longer

viable, as this cost may equal or exceed the returns received. The reason for the reduction in

mandatory grants refunded to employers lies in the fact that the Minister of Higher Education

and Training (the Minister) had promulgated new regulations (SETA Grant Regulations Regarding

Monies Received by SETA and Related Matters, promulgated in terms of the SDA in Government

Notice R990 of 3 December 2012) that took effect on 1 April 2013. Under the new regulations

the mandatory grant was reduced from 50% of levies paid to 20%.

Business Unity South Africa, a professional association representing businesses in South Africa,

challenged these new regulations. The Labour Court has, on 7 August 2015, pronounced on

the issue in the case of Business Unity South Africa v Minister of Higher Education and Training

and Others, under case number JR 1110/13. The Labour Court reviewed and set aside the

regulations to the extent that it reduces the mandatory grant. This regulation (regulation 4(4))

was found to be irrational in relation to the reason for it (to encourage better quality information

being submitted by employers) and promulgated in an un-procedural manner.

The judgment also set aside a second provision in the regulations (regulation 3(11) and 3(12)).

This is the so-called “sweeping” regulation, which has the effect of “sweeping” a portion of the

monies held by SETAs into the National Skills Fund once annually, if the SETA has not allocated

such funds to discretionary training grants in time. It was found that this regulation was

irrational as well and, moreover, ultra vires the Minister’s powers in terms of the SDA.

Both orders of invalidity of regulations were suspended until 31 March 2016, to give the Minister

an opportunity to correct the position.

2. EMPLOYMENT LAW UPDATE



KNOWLEDGE MANAGEMENT NEWSLETTER

3.1 ACTS PUBLISHED

Revenue

Rates and Monetary Amounts and

Amendment of Revenue Laws Act,

No 13 of 2015

(GG 39421; 17 Nov 2015)

This Act aims “to fix the rates of normal

tax; to amend the Transfer Duty Act, 1949,

so as to amend rates of transfer duty and

monetary thresholds; to amend the Income

Tax Act, 1962, so as to amend rates of tax

and monetary amounts; to amend the

Customs and Excise Act, 1964, so as to

amend rates of duty in Schedule 1 to that

Act and to provide for matters connected

therewith”.

This Act comes into operation on the date

of publication – 17 Nov 2015.

Shipping

Merchant Shipping Amendment Act,

No 12 of 2015

(GG 39303; GN991; 20 October 2015)

This Act aims “to amend the Merchant

Shipping Act, 1951, so as to give effect to

the Maritime Labour Convention, 2006

and the Work in Fishing Convention, 2007

and to provide with matters connected

therewith”.

3.2 BILLS

3.2.1 Bills before Parliament

(recently introduced)

Banking and Finance

Finance Bill [B31-2015]

The Bill aims “to approve unauthorised

expenditure and to provide for matters

connected therewith”.

Financial Sector Regulation Bill [B34-2015]

The Bill aims “to establish a system of

financial regulation by establishing the

Prudential Authority and the Financial

Sector Conduct Authority, and conferring

powers on these entities; to preserve and

enhance financial stability in the Republic

by conferring powers on the Reserve

Bank; to establish the Financial Stability

Oversight Committee; to regulate and

supervise financial product providers and

financial services providers; to improve

market conduct in order to protect

financial customers; to provide for co-

ordination, co-operation, collaboration

and consultation among the Reserve Bank,

the Prudential Authority, the Financial

Sector Conduct Authority, the National

Credit Regulator and other organs of state

in relation to financial stability and the

functions of these entities; to establish the

Financial System Council of Regulators

and the Financial Sector Inter-Ministerial

Council; to provide for making regulatory

instruments, including prudential standards,

conduct standards and joint standards; to

make provision for the licensing of financial

institutions; to make comprehensive

provision for powers to gather information

and to conduct supervisory on-site

inspections and investigations; to make

provision in relation to significant owners

of financial institutions and the supervision

of financial conglomerates in relation to

eligible financial institutions that are part

of financial conglomerates; to provide

for powers to enforce financial sector

laws, including by the imposition of

administrative penalties; to establish the

Ombud Regulatory Council and confer

powers on it in relation to ombud schemes;

to require financial product and financial

service providers to be members of, or be

covered by, appropriate ombud schemes;

7 DECEMBER 2015

3. LEGISLATION UPDATE

to establish the Financial Services Tribunal

as an independent tribunal and to confer

on it powers to review decisions by

financial sector regulators, the Ombud

Regulatory Council and certain market

infrastructures; to establish the Financial

Sector Information register and make

provision for its operation; to provide for

information sharing arrangements; to

create offences; to provide for regulation-

making powers of the Minister; to amend

and repeal certain financial sector laws; to

make transitional and savings provisions

and to provide for matters connected

therewith”.

New Development Bank Special

Appropriation Bill [B32-2015]

The Bill aims “to appropriate an additional

amount of money for the requirements

of the National Treasury to pay the

first capital instalment to the New

Development Bank”.

