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NCOP approves Covid-19 Tax Bills

The National Council of Provinces (NCOP) has passed the Disaster Management Tax Relief Administration Bill, the Disaster Management Tax Relief Bill and the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill.

The three bills were approved during the NCOP’s virtual plenary on Thursday.

Disaster Management Tax Relief

The Disaster Management Tax Relief Administration Bill and Disaster Management Tax Relief Bill, commonly referred to as the Covid-19 Tax Bill and the Covid-19 Tax Administration Bill, were introduced by Finance Minister Tito Mboweni together with the special adjustment budget on 24 June 2020.

The adjustment budget was promulgated to deal with and minimise the impact of the Covid-19 lockdown and the resultant economic downturn.

The two Bills were passed with amendments by the National Assembly on 25 August 2020.

Having considered them, the Select Committee on Finance recommended the NCOP pass them with those amendments.

Prescription in Civil and Criminal Matters Amendment Bill

The Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill aims to amend the Prescription Act, 1969, so as to extend the list of sexual offences in respect of which prescription does not commence to run under certain circumstances regarding a debt that is based on the alleged commission of any of those sexual offences.

It also amends the Criminal Procedure Act, 1977, so as to extend the list of sexual offences in respect of which a prosecution may be instituted after a period of 20 years has lapsed since the date of the alleged commission of the sexual offence, and to provide for matters connected therewith.

The NCOP, having considered the bill, accepted it without any proposed amendments.

The three Bills will now be sent to the President for assent.

Provisional suspension of magistrate Bodlani

During the same sitting, the NCOP also confirmed the provisional suspension from office of the Acting Regional Magistrate of Umlazi, Kholeka Bodlani.

The provisional suspension follows allegations of misconduct levelled against Bodlani.

Accession to Treaty of Amity and Cooperation

The sitting further approved South Africa’s accession to the Treaty of Amity and Cooperation (TAC) in South East Asia.

The Treaty aims to formalise diplomatic relations with the Association of South East Asian Nations (ASEAN).

It will also contribute to the elimination of tariffs between member States, which will in turn lead to reduced prices and more investment opportunities.

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Covid-19 is no excuse for unfair dismissals

The pandemic brought with it a slew of realisations for business owners; one such an epiphany is how most organisations need fewer employees to remain functional. But using Covid-19 as a reason for retrenching a surplus of employees constitutes as unfair dismissal, warns Advocate Tertius Wessels, Legal Director, from Strata-G Labour Solutions.

“Businesses are understandably struggling and have decided to restructure to become more efficient with less staff. But the termination of employees even as a result of the pandemic and the loss of income that followed, without following due process, is a violation of fair labour practice. Forging ahead without conducting proper consultation can lead to costly consequences for businesses,” explains Wessels.

He says employees who feel they were dismissed unfairly can challenge their dismissal by referring their cases to the Commission for Conciliation, Mediation and Arbitration (CCMA) or any appropriate dispute resolution body.

“According to legislation, the employee can be entitled to any one of three reliefs. The first is a reinstatement into their position, with all the backpay for loss of income. The second relief is re-employment where the employee would be considered as a new employee, and the last option may involve compensation where the aggrieved employee could be entitled to a maximum of 12 months salary,” Wessels explains.

But employees may also run into a problem of waiting. According to the CCMA when compared with last year July, the number of employees who were likely to be affected by retrenchment was in the range of about 5,728. But over the same month in 2020, the number of affected employees who are likely to be affected by retrenchment is around 22,722.

This has created a bottleneck and has slowed down the number of cases that can be resolved expeditiously.

Wessels says the law is clear on employers using Covid-19 as a reason to retrench employees and organisations must further ensure they do not discriminate against employees that have tested positive for the coronavirus.

“Even at a capacity level when an employee is isolating at home and is not coming into work for 14 days, the employer does not have grounds to terminate that contract. They may have grounds if that employee refuses to return to work, citing Covid-19. In that case, it becomes about the capacity of that individual and what their employment contract stipulates,” says Wessels.

“Any company that is about to embark on restructuring must have a clear strategy on how they will facilitate the process and who are the people that they will need to consult with. They need to understand what the expectations are surrounding the process. Retrenchments are not just a tick box exercise. There has to be meaningful engagement and that can only be done if there is proper planning from the beginning.

“This goes even for companies that have closed shop as a result of Covid-19. They must adhere to legislation with regards to dismissals. The easiest way to avoid being on the wrong side of the law once you have decided to embark on retrenchments, is to involve a professional body who understands how the process works,” concludes Wessels.

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New tax bill: Taxpayers could be criminally liable for honest mistakes

Section 34 of the draft Tax Administration Laws Amendment Bill, 2020 proposes to amend section 234 of the Tax Administration Act, 2011 (TA Act), to remove willfulness (intention) from the range of acts that constitute an offence under the Act, and which are subject to a maximum penalty of two years' imprisonment. This is a concerning erosion of the safeguards against criminalising inadvertent mistakes by taxpayers.

Section 234 of the TA Act provides that a person may be guilty of an offence if he or she willfully and without just cause fails or neglects to perform a number of acts, including but not limited to notifying the South African Revenue Service (Sars) of a change in registered details (addresses, bank accounts and email addresses), a change in public officer, submitting a return or document to Sars, responding to a request for documents or information from Sars, maintain records or pay taxes when due.

In Memorandum of Objects of the draft bill, the government submits that the current wording of section 234 of the TA Act, requiring proof of intention by a taxpayer, substantially undermines the ability of Sars to ensure compliance based on the objective standard expected of the reasonable person, and hampers the criminal prosecution of non-compliant taxpayers by the National Prosecuting Authority in seeking to prove the elements of the crime.

Proof of intention

However, it has always been the case that a wide variety of crimes require proof of intent. While a person’s subjective intent may be difficult to establish in some circumstances, it is often inferred from the person’s conduct.

Further, the presumption that a statutory crime requires proof of intention, instead of negligence, or strictly liability, is in order to avoid the injustice and hardship that may result from the serious punishment that may imposed in the event that the accused is found guilty.

These considerations do not appear to concern the government, and it is likely that if passed, the threat of criminal sanction will be used by Sars to force taxpayers to comply with their obligations, particularly relating to the filing of returns and payment of tax debts.

However, regardless of Sars’ intentions this proposal is particularly concerning, in light of common occurrences such as:

  • Supporting documents being misplaced, or clerical errors, which result in adjustments to VAT returns by Sars. As VAT is a self-assessed tax, any adjustments to the return inevitably results in the taxpayer having failed to pay VAT to SARS timeously;
  • Late payments of VAT or PAYE by businesses, where a payment is only released late on a Friday night, and is not received by SARS until the next day; and
  • Taxpayers that are unaware that may have a tax liability due to increasing complex provisions of the tax Acts, and fail to pay the correct amount of VAT or PAYE to Sars timeously.

In all of these circumstances, Sars is able to impose penalties on taxpayers (as it often does), which makes the need for the amendments to section 234 of the TA Act, and additional criminal sanctions, questionable.

Further, while it has, in the last few years, been uncommon for Sars to seek criminal prosecution of taxpayers except in the most egregious cases of non-compliance, we should all be concerned that this position could change at any time if the amendments to the TA Act are passed, and taxpayer’s could be criminally liable for inadvertent errors.

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How Dis-Chem customers changed their shopping behaviour during lockdown

In a trading update for the 24 weeks from 1 March to 15 August, listed pharmacy retail group Dis-Chem said online sales grew 344%. The company said that the quick deployment of additional hubs together with an investment in its e-commerce platform enabled it to meet the increased online demand during the lockdown period "as best as possible".

"Covid-19 has matured the e-commerce environment and consumer adaption by 3 to 5 years," the group said.

During the 24 week trading period, Dis-Chem recorded revenue growth of 8.8% to R11.7bn, with the group largely allowed to continue operations during lockdown. However, despite being an essential service provider and trading throughout the lockdown period the hard lockdown regulations that were implemented restricted the group from selling all its products and trading within its usual operating hours.

During Level 5, Dis-Chem was unable to sell 20% of its products, including higher-margin products from its Beauty category. Lost revenue as a result of the restriction was approximately R200m for April.

Changes in sales and gross margin mix

Dis-Chem said the various restrictions during each level of lockdown dramatically changed the shopping behaviour of its customers. "Fashion and entertainment are the biggest drivers of footfall in malls. As such, the location of our stores in convenience centres vs malls played a vital role in the composition of turnover growth," the group noted.

Sales at convenience centres rose by 16.4%, but fell by 7.8% at shopping malls over the reporting period. During Level 3 – 1 June 2020 to 15 August – Dis-Chem noted 17% growth in convenience centres, but a 5% decline in sales in shopping malls.

The group experienced a change in its sales and gross margin mix due to sales restrictions during Level 5 of lockdown, with the sales of lower margin Covid-19 related products increasing and reduced impulse purchases because of lower foot traffic. Covid-19 related products represented approximately 9% of total retail sales and 13.8% of front shop sales. The group said it's slowly starting to see the sales and gross margin mix normalise

"As a result of social distancing, increased sanitising measures, people working from home and children not going to school, the country experienced fewer cold and flu cases than in previous years. This adversely impacted the dispensary category, specifically over the counter (OTC) sales. Strong chronic drug adherence due to health education, awareness and higher patient risk, partially offset the impact," Dis-Chem said.

Non-essential product sales restrictions hurt the retailer's higher-margin Beauty category sales with two of its biggest promotions, Beauty Fair and Mother’s Day, falling within the lockdown period. This category was also impacted by the group's large flagship stores located in malls, trading down.

In the Baby category, Dis-Chem experienced pre-lockdown stocking up, adversely affecting sales during the lockdown period. "Expecting mothers were the most cautious shoppers, which contributed to both the decline in in-store purchases and the exponential online sales growth in this category," the group noted.

Improved health awareness

"Healthcare and Nutrition performed exceptionally well as customers increased their spend on vitamins and immune boosters. Sports supplement sales within the category declined vs the corresponding period as a result of the closing of gyms and cancelling of sporting events," Dis-Chem said. The group, however, believes that Healthcare and Nutrition will continue to take an additional share of customers' wallets as a result of improved health education and awareness in light of the pandemic.

Dis-Chem Pharmacies chief executive Ivan Saltzman said that despite the negative factors that constrained regular trading, the group remained committed to meeting the needs and demands of of its customers.

"We continue to benefit from the resilient nature of the industry in which we operate and are encouraged by elements of the changing healthcare landscape that highlight the importance of our core dispensary and clinic offerings. We are excited about the growth we have seen in our clinics, which together with our Telemedicine offering, will play an important role in the delivery and growth of the primary care market within South Africa’s healthcare system," Saltzman said.

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Stay on the right side of Covid-19 regulations

As Covid-19 cases continue to rise sharply in South Africa, employers will be under increased pressure to ensure that their workers are operating under conditions of safety and protection.

Companies are required to ensure their strict compliance with the various acts and Covid-19 regulations, including the Occupational Health and Safety Act, Labour Act, Consumer Protection Act, Disaster Management Act and more.

The amendments to the alert Level 3 regulations following President Cyril Ramaphosa’s national address on 12 July, also involve a shift towards greater individual responsibility from employers and employees when it comes to meeting Covid-19 workplace obligations.

Greg Brown, divisional director: legal information and compliance at LexisNexis South Africa, sums up the obligations below:

  1. All businesses permitted to operate must appoint a compliance officer to oversee compliance with Covid-19 in the workplace and must develop and implement a Covid-19 workplace plan that sets out specific measures in place to comply with Covid-19 workplace regulations.
  2. Large companies (with more than 500 employees) must submit a risk assessment and written policy about how the health and safety of its employees will be protected against Covid-19. All workers must be notified about the document and its contents. A manager must be appointed to address employee concerns and to keep them informed.
  3. Employers are required to provide protective equipment for workers and must implement measures to screen employees and visitors for symptoms, as well as facilitate social distancing within the workplace, including staggered working hours, rotation, shift systems or remote working.
  4. Those who don’t adhere to their legal duty to protect their employees and business stakeholders may face consequences including fines, legal action and shutdown orders, depending on the nature and severity of the transgression.
  5. In addition, the alert Level 3 regulations explicitly require that special measures must be implemented in the workplace to facilitate the safe return of employees who are over 60 or have comorbidities.
  6. The alert Level 3 regulations also provide that employers operating under sector or industry-specific bodies may in addition be required to implement sector-specific health protocols to limit the spread of Covid-19. These bodies are required to develop these protocols in consultation with the Department of Health, where there are high health risks.
  7. The latest amendments to the alert Level 3 regulations include implementing stricter health and safety protocols and enforcing compliance with these, while aiming to facilitate as much economic activity as possible. Employers and property owners should be aware that the amended regulations pose greater risks of liability for non-compliance than previous versions.
  8. Considerable attention is given in the latest amendments to increased reliance on cloth face masks or other appropriate items to cover both the nose and mouth. No person is permitted in any public space without a mask and all employers are now required to ensure that every employee is wearing a facemask while performing their duties on the business’s premises, regardless of whether the employee is exposed to the public in the course of their work.
  9. To limit their liability, owners or landlords should impress upon security personnel or other designated officials the importance of each person wearing a facemask and wearing it correctly. Signage and patrols enforcing the wearing of masks may also be required.
  10. Employers must report any diagnosis of Covid-19 at work to the Department of Health and the Department of Employment and Labour, investigate the cause and take appropriate measures including supporting any contact tracing measures initiated by the Department of Health.

If you would like to stay on the right side of Covid-19 regulations, visit the LexisNexis Covid-19 Compliance Hub, where you’ll find handy resources, such as all the latest Covid-19 regulations across all sectors, as well as a useful Covid-19 Compliance Checklist, Covid-19 Incident Report or the OHSA Covid-19 Cleaning Procedure to help you curb the spread of Covid-19 and avoid penalties for non-compliance.

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POPIA's impact on the estate agent-property buyer relationship

South Africa will move to Level 2 of the national lockdown at midnight tonight, five months after President Cyril Ramaphosa declared a national state of disaster to combat Covid-19.

“As we look back at the past five months, all indications are that South Africa has reached the peak and moved beyond the inflection point of the curve.

“Most of our health facilities have proven resilient, capable and able to withstand and deal with the surge,” he said.

According to the president, modelled projections of infections, hospitalisation and deaths have had to be adjusted downwards, as the country is recording better progress in the management of the disease.

“The move to level 2 means that we can remove nearly all of the restrictions on the resumption of economic activity across most industries,” Ramaphosa said.

The following changes will take effect under Level 2:

  • All restrictions on inter-provincial travel will be lifted.
  • Accommodation, hospitality venues and tours will be permitted according to approved protocols to ensure social distancing.
  • Restaurants, bars and taverns will be permitted to operate according to approved protocols as to times of operation and numbers of people.
  • Restrictions on the sale of tobacco will be lifted.
  • The suspension of the sale of alcohol will be lifted subject to certain restrictions.
    • Alcohol will be permitted for on-site consumption in licensed establishments only up until 10pm.
    • Liquor outlets will be allowed to sell alcohol for off-site consumption from Monday to Thursday during the hours of 9am to 5pm only.
  • Restrictions on family and social visits will also be lifted, although everyone is urged to exercise extreme caution and undertake such visits only if necessary.

The following restrictions will remain in place:

  • Current restrictions on international travel will remain in place.
  • No gatherings of more than 50 people will be permitted. Among others, this includes funerals and religious events.
  • Spectators will not be permitted at sporting events.
  • The curfew will remain in place between the hours of 10pm and 4am.

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POPIA's impact on the estate agent-property buyer relationship

When shopping online the right to the protection of how one's 'details' is collected and processed is something consumers should be aware of, as should the responsible parties who can suffer significant legal and financial repercussions should they contravene the provisions of the Protection of Personal Information Act (POPIA) which came into effect on 1 July 2020.

Stephan Haynes from Gillan & Velhuizen Inc expands on why POPIA is very important for real estate players, and property buyers and sellers alike.

Real estate players

As a responsible party you must also be POPIA compliant. You are also encouraged to include compliancy clauses in your service agreements with third-party vendors and should review all such existing contracts to ensure compliance.

For an entity to become compliant with POPIA, the following issues need to be considered:

  1. Educate executives on the “do’s and do not’s” of POPIA;
  2. Arrange the appointment of an information officer;
  3. Review and update your policies (privacy policy; data protection policy, personal information sharing policy, BYOD; password policy; document retention policy, etc.);
  4. Review and update operations contracts;
  5. Review and revise internal policies and practices.

Furthermore the Act states that personal information may only be processed if:

  • “processing is necessary to carry out actions for the conclusion or performance of a contract to which the data subject is party;
  • protects the legitimate interests of the data subject; processing complies with for the proper performance of a public law duty by a public body;
  • for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied”.

Bottom line, adds Haynes, is that the days of routinely collecting and then storing personal information are over and responsible parties must conform to the practice of less is more by only collecting personal data for justified purposes.

Prospective buyers, sellers, tenants, landlords

Few prospective buyers are aware of their rights in terms of how personal information may be used; that they are entitled to the option to ‘opt-in’ and/or bar, in this instance the estate agency, from using your personal information.

It is worthwhile noting that personal information is a very broad term. POPIA lists some examples, which include demographic information, personal records, biometrics, personal opinions and identifying information. POPIA further distinguishes “special personal information” as comprising personal information pertaining to religious beliefs, race or ethnic origin, trade union membership, political persuasion, health or sex or biometric information and criminal behaviour of the data subject.

“Most importantly, the processing of special personal information is prohibited without the consent of the data subject and may only be processed if the requirements for consent and justification have been met,” cautions Haynes. The collection of your personal information must be obtained directly from you unless the information contained is derived from a public record or has deliberately been made public by yourself. For this reason, Haynes warns data subjects to carefully consider the personal information you publish online as you may unwittingly be making your personal information ‘fair game’.

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The Covid-19 chatbot that saved lives

In the days following South Africa's first case of Covid-19, WhatsApp chats were littered with doomsayers, mask makers and wildly-priced hand sanitisers. And worst of all, there was a lot of fake news being spread by the well-intentioned yet ill-informed.

Meanwhile, over at, they were busy using WhatsApp for good, building the Covid-19 chatbot using their social impact product Turn. The WhatsApp-based helpline supports people with Covid-related health queries, and points them in the direction of accurate info if needed.

The bot was picked up by the National Department of Health, the World Health Organisation and various governments including Australia, New Zealand, Ethiopia and Mozambique. So it’s no surprise that it was used by a million people in the first three days, and more than 20 million since.

The roaring success meant that they were inundated with requests, and approached sister company for assistance. While their work to date has involved automation and natural language understanding (NLU) through their AI-powered platform Feersum Engine, it’s their exploratory data analysis that made the big impact with the Covid-19 chatbot.

Exploratory data analysis (EDA) with topic modelling and phrase clustering means that conversation logs can be analysed quickly, and modifications can be made if necessary. In this case, however, the data analysis has made a much bigger impact – it has supported effective decision-making in the South African government’s response to Covid-19.

EDA – as much as automation and NLU – is an essential component of any intelligent chatbot. Praekelt’s Feersum Engine applies these technologies to chatbot services for the likes of DStv, Absa and MTN, using WhatsApp to reach millions of people in their own language at any time of the day or night. The data analysis technology currently being developed allows these companies to get fast and effective feedback from the people using their chatbot services.

After working on many commercial chatbots, Praekelt’s Head of NLP and machine learning, Bernardt Duvenhage, relished the opportunity for his team to put their expertise to use in a different way on the Covid-19 chatbot. He said: “It was very fulfilling to see our team apply their experience in exploratory data analysis and machine comprehension to such a worthwhile pursuit.”

Exploratory data analysis is not the only technology that has contributed to one of the world’s most used chatbots. Response automation, machine learning and NLU have also played their parts.

Response automation

Given the interesting ways in which users choose menu options, this type of automation is incredibly helpful in getting them where they need to be. For instance, whether someone types the word one, or punctuated variations of the number one, the bot understands the intent behind what they’re saying, and responds appropriately.

Machine learning and NLU

Natural language understanding (NLU) allows the bot to have conversations with a user, answering their queries based on frequently asked questions. It provides potentially life-saving information in multiple local and international languages. At the same time, it eases the pressure on call centres, because intelligent automation means we can help more users than is humanly possible.

The Covid-19 service has been made freely available by and Turn to any ministry of health worldwide.

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Managing a company during Covid-19: SA directors and their duties

The effects of Covid-19 on the economy has led to many companies facing the possibility of being declared financially distressed. The mounting pressure on directors to appropriately fulfil their duties in response to this crisis will continue into the foreseeable future.

Risk advisory: Practical considerations and steps for directors

While South Africa waits to see just how devastating the effects of Covid-19 will be, boards must implement good governance and put contingency plans in place to cope. Companies must assess the viability of their business model, while considering employee safety, availability of government assistance and the need for additional or modified disclosure (for instance, guidance on revenue). Some ways in which this can be done are:

Conduct regular board meetings and keep detailed minutes
Every material decision of a company must be recorded to keep stakeholders informed. In times of distress, situations can change rapidly and it is crucial that a plan is put in place of how to return to financial health. Regular reviews of those plans must be undertaken and recorded. Boards should regularly address safety issues and mitigation protocols during board meetings.

Focus on managing cash flow
An honest appraisal of the financials should be undertaken to have a clear picture of the financial position of the company and whether it is indeed financially distressed or heading towards a point where carrying on business operations would constitute reckless trading.

The Companies and Intellectual Property Commission (CIPC) released a practice note providing that it will not invoke its powers under section 22 of the Act (‘Reckless trading prohibited’) for the time being, in the case of a company which is temporarily insolvent and which continues to carry on business or trade. In doing so, the CIPC must have reason to believe that the insolvency is due to business conditions caused by the Covid-19 pandemic. This practice note will lapse within 60 days after the declaration of a national disaster has been lifted. However, it is important to note that the CIPC has merely given an indication of its practice. This practice note does not release a company from its statutory obligation under section 22 of the Companies Act. The board of a company is still obliged to fully apply the solvency and liquidity test wherever required by the Act.

Equal treatment of creditors
Boards need to make sure that creditors are not preferred. Dispositions without value must not be made prior to formal insolvency procedures being implemented. The board needs to limit exposure if it seems unlikely that the company will not be able to trade out of its financial position.

Review the company’s contracts
Boards should check the terms of existing contracts for protection of the company, including revising the force majeure clauses where possible, or including express ‘infectious disease’, ‘lockdown’ or ‘pandemic’ wording into new contracts.

Review the company’s insurance programme
Boards should ensure that insurance arrangements can cover Covid-19 related cancellations or business interruptions and seek professional advice on the adequacy of the company’s D&O insurance coverage.

Ensure ongoing communication and engagement with all stakeholders
It may be required by the JSE listing requirements for listed companies to update their stakeholders with all material information. It is recommended that all companies keep their stakeholders informed so as to bolster the support of the boards’ management by its stakeholders.

Consult with experts in respect of Covid-19 issues
Apart from staying on top of developments in respect of Covid-19, including changes to laws and government programmes, directors should consider seeking expert advice on Covid-19 issues. Expert advice includes legal opinion as well as advice of financial advisors, in order to better understand the company’s exposure to risk and financial projections.

Corporate restructuring
Where it is unlikely that a distressed financial situation will improve post-pandemic or where a company will not be able to trade out of its position, boards need to consider implementing corporate restructuring techniques. Corporate restructuring may involve cost reductions, attempts to raise funds through the issue of shares, loans or disposals (for fair value), attempts to negotiate a debt standstill and debt restructuring, or placing the company in business rescue or proposing a voluntary liquidation.

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Report examines food price drivers and discrepancies during pandemic

The Competition Commission has said that of the 1,600 complaints received under the excessive pricing and consumer protection regulations by the end of June 2020, 307 (or 19%) related to basic food products in retail stores.

According to the Commission, food constitutes 30% of low-income household expenditure and is essential for maintaining a healthy immune system, so containing price inflation is a priority during the crisis.

Earlier this week, the Commission released a report on food price monitoring, culminating from its efforts on enforcement aimed at containing excessive pricing and price gouging on essential food items, in addition to face masks and hand sanitisers, during the Covid-19 pandemic.

Drivers of price increases in food markets

The Commission said the report highlights its efforts in monitoring pricing food commodity and fresh produce markets upstream which were subject to some initial price increases too. The food price monitoring report identifies rand depreciation and panic buying as partial drivers of price increases in food markets at the beginning of the crisis. However, these have been exacerbated in some cases by markets not functioning efficiently in addition to instances of price gouging by retailers.

For instance, the Commission found that the lack of liquidity in smaller fresh produce markets makes them vulnerable to larger price movements and possible manipulation by agents. "This resulted in advocacy to ensure compliance with the regulations across all fresh produce markets nationally," the Commission said.

The Commission also found that some food suppliers and retailers were prone to increasing prices based on higher cost announcements but before the higher cost stock reached their shelves. Through enforcement of the regulations and advocacy with the larger food suppliers, the Commission has sought to eliminate this practice.

Prices now stabilised

The report has also established that the forces that initially drove up prices in food markets have since subsided and prices have now stabilised. This means that some of the initial cost justifications for some food price increases in retail stores no longer exist and consumers should be seeing price reductions coming through from food companies and retailers.

However, the experience in the past is that food prices are quick to go up and slow to come down, another market feature that needs to be corrected. The Commission will therefore remain vigilant and continue to enforce the price gouging regulations to ensure that consumers benefit from the lower costs for food.

Disparity between market and retail prices

The monitoring of how food markets have responded to the crisis has also exposed some other underlying features which warrant further investigation, the Commission said. Amongst these is the large disparity between food market prices and retail prices that continues to raise serious questions as to the distribution of risk and profits in the value chain.

"Farmers appear to be exposed to almost all the price movement risk but most of the profits lie with agents, distributors, food companies and retailers," the Commission said.

Related to this, the Commission is concerned about some of the high markups it has seen for fresh produce and essential foodstuffs in some retail stores both pre and post the crisis. This is potentially related to the exclusive leases which have been prevalent in the retail industry and which the Commission is looking to end through voluntary settlement or otherwise litigation.

The Commission said it will continue to monitor food prices throughout the Covid-19 crisis in order to ensure that vulnerable low-income households suffering under the economic crisis are protected. "Where excessive pricing is identified, the regulations will be enforced, and where markets fail to function efficiently, the Commission will investigate how these failures may be corrected.”

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Companies fined for Covid-19 price gouging

South Africa's alcohol industry has expressed its disappointment with the government's decision to reinstate the ban on the sale and distribution of alcohol, which comes into immediate effect today.

Alcohol industry associations - including National Liquor Traders Council, South African Liquor Brandowners Association (SALBA), the Beer Association of South Africa (BASA), Vinpro, the Liquor Traders Association of South Africa (LTASA) and manufacturers – said in a joint statement that they've have engaged continuously with the government and especially the Department of Trade, Industry, and Competition (DTIC) over the past month regarding the efforts put in place to ensure compliance with regulations (limited trading days and hours) as well as adherence to the safety protocols in formal retail and taverns.

Despite these engagements, the industry was given no warning about the ban, nor an opportunity to consult with the National Coronavirus Command Centre (NCCC) before a decision was made, and no consideration was given to the immediate logistical difficulties it poses for both suppliers, distributors and retailers alike.

The industry says it complied with all the commitments agreed with government ahead of the reopening of the supply chain on 1 June to enable a safe environment for the sale of alcohol. Indeed, there have been no instances where taverns have not complied with the regulations.

Immediate prohibition "deeply troubling"

"President Cyril Ramaphosa’s decision to reinstate the nationwide ban on the sales, dispensing, and distribution of alcohol with immediate effect is deeply troubling. The industry shares with the Government its concerns regarding the increase in Covid-19 infections and will continue to support efforts to curb this unprecedented health emergency.

"This includes prioritising lives and safeguarding livelihoods across the sector during this pandemic while ensuring that we adhere to safety, responsible trading, and the sensible consumption of alcohol. We will continue to offer unanimous support in placing its assets at the availability of Government in fighting this pandemic," the industry said.

The industry reiterated its commitment to partner with government to create "a social compact that drives behavioural change regarding the use and consumption of alcohol". The industry initiated contact with the government in this regard on 6 July and awaits a response.

Billions lost in revenue

"The liquor industry has a wide and deep value chain employing almost one million people across the country. The Government’s decision has serious economic consequences, placing hundreds of thousands of livelihoods at risk.

"The hardest hit will be the significant number of smaller retailers and taverners. The immediate enforcement of the ban will have other unintended consequences which include further job losses throughout the value chain," the associations said.

During the 9-week lockdown, the alcohol industry lost R18bn in revenue and R3.4bn in excise tax (Excise tax is lost from the growth in sale of illegal alcohol products which don’t pay taxes.)

Fuelling growth of illicit market

The industry points out that as witnessed during the initial suspension of alcohol sales, further restricting legal trade will fuel the growth of the illicit market. It also creates security concerns for liquor outlets.

"The illicit market is outside the regulatory reach of government and operates mostly uncontrolled. For this restriction to be viable, it must be accompanied by considerably increased law enforcement in this part of the market," the statement said.

The industry said it recognises the need to balance the risk to lives with maintaining livelihoods. In addition to the economic consequences that threaten livelihoods, the contribution by the industry to the fiscus will be severely compromised, at a time when tax revenue is coming under increased pressure.

"While we acknowledge the urgency of the situation, it is crucial to understand the complexity of alcohol-related trauma so that we can sharpen our focus on the most effective interventions and also measure their impact against a shared understanding of the facts and the problems. This requires access to health and alcohol-related information in private and public sector hospitals and clinics which government has never shared with industry.

"We believe that a more useful approach would be targeting problematic drinking to manage and achieve long-term, lasting changes. The regulation imposed has a significant negative economic impact and could have been designed in a less damaging manner, but with the same alleviation of the impact on the healthcare system," the associations said.

"We reiterate our commitment to partner with the government to create a social compact that drives behavioural change regarding the use and consumption of alcohol though countering unacceptable and irresponsible consumption; intervention programmes and enforcement of policies to address gender-based violence (GBV) and effect behavioural change; firm interventions against drinking/driving and walking with renewed practical support for enforcement in collaboration with the Department of Transport and the RTMC (Road Traffic Management Corporation) and dealing with illicit trade and enforcement. In this way, we can work together to create a social compact that not only works to save lives but also preserve livelihoods," the statement concluded.

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Companies fined for Covid-19 price gouging

The Competition Tribunal has been clamping down on companies that have been hiking prices of sanitisers and masks since the Covid-19 outbreak.

On Friday, the Tribunal said it had confirmed two consent agreements relating to Covid-19 exorbitant pricing complaints, bringing the total to 20 since April.

“All of these agreements relate to the alleged excessive pricing of goods, such as sanitisers and face masks, used by consumers in the context of the Covid-19 pandemic,” the Tribunal said.

After investigating complaints from the public, the Tribunal found a Bloemfontein-based company, Vasilis Supermarket T/A Vasilis Cleaning Supplies, has contravened the Competition Act.

The store sells products online for nationwide distribution and does not manufacture its products but sources these locally and internationally, the Tribunal said.

The Tribunal received information about the alleged excessive prices charged by Vasilis for different types of surgical gloves, surgical masks and dust masks.

“The Commission concluded that Vasili’s conduct of significantly escalating margins on surgical gloves and face masks without any corresponding increases in costs during the period February to April 2020, is a contravention of section 8(1)(a) of the Competition Act read together with Regulation 4 of the Consumer Protection Regulations,” the statement said.

Vasilis does not admit that its conduct constitutes a contravention of the Competition Act.

However, they have agreed to desist from pricing excessively by reducing its gross profit margins applicable to the sale of surgical gloves and facemasks to an agreed maximum percentage with immediate effect for the duration of the State of National Disaster.

The company says it will also donate essential goods amounting to R243,148.70 to three charities, Mangaung Society for Care of the Aged, Boiketlong Old Age Home and the Hearts2Hand Foundation.

The company will also contribute R44,128.51 to the Solidarity Fund and develop and implement a competition law compliance programme.

Meanwhile, Sanitech, a division of Waco Africa, has also been accused of inflating prices.

Sanitech is a supplier of sanitation facilities and offers professional washroom hygiene services through several branches nationwide.

“The Commission accuses the company of charging excessive prices for five-litre hand sanitisers during March and April 2020,” the Tribunal said.

In addition, while the company does not admit to any wrongdoing, Sanitech agrees to resolve the complaint through several remedies set out in the consent agreement.

Sanitech has also agreed to donate R65,028 to the Solidarity Fund; stop the excessive pricing; reduce its gross profit margin on hand sanitisers for the duration of the State of National Disaster.

They will also develop and implement a competition law compliance programme.

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Labour and employment: rebuilding and restructuring post lockdown

With the easing of the nationwide lockdown in response to the Covid-19 pandemic through the Government's "Risk Adjusted Strategy" (comprising of five lockdown levels), more and more business can lawfully operate again. As a result, employees will be returning to work and employers will be obliged to remunerate them again. The unfortunate reality, however, is that environment within which businesses will now operate is vastly different to that which existed prior to the lockdown. An altered business climate coupled with a reduction in demand for certain services and goods may leave a number of businesses in a difficult situation. They will be open for business and will have all their staff able to tender their services but the businesses may not have work for their employees to perform or sufficient business to cover the costs of being in business. The future of some businesses may depend on doing business differently by finding ways of cutting costs, reducing expenses and even right-sizing, at least in the short to medium term.

In order to get through the initial economic challenges of the reviving economy, employers must to consider the manner in which employment and labour costs can be lawfully reduced. This will assist in ensuring the continued operations of the business as well as its long term sustainability. Retrenchment should not be the first port of call under the current, challenging economic conditions.

Cost saving measures

The first step is to consider what relief funds remain available and of relevance to an employer. There have been a number of general funds established for the benefit of, largely, all employers (for example the COVID-19 Temporary Employer / Employee Relief Scheme "TERS"), funds for the benefit of Small Medium and Micro Enterprises (SMMEs) (such as the Debt Relief Finance Scheme and the Business Growth Resilience Facilities) and more sector specific funds (such as the Tourism Relief Fund).

These funds will offer only temporary relief.

In addition to the funds mentioned above, the following should be considered to ensure ongoing sustainability and return to profitability:

  • Short time;
  • Furloughs / Layoffs;
  • Salary reductions; and/or
  • Sabbaticals (paid or unpaid)

Short time is where an employee's working hours are reduced and, as a result, his/her remuneration. This can be contrasted with salary reductions where an employee's hours of work remain the same but his/her salary is reduced. Furloughs or temporary lay-offs entails the suspension of the employee's obligation to tender services and the employer's obligation to pay remuneration – for a period of time. The employee remains employed. This is similar to an unpaid sabbatical where an employee can take unpaid time off.

Importantly, where any measure (short of dismissal) results in a change to terms and conditions of employment of employees, it must be implemented by agreement with the employees or relevant parties (such as trade unions). The measure cannot be unilaterally implemented.

The adoption of these measures can be raised with employees in essentially two ways: prior to the commencement of a retrenchment consultation process, or as part of such a process. The latter occurs where the measures are proposed as alternatives to retrenchment and would only be proposed, once the retrenchment proceedings have commenced. The former approach involves these measures being raised prior to any retrenchment proceedings being implemented. They would be tabled as a means of trying to avoid the need to enter into retrenchment proceedings in the first place.

In certain instances these measures can be coupled for relief from, for instance, a 'Reduced Work Time Benefit' as provided for by the Unemployment Insurance Fund if the employee works short time.

Restructuring / retrenchments

Where alternative measures are not agreed upon or they do not adequately reduce costs / address operational challenges then a restructuring or retrenchment exercise may have to be considered. In this regard, the Labour Relations Act 66 of 1995 (LRA) and the Code of Good Practice: Dismissal (Code) set out the requirements that must be adhered to in order to ensure that such dismissals are fair.


With the current reopening of the economy it is important that employers consider how their businesses need to adapt to the new challenges posed by the so-called "new normal" the world must face. A number of measures are available to do so.

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Can Sars deduct tax debts from your bank account?

Section 179 of the Tax Administration Act, 2011 allows the South African Revenue Service (Sars) to issue a notice to a person who holds or owes money, including a pension, salary, wage or other remuneration, for or to a taxpayer, requiring the person to pay the money to Sars in satisfaction of the taxpayer's outstanding tax debt.

One of the most effective tax collection tools available to Sars is a third-party payment notice to a taxpayer’s bank. A taxpayer’s bank account is an easy target for a third-party payment as Sars is provided with a taxpayer’s bank details when registering for tax.

In SIP Project Managers (Pty) Ltd v CSARS, the taxpayer brought an application to set aside a third-party notice and further sought an order that it should be refunded the money paid over to Sars by its bank.

An additional assessment was issued to the taxpayer for R1.2 million on 30 September 2019. It was uploaded onto the taxpayers e-filing profile but through no fault of Sars, did not come to the taxpayer’s attention. The taxpayer only became aware of the additional assessment in February 2020 when Sars served a notice on Standard Bank to pay over R1.2 million held in the taxpayer’s account.

Section 179 was amended in 2015 requiring delivery of a final demand to the taxpayer at least 10 business days before the issue of the third-party notice to the bank. The demand must set out the recovery steps that Sars may take if the tax debt is not paid, as well as the available debt relief mechanisms under the Act.

When the taxpayer contacted Sars, they were advised that three letters of demand were sent, on 7 and 11 November 2019 and 22 January 2020, before the notice was issued to the bank. The taxpayer could not find any of these letters on their e-filing profile.

Sars abandoned relying on the letters of 11 November 2019 and 22 January 2020 as one was only a payment reminder and the other was not issued within 10 business days before the bank notice. That left the letter of 7 November 2019 which the taxpayer denied receiving and annexed to its court papers a screenshot of its e-filing profile showing no letter of demand had been issued.

The Court held that it was not enough for Sars to prove the existence of the letters, they must also show they had been delivered. Delivery through the e-filing system was acceptable, but Sars failed to provide any proof of delivery. The Court thus found that there had not been compliance with section 179.

In addition to failing to prove delivery, the demand of 7 November 2019 was premature as the date for payment on the additional assessment was 30 November 2019. The letter was issued before the payment due date and before Sars could demand payment. Therefore, the Court declared the third party notice null and void and ordered Sars to repay the R1.2 million with interest.

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ConCourt rules Electoral Act unconstitutional

The Electoral Commission has noted the judgment of the Constitutional Court declaring parts of the Electoral Act unconstitutional

The highest court in the land on Thursday ruled that the act was unconstitutional in requiring that only candidates of political parties contest national and provincial elections.

“The Electoral Commission welcomes the clarity the court has provided to the interpretation of the rights of citizens to stand for public office. We will study the judgment in detail to reflect on its full implications for the current electoral system and legislative framework governing national and provincial elections,” said Commission Chairperson, Glen Mashinini.

The commission said the timing of this judgment, and the Parliamentary review of the electoral system it prompts, is opportune given both the maturing of South Africa’s democracy and the looming impact of the Covid-19 pandemic on election processes around the world.

The court has provided Parliament with 24 months to revise the legislation and the Electoral Commission stands ready to provide technical assistance into this process to help enhance the country’s electoral system.

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What to do if an employee contracts Covid-19 and has been in the workplace...

The Department of Employment and Labour issued directions in late April 2020 on the measures an employer would need to take to provide its employees with safety measures to protect against the risk of Covid-19 exposure. In conjunction with these directions, and after South Africa moved to Level 3 of the lockdown, most businesses are allowed to operate and for many employees it was back to work as usual (well, not really) from 1 June 2020.

For most businesses, life and economic activity will continue as much as possible as it did before the lockdown. Employees will be required to wear masks, utilise sanitising stations and observe social distancing requirements. To the extent that the workforce remains free of Covid-19, this will be the new norm for working until the national alert level is removed, which may be due to South Africa's state of preparedness being considered to be advanced enough to allow its upliftment or, more likely, judicial challenge such as that seen recently in the judgments given by the Pretoria High Court.

What is required?

However, whether a legal requirement or simply a common-sense approach, what should an employer do if an employee is confirmed to have contracted Covid-19, and has been in the workplace?

Recently, Pick 'n Pay employees had to resort to laying a complaint with the South African Police Services, and to getting their union involved, in circumstances where a colleague was diagnosed with Covid-19 in a particular retail premises, and the employer failed to take the action that was expected by the employees. What exactly is an employer required to do, under the circumstances?

Presently, if an employee is diagnosed with Covid-19, the only legal requirement on the part of an employer is fairly limited. The employer must inform the Department of Health, and determine whether the employee's exposure resulted from a failure of the employer's workplace health and safety measures. The employer must also assist the Department of Health in any contact tracing measures implemented.

Cleaning or closure

Importantly, in regard to the impact which an employee being diagnosed with Covid-19 may have on the employer's activities, the employer must also consider whether it is necessary to close the work area. This is critical to note, as it may not always be necessary to close the immediate workplace, and certainly not the entire workplace, if the employee has had limited access to a building or premises, or limited contact with fellow employees. This consideration by the employer should be guided by the risk-based assessment suggested by the Department of Health, which requires (amongst other things) for workplaces surfaces to be disinfected.

The limited scope of this legal obligation is important to note, as it is not necessarily a legal requirement for an employer to shut down all of its operations, merely because a single employee has tested positive for Covid-19. It would be sufficient, according to the regulations, for the employee to be restricted from entering the workplace or, if already there, to isolate the worker and to provide him/her with a surgical mask and to arrange for the worker to be transported to a health facility or an area of self-isolation, in such a manner that does not expose other workers or members of the public to exposure. The employer must also then, after the employee has left the workplace, introduce the abovementioned disinfecting measures, and to continue to exclude the employee from the workplace until such time as a medical practitioner is able to clear the employee for return to work.

In the interim, provided that the employer is compliant with its other obligations in terms of the Occupational Health and Safety Directions, it would be entitled to carry on with its operations without having to shut down access to other employees, or to members of the public seeking its services.

Other employees

Any employees who were ordinarily or actually in contact with the symptomatic employee would need to be screened and monitored, and may even be sent on a 14 day precautionary quarantine (in which case the UIF's Temporary Employee Relief Scheme benefits would be available for such a person).

As mentioned, the measures set out above are the current legal obligations of an employer, in terms of the OHSA directions. If these directions are found to be invalid, along with the Disaster Management Regulations, when the Pretoria High Court has finally determined whether government has complied with its obligations to re-assess whether the Disaster Management Regulations are a reasonable limitation of citizens' constitutional rights, an employer should nevertheless adopt these measures as a common-sense approach to dealing with incidences of Covid-19 in the workplace.

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South Africa: regulating no-poach agreements during the Covid-19 pandemic

Despite the imminent threat of automation and artificial intelligence taking the place of humans in the workplace, employers are still investing considerable amounts of time and resources into sourcing and upskilling talented human capital. However, even with state-of-the-art mentoring programmes, nap pods and expensive in-house coffee stations, employers are exposed to the risk of losing their human capital to competitors. To manage this, certain employers have implemented no-poach agreements or clauses. Such agreements have triggered concern from competition authorities, including those in the United States (US) and could well be on the radar of the South African (SA) competition authorities aiming to facilitate a fair labour market in South Africa post Covid-19.

Essentially, no-poach agreements are concluded between competing employers to restrict each other from poaching their employees. These agreements may even allow for the fixing of wages in a certain market. Unlike traditional restraint of trade or non-compete clauses, employees are unable to negotiate the terms of no-poach agreements and are oftentimes unaware of their existence. As a result, an employee’s decision to move between competing employers and negotiate better terms of employment, such as remuneration and benefits, is limited. As if that was not enough, the Covid-19 pandemic has increased the limitations faced by employees in the labour market with the insurmountable pressure it has exerted on the global economy. The labour market has reflected a sharp increase in retrenchments and a decline in new job opportunities. In turn, employers are faced with the difficulty of navigating this crisis whilst maintaining a profitable workforce, without subverting competition in the labour market.

Authority alert

On 13 April 2020, the US Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) responded to the concerns of US-based employees during these unprecedented times by publishing a joint alert in an effort to manage the rise of unlawful no-poach and wage-fixing agreements triggered by the Covid-19 pandemic. The DOJ and FTC stated that they were cautious of employers, staffing companies and recruiters who might engage in collusion or other anticompetitive conduct that impacted the labour markets, such as agreements to lower wages or to reduce salaries or hours worked. The DOJ and the FTC noted that they may subject these employers to civil and/or criminal sanctions.

This is not the first time that these competition authorities have issued an alert or guidance that intends to caution employers against engaging in unlawful no-poach and wage fixing agreements. In October 2016, the competition authorities published the Antitrust Guidance for Human Resources Professionals (Antitrust Guidance for HR Professionals), which alerted HR professionals, and others involved in hiring and compensation decisions, of the inherent risk that comes with agreements that constrain an individual firm's decision-making in relation to employment terms and opportunities. In addition, the DOJ announced that, going forward, it would adopt a stricter approach against firms that were found to be engaging in naked no-poach agreements.

Naked no-poach agreements

Naked no-poach agreements, as defined in the Antitrust Guidance for HR Professionals, are no-poach agreements that are not reasonably necessary to any separate, legitimate business transaction or collaboration between the employers. The DOJ considers these agreements as per se prohibitions in that they essentially amount to market allocation, price fixing, refusal to deal and bid-rigging. Accordingly, the DOJ submitted statements of interest advocating for the application of the per se rule in the prosecution of firms found to have been engaging in naked no-poach agreements. However, we are yet to observe a matter that results in a criminal disposition, as the current matters have only been finalised as civil matters.

Even prior to the issuance of the Antitrust Guidance for HR Professionals, the DOJ had conducted investigations into no-poach agreements which reduced the employer’s ability to compete for certain high-skilled workers. As early as 2010, the DOJ highlighted in its investigation of several high-tech companies the extent and the effect that these no-poach agreements have on competition in the labour market. Following a quiet "handshake agreement", these companies agreed to the following terms: not to cold call each other's employees; to notify the other company when making an offer to an employee of the other company; and that if either made an offer to such an employee of the other company, neither company would counteroffer above the initial offer. Ultimately, these high-tech companies were subjected to significant civil sanctions.

Scrutiny of SA contracts

Whilst US competition authorities have adopted a clear position and strategy in relation to regulating no-poach agreements during the crisis, these agreements have not been the subject of particular scrutiny in South Africa, notwithstanding the authorities’ well-known sensitivity to public interest matters including employment.

With the rising levels of unemployment and potentially imminent Covid-19-related salary reductions in South Africa, the regulation of no-poach agreements could be a natural progression in the focus of its competition authorities, in line with international trends. South African firms should be mindful that the regulation of no-poach agreements may be susceptible to scrutiny by the local authorities, which may seek to assert jurisdiction over these agreements from a competition law perspective.

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Cabinet to appeal ruling on Covid-19 regulations

Cabinet has resolved to appeal the North Gauteng High Court judgment that declared Covid-19 regulations under levels 3 and 4 invalid and unconstitutional.

Minister in the Presidency, Jackson Mthembu, announced this during a media briefing on the outcomes of a Cabinet virtual meeting held earlier on Thursday.

According to Judge Norman Davis’s ruling handed down on Tuesday, the lockdown regulations do not satisfy the rationality test.

“Their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution,” Davis said in his ruling.

Davis gave government 14 days to alter the guidelines, meaning level 3 regulations remain in place until new regulations were published.

However, Mthembu said Cabinet is of the view that another court might come into a different conclusion on the matter.

“Cabinet has therefore decided to appeal the North Gauteng High Court decision and government will ask that its appeal is heard on an urgent basis so that all of us can obtain certainty on the regulations,” he said.

He told the media that the Cooperative Governance and Traditional Affairs Minister, Dr Nkosazana Dlamini-Zuma, will be joined by President Cyril Ramaphosa and Health Minister, Dr Zweli Mkhize, in the appeal.

“Cabinet wishes to assure the nation that all interventions introduced since the declaring of the National State of Disaster in March 2020 by President Cyril Ramaphosa have been directed primarily at saving the lives of our people,” said Mthembu.

The regulations, which placed restrictions on the movement of people and stopped some economic activities, have been directed at slowing the spread of Covid-19 infections.

“While government appeals the judgment, parent regulations remain in force and we appeal and urge our people to observe the health protocols that have been put in place, including washing of hands, social distancing, wearing masks in public, as well as screening and referral for testing where necessary.”

He announced that Cabinet has also approved the extension of the National State of Disaster by another month from 15 June to 15 July 2020.

“It’s with all the regulations that will help us save lives and nothing else, that’s why the appeal,” he added. “We urge our people to stick to these rules.”

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Covid-19: Can employees withdraw from the workplace?

Employees returning to work from the Covid-19 lockdown will need to show reasonable justification if they halt work on the basis that they may be exposed to the virus.

Legal provisions allowing employees to withdraw from a hazardous working situation could, in the context of Covid-19, be open to abuse by unprincipled employees or trades unions.

This is because employers will be obliged to continue remunerating employees who have withdrawn their labour on the basis of their belief that they may contract Covid-19, unless it can be proven that employees acted in bad faith (which may be difficult or even impossible to do). Only if bad faith can be proven would there be a justification to withhold remuneration (on the basis of no work no pay).

The Mine Health and Safety Act (MHSA) and the Occupational Health and Safety Act (OHSA) grant employees the right to withdraw from a dangerous working place. Disaster Management Act (DMA) Regulations or related directives could also confer this right, when drafted.

Under the MHSA, employees may withdraw from the workplace if there is “reasonable justification” to believe that there is a serious danger to their health and safety or if a health and safety representative directs them to withdraw. We believe this section contemplates what may be called "a clear and present danger". The Act also requires employees to hold dialogue with their employers on these issues to mitigate the danger so work can be conducted safely.

The OHSA does not grant employees an express right to withdraw from a dangerous working place but requires them to report the situation to their employers or health and safety representatives.

The first difficulty with managing the workplace hazard of Covid-19 virus is that it is invisible, because it is a microscopic virus, and even its host may be unaware and be asymptomatic. The second difficulty is that, even though we still know relatively little about the virus, what we do know is that it is highly contagious.

Where employers have provided all relevant instruction, health and safety protocols and personal protective equipment (PPE) to safeguard employees, is it reasonable and rational for employees to exercise the right to withdraw from the workplace because they are (subjectively) apprehensive of contracting Covid-19 there?

Practically speaking, there can certainly be no issue with granting employees the right to withdraw from a workplace due to Covid-19, where they have reasonable justification. However, in our view, in the absence of some objective criteria, it will be impossible for employees to show reasonable justification. Only if employees present symptoms of the virus to their co-workers or test positive for Covid-19 (and that information becomes known to their co-workers), can other employees be said to have reasonable justification to withdraw from the workplace.

Even then, this may not constitute reasonable justification when the employer has taken appropriate steps, such as disinfecting the workplace and screening (on an ongoing basis) all employees who came into contact with the infected employees.

In our view, employers should at least:

  • constructively engage with Government to set clear parameters on what will be acceptable measures to establish and maintain a safe workplace;
  • ensure that an adequate risk assessment is conducted prior to the commencement of work, specifically dealing with any potentially unsafe areas or conditions, and ensure that adequate control measures, including the availability and suitability of PPE, are implemented;
  • comply with physical distancing requirements in accordance with the risk assessment, sanitising, screening, isolation and all other requirements set out in the DMA Regulations, where applicable;
  • comply with all requirements of employers prescribed in the Department of Labour's Occupational Health and Safety Directive, where applicable; and
  • regularly and frequently convene health and safety committee meetings to proactively monitor the workplace and address any concerns raised by employees about Covid-19 transmission risk.

If, despite all these measures, employees withdraw from the workplace, employers should first consider whether, under the circumstances, employees have a reasonable justification for doing so. If they believe it is reasonable, employers must remedy the allegedly unsafe working conditions.

If employers do not agree that a reasonable justification exists, they may consider the following legal recourse:

  • notify employees that their withdrawal from the workplace is unjustified and accordingly unlawful and call upon employees to return to work. If they do not return, it may be regarded as either unauthorised absence or unprotected industrial action. In those circumstances, the employer could, in our view, advise that it will apply the principle of no work, no pay;
  • initiate legal action seeking to inter alia interdict employees' withdrawal from the workplace and/or refusal to tender their services or mandate the employees to tender their services.

Employers should engage practically and constructively with employees and trade unions to attempt to resolve concerns when they arise.

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Competition laws require online platforms in the 'gig economy' to protect SME and black suppliers

The Competition Act was amended in February 2020 to introduce new rules to protect small, medium and black-owned suppliers in specific sectors (the buyer power provisions). These include the e-commerce and online services sectors - the gig economy.

On 18 May 2020 the Competition Commission issued its guidelines on the buyer power provisions. These guidelines set out the Commission's interpretation of the new rules and provide guidance on how it will screen and assess complaints. The guidelines contain a list of terms that will be rebuttably presumed to be unfair if they are required from or imposed on suppliers. They set out when prices paid to suppliers will be unfair and likely contravene the laws.

Online platform providers must determine if they are dominant in the relevant purchasing market. Dominant online platforms in the gig economy are required to contract with suppliers on fair terms. If so, they must ensure that their prices paid to SME or black-owned suppliers are fair, both in comparison to prices paid to other bigger suppliers and in themselves. The dominant buyer will also have to keep proof of its objective justifications for differences in prices paid to different suppliers of like goods or services.

The gig economy is a job market where workers are paid for each 'gig' they do, such as transport, food delivery, cleaning jobs, tour guiding and the like. This market has gained significant traction in recent years because of the explosion of apps and websites designed to connect suppliers and customers. These apps give freelance workers the freedom to determine when and how they work, but they may not be protected by employment laws.

The South African government is focused, through various policies, on the growth of small businesses and entrepreneurs. The gig economy provides new opportunities for providing work and income to a wide array of people.

Globally, competition authorities are wrestling with how to balance the interests of consumers against protecting small businesses in the online environment. South Africa has learned from the experience in other countries and has implemented restrictions to protect suppliers to e-commerce platforms and the gig economy. These include restrictions on unfair pricing and unfair terms when the online service provider is dominant in the relevant market

The guidelines say that providers of e-commerce and online services must set out terms and conditions of operating on its platform in plain language, in particular, they must explain:

  • The grounds for any decision to suspend or terminate or impose any other kind of restriction on the services offered by the suppliers;
  • Any limitations on the ownership and control of intellectual property rights and personal information of suppliers; and
  • The parameters determining the ranking and display of suppliers on their platform.

It will, for instance, be considered unfair if a dominant online provider restricts the ability of the supplier to offer the same goods or services to consumers directly or through a different platform.

The Commission will consider unfair any term that allows the platform provider the use of the suppliers' data and information (incl. pricing, volume, customer sales) to compete with the supplier. The Commission will consider a difference in the price paid of more than 3% to be material but depending on the relevant market, they may still investigate a lesser price differential.

The Commission has cautioned that there should be a fair distribution of risk in the supply chain in response to market shocks like the Covid-19 pandemic. The Commission will not consider it fair if a dominant online provider requires its SME or black-owned suppliers to carry all the risks.

The overarching intention of the new rules is fairness to suppliers who may be historically disadvantaged, or have other challenges such as access to funding or cash flow to ensure that they are able to effectively participate in the economy. Dominant buyers are now required to ensure that their procurement practices do not entrench systemic discrimination or create further barriers to entry. These are novel provisions but the guidelines go some way to helping parties to understand what will be considered fair and when the Commission will investigate these sorts of trading practices.

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Rehabilitation of an insolvent is governed by the Insolvency Act, Act 24 of 1936 (hereinafter referred to as “the Act”). Rehabilitation is the legal process in which an insolvent (sequestrated individual) can apply to have his previous position restored (i.e. he becomes solvent from anew).

Rehabilitation can either occur automatically after the expiry of a 10 (ten) year period from the date of provisional sequestration or the insolvent can apply to Court to have himself rehabilitated before the expiry of the 10 (ten) year period. The application for rehabilitation is governed in terms of Section 124 of the Act and can be brought inter alia in one of the following circumstances:

  1. Any time after sequestration, the insolvent can approach their trustee in order to accept a proposal where all the creditors will be paid 50 (fifty) cents in the rand. Sufficient security for the aforementioned must be provided and the Master of the High Court will then issue a certificate in order for the insolvent to apply for rehabilitation;
  2. If the insolvent was previously sequestrated and rehabilitated, he/she can apply for rehabilitation if a period of 4 (four) years have elapsed since the sequestration and 3 (three) years have elapsed since the date of confirmation of the trustees’ first liquidation account;
  3. Should there be no claims proven by the creditors within a period of 6 (six) months from the date of sequestration, the insolvent may approach the Court to bring an application for his/her rehabilitation; and
  4. The insolvent immediately qualifies for rehabilitation where the assets in the insolvent estate realise sufficient funds in order to pay all the proven claims in full and final.

The steps and/or procedure involved in bringing an application for rehabilitation can be discussed in more detail should you require any further assistance. An application for rehabilitation of an insolvent is made to the High Court who has the necessary jurisdiction to hear the matter (i.e. where the insolvent resides). The first day that the application is heard, a provisional rehabilitation order will be granted and a rule nisi (return date) will be determined by the Court. Should there be no objection to the rehabilitation of the insolvent; the court will grant a final rehabilitation order on the return date. ITC clearance needs to be arranged after the final rehabilitation order is granted by the Court. They will then update their system to list the insolvent as being “rehabilitated”. The listing on ITC will remain for a period of 5 (five) years, where after it will be removed.

The effect of rehabilitation is governed in terms of Section 129 of the Act. The rehabilitation of an insolvent shall have the effect of putting an end to the sequestration, of discharging all debts of the insolvent (which were due before the sequestration) and relieving the insolvent from any disability resulting from the sequestration process.

In the meantime, should you require further information on the Rehabilitation Procedure; you can e-mail us at or visit our website at and direct queries through our online platform. A free virtual conference can also be arranged during this time due to the COVID-19 pandemic and lockdown.

Our team of experts will assist you by explaining all of your options and will provide you with cost-effective legal assistance.

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Self-diagnostic app helps pinpoint virus hotspots

A new self-diagnostic application & predictive modelling dashboard, a digital tool to both help South Africans self-assess their Covid-19 symptoms, and aid government efforts to pinpoint virus hotspots, has been launched.

The project is the product of a strong coalition between the United Nations Institute for Training and Research (Unitar); the Global Surgery Foundation; the Rali and Makentse Mampeule Foundation; the University of Cape Town Division of Global Surgery; and Slalom.

In its role of assisting the authorities to identify communities with a high prevalence of Covid-19 symptoms, the dashboard will facilitate subsequent targeted testing and treatment interventions,

In short, It allows the Department of Health to:

  1. Control the spread of Covid-19 via focused identification and testing;
  2. Focus limited Covid-19 testing and treatment resources effectively;
  3. Predict new in-country spread for early interventions;
  4. Identify “safe zones” in which the economy can be kickstarted.

The application, which is designed specifically for South African users, requires low data bandwidth and is available in local languages.

The launch comes as the World Health Organisation warns that the death toll on the continent could reach 190,000 and that transmission patterns will follow a course different from that seen on other continents.

Recent recommendations by South Africa’s leading infectious diseases professionals advise the adoption of “self-reporting of symptoms via an app-based programme on mobile phones”.

This completely voluntary self-diagnostic tool collects data that is fully anonymous, allows users to assess symptoms and guides them to the next course of action and identifies potential hotspots and communities at risk. It will support health policy leaders in making critical decisions, including prioritising resource allocations, targeting testing efforts, and making informed life-saving decisions in the fight against Covid-19.

Following the South African launch, the application will be rolled out to other African countries in the upcoming months.

For health workers, it will allow them to identify areas of high risk, especially where testing is limited. This will be critical for saving lives and preventing the further spread of the disease.

The application is particularly exciting because it:

  • Provides an easy, low-data self-assessment tool that will help identify communities that are home to a high number of people with Covid-19 symptoms. Testing and treatment can then be appropriately implemented.
  • Assists individuals with self-diagnosis, allowing them to make an informed decision to seek further healthcare.
  • Allows healthcare providers to utilise limited medical resources more effectively.
  • Will help control the second and third waves of Covid-19 by providing accurate aggregated data to help inform policy decisions.

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Public Procurement Bill aims to simplify processes

South Africa is awash with numerous public procurement laws exacerbated by further Covid-19 related regulations. The current version of the public procurement Bill aims to unify the laws dealing with public sector procurement by creating a singular regulatory framework that applies to local, provincial, and national government as well as state-owned entities.

The overall goal of the Bill is to simplify processes and maximise value for money with public funds which is in line with the Department of National Treasury’s aim of modernising public procurement.

Public procurement authority

In terms of the Bill, a procurement Authority would be introduced which has multiple functions including advisory, support, and disciplinary functions. The Authority would be established within the Department of National Treasury with provincial treasuries acting on its behalf in their respective provinces.

The Authority would have teeth in the form of unspecified, broad powers to take appropriate measures to address serious or persistent breaches of the legislation when implemented. This will include instructing institutions to allow the public to observe adjudication processes concerning procurement.

It may also be able to:

  • reconsider the decisions of institutions where necessary;
  • issue, review and amend standard bid documents used by institutions;
  • make binding and non-binding instructions where legislation allows;
  • require institutions to publish information on their procurement proceedings,
  • allow the public to observe adjudication processes.

These powers will probably be amplified in the regulations to be promulgated in future.

Provision related to labour and possible insubordination

Where particular persons are directed by an authority to do something which the person believes is inconsistent with the eventual Act, the person does not have to comply with the instruction.

Instead, the person would be obligated to immediately (in writing) state their objections and reasons for their non-compliance to the authority. If, after considering the objection, the authority sends an instruction (in writing) to the person to comply with the original instruction – then they must comply and immediately provide a written report to the applicable Minister.

If the authority refuses to provide the instruction, then the person should not comply with it and may not be subject to any disciplinary measures despite any term or condition of their employment.


Dissatisfied bidders would be permitted to make an application to institutions to reconsider its own decision. Institutions would then be obliged to respond by either:

  • dismissing the application or;
  • conducting an investigation before issuing a written decision accompanied by the reasons behind it.

Only once this process is completed may an institution's decision be reviewed by the relevant provincial treasury or the national regulator.

Both provincial treasuries and the regulator would have the capacity to act of their own accord and to take appropriate action when there is a serious or material breach of the relevant legislation.

A Public Procurement Tribunal is established to review administrative decisions taken by provincial treasuries or the regulator. Its powers are stipulated clearly. Decisions made by the Tribunal may be made an order of court.

This system does appear to save time and costs unless the process moves to court in the next stage of review. It should be noted that any person who exercises powers or functions in terms of the provisions, will not be liable for any loss or damages suffered by any person from a decision or action taken in good faith in terms of the eventual Act.

General provisions

It would be mandatory for institutions to use technology to the extent possible to implement procurement methods. The significant emphasis on the “use of technology” is apparent in the mandatory requirement of ‘electronic reverse auctioning’ in certain circumstances. Should the regulator create a database for specified goods and services, then institutions may only procure these goods or services through written quotations from prospective suppliers in that database.

Exclusions from procurement processes and offences

Apart from persons who are automatically excluded by the legislation from procurement processes, the regulator would be compelled to issue a debarment order against any bidder or supplier who commits (in)direct acts that the Bill considers unsatisfactory. Conveniently there is a type of procedural fairness in the form of consultation and a right of appeal in respect of a debarment order.

The names of debarred persons may be released to institutions by the regulator upon request. Persons subject to debarment orders will be automatically excluded from participating in procurement generally, as well as any other circumstances the order may specify.

The Bill in its current form sets out two main sets of offences:

  • the first carries a penalty of imprisonment for up to 10 years, a fine or both if a person causes loss of public funds due to negligence, gives false information and exerts undue influence in procurement, amongst other factors. In addition, a court may also order that the guilty party compensate for the loss even if it means confiscating property to do so.
  • The second is imprisonment for up to three years or a fine or both for unreasonably withholding information or documents or delays the evaluation of a bid or awarding of a contract.