Education

Higher Education Amendment Bill [B36 of

2015]

The Bill aims “to amend the Higher

Education Act, 1997, so as to provide for

the insertion of new definitions; to provide

for the determination of transformation

goals and oversight mechanisms for the

public higher education system; to provide

for the development of articulation and

recognition of prior learning frameworks;

to provide for the conversion of public

higher education institutions; to provide

for the powers of the council of a public

higher education institution to invest

funds; to provide further for the issuing

of Ministerial directives; to provide for

indemnification of an independent

functions of compliance officers regarding

the entering and inspection of premises

and facilities in which the business of the

sale, hire or exhibition of films or games

is being conducted; to further regulate

the classification of publications, films

and games; to provide for independent

industry classification bodies accreditation

thereof by the Film and Publication

Board; to provide for classification of

publications, films and games by the

independent industry classification

bodies; to provide for foreign classification

systems and approval thereof by the Film

and Publication Board; to provide for the

use of classification ratings issued by a

foreign classification authority or body;

to provide for the right of appeal against

classifications issued by independent

industry classification bodies; to provide

for exemptions in respect of online

distribution of films and games; to further

provide for the obligations of internet

service providers regarding curbing the

use of their services in advocating racism

and hate speech; to revise and strengthen

penal provisions and to provide for matters


Road Traffic

Administrative Adjudication of Road

Traffic Offences Amendment Bill

[B38-2015]

The Bill aims “to amend the Administrative

Adjudication of Road Traffic Offences

Act, 1998, so as to substitute and insert

certain definitions; to simplify the manner

of service of documents; to provide for

financing of the Authority; to provide for

the apportionment of penalties; to effect

textual corrections and to provide for

matters connected therewith”.



assessor; to provide for the indemnification

and termination of the term of office of

an administrator; to provide for different

categories of registration of private higher

education institutions and the associated

rights; to provide for the withdrawal and

revocation of qualifications by public

higher education institutions and to

provide for matters connected therewith”.

FICA

Financial Intelligence Centre Amendment

Bill [B33 of 2015]

The Bill aims “to amend the Financial

Intelligence Centre Act, 2001, so as

to define or further define certain

expressions; to extend the objectives

of the Centre so as to provide for the

additional sharing of information and for

the Centre to assist in the implementation

of financial sanctions and to administer

measures pursuant to resolutions adopted

by the Security Council of the United

Nations; to extend the functions of the

Centre so as to provide for the additional

sharing of information and to provide

for guidance to accountable institutions

in respect of the freezing of property

and transactions pursuant to resolutions

adopted by the Security Council of the

United Nations; to abolish the Counter

Money Laundering Advisory Council;

provide for a risk based approach to

client identification and verification; to

provide for the strengthening of customer

due diligence measures including with

respect to beneficial ownership and

persons in prominent positions; to provide

for the obligation to keep identity and

verification and transaction records;

to set out the procedure in respect of

financial sanction control measures

pursuant to the notification of persons

and entities identified by the Security

Council of the United Nations; to specify

the content of the memorandum of

understanding between the Centre and

a supervisory body; to provide for access

to information on suspicious and unusual

transactions to specified supervisory

bodies during inspections; to provide

for Risk Management and Compliance

Programmes, governance and training

relating to anti-money laundering and

counter terrorist financing; to provide for

a warrant to conduct certain inspections;

to provide for a financial penalty to be

paid into the National Revenue Fund;

to provide for further procedural issues

in respect of appeals; make further

provision for offences; to provide that

certain types of non-compliance are

subject to administrative sanctions; to

adjust the regulation-making powers for

general matters; to increase the maximum

penalties that may be imposed in the

regulations and to provide for matters


Films and Publications

Films and Publications Amendment Bill

[B37-2015]

The Bill aims “to amend the Films and

Publications Act, 1996, so as to insert

and amend certain definitions; to

provide for the establishment of, the

composition of, and appointment of,

members of the Penalty Committee;

to provide for the powers and duties

of the Penalty Committee; to regulate

online distribution of digital films and

digital games; to extend the functions

of the Film and Publication Board of

monitoring compliance with the Films

and Publications Act; to include online

distributors in respect of the requirements

to comply with the Films and Publications

Act; to revise and further regulate the

LEGISLATION UPDATE...continued



Tax

Taxation Laws Amendment Bill [B29-2015]

The Bill aims “to amend the Income Tax Act, 1962, so as to amend, delete and insert

definitions, repeal provisions, amend provisions and make new provision; to amend the

Customs and Excise Act, 1964, so as to make new provision; to amend the Value-Added Tax

Act, 1991, so as to amend provisions and schedules; to amend the Securities Transfer Tax

Act, 2007, so as to amend provisions and to make new provision; to amend the Employment

Tax Incentive Act, 2013, so as to amend provisions; to amend the Taxation Laws

Amendment Act, 2013, so as to amend provisions; to amend the Taxation Laws Amendment

Act, 2014, so as to amend provisions and to provide for matters connected therewith”.

Tax Administration Laws Amendment Bill [B30-2015]

The Bill aims “to amend the Income Tax Act, 1962, so as to effect consequential and textual

amendments, delete a provision and to amend certain provisions; amend the Customs

and Excise Act, 1964, to insert a provision; to amend the Excise Duty Act, 1964, so as to

insert certain provisions and to amend certain provisions; to amend the Value-Added Tax

Act, 1991, so as to amend certain provisions; to amend the Skills Development Levies Act,

1999, so as to amend provisions; to amend the Taxation Laws Second Amendment Act,

2008, so as to amend an effective date; to amend the Mineral and Petroleum Resources

Royalty (Administration) Act, 2008, so as to amend a penalty provision; to amend the Tax

Administration Act, 2011, so as to amend certain provisions, effect technical corrections

and to effect textual and consequential amendments; to amend the Customs Duty Act,

2014, so as to effect technical corrections, effect consequential amendments and to

insert a provision; to amend the Customs Control Act, 2014, so as to amend certain

provisions, effect consequential amendments and to insert a provision; to amend the Tax

Administration Laws Amendment Act, 2014, so as to effect technical corrections and to

provide for matters connected therewith”.

3.2.2 Bills approved awaiting the President’s signature

Investment

Promotion and Protection of Investment Bill [B18B-2015]

New title: Protection of Investment Bill

The Bill aims “to provide for the legislative protection of investors and the protection and

promotion of investment; to achieve a balance of rights and obligations that apply to all

investors and to provide for matters connected therewith”.

Parliamentary process complete.

Bill to be submitted to the President for assent (30 Nov 2015).

Does the Investment Bill usher-in a new era of unequitable treatment among foreign

investors in South Africa in ‘like circumstances’?

“The Protection of Investment Bill has been passed by the National Assembly on 17

November 2015, and transmitted to the National Council of Provinces for concurrence.

The Investment Bill has seen significant amendments since it was first released for public

comment in November 2013 by the Department of Trade and Industry.





∞ foreign investors from countries

with whom South Africa has bilateral

investment agreements or still intend

to conclude such agreements will

be entitled to the rights in such BITs,

including any other rights provided for

in the domestic law.

The rights contained in BITs are in most

instances more beneficial than the rights

a foreign investor will have in terms of the

Investment Bill. South Africa has indicated

that in future it still intends to conclude

BITs with states or regions which serves

the economic and political interest of the

country. Foreign investors without any BIT

protection will not be treated equally in

‘like circumstances’ as foreign investors

with BITs in South Africa. They would

derive more protection, unless those BITs

are aligned to the Investment Bill, (which

then makes no sense to conclude any new

BITs with states).

Internationally there is a movement to

reform BITs by either limiting or excluding

protection measures such as MFN and

FET. However, in these instances states

still conclude that international investment

agreements regulate other international

investment law principles, as opposed

to adopting domestic legislation such as

Despite these changes, the Investment Bill

still contains serious concerns for foreign

investors, specifically from the European

business community for the lack of a

number of international investment law

protection measures to encourage future

trade and investment in South Africa. The

pertinent concerns for foreign investors

remain the following:

∞ inadequate protection in the

event of both direct and indirect

expropriation;

∞ fair and equitable treatment in

‘like circumstances’; and

∞ access to international

arbitration to resolve disputes

with the state.

Expropriation

The right against expropriation without

compensation is guaranteed in terms of

the South African Constitution, [albeit ‘fair

and equitable’ compensation as opposed

to pure market related compensation

contained in Bilateral Investment Treaties

(BITs)]. Of greater concern appears to be

the fact that the South African Constitution

excludes compensation for deprivation or

indirect expropriation of property rights,

where most BITs provide for compensation

for indirect expropriation.

Indirect expropriation is usually associated

with circumstances where the state does

not obtain actual ownership of property

(no property right vests in the state), but

by means of a law of general application

which deprives everyone in the country

(national or foreign) of certain proprietary

rights. A good example is the Mineral

and Petroleum Resources Development

Act, 2002, as amended (MPRDA) which

resulted in the deprivation of all mineral

and petroleum rights privately owned by

persons, subject to a transitional period,

were the state became the custodian

of all mineral and petroleum resources

in South Africa – without being vested

with the proprietary rights of the mineral

or petroleum resources. The state only

regulates on behalf of the people of South

Africa the granting of rights, permits and

permissions for the mining of minerals and

production of petroleum.

It is the sovereign right of South Africa

to decide what type of deprivation

of property rights will be entitled

to compensation. However, the

unrestricted exclusion of all types of

indirect expropriation may be perceived

by investors to significantly lower the

protective value found in BITs, even those

BITs currently in the process of being

reformed by other countries or regions.

From a foreign investors’ perspective, such

protection is particularly desirable where

the perception exists that governance

is weak and that the domestic laws of

the relevant host state may not be seen

as reliable. In the absence of protection

for indirect expropriation, investors may

seek investment insurance from private or

public providers in the country, potentially

increasing the opportunity cost of doing

business in South Africa.

Fair and Equitable Treatment (FET)

and Most Favoured Nation (MFN)

Despite one of the main objectives of the

Investment Bill being to foster equality

between investors in South Africa, it

appears to actually usher-in a new era

of unequal treatment among foreign

investors (or investors in general). The

unequal treatment between foreign

investors stem from the following:

∞ foreign investors from countries

who have no bilateral investment

agreements with South Africa for any

new investments will only be entitled

to rely on the rights it derives in terms

of the Investment Bill or Constitution;

and


The Investment Bill still contains

serious concerns for foreign

investors, specifically from the

European business community

for the lack of a number of

international investment law

protection measures to encourage

future trade and investment in

South Africa.



South Africa. The exclusion of MFN and FET

provides maximum flexibility to the state

in respect of the various socio-economic

policy objectives it must meet. However,

it is important for South Africa which

requires foreign direct investment (FDI) to

meet its developmental goals and not to

deter investments through, among others,

creating circumstances where in ‘like

circumstances’ foreign investors are treated

differently without any objective basis.