Preferential procurement

If passed in its current form, the Bill would repeal the Preferential Procurement Policy Framework Act of 2000 and amend other procurement-related laws. It will also do away with the preferential point system.

The Minister will have broad discretion to determine a framework for preferential treatment for the protection or advancement of those previously disadvantaged by unfair discrimination in procurement.

In exercising that discretion, the Minister has certain obligations such as considering BBBEE Act and consulting with counterpart Ministers. The Minister also has a broad discretion to prescribe types of procurement methods, as well as the requirements and procedure for each type of procurement method in addition to the regulations the Minister is able to make regarding numerous other issues. The provisions of the new Act would prevail in the event of a conflict with similar provisions in any other legislation.

The bidding process

There will be mandatory use of standard bid documents, which must contain the prescribed minimum requirements. Institutions will, however, retain a discretion to determine whether security should be given for bids or whether that requirement may be waived.


Procurement contracts that existed before the legislation comes into force will continue to be regulated by the laws applicable at the time it was awarded to the exclusion of the Public Procurement Act when in force. Similarly, bids that were advertised before the commencement of the Act would be regulated by the law applicable at the time of the advertisement. Additional issues contemplated in the Bill still need to be considered and addressed. The Bill is currently open for comment until 30 June 2020 and comments may be sent to Overall, a commendable contribution toward better upholding section 217 of the constitution.

The above does not purport to be a general overview of the Bill and is not intended to be legal advice.

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New research suggests SA's ban on cigarette sales is failing

Despite the ban on tobacco sales during the national lockdown, more than 90% of smokers have been able to purchase cigarettes during the period. However, they've paid a substantially higher price for these cigarettes and have had to purchase unfamiliar brands, as their favourites were often unavailable.

This is according to a recent report titled Lighting up the illicit market: Smokers' responses to the cigarette sales ban in South Africa, published by a research unit at the University of Cape Town. With the aim of the study to understand smokers’ behaviour during the lockdown period, the unit performed an online survey, which was completed by more than 16,000 respondents. The survey was conducted between 29 April and 11 May 2020.

"Our unit has a strong public health focus and our research is often in conflict with the tobacco industry’s rhetoric. We do objective and rigorous research. We did not do this study to take sides with any grouping, we simply wanted to understand what was going on in smokers’ lives," explains Professor Corné van Walbeek, the director of the Research Unit on the Economics of Excisable Products.

About 41% of the survey respondents indicated that they had tried to quit during the lockdown period, and 39% of these were successful. Most of the people that quit during the lockdown had tried quitting previously. It seems that, at least for them, the ban on cigarette sales has been effective. Only 12% of respondents that had quit smoking successfully indicate that they will start smoking when they can buy cigarettes again.

Before the ban was imposed, the average smoker consumed 10 cigarettes per day. In the first two weeks of the lockdown, average consumption increased to 11 cigarettes, but after President Cyril Ramaphosa announced the two-week extension to the lockdown on 9 April 2020, average consumption decreased to nine cigarettes per day.

Nearly 90% of smokers had stocked up before the ban on cigarette sales became effective. It seems that most people did not stock up enough for the extended lockdown period, however, because average consumption decreased after the extension was announced.

Sales channels

According to Van Walbeek the distribution network through which smokers buy their cigarettes has changed considerably. Whereas formal retailers were the dominant outlets for cigarettes before the lockdown (56%), they have all but disappeared during the lockdown (3%).

The number of people using street vendors has risen from 3% before the lockdown to 26% during the lockdown, while the proportion of people relying on house shops has risen from 4% to 18%. Meanwhile, 4% of survey respondents indicated that they had purchased their cigarettes through ‘drug dealers’, ‘cigarette smugglers’, or ‘black market traders’.

In line with the proliferation of street vendors, the percentage of people purchasing single cigarettes has more than tripled during the lockdown period. According to Van Walbeek, this is a serious problem for public health in South Africa, especially in a post-Covid world.

Top-selling brands

The lockdown has resulted in a transformation of the cigarette market in terms of brands. The survey results show that before the lockdown, 81% of smokers smoked brands produced by the multinational companies (MNCs), while 19% of smokers consumed brands produced by local or regional manufacturers.

During the lockdown, 63% of smokers reported smoking brands by local producers, while 37% of smokers reported smoking brands produced by the MNCs. Whereas British American Tobacco dominated the market before the lockdown with a market share of more than 60%, the market has become more fragmented after the lockdown.

The largest seller of cigarettes during the lockdown period is Gold Leaf Tobacco, with a 30% market share, followed by British American Tobacco with 24% market share, Carnilinx with 10% and Best Tobacco Company with 9%.

Significant price hikes

The average price of cigarettes reported by respondents increased by 90% from the pre-lockdown period.

Kirsten van der Zee, a collaborator on the research project, explains; “Using advanced statistical techniques, we were able to quantify which factors are associated with the price increase. We use the information that the respondents provide and see how a particular characteristic is associated with the percentage change in the price. The technique allows us to see what the impact of a particular characteristic is, independent of the other things that might change.”

The research team found that higher-income individuals reported a much larger increase in the prices that they paid, relative to poorer people. Says Van Walbeek: “One would expect this, as rich people have more money to pay the higher prices. It gives us confidence in the quality of the responses and in the modelling, because the model is confirming what we know from economics.”

The team found that the prices reported by respondents were increasing, even during the time the survey was being conducted. They found that the price of cigarettes increased by an average of 4.4% per day over the 13 days of the survey. In the space of two weeks, the average price has increased by more than 50%.

“Such increases in the price of cigarettes are consistent with hyper-inflation. The fact that prices are increasing so rapidly indicates that the cigarette market is in absolute chaos. Smokers are desperate and are willing to pay exorbitant prices to get their fix, even if it is of an unknown source,” says Van Walbeek.

People living on farms, rural areas and towns experienced much higher increases in the price that they paid for cigarettes during the lockdown compared to people living in the suburbs, especially people living in informal settlements and townships.

“It seems that the informal and illicit distribution networks are more established in the metropolitan areas, and that the competition between these informal and illicit traders is tempering the price increases,” says Van Walbeek.

Sentiment towards ban

The last question on the survey was “Any further comments?” Sam Filby, another collaborator on the project, analysed each of the more than 5,000 responses and comments; “The overwhelming response was one of anger. Respondents were unable to understand the economic or health rationale for the sales ban.

"While most of the respondents acknowledged that smoking is bad for their health, they felt that the sudden imposition of the sales ban, without any cessation support, caused mental health problems because they were unable to smoke. Many respondents indicated increased anxiety, feeling more depressed, being less focused, and suffering from physical withdrawal symptoms,"

Feeding an illicit market

Van Walbeek says that the ban on cigarette sales is failing in what it was supposed to do. “While the original intention of the ban was to support public health, the reality right now is that the disadvantages of the ban greatly outweigh the advantages. People are buying cigarettes in large quantities, despite the lockdown.

"While one should not exaggerate the revenue potential of excise taxes on tobacco products, since it contributes only 1% of total government revenue, it is foolish to not collect that revenue. The current sales ban is feeding an illicit market that will be increasingly difficult to eradicate, even when the lockdown and the Covid-19 crisis is over. It was an error to continue with the cigarette sales ban into Level 4 lockdown. The government should lift the ban on cigarette sales as soon as possible.”

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SA govt allows the sale of (almost) all goods online

According to new regulations published by the Department of Trade, Industry, and Competition on Thursday afternoon, online retailers in South Africa may sell any product, with the exception of cigarettes and alcoholic beverages.

From the start of Level 4 lockdown until yesterday, online retailers were limited to selling the same restrictive list if items that physical stores were permitted to sell. The gazetted directions that subject to all applicable laws, "all goods may be transacted through e-commerce platforms", except for booze and tobacco products which remain prohibited under Level 4.

The new regulations are effective immediately and remain in force for the duration of Level 4. Retailers, couriers and consumers will need to comply with a new strict list of rules focused on preventing the spread of Covid-19.

As stated in the gazette, the DTIC belives that "e-commerce can be a critical enabler to opening the economy through contactless transactions, which can reduce the movement of consumers, and the density of shoppers in retail spaces. Further, it can accelerate innovation, support local manufacturing and increase access by the informal market and poorer South Africans.”

The directions urge the promotion of South African-made products and "increased access for consumers through the provision of multiple payment channels, including for low-income consumers."

The minimum protocols that retailers, courier and delivery services, and customers must maintain include the following

Protocols for online retailers

  • Adherence to the Covid-19 occupational health and safety measures to maintain hygienic workplace conditions.
  • Employees may not share face masks, equipment, stationery, utensils or similar items.
  • Records of the temperatures of each employee must be kept. Temperatures must be taken daily and be managed by trained health and safety officers.
  • Retailers must give prominence to those goods which are manufactured in South Africa.
  • Retailers must provide for as many payment options as possible, which are based on reducing risks of transmission, and enabling poorer consumers to access delivery services.
  • Retailers must provide written guidelines for customers on how to safely disinfect their goods before use.
  • Retailers must put in place collection protocols to ensure that adequate physical distancing is maintained by delivery service personnel when collecting goods from a warehouse or depot.
  • All goods must be sanitised, in line with the guidelines published by the National Department of Health, before leaving the warehouse or depot.

Protocols for customers

  • Customers and all residents within the immediate vicinity must wear a cloth face mask or a homemade item that covers the nose and mouth when receiving goods from courier and delivery personnel.
  • Customers must maintain at least one and a half metres distance from courier and delivery personnel.
  • Customers are encouraged to disinfect goods using guidelines published by the National Department of Health and those provided by retailers.

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Retrenchment and COVID-19 Pandemic / Retrenchment and Lockdown

Section 185 of the Labour Relations Act, Act 66 of 1995 (“the Act”), clearly states that no employee may be unfairly dismissed. Due to the Lockdown implemented in South Africa, many businesses are incapable to meet their financial obligations and are considering a reduction in their working staff. Certain measures and guidelines have been implemented by the State in order to assist both employers and employees. However, employers must be mindful of the operation of Section 189 of the Act when considering the possibility of dismissing / retrenching and employee.

Retrenchment can be defined as the process whereby an employer reviews the business’ needs in order to increase profits or mitigates losses, which may lead to the reduction of its employees. The employer is obliged to follow a fair and lawful procedure when taking the decision of retrenching its employees and fair reasons must be given for that retrenchment.

Section 189 of the Act looks at the possibility of dismissal of employees for reasons based on operational requirements. “Operational requirements” may be defined as requirements based on the technological, economic, structural or similar needs of the employer. The Directives and/or Regulations as issued does not permit employers to deviate from any provisions as contained in the Act, but dismissal of employees are still seen as a valid option during the National Lockdown. The Basic Conditions of Employment Act, Act 75 of 1997 (“the Act”), must also be considered when dismissing / retrenching an employee. Section 41(2) of the Act clearly stipulates that the employer is responsible to pay an employee who is dismissed for reasons based on the employer’s operational requirements severance pay, calculated in accordance with Section 35 of the Act.

If the correct procedure as determined by the Labour Relations Act were not followed, the retrenchment may be considered to be unfair or unlawful. Should an employee feel that he/she was unfairly dismissed by the employer, they may refer the dispute to the CCMA or bargaining council. It is important to note that the dispute must be referred to the CCMA or bargaining council within 30 (thirty) days from the date of dismissal / retrenchment. Other alternatives would be to refer the dispute to the Labour Court should it not be resolved.

Dismissal / retrenchment of employees must rather be implemented as a last resort; after all other options have been exhausted. The Government has urged employers to rather utilise the measures and guidelines as provided for by the State, such as applying for benefits from the Unemployment Insurance Fund (“UIF”).

Should you require further information on the Procedure of Retrenchment, you can e-mail Shawney or visit our website at and direct your queries through our online platform. A free virtual conference can also be arranged.

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Pension funds could offer economic relief to members

People unable to work due to the pandemic may be looking to access their pension credits in this time of financial hardship. The position in South Africa remains that a member cannot access their pension benefits while they are still in service. Several other countries have however included, as part of their economic relief packages, measures targeting the assets of pension funds.

The Cayman Islands has unanimously passed amendments to their Pension Law to allow workers to access their pension fund assets during the pandemic. Workers will be allowed to withdraw a lump sum of $10,000 from their funds, and 25% of their pension credit beyond that. This will apply to workers across the board who participate in a private sector pension fund. Similarly, Spain has also published a royal decree which makes it possible, on an exceptional basis, and for a period of six months, for members to apply for access to their pension assets. A number of other countries such as Finland, Vietnam and Samoa, have reduced or cancelled pension fund contributions for a certain period, whether across the board or for specific sectors of their work force; this is similar to the ability of funds in South Africa to amend their rules to provide for a reduced or zero contribution. Finland has also adopted policies which allow for easier borrowing against contributions.

Most funds in South Africa have rules regarding contributions to make provision for temporary absences from work, a break in service and a postponement of contribution payments or reduction of pensionable service. Where funds don’t have such rules in place, the Financial Sector Conduct Authority (FSCA) has urged funds to submit rule amendments to make provision for financially distressed employers and employees.

Outside of the ability to reduce contributions however, there has been no move towards making pension benefits accessible to members who are suffering financial hardships. In essence, a member would need to cease employment to be able to access their benefit, an option which is not far-fetched when one is living the reality of severe financial hardship.

Although there have been murmurings in South Africa in favour of the adoption of a special dispensation to permit a once-off tax-free withdrawal from pension funds during the Covid-19 pandemic, on the basis that members have funds saved which they cannot access and may desperately need in order to support their immediate living needs, there has as yet been no indication by policy makers on whether this regime will be made available. The silence on the issue is not surprising however, as the decision to permit access to pension credits is not one which can be made in a vacuum and without consideration of the long-term consequences of such an exceptional course of action.

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African countries are moving to make masks mandatory: key questions answered

Many countries, including South Africa and Nigeria in Africa, are moving to make it mandatory to wear non-medical cloth masks when people are outside their homes. The move is seen as a vital additional measure to prevent the spread of SARS-CoV-2, the novel coronavirus causing Covid-19.

Wearing cloth masks is being introduced in conjunction with maintaining a physical distance of at least 1.5 metres and strictly following hygiene measures such as hand washing, good cough etiquette, and decontamination of regularly used surfaces.

Medical face masks have been a vital part of Covid-19 prevention efforts in East Asian countries such as China, Taiwan, Hong Kong and South Korea.

In countries where medical face masks are preserved for healthcare workers or are scarce, fabric face masks provide a cost-effective alternative. These can be homemade and are reusable.

There has been a growing movement of homemade mask production. Factories have also repurposed to produce fabric face masks to support commercial and free distribution.

In South Africa wearing a cloth mask in public places is now mandatory. In our view, there is sufficient evidence to suggest if everyone wears a mask, droplet transmission from each person will reduce and minimise exposure.


The early phases of the Covid-19 epidemic included an evolving understanding of the routes of transmission of the coronavirus. It is now well established that droplet transmission is of vital concern. In the case of the severe acute respiratory syndrome coronavirus in 2002, viral shedding via the respiratory tract happened mostly after people developed symptoms. But Covid-19 includes a pre-symptomatic phase where people can be infectious and still feel healthy and be unaware that they are infected. Mildly symptomatic and asymptomatic cases also occur.

Mandatory masking ensures that viral transmission by any potential carrier is markedly reduced. It emphasises the concept of “source control”, in other words controlling the amount of a pathogen that is present in the environment. This is well expressed through the slogan: “I protect you, you protect me”. This was popularised by the #masks4all initiative, started by a group of researchers and scientists to promote the scientific evidence showing that cloth masks limit the spread of SARS-CoV-2.

An additional benefit of the ubiquitous wearing of face masks is the reduced possibility that respiratory droplets will be released to settle on surfaces – or for smaller aerosolised particles to float in the air.

For those still in doubt, we have answered some key questions to address the biggest areas of controversy

  • Why should I wear a cloth mask?
    To prevent potential transmission of the coronavirus that causes Covid-19 via respiratory droplets and particles released when you talk, laugh, sing, shout, cough or sneeze, or to prevent the potential inhalation virus laden particles. A cloth face mask also serves as barrier that prevents touch transfer from surfaces to your mouth and nose and a reminder not to touch other parts of your face – especially your eyes. In addition, a face mask reduces the extent to which droplets and particles end up on surfaces or float in the air.

  • When should I wear a cloth mask?
    As a general rule, any time that you are outside your home, and especially in close contact situations such as when using public transport, shopping, working, or in any crowded setting. If a person in your household is possibly infected with coronavirus, face masks must be used when in close proximity, in conjunction with separating living quarters. Helplines and healthcare providers are good places to go for additional steps to follow.

  • Can I make my cloth mask out of anything?
    The most effective approach is to use a thicker weave material such as cotton for the outer layer, and then to include at least two layers of softer material for comfort and additional barrier protection. Test the materials combined for breathability before sewing. There should be some resistance to airflow, but you should be able to breathe freely when using the completed mask. Fit is important to minimise air bypassing the cloth barrier via the sides. Materials used should be easily washable and heat tolerant for cleaning. Stretchy material should be avoided

  • How do I wear the mask?
    Never share a mask with anyone and always use a mask that is freshly cleaned. Wash or sanitise your hands before putting on the mask and when removing. Ensure that it covers the area from the top of your nose to below your chin. When you remove the mask, move your hands forward so you can fold the front over itself. Hold on the sides and place in a safe area for cleaning.

  • How do I reuse a mask?
    A cloth mask can be washed in hot water with soap or washed in a washing machine. Iron or sun dry. You can also drop the mask into boiled water and leave to cool to a temperature that allows you to wash the mask with soap or washing detergent. Avoid harsh chemicals such as bleach as this will be toxic when wearing the mask. By having two masks available, you can wear one, and have one to wash.
Dr Warren Parker a public health communications specialist, and Dr Beth Engelbrecht from the Western Cape Department of Health contributed to this article.

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Managing a company during Covid-19: SA directors and their duties

The effects of Covid-19 on the economy has led to many companies facing the possibility of being declared financially distressed. The mounting pressure on directors to appropriately fulfil their duties in response to this crisis will continue into the foreseeable future.

Risk advisory: Practical considerations and steps for directors

While South Africa waits to see just how devastating the effects of Covid-19 will be, boards must implement good governance and put contingency plans in place to cope. Companies must assess the viability of their business model, while considering employee safety, availability of government assistance and the need for additional or modified disclosure (for instance, guidance on revenue). Some ways in which this can be done are:

Conduct regular board meetings and keep detailed minutes
Every material decision of a company must be recorded to keep stakeholders informed. In times of distress, situations can change rapidly and it is crucial that a plan is put in place of how to return to financial health. Regular reviews of those plans must be undertaken and recorded. Boards should regularly address safety issues and mitigation protocols during board meetings.

Focus on managing cash flow
An honest appraisal of the financials should be undertaken to have a clear picture of the financial position of the company and whether it is indeed financially distressed or heading towards a point where carrying on business operations would constitute reckless trading.

The Companies and Intellectual Property Commission (CIPC) released a practice note providing that it will not invoke its powers under section 22 of the Act (‘Reckless trading prohibited’) for the time being, in the case of a company which is temporarily insolvent and which continues to carry on business or trade. In doing so, the CIPC must have reason to believe that the insolvency is due to business conditions caused by the Covid-19 pandemic. This practice note will lapse within 60 days after the declaration of a national disaster has been lifted. However, it is important to note that the CIPC has merely given an indication of its practice. This practice note does not release a company from its statutory obligation under section 22 of the Companies Act. The board of a company is still obliged to fully apply the solvency and liquidity test wherever required by the Act.

Equal treatment of creditors
Boards need to make sure that creditors are not preferred. Dispositions without value must not be made prior to formal insolvency procedures being implemented. The board needs to limit exposure if it seems unlikely that the company will not be able to trade out of its financial position.

Review the company’s contracts
Boards should check the terms of existing contracts for protection of the company, including revising the force majeure clauses where possible, or including express ‘infectious disease’, ‘lockdown’ or ‘pandemic’ wording into new contracts.

Review the company’s insurance programme
Boards should ensure that insurance arrangements can cover Covid-19 related cancellations or business interruptions and seek professional advice on the adequacy of the company’s D&O insurance coverage.

Ensure ongoing communication and engagement with all stakeholders
It may be required by the JSE listing requirements for listed companies to update their stakeholders with all material information. It is recommended that all companies keep their stakeholders informed so as to bolster the support of the boards’ management by its stakeholders.

Consult with experts in respect of Covid-19 issues
Apart from staying on top of developments in respect of Covid-19, including changes to laws and government programmes, directors should consider seeking expert advice on Covid-19 issues. Expert advice includes legal opinion as well as advice of financial advisors, in order to better understand the company’s exposure to risk and financial projections.

Corporate restructuring
Where it is unlikely that a distressed financial situation will improve post-pandemic or where a company will not be able to trade out of its position, boards need to consider implementing corporate restructuring techniques. Corporate restructuring may involve cost reductions, attempts to raise funds through the issue of shares, loans or disposals (for fair value), attempts to negotiate a debt standstill and debt restructuring, or placing the company in business rescue or proposing a voluntary liquidation.

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Business interruption insurance: Could you be covered for Covid-19?

Business interruption insurance is designed to compensate a business for the financial impact of an interruption or interference as a result of physical damage to the insured property or due to external events such as damage at a key customer or supplier's property.

“Contingent” losses are those stemming from damage to property not owned, controlled, or operated by the insured. Businesses can purchase contingent business interruption coverage, an aspect of business interruption insurance, where the coverage is triggered by property damage at the premises of a supplier or customer, or another trigger such as loss of utility, denial of access or an act of a local authority which results in a financial loss to the business.

Most contingent coverage is designed to protect the insured when suppliers, customers, or property on which an insured may depend suffer damage or are prevented from delivering or receiving goods and/or services.

Not all contingent coverage requires damage to property. Some merely requires loss caused by an insured peril or, in the case of all-risk policies, a non-excluded peril. For example, losses suffered as a result of the national lockdown may trigger a response under an all-risks policy.

In Fountain Powerboat Indus. v. Reliance Ins. Co., a policy that covered “the necessary interruption or reduction of business operations conducted by the insured and caused by loss, damage, or destruction by any of the perils not excluded” did not require physical damage to trigger what is known in the USA as civil authority or ingress/egress coverage.

The purpose of business interruption insurance is to restore the business to the same financial position as if the loss had not occurred, as well as to cater for additional or increased costs/expenses incurred to minimize further loss of revenue and lessen the time to do so, subject always to the terms and conditions of the policy.

Examples of impacts associated with Covid-19 may include:

  • Contingent business interruption loss as a result of government-imposed quarantines of individuals and communities deemed to have clusters of cases, as well as enforced closures or severe restrictions on businesses, as in the current national lockdown;
  • Income loss and business interruption resulting from closure of a business or significant curtailment of business activity, or extra expenses due to the closure of a facility of a key customer or supplier;
  • Resulting loss of income, either from the closure of the insured premises or loss of customers due to identification of the coronavirus at the insured premises;
  • Costs of evacuation of the insured property, and
  • Costs of testing and sanitizing of the insured premises.

Generally, the applicable standard conditions for coverage for a contingent business interruption include:

  • 15km radius within the insured premises and territorial limitation;
  • Specified suppliers/customers listed in the policy schedule;
  • Interference/interruption to endure up to 30-60 days; and
  • Applicability of sublimit.

From decided international cases, it is evident that the requirement of “physical damage” or “loss” to trigger a policy response can be given an expansive meaning depending on the policy wording and the cause of the interruption/interference in the business.

For example, in Wakefern Food Corp. v. Liberty Mutual Fire Ins. Co. 2009 New Jersey Appellate Division, the court determined that the term “physical damage” was ambiguous and should be construed in favour of coverage where a grocery store suffered loss following a blackout.

Similarly, in Gregory Packaging Inc. v. Travelers Prop. Cas. Co. of Am., the District Court for the District of New Jersey found that “courts considering non-structural property damage claims have found that buildings rendered uninhabitable by dangerous gasses or bacteria suffered direct physical loss or damage”.

In American Guarantee & Liability Insurance Co. v. Ingram Micro Inc, 2000, the court held that “physical damage” could not be restricted to “physical destruction or harm” to the computer network system, but includes “loss of use, loss of access and loss of functionality”.

One of the key considerations to determine coverage of claims arising from Covid-19 related losses will be whether businesses incurred “direct physical loss or damage” to the insured peril(s) or a non-excluded peril in the case of all-risks policies. International cases, in part, may offer an answer or some guidance in this regard.

There is no standard contingent business interruption policy, and coverage will need to be determined based on the specific facts and type of insurance cover. All businesses must immediately take steps to carefully evaluate their insurance coverage.

If there is a possibility that coverage is available, the insured should promptly notify their insurers, take steps to minimize damage (where possible), and diligently quantify and categorize their losses. Similarly, insurers need to assess and determine their exposure for potential claims arising from the Covid-19 outbreak and the resultant lockdown.

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Here is the latest updated list of all the essential goods and services during South Africa’s coronavirus lockdown

Prior to the start of South Africa’s coronavirus lockdown, the Department of Cooperative Governance and Traditional Affairs (CoGTA) gazetted a list of essential goods which may continue to be sold during the lockdown period, as well as the essential services which are exempt from most lockdown restrictions.

On the goods side, the regulations state that all retail shops and shopping malls must be closed, except where these essential goods are sold. The regulations also state that stores will be prohibited from selling any other goods.

Businesses face strict punishments for breaching these prohibitions including a fine, or imprisonment of up to six months.

However, since this list of goods was gazetted nearly four weeks ago, government has introduced a number of new goods and revisions on what can and cannot be sold.

Below, law firm Werksmans Attorneys provided an updated list of essential goods as of Tuesday (21 April) alongside the measures businesses will have to follow when selling them.


  • Any food product, including non-alcoholic beverages, but excluding cooked hot food;
  • Animal food;
  • Chemicals, packaging and ancillary products used in the production of any food product.

Cleaning and Hygiene Products

  • Toilet Paper, sanitary pads, sanitary tampons, condoms;
  • Hand sanitiser, disinfectants, soap, alcohol for industrial use, household cleaning products, and personal protective equipment; and (iii) Chemicals, packaging and ancillary products used in the production of any of the above;
  • Products for the care of babies and toddlers. The products include baby clothes, blankets, towels and other essential accessories for new-borns, infants and toddlers up to 36 months old; and
  • Personal toiletries, including hair-care, body and face washes, roll-ons, deodorants, toothpaste.


  • Medical and Hospital Supplies, medicine, equipment and personal protective equipment; and
  • Chemicals, packaging and ancillary products used in the production of any of the above.


  • This includes gas and coal.

Basic goods

  • This includes airtime, electricity and the withdrawal of cash;

Hardware and repairs

  • Hardware, components and supplies required by any qualified tradespersons solely for the purpose of emergency repairs at residential homes;
  • Hardware, components and supplies required by an entity engaged in the provision of essential services for any project related to the provision of water, electricity or other essential services;
  • Components for vehicles under-going emergency repairs where such vehicles are used by persons engaged in essential services work.

The regulations make it clear that stores selling hardware products and vehicle components must maintain a register of persons buying essential goods listed and must keep a record of a signed declaration, which corresponds with the buyer of goods attesting that the goods are essential goods as defined in the regulations.


  • Information and Communication Technology devices (such as desktops, laptops, modems and other devices) for education purposes;
  • Gases, liquids and chemicals used in the preservation of biological samples and maintenance of equipment and machinery; and
  • Animal feed for laboratory and farm animals.

Essential services

Government has made a number of changes to its ‘essential service’ regulations since the start of South Africa’s coronavirus lockdown.

In terms of the regulations, personnel that are deemed ‘essential’ will be exempted from the stay-home provisions as they are vital for continued functioning of these companies during the lockdown.

Below, law firm Werksmans Attorneys provided an updated list of essential servicesas of Tuesday (21 April) alongside the measures these businesses will have to follow.

  • Medical, health (including mental health), laboratory and medical services and the National Institute for Communicable Diseases;
  • Disaster management, fire prevention, fire fighting and emergency services;
  • Financial services, including services in the banking, payment, financial market, insurance savings & investment, pension fund, and medical aid industries.
  • Services necessary for the provision of social grants;
  • The production and sale of essential goods;
  • Grocery stores, and wholesale produce markets, including spaza shops, informal fruit and vegetable sellers and langanas with written permission from a municipal authority to operate;
  • Electricity (including vital demand management services), water gas and fuel production, supply and maintenance;
  • Critical jobs for essential government services;
  • Birth and death certificates, and replacement identification documents;
  • Essential municipal services;
  • Care services and social relief of distress provided to older persons, the mentally ill, persons with disabilities, the sick, and children;
  • Funeral and cremation services, including mortuaries services and the transportation of mortal remains;
  • Wildlife Management, anti-poaching, animal care and veterinary services;
  • Newspaper, broadcasting and telecommunication infrastructure and services including call centres critical for the support of such services;
  • Production and sale of any chemicals, hygiene products, pharmaceuticals for the medical or retail sector;
  • Cleaning, sanitation, pest control, sewerage, waste and refuse removal services;
  • Services related to the essential functioning of courts, judicial officers, the Master of the High Court, Sheriffs and legal practitioners required for those services;
  • Essential SARS services defined by the Commissioner of SARS;
  • Police, peace officers, traffic officers, military medical personnel and soldiers, correctional services officials and traffic management services;
  • Postal services and courier services related to the transport of medical products;
  • Private security services;
  • Air-traffic Navigation, Civil Aviation Authority, air charters, Cargo Shipping and dockyard services;
  • Gold, gold refinery, coal and mining;
  • Accommodation used for persons rendering essential services, quarantine, isolation and the lockdown;
  • Production, manufacturing, supply, logistics, transport, delivery, critical maintenance and repair in relation to the rendering of essential services including components and equipment;
  • Transport services for persons rendering essential services and goods, and transportation of patients;
  • Services rendered by the executive, members of parliament, members of the provincial legislature, members of local councils, the judiciary, and traditional leaders.
  • Transport and logistics in respect of cargo and goods to neighbouring countries;
  • Tow trucks and vehicle recovery services;
  • Call centres necessary to provide health, safety, social support, government and financial services, debt restructuring for consumers of retails, and access to short-term insurance policies as a result of reduced income or loss of income;
  • Harvesting and storage activities essential to prevent the wastage of primary agricultural goods;
  • Implementation of payroll systems to the extent that such arrangement has not been made for the lockdown, to ensure timeous payments to workers;
  • Critical maintenance services which cannot be delayed for more than 21 days and are essential to resume operations after the lockdown;
  • Trades necessary for the rendering of emergency repair work, including plumbers, electricians, locksmiths, glaziers, roof repair work;
  • Trades necessary for emergency automobile repairs for persons rendering essential services;
  • Information and Communication Technology services rendered to entities and institutions engaged in delivering essential services;
  • Road services including: tollgate operators, road emergency operators, employees responsible for safe operation of the roads; and rail logistic operators.

New certificates

Companies which have been registered through the Companies and Intellectual Property Commission’s (CIPC) BizPortal to perform essential services during the lockdown period, will be required to have a new certificate from the BizPortal website for the extended period of the lockdown.

These certificates were sent via email to businesses that had already applied to the CIPC during the first phase of the lockdown.

The new certificate will clearly state it is valid from 17 April 2020. Old certificates must be discarded. The new certificates will be available to be displayed from start of business on Monday (20 April 2020).

The DTI has also indicated that the registration portal is only for companies registered in terms of the Companies Act.

Other essential service providers, such as healthcare professional, sole providers (which includes Spaza shops etc.) and small scale farmers will not have a certificate, but must still comply with the regulations – taking into account the amendments.

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Essential services businesses need new certificate

Companies, which are registered through the Companies and Intellectual Property Commission's (CIPC) BizPortal to perform essential services during the lockdown period, will be required to have a new certificate from the BizPortal website for the extended period of the lockdown.

“The new certificate will clearly state that it is for the extended lockdown period, beginning 17 April 2020, and South African Police Service officials will be told which certificates to look for,” the Department of Trade, Industry and Competition said in a statement.

To provide time for businesses to adjust to the new requirements, the new certificates will be available to be displayed from start of business on Monday, 20 April 2020.

“The certificate will be sent via email using the details provided at the time of registration, and will also be available for download from Thursday. Companies will receive the certificates from Thursday and the full list of registered companies will have received their certificates by the weekend,” the department said.

The CIPC certificate is a reference to the legal registration of the company in terms of the Companies Act, 2008 (Act No. 71 of 2008) and a record of registration to the CIPC.

It does not give a firm or individual a right to trade if that company does not fall into an essential service as defined in the lockdown regulations.

The department reminded the public that possession of the CIPC certificate is still subject to the company fully complying with the applicable lockdown regulations and is a record of the company’s details, and does not in itself constitute the right to continue operating during the period.

“Only businesses which provide essential services in terms of the lockdown regulations, as amended, issued by the Minister for Cooperative Governance and Traditional Affairs may continue their operations during the COVID-19 lockdown,” the department said.

The registration Bizportal is only for companies registered in terms of the Companies Act.

Other essential service providers, like healthcare professionals registered with the Health Professions Council of South Africa, sole proprietors who provide essential goods and services (like small business owners and spaza shops), and small-scale farmers will not register through the Bizportal.

These businesses will not have a CIPC certificate, but must still comply with the provisions of the lockdown regulations.

“Where the CIPC finds that certificates have been issued to companies which do not meet the definitions of an essential service, such certificate will be revoked, and the company will be referred to the South African Police Services.

“False declaration by the company is a criminal offence and will result in prosecution, in terms of lockdown regulations,” the department said.

The regulations for the extended lockdown have also clarified that the transportation of liquor is prohibited, except where alcohol is required for industries producing hand sanitisers, disinfectants, soap, alcohol for industrial use and household cleaning products.

To confirm if your business complies, the public can consult the necessary regulation here

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Is lockdown bringing out the best in SA insurers?

In the weeks since South Africa's Covid-19 lockdown started, local insurers appear to be embracing the Treating Customers Fairly (TCF) principles even more so than required by law under normal conditions.

Sustaining this could stand the industry in good stead when the next round of regulatory reform is considered, says Christine Rodrigues, partner and insurance law specialist at Bowmans. "At this point, it seems that South African insurers are practising TCF as best they can. ‘Locally, we have seen many insurers encouraging people to claim under their policies, and reducing excesses if claims are made within between April and June 2020. Some insurers have extended financial assistance to their suppliers, especially those that are small to medium businesses and meet the turnover threshold of R2m a year."

She says South African insurers appear to have aligned themselves with the national priority of minimising the spread of Covid-19 so that the pandemic can be halted sooner rather than later.

"This is not to say that the insurance industry itself has no exposure to the pandemic. The International Association of Insurance Supervisors (IAIS), of which South Africa is a member, has recognised that insurers globally are substantially exposed. This exposure is not only in terms of increased capital requirements, with investments in assets being affected, but also in terms of more claims being required to be settled."

However, the insurance sector should weather the storm thanks to the stricter measures put in place after the financial crisis that lasted from 2007 to 2012, to protect policyholders and maintain financial stability.

"But just as the global financial crisis triggered the most recent wave of regulatory regime reform, it seems that the Covid-19 pandemic may be the spark for further reform in the future," says Rodrigues.

Losses and claims will dictate change

"The IAIS has already indicated it will be using the framework it has developed over the last couple of years to assess the impact of Covid-19 on the global sector. Any regulatory reform will therefore be influenced by the losses and claims sustained globally."

While it is impossible to predict the extent of those losses and claims, one thing is certain, she says. "How insurers deal with claims and consumers during this period will have an influence on whether tighter regulatory reforms are required. "

Rodrigues says international insurers are offering some of their customers payment holidays. "In South Africa, under the Policyholder Protection Rules, a grace period for premium payment is required by law, and the Financial Sector Conduct Authority has reminded insurers of this requirement and to ensure that the non-payment of premiums does not automatically result in a lapsed policy."

She also points out that the principles of TCF that bind all insurers do not mean the customer is always right. "Nor does TCF mean that each and every claim needs to be paid where the policy does not provide cover."

What it does mean is where the policy:

  • does provide cover and a claim is made, it must be settled in a reasonable time period;
  • does or does not provide any cover, insurers should be highlighting this to consumers; and
  • is ‘grey’ in its terms and conditions, insurers should be making educated claims decisions. For example, if the claim is rejected, what is the impact on that person or business? "Perhaps a partial ex-gratia claim needs to be considered," says Rodrigues. "Obviously always ensuring that this does not result in a financial strain on the insurer which is to the detriment of the rest of its policyholders."

"TCF is being embraced in South Africa during this unsettling period. Only time will tell if Covid-19 will result in further regulatory reform. In the meantime, our priority must be to minimise the spread of this virus and hope that this crisis will soon come to an end," she says.

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Nxesi urges employers to comply with labour law during lockdown

The nationwide lockdown and the resultant remote working implemented by employers may increase the liability exposure of financial and professional services firms - conveyancers, asset managers, intermediaries and bankers. Generally, the relationship between professional and financial advisors and their clients is governed by a written mandate which expressly sets out the terms of engagement. Historically, we have seen in court judgements that non-compliance with the mandate often results in financial loss for the defaulting party.

In the recent Supreme Court of Appeal (SCA) judgement in Global & Local Investments Advisors (Pty) Ltd v Nikolaus Ludick Fouché (71/2019) [2020], delivered on 18 March 2020, the court held that a transfer of funds, without a signed instruction having been given to the investment advisor empowering it to transfer the amounts from the client’s investment account, was unlawful as it conflicted with the terms of the mandate which required an instruction bearing the signature of the client.

Facts of the case

Fouché gave a written mandate to Global, a financial services provider, to act as his agent and invest money on his behalf. The written mandate stipulated that all instructions must be sent by fax or by email to specified recipients, with the client’s signature.

Subsequently, Fouché’s gmail account was hacked by fraudsters and, utilising his authentic email credentials, sent three emails instructing Global to transfer specified amounts to the accounts of named third parties. Two of the three emails containing the instructions to transfer the money ended with the words “Regards, Nick” while the third one ended with “Thanks, Nick”. Pursuant to the instructions, Global complied and made the payments to the third parties’ accounts. On becoming aware of the transactions, Fouché claimed payment of the amounts transferred to the third parties’ accounts on the basis that Global had paid out the investment funds contrary to the written mandate.

Global’s defence was that it had acted within the terms of the mandate in that the instructions emanated from the legitimate email address of Fouché and that the typewritten name “Nick” at the foot of the emails satisfied the signature requirement, having regard to section 13(3) of the Electronic Communications and Transactions Act 25 of 2002 (ECT Act).

Section 13(3) of the ECT Act reads as follows:

“Where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if:

    (a) a method is used to identify the person as to indicate the person’s approval of the information communicated; and
  • (b) having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.”

The SCA stated that under these circumstances, this was not a case where parties had agreed to accept an electronic signature as envisaged by section 13(3) of the ECT Act. It was rather a case where the parties required a signature. No more and no less. The court in delivering its judgement considered the legal meaning of “signature”, as well as a line of authoritative cases, and held that Global’s contention that Fouché’s dispatching gmail address together with his name at the end of the email served an authentication purpose appeared contrived. More so since the mandate required a “signature” which in everyday language and commercial context serves an authentication and verification purpose. For Global to be able to resort to section 13(3) of the ECT Act, it would have to show that in terms of the mandate an electronic signature was required.


The court held that in the conspicuous absence of the word “electronic” in the mandate, what was therefore required was a signature in the ordinary cause, namely in manuscript form, even if transmitted electronically, for the purpose of authentication and verification. The instruction to Global was not accompanied by such a signature. For these reasons, the court concluded that the funds were transferred without proper instructions and contrary to the mandate. As a result, the appeal was dismissed with costs.

The judgement is timely and instructive in view of the Covid-19 outbreak. The judgement is a stark reminder that during these chaotic and stressful times, with heightened risk of cybercrime, the conduct of professionals in the financial and professional services sector must remain above reproach and be governed by their mandates with their clients.

As such, it is imperative that the reasonable standard of care, diligence, vigilance and circumspection still needs to be exercised regardless of the present circumstances. Anything short of that will inevitably culminate in a professional liability claim and resultant financial.

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Nxesi urges employers to comply with labour law during lockdown

South Africa has entered completely unchartered waters in the past week, and divorced and separated parents as well as co-holders of parental rights and responsibilities, such as guardians, were left somewhat in the dark not knowing what the lockdown means for their respective contact rights.

The good news however, is that co-holders of parental rights and responsibilities finally have clarity on what they can and cannot do during lockdown.

The Department of Social Development issued regulations on 30 March 2020, outlining both the obligations of parents and those others who may have primary residency over their children during the lockdown, as well as their duties towards the parents who do not.

The regulations aim to ensure that the spread of Covid-19 is contained while minimising the possibility of a child’s exposure to the virus. Regulation 6(m) of the directions specifically prohibits the movement of children between divorced and separated parents or other co-holders of parental rights and responsibilities, during the lockdown period. Children are therefore to remain in the care of the parent they were with at the start of the lockdown period, until it has ended.

Staying in contact

These parents are, however, required to encourage and create a suitable environment for the parent who the children are not with, to have regular contact and communication with their children. A broad base of mediums, including SMS, WhatsApp, Skype, FaceTime, Zoom etc. are available for this purpose. The most effective medium that would afford optimal interaction between parent and child from both a visibility and sound quality perspective, should in our view be utilised.

The regulations have furthermore created an obligation for parents to explain Covid-19 to their children and what measures have been put in place to contain the spread thereof. Children need stability and routine. They are very much aware that things are suddenly different and can sense that all is not well in this world. We as such have to do what we can to manage their anxiety and feelings of insecurity and frustration, which they no doubt are also experiencing.

Our courts are for all practical purposes closed, and only remain open during the lockdown period to hear truly urgent matters in exceptional circumstances. As the upper guardians of all children, the courts will simply put a child’s health and safety first, and have already ruled that contact arrangements during the lockdown period are not considered urgent. No matters will as such be entertained where a child is safe and cared for.

Despite any feelings of uncertainty and apprehensiveness, parents and other holders of parental rights and responsibilities are therefore cautioned to strictly adhere to the regulations. Attempts to find or create perceived loopholes to move the children between themselves in their own self-interest are strongly discouraged. It is only with strict adherence to the rules that parents can responsibly and lovingly assist their children to safely and healthily navigate their way to a better tomorrow.

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Nxesi urges employers to comply with labour law during lockdown

Employment and labour minister Thulas Nxesi has pleaded with employers to comply with the labour laws and the Covid-19 regulations. Addressing reporters during a social cluster press briefing on Tuesday, 31 March, the minister revealed that some employers were still not adhering to the relevant laws.

These ranged from some employers forcing employees to take leave, to employers providing non-essential services obtaining fraudulent operating and trading certificates. “Inevitably, there will be challenges and the need to take remedial action. This is the case in relation to leave arrangements,” said the minister.

He said the department has in recent days been inundated by concerns from workers and unions about employers who shift the burden of the lockdown onto the workers, making workers use their annual leave as the first line of response to the lockdown. Nxesi said complaints also included those of employers instructing workers to take unpaid leave during this lockdown.

“We do understand that in terms of the leave determination, employers can compel employees to take leave at any time as they deem fit. However, this is a unique situation that requires all of us to act in a manner that promotes social solidarity,” Nxesi said.

The department, he said, has issued a directive explaining the process to be followed, and the kind of benefits employees will be entitled to under the Unemployment Insurance Fund (UIF).

The department has also announced a National Disaster Covid-19 benefit that the UIF has put in place as an instrument to mitigate the effects of lay-offs of workers during the lockdown.

“It is important though that all parties understand that the UIF cannot deal with millions of individual claims. This would lead to delays in the processing of such claims. Instead, we have put in place systems to pay out UIF benefits through companies, sectoral associations and bargaining councils.

“We are in the process of concluding such an agreement with the Textile Bargaining Council. We would also like to mention that discussions with the travel and tourism sector are underway,” he said.

The department has also engaged the Banking Council to facilitate UIF payments.

“We are moving away from the traditional model of individual claims through Labour Centres, which would be simply overwhelmed. It would also turn Labour Centres into virus hubs, as they would attract huge crowds,” Nxesi said.

He said it was important to stress that such arrangements for group/collective payments require that a Memorandum of Understanding be entered into with employer bodies and bargaining councils, and that their use of the monies will be subject to audit.

He urged parties to get together and engage in order to expedite the payment of these monies to the workers that need them.

The UIF staff is available to assist on +27(0)123371997 from 8am - 8pm. The call centre operates from Monday to Friday.

Nxesi thanked employers, who have already demonstrated social responsibility and solidarity by not only paying workers in full during this lockdown, but also by making themselves available to assist by acting as disbursing agents during this period.

Essential workers

“Firstly, it appears that some employers who are not delivering essential services and goods are forcing their employees to work. Employers are either unaware or choose to ignore the provisions of the National Disaster legislation and regulations, which only provide for essential services and production to continue at this time,” Nxesi said.

In terms of Regulation 11G, this is a criminal offence and puts at risk not only those employees, but all who they are in contact with and goes against the call for as many of us as possible to stay at home”.

“Any employee who is not involved in a business delivering essential services and goods and who is forced to work is entitled to contact the SAPS [South African Police Service] and report their employer.

“Any worker who does this and is subsequently victimised will be protected by the Labour Relations Act, since this is an unfair labour practice,” the minister said.

The minister further urged employer organisations to intensify their communication to individual employers informing them of their responsibilities during this critical period.

Health and safety

The minister said employers are required to ensure that the Occupational Health and Safety Act is adhered to in respect of occupational hygiene and the provision of personal protective equipment.

He said the department has received numerous complaints from workers that some employers are forcing them to work without the necessary personal protective equipment.

“Our labour inspectors are following up, particularly at the moment in Gauteng, Western Cape and KZN. Indeed, a number of retail and manufacturing enterprises have been temporarily closed exactly for these reasons: lack of PPE and failure to ensure social distancing,” he said.

He urged non-compliant employers to do the right thing.

“If the situation persists, we will start to name and shame individual companies and branches,” warned Nxesi.

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Covid-19 declared national disaster

The South African government has been promptly responsive in formulating ways in which to maintain business viability so as to minimise the undoubtedly crippling effects of Covid-19 and to ensure swift and effective healthcare service in the country.

To this end, the Minister of Trade, Industry and Competition in South Africa has issued various regulations in response to the declaration of the Covid-19 pandemic as a national disaster by the South African government and to strengthen its programmes designed to fight the virus. These regulations, which will remain effective until the national disaster status is rescinded, are:

  • The Covid-19 Block Exemption for the Healthcare Sector Regulations (Exemption for the Healthcare Sector Regulations), effective as of 19 March 2020;
  • The Consumer and Customer Protection and National Disaster Management Regulations and Directions (Consumer/Customer Protection and National Disaster Regulations), effective as of 19 March 2020;
  • The Covid-19 Block Exemption for the Banking Sector, 2020 Regulations (Exemption for the Banking Sector Regulations), which are effective as of 23 March 2020; and
  • The Covid-19 Block Exemption for the Retail Property Sector, 2020 Regulations (Exemption for the Retail Property Sector Regulations), which are effective as of 24 March 2020.

These regulations are dealt with briefly below.

Exemption for the Healthcare Sector Regulations

These regulations have been promulgated to enable healthcare players to cooperate on ensuring that there is adequate capacity and stocks at healthcare facilities throughout the country in order to respond to the Covid-19 national disaster.

The regulations are aimed at exempting a category of agreements or practices in the healthcare sector from the application of section 4 (which prohibits restrictive horizontal practices, including cartel conduct between competitors) and section 5 (which prohibits restrictive vertical practices, including minimum resale price maintenance) of the South African Competition Act. It is envisaged that the exemption will assist in ensuring that private and public healthcare service providers cooperate and provide the necessary care to citizens without fear of falling foul of the Competition Act. The cooperation envisaged between competitors in the healthcare sector should not extend to communication and agreements in respect of prices charged to the public (i.e. price-fixing), and cooperation will take place at the request of and in coordination with the Department of Health.

The healthcare players covered by this exemption include those between hospitals or healthcare facilities, medical suppliers, medical specialist or radiologists, pathologists or laboratories, pharmacies and healthcare funders. Healthcare companies who participate in any agreements or practices falling with this the scope of this block exemption should keep minutes of meetings held and written records of such agreements or practices.

How the exemption will apply in practice is not yet clear. However, what is noteworthy is that it appears that the Department of Health will be central to the cooperation between the various healthcare players, in that it will issue a request for such cooperation where, presumably, specific areas of coordination are identified (on the basis of limited capacity, lack of stock, etc.) and will also coordinate with the relevant healthcare players.

Whilst these regulations have come into force, the Department of Trade, Industry and Competition has allowed for representations to be made no later than 14 days from the date of publication (icalculated from 19 March 2020).

Consumer /Customer Protection and National Disaster Regulations

There have been a growing wave of concerns by the government and consumers that companies may seek to charge higher prices for goods given the tight supply-demand balance caused by Covid-19. The minister promulgated these regulations to address this concern. Accordingly, these regulations relate to, amongst other things, "excessive pricing" by dominant firms during the Covid-19 outbreak. Under the Competition Act, a dominant firm may not charge an excessive price to the detriment of consumers or customers. The regulations suggest that there will be scrutiny of material increases in price for certain goods or services, particularly where:

  • the increase does not correspond to, or is not equivalent to, the increase in the cost of providing that good or service; or
  • the increase inflates the net margin or mark-up on that good or service above the average margin or mark-up of that good or service in the three-month period prior to 1 March 2020.

The goods and services in question are as follows:

  • Toilet paper
  • Hand sanitiser
  • Facial masks
  • Disinfectants cleaners
  • Surgical gloves
  • Surgical masks
  • Disinfectant wipes
  • Antiseptic liquids
  • All-purpose cleaners
  • Baby formula
  • Disposable nappies
  • Bleach
  • Cooking oils
  • Wheat flour
  • Rice
  • Maize meal
  • Pasta
  • Sugar
  • Long-life milk
  • Canned and frozen vegetables
  • Canned, frozen and fresh meat, chicken or fish
  • Bottled water; and
  • Private medical services relating to the testing, prevention and treatment of the Covid-19 and its associated diseases

The commission has engaged with retailers, amongst other stakeholders, in the healthcare sector and agreed that the commision would be advised of "unusual increases of prices" by suppliers. A dominant firm that contravenes or fails to comply with the regulations may be investigated by the Commission on charges of excessive pricing and if found to have contravened the regulations, may be liable to an administrative penalty.

Dominant firms should guard against inflating prices beyond acceptable standards (raising prices to a level where there is no reasonable relation between the price charged by a firm and the firm's input costs) during the Covid-19 period to minimise any risks of competition law investigations based on excessive pricing.

Whilst these regulations have come into force, the Department of Trade and Industry has allowed for representations to be made no later than 14 days from the date of publication (icalculated from 19 March 2020).

Exemption for the Banking Sector Regulations

The president indicated that commercial banks have been exempted from provisions of the Competition Act to enable them to develop common approaches to debt relief and other necessary measures during the Covid-19 crisis.

Accordingly, these regulations have been enacted for the purpose of exempting a category of agreements or practices between banks, the Banking Association of South Africa and/or Payments Association of South Africa from the application of sections 4 and 5 of the Competition Act at the request of and in coordination with the minister of finance. The exemption is underpinned by the imperative to:

  1. promote concerted conduct to prevent an escalation of the national disaster and to alleviate, contain and minimise the effects of the national disaster;
  2. enable the banking sector to minimise the negative impact on the ability of customers, including both business and private individuals, to manage their finances during the national disaster, and be in a position to continue normal operations beyond the national disaster; and
  3. enable the banking sector to manage the banking infrastructure, including the payment infrastructure, ATMs and branches.

The cooperation envisaged between the banking sector players should not extend to communication and agreements in respect of prices (price-fixing).

The block exemption covers payments system and debtor and credit management:

  • Payments system: the agreements or practices covered are limited to the development of industry monitoring, operational policies and contingency plans in respect of: (i) the continued availability of bank notes to ATMs, branches and businesses; (ii) the continued provision of essential ATM, branch and corporate banking services; and (iii) the continued provision of electronic payments systems.
  • Debtor and credit management: the agreements or practices covered are limited to the development of industry policies and monitoring in respect of: (i) payment holidays and debt relief for business and individual debtors subject to financial stress; (ii) limitations set on asset repossessions of business and individual debtors subject to financial stress; and (iii) the extension of credit lines to individuals and businesses subject to financial stress.

Whilst these regulations have come into force, the Department of Trade and Industry has allowed for representations to be made no later than 14 days from the date of publication (icalculated from 23 March 2020).

Practically, it appears that the trade minister and finance minister will jointly play a key and central role in the implementation of this block exemption.

Exemption for the Retail Property Sector Regulations

Ensuring business survival and continuity, particularly for designated retail tenants, including small and independent retailers informed the promulgation of these regulations.

These regulations are aimed at exempting a category of agreements or concerted practices between designated retail tenants and retail property landlords from the application of sections 4 and 5 of the Competition Act at the request of and in coordination with the Department of Trade, Industry and Competition. The exemption promotes concerted conduct in the retail sector to prevent an escalation of the national disaster and to alleviate, contain and minimise the economic and social effects of the national disaster and enables the retail property sector to minimise the negative impact on the ability of designated retail tenants, including small independent retailers, to manage their finances during the national disaster and be in a position to continue normal operations beyond the national disaster.

Important to note is that the envisaged concerted conduct should not extend to communication and agreements in respect of prices unless specifically authorised by the Department of Trade.

The block exemption applies only to agreements or concerted practices in respect of:

  1. Payment holidays and/or rental discounts for tenants;
  2. Limitations on the eviction of tenants; and
  3. The suspension or adjustment to lease agreement clauses that restrict the designated retail tenants from undertaking reasonable measures required to protect viability during the national disaster.

The above list of agreements may be augmented by the Minister. It is also noteworthy that

  • To qualify for exemption, such agreements must extend to all South African retail tenants in the designated retail lines, including small and independent retailers
  • The designated retail tenants covered by this block exemption are identifiable by the designated trading lines, namely:
    1. Clothing, footwear and home textile retailers;
    2. Personal care services (i.e. hairdressers, health and beauty salons); and
    3. Restaurants

Practically, it appears that the Department of Trade, Industry and Competition will be the main driver of the implementation of this block exemption.

Retail property landlords and designated retain tenants who participate in any agreements or practices falling with this the scope of this block exemption should keep minutes of meetings held and written records of such agreements or practices.

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Covid-19 declared national disaster

President Cyril Ramaphosa has declared the coronavirus pandemic a national disaster last night, and announced a raft of interventions to curb the spread of the disease in South Africa, including closing schools and extending the school holidays, closing 35 ports of entry and imposing a travel ban on foreign nationals from countries with the highest rates of infection.

The measures were the outcome of an emergency Cabinet meeting held on Sunday in Pretoria, and Ramaphosa said the interventions were aimed at protecting South African citizens and the economy and reducing the impact of what he said was a medical emergency far graver than what has been experienced in over a century.

The number of positive cases of Covid-19 in the country has risen to 61, an increase of 10 from the figure released earlier in the day by the Department of Health. Globally, 162 000 people have tested positive for coronavirus and around 5 000 people have died.

“This number is expected to rise in the coming days and weeks. Initially it was people who had travelled into the country, especially from Italy. It is concerning that we are now dealing with internal transmission of the virus,” he said.

The situation, the President said, called for an extraordinary response and no half measures.

During the Cabinet meeting, the virus was declared a national disaster to enable government to have an integrated and coordinated disaster mechanism that will focus on preventing and reducing the outbreak.

During this period, there should be limited contact between people who may be infected and South Africans.

Limiting travel

The travel ban will be imposed from 18 March on foreign citizens who come from Italy, Iran, South Korea, Spain, Germany, United States, Germany, United Kingdom and China. “We have cancelled visas to visitors from those countries from today. Previously granted visas have been revoked,” he said.

South Africans have been advised to refrain from all forms of travel to or through the European Union, the US, UK and other high risk areas. “This is effective immediately,” he said.

Additionally, any foreign national who has visited any of the high risk countries in the past 20 days will be denied a visa. South African citizens returning from these countries will be subjected to testing and self-isolation or quarantine on return.

“Travellers from medium risk countries such as Portugal, Hong Kong and Singapore will be required to undergo high intensity screening. All travellers who have entered South Africa from high-risk countries since mid-February will be required to undergo testing.

“We will strengthen screening and testing measures at the OR Tambo, Cape Town and King Shaka International Airports.”

Of the country’s 53 land ports of entry, the president announced that 35 will be shut down as of Monday. Two of the eight sea ports will be shut down too, for passengers and crew changing.

Effective immediately, all non-essential travel for all spheres of government outside of the country is prohibited.

Government has also discouraged all non-essential domestic travel, particularly by air, rail, taxis and bus.

Limited contact

“… It is essential therefore that we minimise the risk of the spread of this virus by limiting contact amongst groups of people,” he said.

“While we appreciate the economic, religious, and cultural significance of social and community gatherings, the coronavirus is spread through contact between persons.”

The president called for social distancing said therefore gatherings of more than 100 people will be prohibited.

“Mass celebrations of upcoming national days such as Human Rights Day and other large government events will be cancelled. Where small gatherings are unavoidable, organisers will need to put in place stringent measures of prevention and control.

“Schools will be closed from Wednesday, 18 March, and will remain closed until after the Easter weekend. To compensate for this, mid-year school holidays will be shortened by a week.

Government is working closely with colleges, universities and other public facilities such as Parliament, prisons, police stations and military installations to intensify hygiene control.

Addressing reporters, the president also announced that visits to correctional centres have been suspended for 30 days from Sunday.

Measures and responses around institutes of higher learning are expected to be announced by the relevant minister in due course and following consultations. The University of Cape Town has subsequently announced that it will be closed from today, after a staff member tested positive for the disease.

Ramaphosa also urged businesses to ensure necessary measures to intensify hygiene control.

“We also call on the management of malls, entertainment centres and other places frequented by large numbers of people to bolster their hygiene control,” he said.

Quarantine sites

To further boost the country’s health response, the president said, government is strengthening its surveillance and testing systems and is in the process of identifying isolation and quarantine sites in each district and metro.

“We are calling for a change of behaviour amongst all South Africans. We must minimise physical contact with other people and encourage the elbow greeting rather than shaking hands,” the President said.

Because of the severity of this virus and its rapid spreading, government will make funding available to capacitate the sectors dealing with the national response to the Coronavirus outbreak.

National Command Council

Ramaphosa announced that he will be chairing a National Command Council that will include, among others, members of the Inter-Ministerial Committee.

They will meet three times a week, to coordinate all aspects of an extraordinary emergency response.

The president said the pandemic is anticipated to have dire effects on the country’s already waning economy. A dramatic decline in economic activity in major trading partners, a sudden drop in international tourism and severe instability across all global markets have already been recorded.

“This will have a potentially severe impact on production, the viability of businesses, job retention and job creation,” he said.

To soften the blow, Cabinet is in the process of finalising a comprehensive package of interventions to mitigate the expected impact of Covid-19 on the economy.

It is expected to consist of various fiscal and other measures that will be concluded following consultations.

Keeping South Africans safe

The president said government’s priority was to safeguard the health and well-being of South Africans, minimise infections and to ensure all those infected get proper treatment.

“While we are battling a contagious virus, perhaps the greatest dangers to our country at this time are fear and ignorance,” he said.

Despite the extent of the threat that this disease presents, the country should not be overwhelmed by fear and panic.

“This epidemic will pass. But it is up to us to determine how long it will last, how damaging it will be, and how long it will take our economy and our country to recover.

“It is true that we are facing a grave emergency. But if we act together, if we act now, and if we act decisively, we will overcome it,” said Ramaphosa.

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Implications of coronavirus for SA employers

The Department of Health has confirmed the first case of the coronavirus (Covid-19) in South Africa. There is a strong likelihood that there will be other cases of Covid-19 across the country. Naturally, employers will need to bear in mind various employment and health and safety considerations to manage the risk of Covid-19 in the workplace.

This article identifies the key legal considerations from an employment and health and safety perspective, and provides advice on practical steps employers can take to safeguard employees. Please note that given the constant development of the coronavirus, the answers to the questions detailed below will also develop.

From a health & safety perspective, what legal obligations does an employer have in light of the global outbreak of Covid-19?

The Occupational Health and Safety Act 85 of 1993 places an express obligation on the employer to maintain a working environment that is safe and healthy. On the issue of a healthy working environment, the employer must ensure that the workplace is free from any risk to the health of its employees as far as it is reasonably practicable. Within the context of Covid-19, there is a clear obligation on the employer to manage the risk of contamination in the workplace.

Practically, the employer can ensure a healthy working environment by ensuring that the workplace is clean and hygienic, promoting regular hand-washing by employees, promoting good respiratory hygiene by employees and keeping employees informed on developments related to Covid-19.

What practical steps can an employer take to ensure that the workplace is safeguarded from Covid-19?

As an initial step, the employer should conduct a comprehensive risk assessment to determine the likelihood of contamination in the workplace. This assessment should include a contingency and business continuity plan should there be an outbreak of the illness. At this stage, given that South Africa only has one confirmed case of Covid-19, the risk of contamination is low.

However, employers should consider the following proactive steps given the scale of the illness globally -
  • Follow health advice and information: the employer should follow health advice from the WHO (as an international source) and the Department of Health and the National Institute of Communicable Diseases (as local sources).
  • Communicate with employees: the employer should consistently provide updates on Covid-19 to employees and its approach at work regarding attendance and preventing the spread of infection. The employer may also wish to display posters that provide information on the illness and hygiene.
  • Prevent the spread of infection: the employer should consider that there are adequate facilities for employees to wash and/or sanitise their hands regularly within the workplace. If it becomes necessary, the employer may introduce a designated area in the workplace where employees may self-isolate if they experience symptoms whilst at work. The WHO has advised that, in countries where the illness has started spreading, employees with a mild cough or low-grade fever (37.3 or more) should be encouraged to stay at home and seek medical attention immediately.
  • Identify vulnerable workers: Covid-19 poses a greater risk to employees with weakened immune systems and long-term health conditions. Vulnerable workers include pregnant employees and disabled employees. Employers should pay special attention to such employees.
  • Update emergency contact information: employees should be required to review and update their emergency contact information.

How should an employer manage employees who travel out of South Africa at this time?

The employer should issue clear travel guidelines to its employees on international travel, particularly to countries affected by Covid-19. The employer should distinguish between employees travelling for business or personal reasons.

Given the scale of the illness and if it is practical, the employer may elect to place a moratorium on business travel until such time as Covid-19 is contained. If this is not possible, a moratorium should be placed on business travel to affected countries.

It may be more challenging to regulate personal/holiday travel by employees. Employees should be encouraged not to travel to affected countries. Importantly, employees who nevertheless choose do so should not be allowed to immediately return to work after such travel. Such employees should be required to self-isolate (compulsory quarantine) for at least 14 days. Employees should be informed that they must take all reasonable steps to avoid exposure to the illness which may mean cancelling or postponing international travel until Covid-19 is contained.

The employer should also bear in mind that travel by employees to countries which are currently unaffected by Covid-19 could still pose a risk of infection as such countries may become affected at any time. In any event, at this stage, the risk of infection is high given the nature of travel, exposure to different people of different nationalities particularly on flights with multiple legs.

It is advisable for employers to consider requesting all employees to disclose international travel (to all countries) undertaken by them (or any person who they live with) since 1 February 2020. This may assist the employer with its risk assessment to determine the likelihood of contamination in the workplace.

If any employee is placed under quarantine by the employer, should the employee be required to take sick leave?

If a medical doctor places an employee in quarantine, the employee should receive a medical certificate and in such circumstances, the employee will be on sick leave.

In the case of compulsory quarantine (i.e. quarantine required and enforced by the employer), the employee will not be on sick leave unless a medical certificate has been issued to the employee placing the employee in quarantine. An employer may require an employee to be quarantined if the employee recently travelled to an affected country or if the employee displays symptoms of the illness whilst at work.