There is no indication in the Investment

Bill that among foreign investors in

specific economic sectors there will be

objective factors taken into account to

justify ‘unequal’ treatment, similar to the

national treatment provision. Should the

Investment Bill indeed usher-in a new era

of unequal treatment, this will also account

for domestic investors and go against the

fundamental basis of the Investment Bill ‘to

achieve a balance of rights and obligations

that apply to all investors’ as investors with

BITs will be treated more favourably than

any South African investors. We should be

cautious not to create double standards

among foreign investors (or domestic

investors) in South Africa which could harm

South African investments abroad in terms

of the principle of reciprocity.

South Africa has taken a bold step to

regulate future FDI through domestic

legislation. It appears that other nations

are also following an approach to provide

states with more flexibility by limiting

investors’ rights, albeit through negotiating

reforms to BITs. Once Parliament passes the

Investment Bill and transmits the bill to the

president for his assent and proclaimed as

law, we trust that the policy stands South

Africa has adopted in respect of certain

BITs does not deter the flow of FDI to the

country as one of the preferred points of

entry into the African market. Only time will

tell whether the government’s regulatory

impact assessment prior to initiating

the termination of the various BITs was

correct and that the opportunity cost of

not maintaining BITs with certain states

(even in a reformed manner) outweighed

any benefits (such as FDI inflow etc) from

foreign investors subject to such BIT.”

3.2.3 Draft Bills published for

comment:

Debt Collection

Debt Collectors Amendment Bill

(GG 39290; GN 988; 14 Oct 2015)

The Bill aims “to amend the Debt

Collectors Act, 1998, so as to amend and

insert certain definitions; to make the Act

applicable to attorneys; to make provision

for the registration and regulation of debt

collectors interns; to provide that the

list of registered debt collectors may be

submitted to Parliament electronically;

to further regulate the processes dealing

with improper conduct of debt collectors;

to provide for the payment of admission

of guilt fines by debt collectors in respect

of certain cases of improper conduct; to

provide for the appointment of inspectors

to assist the Council for Debt Collectors

with investigations of complaints against

debt collectors; to empower the Council

for Debt Collectors to tax or assess any

account or statement of costs; to further

regulate the administration of trust

accounts of debt collectors; to extend the

matters in respect of which regulations

may be made; to empower the Council

for Debt Collectors to delegate certain of

its powers and functions; to empower the

Council for Debt Collectors to exempt debt

collectors from certain requirements of the

Act; to require the Rules Board for Courts

of Law and the Council for Debt Collectors

to make recommendations to the Minister

on fees and expenses payable in respect of

debt collection and to provide for matters


Extension of comment period: Interested

parties wishing to comment on the draft

Debt Collectors Amendment Bill now have

until the end of January 2016 to do so.

7 DECEMBER 2015

Environmental

National Environmental Management

Laws Amendment Bill

Extension of the public comment

period for the National Environmental

Management Laws Amendment Bill, 2015

published in Government Notice No 986,

Gazette 39287 on 13 Oct 2015, until 30

Nov 2015.

Health

Draft National Public Health Institute of

South Africa Bill, 2015

The draft Bill aims “to provide for the

establishment of the National Public

Health Institute of South Africa in order to

conduct disease and injury surveillance

and to provide specialised public health

services, public health interventions,

training and research directed towards

the major health challenges affecting the

population of the Republic and to provide

for matters connected therewith”.

Draft National Health Laboratory Service

Amendment Bill, 2015

The draft Bill aims “to amend the National

Health Laboratory Service Act, 2000, so

as to define certain expressions and to

Once Parliament passes the

Investment Bill and transmits the

bill to the president for his assent

and proclaimed as law, we trust

that the policy stands South Africa

has adopted in respect of certain

BITs does not deter the flow of

FDI to the country as one of the

preferred points of entry into the

African market.




delete a definition; to make the Preferential Procurement Policy Framework Act, 2000,

applicable to the National Health Laboratory Service; to adjust the objects and duties of the

Service; and to strengthen the governance and funding mechanism of the National Health

Laboratory Service and to provide for matters connected therewith”.

3.2.4 Private Members Bills published for comment

Employment

Labour Laws Amendment Bill [PMB5-2015]

This Bill aims “to amend the Basic Conditions of Employment Act, 1997, so as to correct

an obsolete reference to an Act; to provide for parental, adoption and commissioning

parental leave to employees; to provide that a collective agreement may not reduce an

employee’s entitlement to parental, adoption or commissioning parental leave; to amend

the Unemployment Insurance Act, 2001, so as to provide for the right to claim parental and

commissioning parental benefits from the Unemployment Insurance Fund; to provide for

the application for, and the payment of, parental and commissioning parental benefits from

the Unemployment Insurance Fund; to correct an obsolete reference to an Act; to provide

that the number of contributors to whom parental and commissioning parental benefits

were paid and the amount of such payments be included in the written report from the

Director-General to the Minister and to provide for matters connected therewith”.

3.3 MISCELLANEOUS

Broad-Based Black Economic Empowerment

Commencement of trumping provision of the Broad-Based Black Economic

Empowerment Amendment Act, No 46 of 2013

“The Minister of Trade and Industry, Dr Rob Davies has announced that the Trumping

Provision of the Broad-Based Black Economic Empowerment Amendment Act, 2013 will

commence with effect from the 24 October 2015. This is in line with Act, No 46 of 2013

which came into operation on 24 October 2014, except for s3(b) also known the “trumping

provision”.

“Section 3 (b) also known as the “trumping provision” stipulates that in the event of any

conflict between the B-BBEE Act and other law in force immediately prior to the date of

commencement of the B-BBEE Act as amended, the B-BBEE Act will prevail if the conflict

relates to a matter dealt with in the B-BBEE Act. This trumping provision was inserted to

safeguard the objectives and spirit of transformation and was allocated a twelve (12) month

transitional period,” said Minister Davies.

In terms of s10(3) of the Amendment Act, 2013, s3(b) comes into operation one year after

the date on which the Amendment Act, 2013, was proclaimed.

The transitional period was to enable alignment between B-BBEE Act and other pieces of

legislation that speaks to economic transformation.

The general public is therefore informed that s3(b) of the Amendment Act, 2013, by

operation of law, automatically commenced on 24 October 2015.”





Corporate and Commercial Alert:

Trumping provision of the Broad-

Based Black Economic Empowerment

Amendment Act:

On 30 October 2015, the Minister of Trade

and Industry, Dr Rob Davies announced that

s3(b) of the Broad-Based Black Economic

Empowerment Amendment Act, 2013

(Act No 46 of 2013), also known as the

Trumping Provision, which commenced

with effect from the 24 October 2015, will

not immediately apply to the Department of

Mineral Resources in its application of the

requirements of the Minerals and Petroleum

Resources Development Act, 2002 to

the upstream petroleum industry and the

mining and minerals industry.

The Trumping Provision stipulates that

in the event of any conflict between

the B-BBEE Act and any other law in

force immediately prior to the date of

commencement of the B-BBEE Act, where

such conflict relates to a matter dealt with

in the B-BBEE Act as amended, the B-BBEE

Act shall prevail.

This Trumping Provision was inserted

to safeguard the objectives and spirit of

transformation and was allocated a

12 month transitional period so as to enable

alignment between B-BBEE Act and other

pieces of legislation that speak to economic

transformation. Section 3(b) of the Act,

No 46 of 2013 automatically commenced

on 24 October 2015 by operation of law

(as confirmed by notice by the Minister of

Trade and Industry issued on 23 October

2015).

The implications of the Trumping Provision

are wide reaching for those sectors that

have their own BEE regulations which are

not derived from the B-BEE Act. This is

particularly pertinent in regard to the Mining

Charter.

The exemption issued by the Minister to

the Department of Mineral Resources will

apply for a period of 12 months from the

date of publication of the notice and has

been given pending the finalisation of the

sector charters applicable to the upstream

petroleum industry and the mining and

minerals industry.

The notice states that the process of

alignment and circumstances peculiar to

these sectors necessitate more time to

finalise alignment with the B-BBEE Act and

B-BBEE Codes of Goods Practice.

Credit Law

National Credit Act, No 34 of 2005

(GG 39379; GN 1080; 6 Nov 2015)

Review of Limitations on Fees and Interest

Rates Regulations

These regulations will come into effect six

(6) months after the date of publication.

Draft Credit Life Insurance Regulations

Invitation for public comment on these

regulations in terms of s171(1)(d) (ii) of the

National Credit Act, No 34 of 2005.

Interested persons may submit written

comments on the draft regulations not

later than thirty (30) days from the date of

publication of this notice.

(GG 39407; GN 1104; 13 Nov 2015)

Data Protection and Privacy

Protection of Personal Information Act,

No 4 of 2013 (POPI)

POPI was assented to 19 November 2013,

with a limited number of its provisions

(eg the establishment of an Information

Regulator and the power for the Justice

Minister to make regulations relating to the

Regulator), taking effect on 1 April 2014.

The majority of its provisions will come into

effect on a date still to be proclaimed.

The process of appointing the Information

Regulator in terms of this Act has not been

finalized and, on 30 November 2015, the

Justice & Correctional Services committee

agreed to schedule a further workshop for

2016.

At this stage, the commencement date of

the Act will probably only be, at the earliest,

in the second half of 2016.

7 DECEMBER 2015

Employment

Employment Equity Act, No 55 of 1998

(GG 39383; GN 1085; 9 Nov. 2015)

Code of Good Practice on Employment of

Persons with Disabilities

Environment

Water:

National Water Act, No 36 of 1998

Regulations relating to access and use of

Government Waterworks and surrounding

state-owned land for recreational

purposes in terms of this Act

(GG 39348; GN 1046; 2 Nov 2015)

National Water Act, No 36 of 1998

Revision of the pricing strategy for water

use charges in terms of s56(1) of the

National Water Act

(GG 39411; GN 1154; 13 Nov 2015)

Water Services Act, No 108 of 1997

Revision of the norms and standards for

setting water services tariffs in terms of s10

of the Water Services Act, 1997

(GG 39411; GN 1153; 13 Nov 2015)

National Environmental Management Act,

No 107 of 1998

Amendment to Environmental Impact

Assessment Regulations, 2014 and Listing

Notices 1, 2 and 3 of 2014

(GG 39343; GN 1030; 30 Oct 2015)

The implications of the Trumping

Provision are wide reaching for

those sectors that have their own

BEE regulations which are not

derived from the B-BEE Act.




Waste:

Waste Management Plan (25 Oct 2015)

“The Minister of Environmental Affairs,

Mrs Edna Molewa announced that South

Africa will soon have a Paper and Packaging

Industry Plan, which will bring a significant

change in the current waste management

regime.

“Through this plan we hope that we can

commence with separation at source

from household levels. This will not only

minimise the amount of waste going to

landfills but will also unlock the economic

potential of this waste stream,” Minister

Molewa said during the official launch of

the Ekurhuleni Clean City Programme at

Tsakane Stadium yesterday, Saturday 24

October 2015.