The employer could consider such an employee to be on special paid leave away from the office (depending on the nature of the work performed by such an employee). As an alternative to placing the employee on any type of leave, the employer could make it possible for the employee to work from home. The employer may need to put certain measures in place or assist such an employee to work from home if that is the arrangement.

If it is not possible for the employee to work from home, the employer will not be able to deduct the period of quarantine as sick leave or annual leave as it was made compulsory by the employer. This will be a form of special paid leave that is over and above any other type of leave.

What if an employee requests self-quarantine?

In the case of voluntary quarantine (i.e. quarantine at the request of the employee for precautionary purposes), the employee is not sick and therefore, sick leave should not be imposed. If employees are forced to take unpaid leave or annual leave in these circumstances, they may opt not to self-quarantine. We therefore recommend that this should also be treated as special paid leave. However, to the extent that the employee who requests self-quarantine can work from home, no leave will need to be awarded.

The employer must carefully consider the circumstances under which special paid leave will be awarded to employees. These circumstances must be made clear to employees. It should be an option of last resort as it may be open to abuse by employees.

If the illness spreads across South Africa, the reality for employers is that employees may request to be placed in quarantine to minimise their risk of infection. In this instance, the employer will need to consider implementing remote working for employees who can work from home. The guidelines above need to be applied to determine which form of leave will apply.

What happens after the quarantine period?

After the quarantine period and even if an employee does not display any symptoms, the employer may nevertheless require the employee to be tested by a medical practitioner and to provide the employer with a medical certificate confirming that the employee can return to work.

What is a reasonable period of quarantine?

The WHO has indicated that a person should be in quarantine for a period of at least 14 days.

What if an employee contracts Covid-19?

In such an instance, the employer should apply its sick leave policy to such an employee. The employee must obtain a medical certificate and any time out of the office will be considered as sick leave.

Due to the nature of the illness, an employee with Covid-19 should not be permitted to return to work until that employee is cleared to do so by a medical practitioner.


In order to manage the risk of contamination effectively, employers should consider appointing an internal committee of professionals. The committee will be responsible for issues such as monitoring the spread of Covid-19, assessing the risk of contamination and taking measures to ensure that the workplace is healthy and safe. The committee should include representatives from the health and safety, human resources, and risk and compliance departments of the employer.

Despite only one confirmed case in South Africa, employers should act proactively within the context of Covid-19. Employers who are proactive will ensure that employees are protected and that business can continue to function as efficiently as possible.

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Who assumes responsibility for a child at school?

Over the past few weeks media headlines have been filled with harrowing stories of tragedies across the country affecting learners at schools. These tragedies have obviously fostered much discussion in the media regarding the role of schools in loco parentis. Meaning 'in the place of a parent', this legal doctrine holds that educators assume custody of learners at school, while they do not have the protection of a parent/guardian. Parents delegate certain responsibilities for their children to the school. The school then has a legal responsibility to provide a safe environment. What exactly does this responsibility entail?

In loco parentis means that teachers must constantly look out for their learners’ best interests and welfare. In other words, school officials have the responsibility to prevent foreseeable dangers from harming learners. Over the years, the courts have stood by the principle that heightened preventative measures must be taken by persons who have learners in their custody.

This extends to persons who control any areas where children are present or could possibly be present. Children do not necessarily have the same comprehension of danger or potential danger as adults have. So, it is the duty of persons responsible for the children to ensure that no danger exists in these areas. The school, as a custodian of areas where children could be present – sports fields, play areas, classrooms – has the same duty of care (even if the children are not in their custody), to make sure that their premises do not present a risk of harm.

The reasonable person test

To answer whether a danger exists, courts ask if a reasonable person responsible for a child would have removed the danger or kept the child away from it. This ‘reasonable person’ is a fictional average man or woman, who is not reckless or overcautious. They are aware of their surroundings, and the dangers inherent in various activities. Should the person concerned also have a particular expertise, then their conduct is measured against that of the reasonably skilled, competent and experienced person of such a group.

Questions the court may ask include:

  • Should the educator/school have foreseen that their actions (or failure to act) could cause damage or injury to the learners?
  • Should the educator/school have had the knowledge and skill, which would have enabled them to foresee the damage or injury?
  • Should the educator/school have taken reasonable steps to guard against or prevent such an eventuality?
  • Should the educator/school have arranged to make sure the steps envisaged were carried out?
  • Did the educator/school neglect to do so?

Understanding delictual liability losses:

Schools acting in loco parentis may be exposed to delictual liability losses. These are losses concerned with damages suffered by a person resulting from a wrongful act or the omission of another, for which that person is entitled to compensation in terms of our common law. Delictual liabilities include cases where a third party holds a school liable for damages or injury they sustained. The five requirements for delictual liability are: conduct; wrongfulness; fault (intention or negligence); causation; harm. Each of these must be proved for a person to have committed a delict (violation of the law), and thus to be delictually liable.

How do schools mitigate the risks associated with in loco parentis?

Many schools transfer the risks to a reputable insurer and use the insurer’s expertise for proactive risk management. For example, the insurer can advise on how to mitigate risks involved in external activities that could put learners at risk, through measures like these:

  1. Prominent signs must be displayed stating that participation in this activity is at the participant’s own risk. Any participant in this activity must sign a document drawn up by a qualified attorney disclaiming the liability of the insured or any partner or director or employee of the insured prior to taking part in the activity.
  2. Supplying of suitable safety equipment and clothing to all participants for the activity concerned.
  3. All equipment provided or to be used must undergo safety checks before use to ensure it is fit for purpose.
  4. All safety equipment and braking systems must undergo daily safety checks before use to ensure they are fit for use.
  5. Ensure that equipment provided is not overloaded beyond its designed carrying capacity and is used according to the manufacturer’s guidelines.
  6. An adequate number of suitably qualified and experienced employees must be present to supervise all events and ensure that the equipment is being used within its design tolerances (reduced further if more hazardous conditions exist). The employees must also ensure the equipment and safety equipment are correctly used.
  7. If the activity takes place in or on water or involves the riding of an animal, then persons under the age of 14 are not allowed to participate in this activity unless accompanied by an adult. (If the riding of an animal is in respect of a domestic animal such as a horse, then the age requirement could be lowered to 7 years of age.)
  8. All participants shall wear a life jacket if the activity involves water.
  9. All participants shall wear a helmet when there is any possible risk of head injury. This includes activities with water and rivers, animals or that take place at height.

t’s important that schools seek an insurance product that addresses the risks they’re exposed to and provides additional cover and benefits tailored to their needs. It’s also vital to ensure the product’s definition of the insured extends to include all parties who have custodianship over children, from the principal and teachers to part-time teachers, pupils, trustees of the governing body and members of the parent teachers association.

The school’s in loco parentis responsibility is extremely serious, and it’s pivotal all parents and school-linked parties are familiar with the legalities involved.

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Employment Equity Amendment Bill to bring about real transformation

As the Employment Equity Amendment Bill makes its way to Parliament for deliberation, the Department of Employment and Labour has set the ball in motion for the introduction of sector-specific Employment Equity numerical targets.

“We are already busy with negotiations with different sectors in terms of the targets. We are not waiting for the bill. The process has started already,” said the department’s Chief Director of Labour Relations, Thembinkosi Mkhaliphi, on Wednesday.

In an interview with SAnews, Mkhaliphi said consultations have already been had with the mining, banking and retail sectors.

This comes as Cabinet on Tuesday announced its approval of the Employment Equity Amendment Bill 2020, to be submitted to Parliament.

The amendments empower the Employment and Labour Minister Thulas Nxesi, in consultation with sector stakeholders, to introduce enabling provisions for the setting of sector-specific Employment Equity numerical targets.

“We will be contacting other sectors to set up the targets and see whether we can reach an agreement. We would want those that we have agreed on, to be published, so that citizens know what targets companies should meet going forward,” said Mkhaliphi, in an interview held at the Government Communication and Information System (GCIS) head office, in Pretoria.

The bill is a result of insignificant transformation in the country’s labour market.


Reflecting on the Employment Equity Act (EEA) that was introduced 21 years ago, Mkhaliphi said there has been limited transformation.

“Maybe it was because of the euphoria of transformation, [former President Nelson] Mandela magic [and] that everybody will embrace transformation and therefore companies will come to the party and accept that transformation and equity make business sense.

“The law then moved from the premise that there should be no involvement of government enforcing transformation in terms of target setting. It left it to companies themselves to set their own targets and goals,” he said.

Government’s role then was to monitor these targets.

“We realised that over the last 21 years, nothing has happened that should have happened and no real significant change has taken place. There has been very limited change and if we [continue] to go at the rate that we’re going, it will take another 100 years before we really transform,” said the Chief Director.

The EEA was enacted to give effect to equality in terms of the Bill of Rights of the Constitution to achieve equity in the workplace.

Government then took a policy decision and drew up the bill following negotiations with the National Economic Development and Labour Council (Nedlac).

If the bill is passed by Parliament, the Minister will hold consultations with the different sectors and set the targets of transformation.

The amendments empower the Employment and Labour Minister, in consultation with sector stakeholders, to introduce enabling provisions for the setting of sector-specific Employment Equity numerical targets.

Impact on small business

The bill also reduces the regulatory burden on small employers. The Bill promotes equal opportunity and fair treatment in employment through the elimination of unfair discrimination.

Employers with less than 50 employees will no longer have to report on their employment equity targets, irrespective of their turnover.

“It is important that we give a break for small business in terms of regulations. While [this bill] is strengthening enforcement in terms of targets set, it also makes it easy for business to operate by lessening the regulatory burden,” he said.

Principle of target setting

Asked whether the sector targets could stifle business, Mkhaliphi said current legislation states that employers can set their own targets and that the introduction of government setting the targets is not new.

“Target setting is not new, except that now government comes into the picture in setting the target. The principle of setting targets is not new, therefore it can’t be said that this is a drastic change that will affect business.”

Mkhaliphi admits that not everyone at Nedlac was happy with the proposed changes.

“It’s a give and take. We put the proposal of lessening the burden on small business to sweeten the carrot. It was also debated at the Employment Equity Commission, where business was also represented.”

State contracts

If passed, the bill will also ensure that an employment equity certificate of compliance becomes a precondition for access to state contracts.

“What we intend to do, is to promulgate that section because that section - the one that prevents companies who are not complying, from doing business with government - hasn’t been promulgated in the last 21-years.

“If you do not meet the target that you [as a business] set for yourself in meeting the sector target, you’re not going to get the certificate of compliance because the law introduces the certificate of compliance that companies should get so that they can do business with government.”

Job losses

Mkhaliphi dismissed the notion that the bill will inadvertently lead to job losses.

“Unless if you’re saying that by putting black people into positions, you’re reducing productivity for companies, that evidence is not there. We do not think that it will affect business. It is how you run your company that affects your business. This notion that black people mean incompetency is not correct,” he said.

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What comes first - production or the purchase?

While commodity prices are currently favourable, the general volatility of commodities in the South African market has often presented a barrier to mining companies accessing traditional forms of financing to enhance their liquidity.

Streaming contracts

Streaming contracts involve an upfront payment to the mining company with the financier being granted the right to purchase a percentage of the production of the mine in the future at an agreed price. This structure presents an advantage whereby the mine is advanced the money upfront, which it can then utilise to produce, mine or process the commodity in order to perform under its various sales contracts.

The use of streaming contracts has, however, not been favoured by South African mining companies as the cost of doing a streaming transaction or a metal prepayment transaction is higher in the local market than other available financing options and because there appears to be a negative sentiment from South African shareholders towards streaming transactions . This is due to their quasi-equity nature, as well as the mining company's commitment to sell a specific percentage of future production from a particular mine to the buyer at an agreed price for the next 10 to 20 years, as opposed to agreeing to sell a specified amount.


Recently, mining companies have utilised hedging or forward sales agreements in respect of commodities. Typically, this structure involves the conclusion of an ISDA Master Agreement with subsequent ISDA confirmations in respect of particular transactions. These contracts are typically concluded on a short-term basis (three to nine months) and provide for the sale of a specified amount of a commodity at a predetermined price. This is calculated by reference to a pre-set formula, which references the spot price of the particular commodity on the actual delivery date. In this type of agreement, the majority of the purchase price will be paid to the mining company in advance and on each actual delivery date, a top-up payment or a repayment will be calculated having regard to the published spot price on the applicable delivery date.

The financier may require the mining company to agree to certain covenants, including the following:

  • to provide either the operating companies as guarantors or a parent company guarantee (if the operating company is already the seller);
  • to prohibit the mining company from entering into any other forward sales contracts in relation to that particular commodity for the duration of the transaction, or to restrict the percentage of its production which the mining company may commit to any forward sale (including by way of metal prepayment facility, streaming or otherwise). Some financiers may also require the mining company to enter into a hedging contract in respect of the commodity price, and this hedging contract may include a floor and cap in respect of the commodity reference price.

Indirect pre-export financing

As an alternative, mining companies may elect to adapt the tried and tested prepayment financing structures otherwise known as indirect pre-export financing. This financing structure is not limited to exchange traded commodities. In this form of financing, the mining company and the financier enter into a prepayment agreement, which provides (as with streaming contracts and forward contracts) that the mining company will receive an upfront payment to enable it to produce, mine or process the commodity. Simultaneously, the parties will enter into a distribution agreement which sets out the terms under which the financier will purchase the pre-approved allocation of the mine's commodity production as against the financier's ability to market, export (where applicable) and sell the commodity to a customer by means of a sales agreement. It is essential in this structure to identify and allocate the risk to the party best placed to bear such risk. The mine's monthly repayment obligations will be set-off against the end customer's payment of the purchase price.

In respect of set-off, the following requirements must be met, namely:

  • the obligations must be between the same parties;
  • must be due and payable;
  • must be of the same kind; and
  • both debts must be liquid. It is important to remember that when it comes to cross-border transactions, parties must comply with any applicable exchange control requirements of the Financial Surveillance Department of the South African Reserve Bank.

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New leave laws may increase mine employee costs

The implementation of the Labour Laws Amendment Act from 1 January 2020 is welcome from an equality perspective but may have cost implications for mining companies.

From 1 January 2020, South Africa’s workplace environment celebrated a breakthrough in the push for equality, with the implementation of new parental leave laws. The amendments may have particular implications for mining companies, whose employees already typically enjoy far more leave days and leave benefits than the Basic Conditions of Employment Act (BCEA) prescribe. Mining companies will need to consider and take expert legal advice on some practical aspects and potential consequences of the new leave laws.

The LLAA introduces three new leave entitlements for employees: parental leave, adoption leave and commissioning parental leave. The LLAA provides that these leave entitlements are unpaid. Qualifying employees are eligible to apply to the Unemployment Insurance Fund (UIF) for income replacement benefits during the leave periods.

An employee who is a parent of a child is entitled to 10 consecutive days parental leave. Parental leave can be taken from the day on which the child is born.

An employee who is an adoptive parent of a child below the age of two years is entitled to 10 consecutive weeks of adoption leave. Adoption leave can be taken from the date on which an adoption order is granted or the day that the child is placed with the prospective adoptive parents, pending the finalisation of the adoption order. If an adoption order is made or a prospective adoption order is pending for two parents, one parent is entitled to take adoption leave and the other parent will be entitled to take parental leave.

An employee who is a commissioning parent in a surrogate motherhood agreement is entitled to 10 consecutive weeks of commissioning parental leave. Commissioning parental leave can be taken from the date on which the child is born. When a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other may apply for parental leave.

At this stage, the UIF system can only process claims for employees who take parental leave, not for adoption or commissioning parental leave. The fund has not indicated when it will be ready to process those claims.

Section 27 of the BCEA, which deals with family responsibility leave, has been amended to be in line with the provisions of the LLAA. It is no longer possible for employees to take family responsibility leave at the birth of their children. They will be able to take parental leave.

The BCEA prescribes four months unpaid maternity leave. Many mining companies however provide paid maternity leave of more than four months. Although the current provision for the three new forms of leave is unpaid, we believe there is likely to be pressure from mining unions and employees to make it a paid benefit, especially at mining companies where maternity leave is paid.

Mining companies need to consider what leave policies and employment contracts need to be amended, and how the additional leave will affect productivity and costs. It is particularly important for companies that already pay maternity leave to consider whether the new leave provisions will also be paid.

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Higher degree of care required when dealing with children

The tragic death of 13-year-old, Enoch Mpianzi from Parktown Boys' High School who drowned at a school orientation camp in the North West on 15 January 2020 has yet again brought into the spotlight the duty of those responsible for children and the standard of care required when dealing with children.

Enoch's body was found two days later and questions have been asked of the school and the owners of the lodge at the campsite whether appropriate measures were taken to ensure that the children were safe to embark on a water-related activity without life jackets and without supervision.

It is negligent to act or fail to act in a way that causes reasonably foreseeable harm to another person. What separates true accidents from acts of negligence causing injury or death is the standard of care that is required in any given situation.

In dealing with liability cases, the general standard of care required is that of the notional reasonable person i.e. would a reasonable person have acted in the same way given the same circumstances.

However, when it comes to children, a high degree of care is required. Teachers owe young children in their care a legal duty to act positively to prevent physical harm being sustained by them through misadventure.

In the case of Pro Tempo v van der Merwe [2016], the appellant Pro Tempo Akademie CC, ran a school which caters for learners who struggle with learning disabilities and which JM, a 13-year-old student, attended. The school erected steel rods around saplings on its playground, where senior students, including JM, played sport. JM was injured on a steel rod after leaning or sitting on it. His mother sued the school.

The court found that a prudent and careful person should have foreseen that sharp projections in the ground where children play are a source of danger to young children and sooner or later might result in injury. The duty of the teachers to take steps to prevent the harm arose from the fact that they accept the responsibility to care for the children.

The court said when inserting the dropper next to the tree in the general playing field where children were known to play ball games, the school created a hazardous and dangerous situation. The foreseeability of damage was therefore present.

In reaching its judgment, the court referred to the case of Transvaal Provincial Administrator v Coley 1925 AD 24 where a 6-year-old girl lost her eye when she fell on a wooden stake that had been erected to protect the trees that had been planted in a portion of the playground.

In that case, the court held that:

...a duty arose to prevent the stakes being a danger to children playing in the vicinity if such danger ought to have been apprehended. And the question whether danger ought to have been apprehended resolves itself into the inquiry whether a diligent paterfamilias, a reasonably prudent person, would have foreseen that they would likely cause harm – in which case they would have been bound either to remove them or to take other steps to obviate the danger.

There are many other examples of case law which confirm the principle that higher duties of care are thrown on those who carry on activities or are in control of structures or property where children are known or should be known to be present.

In Enoch's case, a failure to provide life jackets and proper supervision to pupils taking part in a hazardous water activity would create liability for the school. The foreseeability of harm was present. It would appear from the reported circumstances that the school ought to have provided life jackets for learners in its care and ensured that there was adult supervision of any activities which involved risk of injury or harm. A failure to do so falls short of the standard of care required of a reasonable person, especially one that is dealing with children.

Whilst indemnity forms and disclaimers are common-place, under common law the legal convictions of the community frown upon contracting out of liability for negligence causing harm to children. It will be difficult to see any court upholding an indemnity form or disclaimer notice on the present alleged facts of this case. No parent would have signed up for such conduct.

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Choosing the correct legal status of a business

Entrepreneurs who are starting new businesses are urged to carefully consider the legal status and type of business being registered, as it can have both cost, tax and legal implications in the long-term.

Daniel Kaan, CEO of Business Core Banking, says all companies might be businesses, but not all businesses are, in the legal sense, companies. It's an important distinction, with several implications for business owners, implications that can affect how you optimise revenues and ensure longevity.

He unpacks the importance of having the right legal status for a business:

  • Sole Proprietors -

    Many small and service-oriented businesses choose to operate as sole proprietors; it's the simplest kind of business structure and does not need to be registered.

    As an owner, you would be the sole proprietor and can trade under your own name, with no separation between personal and business assets and liabilities. This means that as a sole proprietor you benefit from all the profit and assets accumulated through the business, but you are also liable for any debt that the business incurs.

Private Companies

A private company is its own legal entity that is separate to the owner.

Therefore, by choosing to register a private company, you, as a business owner, take less risk than if you were trading in your own name as a sole proprietor. A registered company can also trade in the formal business sector and bid for government tenders.

A private company is eligible for numerous tax benefits/deductions such as business expenses, auto expenses, medical aid, office space and lower income tax rates. Smaller private companies do not pay audit fees. Together with the savings that can be made through tax and VAT, private companies often end up being the cheapest and most suitable legal format for a business.

Private companies can have several or even only one director, so decisions can be made quickly. There is also no need to publish financial accounts.

“If you decide to start a private company and not operate as a sole proprietor, you will need to register it at the Companies and Intellectual Properties Commission, commonly known as CIPC. FNB, in partnership with CIPC, provides a free facilitation service to register your company and get a business account in the same process,” says Kaan.

The cost of registering a company at CIPC is R125, and company registration with name reservation costs R175. ID documents of all directors are needed. The process can be completed online and registration with CIPC can take up to 10 days provided all documents required are submitted.

It is recommended that entrepreneurs obtain professional advice on the most suitable type of legal entity for their specific business needs.

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Planning for public holidays and your business in 2020

South Africa has 13 official public holidays and in 2020, enjoys 14 as one falls on a Sunday.

The public holidays for 2020 are

  • New Year’s Day: Wednesday, 1 January
  • Human Rights Day: Saturday, 21 March
  • Good Friday: Friday, 10 April
  • Family Day: Monday, 13 April
  • Freedom Day: Monday, 27 April
  • Workers’ Day: Friday, 1 May
  • Youth Day: Tuesday, 16 June
  • National Women’s Day: Sunday, 9 August
  • National Women’s Day Holiday: Monday, 10 August
  • Heritage Day: Thursday, 24 September
  • Day of Reconciliation: Wednesday, 16 December
  • Christmas Day: Friday, 25 December
  • Day of Goodwill: Saturday, 26 December
  • New Year’s Day: Friday, 1 January 2021

National Women’s Day (9 August) is the only public holiday that falls on a Sunday. The next day, Monday 10 August, becomes an additional public holiday in terms of the Public Holidays Act. Both 9 August and 10 August are thus public holidays. Two consecutive public holidays can have a significant impact on working arrangements and shifts, especially in workplaces that run a 24/7/365 operation.

Employers should consider the effect on the workplace and implement measures to address the impact on work. Employers should also consider collective agreements and Bargaining Council agreements that impact public holidays, working arrangements and shifts. Section 18 of the Basic Conditions of Employment Act, No 75 of 1997 provides that an employer may not require an employee to work on a public holiday except in accordance with an agreement. It also prescribes the calculation for wages for work on the day.

In terms of section 2(2) of the Public Holidays Act, any public holiday shall be exchangeable for any other day which is fixed by agreement or agreed to between an employer and employee.

Employees who are on strike on public holidays are not entitled to any remuneration. They are only entitled to be remunerated for public holidays if they “ordinarily worked” on the public holiday (see section 16 of the Basic Conditions of Employment Act, No 75 of 1997). As they would not ordinarily work on any day during the strike, they would not ordinarily work on a public holiday that falls in the strike period. Thus, they are not entitled to remuneration for the public holiday during the strike.

Employers can expect requests for additional leave days on Monday, 15 June, Friday 25 September and around Wednesday, 16 December as these dates are convenient to employees who wish to create long weekends.

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The future of flying drones in South Africa

Drones are becoming part of everyday life for people and businesses. The potential private and commercial applications are endless. But there are very few licenced commercial drone operators in the country, with many users operating drones illegally because of the cost and complexity of compliance. The authorities simply do not have the means to enforce compliance in all but the most egregious offences. But, regulatory changes are anticipated which may make licensing of commercial operations simpler and more cost effective, which will be a welcome development for the drone industry and associated industries in South Africa.

Drone regulation

Currently, drones (or remotely piloted aircraft systems) are aircraft and are regulated by the Civil Aviation Act and Part 101 of the Civil Aviation Regulations. Part 101 of the Civil Aviation Regulations regulates the use of drones, except for model aircraft, toy aircraft, non-type certificated aircraft or unmanned autonomous aircraft (ie aircraft that are not piloted by a person).

The Part places a significant regulatory burden on commercial drone operators akin to that of ordinary commercial aircraft operators. The requirements include registration of the drones, licensing of pilots, and licensing of the operator by both the Civil Aviation Authority and the Air Services Licensing Council. Insofar as private operations are concerned, matters are more relaxed. The drones are not registered and there are no pilot or operator licensing requirements.

Part 101 has been in force since 2015 and to a large extent reflected international practice of drone regulation at the time. At the time, drone use was relatively untested but the potential for harm and damage readily foreseeable.

The result was is a regulatory framework which prohibits many types of drone operations. For example, unless specifically authorised by the Civil Aviation Authority (which only a licensed commercial operator can obtain), a drone may not:

  1. fly above 400 feet from the surface,
  2. fly within 50m of a person or building
  3. fly at night
  4. fly in bad weather conditions
  5. fly beyond visual sight
  6. fly in controlled air space
  7. take off or land on a public road
  8. release or dispense objects or substances
  9. carry dangerous goods or
  10. perform aerial or aerobatic displays.

Internationally, there is a move to reduce the number and extent of these blanket prohibitions and to limit the requirements for commercial licensing depending on the weight of the drone and the operating environment. These legislative amendments are being implemented in other jurisdictions as regulators become more comfortable with the public and small businesses using drones, and with the understanding that enforcement of the overly prescriptive legislative requirements is impossible.

There is talk of South Africa adopting a more permissive and flexible regulatory approach to drone use. This will be a welcome development by the drone industry, and by other industries wanting to incorporate drone use into their operations; however, these changes will take time to develop and implement.

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Parental leave benefits amended for employees

Under the Basic Condition of Employment Act (BCEA), employees who wish to access the revised parental leave benefits of 10 days per annum are now able to do so with full rights. This revised benefits, published on 23 December 2019 in Gazette 42925, came into effect on 1 January 2020. It clarifies the confusion that arose when employees were allowed to claim parental leave of up to 10 days under the Unemployment Insurance Act (UIA) from 1 November 2019, but since there was no corresponding amendment to the BCEA, employers were not under a legal obligation to provide the 10 days of parental leave under the BCEA - only the statutory three days.

Under the BCEA, employees will be able to access parental leave of up to 10 days each year. In cases of legally recognised adoption of children under two years of age and commissioning parental leave agreements, one of the partners will be able to access up to 10 weeks’ adoption or commissioning parental leave.

Adoption benefits already form part of the UI Act but it appears that the right to access commissioning parental leave of up to 10 consecutive weeks per annum will only be system-ready in the UI context from 1 April 2020 when the systems have passed user acceptance testing in this regard.

Amendment inclusions

The amendments include paying for maternity benefits at 66% of the employee’s rate of payment. Unemployment, illness adoption and dependent benefits can also be claimed for up to a full year at the proportions stipulated rather than for the previous 238 days. In most instances, the period within which to claim benefits has been extended from six months to 12 months. Another example of the more beneficial provisions is that illness benefits can be claimed for an illness of more than seven days, previously 14 days.

There is little doubt that these amendments will provide more considerable assistance to employees and the growing number of unemployed. However, employers will have to pay greater attention to their workforce planning requirements as they may well experience higher levels of absenteeism across the parental, adoption and commissioning parental scenarios.

Employers need to amend their human resources policies and procedures in respect of parental, adoption and commissioning parental leave as soon as possible.

Global Business Solutions will be covering these amendments as well as amendments to other statutes such as the AARTO Act, the NQF Act, the EE Act, the BBBEE Act as well as the COID Act in the national workshop series entitled "human capital and labour law roadmap for 2020" starting on 21 January 2020.

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Public comment sought on draft petroleum bill

The public has until 21 February 2020 to comment on the draft Upstream Petroleum Resources Development Bill.

The Department of Mineral Resources and Energy said the proposed Bill aims to strike a balance between the need to attract investment into the petroleum sector, while also seeking to ensure that the potential of the upstream petroleum industry benefits all South Africans.

The publishing of the bill follows Cabinet approval.

The publishing of the bill said the department, is a critical step in the regulatory process. It also provides an opportunity for the investment community, as well as all interested and affected parties, to share their inputs on the proposals by government.

“The public comment period is 30 days from the date of gazetting. However, taking into account that the public comment period will run over the festive season, and to afford interested and affected parties sufficient time to consider the documents and make their inputs, the closing date for submissions is hereby extended,” said the department.

The closing date for submission of written representations is ‪‪Friday, 21 February 2020.

Representations must be marked for the attention of Sibongile Malie and hand-delivered, emailed or sent by post to the following addresses: 70 Meintjies Street, Sunnyside, Pretoria, 0001 or Private Bag X59, Arcadia, 0007. Representations can also be sent via email on

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Caution: Sars wants its share of your Xmas gift from your employer

It's that time of year when many South African companies give their employees festive season gifts to thank them for their service. Whether it's use of a company flat for the holidays or a shopping voucher - you will probably need to share it with the South African Revenue Service (Sars).

An asset as a gift

If your employer gives you something that could be seen as an asset, Sars will treat it as a taxable benefit. The taxable value is generally the market value of the asset but in certain cases it is the cost to the employer. If you receive a nice watch, your employer should tax you for its full value on the payroll. The taxable value of the watch will be the cost thereof to the employer.

If your employer gives you a gift voucher in lieu of cash, Sars will regard it as an asset. There are a few exceptions. For example, if the gift is a long-service or bravery award and the value is not more than R5,000, it will not be treated as a taxable benefit.

Usage of company accommodation

If your employer lets you stay in a flat the company owns for the holidays, the taxable value will be the value for which the accommodation could be rented out to non-employees. For example, if the employer would be able to rent the flat out for R1,500 per day, then you must be taxed for a R1,500 benefit for each day you stay in the holiday flat.

The taxable benefit will be adjusted if you pay towards your stay in the flat. If it could be let out for R1,500 a day and you pay R500 a day, the taxable benefit will be R1,000 for each day you use the flat. If the employer rents rather than owns the flat it allows you to use, the taxable value will be the cost to the employer.

Air tickets

Some employers provide their employees with flight tickets instead of bonuses. Sars treats this as a free or cheap service, and the taxable benefit for the employee is the cost to the employer.

Benefits or gifts to employee’s relatives

If your employer directly or indirectly provides a benefit to one of your relatives as a reward for your services, you are deemed to have received the benefit and must be taxed on it.

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Can a WhatsApp message be considered a binding contract?

In the era of social media and instant messaging, the courts are constantly challenged to develop the common law to accommodate the ever-changing environment. Recently, the Supreme Court of Appeal (SCA) was asked to pronounce on whether a WhatsApp message, in which a man indicated he would pay each of his children R1 million if he won R20 million, gave rise to an enforceable contract.

It transpired that the appellant, Ntsieni Kgopana, actually won R20,814,582 in the National Lottery (Lotto). When questioned about his winnings by the respondent, who is the mother of one of the appellant’s seven children, the appellant denied that he had won the Lotto and sent her a WhatsApp message saying: “If I get 20m I can give all my children 1m and remain with 13m…”

When the respondent obtained proof that the appellant had, in fact, won the Lotto, she relied on the appellant’s WhatsApp message to claim payment of the R1 million for her minor child.

The High Court found that the WhatsApp message constituted a binding agreement and ordered the appellant to pay the amount owed to the mother of his child.

However, on 2 December 2019, the SCA overturned the High Court’s decision and held that the WhatsApp message did not contain an offer that could, on acceptance thereof, be converted into an enforceable agreement. In interpreting the message, the SCA held that the context strongly suggested that the appellant never intended to agree to part with a portion of his winnings and that the message simply relayed what the appellant could do in the hypothetical future event of him receiving R20 million.

Even though the SCA found in the present case that the WhatsApp message was not a binding contract, it does not mean that a WhatsApp message can never give rise to binding legal obligations.

As a general rule, there are no prescribed formalities for the conclusion of a contract. All that is required is an offer and an acceptance, and consequently, consensus between the contracting parties. It is also important to note that acceptance of an offer need not be expressed in words, as it can also be established by conduct, from which the inference of acceptance can logically be drawn.

Individuals must, therefore, exercise caution when negotiating or making offers online and via instant messaging as those expressions could create legally binding agreements.

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Call for SA's major supermarkets to drop exclusive leases with malls

After a four-year-long probe into South Africa's grocery retail sector, the Competition Commission has found that there's no compelling justification for major supermarkets to have exclusive lease agreements with shopping malls.

The commission's Inquiry into Grocery Retail was launched on 30 October 2015, with an aim to understand levels of market concentration as the commission had reason to believe that competition was distorted or restricted in the sector.

The commission assessed the impact of the expansion, diversification and consolidation of national supermarket chains on small retailers in rural areas; the impact of long-term exclusive lease agreements entered into between property developers and national supermarket chains on local competition in the grocery retail sector; and the role of financiers in these agreements, states a report by Engineering News.

The market inquiry received more than 500 submissions and held 800 round table discussions and public hearings in the Western Cape, KwaZulu-Natal and Gauteng.

Immediate end to exclusive lease agreements

The findings were published in a 650-page final report on Monday, and presented at a press conference at the commission’s headquarters in Pretoria.

Professor Halton Cheadle, the chair of the Competition Commission's Grocery Retail Market Inquiry, said members of the inquiry had recommended that there be an immediate end in the enforcement of exclusivity clauses in urban shopping malls by major retailers against specialist and small, medium and micro-enterprises. This he said, would boost competition and "open the sector up to participation by all these players", according to Fin24.

Cheadle said that all remaining exclusivity agreements should be phased out over the next five years. Initial compliance with the directive should be voluntary. Failing this, the inquiry has recommended that legislation in the form of regulations or a code of practice should be introduced.

The Daily Maverick explains that long-term exclusive lease agreements allow supermarket chains to be the only seller of specific goods at a mall to protect their turf and can be in force for as long as 30 years in their rental agreement with landlords. These agreements also include restrictions on the type of non-supermarket tenants that landlords can allow to trade at malls, thus restricting the entrance of competitors.

The biggest users of exclusive leases are Shoprite (the owner and operator of Shoprite and Checkers stores), Pick n Pay, Spar, and to a lesser extent, Woolworths. Smaller retailers that are mainly blocked from entering shopping malls and relegated to opening stores on the periphery of malls include Food Lovers Market, Fruit and Veg City and Liquor City.

Report findings

The inquiry found that almost 2,000 malls nationally accounted for roughly half of all grocery sales, while over 70% of these shopping centres had exclusive lease arrangements with supermarket chains in place. According to findings, there's increased concentration and diminishing space for smaller retailers in both urban and non-urban economies.

Cheadle said that in urban areas the big four players – Shoprite/Checkers, Pick n Pay, Spar and Woolworths – dominated shopping malls with emerging national chains making limited headway and a dearth of specialist stores and independent general traders. In townships, there was a decline in spaza shops as national grocery chains and immigrants moved in.

“The situation is in stark contrast to most countries, which have a large, thriving and dynamic ecosystem of small and independent grocery retailers and specialist food stores,” Cheadle said.

The report also found that the buyer power of national retail chains enabled them to get higher rebates than the buyer groups and wholesalers that service the small and independent retailers, including spaza shops. While some of the rebates made commercial sense, for others there appeared to be no justification.

The inquiry recommended that FMCG suppliers should make their trade terms available to all retailers, wholesalers and buyer groups, apply them uniformly and communicate them clearly. The suppliers of FMCG goods have been given six months to voluntarily commit to implementing the changes.

The inquiry found that spaza shops can continue to play an important role, particularly in convenience shopping, but that their continued survival will be helped by the removal of regulatory obstacles.

It recommended that government help establishment distribution centres and wholesale markets in township areas, and provide seed finance to incorporate spaza shops into buyer groups and logistics chains. Goverment has also been urged to help spaza shops access credit and provide business management support.

In the best interests of economy and consumers

The Daily Maverick describes the inquiry findings as a blow for the big four supermarket chains and mall landlords. "Landlords have argued that entering into an exclusive lease agreement with a supermarket chain is necessary as it allows them to secure a large tenant that pays higher rentals for a long period. Meanwhile, supermarket chains have argued that exclusive lease agreements are important to remain competitive at a time when SA’s economy and consumer spending are in the doldrums," states an article.

But Cheadle said that a less concentrated grocery retail sector, with a large ecosystem of small independent traders alongside national retail chains is in the best interests of the economy and the consumers.

“Independent retailers provide important avenues for participation in the economy, provide support for smaller suppliers further up the value chain, whilst also offering consumers greater product choice. There is still a role for large supermarkets for the bulk shopping experience, but this should not be to the exclusion of others.”

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Update on unforeseen preference share amendments

The 2019 Taxation Laws Amendment Bill (TLAB) contains a significant and unexpected amendment to the definition of "hybrid equity instrument" in section 8E of the Income Tax Act, which was discussed in a previous alert.

The TLAB will treat a preference share as a "hybrid equity instrument" if:

the issuer of that share is obliged to redeem that share or to distribute an amount determined with reference to the issue price of that share ... within a period of three years from the date of issue.

The Standing Committee of Finance (SCOF) met this morning at Parliament to consider and adopt the reports on the tax bills, including the TLAB.

There was acknowledgement at the meeting that there was a technical error in the section 8E amendment in the TLAB.

An amended bill will therefore be tabled for approval at the National Assembly on 26 November 2019 to correct this.

The proposed correction to the amendment provides for preference shares to be "hybrid equity instruments" if:

the issuer of that share is obliged to redeem that share or to distribute an amount constituting a return of the issue price of that share (in whole or in part) ... within a period of three years from the date of issue of that share.

Ultimately, the intention is to ensure that distributions are not made in respect of preference shares within three years from the date of issue that, in effect, strip out all the economics of the instrument without a redemption actually taking place. It is in our view still questionable whether or not this proposed correction clearly articulates this, but expect this to be how it is applied in practice going forward.

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My title deed is lost, what do I do?

As from 1 January 2020 the procedure of obtaining a certified copy of a lost or destroyed title deed from the Deeds Office, conferring your title to land, a registered lease or sub-lease or a mortgage/notarial bond, will become significantly more difficult and expensive. On 01 January 2020 a change to Regulation 68 of the Deeds Registries Act 47 of 1937, approved in November 2019 by the Minister, comes into effect.

This amended Regulation requires that an application for a certified copy of a lost deed must be brought and provides that the Registrar will only issue the certified copy if satisfied that the deed has indeed been lost, destroyed, ruined or damaged. You as house owner must publish a prescribed notice in a local newspaper that circulates within the area in which your property is situated, setting out your intent to apply for a certified copy of the title deed.

Further this copy of the deed you applied for must lie open for inspection in the Deeds Registry for a period of 14 days from the date of publication of the notice. Any interested person may inspect the copy during this period. Objections to the issuing of the copy must be submitted in writing to the Registrar of Deeds within this 14 day period. To all house owners the 1 January 2020 is close by and our urge you to confirm that you know where the originals of all your important property documents are. If a deed is lost, it is imperative that you apply now, to avoid this long process which can become quite costly.

At FPS Attorneys we can assist you in obtaining the lost title deeds on your behalf and also provide a service to safe keep of your property documents. You are welcome to contact Freddie Steyn for any assistance. (FPS ATTORNEYS 021-9820665 or FREDDIE@FPSLAW.CO.ZA)

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Court to hear CoCT's plea to buy power from sources other than Eskom

On 11 and 12 May 2020, the City of Cape Town will ask the Court for a declaratory order that will enable it to choose the type of power that it provides. Currently, it is determined that the City must procure its electricity from Eskom. The City would like to diversify its energy mix for greater energy security and cleaner energy supply while combating rising electricity costs and the impact of climate change.

The Electricity Regulation Act allows the Minister of Mineral Resources and Energy to prescribe the amount of energy and the type of energy resources that can be used for new generation. The City is contending that it is its Constitutional mandate to provide power to its customers and that customers should be able to choose the type of power that they receive.

"We believe that this is a matter of urgent national and local importance. Essentially, we want the Court to agree that cities are allowed to go out to the market to procure its power from independent sources. The City maintains that it is vital for the national government to open up the electricity generation environment if cities are to be able to reduce carbon emissions and if the security of power supply is to be achieved," said the City’s Mayoral Committee Member for Energy and Climate Change, Councillor Phindile Maxiti.

"We can assure our residents that a great amount of work is being done on renewable energy and the diversification of resources. Our energy saving work is also ongoing and we encourage customers to look at ways to continue to save electricity and to reduce the load on the grid. Reducing the usage of big energy users such as geysers will also have a positive impact on household utility costs."

There are many ways to reduce energy usage and switch to alternative systems where it is possible to do so amid continued power supply uncertainty. It is especially important to be energy-wise and to be prepared as Eskom’s load-shedding occurs at short notice.

For load-shedding notices, City-supplied customers will be directed to the City’s website for updates and to access the load-shedding schedule. Eskom customers should visit

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IRP 2019 and the slow transition to a low-carbon economy

The Integrated Resource Plan 2019 (IRP?2019) is the latest addition to the array of legal instruments South Africa has adopted to transition to a low-carbon economy and as part of its commitment to adapt to and mitigate against climate change under the international climate change framework.

We have seen a marked increase in climate change-related legislation and regulations in recent years, including the mandatory greenhouse gas reporting framework promulgated under the National Environmental Management: Air Quality Act, 2004 (NEMAQA); the long-awaited Carbon Tax Act, 2019 which imposes taxes on fossil fuel inputs by large industry emitters (subject to a host of allowances aiding the transitional implementation of this levy), and the draft Climate Change Bill seeking to serve as a framework to build SA's effective climate change response in the long term along a national greenhouse gas emissions trajectory.

These frameworks do not come without problems of their own, however, and the piecemeal fashion in which these laws are taking shape is problematic.

Diversified energy mix

IRP 2019, published on 18 October 2019, makes it clear that SA will pursue a diversified energy mix to reduce reliance on a single energy source (coal) in line with the country’s Paris Agreement commitment. IRP 2019 acknowledges that the transition to a low-carbon economy must be timed in a manner that is "socially just and sensitive to the potential impacts on jobs and local economies".

SA's energy sector has been plagued by issues relating to infrastructure and service delivery for years. The diverse energy mix in IRP 2019 seeks to remedy this. Plans to decommission old Eskom power stations, coupled with the uptake of renewables, as well as technology such as battery storage and corridors for renewable projects, will assist in reducing red tape and facilitating renewable energy projects.

While new coal projects are not excluded, all new coal power projects must be based on high efficiency, low emission technologies and other cleaner coal technologies under IRP 2019. IRP 2019 also sets out the rate and schedule of decommissioning of Eskom's existing 16 coal-fired power plants until 2050. This appears to align with the tender published by Eskom in August 2019, for the review of the decommissioning and rehabilitation cost associated with coal, peaking and renewable power stations after life of plant. We have also recently seen the disposal of thermal coal assets by both South32 and Anglo American as international stakeholders continue to reduce exposure to coal assets.

IRP 2019 acknowledges the regulatory constraints under which Eskom's power plants must operate, namely the minimum emission standards prescribed under NEMAQA, which many of the older plants are unable to achieve, however remarks that in addressing this statutory non-compliance, a balance should be struck between energy security, poor air quality and the economic cost associated with shutting these down. Statements such as this do not appear to point clearly in the direction of "Just Transition" but rather contribute further to the muddied waters regarding policy direction in relation to air quality and GHG emissions.

Environmental authorisations

Government has, however, attempted to alleviate the regulatory strain on renewable energy companies by revising the procedure for applying for environmental authorisations for large-scale wind and solar photovoltaic (PV) energy developments. Applications for environmental authorisations for certain large scale wind or solar PV facilities must follow the basic assessment procedure of the Environmental Impact Assessment Regulations, 2014, and the timeframe for decision-making purposes is 57 days. However, this process is only available for projects where the entire proposed facility will be situated in declared Renewable Energy Development Zones (REDZ).

Actions such as the changes to the listed activities requiring an environmental authorisation for certain renewable energy projects and the gazetting of eight REDZ in 2018, with three more proposed in early November 2019, are promising, and may be the key to ensuring a smooth transition to a low-carbon economy. We have seen a noticeable change in the Department of Environment, Forestry and Fisheries under Minister Barbara Creecy, which appears to be significantly more energetic and proactive and is addressing the correct environmental concerns.

Renewable energy regulation

While Government's policy is unquestionably supportive of renewable energy, there is a high level of environmental regulation in these areas, posing financial challenges to new entrants and significantly slowing down the development of new clean energy projects.

We have seen this in the battery technology space. Due to the substances used in certain battery technologies, some of these projects may constitute a "listed activity" under the National Environmental Management Act, 1998 (thus requiring an environmental authorisation). The reuse and/or recycling of many battery storage technologies may require a waste licence under the National Environmental Management: Waste Act, 2008, and depending on the technology in question and the location of these projects, permits may also be required under other environmental legislation such as the National Water Act, 1998; the Hazardous Substances Act, 1973; NEMAQA; and/or the National Environmental Management: Protected Areas Act, 2003.

Obtaining such permits is a costly and lengthy exercise, which may obstruct or delay development and production in these industries which may in turn hamper SA from attaining its goal of transitioning to a low-carbon economy.


While SA's policymakers are committed to moving towards attaining a low-carbon economy, the piecemeal approach towards legislation poses significant challenges to industry, increases the risk of misalignment between the different instruments, and may foster legal uncertainty. Most important, it raises further hurdles which are likely to slow down our

transition to a low-carbon economy. A more holistic approach to regulatory reform may be preferable to ensure better cohesion between the different instruments and speed up the transition to a low-carbon economy.

SA’s lawmakers need to watch global trends in climate change-related legislation and investor sentiments towards green energy for future direction and to ensure the country remains competitive. Our rapidly changing energy market requires extensive regulatory review and under the stewardship of Minister Creecy we are confident the road towards a low-carbon economy can be achieved.

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Sabinet offers free wi-fi in SA's labour courts

Sabinet, a facilitator of access to online labour and legal information, has announced that they will offer free Wi-Fi access in all of South Africa's Labour courts. This convenient service is available to legal practitioners representing labour-related cases. The free Wi-Fi facilitates easy access to a range of legal resources online - such as up-to-date, reported and unreported labour judgments, Bargaining Council Agreements, labour legislation, CCMA awards and Labour Related Acts.

When this project launched six years ago, over 7,000 logins were reported. Sabinet’s aim was to facilitate access to a reliable, fast internet connection to address the need for on-site online research and resources that aide members of the law fraternity in performing their tasks.

In this digital age, it is imperative that legal practitioners have reliable access to online legislation and resources in order to carry out their tasks efficiently. Many of the lawyers at the labour courts also make use of the service to provide valuable assistance to their pro bono clients.

Sabinet’s Wi-Fi service is available in most sections of the labour courts including the judges' chambers, courtrooms, library and pro bono office in Johannesburg, Cape Town and Durban.

Sabinet has been offering this service through South African Wi-Fi communications specialist, Gconnect – a trusted Wi-Fi brand in the telecommunication space. The team behind holding company, Exmile Technologies (Pty) Ltd, have more than 52 years of combined Wi-Fi services experience.

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A guide to intellectual property law in South Africa

In South Africa, intellectual property (IP) law encompasses all legislation which concerns patents, designs, trademarks and copyright protection. Intellectual property refers to assets which are intangible, making them easily susceptible to exploitation by third parties, which were created through human intellect. IP law is taken seriously in South Africa and across the world due to its power in protecting intangible intellectual property which can hold immense value. It is crucial for intellectual property to be protected legally in order to restrict the usage of what is rightfully that of the inventor or creator.

The other main purpose of IP law, and the mission of IP law firms operating across Africa, is to encourage the creation of intellectual goods. By giving people and businesses property rights to what they create, the desire to innovate is stimulated through economic incentives due to the fact that they have the right to profit exclusively from their inventions and ideas.

Types of IP Protection

In South Africa, there are four main types of IP protection

  1. Trade Marks - A trade mark is a device, name, signature, letter, shape, pattern or configuration, among others, which is used to identify goods or services. Once a trade mark is successfully registered, the use of identical or similar marks in relation to similar goods or services would be an infringement. IP lawyers can advise you on the process of acquiring a trade mark and how to go about registering your marks or devices.
  2. Patents - A patent provides inventors with the right to exclude others from making, using, or commercialising the patented invention for the allocated term. A patent will therefore give the holder the opportunity to challenge others who may use their invention. Specialised IP lawyers in South Africa can assist you with the registration process when applying for a patent.
  3. Copyright - Copyrights protect your expression of ideas, this is generally considered to be artistic works which include, but are not necessarily limited to:
    • Literary works
    • Musical works
    • Artistic works
    • Cinematograph films, and more.
    Copyright exists automatically upon creation of the work if it is in the class of work recognised by the Copyright Act. Your work therefore does not have to be registered for copyright, unless it is a film whereby a copyright lawyer can help you register.
  4. Designs - A design registration affords protection specifically directed at the visual features of an article/item. The Designs Act distinguishes between two types of designs:
    • Aesthetic Designs – design which is purely aesthetic and judged solely by the eye
    • Functional Designs – design which is necessitated by the function which the article is to perform.

The filing and prosecution of registered design applications, as well as the enforcement of design rights, can all be handled by expert attorneys who specialise in IP law.

Looking for IP Attorneys in Pretoria, or Across Africa?

For advice on registering your idea or creation, how it can be protected and what can be done if infringement occurs, get in touch with attorneys who specialise in IP law. Attorneys in Pretoria include those from Africa’s leading IP law firm who provide clients across the African continent with a full range of legal services in relation to intellectual property rights.

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Importance of justifying fixed-term employment

Does the termination of an employee's fixed-term contract of employment, where such employee earns below the earnings threshold and is employed to perform work of a permanent nature, amount to an unfair dismissal?

Section 198B of the Labour Relations Act 66 of 1995 (LRA) provides that fixed-term employees earning less than R205,433.30 per annum (threshold) may only be employed for longer than three months if the work they perform is of a limited or definite duration, or if the employer can demonstrate any other justifiable reason for fixing the term of the contract. In the absence of a justifiable reason, the employee will be regarded as being indefinitely employed.


In the case of Ntsoko v St John the Baptist Catholic School (2019), Ntsoko (the employee) was employed as an educator at St John the Baptist Catholic School (the employer). The employee was employed in terms of four fixed-term contracts - the first of which was signed in February 2015. The last fixed-term contract was signed on 31 October 2017 and was to run from 1 January to 31 December 2018. This contract was not renewed and this (the non-renewal of this contract) was the subject matter of the dispute between the parties.

On 15 November 2018, the employee was advised that his fixed-term contract would not be renewed for 2019. The employee contended that he had formed a reasonable expectation that his contract would be renewed and sought to challenge this decision. He referred a dispute to the Commission for Conciliation, Arbitration and Mediation (CCMA) relying on section 186 of the LRA.

Section 186 of the LRA provides that if an employee employed in terms of a fixed-term contract of employment reasonably expected the employer to renew it on the same or similar terms, or to be retained on an indefinite basis on the same or similar terms, but the employer offered to renew or retain the employee’s employment on less favourable terms, or did not renew or retain the employee at all, it constitutes a dismissal.

The parties argued the matter before the CCMA on the basis of a non-renewal of the employment contract.

CCMA’s evaluation

The Commissioner noted that the Employee earned R10,000 a month and therefore section 198B of the LRA applied.

Section 198B (3) of the LRA provides that an employer may only employ an employee, who earns below the threshold, on a fixed-term contract for longer than three months if the nature of the work for which the employee is employed is of a limited or definite duration or if the employer can demonstrate any other justifiable reason for fixing the term of the contract.

Any fixed-term employment contract which contravenes the provisions of section 198B (3) is deemed to be of indefinite duration (in other words, the employee is regarded as being a so-called “permanent” employee).

The Commissioner held that the nature of the employee’s work was not of a limited or definite duration. The employer had failed to provide any justifiable reason for employing the employee on a fixed-term contract. The employee was therefore a permanent employee of the employer.

The letter of 15 November 2018 informing the Employee that his contract would not be renewed constituted a dismissal. The Commissioner was satisfied that the employee had shown that he had been dismissed. All dismissals must follow a fair process and be for a valid reason. No procedure was followed and no valid explanation had been provided justifying the employee’s dismissal. The employee’s dismissal was therefore substantively and procedurally unfair.

The employee did not seek reinstatement and the Commissioner awarded compensation equivalent to four months’ salary.

Importance of the case

The case highlights the protection the LRA provides to employees earning below the Threshold who are employed on fixed term contracts. Employers should consider whether that have current fixed term employees who earn less than the Threshold, have been employed for longer than 3 months or are not performing “temporary work” or for whom there is no justifiable reason to fix the term of their employment.

If employers intend employing employees on fixed-term contracts for a period of more than three months, justifiable reasons need to be present for fixing the term of the contract. In the absence of doing so, there is a risk that these employees are indefinite employees and that the non-renewal of the fixed term contract of employment will constitute a dismissal.

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ConCourt backs Stellenbosch University's language policy

The Constitutional Court has ruled in favour of Stellenbosch University (SU) and its language policy in a unanimous judgment put down on 10 October 2019.

SU welcomed the ruling in a statement, saying: "The judgment clearly states that our language policy is constitutionally justified. It also confirms the goal of the language policy: To promote access to and multilingualism at the university, and to support the academic and career success of students and staff."

The Court also found that the process the university followed to accept the language policy, which was approved in 2016, had been “thorough, exhaustive, inclusive and properly deliberative”.

Said SU: "The university takes note of the Court’s reference to the protection of minority languages. Besides the use of English, SU is committed to the use of Afrikaans and isiXhosa. These are also the three official languages of the Western Cape, the province from which SU draws most of its undergraduate students."

The Court also found that the language policy was not trying to “eliminate” Afrikaans “by any means”. According to SU’s language policy, the university remains committed to using Afrikaans – in conjunction with English – as language of tuition within the context of inclusivity and multilingualism.

The SU statement said that the language policy supports the fostering of a transformative student experience, one of the six core strategic themes of the SU’s Vision 2040 and Strategic Framework 2019–2024. The use of more languages promotes access and inclusivity. Both English and Afrikaans are used as teaching languages – English so that no one is excluded, and Afrikaans because there still exists a demand for teaching in Afrikaans.

View the full Constitutional Court judgment here.

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Unpacking responsibility in terms of the Financial Intelligence Act

Financial crimes harm South Africans in many ways but fundamentally, they contribute to the depletion of funds and resources that should be put towards the country's development.

Activities classified as financial crimes include money laundering, tax evasion, bribery, corruption, insider trading and terrorist financing. According to the International Compliance Association (ICA), financial crimes can be divided into two types. The first are “those activities that dishonestly generate wealth for those engaged in the conduct in question”, and the second being “financial crimes that do not involve the dishonest taking of a benefit, but that protect a benefit that has already been obtained or to facilitate the taking of such benefit”. Perpetrators include organised criminals, business leaders, corrupt heads of state, corporate and state employees at all levels, suppliers and corporate customers.

In South Africa, The Financial Intelligence Centre Act 38 of 2001 (FICA) is a legal framework that exists to hold all accountable organisations responsible for ensuring that anyone they do business with is properly vetted. Accountable institutions are expected to comply by effectively and efficiently understanding their suppliers, partners, acquisition targets, contractors, resellers, grant applicants, customers and other associates. Within the framework, it is a legal requirement for these organisations to show effort in identifying and verifying new and existing clients and keep a record of their identities as well as their transactions with said organisation. The Banking Association of South Africa (BASA) summarised the responsibilities of accountable institutes as follows:

  • Identify and verify new and existing clients;
  • Keep records of identities of clients and transactions entered into with clients;
  • The following records shall be obtained and retained in instances of concluding a single transaction, concluding transactions as part of a business relationship or establishment of a business relationship:
    • If the client acts on behalf of a third party, the identity of the third party as well as a copy of the mandate between the client and the third party;
    • If a third-party acts on behalf of a client, the identity of the third party as well as a copy of the mandate between the client and the third party;
    • The method of identification and verification of particulars;
    • The exact nature of the transaction or business relationship;
    • The parties to a transaction as well as the monetary value thereof;
    • The particulars of the employee or representative that obtained the information;
    • The information, documentation or forms furnished by the client to verify the information.

In addition to keeping records, the summary further states that: "No person shall destroy any record, except if the destruction of such record was authorised by the responsible person. No person shall amend any record kept in terms of the Act." The organisations are also required to report certain large or suspicious transactions to the Financial Intelligence Centre as well as formulate and implement internal rules consistent with FICA obligations, offer compulsory FIC Act training to employees and appoint a responsible person as a compliance officer to monitor compliance.

For assistance with such comprehensive compliance requirements, investigations into watchlists, PEP lists, negative news, company reports and personal profiles, LexisNexis Data Services offers a solution in the form of Nexis®Diligence.

The online solution is a vital tool used by responsible organisations in their third-party vetting efforts as it provides access to over 40 years of archived comprehensive adverse news, sanctions and extensive warning lists, PEPs, director and shareholder listings, biographical references and directories, and comprehensive legal source material. The solution has the ability to monitor and assess potential security threats abroad by checking comprehensive country information and on the ground media reports. In addition, Nexis®Diligence helps users save time and money by performing enhanced due diligence checks on individuals, clients, partners and suppliers in-house, rather than working with expensive consultants. Furthermore, the solution arranges the necessary information in the form of reports and greatly assists with the interpretation of the results against the law.

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Is a signed rental mandate absolutely necessary?

The answer is an emphatic 'yes' from Peter Mennen, head of legal at TPN, your mandate is precious and important, and landlords should be careful who they entrust it to - agents should take measures to protect it.

It may seem like unnecessary paperwork to busy agents who are used to doing business based on a handshake, and there are landlords who may question what they get out of signing a mandate with one agent, but this is the only way an agent can legally secure their commission.

Further, as Paul Stevens, CEO of Just Property highlights, the Estate Agency Affairs Board Code of Conduct expressly states: "No estate agent shall offer, purport or attempt to offer any immovable property [for sale or] to let or negotiate in connection therewith or canvas a purchaser or lessee therefor, unless he has been given a mandate to do so by the [seller or] lessor of the property" and that "all terms of such mandate… are in writing".

Different contracting parties requires different agreements

When asked why people can’t add a section to the lease that covers the mandate, Stevens clarifies that “a lease agreement is between the landlord and the tenant; a mandate is an agreement between the agent and the landlord". "As each of these are between two different contracting parties, two different agreements need to be signed," confirms Mennen.

It is wise to have both placement (sometimes called ‘procurement’) and management covered in the mandate signed by a prospective landlord. The Consumer Protection Act (CPA) applies to leases too, and agents are literally leaving money on the table if they don’t cover procurement. If a tenant vacates the property early, as tenants often do, the agent can be forced to find a replacement tenant without a placement fee included unless it is covered in the mandate.

According to Mennen, a landmark decision came in 2015 where the Rental Housing Tribunal ruled that the outstanding procurement commission may be deducted as part of an early cancellation penalty from the tenant’s deposit. This means that where a tenant cancels early, the landlord may recover, pro-rata, the commission for the remaining balance of the lease, which is argued as part of damages/ losses suffered by the landlord.

CPA applies to leases

The tribunal further ruled that an agent is entitled to retain a portion of the deposit to be assigned towards the reasonable cancellation penalty on behalf of the landlord. This ruling confirms that the CPA applies to leases and it is the first ruling to deal with penalties and a claim for damages relating specifically to an estate agent’s commission.

"A well-drafted rental mandate protects the agent against landlords who may claim this amount for themselves," says Stevens. ‘This ruling could only be made because the agent had secured their relationship with the landlord in the form of a signed mandate agreement."

While you may not be able to control the unpredictability of a business relationship in the rental market or the economy for that matter, with the right mandate, specifically drafted to protect your income, can greatly diminish the risk and so secure your commission. "While rental mandates might seem like unnecessary admin to some agents, they are actually required by law and form protection for you and your agency. As agents, we look after our landlords and our tenants. We must look after ourselves too," Stevens concludes.

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Contract terms vs principals of fairness and public policy

Over the years, and particularly since the dawning of the Constitutional era, litigants have tried to rely on the principals of fairness and public policy to justify departure from certain contractual obligations.

In South Africa, consenting parties have the right to enter into legally binding agreements with each other. This right and the principle of certainty, which are achieved by agreements being binding on the parties concerned, are considered by Courts in contractual disputes.

However, Courts have departed from a strict adherence to these principles where the terms of an agreement are clearly contrary to public policy.

In March of this year, in the case Oregon Trust v BEADICA 231 CC 2019, the Supreme Court of Appeal considered these principles in a contractual dispute.

The case involved four commercial tenants who occupied premises owned by a Trust (the landlord). From these premises, each of the tenants ran its own franchise business as franchisees of a franchise business owned by a Close Corporation. One of the Trustees of the Trust was also the sole member of the Close Corporation.

The lease agreements were concluded in 2011 for a period of five years with options to renew for a further five years. The tenants were obliged to give six months’ notice of their intention to renew but all four tenants failed to notify the landlord timeously. Although two of the tenants attempted to exercise their options two months later, the leases terminated through the effluxion of time on 31 July 2016. The landlord consequently required the tenants to vacate before 1 August 2016.

The tenants then launched an urgent application for an order permitting them to remain in occupation pending a decision on whether the options to renew had been validly exercised. The landlord launched a counter-application for their eviction.

The Cape High Court granted the tenants’ application, deciding that the option to renew had been validly exercised. In doing so, the Court reasoned that contract law had developed in line with the Constitution and that good faith and public policy play an active role. The Court held that the lease and franchise agreements should be considered together and that enforcing the contract would impose a disproportionate sanction for the breach of the tenants.

This decision was overturned by Supreme Court of Appeal which relied on case law in which the principle of fairness has been considered but found not to be applicable. It reasoned that it was imperative that parties entering into agreements should be able to rely on the terms of those agreements unless the enforcement of the terms was contrary to public policy. The Court held that there was nothing offensive about the renewal clauses in the lease agreements and that public policy did not render the renewal clauses unenforceable.

This decision highlights the importance of reading and understanding a contract before agreeing to its terms.

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What if you miss something important in your case preparation?

Whether acting for or against an individual or an organisation, there are no second chances when presenting a case to a judge. Litigators need to be sure that they have prepared an effective and comprehensive case and that they have conducted their research with due diligence to ensure that they are representing their client in the best possible manner.

“A major part of any litigation process is doing research. This is not limited to searching for relevant legal cases and precedents, pouring through legal texts and archives,” says Greg Brown, director Data Services at LexisNexis South Africa, providers of online search tool Lexis WinDeed. “Litigators also need to be adept at checking information such as company and asset ownership.”

The discovery stage of preparation sees litigators searching for all and any information that will help them make their case against the opposition or come to a favourable settlement. Having access to information such as company and asset ownership will assist the professional in a number of areas. Deciding on the best course of action – whether that is pursuing a settlement or taking the case to court is made easier with information such as the value of any properties and assets owned, whether or not the respondent owns a company or is a director of several companies. “Many civil cases will result in a settlement and litigators need to have all of the facts to make – or accept – a settlement offer,” Brown adds.

With the legal profession under pressure to increase billable hours, reduce time spent on tasks such as research and still deliver a cost-effective service, it is important to have access to effective tools that makes optimal use of time and resources. “Online research tools need to be trustworthy above all else. But they also need to be easy to use and offer time saving benefit,” says Brown. “Having 24-hour access to a database when conducting research is also valuable for litigators. It means they can conduct their research day or night, from their office or even the courthouse steps if necessary.”

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Life insurance and insolvent estates: Who's paying who?

The Pretoria High Court in Wentzel v Discovery Life Limited and Others, was recently tasked with considering whether the payment of a life insurance policy by an insurance provider to a nominated beneficiary, being an un-rehabilitated insolvent, would vest in the beneficiary or the trustees of the insolvent estate.