The Paper and Packaging Industry Plan

will follow the Waste Tyre Management

Plan which has seen 31% of waste tyres

are being diverted from landfill for re-

use, recycling and recovery purposes,

while approximately 3 000 jobs and 200

Small Medium and Micro Enterprises

and Cooperatives have been established

through the implementation of the waste

tyre management plan.

It is through such Industry Waste

Management Plans that the government

continues to work towards realisation of the

right to an environment that is not harmful

to the health and wellbeing of people in

South Africa.

The Waste Information baseline study that

the DEA conducted in 2011, revealed that

approximately 108 million tons of waste

was generated, of which 97 million tons

were disposed to landfill. Only 10% of

the generated waste in South Africa was

recycled in 2011.

Minister Molewa urged all spheres of

government to uphold the environmental

right by adhering to the prescripts of

relevant legislation, particularly the National

Environmental Management: Waste Act,

2008 (Act No 59 of 2008) (NEMWA). “The

general duty of government with regard

to upholding this environmental right

as contained in the Waste Act is that all

relevant organs of state must put in place

measures that seek to reduce the amount

of waste that is generated and ensure that

waste is reused, recycled and recovered in

an environmentally sound manner before

being safely treated and disposed of,” she

said.

The NEMWA has been enacted to amongst

other matters give a clear division of roles,

responsibilities, and mandatory obligations

for the three spheres of government, private

sector and civil society. This legislative

alignment governing waste demonstrates

the government’s ambition for a clean

environment and a healthy society in South

Africa.

It is therefore not only the responsibility of

government to create a clean environment,

but the society is also equally responsible

to protect and sustain the cleanliness of

the environment. “The Act has further

placed a general duty to citizens to ensure

that they avoid the generation of waste,

but where such cannot be avoided, they

should minimise the toxicity, promote

re-use, recycle and recover the waste. This

should be done in the context of achieving

sustainable consumption and production

pattern, thereby shifting towards a resource

efficiency trajectory. It will further promote

our green economy initiatives as outlined in

a set of legislations and strategies that we

have put in place,” said Minister Molewa.

In an effort to fast track effective

implementation of the National

Environmental Management: Waste Act,

2008 (Act No 59 of 2008) (NEMWA), the

DEA has developed the National Waste

Management Strategy, which promotes

waste minimisation, re-use, recycling and

7 DECEMBER 2015

recovery of waste. It is in accordance to

this strategy that at least 77% recyclable

waste is diverted from landfill sites by 2019.

“The implementation of an industry plan

for the paper and packaging waste stream

will put value to this waste stream and

facilitate the establishment and operation

of businesses within this sector. In doing

so we hope we will in future not see all this

waste in our streets as it will move from

being “waste” to being a “resource,” said

Minister Molewa.

As such, government and waste industry

are exploring the notion of recycling

economy, which is an exciting approach

that will not only eliminate threats to

environmental quality and its integrity,

but also positively contribute to the

growth and development of South Africa’s

economy.

Minister Molewa commended the

Ekurhuleni Metropolitan Municipality

for initiating the Clean City Programme,

and called upon other municipalities

throughout the country to embark on a

similar journey to ensure that the right to a

clean environment is extended to all South

Africans.”

(Minister Molewa’s keynote address during

the Clean City launch in Ekhurhuleni 24

October 2015).

The Minister of Environmental

Affairs, Mrs Edna Molewa

announced that South Africa will

soon have a Paper and Packaging

Industry Plan, which will bring a

significant change in the current

waste management regime.




Financial Markets

Strate Rules:

Financial Markets Act, No 19 of 2012

(GG 39433; GN 256; 20 Nov 2015)

Proposed amendments to the Strate Rules

Click here for an Explanatory Memorandum

to the proposed amendments (November

2015)

https://www.fsb.co.za/Departments/

capitalMarkets/Pages/Documents-for-

Consultation.aspx

Hedge Funds:

On 20 November 2015 the FSB released a

Draft Notice-investment in Hedge Funds for

consultation.

Comments to be received on or before

close of business on 29 January 2016

Click here for the Draft Notice and the

Explanatory Memo

https://www.fsb.co.za/Pages/Home.aspx

Insurance

Cabinet approved the Insurance Bill of 2015

to be introduced in Parliament.

The Bill “provides a consolidated legal

framework for the prudential supervision

of the insurance sector that is consistent

with international standards for insurance

regulation. The Bill enhances the current

risk management, capital and governance

requirements. It replaces and consolidates

substantial parts of the Long-term

Insurance Act, No 52 of 1998 and the Short-

term Insurance Act, No 53 of 1998, relating

to prudential supervision”.

Health

Medicines and Related Substances Act,

No 101 of 1965

Draft dispensing fee to be charges by

persons licensed in terms of

s22C (1)(a)

(GN 899; GG 39190; 10 Sept 2015)

Immigration

Cabinet Statement on Immigration

Regulations (21 Oct 2015)

“Application in person:

Concessions that will take effect within the

next 3 months:

∞ Countries where no South African

missions exist, the Department of Home

Affairs (DHA) will accept applications

sent by post. Thereafter, the biometrics

and photos of those travellers will be

captured on arrival at ports of entry.

This concession will only be applicable

to visitors/medical Visa.

∞ The DHA will implement the biometrics

(including fingerprints and photos) at

ports of entry starting. The pilot sites

will be at OR Tambo Airport; King Shaka

Airport and Cape Town International

Airport.

∞ DHA will introduce an Accredited

Tourism Company (ATC) Programme

for China, India and Russia with possible

extension to other visa requiring

countries.

∞ DHA will continue to issue a long-term

Multiple Entry Visa to frequent travellers.

This will be valid for a period exceeding

3 months but not exceeding 3 years.

7 DECEMBER 2015

Concessions that will be effective within 3

months to 1 year:

∞ DHA will increase Visa Facilitation

Centres (VHC) in China, India, United

Kingdom, Nigeria Democratic Republic

of Congo, Angola, Ghana, Kenya and

Uganda. The DHA will fast-track the

opening of VFC in Zimbabwe, UAE and

Botswana.

Concessions that will be effected beyond

one year:

∞ The DHA will install systems for pre-

flight checks (including operation-

centres) at international airports.

∞ The DHA will upgrade Advance

Passenger Processing (APP) systems

and implement a Passenger Name

Record (PNR) to enhance risk

assessment.

∞ The DHA will finalise the automation of

the visa and permitting system.

Child-travel requirements: South African

children:

In respect of South African children

(outbound travel) the IMC accepted the

implementation of the current child-travel

requirements, including the parental

consent affidavits as these seek to protect

children.

Concessions to be effective within the

next 3 months:

∞ School principals will issue letters

confirming the permission for children

to travel on school tours. This authority

will also be extended to include

registered sports bodies.

∞ The validity of the Parental Consent

Affidavit will be extended to a period

no longer than 6 months.




Concessions to be effective within the next 3 months to a year:

∞ The term “Unabridged Birth Certificate” will be changed to “Birth Certificate containing

parental details”.

∞ Details of parents will be printed in passports, so that parents whose particulars are

printed would therefore not be required to carry birth certificates.

Child-travel requirements: foreign children

In respect of inbound travellers, the IMC took the position that where visas are required,

provision of original birth certificates or certified copies of required documents should

continue during the visa application process as this is in line with practise in many other

countries.

In respect of children from visa-exempt countries, the IMC recommended a dispensation in

terms of which:

∞ Travellers will be strongly advised to bring along proof of the relation and consent from

the absent parent/s or guardian/s

All the other administrative issues affecting the relevant departments will be resolved

through inter-departmental engagements.

Cabinet endorsed these recommendations and believes these will address the unintended

consequences that were raised and also the safety of the children will not in any way be

compromised.

Cabinet further endorsed that the DHA should facilitate the legal instrument to implement

the recommendations. It further mandated all the relevant departments to engage with

their relevant stakeholders to present these approved recommendations.

Cabinet extended the life of the IMC in order to be able to deal with any issues that may

arise whilst implementing the Cabinet decision.”

Tax

Tax Administration Act, No 28 of 2011

Draft Public Notice on Implementing the Common Reporting Standard in South Africa in

terms of Regulations under the Tax Administration Act, 2011 with:

∞ Briefing Notes for Non-Reporting Financial Institutions

∞ Templates for Excluded Accounts

∞ The Draft CRS Regulations

∞ The unofficial draft CRS Regulations

Comments are due by no later than 4 January 2016.





Other

Cabinet approved:

∞ The publication of the Draft African Exploration Mining and Finance Bill for public

comment. This Bill establishes the African Exploration Mining and Finance Corporation;

∞ The introduction of the Protected Disclosures Amendment Bill of 2015 in Parliament.

This Bill extends the application of the Protection Disclosures Act, No 26 of 2000,

beyond the employer/employee relationship;

∞ The introduction of the Administrative Adjudication of Road Traffic Offences

Amendment Bill of 2015 in Parliament. This Bill amends the Administrative Adjudication

of Road Traffic Offences Act, No 46 of 1998.

Bills passed by National Council of Provinces on 1 December 2015:

∞ Adjustments Appropriation Bill [B 28 - 2015]

(National Assembly – sec 77)

∞ Taxation Laws Amendment Bill [B 29B - 2015]


∞ Tax Administration Laws Amendment Bill [B 30 - 2015]


∞ Finance Bill [B 31 - 2015]


∞ New Development Bank Special Appropriation Bill [B 32 - 2015]


7 DECEMBER 2015


COMPETITION

Recent publications covered:

• Commission publishes terms of reference in supermarket inquiry

• Constitutional Court dismisses commission’s appeal in Sasol excessive pricing case

• Competition Tribunal conditionally approves tie-up between Pioneer Foods and Future

Life

• Supreme Court of appeal delivers ruling regarding the enforcement of civil claims

against successful leniency applicants

• Competition Commission conditionally approves Vodacom/Neotel deal but prohibits

MTN/Telkom deal

CORPORATE AND COMMERCIAL


• Information need not be ‘final’ in order to be ‘inside’ information

• Best Lawyers 2016 in South Africa announced

• Trumping provision of the Broad-based Black Economic Empowerment Amendment

Act

• Statement by DTI on alignment of Sector Codes with new BEE codes



4. LEGAL DEVELOPMENTS ACROSS A RANGE OF PRACTICE AREAS AND SECTORS

FOR MORE INFORMATION, PLEASE REFER TO THE FOLLOWING ALERTS/PUBLICATIONS ON OUR WEBSITE:

http://www.cliffedekkerhofmeyr.com/

en/news/

Please search under the name of

the practice area: Corporate and Commercial



en/news/

Please search under the name of the

practice area: Competition

DISPUTE RESOLUTION


• Does the investment bill usher-in a new era of unequitable treatment among foreign

investors in South Africa in ‘like circumstances’?