The applicant in this matter had entered into an insurance contract with Discovery Life Limited (Discovery) insuring the life of his wife, whom he was married to in community of property, in terms of which he appointed himself as the beneficiary of the policy. During the course of 2012, the applicant's joint estate was sequestrated. For all intents and purposes, there was no composition or rehabilitation that had occurred thereafter.

The 'rightful' beneficiaries

The applicant's wife passed away during the course of 2017. The applicant then claimed the proceeds from Discovery as the beneficiary of the policy. Discovery informed the applicant that the payment of the proceeds would be made to the trustees of the insolvent estate. The applicant objected on the basis that the first and final liquidation and distribution account in the insolvent estate had been confirmed and therefore, for all intents and purposes, the administration of the insolvent estate had been finalised.

Discovery and the trustees of the insolvent estate, however, contended that the estate of the insolvent remained vested in the trustees until such time that the insolvent is either re-vested with the estate, pursuant to a composition or the rehabilitation of the insolvent, which had not occurred. Additionally, the trustees argued that the creditors who had proven claims which still remained unpaid, stood to be prejudiced should the proceeds of the policy be paid to the applicant and not the trustees.

The court held that whilst the joint estate of the applicant and his wife was indeed dissolved as a consequence of her death, the status of the applicant, and his wife, being un-rehabilitated insolvents, prevailed until such time that it was changed as provided for in the Insolvency Act of 1936 (Insolvency Act) - being by way of compromise or rehabilitation. The court went on to note that upon sequestration, an insolvent is divested of their estate, which vests in the Master until a trustee is appointed, where after it vests in such trustee. Further, the Insolvency Act provides that the insolvent estate includes all property, both moveable and immoveable, at the date of sequestration and that this includes all property acquired or which accrued to the insolvent during sequestration.

The court held that on sequestration, a concursus creditorium is established and that no one creditor may enter into any transaction with the debtor, which has the effect of prejudicing the body of creditors. In dealing with the applicant's argument, the court held that the filing of the first and final liquidation and distribution account does not necessarily mean that the trustees have completed their duties in the administration of the joint insolvent estate and that nothing prevents the trustees from filing further liquidation and distribution accounts. The court went on to note that the moment that the applicant, being the beneficiary, demanded and accepted the benefit offered by the insurer, this constituted an asset in the hands of an insolvent, which is not protected, in that it is not exempted or excluded by the laws of insolvency from reach by the creditors of his insolvent estate.

To the trustees

This decision has made it clear that when an insurer makes payment pursuant to a policy in circumstances where the beneficiary of such a policy is an un-rehabilitated insolvent, the payments should be made directly to the trustees of the insolvent estate. If, however, payments are made directly to the insolvent un-rehabilitated beneficiary, the beneficiary must hand over such payment to the trustees as administrators of the insolvent estate. If the beneficiary fails to do so, the trustees have a right to claim the proceeds of the policy from the insolvent beneficiary, as it constitutes an unprotected asset, which was acquired by the insolvent prior to his or her rehabilitation.

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Why South Africans will have to consider mediation before turning to courts

The Rules Board for Courts of Law has issued a draft rule proposing a new Rule that will compel South Africans to declare that they have considered mediation as a solution to any forthcoming legal matter and, if not, the court itself is obligated to manage cases effectively and recommend mediation as a dispute resolution if it deems it appropriate.

Mediation, which was introduced in South Africa as an Alternative Dispute Resolution (ADR), is a time- and cost-effective means whereby parties to a dispute can appoint a qualified neutral third party to act as mediator to facilitate an agreed settlement. The mediator facilitates discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options to resolve the dispute.

Following countries such as the USA, UK and Australia, South Africa has recognised mediation as an effective method of resolving differences. Recent case law in the UK has set out that ADR should be strongly encouraged and prescribes when ADR is an appropriate mechanism. South Africa will soon follow suit as the proposed rule, Rule 41A, will require the practising representative attorney to declare before the court that he/she has advised his/her client to consider mediation as a means of attempting to resolve the dispute which is the subject of the proposed proceedings. The rule will require the parties, when issuing summons or application or delivering a plea or answering affidavit, to indicate whether they consider mediation to be possible and to give reasons for their consideration. Failing to do so could result in penalisation by way of costs orders.

PJ Veldhuizen, managing director of Gillan and Veldhuizen Incorporated and a practising commercial mediator, says that the new proposed rule will “effect a much-needed easing-off of pressure on South African courts and legal process, not to mention the costs of legal representation.”

Attorneys should be advising clients to consider mediation as a possible resolution not only because of the financial benefits but also to save themselves a lot of unnecessary time delays in resolving matters. Veldhuizen stresses that disputing parties going the ADR route must make certain that their mediator is qualified and reputable.

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NHI one step closer to universal coverage

The much anticipated National Health Insurance (NHI) Bill has officially been released by Parliament - paving the way for public participation and engagement on it.

The Bill was signed off by Health Minister, Dr Zweli Mkhize, and adopted by Cabinet in July.

Through the NHI, government seeks to fulfill its constitutional obligation to provide quality universal healthcare for all as envisaged in Section 27 of the Constitution and the United Nations Sustainable Development Goals.

Under the NHI, South African citizens, permanent residents, refugees, inmates, designated foreign nationals and all children will receive primary healthcare.

Primary healthcare centres such as clinics or general practitioners will be the first point of access to the healthcare. Access to healthcare services will be free at point of care.

The NHI aims to follow in the footsteps of countries such as Britain and Japan who have also implemented their own equivalent.

Under the bill, medical aid schemes will gradually be phased out until they ultimately cease to exist.

Once fully implemented, the NHI will cover all health services with exception of services highlighted as “complimentary cover”. Complimentary cover which will include health services such as cosmetic healthcare will be covered by medical aids.

Aslyum seekers, illegal immigrants and foreigners with no travel insurance will only receive limited coverage through emergency medical services; and notifiable conditions services.

Foreigners who hold travel insurance will be covered by their own policy.

How much will the NHI cost?

In its White paper, Health Department Deputy Director General Anban Pillay said the National Treasury estimated that the NHI will cost taxpayers R256bn.

According to Pillay, the Treasury plans to release a revised paper with a revised costing of the NHI.

Answering questions following the official release of the Bill, Pillay said funding of the NHI is not necessarily about finding a new budget for healthcare but rather about ensuring that the current funds are used effectively.

Industry comments

Labour federation Cosatu representative Kwena Manamela welcomed the NHI and urged the health department to prioritise implementation.

“We hope that the department will prioritise its implementation and cover lost ground. More healthcare users will enjoy access and we expect the department to improve and increase human resources quantitatively and qualitatively,” said Manamela.

The South African Medical Association’s Angelique Coetzee said countries like Britain and Japan started implementing their equivalent of the NHI under very difficult financial circumstances and South Africa will be no exception.

“The question is not whether NHI will provide better healthcare but how the money will be better utilised to provide better healthcare for South African citizens to enjoy quality healthcare each of us has an obligation to ensure that we are part of this process,” said Coetzee.

Health Professions Council South Africa President Kgosi Letlape said the council hopes that the NHI will not mimic medical aids in its approach to providing healthcare.

“The caution about accreditation of providers is that we don’t want the NHI to become the new medical aids that are creating DSPs [Designated Service Providers] that are choosing who can live and who can die with that expensive education that we have given,” said Letlape.

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Will the Labour Court enforce an employee claim against a company in business rescue?

The Labour Court recently ruled on whether employees may approach said court to enforce a claim against a company under business rescue proceedings…

During business rescue proceedings a moratorium is placed on claims being instituted or proceeded with against a company which is in business rescue proceedings. Certain exceptions are, however, provided for. One such exception is where a 'court' grants leave to do so. Importantly, only the High Court, or a qualifying High Court Judge, may grant such leave, not the Labour Court (even though the claim may be of a labour nature, such as outstanding remuneration).


This issue was dealt with by the Labour Court in Marais and others v Shiva Uranium (Pty) Ltd and others (2019). Shiva Uranium (employer) formed part of Oakbay Investment Group (Oakbay). When certain business ties where cut with Oakbay, the employer was compelled to go into business rescue as of 19 February 2018. For two months, a number of employees were not paid their salaries. As a result, they launched a claim, on an urgent basis, in the Labour Court for their unpaid remuneration.

The company (controlled by the business rescue practitioners) had two objections to the employees seeking relief in the Labour Court. The first was that as the company was under business rescue proceedings, there was a moratorium on any claims being launched or proceeded with and the Labour Court did not have jurisdiction to hear the matter / allow the matter to proceed. Second, the matter was not urgent.

Court's evaluation

Section 133 of the Companies Act 71 of 2008 (Companies Act) provides that during business rescue proceedings, a moratorium is placed on any and all claims. The section provides, among others, that "no legal proceedings, including enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceed with in any forum, except" in, among others, the instance where 'leave' of the court is granted.

Section 128(1)(e) of the Companies Act, in turn, defines 'court' as,

depending on the context ...., either (i) the High Court that has jurisdiction over the matter; or (ii) either (aa) a designated judge of the High Court that has jurisdiction over the matter, if the Judge President has designated any judges ... or (bb) a judge of the High Court that has jurisdiction over the matter, as assigned by the Judge President to hear the particular matter, if the Judge President has not designated any judges.

Taking the above into account, the company argued that the term 'High Court' included the Labour Court, whereas the employees argued it included only the High Court, specifically and exclusively. The employees went on to argue that to hold otherwise would undermine the jurisdiction of the Labour Court and that, in any event, where there is a conflict between the Labour Relations Act 66 of 1995 (LRA) and another act (in this instance, the Companies Act) the LRA shall prevail.

The Labour Court held that the reference to 'court' was an exclusive reference to the High Court. They held, further, that there was no conflict between the LRA and Companies Act.

In coming to its decision, the Labour Court considered the nature and purpose of business rescue proceedings and held that "the essence of business rescue proceedings is to engender a rehabilitation of a financially distressed company through temporary oversight and management of its affairs, businesses and property." The Labour Court made reference to the case of Sondamase and another v Ellerine Holdings Ltd and another which held, among others, that "the aim of the provision is clear. It is to create some breathing space for the business to be rescued and thus to put all legal proceedings on hold until the company may be brought back on track."

In this regard, the legislature determined a specific court to deal with the issue. The Labour Court, therefore, declined to lift the moratorium so that the employees may pursue their claim for outstanding remuneration.

Importance of the case

This case is important in reiterating that during business rescue proceedings, a moratorium is put in place regarding any and all claims, including labour-related claims. A claim may only proceed during this period if specific exceptions are met; one of which is when a court has granted permission. Importantly, while the matter may be labour related (i.e. outstanding remuneration) the only court that can grant such permission is a High Court or a qualifying judge of the High Court.

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How the law affects your rental property, in a nutshell

The South African Value Added Tax Act Amended Regulations state that foreign suppliers of more than R1m pf "electronic services" over the preceding 12 month period are obliged to register for VAT in South Africa. However, tax experts say this will be difficult to enforce.

Through the regulations, the South Africa’s National Treasury attempted to reduce the risk of distortions in trade between foreign and domestic suppliers. For the consumer making use of these electronic services in South Africa, this could mean an additional cost of 15%.

Gerhard Badenhorst, a director in the tax & exchange control practice at Cliffe Dekker Hofmeyr (CDH), says cross border services are notoriously difficult to tax, but the Amended Regulations have widened the definition of “electronic services” to include any electronic services supplied by a foreign supplier via an electronic agent, electronic communication or the internet for any consideration.

“The implication is that basically everything that can be supplied electronically, even to businesses, is now subject to VAT,” he says.

However, there are limited exemptions to the regulations:

  • Educational services supplied by an entity or institution in an export country and regulated by an educational authority in terms of the laws of that export country;
  • Telecommunications services; and
  • Cross-border intergroup supplies that are used exclusively by the SA resident group company. However, the group must hold at least 70% of the equity shares in the group company for the exemption to apply.

Telecom services exempt, but content not

The Amended Regulations do not provide a definition for “telecommunications services”, however, it is only the telecommunication services which are exempt, and not any content. This means that fixed and mobile telephone services and internet access would not be subject to tax, but any sound, data, text or videos conveyed/transmitted via these mediums would be subject to tax.

Badenhorst notes that collecting VAT on imported services from the consumer has always been difficult, adding that compliance with the Amended Regulations is also hard to enforce.

Additional burden

“Foreign suppliers will have to register for VAT and be saddled with the additional burden of having to collect and pay over VAT to the South African Revenue Service,” he says.

“Naturally, you can’t compel them to do this, so it’s more a matter of voluntary compliance. There is also the risk that the foreign supplier may collect the VAT and not pay it over. Although non-compliance will attract penalties and may even lead to criminal prosecution, I just can’t see how they are going to enforce this.”

Badenhorst points out that other countries such as New Zealand and Australia have similar regulations in place, but they have exempted business to business transactions.

“Including business to business transactions, as in the case of South Africa, simply creates an unnecessary barrier and a lot of burdensome admin. Local businesses are entitled to deduct the VAT they pay on electronic services, or if they are not entitled to a deduction, they must pay VAT anyway, so this does not create an additional stream of revenue for government,” he explains.

“In terms of private consumers, there is definitely an obligation to pay VAT on these transactions, but I do believe that business to business transactions should be excluded.”

Badenhorst argues that while the legislation is not flawed in its entirety, there is definitely room to review and refine it.

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How the law affects your rental property, in a nutshell

Thinking of getting into the rental business, or already a landlord? Then, you should know that the rental property landscape is becoming more complex by the day. Knowledge and awareness are essential, whether you are the landlord or the tenant.

The latest addition to the legislative burden, is the Rental Housing Amendment Act which places more stringent obligations on landlords with failure to meet these, a criminal offence. These include providing your tenant with a written lease agreement, ensuring the property is fit, habitable and maintained and that the landlord may not cut utilities (e.g. electricity) to the dwelling, nor may they lock the tenant out of the premises. There are also stricter guidelines with regard to deposits.

Additionally, there is actually a slew of legislation and regulations which impact rental property. Here are a few:

Rental laws - The primary legislation that governs rental property is the Rental Housing Act, 50 of 1999 and the Amended Rental Housing Act, 35 of 2014 which regulate the behaviour of tenants and landlords, the property and handling of deposits. It also provides for the Rental Housing Tribunal to assist tenants and landlords with disputes rather than having to go an expensive legal route.

Sectional title property - The Sectional Title Management Act, 8 of 2011 (STMA) regulates this type of property, including rentals. Regulations include keeping the body corporate informed of incoming and outgoing tenants, ensuring the tenant has a copy of the conduct rules and that they keep within the rules of the complex. The Act also allows for a tenant to take their grievances about a building or unit owner to the Sectional Title Ombud, where previously they only had the Rental Housing Tribunal.

Evictions - The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE Act) – it is always a challenge for property owners when their tenants stop paying and they have to be evicted because strict procedures need to be followed. You cannot just throw people out of your property, nor can you change the locks. The process is onerous and potentially costly, making the vetting and ongoing tenant and property management process vital.

Lease agreement - The Law of Contract and Common Law provisions guide the contents of lease agreements which must comply with many legalities affecting rental property, including how it must be signed and witnessed. These days, a lease can, for example, be signed electronically and be seen as binding in terms of the Electronic Communications and Transactions Act, 25 of 2002. Ensuring a thorough lease that guides all aspects of the rental property and tenancy is always in the best interest of both landlord and tenant.

Capacity to enter into rental agreements - Several laws come into play when it comes to who and how rental contracts must be signed. These include the Matrimonial Property Act, 88 of 1984 which regulates consent and capacity to contract in respect of marriages out of community of property and foreign marriages. In terms of the Immigration Act, 13 of 2002, foreigners must have a valid visa from the Department of Home Affairs (e.g. study visa, work permit, refugee permit, temporary or permanent residence permit) to lease a property. Capacity to transact on behalf of a company is regulated by the Companies Act, 61 of 1973, while trusts fall under the Trust Property Control Act, 57 of 1988, specifically that since a trust is not a legal entity, it would be the trustees who will enter into the contract and be a party to any dispute.

Cancellation and rental deposits - Since renting of property is seen as a fixed term agreement, the Consumer Protection Act, 68 of 2009 (CPA) affords a tenant the right to terminate for no reason whatsoever, subject to agreed penalties, which should preferably be defined on the signing of the lease. Refunding of the rental deposit is regulated by the rental laws referred to above.

Financial aspects - Any VAT applicable will be regulated by the Value-added Tax Act, 89 of 1991. Penalties fall under the Conventional Penalties Act, 15 of 1962. A lease can contain a clause regarding penalties for breach such as late payment and arrear rentals and the tenant would be bound to pay interest if this is part of the written agreement. The Debt Collectors Act, 114 of 1998 regulates how moneys owing by the tenant or landlord are to be collected.

Use of the property - In addition to the above, the municipal by-laws regulate how you can use the property, including aspects such as noise and encroachments, and regulates the relationship between neighbours. The lease agreement will also usually stipulate how the property is to be used and what conduct would be unacceptable. In the case of a sectional title property, especially, the landlord should ensure that a copy of the conduct rules is provided and that the tenant understands the conditions of occupancy.

Protection of private information - The Protection of Personal Information Act, 4 of 2013 (POPI) is now on the cards and, once fully operational, provides protection for the private information of tenants, regulating that personal information must be correctly stored and not shared for gain.

Choosing an agent - In terms of the Estate Agency Affairs Act, 112 of 1976, all rental agents must be in possession of a valid Fidelity Fund Certificate. The Act also regulates the manner in which an agent conducts themselves and the handling of the deposit by the agent. Ensuring that you only work with a credible agent is vital and you should never hand over money or pay deposits to anyone before verifying the legitimacy of the agent and property.

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Sars to host roadshows to discuss new customs legislation - book now

On 1 July 2019, in communication addressed to external stakeholders, the South African Revenue Service (Sars) confirmed that it would be embarking on roadshows to discuss the new customs legislation, from 22 July to 1 August 2019.

The roadshows are intended to allow for presentations and question sessions focused on the new Registration, Licensing and Accreditation (RLA) system, which is expected to be implemented in September 2019.

These roadshows should prove useful to stakeholders as the new RLA system seeks to introduce new Sars processes, such as requiring all current registrations and licenses to be re-applied for under the new legislation.

Stakeholders are encouraged to book their seats here before 8 July to attend the Sars roadshows. Note that bookings will be on a first come, first served basis and are limited to a maximum of two people per organisation.

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Here's what you need to know about the Rental Housing Amendment Act

There has been quite a buzz over the past few months regarding the Rental Housing Amendment Act in the belief that a date will soon be set for the implementation of this new legislation, says Tobie Fourie, national rentals manager for the Chas Everitt International property group.

The “new” Act, which was actually passed in 2014, contains the most recent amendments to the Rental Housing Act of 1999, which is still in force and, together with the Consumer Protection Act (CPA) and the common law, currently governs the overall relationship between tenant and landlord and sets out their statutory rights and obligations.

“The new legislation elaborates on this relationship and aims to clarify certain aspects of the older Act that have given rise to many differences of interpretation.” The main provisions that landlords and tenants need to be aware of are:

  • It will become compulsory for lease agreements between the landlord and the tenant to be in writing and legally enforceable.
  • All sections of the lease and any explanations and definitions it contains will need to be explained to the tenants and understood before the document is signed.
  • It will be the landlord’s responsibility to ensure that the rental property is in a habitable state, which is in line with the existing Rental Housing Act.
  • The landlord will be responsible for maintaining the rental property and will have to ensure that it has access to basic services such as water and electricity.
  • Only the local authority will be permitted to cut off services to non-paying tenants.
  • No tenant may be prevented from entering the rental property or denied access to the rental property without a court order.
  • A joint inspection by the landlord and tenant has to be done on the commencement of the lease period, and if the landlord does not participate in this inspection, no part of the tenant’s deposit for repairs or damages may be withheld when the tenant leaves.
  • A defect list will have to form part of the lease agreement as an annexure.
  • When the deposit is paid back to the tenants, the interest earned on that deposit must also be paid to the tenant within seven days of the expiration of the lease, subject to any deductions for damages.

Fourie says landlords who do not comply with these and other requirements within six months of the new legislation coming into force could be liable to pay a fine or even face a jail sentence for non-compliance. “They will also need to keep in mind the provisions of the Rental Housing Act, which will remain in force, as well as the CPA.

“And these legal complexities will make it all the more important for landlords to appoint reputable, reliable, knowledgeable, qualified and legally registered rental management agents to assist them and ensure they remain compliant.”

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CRL commissioners appointed for five-year term

President Cyril Ramaphosa has appointed 13 members to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities for a period of five years.

The appointment was made in terms of section 9(1) read with 13(1) of the Commission Act, 2002 (Act No 19 of 2002).

The President further appointed, in terms of section 12 of the Act, Luka Mosoma and Sylvia Pheto as Chairperson and Deputy Chairperson of the Commission respectively.

The others appointed members of the Commission are:

  1. Sheila Khama
  2. Tsholofelo Mosala
  3. Sicelo Dlamini
  4. Oscarine Nokuzola Mndende
  5. Nomalanga Tyamzashe
  6. Ramokone Tryphina Kgatla
  7. Muneer Abduroaf
  8. Richard Botha
  9. Pitika Ntuli
  10. Renier Schoeman
  11. Mandla Langa

The President has congratulated the Commissioners and wished them well “in this critical role in ensuring social transformation and nation-building for the attainment of a truly united South African nation”, said the Presidency in statement.

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Ripple effect of carbon tax on Customs and Excise Laws

On 22 May 2019, the President assented to the Carbon Tax Act, 15 of 2019, effective from 1 June 2019.

The Carbon Tax Act has been implemented as part of South Africa's commitments under the Paris Agreement as a means to reduce greenhouse gas emissions and the challenges of climate change. In essence, the Carbon Tax Act gives effect to the 'polluter pays principle' by imposing a tax, at the rate of R120 per tonne of C02e of greenhouse gas emissions until 31 December 2022 and thereafter increasing annually in line with inflation.

The Carbon Tax will be rolled out in two phases with only scope 1 emitters being liable for the tax during the first phase (1 June 2019 to 31 December 2022). During this phase, companies will be able to effectively reduce their Carbon Tax liability through the use of various allowances and offsets catered for under the Carbon Tax Act, up to a maximum of 95%

The South African Revenue Service Customs Division is the administrative authority mandated to implement Carbon Tax liability.

The President, also on 22 May 2019, assented to the Customs and Excise Amendment Act, 2019 (Amendment Act) which seeks to amend the Customs and Excise Act, 1964 (Customs Act). Like the Carbon Tax Act, the Amendment Act came into effect on 1 June 2019.

The purpose of the Amendment Act is to provide for the administration and collection of Carbon Tax revenue through the addition of section 54AA into the Customs Act.

Section 54AA provides, inter alia, that:

  • any allowances and limitations of allowances prescribed in the Carbon Tax Act must be administered as rebates, refunds or drawbacks as may be applicable;
  • taxpayers, as defined in the Carbon Tax Act, must in terms of section 54E of the Customs Act license any premises on which emissions occur as a customs and excise manufacturing warehouse; and
  • the Commissioner of Sars, must, to the extent not catered for in the Carbon Tax Act, prescribe any administrative actions, requirements and procedures for purposes of submission and verification of accounts, collection and payment of carbon tax as an environmental levy or the performance of any duty, power or obligation or the exercise of any right, in the Rules to the Customs Act.

Carbon Tax is now a reality and it is important that affected businesses assess potential risks, which they may be exposed to during the administration and collection of the Carbon Tax. Accordingly, prescribed measures, such as the licensing requirement in terms of section 54E, should be noted and obtained as a matter of urgency to avoid penalties under the Customs Act, which, can be quite severe.

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The world then and now, and how the way we protect our children needs to change

This National Child Protection Week (CPW), Google South Africa and Media Monitoring Africa hosted a roundtable putting a spotlight on the importance of online safety for children.

CPW is an initiative led by the Department of Social Development to highlight the rights of children in accordance with the Children’s Act of 2005 as well as the role and responsibility of every citizen in protecting children in order to create a safe and secure environment for them to thrive.

That said, the discussion included Web Ranger learners and partners, school principals, government officials and social media experts and was around how to incorporate social media safety guidelines into existing school codes of conduct and how the policies and procedures to address these need to change.

There has been a rise of social media related ills such as cyberbullying, sexting, etc. that affect school learners, and as a result, there is a need to equip schools and parents to address with these issues if and when they arise. Keynote speaker William Bird, director of Media Monitoring Africa, was of the opinion that this is the responsibility of all stakeholders and that it’s a matter of drawing on each of their strengths and being guided by our constitution.

It’s only if we deliberately choose a path that works with multiple stakeholders that we’ll all be able to build our democracy and the best our digital world has to offer combined with the unrivalled potential of our young people.

Bird shared some, what he called, ‘old fart’ comparisons about the world now and what it was like when he grew up, to provide context to how things have changed and why our approach to protecting our children needs to change.

“Things were simpler then and therein lies one of the greatest current ironies,” said Bird. “Today we have amazing technologies to make our lives simpler or at least to give us the illusion of simplicity or convenience and to make some of our increasingly complex lives simpler,” he explained. “If you look at how easy it is to buy anything online, with one click you can buy just about anything and it will be delivered to your door in just a few hours. This is a radically different world.”

Back in the day, he had to go to the library to look up information for school projects. These days, this information is literally at your fingertips – all you need is a mobile device and a search bar. “The skills we need now are not so much about locating the information, but how to sift the quality and the relevant from the rubbish.”

The world was a lot bigger and a lot smaller. “TV carried the latest news in the evenings. It was always delayed and even then, it was a fraction of what was going on, and not only that, it was also pretty much half an hour to an hour long and it was at the same time every day. There was ‘the news’ and we went home to watch it at 6 or 7 o’clock in the evening.”

Now the news is instant. Not only is it 24/7, but it also’s unending, and the world has shrunk dramatically, so we can see in real-time what people are seeing, playing, thinking or doing all the time, anywhere. “The suffering, the abuse, the joy, the beauty, the craziness, the insanity, all the time at the same time. It’s completely mad.”

It was easy to control things back then, he said. “The government simply banned things… they banned all sorts of books, they banned films and anything that had a different world view, and then they created their own media to disseminate their own views at the time.”

As a teen interested in sex this was less than ideal. “Like any normal teen keen to explore their sexuality, you had to know someone. You had to know the brother of the friend of the friend of the cousin in the next class whose father had stolen his father’s magazine or video, and if you were lucky you might have got access to something called a Scope magazine.” At the time, this was about the most risqué thing you could get in South Africa and you needed skill and perseverance to get your hands on one. These days, all you need is a mobile device and access to the internet and you can find anything.

These shifts highlight how we’ve moved from information scarcity to an abundance of information, how we've moved from an era of easy adult regulation to needing to give young people the skills to self-regulate. “As much as I’m saying we need to equip our young people with skills to self-regulate, in no way does this aggregate our responsibility as adults to build a world that isn’t just safe for our children but one that supports them to thrive and reach their potential.

Moreover, they highlight how we, as adults, have new, better looking, more interesting, more in-tune, exciting distractions and interactions, as he called them, competing with us.

Being a parent these days is just about bloody impossible because you’re competing against the world and often the world has spent billions of dollars literally creating stuff that is infinitely cooler than you are.

"Fortnight. How ridiculously cool is that and they think that I’m going to compete with that as a parent coming home from work, tired and grumpy… These things don’t just compete with us as parents, they compete with us for our children’s time and their attention and of course for their views and input."

The controllers

Faced with these challenges it seems that there tend to be those that we call the controllers, he said. “Those who will say, well, clearly all of this stuff is evil and we must stop it.

“They’ll try old methods and wonder why they don’t work. They’ll take away the phone and wonder why the kid is still up at 4am in the morning watching TikTok videos and all the rest and it’s because they forgot to take away the iPad.” So, their approach is to ban cellphones and they’ll say, ‘Government, you need to control the internet, stop all of these evil things, stop these pornographers, take it away, take it away, take it away!’ They’ll ask that all of this new stuff is brought back into our small and more controllable world.

“Of course, you can do these things, but the reality is that with this approach, you’re really setting yourself up to fail for the simple reason that young people always find ways around these things.

“The controllers, I think, are really people who need a lot of hugs and to be told it's ok, the new world will be fine.”

The free marketeers

On the other extreme are those Bird called the free marketeers. “Those who say what amazing opportunities this technology presents to us.” To make money by harvesting children’s data to target them more accurately and effectively sell more to them. “They see kids merely as products, as things and ways of making themselves even more wealthy than we could possibly begin to imagine.

“The problem with this approach is that throwing out all the rules gives the impression that technology should just be free to roam and do whatever it pleases. Such an approach, while potentially enticing, has no answer for how to deal with cyberbullying and the spreading of sexual abuse material.” It negates the fact that technology is made by people and hides the implicit biases that are built into it and it is fundamentally at odds with building a democratic country.

“While both approaches are understandable, neither I believe advances our democracy and crucially neither help us to effectively protect our children.”

The controllers

Bird believes we need a third approach, a rights-based or Web Ranger approach to technology and child protection that has our constitutional values at its base.

An approach that acknowledges that our young peoples’ realities are fundamentally different from ours when we were young. “They have new, far greater pressures, a million more demands, a reality that constantly reminds them of the world’s ills and potentials.” Children are becoming increasingly more anxious, but this isn’t technology’s fault. “It’s the fact that their world is fundamentally different from ours.”

This is why we need to equip our children with the skills to navigate this vastly different world. “It isn’t magically going to promote equality and child protection and democracy unless we build it to do so… We need to ensure we give our young people and the public at large skills to critically engage with the digital world. They need the tools to discern real from rubbish. They need the ability and the power not just to spot this information, but to act on it. If we equip our young people to spot real from rubbish and act on disinformation, not only are we giving them critical life skills, we’re giving them the most direct form of protecting and building our democracy by ensuring people can act in an informed manner.

But we need to set clear boundaries. “This isn’t saying, go wild and do whatever. If young people want to think about and engage with ideas about sex and sexuality, we need to make sure that there’s positive sexual content out there.

“So, the rights-based approach is one that says, as adults, we have a role to play in our schools and homes, that says while things change, our constitutional responsibilities offer a constant guiding light to equality, dignity and a world where our children are safe.”

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Have your say on CAS Bill, GBV Policy Framework

Members of the public and interested organisations are reminded of the looming deadlines for public comments on the Central Application Service (CAS) Bill and the Draft Policy Framework to address gender-based violence (GBV) in the Post-School Education and Training (PSET) System.

Higher Education and Training Minister Dr Naledi Pandor has released two documents - the CAS Bill and the Draft Framework to address GBV in the PSET - for public comments.

Through the policy framework to address GBV, the department is hoping to create an enabling environment for the eradication of GBV, instil respect, protection, promotion and the fulfilment of human rights, as enshrined in the Bill of Rights of the Constitution of the Republic of South Africa.

The policy framework will compel all institutions of higher learning and training to create awareness of GBV policies and prevent incidents of GBV; as well as to assist PSET institutions to address the occurrence of GBV.

It will also provide a monitoring instrument to the department to assess the implementation of the policy framework.

“This significant development shows the commitment of the department to build an inclusive and diversified PSET, where all citizens have equal access to quality opportunities in a safe environment,” the department said.

The closing date for comments on the Draft Framework to address Gender Based Violence is 3 June 2019.

All interested parties are asked to send written inputs to The Director-General, Private Bag X174, Pretoria, 0001 for the attention of Ms S Mahlobogoane, Director: Social Inclusion and Equity, or Email: Social Illusion

CAS Bill

The Draft CAS Bill seeks to provide a legislative framework for the coordination and management of a simple, fair and cost-effective central applications to all public institutions of higher learning and training.

The bill envisages a 'one-stop shop' service that will provide for career advice and applications for all higher education and training programmes, accommodation and funding at a single, affordable application fee for multiple opportunities to choose from.

It will serve as a repository of programmes and study costs at all public colleges and universities.

“When established, the CAS will ensure proper centralisation of programme data, including entry requirements and costs, which will be drawn from all our institutions and made available to applicants using both electronic and hard copy media.

“Applicants will also be kept fully informed of the status of their applications, within the application process including accommodation and financial assistance,” the department explained.

The Draft CAS Bill 2019 will be available for public comment for a period of 31 days calendar days, excluding Saturdays, Sundays and public holidays, starting from 18 April until 6 June 2019.

All interested persons and organisations are invited to direct their comments on the draft CAS Bill to CAS Project Manager on fax: +27 (0)12 321 6770 or email:, or post: Private Bag X174, Pretoria, 0001. The submissions can also be hand delivered at 117-123 Francis Baard Street, Pretoria.

The department urged members of the public and interested organisations to send comments before the deadlines in order to enrich both the bill and the framework to address GBV at institutions of higher learning.

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What are transport services "rendered by the employer"? Sars clarifies...

To assist employers and employees with overcoming transport-related difficulties, the Income Tax Act, 1962 (the Act) introduced a mechanism to allow employers to provide transport services to their employees and that, although qualifying as a taxable fringe benefit in the employees' hands, no taxable value was given to such benefit.

However, uncertainty arose as to what "any transport service rendered by any employer" in paragraph 10(2)(b) of the Seventh Schedule means. Sars has now clarified under what circumstances no value can be given to the employer-rendered transport services in Binding General Ruling (Income Tax) 50 read with Interpretation Note 111. As a result of Sars' clarification, employers are now better able to structure the provision of transportation to their employees. Sars' clarification is welcomed and provides scope for additional employment opportunities within organisations, as well as a market for niche transport businesses.

In summary, in order for the no value provision to apply, the transport service must be rendered by the employer directly i.e., from a vehicle in its fleet by a driver on its payroll. An employer may also contract another person to provide transport services to employees where the employer makes it clear in the conditions under which transport services are provided, that:

  • the transport is provided exclusively to employees along pre-determined routes;
  • the employees may not request transport services on an infrequent and individualised basis; and
  • no employee may be a party to the services contract i.e., the contract for providing the services may only be between the employer and transport service provider.

Employees will not be unintentionally subjected to fringe benefit tax on employer provided transport services, where the above conditions are met. Notably, the provision of and access to general public transport is not regarded as a transport service provided by the employer for no value. Also, giving employees a "transport allowance" to catch public transport will still give rise to a taxable fringe benefit in employees' hands.

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Unpacking the draft Conduct Standard for Banks...

On 29 April 2019, the Financial Sector Conduct Authority (FSCA) released a statement supporting the draft Conduct Standard applicable to the conduct of banks under section 106(2)(b) of the Financial Sector Regulation Act 9 of 2017 (FSR Act).

The draft Conduct Standard (published for public comment on 3 May 2019) aims to introduce requirements applicable to banks, mutual banks and co-operative banks that promote the fair treatment of financial customers of banks. The draft Conduct Standard is published for a period of six weeks for public comment. Interested parties are invited to submit written comments to the FSCA on or before 18 June. After consideration of the submissions received, the FSCA will make any necessary changes to the draft Conduct Standard and either submit it to Parliament or publish it for another round of public comment.

The draft Conduct Standard is intended to be consistent with the objective of the FSR Act, to promote the fair treatment of financial customers by financial institutions. It intends to balance principles-based and rules-based requirements to ensure that banks deliver fair customer outcomes in a disciplined, transparent and consistent manner. Banks will be expected to design and implement appropriate governance arrangements and other control mechanisms to ensure that the fair treatment of customers is central to their organisational culture. In addition, banks will be required to demonstrate to the FSCA that fair outcomes for customers are consistently delivered in the provision of financial products and services.


Once enacted, the FSCA will monitor compliance with the draft Conduct Standard by using pro-active supervisory approaches in terms of which potential areas of concern are identified. There will be greater emphasis on pre-empting concerns about negative customer outcomes. This pro-active approach will cover both emerging risks within a specific bank (micro conduct risks), as well as concerns at sector or business model level (macro conduct risks).

Once risks have been identified, the FSCA will engage with the relevant bank in attempt to pre-empt or remedy the harm. The FSCA intends to develop a reporting framework through which information will be gathered and used as an offsite supervisory tool to identify conduct risks and trends specific to any particular bank. On-site supervision will also be conducted to examine and assess processes and management information relating to the fair treatment of customers. More significantly, measures such as "mystery shopping", interactions with banks and intermediaries and surveys conducted with respect to intermediaries and customers will be implemented in order to test customer experience.

Unpacking the basics of the draft Conduct Standard

The need for meaningful supervision of banks
The FSCA noted the weaknesses that have been identified in the South African banking sector over the past decade with particular reference to poor customer outcomes and a clear gap in the regulation of market conduct of retail banks.

In 2016/2017, National Treasury commissioned the World Bank to assess potential deficiencies from a fair-treatment perspective in the provision of transactional and fixed deposits by banks, and how any identified deficiencies could appropriately be addressed through market conduct regulation taking into account international good practices and the South African context. The diagnostic report made various recommendations, some of which called for the implementation of regulatory standards.

With the Financial Sector Regulation Act coming into effect in 2018, the FSCA has been given the explicit mandate of regulating and supervising the conduct of banks. The FSCA has identified the need for an enforceable market conduct regulatory framework within which the FSCA can measure conduct across the banking sector. Pursuant to this, the FSCA has released a draft Conduct Standard for banks that purports to enable it to supervise banks directly. The draft Conduct Standard is the first step towards the rolling out of a comprehensive market conduct regulatory framework for the banking sector.

Proposed conduct standards
The draft Conduct Standard has been designed to follow the sequencing of six Treating Customers Fairly (TCF) Outcomes and the sequencing of the typical financial product lifecycle. These requirements apply in addition to any other requirement already imposed on banks by any other financial sector law. They have been crafted in a way so as to avoid inconsistencies with the requirements which are already in place, but commentators are requested to highlight any potential inconsistencies that may have been overlooked.

Each requirement set out in the draft Conduct Standard has been directly informed by the TCF Outcomes as follows:

TCF Outcome 1: Customers are confident that they are dealing with financial institutions in which the fair treatment of customers is central to their culture. Section 3 of the draft Conduct Standard sets out the manner in which banks are expected to demonstrate that fair customer treatment is central to their culture, which includes the entrenchment of governance and oversight frameworks to this end.

TCF Outcome 2: Products and services marketed and sold in the retail market must be designed to meet the needs of identified customer groups and must be targeted at these customer groups.

Section 4 of the draft Conduct Standard proposes to regulate the design, suitability and performance requirements for financial products and financial services. In addition, the section requires that banks must have certain oversight arrangements in place in order to ensure that the objectives of this TCF Outcome are met. It is important to note that the application of the draft Conduct Standard is not limited to retail financial customers (although the applicability of specific sections, for example section 5, are limited in this way).

TCF Outcome 3: Customers must be provided with clear information and kept appropriately informed before, during and after point of sale. Section 6 of the draft Conduct Standard sets minimum standards for advertising, including the governance processes that must be in place for the approval of advertisements. In addition, section 7 sets out the disclosures that must be made to a financial customer in order to ensure that the financial customer is aware of and understands all the relevant facts that could reasonably be expected to influence the financial customer's decisions relating to the financial product or financial service.

TCF Outcome 4: Where advice is given, such advice is suitable and takes into account the circumstances of the customer. Section 7 of the draft Conduct Standard identifies the factors that need to be taken into account when making disclosures to financial customers, such as the nature and complexity of the financial product, in order to ensure that a financial customer is given appropriate information about a financial product or financial service when the information is most useful to the financial customer's decision-making in relation to entering into, using, or maintaining the product or service.

TCF Outcome 5: Products perform as firms have led customers to expect, and service is of an acceptable standard and as customers have been led to expect. Section 5, which is only applicable to retail financial customers, sets out the standards for the prohibition of unfair product terms and conditions including additional product design standards applicable to this market segment.

TCF Outcome 6: Customers do not face unreasonable post-sale barriers imposed by firms to change products, switch providers, submit claims or make complaints. Section 8 deals with the Complaints Management Framework to be established by a bank, including appropriate training of responsible staff, categorisation of complaints and other procedures that need to be in place. Sections 8 and 9, deal with account closure and switching, whether initiated by the bank or the financial customer.

The impact of the draft Conduct Standard
The FSCA does not envisage that the draft Conduct Standard will have an adverse impact on customer choice, quality of banking products or services, or the efficiency of providing banking products and services. Instead, the FSCA envisages that the draft Conduct Standard is likely to lead to improved outcomes for customers in terms of improved disclosure mechanisms and the requirement that product offerings must be designed and targeted to appropriate customer groups.

The FSCA acknowledges that this is a preliminary assessment of the impact of the draft Conduct Standard subject to input from commentators. Thus, it is requested that commentators identify clearly any risks, benefits and potential effects envisaged in the draft Conduct Standard. The FSCA also acknowledges that the implementation of the draft Conduct Standards may have cost implications for banks, and as such comments on cost implications are requested. Comments will be analysed to understand the anticipated cost and other impacts of implementing the draft Conduct Standard, including the extent to which transitional provisions are required in respect of any of the proposed requirements.

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2019 Business Innovation Awards entries open with two new categories

Following overwhelming responses from entrepreneurs, the FNB Business Innovation Awards (FNB BIA) have been extended to include two more categories, and now represent the entire business landscape in South Africa.

Adding to the Endeavor global category, FNB has further partnered with 10XE and the Township Entrepreneurs Alliance (TEA) to introduce SME and township entrepreneur categories, respectively.

Entries for all three categories were officially opened from 1 April 2019.

The FNB Business Innovation Awards are aimed at all businesses, regardless of size, that can demonstrate real innovation with the potential to change the way their respective industries operate.

Businesses must exhibit high growth potential and have the capacity to add substantial socio-economic impact on the South African economy. This, partnered with job creation, outstanding business ethics, and goodwill are all among the many factors that will be reviewed by the selection panel.


Successful entries in each category will go through a selection process where the qualifying businesses will be reviewed and assessed by a selection panel, in each of the three categories, before they are shortlisted as FNB BIA Finalists for 2019.

Finalists will get an opportunity to present their businesses to a final judging panel, where a winner per category will be selected.

The winning businesses will each get business development support to the value of R1 million, to help them take their businesses to the next level. The winners will be announced and celebrated as the FNB Business Innovators of the Year 2019 at an award ceremony.

Entrepreneurs have until 30 June 2019 to submit their entries and they can do so on

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Tax and the ethics of paying back the money

Companies can't just pretty up their board of directors with figure heads, appointed for their reputation and the contacts that they will bring to the particular organisation.Certainly a company director may have been a revered academic or a sporting celebrity, but they need to upskill in what is expected of them as directors before they take up the position.

The Companies Act 71 of 2008 sets out a broad range of duties for company directors. Specifically, section 76(3), which provides the following with respect to the standards of care that company directors must follow in the execution of their duties.

A director of a company, when acting in that capacity, must exercise the powers and perform the functions of director:

  • In good faith and for a proper purpose;
  • In the best interests of the company; and
  • With the degree of care, skill and diligence that may reasonably be expected of a person:
    • Carrying out the same functions in relation to the company as those carried out by that director; and
    • Having the general knowledge, skill and experience of that director.

In other words, a director needs to act in the best interests of the company but, very importantly, it is vital that one acts with the requisite knowledge and skill that a company director is presumed to have. With this imperative placed on company directors to be scrupulous, the following question arises.

If a director is paid a bonus based on the expectation that he or she will render a certain level of performance, but the required performance is not rendered, should not the bonus be repaid to the company if the director has not delivered?

It is clear if the required performance demanded by the company and/or shareholders, said director must repay the bonus. This should not even be something which the remuneration committee should be requesting or demanding from the director. An ethical director would do the right thing without being asked.

What makes the question more interesting and the predicament so much more difficult is where large bonuses have been paid to top executives and company directors in well-known public, private and state-owned entities and through various disclosure the evidence coming to light that the basis for paying these were incorrect.

The decision to do the right thing in these circumstances goes to the core of being a responsible director, not just ethically, but also from a Companies Act perspective.

Incentives and bonuses approved by a board on incorrect, incomplete or, even worst, fraudulent information, must be recouped.

There is no tax disadvantage to reimbursing bonuses

If one were to put forward the notion that company directors and executives needed to reimburse performance-related bonuses that should never have been paid in the first instance, the following question would be asked: “I’ve already paid a sizeable sum of tax on this bonus. Will I get this back if I repay it?”

In 2009, Section 11 (nA) was introduced into the Income Tax 58 of 1962 to allow a taxpayer to take a deduction of any amount into account - which is refunded by the taxpayer– when calculating taxable income in the year of assessment that the amount is refunded.

This only applies if that amount had been previously included in his or her taxable income.

This means that should a company director be required to pay back a bonus, he or she will be able to claim back the tax paid on this bonus – or a portion thereof – in the fiscal year when the repayment has been done

This has always been one of the principles of our tax system, that a taxpayer should not be taxed where there is no net enrichment, and we have never encountered a problem with SARS to allow this deduction where done on a first-time accurate basis.

Thus, from a governance and tax perspective there appears to be no reason why directors should not be required to pay back bonuses where the simple fact is later established that it was improperly paid in the first instance.

Despite this, there are very few (if any) company directors who do, in fact, repay these monies.

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Why building plans must be updated and fully approved by the local municipality

In order for a residential property to be sold or for a bond to be acquired, South Africa's banks are increasingly insisting that the property has up-to-date building plans which have been approved by the local municipality. Rowan Alexander, director of Alexander Swart Property, explains that to be fully compliant, the seller or the buyer has to be able to show that the building was awarded an Occupation Certificate, confirming that the construction was done in accordance with the approved plans and the regulations pertaining at that time.

To qualify for such certificates, the building will have had to be inspected at specified stages by a licenced building inspector. The same process should have been followed on any subsequent alterations or extensions.

Quite often, says Alexander, the inspector will have been called in during the initial stages of construction but not towards the end - with the result that no Occupation Certificate was ever issued. Quite often, extensions and alterations were done without any plans being submitted to the council for approval, or without the building inspector being brought in. In nine out of 10 homes that Alexander has been involved with as an estate agent, the building plans are either missing or, more frequently, not up to date.

'Sneaking the job through'

“In a typical scenario,” he said, “the owner will add on a patio without permission and then, a few years later, enclose it as a braai room; again without any plans being submitted. Or he may convert a garage into bedroom, again without any attempt to make it legal.” Sometimes owners simply do not know when they need to get approved plans. Others think that by doing the work themselves and “sneaking the job through”, they are saving considerable sums of cash – forgetting that later this will make it difficult to sell or pass the home on to heirs. Similarly, they may employ a substandard builder who either ignores or does not know the regulations.

Every home owner, says Alexander, should as soon as possible ( i.e. right now) check that plans are available and if so, that they correspond in all respects with the building as it now is - and is compliant with the building regulations. If it transpires that the owner has no plans, he can try to obtain copies of those lodged at the municipality. Having found the plans and the owner feels that he is not up to checking whether they conform, he should consult an architect to assist him. In the event of defaults, the owner should take steps to rectify the omissions and errors. In some cases it will be necessary to ask the architect to redraw the entire plan of the home as it now is and resubmit this for approval. This could be expensive - but there may be no other way out.

Some home owners, says Alexander, take the attitude that as they do not intend to sell the home in the foreseeable future, they can leave the gaining of approvals for a later date, or to others, such as their heirs. Experience has however shown that people regularly have to sell earlier than they expect e.g. for health or financial reasons. As the obtaining of fully approved plans can take months, Alexander says it is better to do it now. To delay will simply compound existing difficulties – and could place big burdens on others.

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Your payroll provider might be compliant, but are they honest and transparent?

Today, more and more businesses are confidently outsourcing business functions, or parts thereof to service providers whom they trust to do the job faster, more affordably, and more effectively than they can themselves. Payroll and HR is no exception to the trend, and a whopping 47% of US and Canadian companies already partner with such service providers, with South African businesses not far behind.

At the same time, concerns over data privacy (thrown into sharp contrast by the slew of recent data breaches and massive hacks both in South Africa and abroad over recent years) have encouraged legislators to introduce tight legal guidelines to ensure that the data stored by payroll providers is kept secure and within the control of those it belongs to.

Here are a few questions I would advise any client of such service providers to ask themselves.

What do payroll providers do with the data that you are granting them access to?

Account details, salaries and other sensitive data contained in payslips are, understandably, a primary concern when it comes to data privacy. All payroll providers feel comfortable guaranteeing your right to privacy, but it is not unheard of for even the largest and best-known of these to sell their clients’ employee data on to third parties for their own profit. This means that businesses are essentially betraying the confidence of their employees and exposing them to risk, and yet it is the service provider who is the only entity to profit.

Wait... Is that legal? Is it in compliance with current regulations?

Well, it is if you agree to it. My advice? Always read the fine print. Data protection regulations like South Africa’s Protection of Personal Information Act (PoPI) and the EU’s General Data Protection Regulation (GDPR) place much emphasis on consent – in short, an individual’s right to decide what is done with their personal data, and by whom. Today, it is natural for contractual agreements to contain more and more fine-print in ever-more complex legalese, and this can have clients granting access and permissions they didn’t really mean to.

We always stress the importance of a rock-solid reputation (look for things like ISO certification that give you a hint of the company’s compliance track-record), and never sign on the dotted line until they’ve explained everything in detail. You might like to have a compliance officer or legal entity look at the documents beforehand, as well.

How is consent gained from unwitting clients?

Look out for overly complicated wording and lengthy service level agreements, and ensure you read them in detail. It is not unheard-of to hear of businesses that present payroll personnel with a long list of very standard-looking check-boxes at the month-end period, with one vaguely worded box granting permission to use the client data in a certain way. At PaySpace, we strive to keep our SLAs and contracts easy to read and understand. Any payroll provider – any business, for that matter – who has nothing to hide will strive to do the same.

These transactions often occur without board knowledge or approval on the side of the client and present a major breach of privacy. Naturally the business relationship between the payroll provider and the client is at risk of being compromised beyond repair.

How common is the practice?

It’s difficult to say, because it’s a sure bet that many of the victims of this practice still have no idea it is going on. However, as the monetary value and sheer amount of data increases year over year, you can bet that practices like this are bound to become more common with time.

The bottom line

This is why we stress that data privacy and compliance need to be a top priority for all businesses – not only for legislative and compliance reasons, but because we believe that long-lasting, mutually beneficial business relationships are built on trust and transparency.

Another lesson in this story is for the clients themselves. Don’t simply take a supplier’s products at face-value. Do your research, interrogate their intentions, and always read the fine print. Simply going with the biggest or best-known payroll providers based on their reputations might leave you in the dark – as in this case – regarding their practices.

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SA risks losing indigenous languages

South Africa runs the risk of losing its indigenous languages, says Pan South African Language Board (PanSALB) Project Manager and head of Gauteng office, Dr Sally Maepa.

This has been attributed to the lack of the implementation of the Use of Official Languages Act 12 of 2012 (UOLA) by government department as well as citizens.

“We need to ensure that our languages are promoted, developed and equally used so we must ensure that the departments are complying,” Maepa said.

PanSALB on Tuesday released a Comprehensive Report on the Use of Official Languages Act 12 of 2012, during a media briefing that was held in Tshwane.

According to Maepa, almost all departments perceived UOLA and the multilingual language policy implementation as sheer provision of translation and interpreting services, rather than creating equitable space for the official language to grow and create value.

“Most departments admitted to not having done anything about implementing UOLA. There appeared no inclination to allocate sufficient human and financial resources towards multilingual language policy development and implementation,” she said.

Maepa said departments unequivocally displayed a strong preference to default to English on the assumption that it is easier, logical and common scenically the only language inherently able compared to others.

She said there is a lack of understanding of why the promotion of all 11 official languages and status elevation of previously marginalised official languages are important.


“The government departments should construct acceptable multilingual language policy with time-framed implementation plan.

“Both the language policy and its implementation plan should be strategically biased towards the development and creation of business space for the indigenous South African official languages,” Maepa said.

She said the departments should in tandem make solid provision for sufficient resources to enable language policy implementation.

“They should accord top priority to fully functioning language units with cogent executive standing within the departmental executive/management committee.

“The language units should be a multilingual language policy implementation structure of the departments and shall therefore not be limited to translation, editing, proofreading and interpreting. They are meant to actively entrench multilingualism within the context of each department’s business, to enhance service delivery,” Maepa said.

She said the department should appoint professional and expert language practitioners well entrenched in multilingualism, language policy, language politics and related studies.

“Each government department should be dutifully bound to develop its own specialized multilingual terminology lists and get them verified and authenticated accordingly,” Maepa said.

The Constitution of the Republic of South Africa recognises the historically diminished use and status of nine marginalised South African indigenous official languages.

There is an obligation on the state to take practical and positive measures to elevate the status, and advance the use of, these languages.

These languages include Sesotho sa Leboa - Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, isiNdebele, isiXhosa and isiZulu.

UOLA in essence fosters multilingualism within working spaces and beyond, in the spirit of social cohesion and nation building.

In pursuance of its mandate, in 2017 the PanSALB, invited all national government departments as anchors of service delivery to all South African communities to give account of their observance of the constitutional language requirement and chiefly the prescripts of UOLA since its inception in 2013.

During the process, it was established that most National Department and Entities do not comply with the act; take the execution of the PanSALB language mandate seriously and they ignore its mandatory responsibility to monitor their compliance of the Use of Official Language Act.

Maepa said 29% (12 out of 42) departments have complied with the submission of the monitoring tool.

Figures for departments that reviewed their languages policies since the public hearing in 2017 stood at 10% (4 out of 42).

Figures for departments that intend to review their language policies but no indication as to when were 10% (4 out of 42).

Figures for non-complying departments on the monitoring tool stood at 71% (30 out of 42).

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When academic writing no longer pays, writing stops

The goals of the Copyright Amendment bill tabled by the National Council of Provinces are noble, and indeed ones shared by most South Africans interested in developing our creative and academic sectors. Unfortunately, by misreading the production processes behind our country's body of knowledge, parliament may have in fact issued the death blow to these industries. What's even more concerning is the domino effect that this will have on the long-term quality of higher education in South Africa, as we effectively remove any and all incentives to create new or updated learning materials.

In a recent letter to groups representing some of the creators of this knowledge – PEN South Africa, PEN Afrikaans, and ANFASA (The Academic and Non-Fiction Authors Association of South Africa) – Minister of Trade and Industry Rob Davies stated that educational institutions like universities are the dominant creators of new knowledge, and that, as such, they “critique information and find new local and global applications for existing knowledge”.

He uses this assessment as justification for the Bill, which, in its exceptions and limitations for fair use, allows for the extension of exceptions to copyright in works when the use is ‘for education’ of academic works.

The harsh reality is that, the producers of knowledge can no longer gain fair compensation for their work, the incentive for creating that knowledge disappears, and that work stops. When this work stops, we effectively achieve two outcomes. The first is to age the body of academic materials to the point that they are no longer relevant and the skills we are creating do not keep up with global trends. The second consequence is to effectively recolonize our education landscape as the only way to access new materials is to import it (at a significant cost premium).

When there is less knowledge – particularly local ideas and insights – the opportunities for “critiquing information and finding new local and global applications” for it is necessarily also reduced.

The rationale behind the Bill’s attempt to make academic texts affordable, or permitting their reproduction is that students and lecturers will be able to access that knowledge more easily. However, by rendering the production of academic knowledge a non-viable pursuit, the minister is essentially pressing “pause” on the growth of the field.

When the amended Act leads to fewer South African writers producing work, and fewer university presses and academic publishers putting out texts, the availability of “existing knowledge” to be converted and processed into new, innovative and inspiring ideas will shrink.

In a sense, the DTI and the parliament, which has approved the bill, is endorsing the appropriation of knowledge without compensation. While such a policy may be understandable in the context of returning stolen land to its rightful owners, in the academic field, there are no such considerations.

Knowledge has not been stolen. It is produced by writers, academics, publishers and artists, influenced by previous generations of knowledge creators, built upon and shared in order to grow humanity’s understanding of itself, and its environment.

These people have as much right to compensation for their endeavours as any other workers in our economy. By allowing an extremely broad range of uses of their work without authorisation or compensation, the DTI is in effect saying it has no value, and at a stroke undermining knowledge creators’ ability to earn a living.

To extend the land-use metaphor, were a government to decree that wheat could no longer be sold for money, wheat farmers would instantly have no more incentive to grow wheat, and cultivation of that crop would cease.

In this case, knowledge and ideas are our cash crop. Writers, publishers and artists are the farmers of our ideas. They invest their time, their labour and their own money into their research, their production and their creative processes.

While much of what they do is for the benefit of broader society, their motives are not just altruistic. Like all of us, they must support themselves through these labours. The Copyright Amendment Bill threatens to remove their ability to do so.

When producing knowledge no longer pays, knowledge producers move into other industries. They have no other choice.

The Minister, in his letter, insists that “the Hybrid Fair Use provision is not a carte blanche provision, but it is subject to safeguards that have been incorporated into the CAB.”

This is all well and good, but as we have seen with similar legislation in countries like Canada, the parameters of the new law will have to be determined by the judiciary. Academics, artists and publishers will have to go to court to defend their right to earn a living from their own work.

Whether they succeed or fail, the process may take longer than a decade – as has been the case in some similar matters in North America. Quite simply, few publishers – and hardly any authors on the face of the earth – have the wherewithal to finance such legal battles.

This should not be necessary. Copyright in created works and the right of their creators to live off them should be an inalienable right.

We fear that in trying to ensure that coursework is more affordable, the state is ensuring that the work in those academic courses will be all the poorer in years to come. We must again implore the legislature to reconsider its adoption of this law.

Even now, at the 11th hour, the president can send the bill back to parliament for further consideration. If our writers can no longer write for a living, there will be less writing to learn from.

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How the Rental Housing Amendment Act will affect landlords, tenants

The Rental Housing Amendment Act 35 of 2014 has been on the cards for some time, and once it is in place, landlords and tenants will have six months to comply with the new legislation. Currently, no date has been set for implementation but many experts believe it is imminent.

“With serious repercussions that will be seen as offences, landlords need to pay careful attention,” says HouseMe CEO, Ben Shaw. “The Rental Housing Amendment Act creates stricter rules for landlords that could lead to fines or even imprisonment if found guilty of contravening specific parts of the Act,” Shaw says. “A renewed focus on lease documentation, deposit repayment, utilities management, tenant premises access, and ensuring the maintenance/habitability of the premises has been put forward strongly.”

All lease agreements will now have to be in writing. “It is required that landlords invest the tenant's deposit in an interest-bearing account where the interest may not be less than the rate applicable to a savings account with that financial institution.” Tenants have the right to request written proof of this.

If a property is not deemed to be in a ‘habitable’ state, a landlord can face jail time. “This means it is important for landlords to maintain their properties if they have tenants.” Tenants have the right to basic services like water and electricity and they have the right to a building structure that has been maintained. “According to the Act, ‘habitability’ refers to safety and suitability for living,” Shaw says.

The Act states that a landlord may not seize possessions of a tenant, visitors or family of the tenant except in terms of a law of general application and after having first obtained a court ruling, Shaw adds.

“In advertising a dwelling for purposes of leasing it, or in negotiating a lease with a prospective tenant, or during the term of a lease, a landlord may not unfairly discriminate against such prospective tenant or tenants on grounds including race, gender, sex, marital status, sexual orientation, disability or religion.” If a landlord doesn't comply to the above, they will be found guilty of an offence in terms of the Amendment Act.

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Sars turns to payrolls to make up shortfall

Once again, the latest Budget Speech featured a tax revenue shortfall, this time to the tune of R43bn. And despite promising initiatives implemented by the South African Revenue Service (Sars), it appears that its tribulations in meeting its collection target have not yet waned.

With the pressure mounting on the revenue office to make up the shortfall, it has become more assertive with its collection stratagems and payroll audits seems to be Sars' latest weapon of choice.

Potential honeypot

The simple reason behind targeting payrolls when it comes to extra revenue is purely because of payrolls tend to contain errors. There's also the potential to collect large sums from a single taxpayer.

Mistakes are magnified by the size of the company’s payroll and Sars can, and will, collect any underdeclared taxes from the employer, as opposed to the individual taxpayers themselves.

In the case of a large payroll with many employees, even the smallest errors can leave a company with a large tax exposure, as these errors are proliferated across the employee base.

In other instances, inexperienced payroll administrators simply do not know the law, which results in glaring errors such as failing to tax fringe benefits or paying lump sums without getting tax directives.

The truth is that Sars will find something, and most employers only become fully compliant once they have gone through the ordeal of a payroll audit.

Rising trend

As if the challenges of a payroll audit are not daunting enough, a new trend has become apparent that makes it increasingly difficult to get a clean bill of health from the Sars audit team.

Rather than identifying specific items that were inaccurately treated on payroll, Sars has now turned its gaze to the financial statement aspect of payroll.

These statements are assessed for an understatement or short payment of employees’ tax purely on the basis that there is a discrepancy between the company’s payroll reconciliation and the cost of employment as reflected in the company’s annual financial statements.

This is despite Sars’ awareness that not all amounts reflected in the annual financial statements under cost of employment should be processed to the payroll.

Nevertheless, the onus is placed on companies to dispute this and to explain why the amounts making up the difference is either exempt or not taxable. This is a quarrelsome task, as this effectively equates to finding a needle in a haystack and then proving that it is not subject to tax.

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Deemed receipt of income for property developers

In the recent case of Milnerton Estates Limited v CSARS, the Supreme Court of Appeal had to decide whether to include the purchase price in a property developer's 2013 year of assessment, even though payment was only received by the developer in its 2014 year of assessment.

A property developer concluded 25 sale agreements for a residential estate. The purchasers were required to pay a nominal deposit and the balance of the purchase price was payable against transfer. In 16 transfers, the purchasers had to raise finance and furnish a guarantee, the contracts containing suspensive conditions for obtaining the finance. In all 16 contracts the suspensive conditions were fulfilled by the end of the 2013 tax year. In the other nine sales, the purchasers either deposited the purchase price in cash with the conveyancers or provided guarantees from financial institutions for the purchase price. The result was that in all 25 transfers the purchase price was fully secured before the end of the 2013 tax year.

Section 24(1) of the Income Tax Act

The taxpayer contended that at the end of the 2013 tax year its entitlement to the purchase price remained conditional on its performance of the remaining tasks necessary to effect transfer of the properties into the names of the purchasers. It therefore omitted the purchase price of the 25 properties from its gross income in that year. SARS, on the other hand, contended that the purchase price in each instance had accrued to the taxpayer in the 2013 year, alternatively it was deemed to have done so by virtue of section 24(1) of the Income Tax Act. SARS accordingly raised assessments including the purchase price in the taxpayer’s taxable income attracting income tax of R1.9m.

SARS argued that the requirements in section 24(1) had been met as the taxpayer had entered into agreements with the purchasers of the properties in respect of immovable property, the effect of which agreements was that transfer would be passed from Milnerton Estates to the purchasers, upon or after the receipt by Milnerton Estates of the whole of the amount payable to it under the agreements. On this basis SARS contended that the whole amount was deemed to have accrued to the taxpayer on the date on which the agreements were entered into.

The taxpayer put forward several arguments as to why the purchase price did not accrue to it in 2013. It contended, for example, that section 24(1) does not concern itself with cash sales, but only with the sale of immovable property on credit. None of the arguments were accepted by the court. It was held that the agreements provided for Milnerton Estates to pass ownership to the purchasers upon or after receipt of the whole purchase price in terms of section 24(1). The purchase price was therefore deemed to be received in its entirety in the 2013 tax year, not the 2014 year when payment was in fact made.

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Don't get caught napping at financial year-end

Along with all the other responsibilities associated with tax management in South Africa, businesses are reminded of their PAYE (Pay as you Earn) obligations towards Sars - including the onus to issue IRP5 tax certificates to employees.

This is according to HR and tax legislation specialists at human capital management and HR solutions services provider, CRS Technologies.

Sandra Maritz, head of Legislation, says local companies have to understand and appreciate that there are serious repercussions for companies that don’t adhere to South Africa’s tax regulations.

“In order for Sars to assess the total tax liability due from an individual, they need to be informed of the accumulated income which the individual has received during a particular period, as well as the amount of the allowable deductions for this same period,” says Maritz.