• Litigation costs: fronting of a different kind

• Tractor tussle round two – prescription and the rei vidicatio

• Take caution before posting: social media and defamation

• Business rescue – where will it end?

• When the head(ing) says one thing and the body says another…

• Does the Investment Bill provide any real guarantees for foreign investors?

• The future of underground coal gasification in South Africa

• A fair share approach equals success in the extractives industry

• Liars, cheats and thieves

• When can an insurer repudiate a claim on the basis of non-disclosure?

• Send in the drones: challenges facing the insurance industry



LEGAL DEVELOPMENTS ACROSS A RANGE OF PRACTICE AREAS AND SECTORS...continued



en/news/


practice area: Dispute Resolution

EMPLOYMENT AND IMMIGRATION


• Can unions still wash their hands of the unlawful conduct of their members during a

strike?

• The fairness of dismissals based on zero tolerance policies

• The tax free nature of a voluntary severance package

• Employment Services Act came into effect on 9 August 2015

• Access to fatal inquiry reports under the Occupational Health and Safety Act

• Retrenchment: the need for proper and sufficient consultation

• Retrenchments and the duty to consult

• Retrenchment: When is the duty to consult triggered?

• Stairway to compensation: Minister of Defence and Military Veterans v Liesl-lenore

Thomas

• Consulting when the trade union won’t play ball?

• Condonation, specific performance and reinstatement awards: what’s the latest news

from our courts?

• Judgment on the interpretation of the “deeming provision”: sole or dual?

• Using cost to company and overstaffing as retrenchment criteria

• Are automatic termination clauses enforceable?

• Retrenchments: collective agreements and the obligation to consult

• Is there a duty to re-employ a retrenched employee?

• Will an employee on long-term sick leave be transferred in terms of Section 197?

• The CCMA cannot always be at fault

• Strike Diaries for the Department: Why is it important to complete a LRA form 9.2?

• Retrenched employees fail to notify liquidators

• “Like” or not: the ramifications of the landmark EU Facebook case

• The end of a strike dictates the end of replacement labour

• A change in the terms and conditions of employment or a mere workplace practice?

• Our new Retrenchment Guideline answers all your FAQS

• Is the termination of employment for operational requirements, where the prescribed

time periods are not adhered to, an invalid dismissal?

• Hot off the bench: the enforcement of CCMA Arbitration Awards under the LRA

amendments






en/news/


practice area: Employment

ENVIRONMENTAL


• New onerous regulation and financial implications for residue stockpiles and deposits

• First industries may be required to submit waste management plans

• New Waste Act admission of guilt fines: A sufficient deterrent?

• Administrative fines for unlawful commencing listed activities – Potential increased risk

of maximum fine being imposed

• Platform for air emission offsets

FINANCE AND BANKING


• National Credit Act, No 34 of 2005 (NCA): Implementation and Enforcement of the

Affordability Assessment Regulations

• Listed derivatives: error trades & agricultural products





en/news/


practice area: Finance and Banking



en/news/


practice area: Environmental


TRUSTS AND ESTATES

Recent publications covered :

• Trust Taxation



en/news/


practice area: Trusts and Estates

PRO BONO AND HUMAN RIGHTS


• United Nations Global Compact ‘Communication in Progress’

• Supreme Court of Appeal clarifies Public Protector’s role

PROJECTS AND INFRASTRUCTURE


• New Ministerial Determinations issued by South Africa’s Minister of Energy

• The Transport and Rail sector under review





en/news/

Please search under the name of

the practice area: Projects and Infrastructure



en/news/


practice area: Pro Bono and Human Rights


TAX


• Taxation of trusts in the future

• Carbon tax in South Africa

• The tax free nature of a voluntary severance package

• Scope of capital gains tax liability broadened

• Ruling on issue of capitalisation shares

• New binding private ruling issued in respect of renunciation of a usufruct over shares

• Public benefit organisations – provision of funds, assets or other resources to

associations of persons

• Beware of VAT zero-rating on sale of commercial property

• Improved tax allowance for photo voltaic power plants

• Voluntary disclosure relief to be widened

• Davis Tax Committee: First interim report on mining

• Validity of attachment of shares to found or confirm jurisdiction

• Energy sector license and consent charges: capital or revenue?

• The definition of ‘controlled group company’ and ‘equity share’

• Disposal by share block company of sectional title units to its shareholders

• Disclosure to SARS and the treatment of pay-as-you-earn

• Market value of shares on valuation date

• Finality of advance payments by non-residents disposing of immovable property

• Another ruling on the capitalisation of shareholder loans

• The OECD/G20 base erosion and profit shifting (BEPS) project – an informed

perspective

• Merger of controlled foreign companies

• Changes to the Income Tax Return for Trusts

• Is dividends tax payable on the distribution of dividends to employees through a

discretionary trust?

• Amendments to the tax treatment of disposals by incentive trusts

• Adjustment of energy savings tax incentive

• Interest’ for purposes of Withholding Tax on Interest (WTI)

• Tax consequences of a liquidation distribution followed by an amalgamation transaction





en/news/


practice area: Tax


FINANCIAL AND CORPORATE

RECOMMENDED

FIRM

2016



BBBEE STATUS: LEVEL TWO CONTRIBUTOR

This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in

relation to any particular situation. Cliff e Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication.

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