“Generally employees are not informed of whether employers actually pay over the PAYE deducted from their remuneration to Sars. The reconciliation process is a way of determining that the PAYE deducted was actually paid to SARS,” she continues.

Maritz notes that the fourth schedule of the Income Tax Act obliges an employer to deduct or withhold PAYE from remuneration and then to pay the amounts deducted over to Sars within seven days after month end.

CRS Technologies advises that the process is quite complex and there is pressure on payroll practitioners to apply their skills, knowledge and experience to enforce PAYE regulations to employees’ earnings and deductions.

The company says that PAYE regulations and specifications are set up according to the Income Tax Act and is extremely complex.

“...[It] is a challenge to interpret correctly. The safest way to handle this is to entrust the tax year end obligations to a competent and professional payroll solutions and services company,” says Maritz.

South Africa’s detailed and complex tax legislation system demands a proactive approach by businesses.

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Will the Budget Speech keep the promises of Sona?

President Cyril Ramaphosa's State of the Nation Address (Sona) theme was "Following up on our commitments. Making your Future Work Better." The objectives of which were twofold: firstly, to appeal to business and the investment community which would be carefully listening for indications of policy consistency; and secondly, winning over South Africa's voting public who would listening for messages of hope that a better future is within grasp.

Hitting the target on both counts, Ramaphosa, the business person, spoke of the billions of rands circulating in South Africa’s economy, he outlined financial targets and what can be achieved through the fiscus (with the private sector as a firm partner). As a politician he highlighted the significant achievements made, most particularly in the realms of health and education, without losing sight of the urgency to do more.

Taking a step backwards, it is important to be aware that Ramaphosa’s Sona does not exist in a vacuum. It is offset by his economic stimulus and recovery programme that was announced last year in September and which in turn was further articulated by Finance Minister Tito Mboweni in his Medium-Term Budget Policy Statement (MTBPS) in October.

The key objectives of the economic stimulus and recovery programme were to:

  • Implement growth-enhancing economic reforms;
  • Reprioritise public spending to support job creation;
  • Establish an infrastructure fund;
  • Address urgent and pressing matters in education and health; and
  • Invest in municipal social infrastructure improvement.

The Competition Amendment Bill

Ramaphosa committed to signing this somewhat controversial Bill into law. Designed as a transformation tool, the bill explicitly defines contraventions and uncompetitive conduct by companies in relation to the Competition Act.

Read together with the BBBEE policy, a question to consider is to what extent do these two pieces of legislation work either for or against one another? The general perception in the economy is that BBBEE is not producing expected results which will arguably be remedied in part through the Competition Amendment Bill.


The plight of SOEs has been threaded throughout Ramaphosa’s addresses since last year, headlined by Eskom.

A signal that Eskom’s turnaround is slowly beginning to emerge is evidenced by the utility having to develop a nine-point plan for presentation prior to Tito Mboweni’s Budget speech on 20 February and the proposed restructuring of the power utility into three parts (generation, transmission and distribution).

However, with a debt of R419bn and an anticipated loss of around R20bn for the year through March as coal and maintenance costs increased, it will be critical for Budget 2019 to outline just where the source of funds will come from. With an overstretched budget and a junk status credit rating from two major credit rating companies, time is of the essence.

A knock-on effect of poorly managed state resources is a growing culture of non-payment for services, which is negatively impacting service delivery at local and national level.

Education and skills development

Ramaphosa announced that two additional years of compulsory pre-primary school will be incorporated into the education system. The MTBPS last year outlined that 15% of the R1.7trn allocated to consolidated expenditure for social spending last year goes to basic education. Education is the fastest growing area of expenditure.

Into this mix, the notion of digitalisation of education materials - although welcome - is slightly incongruous. Many schools continue to lack basic infrastructure such as electricity and network connectivity, thus the idea of digitalisation needs to be carefully considered on a scale of need. Additional costs associated with IT technicians to maintain the gadgets and servers, often significant amounts, must also be taken into account.

At high school level, in an effort to expand participation in the technical streams, several ordinary public schools will be transformed into technical high schools. However, teacher training colleges will be needed to be brought onstream in order to equip teachers for this new development to ensure that there are sufficient human resources to deliver the subjects.

Ramaphosa has undoubtedly announced some exciting possibilities in our educational landscape. But it will be up to Mboweni to balance the numbers.

Land reform let down

Land reform and the expropriation of land without compensation, while the biggest area of contestation in the public domain, has seen the least political movement since last year. From a voter perspective, it is going to be crucial for the ruling party to be seen as actively engaging with past injustices and moving the process forward.

Yet the policy is still not clear on how this it will be implemented. As such, we don’t expect much to come out of the upcoming budget. You cannot attach figures to something that is not clearly defined. This remains a concern for both domestic and international investors. Lack of clarity might be hampering new investment in the agricultural sector, so this has to be resolved as a matter of urgency.


By focusing in on some aspects of the Sona there are strong indications that Ramaphosa and his government are aiming for policy consistency. The next coming months will be critical in seeing whether this does bear up to scrutiny. But most importantly, it will be up to Mboweni’s budget to take Ramaphosa’s desire of ‘following up on our commitments’ and creatively carve up the fiscus to ‘make the future work better.’

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Political party funding bill signed into law

President Cyril Ramaphosa has signed into law the Political Funding Bill which promotes the transparency of funding of political parties, the Presidency said last week Tuesday.

The Act, among other things, regulates public and private funding of political parties and provides for the enhancement of multi-party democracy.

The legislation repeals the Public Funding of Represented Political Parties Act of 1997 and provides for a number of matters in relation to political parties’ funding, including the regulation of public and private funding of political parties and the establishment and management of a Multi-Party Democracy Fund to fund represented political parties sufficiently.

The Presidency said this will also include the prohibition of certain donations made directly to political parties; the regulation of disclosure of donations accepted; the determination of the duties of political parties in respect to their funding as well as the determination of the powers of the Electoral Commission in relation to political parties’ funding.

The Multi-Party Democracy Fund is intended to enhance multi-party democracy - whereby the Independent Electoral Commission is required to open an account for the fund with a registered bank which will be administered by a Chief Executive Officer, appointed in terms of the Electoral Act.

In relation to the prohibition of donations, the new law stipulates that political parties may not accept donations from organs of state or state-owned entities, foreign persons including entities from foreign governments and or their agencies - other than for the purposes of training or skills development of a member of a political party or for policy development by a political party.

The Presidency explained that the new law also states that political parties may not accept donations in excess of a prescribed amount within a financial year and that they may not accept donations that are known or suspected to originate from proceeds of crime.

Accordingly, the law calls on political parties to, through a juristic person or entity, disclose to the electoral commission all donations received that are above the prescribed threshold.

“The law mandates the commission to publish donations disclosed on a quarterly basis.”

Political parties are mandated by the law to deposit all donations received, such as membership fees and levies imposed on its representatives, into an account with a registered bank.

he new Act will help the electoral commission to monitor compliance and may request any person to disclose any relevant information or produce, in whatever form, any relevant books, records, reports and any other document it may deem necessary, the Presidency added.

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#BizTrends2019: Unsettling times ahead for employee tax and take-home pay

The 2019 election year brings the normal risk of some tax populist decisions, including much higher social grants. This will add to the fiscus' pressure, desperate for additional tax revenues. Personal income tax, which is mostly collected from employees, is by far the largest contributor to tax in South Africa. The goose which lays the golden egg is employees, and not corporate taxes or VAT.

In 2019, we will have a new permanent Commissioner of South African Revenue Service (Sars) and new National Prosecuting Authority boss, so it takes little foresight to know that tax collection will become a key fiscal driver. With a willing NPA and perhaps political green light, the tax collection problem will be a quick fix.

There is no mystical formula hereto – the correct Sars competency can swiftly land some well-placed punches. Get a couple of “untouchables” behind bars on tax fraud. The wealthy will suddenly better appreciate the importance of tax compliance and revenue will flow.

But what about the honest employee, working hard for a salary and supporting often more than one family? We hope they get a fair cut...

  • National Health Insurance and medical aid credits:

    There are promised announcements around National Health Insurance, especially the funding thereof in the Budget 2019/20. One should be very concerned that this will be funded, as suggested by government, from a reduction or removal of medical aid tax credits. Where this is done, because of how the medical aid credit system operates, it will cause an immediate take-home pay reduction for all employees. We can only hope this will not be announced, otherwise employees will take a further direct hit, on the back of many financial setbacks over the past year.

  • Travel reimbursement rates:

    The reimbursement and tax claim limits will require proper adjustment to keep track with the reality of petrol price increases and the higher-than-normal costs associated with business-use of vehicles. This is very much evident by the widening of the gap between the AA rates and the Sars-allowed rates.

  • Recession and low remuneration increases:

    There are many employers going through restructuring and retrenchment exercises, with the direct upshot that employees should expect lower increases. The reality is often a choice between preserving a job vs. rightfully demanded increases. One can only hope that the Minister of Finance will give some much-needed tax relief.

  • New financial products:

    We have now seen a revolution in employee remuneration by “Total Guaranteed Package with Flexible Benefits”, which allows an employer cost neutral approach, but the employee can structure their remuneration to suite their personal financial requirements. There are a number of new financial products and services, including at least three new zero- / low-cost banking options planned for 2019, so no doubt this will come with additional choices for employees.

  • Expatriate tax exemption – R1m only from 1 March 2020:

    The change is already in law and will most definitely increase the cost for South African employers which expands internationally when using South African employees as expatriates. In addition, the benefits and allowances provided to expatriates will often cause an additional tax burden, which becomes an employer cost in any tax equalised or tax protected policy approach. We have seen many employers proactively starting to plan for this already.

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DTI welcomes judgment on interest rate regulations

Trade and Industry Minister Rob Davies has welcomed the Supreme Court of Appeal's decision to dismiss the application of Micro Finance South Africa (MFSA) challenging the regulations reducing the interest rate on short-term loans.

In 2016, MFSA challenged the regulations in the High Court, which were introduced by the Department of Trade and Industry (dti) and the National Credit Regulator (NCR) to provide some relief for over-indebted consumers.

These regulations reduced the interest rate on a short-term loan from 5% per month on the first loan to 3% per month on subsequent loans in a calendar year.

MFSA argued that the reduction of the interest rate would, amongst others, drive micro-lenders out of business and consumers to loan sharks.

The High Court originally ruled in favour of the representative body of registered and legal micro finance credit providers in South Africa and the dti appealed the judgment to the Supreme Court of Appeal (SCA).

The SCA granted the dti leave to appeal the judgment to the full bench of the High Court.

The full bench ruled in favour of the dti and the NCR, and accepted that the reasons advanced by the department for the reduction of the interest rate were prudent and rational.

The court found that the regulations should be allowed to stand so that millions of consumers of short-term loans obtain relief from higher interest rates.

“The interest rate was reduced in order to reduce the cost of credit for consumers, prevent consumers from falling into a debt spiral or trap, prevent the roll-over of short-term loans, and curb the over-indebtedness of consumers,” said Davies on Sunday.

The MFSA applied for special leave to appeal the judgment to the SCA, but the SCA dismissed the MFSA’s application for special leave to appeal.

“The reduction of the interest rate on short-term loans is benefiting millions of consumers, many of whom are in the low-income group of the population. This group of consumers have been exposed to over-indebtedness and the high costs of credit,” said Davies.

The minister said the judgment will go a long way in advancing the efforts of government to bring relief to over-indebted consumers.

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Are businesses legally obligated to pay employee bonuses?

Are companies liable by law to pay their employees bonuses? The short answer: if payment of a bonus is a guaranteed right, either in terms of an employee's contract of employment, an employer's remuneration or bonus policy, or perhaps an industry-regulated Bargaining Council Main Agreement, and the bonus is not dependent on the exercise of any discretion at the instance of the employer or the attainment of individual- or company-related performance objectives, then such a bonus should ordinarily be payable.

Absent such a right, there is no legislation within South Africa which obliges employers to pay bonuses to its employees. Hence, the right must either be agreed at the time of contracting or bargained for, either individually or collectively, and subsequently agreed to.

Employer discretion

Uncertainty regarding the payment of bonuses is usually far more prevalent in cases where the employer reserves for itself the exercise of a discretion as to whether a bonus should be paid at all, alternatively, the calculation and quantum thereof. Indeed, arguably the majority of bonus schemes are made subject to an employer’s discretion in assessing the extent to which an employee (or a team, department or the employer as a whole) may have achieved previously agreed upon deliverables giving rise to payment of a bonus or a portion thereof.

In circumstances where employees may feel aggrieved by the manner in which an employer may have exercised such a discretion, the following constitutes a brief summary of the applicable guidelines in law which govern the exercise of an employer’s discretion.

It is now settled law that the payment of a performance bonus constitutes a “benefit” as contemplated by s186(2)(a) of the Labour Relations Act, 1995 (LRA), and the dicta in Apollo Tyres v CCMA and Others (2013) (LAC) at para 47.

It is furthermore trite that in employment law terms, and under the auspices of the unfair labour practice jurisdiction, there is no such thing as an unfettered discretion; the exercise of the discretion must always be subject to being tested against basic tenets of fairness (see Solidarity obo K Oelofse v Armscor (SOC) Ltd & Others, case number JR 2004/15 at para 28).

In Aucamp v SA Revenue Service (2014) (LC) it was said: “Even if a benefit is subject to conditions and the exercise of a discretion, an employee could still, as part of the unfair labour practice proceedings, seek to have instances where the employee then did not receive such benefit adjudicated. So therefore, even if the benefit is not a guaranteed contractual right per se, the employee could still claim same on the basis of an unfair labour practice if the employee could show that the employee was unfairly deprived of same. An example would be where an employer must exercise a discretion to decide if such benefit accrues to an employee, and exercises such discretion unfairly.”

In relation to the question of fairness, the court in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para 11, held that the exercise of a discretion may be open to challenge if it:

... had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.

In Apollo Tyres the Court said the following in relation to fairness:

... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

It follows that in those instances where an aggrieved employee wishes to challenge the exercise of an employer’s discretion in relation to the payment or calculation of a bonus, the employee would bear the bonus of showing that the employer, in exercising such discretion, acted irrationally, capriciously, grossly unreasonably or mala fide.

In those instances where an employer is found to have exercised its discretion inconsistently amount different employees, or with a clear intention of favouring or prejudicing one employee over another, this would in all likelihood assist the aggrieved employee in the discharge of their bonus.

Importantly, however, it has been found that even if an employer may have been wrong in interpreting and applying bonus criteria, this would not automatically result in a finding that the exercise of its discretion had been unfair (see Solidarity obo K Oelofse v Armscor (SOC) Ltd & Others at para 34). What is required to be shown, is proof of some form of behaviour on the part of the employer which meets the aforementioned test of irrational, capricious, grossly unreasonable or mala fide.

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#RecruitmentFocus: What do we need to know about the legalities of overtime and after-hours work?

Many South Africans are unaware of their basic rights when it comes to working hours and overtime. As we head into the holiday season, the hospitality and retail industries gear up for their busiest period, often extending hours to allow customers more time to sit or shop. With any number of staff expected to work overtime during this period, what should they, as well as HR, know about their legal rights in this regard?

We chat with Aadil Patel, the national practice head and director of Cliffe Dekker Hofmeyr’s employment practice, about what employers and employees alike should know about working after hours and overtime.

What are South African employer and employee rights regarding overtime and working after hours?

The Basic Conditions of Employment Act 75 of 1997 as amended (BCEA) has its purpose in creating the basic conditions of employment for employees in South Africa. Chapter 2 of the BCEA regulates various aspects of employment including overtime and work after hours.

Chapter 2 of the BCEA does not apply to employees who earn above the annual earnings threshold (published by the Minister of Labour from time to time). The current annual earnings threshold is set at R205,433.30 per annum. The chapter also does not apply to senior managerial employees or to employees who work less than 24 hours per month.

Therefore, employees who do not fall under the categories above ("qualifying employees") are entitled to the full protections afforded to them under the BCEA.

Overtime may only be worked by agreement between the parties (ie. the employer and qualifying employee). Overtime is defined by the BCEA as the 'time that an employee works during a day or a week in excess of ordinary hours of work'.

Ordinary hours of work depend on the agreement between the employer and qualifying employee. However, section 9 of the BCEA provides that the employer may not require the employee to work more than 45 hours in a week. In terms of remuneration for overtime work, a qualifying employee who works overtime has a legal right to demand payment for overtime worked at a rate of at least 1.5 times his or her normal wage rate. The qualifying employee may also enter an agreement with the employer where the employer agrees to waive overtime pay in exchange for providing the qualifying employee with time off work.

Qualifying employees are within their rights to refuse more than 45 hours per week (normal time) and 10 hours per week (overtime).

How are SA businesses managing overtime when working with a flexi-time offering?

In general, SA businesses (or employers) manage overtime with due regard to the requirements of the BCEA.

Employers who offer flexi-time offerings to its employees can avoid the requirements of the BCEA if the employees in question fall into one or more of the categories discussed above.

What are some examples of global legislation and best practice in this regard?

In terms of best practice, one could have regard to international labour standards on overtime. These standards are set by the International Labour Organisation.

In terms of other African countries, the following countries provide similar protections to South Africa to qualifying employees: Botswana, the Democratic Republic of Congo and Namibia.

To answer this question further, additional research will need to be conducted.

Will it be necessary for South Africa to adopt similar legislation in the future?

At this stage, our current legislative framework regulating basic conditions of employment is comprehensive. The BCEA has its purpose in ensuring that employees in South Africa are not exploited.

The provisions of the BCEA discussed above are currently not under review.

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You could face 3 years in jail if you send these types of messages over Facebook or WhatsApp – even if they’re private

The South African government recently criminalised malicious communications in South Africa, setting out a number of vague new messaging rules which could see you facing a hefty amount of jail time and/or a fine – even if your message is private.

The Cybercrime and Cybersecurity Bill which will be entered into parliamentary discussion in the coming weeks, has been introduced to bring South Africa in line with other countries’ cyberlaws as well as the ever-growing threat of cyber crime.

While the majority of the Bill focuses on criminalising the theft and interference of data, it has also introduced new laws surrounding any ‘malicious’ electronic communication.

Your message could result in jail time of up to 3 years and/or a fine if

  • It incites the causing of any damage to any property belonging to, or violence against, a person or a group of persons;
  • It intimidates, encourages or harasses a person to harm himself or herself or any other person;
  • It is inherently false in nature and it is aimed at causing mental, psychological, physical or economic harm to a specific person or a group of persons;
  • It is intimate in nature (aka nudity), and is distributed without the consent of the person involved.

In addition, the Bill compels all banking institutions, ISPs and cellular companies to assist in an investigation – allowing the government to access any pertinent private information stored on you as evidence.

However, deputy minister of justice and constitutional development, John Jeffery has insisted that the new bill is not an extension of government’s surveillance powers.

“Data is merely a means to commit offences such as fraud, damage of programmes and computer systems, extortion, forgery and uttering. It can also be used to commit murder by remotely switching of a respiratory system or terrorism by overloading the centrifuges of a nuclear station or remotely opening the sluices of a dam which causes large scale flooding,” he said.

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Non-compliant companies will feel the pain from Sars from December

The South African Revenue Service (Sars) will be using information supplied by the Companies and Intellectual Property Commission (CIPC) to determine which companies are not tax compliant and impose penalties accordingly, from 7 December 2018.

The national revenue collector issued an official notice to registered accountants and tax practitioners’ during October to confirm Fabian Murray, acting Sars chief officer’s announcement of the implementation of the new line of attack earlier this year.

The notice, which is signed by Acting Sars Commissioner, Mark Kingon, states that administrative penalties for late corporate income tax (CIT) returns will be imposed on over 300,000 companies. Such penalties can range from R250 to R16,000 per month of lateness.

It is a well-known public fact that Sars is short on collection, and as the Tax Administration Act determines a penalty per month of lateness, this will boost their collection. The law also looks at when a company should have been registered for tax. For instance, if you opened a company five years ago and never registered it, the minimum penalty is R250 x 12 months x 5 years = R15,000.

However, this minimum penalty is only applicable in instances where a company was dormant, as the law still demands CIPC and Sars compliance. Where a company is active, depending on various factors, the Tax Administration Act will determine the level of penalties applicable.

Directors could feel the pain

The directors of companies that are found to be not tax compliant, should rightly feel uneasy, as Sars will undoubtedly come after them personally, especially where the company does not have means to pay penalties, or plainly ignores it.

There are very clear company law provisions creating a personal liability against being reckless and delinquent on statutory duties.


  • A head in sand approach will not be wise here, as everyone dealing with Sars will agree – fx the problem before Sars targets and/or the system penalises you.
  • Where you have ever setup a company or been a director, and you are unsure whether the company is tax compliant, immediately get the status checked up with a CIPC registered tax practitioner, who can access both CIPC and Sars systems and give you a complete and accurate picture. This only takes a day or two to complete. This process is generally known as a tax diagnostic which gives you a complete update and visibility of your situation.
  • If there are any sensitivities about your situation, deal with tax attorneys, which ensures you have legal privilege. This is not obtainable from accountants or normal tax practitioners.
  • Where you are on the wrong side, fix anything outstanding, before the penalty is imposed. Your ideal skill set is someone who can provide full accounting sign-off, tax attorneys and those who know how to fix tax issues proactively, without causing you to be placed automatically on the Sars audit list.
  • The issue comes in in cases where the penalty has already been imposed, as they are not easily waived. Sars makes penalty waiver decisions by committee and you therefore need an experienced accountant, or ideally a tax attorney on more complex matters.
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Land reform an economic necessity, says Ramaphosa

Land reform is not only about correcting a grave historical injustice, it is an absolute economic necessity, says President Cyril Ramaphosa.

“Accelerated land reform, undertaken within the framework of the country’s Constitution and in adherence with the law, can be an effective catalyst for greater agricultural production, rural development, employment creation and broader economic growth

“Emerging farmers will have the land, security and support they need to establish viable businesses. Poor people in urban areas will have affordable housing in areas that are located near economic opportunities and social amenities,” the president said, speaking at the Discovery Leadership Summit in Sandton, Johannesburg, on Thursday, 1 November.

Ramaphosa said through fair, transparent and comprehensive land reform, the country seeks to unlock the full economic potential of land and its people.

“The current focus on accelerated land reform is therefore a vital opportunity to address economic exclusion. Without assets, most South Africans are unable to accumulate wealth, are unable to break the intergenerational cycle of poverty, and are unable to finance whatever entrepreneurial ventures they may conceive,” the president said.

Lack of access to land and other assets

Ramaphosa said another reason for economic exclusion is the lack of access by black South Africans to land and other assets.

Government is intensifying the implementation of land reform and restitution programmes so that South Africans can leverage land for the betterment of their lives and the growth of the economy.

Last month Ramaphosa said more than 20 land claimants will have their land returned to them as part of government’s land reform programme.

“It is our firm belief that communities must take great interest in their land restitution processes and be active participants in all enterprises and activities taking place on their land.

“The concept that will be developed through piloting the Mkhwanazi land claim settlement will be rolled out to other land claims across a number of sectors and industries. This is the first of a number of land claims that we aim to unlock over the next few months,” Ramaphosa said at the time.

Parliament is currently considering public submissions on the proposal for the Constitution to be amended to pave the way for land expropriation without compensation.

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Going back to B-BBEE basics with 10 transformation tips

If you have signed an employment contract that specifies something different to the Basic Conditions of Employment Act (BCEA), this will supersede what's outlined in the Act provided that there is agreement between the parties and the conditions specified are not less favourable than the BCEA, warns Cathie Webb, member (and prior executive) of the South African Payroll Association (SAPA).

The BCEA is committed to regulating fair labour practice for both employers and employees in South Africa. It clearly explains what needs to be done when notifying an employer that you are leaving and what the employer needs to do when it comes to final salary payments. The Act also covers a multitude of additional issues and challenges that could face the business or the employee in the workplace, providing clear guidelines that are upheld by law.

However, when it comes to calculating remuneration during termination periods, there are some complexities that need to be addressed, which may not be covered by the BCEA.

The BCEA states that the notice period must be four weeks (for someone who has worked for more than a year with the company). Many companies, though, require a calendar months’ notice. If the signed contract is for a calendar month, then the employee and payroll have to adhere to this timeline. Generally, the terms and conditions outlined in a signed contract will trump those outlined by the BCEA and employees need to be aware of this from the outset.

“That said, an employment contract may not offer working conditions worse than the basic conditions specified in the BCEA,” says Webb. “Employees do need to check their contracts before signing them to avoid unpleasantness. It is exciting to have a new job lined up, but the time to negotiate your employment terms is before you start, not after.”

Payroll needs to know

“It is critical that payroll be aware of what’s outlined in an employees’ contract to avoid any confusion when the person resigns,” adds Webb. “For example, many companies do not allow you to take annual leave in your resignation period, but situations may arise that make taking leave during this period a necessity. This possibility needs to be planned for, so that both the employer and the employee know how this would be dealt with, and what is to be paid out in the final payslip. Clarity from both sides is essential.”

Payroll needs to know and understand the rules of the third parties who are paid from employee deductions / contributions. Medical aids run from calendar month to calendar month, and contributions are usually made in arrears. This means that the final deduction from payroll pays for their final contribution to the medical aid. Pension and provident funds may work differently, with their month running from the 16th of one month to the 15th of the next. This may mean that, in a company where a 30 day notice period applies and an employee resigns before the 16th of the month, they do not contribute to the fund in their final month, while if they resign after the 16th, there will still be a deduction.

Other pay elements like final commissions, travel claims and re-imbursements, shift allowances, etc., should also follow what has been stipulated in the contract of employment.

Employees are also not aware that quite often they are not paid on the 25th of their last month. Companies have been burned by employees leaving the moment they receive their final salary, and not working the last 5 or so days of their final month. So companies may have a policy to pay employees who are leaving on first day of the following month. This must be outlined in the contract and will affect the employee if not clearly communicated when they resign. This may result in an employee having to make special banking arrangements to deal with debit orders which may be set to be processed towards the end of the month. Payroll can make this process a lot smoother.

“The BCEA also outlines how much notice is required according to how long a person has worked at a company,” says Webb. “If you have worked for less than six months it is one week’s notice, if for more than six months it is two weeks’ notice, and if it is more than a year it becomes four weeks’ notice.”

Webb emphasises that payroll plays a vital part in ensuring that both employee and employer finish their last month amicably.

“Things need to be maintained by both payroll and HR so that when a person leaves all elements are calculated correctly and comply with the conditions outlined by the BCEA,” concludes Webb.

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Going back to B-BBEE basics with 10 transformation tips

You'd be hard-pressed to find a responsible South African business that doesn't believe in the critical need for representative transformation and inequality reduction in South Africa. However, the intricacies of B-BBEE are confusing at best and can be incredibly expensive and stressful at worst. And the pressure from clients to be Level 2 or higher, and preferably black-owned, has never been greater.

Navigating the B-BBEE landscape and ensuring your business plans properly and invests in the right areas is even more difficult in a recession, when it’s hard enough just keeping your business above water.

If your organisation is still majority white-owned (i.e. more than 50%) and works with Government, SOEs or listed companies – or businesses that sit within their supply chains – then it probably does.

South African companies need to transform if they have any hope of succeeding and flourishing in future. This is not a political or legal threat, but simple business logic. This is especially pertinent in the marketing, advertising and communications (MAC) sector: brands and their agencies need to build strong and meaningful relationships with our black South African audience, and those that truly understand and represent this audience will win. The transformed will beat the untransformed in the marketplace.

Know you need to transform, but don’t know where to start? Here, 10 practical tips to help those charged with managing B-BBEE in businesses…

  1. Get board and CEO buy-in and lead from here.

    If your senior-most decision makers aren’t on board with transformation and aren’t prepared to give it the strategic and operational focus and support it deserves, B-BBEE and the next nine tips below are going to be difficult. The journey has to start here.

  2. Get a B-BBEE consultant.

    A lot of companies try to go it alone and flounder along. Unless they are very lucky, this will inevitably lead to B-BBEE plans that don’t align with organisational strategy, wasted expenditure and sub-optimal scores. There are a number of good consultants out there who can help get you started, and grow with you as you go. Your time is better spent on running your business and not on re-inventing the basics of SME B-BBEE planning.

  3. Become a black-owned company.

    This might seem radical, but there are tremendous advantages for SMEs (under R50m in annual turnover) in securing 51% black shareholding. The immediate benefit is that you will immediately and automatically qualify as Level 2 (minimum) and your black-ownership status is far more attractive to many clients than your recognition level.

    Following recent amendments to the Generic Codes (carried forward into the MAC Charter), black-ownership status is more lucrative in terms of points than recognition level. In other words, all other things being equal in a pitch, an agency that is Level 2 and black-owned will win over an agency that is Level 2, but not black-owned. Another big advantage of black-ownership for SMEs is that they don’t need to comply with any other elements on the scorecard (they will be at least Level 2 regardless). As responsible South African businesses, they should arguably continue to contribute to transformation at an industry level nevertheless.

  4. Get some books on B-BBEE for your business, read up on it, and go to seminars and workshops.

    There is plenty of this stuff around. A lot of it is free or very inexpensive, and B-BBEE seminars and workshops happen weekly across the country. Sign up to some mailing lists, buy a few books on the subject for your company and/or read articles online. Be curious.

  5. Run basic internal B-BBEE training.

    Once you’ve established a high-level understanding of how the Codes work, spend some time with your Exco and Managers unpacking the various elements, how they piece together and the impact that they have on your business. You need buy-in across the business, and helping your colleagues understand why they need to prioritise black hires, and invest in training and mentorship, and support black-owned suppliers and businesses makes this task a lot easier. If you can get a consultant or specialist to come in and do this for you, even better.

  6. Get intimately acquainted with the Learning Programme Matrix

    The matrix, which serves as an annexe to the Codes, breaks down all of the various forms of training in which a company can invest into 7 categories. Each of the categories carries different B-BBEE advantages (or disadvantages) which are stipulated in the Codes themselves (primarily under Skills Development). Some are tremendous (such as the ability to recognise salary costs for employees engaged in learnerships, apprenticeships and internships). Seta funding and tax deductions are also available for some categories of training. If you’re going to be investing up to 6% of your payroll in Skills Development, it’s probably a good idea to invest a bit of time and effort into understanding how you plan on doing this.

  7. Support small, black-owned businesses.

    Enterprise and Supplier Development points are available for companies that contribute towards small, black-owned suppliers (companies within their value chain) and enterprises (companies outside their value chain). The contribution can be in cash, but also in any number of non-cash means provided there is a ‘fair market’ means of valuing the contribution. Examples could include providing office space and facilities, back-office support, training, mentorship or free or discounted products or services. This can often be done at relatively low marginal cost to the business itself.

  8. Build a relationship with your Seta.

    A large number of companies don’t take full advantage – or any advantage – of training grants available from Setas (Sectoral Education and Training Authorities). Although navigating their bureaucracy and inconsistencies can be highly frustrating at times, when they do come to the party, the grants they award can help drastically reduce the net cost of training. If you don’t know which Seta you belong with, check your Income Tax or PAYE registration certificate, or chat with your accountant. All companies in South Africa are registered with a Seta, and the SDL that you pay monthly gets allocated to them. Find out where their closest office is, and make an appointment to go and introduce yourself to them. Time and time again, we find that the companies that nurture their relationships with Setas have the best experience with them.

  9. Plan.

    Once you have an understanding of how the B-BBEE elements work, do some basic modelling. I’m not talking about a massive spreadsheet exercise here (although that would be brilliant); just some basic three- to five-year forecasting, with rough estimate numbers that shouldn’t be hard to extrapolate into the years ahead, will make a huge difference. High-level projections on revenue, profit and payroll (for agencies, probably somewhere between 50% and 70% of revenue) a few years into the future will allow you to calculate targets across the Scorecard elements and give you a framework to build and test scenarios. Do it. It really helps.

  10. Embrace transformation through training.

    B-BBEE aside, the companies that will win time and time again are those that view money spent on training as a critical investment in their most valuable resource, and not merely a necessary cost of doing business. At Red & Yellow, we have developed the TTT (Transformation Through Training) Pyramid, which represents a medium-to-long term (three to five years) training and development philosophy that delivers against short-term development and transformation (B-BBEE and diversity) goal, whilst simultaneously building the foundations for management and succession planning at an organisation level, and focused, targeted career-path planning at an individual level.

The most important thing for SMEs is that they start tackling transformation and B-BBEE proactively and methodologically and stop burying their heads in the sand until the 11th month. I’m not for a second saying B-BBEE is easy, but it certainly shouldn’t be as hard as many businesses make it.

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Technology dominates our lives - that's why we should teach human rights law to software engineers

Artificial intelligence (AI) is finding its way into more and more aspects of our daily lives. It powers the smart assistants on our mobile phones and virtual "home assistants". It is in the algorithms designed to improve our health diagnostics. And it is used in the predictive policing tools used by the police to fight crime

Each of these examples throws up potential problems when it comes to the protection of our human rights. Predictive policing, if not correctly designed, can lead to discrimination based on race, gender or ethnicity.

Privacy and data protection rules apply to information related to our health. Similarly, systematic recording and use of our smartphones’ geographical location may breach privacy and data protection rules and it could lead to concerns over digital surveillance by public authorities.

Software engineers are responsible for the design of the algorithms behind all of these systems. It is the software engineers who enable smart assistants to answer our questions more accurately, help doctors to improve the detection of health risks, and allow police officers to better identify pockets of rising crime risks.

Software engineers do not usually receive training in human rights law. Yet with each line of code, they may well be interpreting, applying and even breaching key human rights law concepts – without even knowing it.

This is why it is crucial that we teach human rights law to software engineers. Earlier this year, new EU regulation forced businesses to become more open with consumers about the information they hold. Known as GDPR, you may remember it as the subject of numerous desperate emails begging you to opt in to remain on various databases.

GDPR increased restrictions on what organisations can do with your data, and extends the rights of individuals to access and control data about them. These moves towards privacy-by-design and data protection-by-design are great opportunities to integrate legal frameworks into technology. On their own, however, they are not enough.

For example, a better knowledge of human rights law can help software developers understand what indirect discrimination is and why it is prohibited by law. (Any discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, association with a national minority, birth or other status is prohibited under article 14 of the European Convention on Human Rights.)

Direct discrimination occurs when an individual is treated less favourably based on one or more of these protected grounds. Indirect discrimination occurs when a rule that is neutral in appearance leads to less favourable treatment of an individual (or a group of individuals).

Similarly, understanding the intricacies of the right to a fair trial and its corollary, presumption of innocence, may lead to better informed choices in algorithm design. That could help avoid the possibility that algorithms would presume that the number of police arrests in a multi-ethnic neighbourhood correlates with the number of effective criminal convictions.

Even more importantly, it would assist them in developing unbiased choices of datasets that are not proxies for discrimination based on ethnicity or race. For example, wealth and income data combined with geographic location data may be used as a proxy for the identification of populations from a certain ethnic background if they tend to concentrate in a particular neighbourhood.

Legal code

Likewise, a better understanding of how legal frameworks on human rights operate may stimulate the creation of solutions for enhancing compliance with legal rules. For instance, there is a great need for technological due process solutions, by which individuals could easily challenge AI-based decisions made by public authorities that directly affect them. This could be the case of parents who would be wrongly identified as potential child abusers by opaque algorithms used by local authorities.

Such solutions could also be relevant to the private sector. For example, decisions on insurance premiums and loans are often determined by profiling and scoring algorithms hidden behind black boxes. Full transparency and disclosure of these algorithms may not be possible or desirable due to the nature of these business models.

Thus, a due process-by-design solution could allow individuals to easily challenge such decisions before accepting an offer. As our contemporary societies inexorably evolve towards intensive AI applications, we need to bear in mind that the humans behind the AI curtain have the power to make (mis)informed decisions that affect us all.

It is high time that resources and energy are reverted towards educating them not only in cutting edge technology – but also on the relevant human rights rules.

This article is republished from The Conversation under a Creative Commons license. Read the original article here

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Understanding obligations and the law when it comes to immigrant employees

Many people throughout Africa, look at South Africa as a place which offers socio-economic opportunities; and as a result, it has become home to many inter-regional and inter-continental migrants seeking gainful employment. What many employers don't realise is that there are particular laws applicable to employing (and dismissing) these immigrants, which all employers will need to be aware of. We set out below a high-level summary of the key considerations you ought to be aware of in employing foreign nationals.

In terms of the Immigration Act, it is unlawful for an employer to knowingly employ a foreigner who is not authorised to be employed in South Africa. Any foreigner requires a valid work visa to work in South Africa. Often such visas are linked to a specific employer and are not transferrable. All employers are also required to make a good faith effort to ensure that they do not employ illegal foreigners. Employing a foreigner without the required visa and/or a failure to make the required good faith effort to determine an employee's status are offences which could result in a fine or imprisonment. This means that it is incumbent on all employers to obtain the identity documents and, where appropriate, the visas of all its employees and ensure their continued validity.

Immigration vs labour relations laws

In our experience, the dilemma that many employers face is how to address a situation where post-employment they realise that members of their workforce do not have the required permit to legally work in South Africa either because the employee never had the required visa (the employer failed to check this at the time of employment) or because the employee's work visa has expired.

An employer's inclination may be to simply terminate the relationship on the basis that due to the Immigration Act the relationship is unlawful. Such a termination, however, falls short of the requirements set out in the Labour Relations Act which protects all employees regardless of the employee's legal status to work in South Africa. As with any other employee, the employment relationship between the parties may only be lawfully terminated for a fair reason and after following a fair process.

Reviewing work permits

There are only three grounds on which an employer may lawfully terminate an employment relationship: misconduct; incapacity; and the employer's operational requirements.

The specific ground for termination determines which process an employer must follow. A failure to hold the required visa may be treated as an incapacity issue. Case law has, however, indicated that the employer must provide the employee with reasonable assistance to attempt to rectify his or her illegal status. This includes affording the employee an opportunity to engage with the Department of Home Affairs (giving reasonable time off) and completing and submitting necessary forms to support the employee's efforts. Paramount to the entire process is that an employer must ensure that the employee is treated with dignity and respect.

Notwithstanding the general guidelines set out above, the facts and circumstances of each individual are unique, and each situation must be addressed and dealt with on its specific merits. As a starting point, all employers need to conduct careful and periodic reviews of their employees' work permits to ensure that they are not falling foul of the law and are appropriately managing any risks.

original ariticle here

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Waging war on minimum wage in South Africa

South Africa's labour market, currently fraught with high rates of poverty, inequality and unemployment, will soon see an overhaul as far as employee wages are concerned. With the National Minimum Wage Bill on the cusp of becoming law, the time for employers to familiarise themselves with the looming change is now. The only thing standing in the way of this ground-breaking legislation is the president's signature.

The main objectives of the Bill are to provide for a national minimum wage, advance economic development and social justice through improvements to wages of the lowest paid in society, promote collective bargaining and support economic policy.

Once enacted as law, the Bill will apply to all workers and their employers. It will not, however, apply to members of the South African National Defence Force, the National Intelligence Agency, the South African Secret Service as well as volunteers who perform work for another person without remuneration. The Bill currently proposes a minimum wage of R20 per hour for ordinary hours of work.

No shortcuts

Employers cannot circumvent the national minimum wage by agreement with employees, nor can the minimum wage be lowered through collective agreement or law (unless it is an amending law). The minimum wage will form part of the employee's employment contract, unless the employment contract provides for more favourable remuneration.

The Bill further provides that where an employer unilaterally alters the hours of work or other conditions of employment in implementing the national minimum wage, this would constitute an unfair labour practice, thus affording the CCMA jurisdiction to hear such matters.

There are, however, temporary exceptions to the national minimum wage for the first year of its operation. These exceptions are for farm workers, domestic workers and workers in the expanded public works programme.

Annual review

A Minimum Wage Commission will be established, which is tasked with reviewing the national minimum wage annually and submitting a report to the Minister of Labour indicating the recommended changes to the national minimum wage. The Minister will then make any adjustment to the national minimum wage by no later than 31 March each year.

Employers should be mindful of the looming changes to the country's national minimum wage and be forewarned that any attempts to circumvent the national minimum wage may constitute an unfair labour practice.

original ariticle here

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Rhino poachers sentenced

Over 360 suspected rhino poachers have, in the past six, months been handed ranging sentences as authorities continue to combat the scourge. The arrests were a culmination of investigations by the National Joint Operational and Intelligence Structure's Operation Rhino 9 Task Team responsible for prevention, combatting and investigating the crime.

An additional 15 suspects, aged between 33 and 50 years, were arrested last week during intelligence-driven operations in Mpumalanga. Four unlicensed firearms and ammunition were seized during the arrests, national police spokesperson Vishnu Naidoo said in a statement.

“Between January and June 2018, the Rhino 9 Task Team secured various convictions, the maximum nine years’ imprisonment and the least being three months’ imprisonment with the option of paying a R1500 fine,” Naidoo said.

165 in custody

Of the 365 suspects arrested, he said 165 remain in custody while court processes unfolded. During this period, six were deported to their countries of origin while 11 received fines and 57 are serving their various jail terms.

“These convictions are evidence of the commitment of law enforcement agencies and game reserve parks to preserve endangered species for future generations,” Naidoo said.

“The arrested suspects have since appeared in various courts on charges of unlawful possession of firearm/s, unlawful possession of ammunition, possession of dangerous weapon/s, trespassing, hunting of protected animal, kidnapping, assault, possession of the remains of a wild animal, possession of suspected stolen property and being in the country illegally or without proper documentation.”

An assortment of incriminating evidence, which included cell-phones and axes, was seized during the arrests.

Rhino 9 Task Team

The Rhino 9 Task Team is a multidisciplinary team operating in Mpumalanga and comprises various government departments such as the police, customs and excise, the South African National Defence Force, as well as Ezemvelo and SANParks game rangers.

“The strategies that we have put in place in the fight against rhino poaching are significantly reducing the chances of smugglers operating at our ports of entry in our national parks. These arrests should serve as a warning and deterrent to other potential poachers,” Naidoo said.

“Community support and assistance is welcomed in the fight against this scourge. Poachers and smugglers are warned that over and above facing criminal prosecution, their ill-gotten gains will also be confiscated in terms of the Prevention of Organised Crime Act 121/1998 (POCA).”

Police have urged the people of South Africa to continue supporting the police in its efforts to bring down the scourge of crime. Anyone with information related to rhino poaching may contact the nearest police station or SAPS Crime Stop number: 0860010111.

original ariticle here

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New tax law doesn't put your passport at risk

The tax law amendment designed to compel expatriates to pay tax is going ahead, causing many citizens living abroad to consider the legal formalities of terminating their South African tax and exchange control residency.

Under the new law, which will come into effect on 1 March 2020, the first R1m of foreign remuneration will be exempt from tax in South Africa if an individual is outside of the republic for more than 183 days, as well as for a continuous period of longer than 60 days during a 12-month period.

However, the exemption threshold should reduce the impact of the amendment for lower- to middle-class South African tax residents who earn remuneration abroad. The exemption also means it is unlikely that South African tax residents in high-income-tax countries will have to pay any additional top-up payments to the South African Revenue Service (Sars).

The financial emigration process does not impact South African citizenship status, as this is purely a compliance formality from a Sars and South African Reserve Bank perspective.

Passport status does not impact tax status

Sars is aware of the differences between laws falling under the Department of Home Affairs and the Income Tax Act, and released a statement noting that “…the change is not related to citizenship and should not lead to South Africans giving up their passports, as its application rests solely on tax residency. Individuals who give up their passports may find they are still tax resident in South Africa and may still be liable for South African tax.”

Simply put, giving up your passport does not release you from your obligations to pay tax to Sars. Conversely, doing financial emigration which confirms you are not liable for tax on your world-wide income, does not impact your South African passport status.

When can you lose citizenship?

In terms of the South African Citizenship Act No. 88 of 1995 where a South African citizen makes an application to obtain citizenship of another country, once obtained, you automatically lose your South African citizenship. The question on many expatriate’s lips is how this is possible, when we know you are constitutionally guaranteed of South African citizenship by right of birth?

To give effect to your entrenched right, the Citizenship Act makes provision for “dual citizenship”. Section 6(2) of this Act states: “Any person referred to in subsection (1) may, prior to his or her loss of South African citizenship in terms of this section, apply to the Minister to retain his or her South African citizenship, and the Minister may, if he or she deems it fit, order such retention.”

This application must be done before you have obtained your second citizenship and, in our view, cannot be legally declined where application is correctly done.

Where you have missed this deadline, you have technically given up your South African passport. However, I have consulted with Marisa Jacobs, immigration specialist at Xpatweb, who has pointed out that the loss of South African citizenship is not always equally enforced.

There may be many South Africans who hold two citizenships and have never applied, neither had any issues with renewing their South African passport. Jacobs further mentioned that the prudent approach, where you have obtained a second citizenship, but have missed the opportunity to proactively apply for dual citizenship, is a special process which can be followed to get this still ratified with Home Affairs.

original ariticle here

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Changes to the Constitution may boost, not weaken, South African property rights

The South African government's plan to change the constitution to mention land expropriation without compensation could, ironically, end up strengthening the property rights on which investment depends.

Pressure to change the Constitution to allow the government to expropriate land without compensation is currently the country’s most contentious issue. Supporters insist that the measure is essential to end racial land ownership patterns which continue to favour whites a quarter century after the end of apartheid. Critics insist that this will threaten property rights and choke off investment.

President Cyril Ramaphosa has now announced that the governing African National Congress will support a change to the constitution’s property clause. This was greeted with predictable anxiety among pro-business commentators. But their fear that the change will weaken property rights seems misplaced. To see why, we must look at what property rights are, what the constitution says and what Ramaphosa and the ANC leadership may have in mind.

Much of the fear seems based on a view of property rights which sounds credible but does not describe reality in market economies. It sees property rights as the right to do whatever you like with what you own. The philosopher CB MacPherson pointed out four decades ago that this is not how property was understood until fairly recently, and not how property rights actually operate.

There is no unlimited right to property anywhere. People who own homes cannot use them to make banned substances or to fire missiles at neighbours. People who own factories cannot use them to enslave labourers or to pump poisons into the air and water. If owners ignore these rules, they will be forced to give up some of their property. Some might even lose the property – think of restaurant owners whose businesses are closed down by health authorities to protect consumers.

None of this is inconsistent with a market economy. On the contrary, these rules are essential to markets. A good analogy is a set of traffic lights. They limit what car and truck owners can do with their property, but they are essential to keeping the property safe.

The property rights of owners are, therefore, strong enough to allow them to invest with confidence when they know what the rules are which decide whether they keep their property.

Certainty is the key – not a blank cheque.

original ariticle here

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Too early to consider lifting water restrictions, says DWS

While a report on the country's dam levels paints a stable water situation across the country, the Department of Water and Sanitation has warned that the country is not out of the woods yet.

“Recent rains in parts of the country have given hope that perhaps the days of the water crisis may be over, even though it is too early to consider lifting water restrictions in affected provinces,” the department said.

A weekly report released by the department on Wednesday, 25 July, shows that South Africa's dam levels are showing signs of stability at 78.7%, compared to last year when they were at 69.7% during the drought that had ravaged the country.

Gauteng dams almost at capacity

Gauteng tops the charts, with dam levels almost reaching their capacity at 99.7%. The figures indicate a great improvement in the province compared to 2017 when the levels were recorded at 90.2%. The Vaal Dam is among the water resources that have recorded the highest levels in the country at 97.6%. The dam has improved by 3% compared to 2017 when it was 94.0%.

The heavy downfalls in the Western Cape have increased dam levels to a whopping 50.1% this week, compared to 25.7% in the same period last year. Levels at Theewaterskloof Dam, which feeds Cape Town, have almost doubled to 41.3%, compared to 20.5% a year ago.

However, despite the good rains, the department said it will only review the current water restrictions when the dam levels have reached 85% capacity. The Cape Town Dams System, with six dams serving the Cape Town Metro, has also increased from 54.8% to 56.1%. More rains are predicted for the region.

Eastern Cape worst affected

The Eastern Cape came out the worst province with the lowest dam levels in the country at 62.9%. The Algoa System, with five dams serving Nelson Mandela Bay, decreased from 19.7% to a perilous 18.9%. Last year, the system stood at 32.9%. Kouga Dam has decreased from 7.4% to 7.2% this week; Groendal decreased from 40.1% to 39.7%; Katrivier improved by 1% this week and Macubeni is at 97.2%. The Amathole System, which has six dams that serve East London, decreased from 90.1% last week to 89.9%.

In the North West, Haartebeespoort Dam improved from 66.9% to 97.3% this week, while Sehujwane is at 85.1%. In KwaZulu-Natal, dam levels decreased from 64.2% to 63.8% compared to last week. Umgeni Dam System, which boasts five dams that serve eThekwini and uMsunduzi in Pietermaritzburg, decreased from 75.4% to 74.8%. The system was at 60.3% in the same period last year.

Northern Cape improved from 87.2% to 93.1% this week. Boegoeberg Dam increased from 91.3% to 99.6%. In Limpopo, the average dam levels decreased from 72.6% to 72.1%. Polokwane Water Systems decreased almost by 3% in the past week to 91.5%. In Mpumalanga, the average dam levels decreased from 79.9% to 79.5%, representing a 3% increase compared to the same period last year.

The department reminds water users to continue adhering to water restrictions imposed by their respective municipalities.

original ariticle here

( (021-9820665)

Wage agreements ends postal strike

The South African Post Office (SAPO) and trade unions have reached an agreement on salary adjustments, bringing an end to the two-week postal strike.

SAPO and its recognised trade unions - Communication Workers Union (CWU), the Democratic Postal Workers Union (DEPACU) and the SA Postal Workers Union (SAPWU) - signed the agreement on Wednesday, 18 July 2018.

In terms of the agreement, Post Office employees across the board will receive a salary increase of 6.5%, backdated to 1 April 2018.

Furthermore, the contracted working hours for permanent part-time employees have been moved from 21.5 hours a week to 27.5 hours a week. Five hundred of these positions are earmarked to be phased in as permanent full-time employees in due course, following the necessary processes.

Post Office CEO Mark Barnes said accumulated mail is expected to take roughly 20 work days to be processed.

SASSA payments

Barnes said SAPO appreciates the importance of the South African Social Security Agency (SASSA) project and is committed to work closely with its employees to ensure the livelihoods of the most vulnerable are not put under unnecessary strain.

SAPO has reached a milestone of migrating 2.2 million SASSA beneficiaries to the new SASSA/SAPO issued gold card.

“We want to assure all beneficiaries that the IT challenges that impacted last month’s payment run have been resolved. We encourage all social grant beneficiaries to migrate to the new gold SASSA/SAPO card at pay-points,” Barnes said.

Barnes thanked customers for their patience and understanding, and trade unions for negotiating in good faith.

He also thanked the Department of Telecommunication and Postal Services, as well as the Council for Counselling, Mediation and Arbitration (CCMA) for their support and guidance.

Meanwhile, Telecommunications and Postal Services Minister Siyabonga Cwele has welcomed the agreement reached by SAPO and its recognised unions. He said SAPO and its unions have a common interest in ensuring a sustainable future for the organisation in the face of increasing competition in its traditional markets.

The agreement follows a meeting Minister Cwele held with the SAPO board, management and unions on Monday.

“It is clear that the parties were already close to reaching an agreement at the time we met. I am pleased that they were able to resolve the outstanding issues in such a short space of time.

“The Post Office remains an important organisation which enables citizens in rural areas to access government services. The latest example of this is the partnership it has with SASSA to pay social grants,” said Minister Cwele.

Cwele encouraged all the parties to continue engaging each other to seek a common approach to ensuring a sustainable Post Office by focusing on opportunities brought about by e-commerce and the Fourth Industrial Revolution.

He further called on citizens who have not yet migrated to the new SASSA/SAPO card to urgently do so.

( (021-9820665)

FairPlay demands enquiry into SA sugar tariff debacle

The FairPlay movement has called for a public enquiry into the fiasco that saw a zero tariff for sugar being set and gazetted in South Africa last year, which allowed importers to bring in and stockpile sugar duty-free, "and which plunged the South African industry into a crisis”.

“This is more than an administrative error. It was a brief period, but together with months when tariffs were wrongly kept low, it assisted a huge surge in sugar imports in 2017,” said Francois Baird, founder of the FairPlay movement. “This blunder has been a disaster for the sugar industry and has cost the country millions, if not billions of rand in tariffs that should have been collected. It must never happen again, and those who allowed it to happen must be called to account,” he said.

Key employer

The South African sugar industry provides direct jobs for 80,000 people and is one of the biggest employers in the job-starved rural province of KwaZulu-Natal. According to FairPlay, in a country with unemployment figures of 27% it is unthinkable that a government blunder would allow imported sugar into the country at an import tariff of zero, to flood the market and knock the legs out from under sugar farmers. And yet that is exactly what happened in South Africa and why the sugar industry, supported by the FairPlay movement, took to the streets to march to the Department of Trade and Industry in Pretoria at the end of last month.

“The process for calculating and triggering the sugar tariff in South Africa is a straightforward empirical calculation,” explains Baird. “This is based on the 20-day moving average of the global price of sugar as established by the daily settlement price for sugar on the London commodity exchange.

“If there is a difference of more than $20 per tonne between the London settlement price and South Africa’s Dollar Based Reference Price based on the 20-day moving average, a new tariff rate is triggered.”

The International Trade Administration Commission (ITAC) verifies the calculation and recommends to South Africa’s Minister of Trade and Industry to change the sugar duty accordingly, Baird explains, adding that the actual amendment to the tariff is implemented when the Minister of Finance amends the duty by gazetting the change in tariffs.

According to the movement, the failure of the Minister of Finance to gazette the tariff changes that are triggered by changes in the international price of sugar has caused South Africa to be flooded by imports, causing great damage to small and large sugar-cane growers and sugar producers, at a cost to the South African Treasury of billions of rands; not to mention the job losses and hardship for families dependent on the sugar industry for their livelihoods.

Series of blunders

“This series of unconscionable blunders has been a disaster for the South African sugar-cane industry and the South African economy,” says Baird.

  • In April of 2017 the 20-day average of the international sugar price triggered a tariff of R1,117 but the tariff increase was not implemented and remained at R636
  • In June of 2017 a tariff or R1,558 was triggered but again not implemented and the tariff remained at R636.
  • In July of 2017 a tariff of R2,111 was triggered but again there was no implementation and the tariff remained at R636. That same month the international price of sugar dropped and should have triggered a tariff of R1,807. But in this instance, even the exiting tariff of R636 was not implemented and no tariff was collected… at great expense to the South African Treasury. Further large quantities of imported sugar were dumped into South Africa during this period since they could enter the country duty-free.
  • In August of 2017 the tariff trigger was set at R2 131 and finally a tariff of R2 131 was implemented. Unfortunately, the damage had been done

Ten months later, the South African sugar industry, which has been further beset by the implementation of a tax on sugary beverages on 1 April 2018, is teetering on the brink of collapse. A government spokesperson addressed the rallied farmers and millers at the 25 June march in Pretoria and promised that the relevant departments were addressing the issue and would resolve the issue of insufficient tariffs by July.

( (021-9820665)

original article found at

Free Trade Area agreement means for SA

South Africa has signed the African Free Trade Area (AfCFTA) agreement with the African Union, which will pave the way for the country to benefit from inter-regional trade within the African continent.

“This agreement is an important step towards South Africa’s participation in a market of over one billion people and will create opportunities and many benefits for South Africa, which would enable South African companies to export goods and services across the continent.

“It will contribute to the growth and diversification of our economy and therefore create jobs, as well as reduce inequality and unemployment,” said President Ramaphosa.

The President signed the agreement during the AU Summit that took place from 1 - 2 July 2018 in the Republic of Mauritania under the theme “Winning the Fight against Corruption: A Sustainable Path to Africa’s Transformation.”

“South Africa remains committed to a coordinated strategy to boost intra-Africa trade and to build an integrated market in Africa that will see a market of over one billion people and approximately $3.3 trillion in GDP.

“New markets in West Africa and North Africa will provide opportunities for the export of South African products. To date, the agreement has been ratified by six countries, namely Chad, eSwatini, Ghana, Kenya, Rwanda and Niger,” said the President.

The main objectives of the AfCFTA are to:

  • Create a single continental market for goods and services, with free movement of business persons and investments;
  • Accelerate the establishment of the Customs Union;
  • Expand intra-African trade through better harmonization and coordination of trade liberalisation and facilitation and instruments across the RECs and across Africa in general and
  • Enhance competitiveness at the industry and enterprise level through exploitation of opportunities for scale production, continental market access and better reallocation of resources.

President Ramaphosa said to take full advantage of this agreement, investment in infrastructure that connects countries must be made.

“There are many other areas of cooperation where we can foster integration, particularly at a regional level, such as tourism, energy and transport. This agreement offers the prospect of a new dawn for Africa,” said the President.

The agreement will soon be submitted to Parliament as part of the process towards its ratification.

( (021-9820665)

original article found at


Business travel is part of the day-to-day job for a growing cohort of employees, from senior company executives to junior sales staff, across all company types and often across borders and continents.

Travelling for business brings with it its own set of risks, demanding that organisations of all sizes exercise the utmost duty of care in managing and mitigating the risks to employees, operations, business continuity, reputation and profitability.

‘Duty of care’ refers to the legal and moral responsibility that employers have to ensure the health, safety and wellbeing of their employees in the workplace and while travelling for business. It helps to ensure business continuity and compliance, as well as protecting against reputational damage and potentially costly legal issues. Most fundamentally, it helps safeguard the primary business-critical assets of any organisation: its people.

According to Claudia Lemon, accident and health underwriting manager at Chubb South Africa, duty of care is a complex risk that is difficult to quantify and manage and has the potential to create fundamental damage to a company’s reputation and bottom line if not addressed thoroughly. “The scope of business travel risks are truly global, which is why corporate responsibility and governance must work hand in hand with insurance risk management to protect employees, the business and the brand reputation,” says Lemon.

A key challenge for those responsible for corporate stewardship is to ensure that the right insurance solution is chosen that enables the provision of duty of care. A good place to start is with a group personal accident as well as travel insurance for those employees who go away on business.

“Besides the more obvious insurance cover for medical emergencies, political instability, on-the-ground expert response and even emergency extraction while travelling for business, many companies are unfamiliar with the additional technology support and tools that the insurance industry has developed, such as preventive information, country risk assessments, post-accident support, smartphone apps and guidance notes for staff travelling internationally for business,” says Lemon.

“Technology can also allow the company to send alerts directly to employees in the middle of an event in addition to tracking and locating them using the GPS on their phones in case an extraction is required. Given the proliferation of smartphones and mobile devices, there is great potential for growth in digital services that can support employees when they travel for business, and these tools should be considered a standard offering for all companies that send their staff on business trips,” Lemon explains.

It is also vitally important that the insurance partner chosen has the capacity and ability to cover all potential risks, no matter the complexity.

“With foresight, planning and expertise, insurance solutions can be designed to facilitate the organisation’s commitment to duty of care provision, mitigate reputational damage and legal repercussions, and demonstrate its absolute commitment to protecting employees in the execution of their work responsibilities,” says Lemon.

Companies can benefit from partnering with experienced insurers and brokers to protect their staff from unwanted business travel outcomes. At present, many companies appear to be undervaluing the support they can get from the insurance industry, but the range of available products and services can help companies to significantly upscale their duty of care. Insurance can offer more than just coverage and the range of tools and services that are often included can enhance significantly corporate duty of care procedures and responses.

( (021-9820665)

original article found at


The newly developed online renewal Case Management System (CSM) will see ease the process of liquor licence applications and renewals, said the National Liquor Authority on Wednesday, 20 June 2018.

Director of Education and Capacity Building at the National Liquor Authority (NLA), Khabonina Maxatshwa, said the launch of the CSM will ensure that registrants and consultants enhance the ability to make use of the system for liquor license applications and renewals.

Maxatshwa was speaking at a compliance consultative workshop held in Belhar in the Western Cape on Wednesday.

The online system came into effect on 18 May 2018 and mainly targets consultants, clients and registrants.

“The purpose of the automation is to improve on our efficiencies concentrating on service delivery because we have been doing everything manually in the past. We are however trying to enhance and progress on our system so our turn-around times can advance and our registrants can be able to get their renewals on time,” said Maxatshwa.

She further highlighted that the implementation of the system has been divided into three phases with each of them delivering certain components of the administration process in the form of both business processes and system functionality.

Some of the benefits of the renewal system by NLA include that:

  • The online renewal case management system does not require pre inspections to be conducted;
  • The registrants will not be required to submit the documents that have already been uploaded in the system, Identification and Zoning; and
  • Only South African National Accreditation System (SANAS) accredited Broad-Based Black Economic Empowerment (B-BBEE) certificates will be considered.

The NLA is located within the Consumer and Corporate Regulation Division (CCRD) of the Department of Trade and Industry.

( (021-9820665)

original article found at


Eskom left large chunks of the country in the dark on Thursday night when it implemented stage one load shedding, blaming the black out on sabotage by striking workers.

The financially troubled power utility is in a labour dispute with unions after it announced a 0% wage increment for employees.

The National Union of Mineworkers (NUM) and the National Union of Metalworkers (Numsa), demanding a 15% wage increase, rejected the offer and staged pickets on Thursday. They were joined by Solidarity, which is asking for a 9.5% increase. Eskom reported that the strike action had led to several incidents of road blockades, attacks on staff, and wilful damage of electricity infrastructure.

Eskom has obtained an urgent interdict from the Labour Court against the three unions on the basis that the majority of workers at the state-owned enterprise (SOE) fall under the category of essential services and are barred from striking.

Meeting with Gordhan

Meanwhile, Public Enterprises Minister, Pravin Gordhan, departmental officials and Eskom board members met with the leadership of Cosatu at their invitation on Wednesday.

“The minister wanted to understand the concerns from organised labour about the wage dispute with Eskom and related matters. Amongst the concerns expressed by Cosatu were the manner in which wage negotiations have been conducted, the zero percent wage offer, and allegations that the independent power producers programme is crowding out jobs in the mining sector,” the department said.

At the meeting, Gordhan explained the current challenging environment, including the contraction in economic growth in quarter one of 2018 and lower growth projections for 2018, and that government does not have the money to continuously bail-out SOEs.

“The minister agreed that it was improper to raise the issue of down-sizing Eskom at the same time as the current wage negotiations. He undertook to discuss the resumption of negotiations with the Eskom board and to ensure that a constructive and respectful atmosphere for negotiations is created,” said the department.

Gordhan said it is the responsibility of the board to determine what kind of wage increase Eskom can offer its employees, within the framework of the board’s fiduciary responsibilities.

“The minister is in no position to instruct the board on this issue,” said DPE, adding that the he has offered to convene an information-sharing session between Eskom and Cosatu so that the company’s financial position is understood and taken into account by all parties.

( (021-9820665)

original article found at


The National Health Insurance (NHI) Bill of 2018 will be published in the Government Gazette shortly for public comment.

A key provision of the bill will be the establishment of an NHI fund to pay for health services so that all South Africans have access to quality care.

“The bill seeks to establish the NHI Fund of South Africa, as a public entity, so as to provide for a sustained universal health access that is affordable and of high quality. It also sets out its functions, powers and duties,” Cabinet said in a statement following its regular fortnightly meeting.

The bill provides a framework for the active purchasing of health care services by the fund on behalf of users and creates mechanisms for the equitable, effective and efficient use of the resources of the fund to meet the health needs of users.

The NHI, which government began piloting in 2011, proposes a single, compulsory medical scheme for all, with private medical schemes being reduced to offering complementary services.

All citizens and permanent residents will be covered by the NHI, while a special fund will be set up for refugees. Documented asylum seekers will be able to access emergency care. Everyone else will need medical insurance.

NHI is being introduced in three phases, starting with preparing central hospitals to provide specialised services to all citizens, under the control of central government.

Health Minister Dr Aaron Motsoaledi is next week expected to hold a full media briefing to unpack this bill.

( (021-9820665)

original article found at


You own a business and you put a sign up saying, "Park at your own risk" - which effectively amounts to a 'contract'. Simply put, you are saying that anyone can enter your premises on that basis - if they don't want to then they shouldn't enter - and that you are not liable for any damages howsoever arising, whether due to your negligence or anything else. In reality though, the sign actually means nothing and offers a business no protection against public liability claims.

This can be contested in terms of Section 48 of the Consumer Protection Act (CPA) on the basis that ‘a supplier must not offer to supply, supply, or enter into an agreement to supply any goods or services on terms that are unfair, unreasonable or unjust (and here’s the kicker), they cannot require a consumer or any other person to waive any rights or assume any obligation on terms which are unfair, unreasonable or unjust.’

PJ Veldhuizen, managing director of Gillan & Veldhuizen, says that when dealing with consumers, what businesses need to do is to ensure a contractually sound relationship between them and the consumer which promotes the objectives of the Consumer Protection Act. This includes fair and reasonable treatment of consumers by suppliers when supplying goods and services.

There is a clear injunction in the legislation which requires a court or tribunal to interpret the provisions of the CPA purposively – by that, it means that a presiding officer, when attributing meaning to any part of the legislation, must do so in the light of the purpose which it seeks to achieve. “For example,” says Velhuizen, “any ambiguous provision in the act must be interpreted in favour of the consumer and although it may seem like an oversimplification of matters, the interests of consumers will generally win the day.”

When suppliers are wishing to consider the fairness of any provisions on which they seek to rely, they should consider who their consumers are, especially in relation to those consumers who could be considered vulnerable as result of poverty, illiteracy, age or any other vulnerability.

At store level, suppliers need to ensure that their staff are adequately briefed on how to deal with the public, are aware of the CPA, and know to whom they should refer any complaints.

If you work with clients or customers in public spaces, have visitors to your premises, or manufacture products, suppliers are encouraged not to simply rely on so-called exclusionary clauses or signs which may have assisted them prior to the CPA and should now adequately insure themselves against claims.

While claims made against you may be opportunistic and ultimately unsuccessful, the costs of defending even spurious claims can be debilitating and these defence costs should also be insured against all public liability claims.

Veldhuizen adds that whilst it is often a David and Goliath game, there are many lawyers who are prepared to take on matters on contingency basis, i.e. a no-win-no-fee in circumstances where consumers have been injured and significant damages incurred. Veldhuizen, therefore, advises that when confronted by a public liability claim, one should always consider appointing a mediator to assess whether there is scope for alternative dispute resolution.

Without necessarily admitting liability, the purpose of mediation is to explore whether it is not simply an apology that somebody wants – furthermore, mediation will see you as being a responsible and worthy supplier, and will ultimately save the business money and preserve its reputation.

( (021-9820665)

original article found at


"The recent raids on businesses employing illegal foreign nationals in Cape Town underscores the Department of Labour's mission to ensure that employers comply with labour legislation as it relates to the employment of foreign nationals," says Advocate Tertius Wessels, legal director at Strata-G Labour Solutions.

On 9 May, raids were conducted in China City in Milnerton and Canal Walk in Century City where 25 foreign nationals were arrested for contravening the Immigration Act. In addition, a manager at one of the businesses was charged with contravention of the Act, which regulates the employment of foreign nationals in South Africa.

Wessels says many employers provide employment to foreign nationals without understanding the legal implications of their decision. “There is a misconception that if someone is a foreign national, normal labour laws, such as the Basic Conditions of Employment Act and Labour Relations Act, do not apply to them.

“It is important that employers know that foreign employees, including those who do not have valid work visas or permits, are afforded legal protection in terms of South Africa’s labour laws and they enjoy all the rights, privileges, duties and obligation of a ordinary South African citizen. They are also protected against unfair dismissal and/or unfair labour practices,” he adds.

Employers must ensure that when they dismiss a foreign national, it is done for a fair reason and in accordance with fair processes. “Employers should not be under the false impression that South Africa’s labour law does not apply to foreign nationals or that foreign nationals do not have any recourse against their employers,” says Wessels.

He adds if people are in the country illegally, they can be deported. Furthermore, section 49(3) of the Immigration Act provides that “anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act shall be guilty of an offence and liable to a fine or a period of imprisonment not exceeding one year for a first offence.”

When employing foreign nationals, a duty is placed on an employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of the persons it employs. It is up to the employer to check if the individual has valid enabling documents to work in South Africa. “Employers also need to check the expiry date and make sure the employment contract is for the duration of the work permit.

Alternatively, such employees must take steps to renew the documentation timeously. If they don’t, the employer will have grounds to terminate their services,” concludes Wessels.


are we suppliers or sellers under the cpa


When the Consumer Protection Act became law in April 2011, there was considerable confusion in the real estate industry as to who was actually affected by it. Some conveyancers, industry-related bodies and others said that all property transactions would be affected by the Act and that all property sellers had to comply with its requirements. Today it has become widely accepted that only certain persons are affected and it is important to know who they are. John Gilchrist, director of Property Law Publications, explains.


In the definitions at the beginning of the Act a supplier is defined as anyone who markets goods or services. This means it is not only manufacturers, wholesalers and retailers who are affected by the Act (they all supply goods), all conveyancers and estate agents qualify as suppliers as they market their services to the general public. They are bound by the provisions of the Act in respect of these services.

This does not mean, however, that estate agents are responsible for the condition of any property they are selling because the property does not belong to them. Some roleplayers have claimed that the moment a seller engages an agent to sell his property, he becomes bound by the Act because his agent is bound by it, but this is not true. Agents only qualify as suppliers in respect of their services and this does not bind their sellers in respect their homes or other properties.


The Act defines a consumer as someone who deals with a supplier ‘in the ordinary course of the supplier’s business.’ This means that all sellers are excluded from the definition of a supplier unless they are dealing with their buyers in the normal course of their businesses. Note that it does not say ‘ín the normal course of business’. It is expressly says that a consumer must be dealing with his supplier in the normal course of the supplier’s business. This means the seller must be dealing with the sale or letting of properties as a normal business enterprise that he actually operates as such.

If a property owner runs his panel-beating business on a business property and sells the property, he does not qualify as a supplier in this instance because selling properties is not done in the normal course of his business. Only panel-beating qualifies as his ‘normal’ business. The only people in the real estate industry who qualify as suppliers are developers who are developing cluster, sectional title, or other property schemes as well as any other natural or juristic persons who are selling and buying properties or letting them in the normal course of their business.


Even people who invest in a few properties as a long-term investment designed purely to create asset-based wealth for their retirements do not qualify as suppliers. Just because they own a few properties does not mean that they have suddenly become suppliers in terms of the Act. The expression ‘normal course of business’ must be interpreted to mean that the property owner must be operating an income-based enterprise (not something created purely for capital growth in the long-term) and such an enterprise must have an ongoing basis to be ‘normal’ in a business sense. The VAT Act talks about going concerns and this is a good definition of anything being operated in the normal course of business.

Any single sale of a property will invariably be excluded from the provisions of the CPA. Estate agents only need to ascertain whether their sellers are engaged in regular buying and selling of properties as a form of income-creation to determine whether they are bound by the Act or not. This applies equally to sellers who derive their monthly income from letting such properties to respective tenants. Please feel free to contact our offices or any assistance in Consumer and Property Law contact FPS Attorneys.

( (021-9820665)

Source and extract from the Property professional Article 15 may 2018 written by J Gilchrist


The Independent Panel of Experts, set up to review the current list of zero-rated Value Added Tax (VAT) items, has invited all interested stakeholders to make written submissions for their consideration.

Minister of Finance Nhlanhla Nene on 25 April 2018, published the terms of reference for the panel of experts which will consider the most effective way to mitigate the impact of the increase in the VAT rate on poor and low-income households.

The panel is mandated to take public submissions, convene hearings, and engage with different stakeholders from civil society organisations, organised labour and business, and all other interested parties.

As part of carrying out its mandate, written submissions and any other queries can be submitted via e-mail to by close of business on 24 May 2018.

South Africa’s VAT system includes 19 basic food items that are zero-rated. These are:

  • dried beans
  • samp
  • maize meal
  • rice
  • brown bread
  • vegetables
  • fruits
  • vegetable oil
  • mealie rice
  • pilchards in tins
  • edible legumes and pulses of leguminous plants
  • eggs
  • milk
  • dried mealies
  • dairy powder blend
  • lentils
  • cultured milk
  • milk powder
  • brown wheaten meal

The R1.67 trillion Budget tabled by former Finance Minister Malusi Gigaba in the National Assembly in February raised VAT by a percentage point to 15%.

VAT had previously been pegged at 14% since 1993.


In a world of unprecedented refugee flows, seemingly endless wars and rising levels of xenophobia and inequality, many have been questioning the point of human rights. What do they mean to the huge numbers of asylum seekers detained across the globe? To the Rohinyga, fleeing ethnic cleansing in Myanmar? To the children dying in bombings across Syria and Yemen?

For many the optimism of the post-WWII era when the international human rights system was set up is dead. Some critics go further, arguing that not only have human rights not delivered greater justice, they have in fact been part of the problem. Their individualistic focus has taken attention away from structural issues like global economic inequality. Their claims to universalism have failed to properly address the legacies of Western imperialism. And their legalistic form has done little to empower the world’s most marginal, simply creating a new industry of “international experts”. As a result, more and more radical scholars and activists in the West are rejecting human rights in search of a new, more revolutionary social justice project.

Without disagreeing with these critiques, I would like to tell another story of human rights. It is the story of Amali, who lives in a small village in eastern Sri Lanka.

Amali’s story

In 2009, Amali’s husband was abducted while working in his paddy field. He sadly represents the fate of thousands of men, women and children: victims of the decades of political violence that have marked Sri Lanka’s modern history.

Until then, Amali had been a housewife focused on raising her two daughters and relying on her husband to take care of all the financial and administrative needs of the family. The search for her husband catapulted her into a new complex, frustrating and often terrifying world of dismissive and threatening police officers and soldiers, ineffective and indifferent bureaucrats and politicians and suspicious and unsympathetic community members. In the face of this, a courageous and resourceful woman emerged, drawing on human rights to reframe her personal suffering as rights violations requiring redress.

Amali now travels all over the country, protests in the streets of the capital, Colombo, and lobbies political leaders. She has even met with the president. She has also become a recognised local community leader, offering support and advice to others in similar situations. While clearly an exceptional woman, Amali is not alone.

Giving women a path

Across Sri Lanka many individuals, particularly women, have mobilised and become politically active as a result of human rights violations suffered by themselves or their loved ones.

When I ask them what human rights mean to them, and tell them about the increasing scepticism with which many of us in the West view human rights law, they are pragmatic. They are not stupid. They know better than we do that the law all too often favours the powerful and that governments all over the world loudly proclaim human rights while engaging in abusive and repressive behaviour. They too understand the hypocrisy that leads to selective attention to certain types of rights violations and certain types of victims.

But as people who have never had the luxury of feeling valued as citizens, they also experience a different relationship to human rights law. Even if the outcome is not as desired, there is something to be said for the process made possible by human rights law. As another remarkable female activist (and wife of a disappeared man), Jeyatheepa explained to me, human rights had provided her with the opportunity to speak for herself in a public sphere that otherwise treated women like her as passive objects to be controlled, “saved” or spoken for.

Both Amali and Jeyatheepa are part of a group of women who together decided to study the Right to Information Act passed in Sri Lanka in 2016. Without any legal background and often with limited formal education, these women independently made applications to the authorities, demanding information be released on what happened to their family members. In making use of this new law, they see it as another tool to maintain pressure on a state that wants the issue of disappearances to just go away.

A new human rights?

The stories of Amali and Jeyatheepa suggest that perhaps we do still need human rights law. Not because the critiques described above are wrong. On the contrary, we clearly need to revisit our assumptions about what human rights law can and does offer in such an unjust world.

But this assessment must recognise the many ways in which human rights law is currently being used by different types of people in different situations. Up until now, most of the debate about the advantages and limitations of human rights has focused exclusively on elite actors (international human rights organisations, Western governments) and on institutional spaces like the UN. These may be the most powerful players in the human rights world and they do dominate the ways in which human rights are interpreted and applied.

But they do not have a complete monopoly. There are also many brave individuals in situations of great difficulty and with very limited power and resources that are using human rights law to make claims and assert themselves as political agents.

The ConversationBy only focusing on and criticising dominant versions of human rights, we run the risk of further excluding and ignoring the voices and perspectives of those who are already neglected and disempowered. Ironically, just as human rights currently often fail to protect and empower those most in need, so do critiques of human rights that treat these populations as passive, ignorant victims. By shifting our attention to the ways in which disenfranchised people experience and engage with human rights law, we can remain attentive to its failings while also recognising and paying tribute to the sometimes unexpected ways in which people do make human rights law work for them.


FairPlay is appealing to the Minister of Finance, Nhlanhla Nene, to allow additional time for the panel of experts reviewing the list of VAT zero-rated food items to undertake a thorough investigation, including public consultation.

“We welcome the appointment of the panel, and their terms of reference, but are concerned at the time pressure under which they will work according to the timeline announced by the minister,” said FairPlay founder Francois Baird. “If the panel is going to do the thorough review that the public expects of them, they have a near-impossible task to complete their work by 20 June,” Baird said.

Timetable too demanding

FairPlay is involved in the “VAT-free chicken” campaign to have chicken added to the list of zero-rated items because chicken is the major source of protein for South Africa’s poor. FairPlay is a not-for-profit trade movement that fights for jobs and seeks an end to predatory trade practices. It has highlighted the job losses caused by dumped chicken imports in South Africa. Baird said the timetable set by the Minister was too demanding.

It requires the panel to call for submissions until 11 May, prepare empirical work by 15 May while simultaneously compiling a summary of submissions, and then to hold workshops with commentators from 18 to 23 May. The panel then has to submit a report to the Davis Tax Committee by 20 June, and the Davis committee will submit a report to the Minister of Finance by 30 June.

“This is too rushed a process,” Baird said. “This is an important matter which requires rigorous and constructive public engagement, and then careful consideration of the issues before the panel. These include evaluation of items currently zero-rated, the consideration of additional zero-rated items, and consideration of other mitigatory measures, including how best to target poor and lower-income households.”

Planned tax legislation

The pressure for the committee to deliver an initial report “with all the options and recommendations” to the Davis committee and then the Minister of Finance by 30 June is because of planned tax legislation. The panel’s schedule would give the cabinet time to consider the recommendations for inclusion in draft tax legislation that will be published in July.

“I would like the minister to explain the reason for this compressed timetable, which is likely to lead to hasty and possibly cursory examination of important aspects,” Baird said.

“The chair of the independent panel of experts, Prof Ingrid Woolard from the University of Cape Town, has admitted that the time frame is extremely tight, and it would definitely benefit the expert panel to have some additional time to plan and complete their work,” Baird said.


A test case will be heard in North Gauteng High Court today, which could set a precedent on a communities' right to say no to mining activities on their traditional land.

The Bench Marks Foundation will be submitting an affidavit as the primary support for an application by community members to oppose attempts to mine titanium on their land in Xolobeni on the Wild Coast in the Eastern Cape.


The historic application is being brought against the minister of mineral resources and senior officials in the Department of Mineral Resources, the minister of rural development and land reform, and Transworld Energy and Mineral Resources (SA) Pty Ltd.

The court case is a crucial landmark in long struggle of opposition to mining by the community which goes back at least to 2008 when a mining licence was first issued, but later retracted when it was found that no consultation had taken place with the community.

Communities should be empowered

“While mining can provide benefits, communities are vulnerable to grievous harm that often outweighs any gains. The Bench Marks Foundation has therefore come to believe that communities should be empowered to determine whether mining should occur on their land. This would enable communities to decide whether mining should occur, and to level the playing field for communities to negotiate the terms of mining, relocation and compensation should it be embraced.

“For this right to be meaningful, communities’ decisions should be made without political pressure on the basis of full information on the costs of the proposed mining, including alternative development paths,” says John Capel, executive director of the Bench Marks Foundation.

“The foundation therefore associates itself with the international movement to require free, prior and informed consent (FPIC) before extractive activities occur on community land,” he says.

Capel notes that there is a lack of clarity on whether FPIC is required under South Africa mining law. This has seen mining companies flagrantly disregarding this principle.

Declaratory relief

Since 2007 to now, Bench Marks has produced 12 policy gap studies on mining in the last 11 years, all of which point to the harmful effects of mining. These impacts include destroyed local economies, where people lose access to their land, way of life, subsistence farming, only to suffer health impacts, and in many cases ‘forced’ removals, leaving communities worse off than before mining. Communities on whose land mines want to operate must have the right to say no. as the 129th applicant after all the community members, we hope that the court will agree with our submission, said Capel.

“The foundation believes that the declaratory relief sought by the applicants is urgently required, not just for the Umgungundlovu community, but across South Africa.”

In the affidavit, Capel outlined two case studies – that of the Mothlothlo community some 45kms north of Mokopane, Limpopo, and Kopano in Limpopo province.

From these case studies, Capel noted that mining rights are being granted to companies that make no effort to comply with the Interim Protection of Informal Rights to Land Act (IPIRLA), that mining commences without this compliance, and that it commences despite pending appeals and in the face of requests for the suspension of mining rights, pending the adjudication of appeals.

Consent must be meaningful

He also notes that the case studies establish the principle that consent on a piecemeal, individualistic basis is insufficient.

Referring to the Mothlothlo case study, Capel says: “It is clear that no members of the community were forcibly removed from their homes. It may be argued that this means that all persons who relocated ‘consented’ to their relocation. But this is clearly inadequate as agreement to relocate was generated through immense pressure including the loss of agricultural land, social disarticulation through the relocation of neighbours, and other factors.

“For consent to be meaningful, it must be required after full information is provided and free of coercion, including the coercion that comes with the commencement of mining activities.”


When a person obtains a home loan from the bank, a mortgage bond is usually registered over their home as security by the bank. The bank will use this to recover any debt should the debtor default on their home loan repayments, in which event the debtor may lose their home.

This has raised the question of whether the bank should be allowed to sell the debtor’s home for an amount that is at least equivalent to the outstanding debt or to sell the property at any price.

This was the subject of a Pretoria High Court judgment handed down on 22 March 2018. The court dismissed a challenge against the constitutionality of certain rules of court which enable the home of a debtor to be sold without a reserve price.


Given Nkwane obtained a home loan from Standard Bank in September 2011 for an amount of R380,000 and had a mortgage bond registered in favour of the bank. Nkwane defaulted on his home loan in February 2012. For the rest of that year he continued to default and only managed to make some of his payments intermittently.

In January 2013, he applied for debt review, but this was unsuccessful. In March 2013, he applied for rehabilitation (this would enable him to pay substantially less for his monthly instalment). This application was approved by the bank.

However, by July 2014, Nkwane informed the bank that he could no longer afford the instalments and wanted to sell his property. The bank informed him that he must use the bank’s Easy Sell mandate to do this (this is Standard Bank’s programme to help distressed home owners sell their properties). Nkwane was unable to do this, however, because his wife refused to sign the Easy Sell mandate.

The bank then instituted legal proceedings against Nkwane and successfully obtained a warrant of execution against Nkwane’s home. A warrant of execution enables a creditor, such as a bank, to attach a person’s property and sell it.

At the sale of execution, the house was sold for R40,000. At the time of the sale the insurable value of the house was nearly R500,000.

Court proceedings

The primary issue the court had to determine was the constitutionality of rule 46(12) of the High Court rules which enable a creditor to attach and sell a debtor’s home without a reserve price being set. Under this rule, it is possible for the bank to sell a debtor’s home for any price and recover any amount they can for the outstanding debt.

After proceedings had already begun, the rules which were the subject of the dispute were amended in December 2017. In terms of the amended rules, a court can set a reserve price in certain circumstances but has to consider at least nine factors before making such a determination.

Before considering the constitutionality of the rule in question, the court considered two other related High Court judgments which had been handed down after proceedings had begun. These two judgments had upheld the constitutionality of the rules. In its reasoning, the court placed much reliance on these two judgments and effectively reached similar conclusions.

In reaching its decision, the court considered four main issues, explained below.

Will a reserve price result in a home being sold for a higher price?

Nkwane argued that setting a reserve price will ensure that a debtor’s home is always sold for a higher price. The court however found that this contention was unsubstantiated. Instead, the court found that the bank had provided ample evidence as to why a reserve price would not result in a higher price being obtained.

These reasons included: a sale in execution is a forced sale and consequently results in lower prices being obtained; the conditions of a forced sale often render the buyer liable for outstanding rates and taxes; and a buyer may be faced with long and drawn out eviction proceedings to remove any occupants from the property. The bank also pointed out that a reserve price will reduce interest in the sale and may result in the property not being sold at all. This would inevitably prejudice both the debtor and creditor. The court accepted the bank’s submissions.

Does a sale without a reserve price constitute an arbitrary deprivation of property?

In terms of the Constitution, everyone has the right to not have their property deprived of them arbitrarily. Nkwane argued that the sale without a reserve price affects a debtor’s right to equity in the property because the property is not sold for its real value but a forced value. Nkwane also argued that because the sale may not even result in the recovery of the full outstanding debt (as in Nkwane’s case) the sale without a reserve price is arbitrary and serves no legitimate purpose.

But the court found that to the extent that the sale does result in a deprivation of property it could not be regarded as arbitrary. This was because the rules enabled a relatively cheap and expeditious process for the bank to recover some of the outstanding debt. Furthermore, the court relied on previous High Court decisions that maintained that there are compelling socio-economic reasons for the existence of mortgage bonds and the existing debt recovery process.

Lastly, the court found that in any event the deprivation of property did not flow from the sale per se but rather from the failure to pay the outstanding debt.

Does the fact that the rules were subsequently amended mean that the previous rules were defective?

The court considered the fact that the amended version of the rules enables more judicial oversight over the process and allows a reserve price to be set in certain circumstances. However, the court found that while the amended version of the rules may well be an improvement, they did not render the previous version of the rules irrational or unconstitutional.

Does the rule infringe upon the right to adequate housing?

Nkwane contended that the rule did so because it may result in a debtor being blacklisted which would prevent them from accessing the housing market in future. Secondly, Nkwane contended that it could never be considered fair, balanced or justifiable to sell a house valued at R470,000 for R40,000 to realise a debt of R370,000.

The court found that any resultant blacklisting is not as a result of the sale in execution but rather the debtor’s failure to pay the outstanding debt. The court also found that because there is judicial oversight over the process of determining whether a house is specifically executable before a warrant of execution is issued, the right to adequate housing is already protected. As such, there was no need for further protection in the form of a reserve price.

Lastly, the court found that the question of whether a reserve price should be set or not is in fact a policy decision which is best left to Parliament to determine. For this reason, the court rejected the submissions of the South African Human Rights Commission who had been admitted as a friend of the court. The SAHRC had highlighted the fact that several jurisdictions including Ghana, Germany and South Korea do require a reserve price as the default position.

Decision will be appealed

The judgment has major implications for the right to access adequate housing and the financial position of debtors generally. Although the amended version of the rules, which came into effect in December 2017, enable a reserve price to be set in certain circumstances this is still not the default position.

Debtors whose homes were attached prior to the amended rules will still be in a potentially precarious position. For this reason, Nkwane’s lawyers, Lawyers for Human Rights, intend to appeal this judgment. It remains to be seen whether a higher court will reach a different decision.


Final regulations on the expiry of data bundles are set to be published by the end of April, telecommunications regulator the Independent Communications Authority of SA (Icasa) told MPs on Wednesday. Icasa said the regulations were part of measures to reduce the cost to communicate.

These are expected to bring relief to consumers, who have long bemoaned usage limits.

The government is pulling out all the stops to reduce the cost of communicating, pointing out that it is only through legislative means that it can ensure reasonable pricing and market structure in the sector.

Network operators have been under intense scrutiny in recent months for allegedly ripping off consumers, especially when it comes to data expiry dates and out-of-bundle billing.

Briefing members of Parliament's select committee on communications and public enterprises on the cost of communications, Icasa councillor Leweng Mphahlele said the regulator had introduced various measures to reduce the exorbitant costs of communicating. The measures had resulted in the significant reduction in voice tariffs over the years.

However, Icasa remained concerned about the costs of data for the public, particularly out-of-bundle rates. "SA's data bundles are one of the highest compared to the countries we have benchmarked ourselves against," Mphahlele pointed out.

He said Icasa had concluded public consultations on the end user project and final regulations would be published by the end of April.

"Icasa is proposing that data should not expire within three years, operators must send users notification of service depletion at specific intervals ". the current practice is that if you buy a data bundle and you deplete it, the operator charges you out-of-bundle rates. This current practice exposes users to bill shock. Operators must give end users the option to opt in or out of out-of-bundle rates," said Mphahlele.

Cell C's group general counsel, Graham Mackinnon, told MPs that there was no incentive for the dominant players to reduce their prices. The market is currently dominated by Vodacom and MTN.

"They haven't done it up until now. [The] only thing that will drive prices down is competition. There are tools which Icasa can use to stimulate competition and reduce competition, such as termination rates and number portability " moving networks is hard. Number porting needs to be made easier," he said.

Telkom's chief risk officer, Tsholofelo Molefe, said the Vodacom and MTN duopoly was entrenched and, together with high barriers to entry, it made reducing the cost to communicate much more difficult.

Source: Business Day


President Cyril Ramaphosa says former President Jacob Zuma's legal fees will be paid in exception to cases where the court finds that he acted in his personal capacity.

“The State Attorney decided that it was appropriate to grant the request of the former President, subject to the condition that he make an undertaking - which he did - to refund monies thus spent should it be found that he acted in his personal capacity and own interest in the commission of the alleged offences,” - said President Ramaphosa in a statement.

President Ramaphosa said this was done in line with section 12.2.2 of the then applicable Treasury Regulations, issued in terms of the Public Finance Management Act, 1999, read with section 3(1) of the State Attorney Act.

The Act states that if it is found that an official was acting outside the course and scope of his employment and lost a case, that official must refund the state.

The President provided clarity on the former President’s legal fees following questions from Economic Freedom Fighters (EFF) leader Julius Malema during an oral reply session on 14 March 2018.

The EFF’s questions referred to cases in which it is alleged that the former President committed criminal offences took place during his tenure as a government official both at provincial and later at national level.

The request made by former President Zuma for legal representation at state expense, considered section 3(3) of the State Attorney Act, 1957.


Another day, another high level resignation. The past year has seen many heads opt to duck out of a sticky situation rather than face the music in a disciplinary inquiry; Matshela Koko, Anoj Singh and Shaun Maritz - and that's just from Eskom. Now although a company can still proceed with criminal charges to seek reparations for damage caused, does a company have any right or reason to reject a 'resignation with immediate effect' and hold the employee to contractual obligations and make them go through the disciplinary process?

I posed the question to Johan Botes, partner and head of the Employment and Compensation Practice over at Baker McKenzie, Johannesburg, and this is what he had to tell me...

Resignation to avoid dismissal

"'You can’t fire me, I resign!' sounds like something one of Harvey Spectre’s clients might say. But if your employment relationship is not in Hollywood, but South Africa, what would the legal position be in respect of resignation to avoid dismissal? May an employee resign in the face of disciplinary action to avoid dismissal? The truth will raise even a seasoned scriptwriter’s well-sculpted eyebrow," said Botes.

"Notice periods are inherent in every employment contract. The Basic Conditions of Employment Act (BCEA) prescribes a minimum notice period. Thus, even where there is no written employment contract between parties, the employee may terminate the employment contract by providing the notice prescribed in the BCEA. If the parties agreed to a longer notice period in a written employment contract, the employee has to serve the longer notice period. Of course, where the employee agrees to work for a fixed period, the contract will typically provide that the employee may not give notice (resign) prior to the expiry of the fixed term.

"This becomes very relevant when the employer initiates disciplinary action against the employee and the employee seeks to avoid having his or her employment terminated by means of dismissal. In a country with a 27% official unemployment rate, finding a job is difficult: finding a job with the tag of having been dismissed from your previous employment is nigh impossible. An employee facing a hearing could thus resign with the hope of avoiding the disciplinary enquiry," Botes continued.

"Employers feeling strongly that the reason for termination should reflect 'dismissal' rather than 'resignation' would typically continue with the disciplinary hearing during the notice period, even where the employee plays truant or refuses to participate. Thus, provided the employer could wrap up the hearing before the end of the notice period, it could dismiss the employee even where the employee had resigned.

"But what happens when the employee does not serve out the notice period?" Botes asked. "The employment contract provides that the employee must give the contractual notice to resign. If the employee fails to serve notice, the employee would be in breach of the employment contract. As many often forget, the employment contract – though clothed with notions of equity and fairness and infused with the common law and supplemented with statutory rights – is still a contract. If one party to the contract breaches it, the other may exercise its right on how to deal with such a repudiation. It can either accept the breach and sue for damages or approach a court for an order of specific performance (asking the court to order the other party to do what it agreed to do in the contract). However, considering that specific performance would mean that a court forces an employee to continue working for an employer, our courts are reluctant to order specific performance against an employee where the employee breached the contract.

"Forcing employees to work against their will sounds a lot like slave labour, even when they get paid for their labour. In select circumstances, our courts have been willing to order employees to return to work and serve out their notice periods or the remainder of their employment contracts. For example, in cases where an airline could not readily replace a pilot who otherwise would have to serve a three-month notice period, or where a football coach did not want to stay bound to a fixed-term contract in order to take up a position with another club. In both instances, the court agreed that it could make an exception to the general apprehension to force an employee to continue an employment relationship," Botes explained.

The erstwhile employee

"But, in Mtati v KPMG Services (Pty) Ltd (2017), the court went one step further. It held that the employee terminated the employment relationship when she resigned, notwithstanding the fact that she did not serve the requisite notice period. The court concluded that once the employee resigns, even without notice, her status changes from being an employee to an erstwhile employee. In this case, the court interdicted the employer from proceeding with the hearing and dismissing the employee. An employee could thus assail an adverse finding in a hearing and exit an employment relationship as having resigned rather than being dismissed.

"It remains conceivable that an employer may approach the court, on an urgent basis, to interdict an employee’s resignation and obtain an order holding the employee to the contractual notice period. It is difficult to conceive those facts that will cause a court to agree that the employer will suffer irreparable harm, warranting the court interdicting the resignation to allow the disciplinary hearing to be concluded. The upshot of the law as it stands is that we are likely to see more employees opting to resign rather than stay and face the music when confronted with allegations of misconduct," Botes concluded.


South Africa has extensive exchange control rules that govern the inflow and outflow of capital, as well as some stringent legal requirements pertaining to credit and financial assistance, which are pivotal to the success of lending transactions involving a non-South African lender and a South African corporate borrower.

When a foreign lender advances a loan to a South African borrower (or its group members), the country’s exchange control regulations, the National Credit Act and the financial assistance section of the Companies Act are of key relevance.

Exchange control regulations

The exchange control regulations apply to any cross-border lending transaction pertaining to a South African borrower, as well as to the taking of security for such a transaction. No South African borrower is permitted to borrow any foreign currency from any person who is not an authorised dealer, unless that borrower has prior approval from the Financial Surveillance Department (FSD) of the South African Reserve Bank.

The onus of obtaining exchange control approval rests on the South African borrower, not the foreign lender. Even so, it is prudent for a foreign lender to confirm that the borrower has properly and timeously obtained the requisite approval.

We recommend including appropriate representations and warranties in the transaction documentation. Generally, once the FSD has approved a loan, the interest payable and loan repayments are freely transferable from South Africa. Where a loan was made without exchange control approval, the foreign lender’s claim against the South African borrower could be at risk; the FSD has the authority to prevent repayment or enforcement and could declare the loan invalid. The most recent case law on this issue confirms that although a lack of exchange control approval does not render an agreement void, it could be declared invalid for contravening the regulations. While the FSD may retrospectively grant exchange control approval, it can also impose certain penalties on the South African borrower.

National Credit Act

The National Credit Act (NCA) regulates the provision of credit in South Africa and applies to all credit agreements made in or having an effect within the country.

In other words, the NCA applies even if the credit provider has its principal place of business outside South Africa. This means the provisions of the Act have general application to foreign lenders extending loans to South African borrowers. Lenders whose credit agreements fall under the NCA must register as credit providers with the National Credit Regulator (NCR).

The NCR takes various factors into account in determining whether a credit or loan agreement has an effect within South Africa. These include whether or not the proceeds of a loan from an offshore credit provider to an offshore credit receiver will be remitted to South Africa; whether or not the credit facility will be utilised in South Africa, and whether or not any security for the loan or credit is situated or located in South Africa.

There are certain exemptions to the application of the NCA. Unless exempted, a foreign credit provider must have NCR approval as a credit provider to lawfully extend loans or credit (or to market these) in South Africa. When a lender should be, but is not, registered with the NCR, it will not be able to enforce a credit agreement against a South African borrower, as the credit agreement will be void in terms of the NCA. The registration requirements with the NCR are triggered where credit is made available to a corporate borrower in South Africa with a net asset value or annual turnover of less than R1m.

Companies Act

Section 45 of the Companies Act provides that a company may not provide direct or indirect financial assistance to a related or inter-related company or corporation unless certain conditions are met. One is that the financial assistance must be made pursuant to an employee share scheme or a special shareholders’ resolution adopted within the previous two years.

The other is that the board of the company providing the financial assistance (typically in the form of security in favour of the lender) should be satisfied on two counts.

  • Immediately after providing the financial assistance, the company would satisfy the solvency and liquidity test stipulated by the Companies Act.
  • The terms proposed or the financial assistance should be fair and reasonable to the company. Any financial assistance provided in contravention of section 45 is void and can attract personal liability for a director votes for or fails to vote against a financial assistance resolution knowing that this is inconsistent with section 45. Financial assistance includes lending money and guaranteeing a loan or other obligation, as well as the security of any debt or obligation.

Under certain circumstances, a South African company providing security may on a practical level not be able to pass the solvency and liquidity test required by section 45.

Specifically, this could happen when the financial assistance sought from the South African security provider is intended to support the entire indebtedness arising under a (multi-jurisdictional) loan, but the balance sheet of the South African security provider is less than the aggregate indebtedness. For the success of the funding transaction, it is vital that the auditors of the company providing the financial assistance adequately advise its directors, who must satisfy themselves that the financial assistance sought is adequate to cover the indebtedness arising under the loan.

Notably, the Companies Act provides no guidance on what constitutes fair and reasonable terms to the company granting the financial assistance. Similarly, South African case law is silent on the matter given that the Act is still relatively new. It seems, though, that in determining whether the terms are fair and reasonable, the financial wellbeing of the South African company providing the financial assistance should be the most important factor for the directors.

Conversely, they should not place paramount importance on the financial health of the group to which the company belongs, to the detriment of the company. Also, not to be overlooked is whether the company satisfies the solvency and liquidity test immediately after providing the financial assistance to the board’s satisfaction. This introduces subjectivity in the directors’ analysis and should be carefully considered by the board.


With Day Zero in Cape Town projected for 9 July, a number of questions have been raised about how the water crisis affects the rights of tenants and landlords. Both parties have contractual obligations to fulfil as part of their lease agreements, but what happens when these become impossible because of circumstances outside of our control?

According to Cilna Steyn, director of SSLR Attorneys and advisor to the Rawson Property Group, a drought of this severity is classified as an Act of God under South African Common Law. As such, both parties are indemnified against claims made by one another for damages suffered as a direct result of the crisis.

“To put it simply, nobody can be held responsible for not fulfilling an obligation if the drought has made that impossible to do,” says Jacqui Savage, national rentals business development manager for the Rawson Property Group.

Reasonable penalties still apply

For tenants, that means the lack of water supply can’t be used as a convenient excuse to cancel a lease, penalty-free.

“Any lease that falls under the CPA can be cancelled by the tenant with twenty business days’ notice, subject to reasonable penalties,” says Savage.

As stated above, a tenant may not hold a landlord in breach of the lease agreement due to non supply of water. It’s an Act of God – the landlord can’t be held responsible – so early cancellation penalties will still apply. Likewise, landlords can’t blame tenants for failing to maintain items that require access to water.

“Things like gardens and pools are typically the tenant’s responsibility to maintain,” says Savage, “and under normal circumstances, tenants have to foot the bill for any repairs arising from their neglect. Of course, water restrictions now make watering gardens and backwashing pools impossible, which means landlords can’t hold tenants responsible for damages that occur as a result.”

Protecting property investment

That doesn’t mean landlords are powerless to protect their investments, however, or that tenants can completely ignore their maintenance responsibilities and claim “Act of God”.

“There’s a lot you can do to prevent drought damage that doesn’t require doing the impossible,” says Savage. “Tenants are still expected to take reasonable measures to prevent unnecessary damage, including complying with restrictions and collecting greywater for strategic use. When it comes to bigger issues like dealing with stagnant pool water and protecting dry pool pumps, there’s a dual responsibility for landlords and tenants to find workable solutions, together.”

Drought damage isn’t the only issue tenants and landlords face, however – there are cost implications that need to be considered as well.

“In many cases, water and utilities are included in monthly rental,” says Savage. “With water tariffs rising so steeply, landlords can’t be expected to just absorb this cost. Depending on the wording of the lease, most agreements make provision for municipal tariff increases to be passed on to the tenant as long as the landlord can provide proof of the higher charges.”

Avoiding costly legal intervention

This knife cuts both ways, though: should Day Zero arrive and water supply gets entirely cut off, Savage says landlords can’t continue to charge tenants for services they no longer receive. Tenants would be within their rights to negotiate a reduced rental amount to account for the reduced utilities charges that their landlord would be paying on their behalf.

“The key is really just for everyone to be as fair and as understanding as possible,” says Savage. “The law is there to protect us, but if we act with empathy and work together to the best of our abilities, we can get through this crisis without needing to resort to costly legal intervention.”


The Supreme Court of Appeal dealt with the question of whether or not a lessee can withhold rental if it is not given full occupation of the leased premises in the recent case of Tudor Hotel Brasserie & Bar v Hencetrade 15. The lessee, Tudor Hotel Brasserie & Bar was evicted from the leased premises by the lessor, Hencetrade 15, as a result of Tudor's failure to make payment of rental.

Tudor admitted failing to pay rental but claimed that it had not been given vacant possession of the entire premises as the third floor had been retained by Hencetrade for the storage of property and that this entitled it to withhold rental. In its argument, Tudor relied on the legal principal of reciprocity.

This principle operates where both parties to an agreement have an obligation to each other. In certain circumstances, if one party has not yet performed its obligations, the other may raise as a defence that its obligation to perform has not yet arisen because of the other party’s lack of performance and Tudor argued that Hencetrade was not entitled to cancel the lease and evict Tudor as it was not required to make payment of rental until vacant possession had been provided to it.

But the lease agreement also included a clause recording that “all payments in terms of this lease ... shall be made on or before the first day of each month without demand, free of exchange, bank charges and without any deductions or set off whatsoever”.

The Court held that this clause of the lease imposed an obligation on Tudor to make payment of rent in advance which meant that its payment of rent was not contingent upon prior performance by Hencetrade. Tudor was therefore not entitled to withhold rental and its eviction was justified.

The agreement also included a clause recording that “the tenant shall not have any claim of any nature whatsoever against the landlord whether for damages, remission of rent or otherwise, for the failure of or interruption in the amenities and services provided by the landlord ... unless such failure or interruption is caused by the negligent or wrongful act or omission by the landlord ...”.

Ordinarily, if a lessee were deprived of beneficial occupation, it would be entitled to a remission of rental or damages proportional to its reduced use and enjoyment of the property, but because of the above clause, Tudor was not entitled to such claim.


The Gauteng Provincial Government has published the Draft Fifteenth Amendment of the Gauteng Road Traffic Regulations for public comment.

The regulations were published in the Gauteng Provincial Gazette on 1 February 2018. Interested parties are now invited to make comments on the regulations on or before 8 March 2018.

Treasury Regulation section 7.1.3, states the Accounting Officer of an institution must review annually all fees, charges or the rates, scales or tariffs of fees when finalising the budget.

In support of this, Section 25(1) (g) and (h) of the Gauteng Road Traffic Act, 1997 (Act 10 of 1997) provides for the MEC to make regulations with regard to adjustments of fees pertaining to certain road traffic management transactions. In line with this section, the MEC has effected amendments to the Gauteng Road Traffic Regulation every financial year.

A recommendation of fee increase of 7.7% (CPI + 2%) is made for implementation by the Provincial Treasury for financial year 2018/19.

Comments can be sent to:
Office of the Director:
Policy, Legislation, Research and Knowledge Management Life Centre Building - 25th Floor, 45 Commissioner Street Johannesburg
Tel no: (011) 355 7140
Mobile: (082) 788 8889
Email address:


The Department of Labour is developing an online system to help analyse data submitted by employers when applying for national minimum wage exemptions.

Exemptions cover employers who can demonstrate that they are not able to pay the national minimum wage.

This is according to the Department of Labour’s Director of Collective Bargaining, Thembinkosi Mkalipi.

He said while exemptions were not new, as the department was currently dealing with them on sectoral determinations, he cautioned employers that there were serious consequences in the case of misrepresentation of facts.

Mkalipi was addressing a briefing session at the Premier Hotel Regent in East London on Thursday to inform trade unions/shop stewards on the implementation of the national minimum wage and amendments to the Basic Conditions of Employment Act (BCEA), the Labour Relations Act (LRA), the coming into effect of the Accord on Collective Bargaining and Industrial Action and the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing.

He explained that the minimum wage, once it comes into force, will affect all workers who work in South Africa.

The national minimum wage is set for implementation from 1 May 2018.

The agreed national minimum wage at Nedlac is pegged at R20 an hour for major sectors, with the exception of sectors such as farm workers, domestic workers and Expanded Public Works Programme workers.

According to the National Minimum Wage Bill, employers may not pay wages that are below the minimum wage and the national minimum wage cannot be varied by contract, collective agreement or law.

The Bill further states that national minimum wage constitutes a term of the worker’s contract except to the extent that the contract provides for a more favourable wage.

The Bill further states that it is unfair labour practice for an employer to unilaterally alter hours of work or other conditions of employment in implementing the national minimum wage.

Mkalipi said the national minimum wage was an outcome of a compromise.

“There are things in this Bill that business does not like, and there are things in this Bill that labour does not like.

“This Bill is an outcome of a compromise. It is an agreement of win-win and lose-lose for all parties. At Nedlac we managed to strike a balance in that while we do not destroy jobs we also save jobs,” he said.


Deputy minister Mcebisi Skwatsha reportedly said, during a meeting of the Portfolio Committee on Rural Development and Land Reform, the ANC would hold a conference in March to discuss expropriation without compensation, and that the decision would then be implemented by all relevant state departments. He was cited as saying the ANC would determine whose land to take and how it would be done.

However, Ernest Pringle, chair of Agri SA’s land centre of excellence, said land would not be simply for the taking. This was also not a decision the ANC can take unilaterally and simply start implementing.

Constitution must be amended

No expropriation without compensation can take place unless the Constitution is amended, said Pringle. This will be a time-consuming process during which wide consultation must take place, and which would require the necessary majority votes in Parliament in favour thereof.

Private property rights are an internationally recognised principle that is protected by international human rights instruments, such as article 17 of the United Nations’ Universal Declaration of Human Rights. Moreover, the threats of expropriation without compensation is contrary to the policies adopted by vital international agencies such as the World Bank and the IMF. The economic impact of ‘taking’ land will be catastrophic, as already pointed out by various economists.

The poor will be worst affected

The poor will be affected worst by the outcome of such an irresponsible step, added Pringle. “This type of statement issued by politicians plays into the hands of opportunists who want to use it as an excuse to invade land. It is extremely dangerous.”

Pringle also pointed out that enormous expectations were created around the issue of land reform without compensation, which could also boomerang politically. “Has anyone thought what would happen after land has been taken? To whom will it be given, who will be denied access, and where will the capacity suddenly come from to assist those who receive land to use it productively?”

Agri SA called on Ramaphosa to take the organisation and the public into his confidence as soon as possible regarding what exactly is being envisaged. Agri SA has not received an invitation to attend the conference in March, although it is a critical role-player in the matter and would like to debate with the ANC leadership in this regard,” said Pringle.

Agri SA


The Protection of Personal Information Act (POPIA) is set to kick in in the first half of 2018, according to the Information Regulator. Businesses have been scrambling to get their information governance practices in line with POPIA's requirements. But what difference will it make to the lives of consumers?

    According to the preamble of POPIA, it intends to:
  • promote the protection of personal information processed by public and private bodies.
  • provide for codes of conduct.
  • introduce certain conditions that will establish minimum requirements for the processing of personal information.
  • provide for the rights of persons regarding unsolicited electronic communications and automated decision making, amongst others.

Your personal information is valuable and needs to be managed carefully. Know your rights, and protect your privacy.

    Let’s look at some of the new consumer rights created by POPIA:
  1. The right to know what information is collected.

    If a company asks you for your information, for example when you complete an application form for a store account, they must tell you what information about you they are collecting. If they are getting information from other sources, for instance if they do a credit check with a credit bureau, they must tell you from where they get the information. They must also indicate what information is voluntary and what is mandatory, and explain the consequences if you don’t provide the information.
  2. The right to know who your information will be shared with.

    Companies that have your information must notify you about what they do with it. For instance, they must indicate who they share it with and if they will be sending it overseas.
  3. The right to access to your information.

    You have the right to request access to the personal information in the possession of a company. You may ask them to confirm whether they have your information, a description of what information they have and the identity of any third parties who have had access to that information.
  4. The right to request correction or deletion of information.

    You may ask a company to correct or delete inaccurate, irrelevant, excessive, out of date or incomplete information. In some circumstances, the company can refuse such a request, but these are limited and must be explained.
  5. The right to refuse direct marketing.

    A company must ask you for your consent before they can send you direct marketing communications if you are a potential or ‘new’ customer. They must ask you to confirm how you want to receive the communication, for example via email or SMS, and for which goods or services. They may only contact you once to get your consent. If you say no, they may not contact you again about that same topic. If you are an ‘existing customer’, for instance if you have previously bought goods or services from the company, they may market similar goods or services to you until you opt-out.
Keep informed about privacy

28 January is Data Privacy Day, created to raise awareness and promote privacy and data protection. To read more about how you can protect your data and your rights in terms of POPIA check out this site series on data and privacy.


A new report compiled by expatriate solutions provider Xpatweb, titled Critical Skills Survey Results 2017, confirms that local companies are hard pressed to find the right expertise to achieve their corporate goals. It is therefore to every business and professional body's benefit to engage with government to make work visa applications as easy as possible.

Simply stated, South Africa needs access to better skills to prosper and compete in the global market.

However, this is not a new revelation. The country’s skills gap - the difference between the professional talents needed by employers and those available among the working public - has been widely discussed and reported on in the media for over a decade. Rather, the study serves as the springboard for a viable solution. The results were obtained from 86 respondents, many of whom represent South Africa’s largest employers and international groups.

Recognising the problem

76.74% of those surveyed agreed that there is, in fact, a skills shortage in South Africa. The Critical Skills List published by the Department of Home Affairs contains a catalogue of the country’s most needed competencies. These include the broad categories of business, economics and management; information communication and technology; engineering; health professions and related clinical science; life and earth sciences; professionals and associate professionals; trades; business process outsourcing; and academics and researchers. As can be seen, the demand ranges over a wide set of sectors.

Solving the skills problem will take hard work and starts with an honest appraisal of the constraints. The sooner we do this, the faster we can address it. The first admission we must make is that the gap exists now and a primary, immediate solution is required. Yes, formal learning and development programmes will produce a future, technically-competent national workforce - not just adequate but world-beating. Until that day dawns, we need a stopgap.

Learning takes too long

According to one study (Young, 2010), South Africa’s universities and HEI’s are not able to produce these critical skills fast enough. For example, Young estimated that creating 34,000 additional engineers, technologists, draughtspersons and technicians needed over a 2-year period would take roughly 100 years in terms of current educational capacity. Likewise, learning and development programmes cannot scale to meet the immediate needs of the economy. Neither can businesses afford to wait, so an alternative solution is inevitably required.

75.29% of respondents in the Critical Skills Survey Results 2017 reported that they are better able to find scarce skills when they expand their search to include foreign nationals. This is a perfectly sensible solution - the right skills at the right level of expertise, available immediately to fill a skills gap that cannot otherwise be closed. This is supported by the fact that most of those interviewed asserted that the local market has been fully scouted for critical skills and found lacking.

Unfortunately, expatriates are seen by government and occupational stakeholders as a threat to the local workforce, taking jobs from South Africans. However, since the skillsets offered by foreign workers are evidently unavailable here, this couldn’t be further from the truth. Even so, employers will need to evangelise several fundamental changes in thinking to promote their case.

First, expats are a resource, not a threat. Importing critical skills into the country is no different from importing any other essential factor of production.

Second, not only do they offer the competencies companies desire but also the opportunity to transfer their expertise to many local workers. As such, expatriates do not diminish employment opportunities for South Africans; instead, they create jobs by their very presence.

Third, the use of expats is temporary. They are simply a bridge between today’s urgent business needs and tomorrow’s acquired competencies. Rather than replace South African talent, they will hold the fort until the reinforcements arrive.

Making it happen

89.53% of those surveyed find the work visa process an obstacle to filling critical skills positions. The procedure is laborious and time consuming. However, not acquiring these vital talents will prove most costly in lost business opportunities and low competitive advantage.

The South African workforce of tomorrow will energise the economy. In the meantime, the country needs a concrete way to source the critical skills to compete globally. As our survey reveals, businesses believe that the acquisition of foreign skills is the only sensible response.


The digital commerce environment is developing and evolving at such a rate that global tax systems are struggling to keep up. VAT and its application to e-commerce, for example, has given rise to a variety of compliance challenges for governments because digital commerce transcends traditional jurisdictional boundaries.

Staying relevant

In South Africa, taxing electronic services was implemented on 1 June 2014, ahead of many other countries. The rules impose a liability on the supply of electronic services by any supplier from a place in an export country (any country other than South Africa) where at least two of the following factors are present:

  • the recipient is a South African resident;
  • payment for such electronic services originates from a registered bank; and/or
  • the recipient of the supply has a business, residential or postal address in South Africa.

Certain qualifying electronic services were prescribed by the minister of finance, by regulation, in the Government Gazette on 28 March 2014. Simply stated, the VAT rules compel foreign merchants to register as South African VAT vendors and to account for VAT, among other things, where the foreign merchant provides electronic services to South African consumers or receives payment for such electronic services from a South African bank and the revenue exceeds R50,000 a year.

This compulsory registration is significantly less than the registration threshold of R1m that applies in relation to all other types of supplies. A foreign merchant who supplies electronic services and who has registered as a vendor in South Africa is required to account for VAT at the standard VAT rate of 14% on all the defined electronic services provided by the foreign merchant to South African customers. The rules in relation to taxation of electronic services were initially well-received by business and it thus important to ensure that the VAT rules regarding e-commerce remain relevant and true to South Africa's VAT principles.

Davis Tax Committee recommendations

As part of its comprehensive review of the South African tax system, the Davis Tax Committee (DTC) made certain recommendations in relation to VAT and e-commerce transactions in its Interim Report on VAT, released on 7 July 2015 (DTC VAT Report). These include, among other things, the following:

  • that supplies between group companies be excluded from the ambit of the VAT rules;
  • that the invoice basis of accounting for VAT be the default position; and
  • that no distinction be made between supplies made between businesses, so-called business-to-business (B2B) and business-to-consumer (B2C) supplies and no concessions be granted by manipulating the list of qualifying electronic services. In considering the VAT e-commerce regulations in a broad manner, the DTC recommends that more flexible legislation is required to ensure South African VAT e-commerce legislation stays relevant.

Keeping legislation current

The escalating problems of deteriorating tax revenue collection and further downward revisions to economic growth projections have significantly eroded government's fiscal position. Tax revenue, as described in the Medium Term Budget Policy Statement, is projected to fall short of the 2017 Budget estimate by R50.8bn, the largest under-collection since the 2009 recession.

Fortunately, South Africa has a relatively low VAT policy gap owing to the relatively straightforward and simple VAT policy structure in place. To ensure that this position is maintained, it is imperative that South Africa's e-commerce legislation keep pace with recent developments and takes heed of the recommendations in the DTC VAT Report.

The proposal contained in the 2015 budget that software be included in the list of electronic services in the regulations would also assist with broadening, strengthening and consolidating the VAT e-commerce base and will ensure that South Africa's e-commerce legislation remains current thereby enabling the fiscus to realise the maximum potential tax revenue possible from e-commerce transactions ending in South Africa.

Source: Webber Wentzel


BERLIN - A top European Central Bank official called for governments to regulate and tax bitcoin, labelling the cryptocurrency an object of speculation and a tool for money laundering.

"One ought to apply what the basic rule is in any other financial transaction: everyone involved should reveal their identity," ECB governing council member Ewald Nowotny told the German daily Sueddeutsche Zeitung.

"We need a value-added tax on bitcoin, since it's not a currency," said Nowotny, who is head of Austria's central bank.

Nowotny's comments echo those by other ECB officials, who regard the bitcoin's spectacular surge in value as a bubble, rather than a sign it could be a digital competitor to the euro single currency used by its 19 member nations.

Nevertheless, the "digital gold" is a concern for central bankers as it can allow money launderers to dodge around increasingly strict rules in the traditional financial system.

"It can't be allowed that we've just decided to stop printing 500-euro notes to fight money laundering, that we've slapped strict rules on every tiny savings club, and then have to watch people blithely laundering money around the globe with bitcoin," Nowotny said.

Bitcoin, launched in 2009, is a virtual currency created from computer code. It and other virtual currencies use blockchain, which records transactions that are updated in real time on an online ledger and maintained by a network of computers.

Bitcoin is perhaps the best known and most popular virtual currency and its value surged as high as $19,500 in December from around $1,000 in January, but has slipped back after a series of warnings from governments and analysts about the risk and volatility associated with cryptocurrencies.

While blasting the cryptocurrency's bubble-like characteristics, Nowotny acknowledged the topic had "reached the heart of society," with people now asking him on the Vienna metro whether they should buy bitcoin, rather than gold as in the past.

But "the central bank would only have to intervene if (bitcoin) were to change people's behaviour. There are no signs of that yet," he said, noting that wild gyrations in bitcoin's value and slow transaction speeds made it hard to use for everyday payments.


Cabinet has approved the Public Service Graduate Recruitment Scheme Framework.

The framework forms part of the development programme within the public service to attract talented graduates.

“The framework includes earmarking a percentage of each department’s vacant posts for the recruitment of graduates in scarce occupations,” Communications Minister Mmamoloko Kubayi-Ngubane said at a post Cabinet media briefing on Thursday, 7 December 2017.

The Minister of Public Service and Administration is expected to align this framework to the Youth Employment Service Programme, which aims to empower one million unemployed youth over the next three years by offering them quality work experience.

Bills approved for submission to Parliament

Cabinet has approved four bills for submission to Parliament.

The Social Assistance Amendment Bill of 2017, Property Practitioners Bill of 2017, National Qualifications Framework Amendment Bill of 2016 and International Crimes Bill of 2017, are among the bills approved for submission.

The Social Assistance Amendment Bill provides improved benefits with respect to child support grants for orphaned and vulnerable children, including those residing in child-headed households.

The Property Practitioners Bill repeals the current Estate Agency Affairs Act, 1976 (Act 112 of 1976). It creates an enabling regulatory environment to enhance economic activity within the real estate industry while also addressing a need to ensure transformation in the sector.

The National Qualifications Framework Amendment Bill strengthens the current National Qualifications Framework Act, 2008 (Act 67 of 2008). It introduces measures to deal with issues of misrepresentation and imposes consequences on persons, who misrepresent their qualifications or organisations that issue qualifications that are invalid.

The International Crimes Bill provides an improved legislative framework to deal with international crimes committed in South Africa and across borders. It also provides improved protection and justice for victims of international crimes.


Most people know of the Community Schemes Ombud Service (CSOS) and that levies must to paid to fund its operations. In this article I will address some of the issues that are causing confusion.

From when are CSOS levies payable? The CSOS Act and Regulations came into effect on 7 October 2016, and in terms of section 29(1)(b) of that Act, all community schemes must pay levies to the CSOS. The Regulations that detailed the levies came into effect 90 days after the Act, so the CSOS levies are payable from 7 January 2017.

Who is liable to pay the CSOS levies? The CSOS levies are not debts owed by individual owners to the CSOS. Even though the amounts of the levies, and waivers of, are calculated by reference to the contributions payable by individual owners, the total amount due by all owners in a community scheme is a debt payable by the scheme to the CSOS. Section 59(a) of the CSOS Act provides that every community scheme must pay the prescribed CSOS levies.

When are CSOS levies payable? In terms of General CSOS Regulation 11(1) every community scheme must pay CSOS levies on a quarterly basis.

Can schemes insist that CSOS provide an invoice before they pay levies? There is no provision in the CSOS Act or Regulations that requires the CSOS to issue schemes with invoices for levies. Schemes are legally obliged to remit levies to CSOS as soon as CSOS is in a position to accept payment. At this time CSOS does not have details of all community schemes. While its staff are trying to get as many community schemes as possible recorded on its database, this is an ongoing process.

What will happen if a scheme collects the levies but withholds payment to CSOS? In terms of General CSOS Regulation13 any community scheme which fails to pay a CSOS levy on due date is liable to pay interest at a rate prescribed by the National Credit Act, 2005. This is likely to be a rate of 22% per annum on the basis that the debt arises from an incidental credit agreement.

    Community scheme executives should:

  • Work out the amount of the CSOS levies owed by their scheme (get help from your managing agent, if necessary);
  • Take whatever administrative action is necessary in your scheme to raise the levies so that the owners become legally liable to the scheme for their share of the CSOS levy, e.g. in a sectional title scheme, take a trustee resolution levying special contributions and send notices to all owners requiring payment (get help from your scheme’s managing agent or lawyer if necessary, particularly if you are in a scheme that is part of a bigger development);
  • Take active steps to collect the amounts (if owners leave the scheme without paying, the scheme will have to collect their share from the remaining owners);
  • Make sure your scheme is registered with the CSOS as soon as possible (details of the various CSOS offices are available at;
  • Even if you have no confirmation of your registration, write to the CSOS offering to make payment (if you want any chance of avoiding the high rate of interest the CSOS Act requires on overdue levy payments, you need to be able to show that the scheme had the money and tried to pay the CSOS to make it clear that the delay in payment is not the scheme’s fault);
  • Invest the CSOS levies at the best short-term interest rate you can get in the meantime, pending payment to the CSOS, so as to mitigate the scheme’s losses if it is obliged to pay interest at 22% p.a.


The South African Revenue Service (Sars) has failed to comply with legislation by unlawfully paying bonuses to staff without the approval of Finance Minister Malusi Gigaba, the auditor-general has found.

The conclusion is contained in the long-delayed Sars annual report, which will be tabled in Parliament on Thursday.

A dispute over the bonus payments held up the tabling of the report.

In the 2016-17 financial year Sars paid R561m in performance bonuses relating to the 2015-16 financial year, of which R3m was paid to members of the executive committee.

DA deputy finance spokesman Alf Lees said that these bonuses were "unreasonable" and he would be asking questions about them.

The auditor-general's finding did not affect the overall audit opinion on Sars, which was not qualified. The auditor-general said the noncompliance represented a significant internal control deficiency that resulted in material noncompliance.

"In line with section 18(3) of the Sars Amendment Act of 2002, [the] management [has] in the prior years obtained the approval for the bonus payment from the minister of finance," the report read. "Performance bonuses relating to the 2015-16 financial year were paid in the 2016-17 financial year and Sars could not provide evidence that an approval was obtained, as specified in the bonus approval framework, from the minister prior to payment being effected to employees who fall within the management structure."

Sars said that to put the legal opinions beyond interpretative doubt, it was seeking a declaratory order from the High Court in Pretoria on the powers of the commissioner to pay performance bonuses.

Meanwhile, Sars said on Wednesday it had received legal advice not to release the reports on the investigation into suspicious and unusual transactions into the account of its secondin-charge, Jonas Makwakwa. The Makwakwa saga has been dragging on for more than a year after it emerged that the Financial Intelligence Centre had flagged R1.2m in suspicious and unusual transactions into Makwakwa's account and that of his girlfriend, Kelly-Anne Elskie.

Sars appointed law firm Hogan Lovells to investigate the matter and earlier in November announced that Makwakwa, who had been on suspension for over a year, had been cleared of all charges and would return to work. Sars had said Hogan Lovells had recommended that disciplinary action be taken against Makwakwa, which had been done. The committee had cleared him of all charges.

Hogan Lovells said it "did not directly" investigate the dodgy transactions because Sars had given it a limited mandate.

Source: Business Day


The Constitutional Court this week handed down judgment in a matter that will be of interest to parties who contract with state-owned companies. On 27 September 2006, the State Information Technology Agency SOC Ltd ("SITA") entered into an agreement with Gijima Holdings (Pty) Ltd ("Gijima") in terms of which Gijima would provide information technology services ("IT services") to the South African Police Services ("SAPS agreement”).

Pursuant to a dispute between the parties in relation to the SAPS agreement, the parties entered into a settlement agreement on 6 February 2012 in terms of which Gijima would render IT services to the Department of Defence (DoD agreement).

Gijima raised its concerns about the validity of the DoD agreement with SITA, but on more than one occasion SITA assured Gijima that the DoD agreement complied with its procurement processes. Gijima accordingly rendered IT services to the Department of Defence in terms of the DoD Agreement.

The DoD agreement was extended several times, but a payment dispute ultimately arose between the parties. This dispute went to arbitration. During the course of the arbitration, SITA pleaded that the DoD agreement was concluded in contravention of Section 217 of the Constitution of the Republic of South Africa. The arbitrator ruled that he did not have jurisdiction to determine this constitutional issue.

A subsequent application to the Pretoria High Court was brought by SITA to, inter alia, declare the DoD agreement constitutionally invalid.

In response, Gijima argued that the decision to award the DoD agreement to it constituted administrative action in terms of the Promotion of Administrative Justice Act, 3 of 2000 ("PAJA") and should SITA have wished to review its own decision in awarding the DoD agreement, it should have done so in strict compliance with PAJA, including Section 7, which affords a party 180 days in which to launch review proceedings.

It was SITA's contention that PAJA did not apply to organs of state wishing to review their own internal decisions.

The High Court dismissed SITA's application agreeing with Gijima.

On appeal to the Supreme Court of Appeal, Gijima's claim was again dismissed on the basis that PAJA applied and SITA had not shown any good cause for launching its application outside of the time period prescribed in section 7 of PAJA with no explanation as to the cause and extent of the delay (some 22 months).

On appeal to the Constitutional Court, it was held that:

  • PAJA does not apply to an organ of state seeking to review its own decision. An organ of state must instead do so under the principle of legality as:
    • an organ of state seeking to review its own decision cannot be a beneficiary of the rights afforded under Section 33 of the Constitution (being the right to administrative action that is lawful, reasonable and procedurally fair) as Section 33 of the Constitution creates the right to just administrative action to be enjoyed by private persons only, and that the State is the bearer of obligations under that section.
  • the DoD agreement is constitutionally invalid as it did not comply with section 217 of the Constitution;
  • SITA's delay of nearly 22 months before approaching the High Court to review the decision to award Gijima with the DoD agreement was inordinate and as a result there was no basis for the Constitutional Court to exercise a discretion to overlook the delay;
  • despite the finding that the DoD agreement was constitutionally invalid, it was in the interests of justice and equity for SITA to not benefit from having given Gijima false assurances regarding the validity of the DoD agreement and from its own undue delay in instituting proceedings. The declaration of constitutional invalidity of the DoD agreement did not have the effect of divesting Gijima of any rights to which, but for the declaration of invalidity, it would have been entitled.

Ultimately, it was the consideration of justice and equity that resulted in the Constitutional Court finding that despite the DoD agreement being constitutionally invalid, Gijima ought not to be divested of its accrued rights under the DoD agreement.

Baker McKenzie Johannesburg acted on behalf of Gijima Holdings.


As South African Revenue Service (SARS) commissioner Tom Moyane braces for an inquiry into the administration of the tax agency, further damaging revelations emerged on the investigation into its second-in-charge, Jonas Makwakwa.

Hogan Lovells has placed on record that it did not directly investigate the R1.3m in suspicious deposits into Makwakwa's account and that of his partner, Kelly-Ann Elskie, who is also a SARS employee.

Despite the company's "limited scope" for the investigation and its failure to directly probe the claims for which Makwakwa was suspended in 2016, he returned to work on 1 November.

SARS said he had been cleared of all charges after facing an internal disciplinary process.

The tax agency is under increasing pressure, with a R50bn deficit in revenue collection, which the Treasury said could be attributed to the "economic cycle", weakening tax morality and also "challenges facing tax administration". Makwakwa is SARS chief director for business and individual taxes, effectively its second in command, and as such should be above reproach.

In a statement on its website Hogan Lovells, which conducted the "independent investigation" announced by Moyane late in 2016, said its scope was "limited" to whether there was misconduct by the pair.

"It [the investigation] did not seek to directly investigate the financial transactions identified by the FIC [Financial Intelligence Centre].

"We understand that all criminal-related allegations arising from the FIC report were referred to the relevant authorities for investigation," said Hogan Lovells in the statement.

This implies that Makwakwa has yet to answer for the suspicious transactions.

It also contradicts information from sources inside SARS that Hogan Lovells had enlisted PwC to assist with the probe into the transactions.

Hogan Lovells also revealed in its statement that it recommended disciplinary action against Makwakwa for "nondisclosure of external interests" and also for "breaching his suspension conditions".

This is understood to be linked to Makwakwa's interference in a taxpayer matter while on suspension.

"A hearing was convened and chaired by an independent senior counsel, advocate Terry Motau SC. The findings ... acquitted Makwakwa of all charges," Hogan Lovells said.

The law firm did not respond to questions on Thursday.

SARS spokesman Sandile Memela said the tax agency did not want to engage on the matter through the media.

"As you are aware, [Parliament's] standing committee on finance has written to SARS with a specific request. SARS will engage [the standing committee on finance] on the matter soon. SARS cannot give comment on this matter but will provide more details when we present to parliamentary structures," Memela said.

Last week the finance committee urged SARS to release the Hogan Lovells report.

"Given the role SARS plays, it not only has to be, but be seen to be, above reproach, and perceptions of irregularities by its senior officials have to be effectively addressed," it said.

Committee chairman Yunus Carrim said on Thursday that if it was true that Hogan Lovells did not investigate the matter for which Makwakwa was suspended, the committee would have to consider this when SARS appeared before it on 28 Novembe.

He said the committee had written to SARS and the finance minister for a copy of the report and awaited their response.

DA MP Alf Lees, who is also on the committee, questioned Hogan Lovells, saying if it did not investigate the suspicious transactions directly, "what exactly did it investigate?". He also expressed concern that SARS and Moyane had not been "forthcoming" to the committee in the past.

Meanwhile, the Presidency said on Thursday that the details of the broader inquiry into SARS would be dealt with by President Jacob Zuma and Finance Minister Malusi Gigaba when the latter returned from an official trip abroad. Gigaba announced the inquiry on Monday, saying Zuma had agreed to it.

Source: Business Day


In July this year, 72 JSE-listed companies were identified as the subject of employment equity reviews by the Department of Labour Inspection and Enforcement Services (IES). As a result of this process, the IES has announced that 50 JSE-listed companies, including the JSE, have been found to be non-compliant with the Employment Equity Act (EEA). The IES said 41 employers were given 60 days to comply with their recommendations and that nine would be prosecuted for failing to prepare Employment Equity Plans.

The IES noted that areas of non-compliance with the EEA included a lack of properly constituted consultative forums; EE plans that were not properly audited and analysed; assigned senior EE managers who did not have the necessary authority or resources to execute their mandate, and prepared employment equity plans that did not comply with legislation.

Lauren Salt, Senior Associate in the Employment & Compensation Practice at Baker McKenzie in Johannesburg says that where the companies are being prosecuted for their non-compliance, this will relate to past non-compliance which cannot be retrospectively rectified. Where this is the case, there is a high likelihood that a fine, pursuant to the non-compliance, will be issued. These fines can be up to 10% of the companies’ annual turnover depending on the nature and frequency of the contravention.

“To date, there have not been any hefty fines issued for non-compliance with employment equity obligations and so businesses have been fairly lackadaisical in their approach to compliance with the EEA. Putting in place proper employment equity structures and plans is also no simple task and takes time.”

“Clearly, the Department of Labour is seriously clamping down on enforcement and I think in the near future, will see a number of fines imposed on ‘big ticket’ JSE listed companies to ensure compliance going forward,” she adds.


It has been common practice for municipalities to sell vacant properties for both commercial and residential development, subject to a title deed condition that the property must be improved within a certain period or the properties would revert back to the municipality.

These properties were sold at discounted rates, as part of the municipal development framework for a designated area.

In the past, municipalities achieved this objective by inserting a clause in the Deed of Sale which later manifested as a condition in the Title Deed pertaining to such land, which clause, for example stated that:

"If after the expiration of two (2) years from date of sale the purchaser has failed to complete building to the value of not less than R100 000,00 on the property, ownership of the property shall revert to the seller (Municipality) which shall be entitled to demand re-transfer of the property from the purchaser who shall be obliged to transfer to the seller against payment by the seller to the purchaser of all payments received ... ."

This type of clause is known as a reversionary clause, which compels the purchaser of the property to re-transfer the property if it remains undeveloped upon the expiration of the conditional period contained in the Title Deed. If the property remains undeveloped upon the expiration of the prescribed period, the municipality would merely invoke the reversionary clause and demand the re-transfer of the property, without any recourse on the part of the purchaser and/or any financial institution which may have partially financed the envisaged development.

But due to recent judicial developments, municipalities are warned to err on the side of caution when selling state-owned land, subjected to reversionary rights, as more specifically pronounced by the Supreme Court of Appeal in the case of eThekwini Municipality v Mounthaven Pty Ltd.

In this case, the Court diluted the effect of a reversionary clause by unequivocally and expressly ruling that same does not confer an absolute right and that it is subject to prescription if not exercised within the contractual or the statutorily imposed three year period.

The result is twofold: On the one hand, the municipality, when alerted to non-compliance on the part of the purchaser, is legally obliged to claim re-transfer of the property either within the period stipulated in the Title Deed condition, or for the latest, within the statutorily prescribed period of three years. On the other hand, purchasers that acquired property from the municipality at discounted rates and whether for commercial or residential development, are no longer compelled to re-transfer such property, should same remain undeveloped upon the expiration of the conditional period.

The judgment as its stands, arguably constrains the municipality by closing its back-door means of reclaiming property, when purchasers default on their obligation to develop same within a certain period of time.

Another implication is that financial institutions will, upon the expiration of the conditional period and had the municipality not enforced its rights within the contractual or statutorily prescribed period, be able to lend funds against the property as security -even if the purchaser failed to develop it.

The purchaser will accordingly derive an extended period within which to develop the property, without fear of losing the security due to a re-transfer being claimed by the municipality.

Municipalities will now have to obtain extensive legal advice in order to ensure the adoption and implementation of adequate compliance mechanisms, should they wish to ensure development within a certain period, especially since the rights which stem from reversionary clauses lapse after a period of three years.


While many landlords may rely on the rental income on their properties during tough economic times, they may also have to deal with disappearing tenants.

“With an absconding tenant, it can be quite difficult as you have to issue a cancellation letter, terminating the lease and indicating the final date of the lease,” says Natalie Muller, head of rentals at Jawitz Properties in the Western Cape and Gauteng. “If the tenant’s furniture remains in the property, you have to make arrangements to store the furniture, but this can be at the cost of tenant. You do have to advise the tenant that the furniture needs to be removed or it will be sold to defer costs – you are not allowed to sell the items without a court order.”

An absconding tenant is still liable for performing in accordance with the clauses of the lease and needs to note that even though they have left the property, they need to formally cancel the lease as per the provisions in the Consumer Protection Act. The Act is defined as allowing the tenant the right to terminate their lease agreement with 20 business days’ notice for whatever, as well as, no reason at all. “This right, however, is subject to penalties and most leases make provision for a penalty that the tenant can be held liable for rental of two to four months depending on the time it takes to find a replacement.”

Lease must be cancelled before further occupancy

The landlord will have the right to claim the costs involved in finding a replacement tenant, as well as the costs to return the property back to the original state it was when the tenant first moved in. Landlords need to know that unless the lease with the tenant has been cancelled, an inspection carried out and the absconding tenant notified of the penalties and charges, they cannot allow a new occupant to move in. It is also important to note that any viewings done at the property without the absconding tenant being present, need to be done having given the absconding tenant a notice of the intended viewing. “Even though the tenant has left they still have the right to the lease, pending the formal cancellation,” Muller says.

Landlords should consider themselves lucky if the tenant has left occupancy of the property without owing money. If the right processes are followed, the landlord should be able to rent the property within days of finalising the new lease. “Having an insurance policy in place, as well as a managing agent to assist can really help landlords through the process,” Muller concludes.


The new National Minimum Wage (NMW) has finally been tabled and it is causing consternation across country and company. Pressing questions remain around the still low amount, and its viability in the current economy, the history of oppression that surrounds the current wage structure, and the hackles of industry rising around the impact of the cost to bottom lines.

Perhaps the most important point to raise before discussing budgets and costs, is that the proposed minimum wage of R3,464 a month for a 40-hour week at R20/hour would still be significantly less than the R5,544 that research shows would be the Minimum Living Level - in 2016. While the proposed increase will positively impact the quality of life for millions of South Africans, it is still not enough.

“The current proposed minimum wage is R20 per hour and many would argue it is enough, but the reality is that South Africans in the unskilled job spectrum can barely make ends meet,” says Nicolette Nicholson, South African Payroll Association, Exco. “Enterprise or business may argue it is enough, but this NMW won’t break the poverty and inequality barriers.”

However, it is a start towards promoting economic growth.

Change is one small step

Currently, the minimum wage is set at the sectoral level and the urban/rural level and is done in consultation with the Employment Conditions Commission. The new NMW will apply across all sectors. The Commission has to consider the ability of the employer to carry on business successfully and examines issues such as: the operation of the small, medium and micro enterprise; the cost of living; conditions of employment; income differentials and equality; and the impact of the increase to the enterprise.

“The National Union of Metal Workers of South Africa remains opposed to NMW in its current form and Cosatu has pointed out that it is far from solving the challenges of inequality, poverty and unemployment,” says Nicholson. “They have, however, said it is a good start.”

Enterprises not regulated under a wage regulating measure, such as the mining industry, are indicating that they will be unable to afford the increase. This view confirms the concerns raised by trade unions and analysts – that the NMW may escalate the unemployment crisis.

“The NMW could have a further negative impact on the decline of job losses in the SME market,” concludes Nicholson. “The mines have already said they can’t afford it and may be retrenching staff. It is approximately a R7 difference from the average of R13 minimum wage if one compares rates across different industries and for most organisations the rise will make a significant impact on the bottom line.”

There is no clear-cut path through the minefield that the NMW has opened up, but one fact does shine out – millions of people could see a necessary shift in their quality of life. The issues must be addressed to ensure that there is engagement on the NMW across all levels of business and that there is proper support for its success. The long-term sustainability of South Africa depends on it.


The Minister has also withdrawn exemptions made in terms of the Financial Intelligence Centre Act, 2001 (FIC Act).

The amendments, which became effective on Monday, were previously published in draft form for public consultation, and the comments received were considered.

“These amendments to the MLTFC Regulations and the withdrawal of exemptions coincide with the commencement of a number of amendments to the FIC Act, which the Minister had announced on 13 June 2017.

“This provides the legal basis for a shift in the measures to protect the integrity of the South African financial system to a risk-based approach, which modernises the manner institutions undertake customer due diligence and encourages innovation in the way they deal with their customers,” said Treasury.

When coming to the single transaction threshold and withdrawal of exemptions, Treasury said institutions should determine what constitutes single transactions in the context of their own business, and provide for the application of a single transaction threshold in so far as they accommodate such transactions.

The Financial Intelligence Centre (FIC), in collaboration with National Treasury, the South African Reserve Bank and Financial Services Board, has issued guidance in Guidance Note 7 in this respect, which may be of assistance to institutions.

The link can be found on here.

Treasury said while the withdrawal of exemptions may impact institutions’ compliance approach to the customer due diligence requirements of the FIC Act, institutions may continue to be guided by the content of the withdrawn exemptions in the implementation of their compliance approaches.

This is also addressed further in the guidance issued by the FIC.

“Although a few objections were received on the withdrawal of some exemptions, these were not supported by adequate empirical data; consequently, sufficient information was not provided to retain the exemptions in question.”

Treasury said that further consultations on new exemptions may be considered in sectors where it can be clearly demonstrated that such exemptions are necessary and will not undermine the objectives of the FIC Act.

Meanwhile, certain comments indicated a concern that to prescribe information sets for reporting in accordance with the FIC Act precludes institutions from applying a risk-based approach to customer due diligence.

“To address this concern, the proposed amendments to the MLTFC Regulations concerning the new reporting requirements have been aligned with the introduction of a risk-based approach in the FIC Act.

“Furthermore, to clarify the expectations regarding mandatory reporting, the FIC has issued guidance in Guidance Notes,” said Treasury.

The Guidance Notes namely 4A, 5B and 7 can be accessed on FIC website at : 4A; 5B and 7.


National Treasury's proposed changes in the draft Taxation Laws Amendment Bill, 2017 (TLAB) on converting debt to equity were presented in a workshop on 26 September 2017. These proposed amendments in the draft TLAB are in sections 19, new sections 19A and 19B, and paragraph 12A of the Eighth Schedule in the Income Tax Act 58 of 1962.

It appears that National Treasury is considering the following changes in the final bill on the debt conversion into equity proposals:

  • the removal of the proposed new sections 19A and 19B;
  • the removal of the definition of "reduction amount" in section 19. In its stead, the concept of a "debt benefit" is proposed which aims to better encapsulate different scenarios under which a debt claim can be reduced, either by way of a debt to equity conversion or some other concession. As a consequence of the new "debt benefit" concept, National Treasury has proposed that a supporting - "concession or compromise" - definition would also be included in section 19;
  • the debt to equity conversions between companies that form part of the same group of companies, as defined in section 41, shall be excluded from the application of the debt forgiveness rules, for now;
  • in relation to mining companies, the proposed amendment will be made with reference to the new defined term of "debt benefit" and the exclusions in paragraph 12A will apply to taxpayers engaged in mining operations. The exclusion in respect of debt that is reduced in the course of, or in anticipation of, a liquidation, winding-up or deregistration will not be provided for as this exclusion has been ear-marked for review in the 2018 amendment cycle;
  • in relation to dormant group companies, a company will be regarded as being dormant if it did not trade in the year a debt is forgiven and the immediately preceding year; and
  • the proposed amendment is expected to apply in respect of years of assessment commencing on or after 01 January 2018.

"Generally, National Treasury's revised proposals and clarifications in the workshop were preferred to those contained in the draft TLAB. In particular, the removal of sections 19A and 19B from the draft TLAB is to be welcomed. National Treasury also indicated that further refinements would be made to the proposals.

"National Treasury also indicated that they were working towards introducing the final bills at Parliament on 25 October 2017, which is the date that the Finance Minister, Malusi Gigaba, is expected to present the Medium Term Budget Policy Statement," say Wesley Grimm and Joon Chong from Webber Wentzel.


The President has signed the Financial Sector Regulation Act, which was published in the Government Gazette on 22 August 2017. The Act will come into effect on a date to be determined by the Minister of Finance and announced by notice in the Government Gazette.

The Act aims to consolidate the regulation and supervision of the financial sector and its various subsectors - namely banking, insurance, financial products and services and market infrastructure - to ensure that each subsector is subject to both prudential and market conduct supervision and regulation. This approach is commonly referred to as the ‘Twin Peaks’ model.

The Treasury seeks to implement the transition of the South African financial sector regulation to the supervisory model in two phases. The Act provides that different dates may be determined by the Minister of Finance for the coming into effect of different provisions of the Act and/or in respect of the different categories of Financial Institutions where the different provisions will apply.

Phase 1

A ‘Financial Institution’ is defined as a financial product provider, a financial service provider, a market infrastructure, a holding company of a financial conglomerate and includes any person licensed or required to be licensed in terms of a financial sector law.

Phase 1 will entail creating two new regulators - the Prudential Authority and the Financial Sector Conduct Authority (FSCA) - to supervise all participants in the financial sector. They will work in conjunction with the South African Reserve Bank, the Financial Intelligence Centre and the National Credit Regulator.

The Prudential Authority, to be housed within SARB, will be tasked with regulating prudential issues (systemic stability and the safety and soundness of financial institutions) in relation to banks, insurers and the financial markets with a special focus on ‘financial conglomerates’.

The FSCA, which will replace the Financial Services Board, will act as a market-conduct regulator in respect of all financial institutions, in particular regarding business conduct and consumer protection.

Phase 2

Phase 2 will involve consolidating the regulation of, and the standards applied to, the various financial subsectors into over-arching legislation applicable to all Financial Institutions. The Prudential Authority, the FSCA, the Financial Intelligence Centre, the SARB and the National Credit Regulator, each in their functional sphere rather than by designating a regulator per subsector, will administer this. It is likely that existing industry specific licences for financial institutions will be phased out and each financial institution will require a licence from the Prudential Authority and the FSCA.

Effects of regulation

During phase 1, the existing industry specific legislation will remain in force and will be allocated to one of the new regulators (as set out in Schedule 2 of the Act) as the principal regulatory authority. For the most part, the Prudential Authority will be responsible for legislation previously administered by the Banks Supervision Department of the SARB and the FSCA will be responsible for legislation previously administered by the FSB, with the exception of the insurance industry. Both the Prudential Authority and the FSCA have been designated as primary regulatory authority in respect of the insurance industry.

The designated regulator will act as the licensing authority and (primary) supervisory authority for the particular legislation during phase 1. Both regulators, however, will have the power to exercise supervisory powers and to apply and enforce the industry specific legislation on a financial institution - the Prudential Authority in respect of prudential aspects and the FSCA in respect of market-conduct issues. Each of the new regulators will also be able to issue new standards under the industry specific legislation. In this sense, the mandates of the new regulators are broader than the mandates of their predecessors.

The Act gives the new regulators supervisory and enforcement powers in addition to the powers afforded to the relevant regulator under the industry specific legislation. Furthermore, the powers of the Prudential Authority and the FSCA may be exercised in respect of controlling companies of financial institutions and entities that form part of ‘financial conglomerates’, where such entities may not previously have been subject to the financial sector laws.


Parliament has weighed in on the Vodacom billing debacle, calling for the matter to be investigated by an independent body. The mobile operator drew the ire of some of its subscribers last week whose data and airtime disappeared as a result of a technical glitch.

The company has since apologised and begun reimbursing customers who were affected by the problem, but Parliament has called for a further probe into the matter. The billing crisis came amid growing calls around the country for data prices, which remain stubbornly high, to be slashed.

Parliament's portfolio committee on telecommunications and postal services said on Thursday, 24 August, that it strongly condemned the Vodacom incident.

Although the company had apologised to customers and committed not only to refund them, but also to give them an extra 500MB bundle valid for three days, the committee said the matter must be investigated by an independent body.

"SA ranks fourth out of 17 African countries with high costs of data, and to have millions of people robbed of their airtime and data in this manner is a serious concern," said Dikeledi Tsotetsi, the acting chairperson of the committee.

She said having received inputs from individuals and organisations during the cost-to-communicate public hearings held in Parliament last year, the committee had tasked the Independent Communications Authority of SA (Icasa) to investigate high data costs further.

In May, Economic Development Minister Ebrahim Patel announced that SA's high data costs would be investigated by the Competition Commission. This month, the commission published the terms of reference of the inquiry and called for submissions. The inquiry will look into the market structure, the general adequacy and impact of the current regulatory regime, and costs faced and profits earned by fixed and mobile network operators.

Icasa is also reviewing the broadband market and has said the reduction in the cost of data would depend on the outcome of the review. Tsotetsi said while the committee was awaiting reports of the ongoing investigations by Icasa and the Competition Commission, the mobile network operators had a responsibility to conduct business in a manner that was just and lawful.


In South Africa, there are several laws ensuring the protection of women in the workplace. The Constitution of the Republic of South Africa confirms, “Everyone is equal before the law and has the right to equal protection and benefit of the law.” Employment legislation has been enacted in order to give effect to the Constitution and to protect all employees, including women in the workplace.

Key laws

  • Protection against dismissal - in terms of the Labour Relations Act, a dismissal is automatically unfair if the employee is dismissed because of her pregnancy, intended pregnancy or a reason related to her pregnancy. A dismissal that is found to be automatically unfair can attract an order of reinstatement or compensation up to 24 months’ salary.
  • Protection against unfair discrimination - the Employment Equity Act (EEA) protects employees from unfair discrimination on listed grounds which include gender, sex, pregnancy, marital status, family responsibility or on any other arbitrary grounds.
  • Equal pay protection – the EEA was recently amended to introduce the equal pay for work of equal value principle (equal pay principle). In terms of the amendment, a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is based directly or indirectly on any one or more of the listed grounds or on any other arbitrary ground, is unfair discrimination. A Code of Good Practice on equal pay for work of equal value states that the equal pay principle “addresses a specific aspect of workplace discrimination and the undervaluing of work on the basis of a listed or any other arbitrary ground…” As stated above, the listed grounds include gender and sex.
  • Maternity leave protection – in terms of the Basic Conditions of Employment Act (BCEA), an employee has a right to at least four consecutive months’ unpaid maternity leave. The Unemployment Insurance Act provides for payment of maternity benefits.
  • Protection before and after birth - the BCEA also provides protection to employees before and after the birth of a child. In terms of s26(1) of the BCEA, “no employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.” A Code of Good Practice on the protection of employees during pregnancy and after the birth of child has been issued in terms of the BCEA. The Code recognises that many women return to work while breast-feeding and provides guidelines for employers. It guides employers on how to assess and control risks to the health and safety of pregnant and breast-feeding employees and provides a non-exhaustive list of hazards to pregnant and breast-feeding employees recommending steps to control or prevent those risks.
  • Family responsibility leave - subject to certain requirements, s27 of the BCEA grants employees three days paid leave which an employee can take when the employee’s child is born or sick, or on the death of the employee’s child, adopted child, spouse, life partner, parent, sibling or grandchild.

South African legislation has progressed in order ensure the protection and advancement of women in the workplace. Non-compliance with the legislation could lead to severe penalties being imposed or compensation being awarded.


The final credit life insurance regulations, which prescribe the minimum benefits that must be offered to consumers and the limitations or exclusions that apply to the insurance cover, came into effect on 9 August 2017.

The regulations aim is to limit the cost of credit life insurance. Consumers will now be charged a maximum of R4,50 per R1,000 of the deferred amount for credit facilities, unsecured loans, developmental credit agreements and other types of credit agreements. When it comes to mortgages, consumers can only be charged a maximum of R2 per R1,000 of the deferred amount, says Lesiba Mashapa, company secretary at the National Credit Regulator (NCR).

Consumers who are not employed cannot be sold retrenchment cover. A consumer who dies or becomes permanently disabled will have his or her outstanding debt under a credit agreement settled by the credit life insurance policy. If the consumer loses his or her job, the policy will pay installments due under a credit agreement for up to 12 months.

It is important to note though, that these regulations are not retrospective. Consumers who have a life cover can use this insurance to cover their debts and should not be forced to take out a new insurance as long as the life cover is sufficient to cover the debt in case of a claim, says Mashapa.

These regulations were published in the Government Gazette in February 2017 and were set to come to effect six months after the date of publication.


If it is passed by Parliament, the Draft Taxation Laws Amendment Bill proposal to remove foreign remuneration tax exemption will impact the willingness of South Africans to work abroad.

South African tax residents working abroad are currently exempt from income tax if they are abroad for at least 61 days and a total of 184 days in a 12-month period.

“If South Africa has a double taxation agreement with the host country and the individual is physically present for 184 days or more in a calendar or tax year, or the salary was recharged to an entity in the host country, or the costs were borne by a permanent establishment in the host location, the income is only subject to tax in the host country,” says Shohana Mohan, committee member of the South African Institute Chartered Accountant (Saica) employees tax and expatriate tax sub-committee.

Benefits and allowances received in-country such as residential accommodation and the use of motor vehicle are currently also exempt from South African tax. This exemption aims to avoid double taxation. The proposed amendment will have the following consequences:

  • Employers will need to calculate employees’ tax on salaries processed through a South African payroll or resident employer;
  • Employees/employers will be required to pay personal income tax on foreign benefits and allowances (such as assignment related and hardship allowances);
  • Employers may need to change their payroll processes to reflect a mirror approach for home and host country payrolls to ensure that all remuneration elements are taxed;
  • Employees paid partly through a South African and partly through a foreign payroll (split payrolls) will be required to register for provisional tax;
  • Employers’ tax costs will increase if they bear the tax liability of the employee (i.e. a tax equalisation);
  • Employers’ compliance costs will increase as a result of registration for and payment of provisional tax and claiming of foreign tax credits, especially if the host countries’ tax year ends differ from that of South Africa; and
  • Employees opting to give up their South African tax residency status may trigger capital gains tax on “exit”.

Employers will have to reconsider their international assignment and tax policies. This could include defining, and distinguishing between, durations and natures of the assignment/secondment, including:

  • Early career expatriates
  • Short-term expatriates
  • Medium-term expatriates
  • Long-term expatriates
  • Localised career expatriates

Revisiting international assignment and tax policies can assist employers to manage tax jurisdiction specific risk. Factors that employers should consider include:

  • Nature of the assignment or secondment
  • Home and host country tax year ends
  • Home and host country marginal tax rates
  • The payroll regime, i.e. full payroll in South Africa or a split pay arrangement
  • Maximum tax payable in both locations
  • Cash flow impact of the tax payable (prior to a foreign tax credit)

With a split payroll, the impact of the provisional tax registration and the total tax payment should be considered.


If an employee gets a medium- to long-term assignement to a host country, and the host country’s marginal tax rate is 35%, and 50% of the salary is borne by South Africa and 50% by the host country, the tax payment is likely to be:

45% x 50% of the salary processed in South Africa
45% x 50% of the salary processed in host country
Less: 35% of the tax already paid/payable in host country
The effect is that 10% of 50% of the host country salary will be included for provisional tax purposes in South Africa.
“Employers should review their international assignment and tax policies to limit the effect on business as the impact of these proposals will be far reaching,” concluded Mohan.


The 2017 Draft Taxation Laws Amendment Bill and Draft Tax Administration Amendment Bill, clarifying the Value Added Tax (VAT) Act treatment of leasehold improvement, were recently released for comment.

“A recent proposed amendment to the VAT Act may result in landlords being liable for VAT on leasehold improvements affected by their tenants,” says Christo Theron, chairman of the SAICA VAT Sub-Committee. “This may result in a nasty surprise for a landlord that is not aware of the potential new dispensation.”

In practice lessees are often required to affect improvements to the leased property, commonly known as leasehold improvements.

“Such improvements are normally for the account of the lessee with no right of recovery from the lessor. Until recently the VAT implications of arrangements of this nature were unclear. New proposed amendments to the VAT Act have clarified the issue in some respect, effectively shifting the VAT liability to the lessor,” added Theron.

Lessee will not be liable

In terms of the proposed new rules the lessee will not be liable for any VAT on leasehold improvements affected, although in law such improvements are effectively supplied to the lessor (the improvements becoming part of the property owned by the lessor).

“The lessor is not so lucky, he says. “The new proposed rules determine that the lessor will be liable for VAT on the value of the improvements. The good news is that the VAT will only be payable to the extent that the property is not used for taxable purposes such as, for example, for VAT exempt residential accommodation. For instance, where a lessee erects a building on land owned by a lessor and erects a building consisting of office space and residential accommodation (e.g. a penthouse), VAT will only be payable by the lessor on the value attributable to the penthouse with which VAT exempt residential accommodation will be supplied.”

“The current proposed wording of the draft legislation is slightly obscure and will need to be tidied up, but the intention is clear. The new rules will only apply with effect from 1 April 2018. In the interim landlords should be aware of the future consequences of entering into such arrangements. You have been warned.”


Entrepreneurs advancing interest-free funds to a company, held by a trust of which he/she is a beneficiary, will be affected by the proposed legislation curbing the tax-free transfer of wealth to trusts. “This is a common practice," says Tertius Troost, tax consultant at Mazars.

He explains that Treasury’s proposed amendments to trust legislation, housed in Section 7C of the Income Tax Act intends to stop several inventive methods that taxpayers have found to avoid the additional donations tax payable in terms of Section 7C.

“Section 7C taxes a notional amount, which is the difference between the interest determined with reference to the official rate of interest (currently 7.75% per annum) and the actual interest rate of the loan, as a donation subject to 20% donations tax.”

He adds that Section 7C currently only finds application when a natural person, or a company under certain circumstances, provides a low interest or interest-free loan, advance or credit to a trust to which that person is connected. “One method identified by National Treasury to circumvent the application of Section 7C, would be to shift the investments originally held by the trust to a company of which the trust is a shareholder. The money advanced to the company would thus fall outside the ambit of Section 7C.”

In order to curb this avoidance, Troost explains that Treasury has now proposed that Section 7C should be applicable if a low interest or interest-free loan, advance or credit is made to a company which is a connected person in relation to a trust. This would happen if for example, the trust holds all the shares in the company.


William Merideth from Kentucky achieved notoriety in 2015, when he shot down a drone flying over his property. In defence of his actions, he claimed that the drone was spying on his sunbathing daughter.

After picking up what was left of his machine, David Boggs laid a criminal charge against Merideth, who was arrested for “wanton endangerment and criminal mischief.” The Bullitt County District Court ultimately dismissed the charges. Judge Rebecca Ward found that Merideth was entitled to shoot down the drone, as it infringed upon his (or his daughter’s) right to privacy.

Having lost round one, Boggs initiated proceedings to have the decision overturned seeking clarity on whether his conduct constituted trespassing and further sought an order directing Merideth to pay an amount of $1,500 in compensation for his damaged property.

In March 2017, Federal Judge Thomas Russel dismissed Boggs’ lawsuit due to the Federal Court lacking jurisdiction to hear the matter. The ruling was met with disappointment as the questions of law – regarding the right to privacy, the right to property and trespass in airspace – remained unresolved.

South African legislation

South Africa has already encountered incidents where aggrieved property owners have shot down drones.

In accordance with the South African common law, the owner of immovable property is essentially the owner of the “ground beneath and air above” such property. Therefore, at common law the delict of trespassing into air space above private property would appear, in theory, to be actionable.

However, s8 of the Civil Aviation Act, No 13 of 2009 (Aviation Act) provides a form of indemnification protecting the operators of aircraft flying over private property at a “reasonable” height. While this provision was introduced prior to the emergence of drones into South African culture, it is clear that insofar as an aircraft is flying in contravention of the provisions of the Aviation Act (or flying at an unreasonable height), the pilot may very well attract liability for trespassing. That is the theory at least.

The Eighth Amendment to the Civil Aviation Regulations was introduced in 2015 and governs, in Part 101, the operation of Remotely Piloted Aircraft Systems (including drones). There is, however, no reference to any form of indemnification against a claim of trespass (as is found in s8 of the Aviation Act).

While restrictions are placed on the operation of drones (such as the restriction not to fly a drone within lateral distance of 50m of any structure or building without permission of the owner), this does not address the question of trespassing. It is conceivable that a drone can fly in excess of 50m from any structure or building but still be trespassing on another’s property (if flying without permission).

Assuming that flying a drone over a private property may constitute trespassing; can the owner of the property use a firearm to protect his rights? The simple answer is no. In terms of s120(7) of the Firearms Control Act, No 60 of 2000, the discharge of a firearm in any built-up place or public area is a criminal offence. The discharge of a firearm on private property in a manner, which endangers the life, safety, or property of another is also an offence and insofar as a drone is damaged by the use of firearm, civil liability may follow.

CAA complaints

What can property owners do, if they feel that their rights are infringed by the operation of a drone? Well, they may resort to the courts in an attempt to enforce a civil claim against the pilot, based in delict for trespassing or alternatively an invasion of privacy (insofar as the requirements are made). Civil litigation is, however, expensive and time consuming. Advice that is more practical may be to lay a complaint with the South African Civil Aviation Authority, based on a breach of the Aviation Act or Regulations.

The Civil Aviation Authority appears to be taking matters rather seriously and has initiated a number of investigations against drone operators in recent months. Sanctions include fines of up to R50,000 per incident or imprisonment not exceeding 10 years, or both.

However, what if you have no idea who the operator of the drone is? In this case, your legal remedies are extremely limited, insofar as they exist at all.

In an effort to address this problem, we suggest that the regulations be amended in accordance with developments in other jurisdictions, which oblige every drone operator to display a unique identification number on the underside of a drone, which is to be visible from the ground. This will promote further accountability and will provide any aggrieved person with a mechanism to trace the offending owner.

Until this happens, the moment the familiar buzz of a drone is heard one should either cover up or go indoors.


Corobrik has hit back hard over charges by the Competition Commission that it has engaged in price fixing and division of markets with five other brick makers - Era Bricks, De Hoop Brickfields, Kopano Brickworks, Clay Industry and Eston Brick and Tile.

The commission referred the six companies to the Competition Tribunal following an investigation launched in April 2017.

It accuses them of contravening the Competition Act, saying that agreements between the five companies and Corobrik resulted in price fixing and the division of markets in the manufacturing and supply of bricks, pavers and blocks of clay and concrete.

"We regard the allegations in the commission's referral very seriously. I was most surprised to learn that the commission believes the agreements generate competition law concerns," said Corobrik MD Dirk Meyer. "Corobrik is of the view that its agreements with the abovementioned firms are both legitimate and defensible in terms of the Competition Act and that the commission's concerns are attributable to a misunderstanding of the commercial arrangements in question and the market generally," he said.

The referral did not constitute a finding against Corobrik, he said, but was a reflection of the commission's views based on its understanding of the agreements. "The question of whether or not the conduct actually amounts to a contravention of the Competition Act remains to be adjudicated by the tribunal."

Sipho Ngwema, head of communications at the Competition Commission, said on Thursday, 6 July, the companies would first have to file their replies within 20 days from the day the commission served them. "The tribunal will then set an appropriate date for a hearing once the technical legal processes have been exhausted. We have all the evidence we need for the case - we didn't have to raid them."

Source: Business Day


The Constitutional Court is reviewing whose duty it is to disclose historical municipal debt and whether municipalities have the right of recourse on new purchasers.

Several municipalities (Tshwane, Ethekwini and Ekurhuleni) have argued in the Constitutional Court in the ‘New Ventures’ matter that it is lawfully permissible for a municipality to attach and sell a purchaser’s property in order to satisfy debt owed to the municipality by prior owners of that property. The municipalities argued that this right was given to them in terms of section 118 (3) of the Local Government: Municipal Systems Act 2.

To support this argument, the municipalities claimed that it was lawful to hold the purchaser liable for the historical municipal debts of prior owners, partly because the purchasers should have been aware of the debts before they took transfer of the property.

It was argued that a purchaser who did not want to be liable for these debts could just stop the transfer or sue the seller for damages. In this context, the question arose as to whether any party was under an obligation to make the purchaser aware of the historical municipal debt.

Different duties alleged

  • Ethekwini argued that conveyancers are under a duty to notify a purchaser of any historical municipal debt that they are aware will not be paid by the seller at transfer.
  • Tshwane Municipality argued that the municipality itself has a duty to notify the purchasers of land if there is any historical municipal debt that the seller will not be settling at the date of transfer.
  • Tshwane and Ekurhuleni both argued (in addition) that there is a duty on the seller of the land in question to disclose the existence of any historical municipal debt that will not be settled at transfer, and that the purchaser can sue the seller who does not do so for damages.

The applicants in the Constitutional Court consisted of a number of municipal consumers, who were aggrieved by the view of the Tshwane and Ekurhuleni municipalities. They contended that (properly understood) the right of the municipality to attach and sell the property in order to satisfy historical municipal debt did not survive transfer, and that once transfer has passed to the purchaser, he could not be held liable for the debt of prior owners of the property. They argued further that (if the court found that the municipalities’ rights to attach the property for the debt of prior owners did in fact survive transfer) that this was unconstitutional because it violated the right of the purchaser to property in terms of section 25 of the Constitution.

In relation to the issue of whether there is a duty on a conveyancer, the applicants argued firstly that it makes little sense to compel a conveyancer to disclose the historical debt to the purchaser, because the purchaser has already purchased the property and there is not much that can be done by the purchaser at this point to escape the liability.

The applicants argued secondly that if section 118(3) was interpreted in the manner that the applications contended for (which was that section 118(3) creates an ex lege or automatic right in favour of the municipality to be paid by the seller for all outstanding historical debt before transfer) that the conveyancer is accordingly legally obliged to take amounts paid into the conveyancer’s trust account from the proceeds of the sale of the seller’s property and use that to settle the historical debt before transfer, thus ensuring that transfer passes without any historical debt being attached to the property.

Other parties before the Court

The Banking Association of South Africa (‘BASA’) was admitted by the Court as an Amicus (‘friend of the court’) to make submissions to the Court about how the law in question affected bondholders. BASA submitted that the ability of a municipality to hold the purchaser liable for the historical municipal debt of prior owners was an unconstitutional infringement of the Constitutional property rights of the bondholder concerned. BASA did not enter the fray relating to duties on parties to disclose.

TUHF was also admitted by the Court as an Amicus to make submissions in relation to how the law affected bondholders. The nub of TUHF’s submissions was that interpreted and applied as contended for by TUHF, section 118(3) was capable of a lawful construction that did not offend any rights of any party.

If a municipality is required to perfect its hypothec by approaching the court to obtain an attachment order, and only thereafter can it register the attachment against the title deeds of the property at the Deeds Office (which will prevent transfer from the seller of the property to the purchaser until such time the municipal debt has been paid in full) the purchaser is protected. The municipality’s failure to perfect its hypothec before transfer would mean that the property would pass to the purchaser free of the burden of any historical debt.

Although TUHF refrained from dealing directly with the issue of whether there is a duty upon any party to disclose the historical debt to the purchaser, it can be inferred from TUHF’s argument that there is no such duty, because the purchaser is not affected by the historical municipal debt if section 118(3) is interpreted and applied as contended for.

Johannesburg Attorneys Association’s submissions

The Johannesburg Attorneys Association (JAA) made an application to the Court after the hearing of the matter to be admitted as an Amicus and to make submissions to Court in relation only to the issue of whether there is a duty on conveyancers to disclose the existence of historical municipal debt attached to a property to the purchaser thereof.

The JAA’s submissions related only to the situation where the Constitutional Court found that a purchaser could be held liable in some or other manner for the historical municipal debts of others, because this is the only situation in which such a duty could conceivably arise.

Its submissions can be summarised as follows:

  1. The conveyancer is under a duty of confidentiality to the seller, and any breach of his duty would be actionable (in a form of a claim for damages) by the seller. Applied to the situation at hand this would mean that if a conveyancer knew that there was historical municipal debt that the seller was not planning to settle at the date of transfer, the conveyancer would not be permitted to share this information with the purchaser unless the seller gave his or her consent for same.

  2. In addition to the duty of confidentiality to the seller, there is also a duty on a conveyancer to act in the best interest of both parties. When a conveyancer is unable to comply with this duty because he or she comes into possession of knowledge that places him or her in a conflict situation in which he or she could not continue to act for both parties in good faith simultaneously, the rules of the relevant law societies dictate that the conveyancer must withdraw as a legal representative of one of the parties, but can continue to act for the other in the transaction.

    This would mean that, applied to the present situation, when a conveyancer becomes aware of historical municipal debt that will not be paid at the date of transfer, unless the seller of the property gives the conveyancer consent to bring this to the purchaser’s attention, the conveyancer is conflicted because he or she owes a duty of confidentiality to the seller, but also owes a duty to the purchaser to act in that purchaser’s best interest (and the conveyancer cannot in both parties’ best interests simultaneously).

    As a result, in such a situation the conveyancer would be conflicted and would need to withdraw for one of the parties (which is inevitably the purchaser). The purchaser would then be referred to another attorney and the conveyancer would ordinarily continue to represent the seller and to conclude the transfer process.

  3. There are other parties that may be under a duty to disclose the existence of historical debt to a purchaser (such as the municipality, seller, or even estate agents). All of these parties are better suited to comply with this duty than the conveyancer, and lumping the conveyancer with this duty would unreasonably affect the interests of the conveyancer.

  4. It was further submitted that a conveyancer is the agent of the seller only in relation to the instruction given to the conveyancer to transfer the property to the purchaser and to do all that is necessary in order to achieve this goal. The conveyancer does not ‘step into the shoes of the seller’ entirely, and as such the conveyancer cannot be held liable or burdened with a duty where the seller should be held liable or burdened with the duty (i.e. in the case at hand this would apply to the seller’s failure to disclose the historical debt to the purchaser before the offer to purchase is signed).

    As support for this contention, the JAA pointed out that a conveyancer who finds out that there is another type of problem with the property (like damp or a leaking roof) is not duly obliged to share this information with the purchaser but must act as if he or she were conflicted as described above. The situation with historical municipal debt attaching to the property is no different and conveyancers should not be treated any differently in relation to this issue.

  5. Further support for this argument can be found in the fact that conveyancers only appear after the sale agreement has already been signed, and are not responsible for making any disclosures or warranties or representation to the purchaser in relation to the property whatsoever. That is done by the seller before the conclusion of the contract. If the Courts were to find that there is a duty on someone to make this disclosure, realistically the duty must be to disclose before the offer to purchase is singed and not afterwards (as the remedies that the municipalities say are available to the purchasers – which are explained above – are actually not effective remedies for a purchaser who finds him of herself in such a situation).


The judgement of the Constitutional Court in this matter is expected to be handed down in a mere matter of months. If the Constitutional Court finds that purchasers cannot be held liable in any way for seller’s historical debt, it is unlikely that the Constitutional Court will consider the issue of where such a duty lies (if indeed it lies anywhere at all). If, however, the Constitutional Court finds that there is a way in which purchasers can be held liable for historical municipal debt attached to the property, then it is likely that we will see the Constitutional Court consider the issue of on whom such a duty lies, as the extent of that duty.


Officials from the Department of Human Settlements will this week visit the Eastern Cape, KwaZulu-Natal and the Western Cape for public hearings on the Property Practitioners Bill and the Home Loan and Mortgage Disclosure Amendment Bill.

The two Bills are aimed at transforming the property and real estate sector.

“The sector is currently valued at about R7 trillion and its subsidised component is approximately R1.5 trillion. Historically disadvantaged people only account for less than five percent ownership and this new law will help ensure a more inclusive and representative sector and protect the consumer,” the department said on Sunday.

The department said the published envisaged laws are public documents and allow for South Africans and practitioners in the property sector to comment and give further inputs.

“The public comments are a necessary requisite to complete the work of the Department of Human Settlements that drafted the amendments following a review of the impact of current legislations and inputs from stakeholders on challenges related to fair lending practices and transformation in the property sector.

“They will further broaden the sector’s operations and reach to historically black communities such as townships where the real estate sector and estate agents’ work has still not stretched to its maximum potential in terms of access, ownership and even the training of new real estate agents in poor communities,” the department said.

The proposed laws encourage professionalisation, accountability and transformation of the sector.

Public hearings will be held in all nine provinces. Last week, the public participation sessions were held in Northern Cape and Free State and North West.

“Communities in these provinces took the opportunity provided by the public hearings to robustly engage and comment to ensure an inclusive outcome that will give the country better laws,” the department said.

Among other issues raised and discussed during the engagements included the promotion of meaningful participation by small businesses, stringent penalties to ensure financial institutions compliance, unfair landing practises by institutions, to assistance given to mortgage defaulters.


The role of renewable energy in generating Africa's power was the topic of discussion in a panel at the TXF Africa Trade Finance Conference in Nairobi, Kenya, chaired by Frances Okosi, partner in the banking & finance practice group at Baker McKenzie. The event brought together senior participants in trade finance including development finance institution, electrical contractors associations, commercial banks, state-owned enterprises, corporate borrowers and developers.

The extent of the power deficit across Africa is well documented and increasing electricity generation across the continent is the focus of a number of initiatives at both national and supra-national level.

The African Development Bank's (AfDB) ‘New Deal on Energy for Africa’ has set as its target universal access to electricity across Africa by 2025. To achieve this target, the AfDB believes 160 GW of new on-grid generation and some 75 million new off-grid connections will be needed, through a mix of conventional and renewable energy sources.

“Our panel discussion focused on how much renewable energy can contribute towards meeting those goals,” explains Okosi. “We considered why renewable energy offers such promise across Africa. The abundance of renewables resources across Africa presents the most obvious and compelling answer. Africa boasts a wealth of opportunities across solar, wind, hydro and geothermal technologies. The continent has well over 10 TW of solar potential, 350 GW of hydroelectric potential, 110 GW of wind potential and an additional 15 GW of geothermal potential.

“In addition, renewable energy can play a big part in reducing the cost of power across Africa. Compared with the cost of small-scale and domestic kerosene or diesel-generated power, used widely across the continent, renewable energy can offer a cheaper alternative.”

The AfDB’s paper ‘The New Deal on Energy for Africa’ notes that a woman living in a village in northern Nigeria spends around 60 to 80 times per unit more for her energy than a resident of New York City or London. Even at scale, with the advances in renewable energy technologies, renewables are starting to compete with conventional energy sources from a pricing perspective.

“The speed and flexibility of off-grid renewable energy solutions was also noted as a major advantage. As an example, we discussed the development of ‘pay as you go’ renewable energy generation for domestic use and SMEs across the continent: small solar powered units can ‘leased’, even with top-ups paid for using a mobile phone. The entry-level units generate enough power to charge mobile phones and provide basic lighting.

“It is acknowledged that in many instances renewable energy may not currently be able to fully meet base load requirements. However, significant advancements are being made in technologies, particularly around increasing renewables storage capacity, and in ‘smart grids’ capable of adjusting generation capacity from multiple sources as the need arises.

“Despite these challenges, our conclusion was that renewable energy will have a major role to play in meeting Africa’s power deficit,” concludes Okosi.


All sectional title schemes are obliged to have two separate funds: a day-to-day administrative fund and a reserve fund and these funds need to be protected and invested wisely to guard the viability of the property.

“It is of utmost importance to assess whether all the money accumulated is protected as well as it should be,”
says Mandi Hanekom, operations manager of sectional title finance company Propell.

All money received by the body corporate must be deposited into an account with a registered commercial bank, in the name of the body corporate. Section 3(1)(g) of the Sectional Titles Schemes Management Act (STSMA) states that the body corporate has the function ‘to open and operate an account or accounts with any registered bank or any other financial institution’. This should be, according to Prescribed Management Rule (PMR) 21(4), an interest-bearing account in the body corporate’s name or a trust account.

Investing funds

Sometimes, however, the owners in a scheme decide that excess money from funds should be invested instead, which can be done only if there is a written trustee resolution to this effect. PMR 21(3)(d) provides that moneys in the reserve fund may be invested, but it should be a secure investment with an institution referred to in the definition of ‘financial institution’ in section 1 of the Financial Services Board Act. ‘Financial institutions’, as defined, includes collective investment schemes, authorised financial services providers and banks.

“The investment of any body corporate funds should be done through an experienced financial adviser,”
adds Hanekom.

Fidelity insurance

In addition, the body corporate must take out insurance ‘for an amount determined by members in a general meeting to cover the risk of loss of funds belonging to the body corporate or for which it is responsible, sustained as a result of any act of fraud or dishonesty committed by a trustee, managing agent, employee or other agent of the body corporate (as stated in PMR 23 (7))’. This is also mentioned in Regulation 15(1) in the Community Schemes Ombud Service Act (CSOSA), which states, ‘every community scheme must insure against the risk of loss of money belonging to the community scheme or for which it is responsible, sustained as a result of any act of fraud or dishonesty committed by any insurable person’.

In terms of CSOSA, the minimum amount of insurance cover must be the total value of that scheme’s investments and reserves as at the end of the previous financial year, plus 25% of the scheme’s operational (administrative) budget for the current financial year. The required fidelity insurance cover must pay for any loss, after reasonable satisfactory proof of the loss is presented, and must not require that criminal or civil proceedings be taken or completed against the insured person (as in the case with some insurance cover).

Fidelity insurance cover is not necessary if the person handling the funds (the managing agent) has his own cover and has provided written proof of the required cover.

“The administrative and reserve funds are the lifeblood of any sectional title scheme and the trustees should do all they can to ensure the protection of the money accumulated therein,”
concludes Hanekom.


The recent case of ArcelorMittal South Africa Limited v NUMSA, unpacked what is meant by avoiding job losses indicating a possible change in section 189 requirements.

Judge Van Niekerk held that s189 of the Labour Relations Act, “Specifically contemplates that prior to a formal invitation to consult being issued, measures to avoid job losses are to be considered and, where necessary, implemented. Indeed, a failure to do so undermines the notion of retrenchment, as a measure of last resort and amounts to breach of this section.”

What does this mean for employers?

The employer sought to restructure its operations in order to avoid retrenchments. It had not issued any s189(3) notices. The National Union of Metalworkers of South Africa sought to halt the redeployments to consult further with ArcelorMittal.

Their application was dismissed. The Court held that an employer must embark on measures to avoid job losses even before a s189(3) notice is issued. Such measures include the redeployment of employees from one job to another.

In light of this recent decision, could an employer offer voluntary severance packages to employees in order to avoid job losses prior to issuing s189(3) notices. Current case authority seems to suggest otherwise.


Technology is advancing much more quickly than most people anticipated even a decade ago. This begs the question as to whether or not our social, economic and political institutions and structures are equipped, or have developed sufficiently, to deal with the ethical and legal challenges that these advancements have brought, and are ever more rapidly bringing.

My view is that the law is not, at present, up to the task. It is true that South Africa started recognising electronic communications as legally valid early in the 21st century, but there have been few developments since then. In this context, the most important piece of legislation passed since the Electronic Communications and Transactions Act came into effect is the Protection of Personal Information Act. This prescribes, in essence, the conditions under which 'personal information' can be collected, processed, stored and reused and ascribes responsibility for the protection of personal information between the parties that come into contact with such information.

But there is an argument that even PoPI (as it is known) is somewhat lacking in the nuance and sophistication needed to tackle the type of issues that might arise in the digital world.

Personal information, which is the key ingredient needed to trigger the application of PoPI, is defined as information relating to an identifiable, living person, including (but not limited to) information about such a person's age, race and sex; his/her biometric information; information about his/her educational or medical history; information about his/her personal opinions, views and preferences; and information that is routinely collected by apps and websites, like online identifiers and location information. It is not clear, for example, that this definition captures images or video of a person when there is no other identifier present (other than the person's face and physical features).

Furthermore, 'big data' is not necessarily concerned with identifying individual users; it routinely aggregates information to give insights into the collective desires, motivations and preferences (both explicit and implicit) of various groups, thereby allowing companies to tailor their products and services and, importantly, their marketing efforts to these groups accordingly.

The recent American elections featured some discussion about the way in which the Democrats and Republicans targeted campaign messaging to sections of the populace using aggregated big data. There was a general unease about the extent to which this sort of practice was socially acceptable.

PoPI is potentially too narrowly framed to deal with either of the examples given above. Recognition of the insights which aggregated data provides, and the uses to which those insights can be put, is fundamental to ensuring that law and policymakers are better equipped to make decisions about the extent to which the legal framework does require amendment or extension.

My intention is not to make some normative claim about the value of technological advances and developments, but rather to draw attention to the fact that our current legal infrastructure has shortcomings in this regard that have not necessarily been appreciated until now. We need a robust debate about these issues, so that we can, if necessary, enact policy to deal with whatever is deemed socially undesirable.


The South African Revenue Service (Sars) has beefed up its transfer fund division to stop multinational companies shifting their profits out of the country to more tax-friendly jurisdictions.

Base erosion and profit shifting

So now medium and large businesses with multinational ties will have to supply the revenue service with more detailed reports of their relationships and transactions with entities residing in other countries. This is part of an the international initiative to stop base erosion and profit shifting by multinational companies.

“Not only does SARS want to stop this from happening in South Africa, it also wants to stop South African companies from doing the same in other countries," says Di Seccombe, Mazars SA head of national tax training.

“A very common way that multinational companies are doing this, is by having their subsidiaries pay them a substantial 'management fee'. The subsidiary can of course deduct this fee from its own income tax, and that money is effectively taken out of the country before there is a chance to tax that profit,” she says.

New requirements for SA companies

The Davis Tax Committee has stated that this is one of the main issues of lost tax revenue in South Africa, and has estimated that the amount of money being bled out of the country totals billions of rand each year. Seccombe points out that South African companies will need to take note of a number of new requirements this year, if their tax returns are to remain compliant.

Firstly, the South African Tax Administration Act requires that a master file, which contains high level information of the entire multinational groups operations in a single document available to all tax authorities where the multinational group has operations, and a local file, which contains information regarding the jurisdictional activities of the multinational entities available to local tax authorities within the jurisdiction, is submitted with corporate tax returns.

Transfer pricing audit

Secondly, in the event of a Sars transfer pricing audit additional mandatory transfer pricing documentation has to be kept in terms of the record keeping provisions as set out in the Act and the regulations issued on 28 October 2016. The regulation requires that specific information is kept where the cross-border related party transactions are in excess of R100m or reasonably expected to exceed the R100m for a transfer pricing audit. “Other transaction specific information should also be kept for cross-border transactions in excess of R5m that are included in the R100m,” Seccombe adds.

Multinational companies, trusts and individuals in South Africa should consider all transactions whether transacted at arm’s length or not, she says.

Seccombe adds that companies that are part of a multinational group may have their transactions within the group scrutinised by Sars.

Country by country reporting

Another thing to take note of is that the South African regulation for CbCR (country by country reporting) requires multinational groups with a consolidated revenue in excess of R10bn to submit a report as set out in the regulation to Sars on an annual basis for years of assessment 1 January 2016 going forward Seccombe says. “The parent entity usually files the report in the parent country, but South African subsidiaries with parent companies in other jurisdictions are still obligated to notify Sars in writing which entity would be filing the CbCR and in which jurisdiction.”

“South African companies that form part of a multinational group will need to make sure to understand its group structure and its CbCR reporting obligations and get the new paperwork in order by 31 December 2017,” concludes Seccombe.


What is a servitude and how can it impact the value of a property? According to property legislation, a servitude is a registered right that someone has over the immovable property owned by another person. The servitude affords the holder the right to do something with the property, even if it may infringe upon the rights of the person who owns it.

If a servitude is held on a property, the owner of the property will be unable to exercise their entitlement to the property in the full capacity. The servitude implies that the property does not just serve the owner, but also another property or person. Because of this, the owner’s rights are somewhat diminished. An example of a servitude would be someone having the right to travel over a portion of another person’s property to get to their property. While not commonplace in metropolitan areas, servitudes are common in rural areas with farms and smallholdings.

  • Cause minimal inconvenience
  • In principle, the holder of the servitude has priority. Essentially this means that the owner of the property may exercise all their usual rights of ownership, provided it does not impede the rights of the servitude holder. The owner cannot exercise any rights that are contrary to the servitude, or grant another servitude which infringes the existing one. While the holder of the servitude has the right to perform all acts necessary to utilise the servitude, they must do so in a manner that causes minimal inconvenience to the owner of the property. It is also vital that the burden on the property is not increased beyond the express or implied terms of the servitude.

    While it may not be an issue for some, many buyers are turned off by the fact that a servitude is held on a property. As a result, servitude can reduce the demand for a property which in turn can have a negative impact on its perceived value in the market.

  • Praedial and personal servitudes
  • Servitudes are divided into two main categories, praedial and personal. How a servitude is classified depends on whether it benefits successive owners in their personal capacity or if it favours the land itself. Praedial servitudes are vested in the successive owners of a piece of land, known as a dominant tenement. The piece of land derives a benefit from another piece of land on which the servitude is held. If the land is sold, the servitude will be passed over to the new owner of the land. If the owner of the property on which the servitude is held decides to sell, they are not required to get permission from the servitude holder, however, the new owner of the property will be required to honour the servitude agreement.

    A personal servitude differs in that it is in favour of one specific person and not successive owners. Once the specified individual passes away or moves on – the servitude falls away. A personal servitude cannot exist past the holder’s lifespan or be transferred to someone else.

    Buyers who would like to find out whether there is a servitude registered over a property can do so by examining the title deed. Otherwise, they will be able to request that information from the estate agent who is marketing the property.


There are internal remedies that might apply in relation to a consumer's dispute with the municipality about municipal debt and should be exercised before approaching a court for assistance in resolving a dispute, following a recent judgment.

What are internal remedies?

In most municipal jurisdictions, the municipality has created bylaws and/or policies pertaining to the manner in which it collects debt and manages its debtors. In these policy documents you will ordinarily find a section (or sometimes several sections) setting out how disputes arising between a municipality and a consumer need to be handled.

The idea is to provide mechanisms for the resolution of the dispute/query in an amicable manner, so that the courts are not flooded with litigation.

Typical internal remedies

The typical dispute resolution process prescribed by a municipality will start with the consumer lodging some sort of query or dispute and giving the municipality a limited period to investigate and resolve this dispute. If that fails, a consumer is normally permitted to appeal the municipality’s decision during the query/dispute process. In many cases, a consumer is also permitted to appeal the municipality’s failure to have investigated or resolved the dispute/complaint. After an appeal process has been finalised, there is normally provision for the consumer to approach a court or the Ombud (where there is an Ombud for that particular municipality).

Appeal process

Apart from anything prescribed in any municipal bylaws or policies in relation to the resolution of disputes, there is a section in the Local Government: Municipal System Act, Section (62)(1), which provides that a consumer can appeal a municipality’s decision, or a municipality’s failure to have taken any decision, to the municipal manager, who will then be responsible for providing the consumer with an outcome in relation to the appeal filed.

This means is that even where a municipality’s policies or bylaws themselves do not contain any internal remedies, a consumer who is unhappy with the decision of the municipality (or the failure of the municipality to take a decision) in relation to any query/dispute must first file an appeal with the municipal manager in terms of section 62 and let this appeal run its course before approaching court to resolve the dispute.

The effect of PAJA

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is enacted to create a framework for parties affected by decisions taken by government (and certain limited private organisations or individuals) to review the decisions in court.

One of the requirements of this act is that a consumer must have exhausted any prescribed internal remedies before approaching a court for assistance in reviewing the decision. This means for the consumer in relation to municipal debt, is that where a municipality has prescribed dispute resolution mechanisms, these (and the appeal procedure provided for in section 62 of the Local Government: Municipal Systems Act) must be followed before a court will be permitted to grant the consumer any relief.

However, section 7(2)(c) of PAJA provides a mechanism for a consumer who has not followed a prescribed dispute resolution mechanism to apply to the court for condonation of its failure to have done so. The court has a wide discretion to grant this kind of condonation but will not normally do so unless the consumer has good reason for having failed to exhaust internal remedies.

Is it mandatory to use internal remedies?

The answer to this depends on what the consumer is trying to achieve. If the consumer wants to ensure that ultimately he/she/it will be entitled to approach a court for assistance and to obtain relief from that court in relation to the dispute, then the answer is yes – it is mandatory for a consumer to first make use of the internal remedies to attempt to resolve the dispute before approaching court for assistance.

However, if the consumer merely wants to liaise with the municipality in relation to the dispute (and does not intend to take the matter to court or to the Ombud) then although it is recommended that a consumer follow the prescribed dispute resolution procedures in order to ensure that the dispute is formally recognised and attended to by the municipality, it is not absolutely mandatory to follow the prescribed process.

For instance, a consumer who a billing dispute might not want to log a query and then wait 21 days for the City to investigate and resolve the query, and then file an appeal 21 days thereafter if nothing has happened. That consumer might chose to rather set up a meeting with the appropriate person at the municipality’s offices, or send emails to the municipality’s customer service address, or speak to the ward councillor about the issue.

Although one would expect all municipal staff members to know the prescribed procedures for dispute resolution and stick to them, and to advise consumers who are acting outside of those procedures of the ‘proper channels’, none of these ‘outside attempts’ to resolve the billing issue are ‘wrong’ or irrelevant – every attempt may result in a resolution of the dispute. It is just that one cannot rely on them in court if one has not also followed the prescribed dispute resolution process (ie if one has not exhausted internal remedies).

The Ferox Case

In an unreported judgment of the Johannesburg High Court (Gauteng Local Division) the court decided that a consumer was not entitled to the relief sought (which in this particular case happened to be a reconciliation of the municipal account) because the consumer had not followed the prescribed dispute resolution mechanisms (internal remedies) set out by that particular municipality.

This is a particularly interesting decision because the court was not asked to review the decision of the municipality in terms of PAJA, but was rather asked to order the municipality to reconcile the municipal account based on the common law remedy of statement and debatement. Statement and debatement is a process in terms of which the creditor and debtor sit down and go through the invoice in question and ‘debate’ their issues in relation to it. Up to now, this remedy has often been used to compel municipalities to investigate and resolve problems with municipal billing.

Because there is no requirement in terms of our common law for internal remedies to be exhausted before statement and debatement can be ordered by the court, the court appears to have set a precedent to the affect that the common law remedy to statement and debatement is only available after the consumer has exhausted internal remedies.

There is room, however, for an alternative interpretation of the judgment. The court explained that the application before it was for statement and debatement in terms of the common law but that in this case, the relationship between the consumer and the municipality was governed not only by common law but also by specific legislation. Part of that legislation (ie the bylaws/policies providing for dispute resolution and section 62 of the Local Government: Municipal Systems Act) specifically provided for mechanisms to be used by a consumer when raising and resolving a dispute with the municipality.

It is thus also possible to interpret the judgment as holding that where a consumer in relation to municipal debts specifically applies to the court based on the prevailing legislation for a reconciliation of the account (i.e. statement and debatement), that the consumer must first have exhausted all applicable internal remedies before approaching the court for relief. The later interpretation is the more favourable one, seeing that it does not make inroads into the rights of the common law remedy of statement and debatement.

The authors would like to thank Bertus Boshoff of Vining & Camerer Inc. for bringing this judgment to their attention and for his contributions in developing the law in this case.


However this judgment is interpreted, its impact is essentially the same – a consumer needs to follow the prescribed dispute resolution mechanisms before approaching a court for assistance in relation to disputes pertaining to municipal debt, or must apply to the court for condonation for not having done so. Failure to follow internal remedies or ask for condonation for not having done so may result in the case being dismissed.


Analysts have welcomed the Competition Commission's call for a wider investigation into competition in the cellphone data and voice market, saying this could further stimulate competition and level the playing field for small operators.

The commission's comments come after it decided not to proceed with a complaint, filed by Cell C against MTN and Vodacom, that the price differentials applied by Vodacom and MTN for calls made to the same network compared with those to different networks prevented competition.

The cellphone services industry is dominated by MTN and Vodacom and there has been speculation of possible collusion in pricing practices.

"As the companies are now competing for subscribers based on the services they offer, there have been instances where strategies adopted have been similar to price wars, which have negative knock-on effects for smaller, more agile and innovative players in the market, thereby limiting their growth trajectories," said Anesu Charamba, programme manager of digital transformation practice at Frost & Sullivan.

Charamba said that in the long run, "the risk of an oligopoly determining the trajectory of the sector will need to be addressed, to which this investigation could be relevant".

BMI-TechKnowledge MD Denis Smit said a proper study into the competitiveness of the cellphone industry would be valuable for all the interested parties in the industry as well as the consumer.

Recently, the biggest complaints from cellphone subscribers have been about higher data prices.

The Independent Communications Authority of SA is conducting a study into internet data services and pricing, which when completed will guide it on how it should proceed in regulating the market.

Smit said that although Cell C's complaint was dismissed, the fact that the commission recommended a study into the competitiveness of the sector, showed that the application was worth pursuing further.

"In a way, this is a Pyrrhic victory for Cell C," he said.

Source: Business Day


Social media users often share or like funny memes, embarrassing videos and stinging remarks about people without considering the consequences. Even seemingly innocent reposts and comments could increase a social media user's risk of being held liable for defamation.

Good name and reputation

“In law, every person has the right to a good name and reputation, which is the respect and status he or she enjoys in society. Any action that has the effect of injuring a person’s status in the community is defamatory, and the doer may therefore be held liable,” Johannes du Plessis, legal advisor at RBS says.

He explains that this liability includes defamation committed by way of sharing videos, pictures, jokes, remarks or general information about a person via social media. “According to case law, it is irrelevant whether the defamatory allegation is true or false. It also does not matter whether the defamatory material originated from you, or whether you simply repeat, confirm, share, or even draw attention to it. You are still at risk of being held liable,” he adds.

Case law

According to case law, whether the good name of the person involved has in fact been infringed is irrelevant when determining wrongfulness. “The only relevant question is whether, in the opinion of a reasonable person, the reputation of the person concerned has been injured. It is thus an objective approach. In a civil case, a person may be liable for intentionally or negligently injuring defamed persons’ good name, reputation and dignity. In a criminal case, a person may be criminally liable for intentionally injuring defamed persons’ good name, reputation and dignity,”

Wide application

Du Plessis says that this wide application of defamation, makes it very easy for social media users to be held liable.

There are also many examples in South African case law that demonstrate the risks of careless social media behaviour. “All persons who shared a defamatory item may be jointly and severally liable in solidum for the same damage, according to the Apportionment of Damages Act. An employer may also be held liable for the defamatory actions of an employee,” he says.

“This is not a hypothetical discussion, and South African courts have already seen cases where people’s social media activity had cost them. The courts have ordered individuals, whom the court held to have defamed another person on social media, to pay tens of thousands in compensation for the damage.

Jointly and severally liable

The courts have also held persons who were tagged in the defamatory comment, to be jointly and severally liable therefore, because such persons failed to take steps to actively distance themselves therefrom,” Du Plessis states. The courts have further held persons, who have intentionally defamed other persons, to be criminally liable for injuring defamed persons’ dignity.

The implication of this is clear. “Always remember that it is very easy for you to be held liable for defamation by means of social media. So do not put yourself at risk by posting, sharing or even calling attention to defamatory material on social media. Finally, to guard against the risk of liability for defamation, a social media user should ensure that he or she is sufficiently covered by defamation insurance,” Du Plessis concludes.


After five years of clamping down on unregistered colleges, the Department of Higher Education and Training is battling to shut down these bogus institutions.

Since 2012 the department has laid 21 criminal charges with the police against the owners of the bogus colleges across the country.

Out of the 21 cases, one owner fled the country stalling the case, three have no case numbers and the rest are still under investigation. The colleges are accused of making false claims about the qualifications they offer and operating without registration.

The Times could not reach any of the investigating officers.

The department admitted it was aware that several bogus colleges had resurfaced under different names in different locations. In 2013 the International Institute for Tax Finance, a bogus college based in Fourways, Johannesburg, was shut down and later reopened as The Thomas Jefferson School of Law.

Education spokesman Madikwe Mabotha said an awareness campaign was ongoing to alert the public of bogus colleges.

"This is the most effective way to ensure that the owners are arrested, charged and convicted and to also ensure that these colleges do not reproduce themselves."

Caroline Long of the faculty of education at the University of Johannesburg said the department needed a multifaceted approach to monitor college standards.

"There is a bigger problem here. We need to have a larger vision for our country and its people."

Long said students were desperate to get into tertiary institutions which should be working on a larger vision to address the demand.

Source: The Times


Employers often rely on clauses within contracts of employment as being a watertight basis for taking what it perceives to be lawful action against employees. This may not always be the case.

In the case of EWN v Pharmaco Distribution in the Labour Court, the employee suffering from bipolar disorder refused to undergo medical testing despite her contract of employment containing a clause that provided that she had to undergo medical testing whenever the employer deemed it to be necessary. The employer ultimately dismissed the employee for disobeying this instruction and the court found that her dismissal was automatically unfair.

In this case, senior management of the employer became aware of the employee’s bipolar condition after she disclosed her bipolar status to the employer during disciplinary proceedings. The employer then required her to undergo medical testing to determine whether she was fit to perform her tasks because of her bipolar status.

Refusal to undergo medical testing

The employee refused to undergo medical testing and was later charged for a ‘particularly serious and/or repeated wilful refusal to carry out lawful instructions or perform duties’. The instruction she failed to perform, and which ultimately led to her dismissal, was to present herself to a psychiatrist, for a medical examination. The employee claimed that the instruction was unlawful, while the employer contended that the instruction was reasonable and lawful in terms of her contract of employment.

A clause in the employee’s contract provided, ‘The employee will, whenever the company deems necessary, undergo a specialist medical examination at the expense of the company, by a medical practitioner nominated and appointed by the company. The employee gives his/her irrevocable consent to any such medical practitioner making the results and record of any medical examination available to the company and to discuss same with such medical practitioner. The above shall include and apply to psychological evaluations.’

EE Act prohibits medical testing

The main issues the court had to decide on were whether the provision was enforceable; and whether her dismissal for failing to submit to a medical examination was automatically unfair in terms of s187(1)(f) of the Labour Relations Act.

In its decision, the court found that the clause in the employee’s contract of employment was in breach of the provisions of s7 of the Employment Equity Act (EEA) and found that the clause was of no legal force or effect.

Section 7(1) of the EEA prohibits the medical testing of an employee and aims to prevent unfair discrimination on the grounds of an employee’s medical condition. Subsection (a) and (b) however provides that medical testing will be permitted when legislation permits or requires medical testing or when the testing of an employee can be justified in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

Unfair discrimination

The court held that the section provides no exception based on the consent of the employee in an employment contract and that medical testing will only be permitted in the circumstances set out in paragraphs (a) and (b) which ultimately did not find application in this case. The court also found that the instruction to undergo psychiatric testing because of the employee’s bipolar condition amounted to unfair discrimination in terms of s6 of the EEA. The dismissal of the employee for refusing to undergo a psychiatric evaluation to determine her fitness to work was found to be an automatically unfair dismissal in terms of s187(1)(f) of the LRA.

Employers are advised to note that where an employee’s contract of employment contains clauses pertaining to the consent by the employee to undergo medical testing, that those clauses will not necessarily protect the employer. It is important for employers to bear in mind that medical testing will only be permitted in the circumstances as set out in subparagraphs (a) and (b) of s7 of the EEA as exceptions.


“Finalising the estate of a deceased relative is a fairly complex process, one which is made infinitely more costly and time consuming if said family member died intestate (without a valid will), especially if a significant asset such as a property is involved,” says Swain.

Not all wills are created equal

“Even if a homeowner has written a will, it may not be valid. In order to ensure that their final testament is legally binding, it needs to meet the requirements outlined in Wills Act 7 of 1953,” explains Swain.

    According to the Wills Act 7 of 1953 three conditions need to be met for a will to be valid:
  • The writer of said will has to be over the age of sixteen.
  • The will must be in writing.
  • Each page, including the last has to be signed by the testator. The final page also needs to be signed by two competent witnesses (who have to be fourteen years of age or older). All witnesses need to be present at the same time at the signing of the will and cannot be beneficiaries of the will.

What happens to a deceased’s property?

“I strongly recommend that home owners ask an expert attorney to draft their will, stipulating who is to inherit, appointing an executor, and to advise the home owner as to possible estate duties, capital gains tax and the cost of finalising the estate so that they can prepare properly – ensuring that their will is valid, their dependents are provided for and the costs determined, and limited where possible,” advises Swain. “Each estate is unique but there are situations where no capital gains tax or even estate duty will apply and it’s best to consult with an attorney to do proper estate planning – sooner rather than later. Remember, if this wasn’t done properly the owner will no longer be able to make amends, hence the importance of sorting this out in time – for the sake of the people left behind.”

Who inherits

If the owner has indicated who will inherit, then the matter is simple (if the will is not contested). However, if no valid will was in existence and the estate is solvent, the assets will be disposed of as per the Intestate Succession Act no 81 of 1987. If no provision has been made for taxes (and limiting them where possible) the burden on the inheritors could be significant.

Selling property from a deceased estate

It might be that assets need to be sold to finalise the outstanding debt in the estate, or that the heirs want to sell it.

Law firm Smith Tabata Buchanan Boyes (STBB) explains that should a home owner have drafted a valid will and appointed an executor of their estate, “the nominated executor must first establish his or her authority to act on behalf of the estate by applying for and obtaining Letters of Executorship from the Master of the High Court”.

“Establishing an executor’s authority can take some time, depending on the case load at the High Court, but not having nominated one means that the heirs will need to wait for the court to appoint an executor which can well cause significant further delays,” believes Swain.

It is important to note that a deceased’s property cannot be sold before the executor has been formally appointed by the Master of the High Court. STBB indicates that, “No matter how great the opportunity, a purported sale will not be valid if the executor signing off has not been appointed, nor will a later signature ratify the sale.” Swain also points out that the written consent of all heirs has to be obtained when selling property belonging to the deceased’s estate - upon the consent of the Master of the High Court.

Normally an executor will first determine what, if any outstanding debt the deceased had upon the time of their passing – that debt has to be settled first, which may well necessitate the sale of the family home. “I would strongly advise home owners to share all the relevant documentation (from the will to bank statements and the like) with a trusted family member / executor so that they know where everything is, and how to proceed. Should the home need to be sold, this will speed up the process considerably,” advises Swain. “However, even with everything in place, heirs need to know that concluding an estate can be a lengthy process and that it will be some time before the executor will be able to proceed on a property sale, if needed.”


In our analysis on the hearing of the matter of Black Sash Trust v Minister of Social Development and Others, we cautioned that private entities would be well-advised to seek guidance and advice regarding the obligations they intend to undertake in terms of public sector tenders.

On Friday, 17 March 2017 the Constitutional Court (Court) delivered judgment in the case and illustrated how far a private company’s obligations may reach when acting as an organ of state and performing constitutional obligations.

The Court was asked to make an order to ensure that the South African Social Assistance Agency (SASSA) complies with its constitutional obligation to provide social assistance to the beneficiaries of social grants. In its judgment, the Court found that the constitutional obligations on SASSA and Cash Paymaster Services (CPS) do not terminate together with the current contract for the payment of social grants to beneficiaries on 31 March 2017.

The threatened breach of the right to social security of the beneficiaries engages the Court’s remedial power to make a just and equitable order under s172(1)(b) of the Constitution. In exercising this power to protect the right, the Court extended the validity of the extant contract between SASSA and CPS for a further 12 months on the same commercial terms.

The extension of the contract is a significant finding for private sector companies tendering for public sector work. It shows that where a company assumes constitutional powers and obligations, the Court may step into the commercial arrangement and order fulfilment of those obligations, notwithstanding the company’s commercial interests. More specifically, the company will be liable for costs for which it may not have budgeted and, as is the case here, there may be no certainty regarding price escalation.

In its order, the Court made provision for CPS to approach Treasury to renegotiate the financial terms of the contract. In retaining its supervisory jurisdiction, Treasury must report its recommendations to the Court for approval. Ultimately though, the price escalation lies in the hands of the Court. This is not an ideal commercial arrangement for private companies in this position.


Judges in South Africa are sacrificing their salary increases for the 2016-17 financial year, a move that was welcomed and commended yesterday, 9 March 2017, by MPs in the portfolio committee on justice and correctional services…

Committee chairman Dr Mathole Motshekga said: "The committee commends the judiciary for this decision.

"It shows not only responsibility but also sensitivity. The judiciary is leading the way in belt-tightening to save resources in favour of the masses and the poorest of the poor."

Judges' salaries range from R1.7-million a year up to R2.7-million for the chief justice, according to pay scales published in March last year.

Constitutional Court judges earned R2.1-million.

Source: TMG Digital/Herald


Finance Minister Pravin Gordhan plans to amend tax laws to compel South African Revenue Service commissioner Tom Moyane to improve his tax collection accountability and provide National Treasury with the information it requires for planning, Treasury deputy director-general Ismail Momoniat said on Wednesday.

An amendment broadening and strengthening existing sections of the Income Tax Act and the Value-Added Tax (VAT) Act is included in the draft Rates and Monetary Amounts Amendment Bill, which incorporates the tax changes announced in the 2017/18 budget tabled in Parliament by Gordhan last week.

Momoniat said in a briefing to Parliament's two finance committees, the amendments were necessary because of tax collection challenges.

Gordhan has expressed concern over tax collection by SARS and told journalists ahead of his budget speech in Parliament last week that some of the R30.4bn shortfall in tax revenue in 2016/17 was due to SARS not fulfilling its duties. He said he had had several engagements with SARS senior management to discuss the issue.

Moyane has strongly rejected these statements.

Currently, Section 107 of the Income Tax Act and Section 74 of the VAT Act only apply to certain taxes.

The proposed amendments would expand this to cover most taxes, Momoniat told MPs. Treasury chief director of legal tax design Yanga Mputa said these sections allowed the minister to prescribe regulations regarding the duties of people employed to administer the Income Tax Act in order to ensure better tax collection.

These sections would be amended to make the information the minister may require more explicit. Mputa said the aim was to improve tax collection and transparency.

In the past, Gordhan has complained about the lack of accountability by SARS on matters of general administration and about not being informed by Moyane about important developments within the tax authority. More recently, there have been concerns over whether SARS has withheld VAT refunds in order to boost its tax revenue collection.

Momoniat said that both legal provisions explicitly pointed out that the minister of finance could make regulations in relation to information he or she deemed necessary from the commissioner in order to ensure transparency and reporting on tax collection.

Source: Business Day


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The potential tie-up of Cell C and Telkom could boost the government's plans to increase connectivity to all citizens, analysts said on Wednesday.

It emerged this week that Telkom might make another bid for Cell C, which was downgraded in January by ratings agency Standard & Poor's for missing payments to creditors. Cell C is already in discussions with Blue Label, which wants to buy 45% of the business.

The government, which owns 39% of Telkom, wants every citizen to have access to broadband coverage and services in the coming years.

Anesu Charamba, team leader for information and communication technologies (ICT) at Frost & Sullivan Africa, said the government would gain a significant presence in the mobile market, which could be used to increase connectivity to all citizens, especially in rural areas.

He said he believed the Independent Communications Authority of SA would not have a problem approving of this deal, as this would ensure that all three operators were on the same level of competition in terms of subscriber base, capital and spectrum.

Naila Govan-Vassen, senior ICT analyst at Frost & Sullivan Africa, said the transaction would boost Telkom's footprint in the mobile market.

Telkom already owns a mobile network business, Telkom Mobile, but it is smaller than Cell C.

The deal would push the combined unit's market share to about 30%, and offer competitive mobile services to enterprises and consumers, said Govan-Vassen.

"Offering services beyond fixed-line services would lay the foundation for Telkom to provide quad-play services in the long term, which many of the global players are already exploring,"

she said.

Source: Business Day


If you don't want to be tripped up in meetings or have the wool pulled over your eyes by your employees when it comes to money matters you need to make sure you understand the basics of accounting.

There are many misconceptions around basic accounting that cause trouble for businesses and keep non-financial managers from spotting potential areas of risk in their business operations.

“Basic accounting can be really, well, basic,” says Associate Professor Mark Graham from the UCT Graduate School of Business. “You don’t need a degree in finance to understand it. The trick is knowing what you need to know, and parking the rest. You can’t be a senior manager or an entrepreneur without having a good grasp of the fundamentals.”

He explains that some of the common misconceptions around accountancy are:

  1. Misconception #1: You need to understand debits and credits to understand accounting

    No, you do not. Accounting can be understood by thinking and talking in terms of specific accounts increasing or decreasing. “Nevertheless, it is true that accountants talk in terms of debits and credits, so it can be helpful to speak in their language,” Professor Graham says.

  2. Misconception #2: A debit is a bad thing

    A debit –which is merely an accounting term for one side of an entry, is neither good nor bad. If you buy a car (i.e. an asset), the resulting debit would presumably be a good thing, while if you got a speeding fine (i.e. an expense), the resulting debit would more likely be a bad thing.

  3. Misconception #3: There is a standard set of terminology in accounting

    While there is a movement towards some standardisation of the language of accounting, many variations exist, says Professor Graham. For example, the following terms generally have the same meaning: profit and earnings; inventory and stock; accounts receivable, trade receivables and debtors; accounts payable, trade payables and creditors; bank and cash; retained earnings, retained income and accumulated profit. This means not being confused by the jargon, of which there can be a lot of in accounting.

    “Accounting is the language of business and financial statements are the scorecard,” says chartered accountant Michael Harber’, a lecturer at UCT’s College of Accounting. “There can be no question that to be successful in business, it is necessary to be able to speak the language and know how to tell the score.”

  4. Misconception #4: There is a “perfect” debt ratio

    A debt ratio is defined as the ratio of total (long-term and short-term) debt to total assets, expressed as a decimal or percentage. To determine whether a ratio is good or bad, one must consider the particular business, says Harber. Businesses that are not cyclical and which have stable profits may be able to absorb more debt as they do not face the risk of being unable to pay their interest because of a downturn in profits. Another consideration is the stage of the economic cycle in which the business finds itself. If a business anticipates high profits when interest rates are low, the business could avail itself of more debt to take advantage of the positive effects of leverage. However, when interest rates rise and or when lower profits are expected, the same business should perhaps reduce debt levels to lower the risk of not being able to meet interest payments.

    Professor Graham says that debunking these and other basic accounting myths is part of the four-day Finance for Non-Financial Managers Programme, which he runs at the GSB. Basic accounting takes up one of the four days, during which the Big Five are covered. “The Big Five of accounting are assets, liabilities, equity, income and expenses. Each of these relates differently to each company, corporation or partnership.

    “A lot of what is considered basic accounting is really straight-forward and common sense, but it is shrouded in complicated language. This often confuses and intimidates newcomers to the world of finance. So we help people to see what is important to them in terms of basic accounting and how it relates to their business interests.”


Gauteng Premier David Makhura has placed the Head of the Department of Health, Dr Tiego Selebano, on precautionary suspension in line with the recommendation of the Heath Ombudsman, Professor Malegapuru Makgoba.

The Gauteng Provincial Government on Wednesday said the Director of Mental Health in the department, Dr Makgabo Manamela, has also been served with a notice of intention to suspend her.

In line with the public service regulations, the Director has 48 hours to respond and give reasons why she should not be suspended.

“The suspension and notice of intention to suspend have been effected in line with recommendations of the report released last week by Makgoba following the investigation into the circumstances surrounding the deaths of mentally ill patients in Gauteng,” said the provincial government.

The report revealed that 94 mentally ill patients died after being removed from the Life Healthcare Esidimeni to 27 non-governmental organisations.

Makgoba investigated the matter at the request of Health Minister Aaron Motsoaledi late last year. He was also requested to advise on a way forward.

Upon the release of the report, it was announced that Qedani Mahlangu had tendered her resignation as the Gauteng MEC of Health and a member of the Gauteng Provincial Legislature. Dr Gwen Ramokgopa was sworn in as a Member of the Gauteng Provincial Legislature and appointed as MEC for Health on Monday.

The Premier has appointed Dr Ernest Kenoshi as the Acting Head of Department of Health.

Dr Kenoshi is currently the CEO of Steve Biko Academic Hospital.

“His long track record in public healthcare sector will assist in stabilising the department, strengthen its leadership and ensure the achievement of better health outcomes in the province,” said the provincial government.

Meanwhile, the task team consisting of senior officials; specialists in the area of mental health: doctors, psychiatrists, psychologists, nurses, occupational therapists; civil society organisations and family representatives, are continuing with their work to inspect the various NGOs that have patients who were transferred from Life Esidimeni.

“Twenty NGOs have been visited so far and this process will be concluded by Friday. The team is also working towards identifying institutions that are well-equipped to care for the mental health patients in compliance with the Mental Health Care Act (2002).

“During the inspection, the members of the task team are also checking and examining some of the patients. Family members are constantly engaged on these developments and have representatives in the advisory teams.”

Premier Makhura has reiterated that he will continue to urgently implement the Health Ombudsman’s recommendations without any reservation or delay.


2017 looks set to bring about unprecedented change in South Africa when it comes to leave relating to the birth or adoption of a child.

A fresh approach to maternity leave has already been sanctioned by the Labour Court, one that goes beyond the traditional notion that maternity leave should apply to biological mothers only. This groundbreaking development, which is already part of South African law, is discussed below. Part 2 of this ENSight looks at an even more dramatic legislative shift, which could soon see fundamental changes to the country’s employment law.

This widening scope of leave could have significant cost implications for employers. To mitigate this, and to ensure that businesses are well prepared to deal with this new leave environment, employers will invariably be required to review and, in most instances, amend and update their policies, to keep pace with these developments in the law.

The MIA case

Section 25 of the Basic Conditions of Employment Act, 1997 (the “BCEA”) states that “[a]n employee is entitled to at least four consecutive months’ maternity leave.” Historically, such leave has only been afforded to biological mothers. However, more recent developments in South African law suggest that a broader and more gender-neutral approach should be adopted by employers to give effect to the constitutional right to equality.

In the judgment of MIA v State Information Technology Agency (Pty) Ltd, the Labour Court was required to determine whether the employer unfairly discriminated against one of its male employees by denying him maternity leave. The employee was a homosexual man who was a legally recognised parent of a child under a surrogacy agreement entered into in terms of the Children’s Act, 2005. He was to take on the role of primary caregiver of the child. His employer rejected his application for maternity leave, arguing that maternity leave was available to female employees only.

The Labour Court acknowledged that maternity leave is meant to give biological mothers an opportunity to recover from the physiological effects of childbirth; but it went further in emphasising that maternity leave for primary caregivers must also take into consideration what is in the best interests of the child. The Labour Court thus ordered that the employee be granted maternity leave and pronounced that employees in a similar position (whether male or female) should be granted maternity leave on the same terms as biological mothers.

    From this judgment, various principles can be gleaned (which point to the direction in which the law is evolving) in order to give effect to the right to equality when considering parental leave:

  • employers should adopt a gender-neutral approach to granting maternity leave to employees;
  • regardless of whether the employee gives birth to the child, an employee (of any sex or gender) should be entitled to maternity leave if that employee is to be the primary caregiver of the child and is either the child’s biological parent or parent by law;
  • however, the statutory entitlement to maternity leave in these circumstances will arguably expire once the child is four months old. So, a primary caregiver of an adopted child who is older than four months might not be entitled to demand maternity leave in terms of section 25 of the BCEA; and
  • no other parent must be taking maternity leave or playing the role of primary caregiver of the child during the period of maternity leave.

As the Labour Court stated that one of the objectives of maternity leave is the promotion of the best interests of the child, it is possible that, in the future, the law may develop even further to allow maternity leave to a non-parent primary caregiver of a child. If, for example, the biological mother dies during childbirth, a surviving grandparent might well argue that he/she has a legal duty to take care of his/her grandchild and that it would be in the child’s best interest for that grandparent to be granted maternity leave in those circumstances.

What the MIA judgment means for employers

In light of the Labour Court’s pronouncements in the MIA case, employers should begin reviewing and revising their maternity leave policies to conform with the above four principles, given that most of these policies were formulated before the MIA case and only envisage biological mothers as being entitled to maternity leave.

Existing maternity leave policies should be re-drafted in a more gender-neutral manner, without assuming that every applicant will be a biological mother. Biological mothers will, however, continue to constitute the vast majority of applicants and certain aspects of maternity and pregnancy will, of course, only apply to biological mothers.

Human resources managers should be alive to these developments in the law. This will enable them to deal appropriately with applications for maternity leave going forward, given that the law will increasingly give recognition to different types of family structures beyond the traditional family.

The need to amend the law was recognised by the Labour Court in the MIA case, in which the judge stated that “in order to properly deal with matters such as this, it is necessary to amend the legislation and in particular the Basic Conditions of Employment Act”. As set out in part 2 of this ENSight, this is already happening.

This article was first published by ENSafrica on 24 January 2017


This year will bring with it market conduct legislation for all South African financial institutions, which is arguably the single most significant regulatory reform for the sector that the country has ever experienced.

The Financial Sector Regulation Bill, which is currently before parliament, is expected to be enacted during the first quarter of 2017. Once enacted, the Bill will establish and give effect to the two new regulatory authorities. As it pertains to market conduct, the Financial Services Board (FSB) will be dissolved and replaced by the Financial Sector Conduct Authority (FSCA) which will assume its new market conduct regulatory mandate.

Need for stronger regulatory oversight

To give perspective, market conduct is not new in South Africa and our regulators have been grappling with how to ensure the fair treatment of customers for years through existing financial sector specific legislation. While there has been some progress in this regard, persistent and pervasive market conduct challenges and practices, unfair treatment of customers, and poor customer outcomes in South Africa’s financial sector have highlighted the need for stronger regulatory oversight of how institutions conduct their business and treat their customers.

The current legislative framework is considered to be fragmented, inconsistent, and incomplete across the financial sector and too institutionally focused (as opposed to functionally focused), which in turn compromises the effective supervision of market conduct by the regulators.

As such, it was identified that the need for a holistic and coordinated market conduct regulatory framework that applies consistently across the financial sector can best be achieved through structural change to the regulatory framework and through the creation of a dedicated market conduct regulator – the FSCA.

Market conduct will introduce a distinct shift in the manner and approach to the regulation and supervision of the financial services industry by the FSCA, and a change in what institutions will need to do to ensure compliance.

Principle-based approach

The FSCA will move away from a rules based, reactive, tick-box compliance approach, to a principle based, forward looking, pre-emptive, outcomes focused and risk-based approach. The FSCA is going to want to see and understand institutions’ governance structures, risk controls, corporate culture and their business practices - institutions will need to objectively demonstrate to the FSCA how they are ensuring the fair treatment of customers.

Institutions should, as a first step in their market conduct journey, perform an assessment of their business model and strategy with the aim of identifying and assessing those conduct risks prevalent in their business. To be able to manage, monitor and measure conduct risks, those conduct risks must first be identified and assessed.

Then of course, institutions should implement the necessary governance structures, policies, processes and procedures to be able to manage, monitor and control conduct risks. A market conduct risk framework should be established, within which the governance structures and policies will operate.

Organisational culture at the root of market conduct

But it is not sufficient that institutions have the governance structures and risk controls in place to manage market conduct. It is not enough that management and staff are trained on these risk controls. To properly implement market conduct, all management and staff must understand and appreciate what market conduct is, the basis or rationale for it, and support the need for its introduction into the business. This is referred to as the organisation's culture.

Regulators around the world are identifying that risk controls and compliance management systems are not enough to resolve misconduct issues. Culture is being seen as a root cause for continued market conduct failings. Improved market conduct requires improved corporate culture. Institutions must be able to reflect that it is being taken seriously and addressed. The FSCA will want to see commitment from institutions to improving their corporate culture and that the fair treatment of customers is central to it.


The Department of Basic Education (DBE) says it is launching an appeal with immediate effect following the judgment handed down by the Thohoyandou High Court in Limpopo on Saturday, 14 January 2017.

Umalusi instructed the department to withhold the matric results of learners at New Era College pending an investigation by the Hawks and the department's own internal processes.

New Era is an independent school owned by Tinyiko Elphas Khosa, the accused in the matter involving the leaking of Maths Paper 2 in Giyani.

Learners at this privately owned school took the department and Umalusi to court demanding the release of their results.

The department on Sunday expressed disappointment over the judgment and said it is launching an appeal in the interest of protecting quality education and the integrity of its examination system.

It said the effects of the judgment are that the DBE and the Limpopo Education Department are forced to release the results of the implicated learners from New Era College in Malamulele.

“We are gravely concerned about court decisions which undermine our efforts to provide quality education to learners.

“The public can be assured that we will do everything in our power and within the ambit of our Constitution and laws to protect quality education and the integrity of our examination system.

“We are extremely disappointed because there's evidence indicating that there was wrongdoing and a person was arrested on the matter.

“There's also evidence that shows learners had access to the examination question paper before it was written.

“This judgment is compromising our examinations and as a result, we will advise the province and Umalusi to appeal.”

The department said the judgement has the potential of sending the wrong message that pupils can cheat in the exams and then go to court to force the department to hand over their results, even though they might be guilty.

“We appreciate the work done by the Hawks thus far and we are confident that their investigation will help us root out the corruption that has the risk of tarnishing the credibility of the examination.

“It must be clear that those who cheat in examinations will be dealt with harshly.”

The department said it will explore all possibilities to protect the integrity, image and profile of the National Senior Certificate (NSC).

The department and its stakeholders will also review the policies and regulations that govern the management of irregularities in order to strengthen the examination system.


What the legislation has to say about the use of electronic documents, signatures and communication

The way in which business is conducted globally has undergone radical change. One of the main reasons is the telecommunication revolution, particularly within the area of electronic communication. The new Companies Act 71 of 2008 ("Companies Act") has modernised South African company law by addressing various aspects not adequately dealt with in the previous act, including the use of information in electronic form, electronic communications and technology.

The Companies Act now enables companies to use technology and electronic form of documents and communications to save businesses time and money in the following 5 ways :

1. Original documents – Where the Companies Act requires an original document, an unaltered electronically generated copy of a document may be substituted for the original. However, this does not apply to share certificates.

2. Notices – Notices in terms of the Companies Act, such as a notice of a shareholders meeting, may be given by electronic transmission, but only if the notice is transmitted directly to that person, and it is possible for the recipient to conveniently print such notice at a reasonable cost. It is therefore possible to give shareholders notice of a meeting by e-mail.

3. Meetings – Directors and shareholders can now participate in meetings through electronic communication such as Skype or video conferencing. This could save businessmen much time and effort in today’s fast paced lifestyle.

4. Document retention and access – The Companies Act requires companies to retain certain documents, records or statements such as a copy of its Memorandum of Incorporation and accounting records. It is sufficient if an electronic original or copy of the document is retained, as provided for in the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”).

According to the ECTA, a company will meet the requirement of the Act to retain information if the information is accessible "so as to be usable of subsequent reference"; it is in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and the origin and destination of that data and the date and time it was sent or received can be determined.

It is furthermore possible to inspect a document filed under the Companies Act which is open for inspection, or a certificate from the Commission as to the contents of such a document filed and open for inspection, through an electronic medium approved by the Companies and Intellectual Property Commission. You are therefore able to view documents such as the company’s Memorandum of Incorporation, any rules made by the company, or a register of directors online through a portal on the internet or by receiving it on e-mail.

5. Electronic signatures – Where the Companies Act requires a document to be signed or initialed, such as a resolution or financial statements, the signatory may sign or initial by using an electronic signature as provided for in the ECTA. It will be sufficient to merely use an electronic signature and not an advanced electronic signature, as the Companies Act provides that you may use an electronic signature "in any manner provided for in the ECTA".


BRUSSELS, BELGIUM: Apple on Monday, 19 December 2016, launched a legal challenge against a landmark EU decision that the tech giant pay billions in back-taxes to Ireland, claiming the EU has ignored the law.

The European Commission, the EU executive arm, in August ordered iPhone maker Apple to reimburse a record 13 billion euros ($14 billion) in unpaid taxes in Ireland.

The EU, led by its competition chief Margrethe Vestager, accused Ireland of handing Apple a secret tax deal that allowed the iPhone maker to enjoy almost zero tax on all its sales worldwide for more than a decade.

The deal was in breach of the EU's state aid rules, argued Vestager, a former Danish finance minister, who has made clamping down on tax deals a priority.

"It's been clear since the start of this case there was a pre-determined outcome," a spokeswoman for Apple told AFP, confirming the appeal.

"The Commission took unilateral action and retroactively changed the rules, disregarding decades of Irish tax law, US tax law, as well as global consensus on tax policy, that everyone has relied on," she added.

The appeal, lodged at an EU court in Luxembourg, came after the bloc's anti-trust teams released its full 130-page argumentation in the case. "The Commission will efend its decision in court," the Commission said in a short statement.

"The Commission has no competence, under state aid rules, unilaterally to substitute its own view of the geographic scope and extent of the member state's tax jurisdiction for those of the member state itself," the ministry added.

It also raised tensions with Washington, which accused Brussels of "disproportionately" focusing on US corporations. Google, Starbucks and Amazon are also in the EU's crosshairs.

By the Commission's calculations, Dublin allowed Apple to pay a tax rate of 1% of its European profits in 2003 which then dropped to 0.005% by 2014.

Ireland formally lodged its appeal in November after winning the backing of the Irish parliament, with MPs willing to forgo the decision's potential windfall from the case in order to preserve Dublin's pro-business reputation.

Once a corporate backwater, Ireland found economic success by building a low tax entryway to Europe for multinationals seeking access to the EU, the world biggest market. Dublin's official corporate tax rate is 12%, one of the world lowest.

Dublin also claimed procedural errors in the Commission's investigation, which was launched in 2014, arguing Ireland was not contacted to comment on findings contained in the ruling.

"The Commission breached the duty of good administration by failing to act impartially and in accordance with its duty of care," said the submission.

Apple is a valued employer in Ireland, with 6,000 staff in its Cork city campus.


New technology has been disrupting traditional models of doing business for many years and legislation has struggled to keep up. It often falls to the courts to develop the law in this regard. Uber may have disrupted the taxi industry with their self-employment scheme, but they failed to have any effect on the UK Employment Tribunal.

In the landmark judgment of Aslam & Farrar vs Uber, the UK Employment Tribunal ruled that Uber runs a transportation business and employs driver to that end.

Partnership agreement dismissed

The tribunal “pierced the contract veil” in a sense and submitted that Uber had gone through great lengths aided by the use of “twisted” legalese in their contracts and “fictions” in their documentation to uphold their incorrect assertion that they were only a technology company.

The claim was made against Uber by some of their drivers, who alleged a failure to pay minimum wages, failure to provide paid leave and detrimental treatment on whistleblowing grounds. It was brought in terms of the UK Employment Rights and Minimum Wage Acts. Their case was that in a number of different ways Uber instructs, controls and manages their drivers.

Uber denied that the claimants were at any material times “workers” entitled to the protection of these legislations. Uber had in place a “partner” agreement with its drivers which provided that the agreement was governed by the laws of the Netherlands. In the event of a dispute, the agreement provided that these should be referred to arbitration to the International Chamber of Commerce Arbitration.

In October 2015, Uber revised the terms of the “partner” agreement without consulting or discussing it with drivers. Drivers were informed when logging into the app and had to accept the new terms and conditions before they could receive new customers.

The new terms stipulated that the Uber driver agree that a contract existed between the Uber driver and the passenger (whoever that may be). The tribunal disregarded these contracts on the basis that they were signed based on the unequal bargaining position between the parties.

Some of the behaviours of which the tribunal were scathing include:
  • Most of the drivers were not English speaking and the tribunal found that the contracts contained “dense language couched in impenetrable prose”. Uber contract documentation was designed to reflect that the passenger had contracted directly with the driver and yet the Uber driver was never allowed to know the identity of the passenger or the destination of the passenger, or even the fee to be paid by the passenger.

    The driver never collects any fee from the passenger and the fee is paid to Uber. The tribunal held that the essential elements needed for a valid contract were not in place and the supposed contract between Uber driver and passenger were pure fiction, which bore no relationship to the real dealings and relationship between the parties; and

  • The contract stated that Uber works for the drivers and yet this was far from true, the fact was that Uber recruited the drivers to operate is transportation business.

    The drivers did not market themselves to the world in general. Uber then submitted that if there was an employment agreement, the drivers do not have it with Uber London, but with the company with whom they contracted, which was Uber BV which was a Dutch company. The tribunal lifted the veil on the operations and found that for all purposes the Uber London company was the point of contact for the Uber drivers. It was found that Uber London recruits, instructs, controls, disciplines and if it deems appropriate dismisses drivers.

Working hours determination

The tribunal also looked at working hours and concluded that the period the Uber drivers travel from home to their agreed operating area, are not to be regarded as working hours.

The calculation of working hours will start when the Uber driver arrives for work to his area and switches on his application waiting for instruction, until the end of the day when he switches off the application. In terms of the way Uber operated, they required the drivers to be on standby “waiting time” to be available to service any bookings made. This was regarded as the start of working hours by the tribunal.

Will Uber appeal?

We will find out in due course whether Uber will appeal this decision. Whatever happens, Uber will have to accept that they are a taxi company which uses technology and not just a technology company that provides transport.

Their competitive edge was obtained in part from circumventing laws to which their competitors had to comply with. They will have to respect the labour laws of the country in which they operate. That is until they can get their driverless taxi model properly off the ground.


The Department of Trade and Industry (dti) has again extended the deadline for submission of written public comments on the National Liquor Amendment Bill to later this month.

In a statement on Sunday, dti Minister Rob Davies said the extension to 15 December 2016 is the result of constructive consultative sessions that the department had with the Portfolio Committee on Trade and Industry and the South African Liquor Brandowners Association.

"The department also hosted a National Liquor Indaba in Gauteng last month where it was apparent that affected stakeholders and associations need more time in order to provide valuable inputs on the Bill. We are happy that the extension will afford all of the stakeholders and members of the public at large more time to share their ideas and proposals with us on the Bill", said Minister Davies.

The Bill was published on 30 September 2016 for broader public consultation where interested parties are required to submit written comments within 30 calendar days from the date of publication.

The closing date for the submission of comments was extended to 15 November 2016 and again to 30 November 2016.

In September, Cabinet announced that it has approved the publication of the bill which seeks to address the socio economic impact of liquor, the slow pace of transformation, standardisation of key aspects of regulation and improved regulatory collaboration.

The bill also addresses the eradication of manufacturing and trading of illegal and illicit alcohol, as well as challenges regarding regulatory capacity within the National Liquor Authority.

The DTI has been hosting consultative sessions for oral public submissions and comments throughout the country since October as part of the national roadshow aimed at soliciting inputs on the Bill from members of the public.

The roadshows will now move to the Lephalale, Moletjie, Mokopane and Musina areas in the Limpopo province.

The Select Committee on Trade and International Relations last week unanimously supported the Liquor Policy. Chairperson Eddie Makue said there was unanimity across all political party lines that indeed the policy is important and will contribute towards responsible drinking.

"We need to look at the detrimental impact alcohol has on our society and give consideration to raising the sin tax such that it becomes a deterrent to the abuse of alcohol, especially by young people", said Makue.


Many South Africans spend a large part of December and January on leave celebrating the holidays with friends and family.

Four public holidays fall during December and January each year: 16 December is the day of Reconciliation, 25 December is Christmas Day, 26 December is the day of Goodwill and 1 January is New Year’s Day. These are four out of 12 public holidays provided for by the Public Holidays Act, No 36 of 1994 (Act).

The Act provides that “whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday”. The court has confirmed that where a public holiday falls on a Sunday, it does not cease to be a public holiday on the Sunday, the Monday following the public holiday is an additional public holiday.

This year 25 December 2016 falls on a Sunday. This means that the following Monday, 26 December 2016 shall also be a public holiday. However, 26 December 2016 is already a public holiday in terms of the Act.

The 2016 calendar gives rises to a situation where the “additional public holiday” on the Monday falls on a day already scheduled as a public holiday. President Zuma has, however, declared an additional day a public holiday in 2016, that being Tuesday, 27 December 2016. Questions arise as to whether an employer is obliged to pay an employee for the Sunday and Monday or only one of these days.

The legal position in this regard is as follows:

If an employee works on a public holiday, the employer must consider the provisions of the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) when determining the amount to pay the employee. In particular, the employer must consider whether the public holiday falls on a day on which the employee would ordinarily work. If the public holiday falls on a day on which the employee would ordinarily work and the employee works on that public holiday, the employee is entitled to double his/her ordinary wage for the day or, if greater, the employee’s ordinary wage for the day “plus the amount earned by the employee for the time worked on that day”. However, if the employee does not work on the public holiday which falls on a day the employee would ordinarily work, the employee is entitled to his/her ordinary wage for the day.

If the public holiday falls on a day on which the employee would not ordinarily work and the employee works on that public holiday, the employee is entitled to his/her ordinary wage for the day and “the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method”. Importantly, the Labour Appeal Court has held that based on an interpretation of the Act, if the public holiday falls on a Sunday, the Sunday remains a public holiday in addition to the following Monday.

In other words, an employer is required to treat both days as a public holiday and to remunerate an employee accordingly with reference to the abovementioned provisions of the BCEA depending on whether the employee works on such public holidays. It follows that in those instances where the public holiday falls on a Sunday, employees shall enjoy an additional public holiday for the year in question. The same applies in respect of Sunday, 1 January 2017 where both that day together with the following Monday are deemed to be public holidays.


The long and tortuous process of getting Parliament to pass the Unemployment Insurance Amendment Bill came to an end with its adoption by the National Council of Provinces on Tuesday, 22 November 2016.

The legislation improves benefits for jobless workers and will put to some use the R120bn surplus sitting in the Unemployment Insurance Fund.

The period for which UIF benefits can be claimed has been increased from eight to 12 months. And public servants are included under the UIF for the first time.

Maternity benefits are improved and maternity benefits and claims are treated separately from other UIF benefits and claims.

The draft bill was first discussed in the National Economic Development and Labour Council in 2013 and tabled in Parliament in March 2014. It fell off the table because of the general election and had to be retabled in October last year.

The National Assembly adopted the bill in May and then there was another long delay as Parliament went into recess for the local government elections.

Cosatu parliamentary liaison officer Matthew Parks said on Wednesday the union federation supported the bill as "a major victory that will benefit millions of workers. The federation has fought long and hard for this victory."

The federation called on President Jacob Zuma to sign the bill into law urgently - before the end of next month - to help impoverished and retrenched workers, mothers on maternity leave and their families.

Parks said Cosatu wanted UIF benefits to be extended to workers who resign from jobs and informal sector and self-employed workers (such as taxi drivers) and also to cover paternity, parental and adoption leave.

"Government has agreed to Cosatu's demand to further negotiations with Cosatu at Nedlac on how to expand access to the UIF to cover these missing areas," Parks said.

Parliament's labour portfolio committee is considering the Labour Laws Amendment Bill to provide paternity and adoption leave benefits.


At a meeting on 18 October 2016, the Board of the ASA resolved that the organisation voluntarily commence Business Rescue proceedings. It will be placed under supervision in accordance with the provisions of Section 129(1) of the Companies Act. The ASA board took this decision to allow time for the process of restructuring the organisation, while reviewing and rebuilding its funding model.

The ASA is a self-regulatory independent body, established by the marketing, communications and media industries and is mandated by those members to regulate against unfair and misleading advertising which could compromise consumers and impact unfairly on competitors. The ASA has been safeguarding consumers’ interests and protecting freedom of commercial speech since 1968. It continues to enforce, adopt and uphold its Code of Advertising Practice in an impartial and objective manner.

“The ASA performs a fundamental public service by self-regulating advertising in South Africa. The implementation of a Business Rescue plan ensures that the public will continue enjoying protection from untrustworthy advertising material while we work on implementing a new funding model,” says Nkwenkwe Nkomo, chair of the ASA.

Continues Nkomo: “The organisation is supported by government and the marketing, advertising and media industries as a relevant organisation. The ASA has applied for recognition as an Ombudsman under the National Consumer Protection Act. The Business Rescue process is therefore an ideal opportunity to overhaul the operations of the ASA toward its imminent Ombud status. Once accredited, the ASA will be recognised in both law and jurisdiction. This will allow it make findings/rulings on all deceptive and misleading advertising claims thereby protecting consumers and raising standards of good conduct within the industry.

“All stakeholders would like to see the continued existence of the ASA as a self-regulatory body for the industry. The decision taken by the Board provides the time and space to make the necessary changes required to safeguard its sustainability and to ensure that we deliver a fit-for-purpose ASA to the industry at large in 2017,” concludes Nkomo.

The Business Rescue practitioner will be engaging with all relevant affected parties and will also inform the process of restructuring the organisation. The ASA looks forward to continuing to discharge its mandate under the purview of its Code of Practice, and will defend the rights of all stakeholders in accordance with this mandate.


Driven by low commodity prices and increasing costs, the mining industry is under severe pressure during the past year. Statistics South Africa (SSA) pegs the decline in production at 6,9% between the beginning of this year and the end of August.

“The effects of the low commodity price environment are compounded by the continued rise in operating cost. These include above inflation increases in labour and electricity costs,” says Annabel Bishop, economist at Investec. She says in an effort to remain profitable many mining companies have been forced to reduce both their capital expenditure and head counts.

New technologies putting pressure on coal and iron ore

“The gold price is looking better so gold mining is doing well, but the real pressure is on coal and iron ore. Coal could face a terminal decline as the word switches to new technology to make increasing use of gas and renewable energy sources. Smaller minerals like manganese and chrome are also struggling,” says Mike Schüssler, economist and director at

SSA figures show that the production of manganese ore was 13,7% lower in August compared to a year ago, while the production of nickel was 20,6% lower.

In denial

Gareth Cremen, partner specialising in business rescue at law firm, Hogan Lovells, says struggling companies often remain in denial about their financial position until it is too late. “They keep telling themselves things like ‘we just need this one big contract’ or ‘prices will pick up soon’. This means they fail to seek much needed help and by the time reality sets in it’s far too late.”

He says many directors are still not aware of how business rescue can be used to save struggling mining companies – if they act soon enough. This could mean the difference between failing during a difficult period and surviving to take advantage of an improvement in conditions.

Any stakeholder can initiate business rescue

Business rescue was introduced in the Companies Act as a legal process aimed at restructuring companies which are in financial distress in order to save them. The first goal of effective business rescue is to rescue a company from financial distress and avoid liquidation. If this is not possible, the goal becomes to implement a business rescue plan that should result in a better return for the creditors or shareholders of the company than immediate liquidation would. “Ultimately business rescue is a win-win situation in comparison to flat out liquidation. It was developed with the aim of saving jobs, while with liquidation all employees usually lose their jobs,” says Cremen.

The Companies Act makes it quite easy for ordinary people, professionals, directors and even employees to put a company into rescue. “The procedure to begin business rescue was created with ordinary man on the street in mind and it’s not just for attorneys.”

The board of a company can make the decision to go into business rescue of its own accord or any affected person – this includes shareholders, creditors, employees and trade unions representing them – may also apply for a court order to place a company into business rescue. “This means that creditors can also use business rescue as a way of collecting debts owed to them. Placing a company into business rescue ensures that you, as the creditor, can appoint a business rescue practitioner that is truly independent and will look after the interests of all stakeholders. Business rescue in the right hands should yield a higher return to creditors than if that company were to be liquidated.”

Appointing a BRP

To qualify for business rescue a company must be “financially distressed”. That is it most seem reasonably unlikely that it will be able to pay its debts as they become due over the next six months or if it seems likely that the company will become insolvent within six months. Once placed under business rescue the affected person or company then nominates a business rescue practitioner (BRP) to oversee the company whilst it is under business rescue.

Cremen says the BRP plays a significant role in the rescue process. “All BRP's are licensed by the CIPC (Companies and Intellectual Property Commission). Appoint a practitioner who possess the necessary skills and knowledge to revive your business. An experienced attorney in business rescue can be of great help in assisting companies through this process.”

General moratorium

During business rescue the BRP, has full management control of the company and effectively replaces the board and previous management. The BRP is expected to publish a business rescue plan which must be adopted by the affected persons before it can be implemented. “This is the plan to be implemented in order to restructure the distressed company and ultimately bring it back from the brink of extinction.”

Cremen says an important advantage of business rescue is that it places a general moratorium on legal proceedings against a company in business rescue, including any enforcement action against the company its property. Legal proceedings instituted before the business rescue proceedings are also frozen. “This moratorium gives companies some breathing space to restructure its affairs and repay its debts – it must not be abused though. During business rescue, the BRP can also end or renegotiate burdensome contracts, for example a lease on a building that has become unaffordable. Under normal circumstances the company would not be able to do this.”

Schüssler says although the South African economy is not growing, we are still faring better than our BRICS partners, Russia and Brazil. “Zero growth means we are getting poorer as our population is still growing. So it’s not easy out there, but it gives us time to turn things around.”


On 19 October 2016, the South African Revenue Services (SARS) issued a binding private ruling (BPR 253) which deals with the donations tax consequences in respect of a transaction which has the effect of introducing a Black Economic Empowerment (BEE) shareholder into a group of companies in order to benefit all the entities within the group in respect of their BEE scorecard ratings and increase the profitability of the Applicant (X), a South African resident company.

The other parties to the proposed transaction are the Seller (Y), a South African resident trust that holds all of X’s shares, Company A (A) a South African resident non-profit company and the Acquirer (Acquirer), a South African resident company whose shares are wholly-owned by A.

SARS had to decide whether the disposal of Y’s shares in X at a discounted price and the subsequent acquisition of the shares by Y in the Acquirer at a nominal subscription price, in order to introduce the acquiring company into Y’s existing group structure for BEE purposes, constitutes a donation in terms of the Income Tax Act, No 58 of 1962 (the Act).

The proposed transaction can be described as follows: Prior to the transaction the Acquirer possesses no assets or liabilities. Y and the Acquirer propose to enter into the following transactions as an indivisible transaction:

  • While the Acquirer is still a wholly-owned subsidiary of A, Y will dispose of 26% of the issued equity shares in X to the Acquirer for a purchase price which is the lower of:
  • the market value of the shares at the date of disposal less a 10% discount; or
  • a capital sum of 40% of X’s future dividends that will either be received by or accrue to the Acquirer over the eight year period following the disposal.

Furthermore, Y’s outstanding claim for the capital amount of the purchase price shall be payable in interest free instalments over the eight year period. In addition, immediately after Y’s disposal of 26% of the issued equity shares held in X to the Acquirer as part of the same indivisible transaction, Y will subscribe for 49% of the issued equity shares in the Acquirer at a nominal subscription price.

Having considered the facts of the proposed transaction and the wording of the relevant sections of the Act, SARS ruled that:

  • Firstly, neither the disposal by Y of 26% of X’s issued equity shares to the Acquirer at a discounted price (as contemplated above) nor the subsequent acquisition by Y of 49% of the equity shares in the Acquirer at a nominal subscription price will constitute a “donation” as defined in s55(1) of the Act.
  • Furthermore, neither of these transactions will be deemed to be a donation as envisaged in s58(1) and s57 of the Act will not be applicable to the proposed transaction.

SARS ruled that the ruling is subject to the additional condition and assumption that Y and the Acquirer are independent parties dealing at arm’s length.

Section 55 of the Act defines a donation as any gratuitous disposal of property including any gratuitous waiver or renunciation of a right. As a brief comment to BPR 253, it should be noted that in Welch’s Estate v C: SARS 2005 (4) SA 173, the Supreme Court of Appeal held that the legislature did not eliminate from the statutory definition of “donation” the common law requirement that the disposition be motivated by pure liberality or disinterested benevolence, and not by self-interest or the expectation of a quid pro quo of some kind from whatever source it may come. As the disposal of X’s equity shares to the Acquirer will take place to improve the BEE scorecard ratings of the group, amongst other things, the donation is not motivated by pure liberality or disinterested benevolence and it is done for self-interest and with the expectation of a quid pro quo. It is most likely for this reason that SARS ruled that the transactions did not constitute a “donation” as defined in the Act.


The South African Revenue Service (SARS) has instituted court action to terminate a contract with a service provider due to the company's failure to disclose its familial relationship between its shareholder and Commissioner Tom Moyane.

In a statement on Thursday, 20 October 2016, the revenue service said the urgent proceedings at the High Court were instituted due to Lekgotla Trifecta Consortium’s (LTC) failure to disclose the family ties between its director Nhlamulo Ndlhela and SARS Commissioner Moyane.

“SARS wishes to announce that it has instituted urgent proceedings at the High Court to immediately terminate the contract between SARS and LTC. This is to properly comply with the obligation the law imposes on organs of state to pro-actively raise and resolve procurement irregularities,” said SARS spokesperson Sandile Memela.

SARS had previously announced that it intends to approach the High Court with the aim to declare the contract between SARS and LTC invalid should the parties fail to do so amicably.

“This follows LTC’s failure to declare the potential conflict of interest between its director Mr Ndlhela and SARS Commissioner, Mr Moyane, as this constitutes material irregularity and breach in the award of the tender,” said Memela.

The court proceedings are intended to interdict LTC from any further steps to implement the master service agreement and any and all service request agreements concluded between SARS and LTC.

“It is SARS’ position that TLC’s failure to disclose the familial relationship between its shareholder Mr Ndlhela and the Commissioner constitutes material breach and irregularity in the award of the tender.

“This action must be seen and understood from SARS uncompromising and beyond reproach manner in keeping with its Constitutional and statutory duty to maintain a high standard of professional ethics, accountability and transparency in its administration as well as the prevention of possible irregular expenditure and prejudice to the financial interest of the state.”

As the matter is now the subject of legal proceedings, and out of respect to the pending judicial process, SARS said it does not intend making any further comment on the merits or demerits of the matter, said the revenue service.


This article considers the legal standing of neighbours to object to, and prevent, the approval of building plans. It is important to understand that often an application for the approval of building plans is made in conjunction with an application to rezone the property, or to relax building lines, or to remove a restrictive condition or covenant in a title deed. All three of these applications are completely different to the application for approval of building plans itself. This article deals only with the application for approval of building plans.

The law

The process of applying for and obtaining approval for building plans is set out in the National Building Regulations and Building Standards Act 103 of 1997 (“the NBA”). Very basically, the process is that the proposed plans must be submitted for approval to the local authority’s building department – which then considers them – and if they are happy with them, they are approved.

Is it necessary to notify neighbours?

There is no legal requirement in the NBA requiring an applicant to inform neighbours of an application to approve building plans. However, there might be such a requirement imposed by the by-laws or a policy of the local municipality. If there are simultaneous applications for rezoning, relaxation of the building lines, or the removal of a restrictive condition or covenant, then the neighbours will be given notice – not because of the building plan application, but because it is a requirement that the neighbours be given notice for these other three types of applications. It often happens that the first time an owner finds out about an application for the approval of building plans is after the application has already been submitted by his neighbour, approval for same has been given, and the building works are starting.

Do neighbours have a right of objection?

In terms of the NBA, neighbours do not have a right to object, unless they are given this right in another law, or the municipality has done something to create an expectation on the part of the neighbours that they have a right to object – such as telling them that they have this right, or inviting them to object, or a practice exists and has existed for some time in terms of which neighbours are given the opportunity to object. This has been confirmed by our courts in the Walele v City of Cape Town and Others.

If an objection is submitted, will this prevent approval?

Not necessarily. The municipality is bound to consider the objection, but must still make up its own mind as to whether the plans should be approved or not.

Does this mean that the rights of neighbours are not taken into account at all?

No. The municipality is obliged to take into account the rights of neighbours (and how the proposed building will affect the rights of the neighbours) in terms of section 7 of the NBA. It is precisely because the law provides that the municipality must, as a default position, take into account the rights of neighbours, that no provision for neighbours to object is provided for in the NBA. In addition, if a neighbour ‘catches wind’ of a pending application and is unhappy with it, the neighbour can submit objections or comments to the local municipality, which is then bound to consider those submissions when making its decision as to whether or not to approve the plans.

Is there any right of appeal for unhappy neighbours?

Not in terms of the NBA. Some legal practitioners are of the view that it is possible for an aggrieved neighbour to appeal the decision to the municipal manager in terms of section 62 of the Local Government: Municipal Systems Act 32 of 2000. The court held in Municipality of the City of Cape Town v Reader and Others, however, that it is not open to aggrieved neighbours to appeal to the municipal manager in this fashion. The only recourse an aggrieved neighbour has is to bring an application to court in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) for the court to review (and possibly set aside or amend) the decision to approve the plans. They will succeed in this application only if they can convince the court that there was a procedural flaw in the approval process, or that the approval should not have been granted because the proposed plans would impact adversely on the neighbour’s property as contemplated in section 7 of the NBA.


The municipality is obliged, as a matter of course, and regardless of whether any objections/comments are submitted, to take into account the rights of neighbours and how the proposed building plans will affect the neighbours when assessing an application for the approval of building plans. As neighbours are already protected in this fashion, the law generally does not provide them with an opportunity to object/comment before the plans are approved. Although there are exceptions to this rule, they are few and far between. It is thus generally not necessary for a neighbour to inform you about his building plan approval application, nor is it necessary for him to acquire your consent before he can obtain approval and consequently start building.

It may, however, be a requirement of other applications submitted for approval (for example for relaxation of a building line) that your neighbour gives you notice and/or obtains your consent, but this is not applicable to building plan approval applications specifically.


WASHINGTON, USA: A US appeals court on Friday, 7 October 2016, handed Apple a victory in one of its battles with rival Samsung, reinstating a $119.6 million verdict for the iPhone maker for patent infringement.

In the latest twist in a series of patent cases between the smartphone giants, the Federal Circuit Appeals judges ruled 8-3 in a rehearing of the case, reversing a panel of the same court in February.

Apple's lawsuit contends that Samsung infringed on patents for "slide to unlock" and autocorrection, among others.

Friday's ruling said Samsung failed to prove that some of the Apple innovations were "obvious" and thus not able to be patented.

The opinion also said the court must defer to the decision of the jury when in doubt.

"Even in cases in which a court concludes that a reasonable jury could have found some facts differently, the verdict must be sustained if it is supported by substantial evidence on the record that was before the jury," Judge Kimberly Moore wrote for the majority.

Apple asked for an "en banc" rehearing of the case - before all the appeals court judges - following February's decision to toss out the award.

Apple had sought some $2.2 billion at trial, only to have a jury award the California-based company $119.6 million.

In February, the panel of judges ruled that Samsung did not infringe on one of the Apple patents and that the remaining two, which involved auto-correct and slide-to-unlock features, were not valid.

Neither company responded to requests for comment.

The case is separate from another suit in which Samsung was ordered to pay $548 million for patent infringement to Apple and whose appeal is set for a hearing next week in the US Supreme Court.

Samsung and Apple decided in 2014 to drop all patent disputes outside the United States, marking a partial ceasefire in a seemingly relentless legal war between the world's two largest smartphone makers.

The companies have battled in close to a dozen countries, with each accusing the other of infringing on various patents related to their flagship smartphone and tablet products.


Many tenants think that the law prevents landlords from evicting them once a lease has ended, if they can't find accommodation, but this may not be the case.

The individual facts of each case will be given careful consideration before a decision is made on whether or not to evict.

The recent case of Pierre Coetzee vs Pipet Place Eiendomme CC provides some insight into what the courts will take into consideration.

Court finds in favour of landlord

This is a matter that went on appeal from the Empangeni Magistrate's Court, where in essence, the magistrate found against the tenant and evicted him after his lease had ended.

Coetzee had signed a lease for a property belonging to Pipet Place Eiendomme. The lease ran for 17 months and there was no provision for renewal. However, the tenant refused to move out of the property once the lease had ended, despite the owner giving the required one calendar month's notice.

The tenant initially cited three reasons for not vacating the home: there was a dispute between the parties pending before the KwaZulu-Natal Rental Housing Tribunal; the owner had failed to comply with his duties as landlord in respect of maintaining the property and the tenant also noted he had a lien over the property insofar as improvements were concerned; and finally, he claimed that he didn't have access to alternate accommodation.

On appeal the tenant abandoned the first two reasons for staying in the property and relied only on the fact that he couldn't find alternate accommodation. The important factors here are that the tenant lived alone, there were no elderly people or children involved and he wasn't destitute.

The tenant's personal circumstances

The tenant argued that the magistrate had failed to take all his personal circumstances into account as required by PIE. However, the appeal court disagreed and found that "the learned magistrate was acutely aware" of the tenant's personal circumstances and financial position. The fact that it was difficult, but not impossible, to find alternative accommodation counted against the tenant.

The appeal court held that there was no merit to the complaints raised by the tenant.

Interestingly, it appears that the reason the tenant was so reluctant to move was that he couldn't find a similar property to lease for the relatively low sum of R3,000 per month. And although he was employed, he believed that PIE would force the landlord to renew the lease.

What the judge said

However, the appeal judge found: "The evidence established that after the monthly tenancy was validly cancelled, the appellant managed to remain in unlawful occupation and rent-free for a period of about nine months. I further consider that the appellant cannot be said to be disadvantaged in any way, nor is he poverty-stricken. Far from it. He is self-employed and capable of generating an income for himself. I see no reason why he cannot find suitable alternative accommodation. It is time that he did. It follows that the appeal cannot succeed and must be dismissed."


SARS has recently gone live with a new Tax Clearance System (TCS) which stands to replace the traditional Tax Clearance Certificate (TCC) procedures. This TCS system offers taxpayers the flexibility of viewing their own tax compliance status through their e-filing profile whilst also allowing other authorised users to view the taxpayer’s tax clearance for verification purposes.

Personal Tax Compliance

This TCS function sheds more light on the taxpayer’s personal affairs by segmenting compliance into various categories, namely registration, submission of returns, debt and relevant supporting documents. Each category is marked either green or red with a brief description as to compliance or non-compliance. It goes without saying that the taxpayer must be registered for e-filing and have an income tax reference number in order to make use of this function.

The system has gone further in allowing the taxpayer to receive a detailed indication of which period their non-compliance arises and allows the taxpayer to rectify any shortcomings efficiently before making their status available to others. This function proves to assist taxpayers who are unaware of outstanding returns or penalties which have become difficult to monitor of late.

South African taxpayers abroad will also enjoy the functionality of the system and will no longer need to complete power of attorneys to have their tax clearance certificates collected from a SARS branch.

Third Party Verification

The TCS system will in due course replace clearance certificates as a whole by allowing third parties to view the taxpayer’s compliance status when the authorisation pin and tax reference number are made available. The pin is entered on the third parties e-filing profile, which in turn confirms or denies compliance within the various SARS categories. This ensures the taxpayers compliance can be monitored by the authorised third party on a real time basis whilst ensuring that the taxpayer’s security is maintained.

Additional security functions have been added to ensure the taxpayer is able to monitor which third parties have viewed their profile. Any suspicious third party viewings can be avoided by the taxpayer simply changing its pin and redistributing the updated pin to trusted third parties.

The TCS is a welcome fixture to third parties who no longer need to concern themselves with the clearance certificates expiring, and will be enjoyed by taxpayers who will avoid frequent visits to their nearest SARS branch to collect documents which will inevitably expire. The new and improved system is also guaranteed to streamline commercial transactions and credit applications by eliminating the notorious delays in obtaining tax clearance certificates.

Keller Williams / FPS Attorneys

Fun Challenge Action Netball

On 21 September 2016 after Keller Williams Extreme accepted the fun challenge from FPS Attorneys the battle began at 18h00 in the Brackenfell Action Arena.

After 30 minutes of ‘blood, sweat and tears’ and even more laughter and also a few ‘grass burns’ the battle ended in a tie with 4 point to each team.

Four awards were handed out:

  • The Champagne Award went to Jenet Botha for having the most sparkling team-spirit;
  • The No 1 Award went to Elmien Nothnagel for being the best player;
  • The Clumsy Award went to Phillip Doman for the player making the most mistakes (we must admit, after he played the correct position, there was no stopping)
  • The Tell you Award went to Eben Benade, for giving the most advice.

As the challenge ended in a tie, the floating trophy was taken by Albert Gerber to Keller Williams Extreme, Durbanville.

We all had a wonderful time and are looking forward to the next challenge.


The proposed 2016 Tax Administration Laws Amendment Bill will bring welcome change, but there are still concerns about the autonomy of the tax ombud, with regard to taxpayers' rights.

To clarify, section 16 speaks of the mandate of the office of the tax ombud to review and investigate any systemic issues related to a service matter; including the application of the provisions of the Act; or procedural or administrative provisions of a Tax Act, as defined in the above Act, only at the request of the minister. It is one of the areas being discussed with the ministry to ensure that the office of the ombud has true power to bring on substantial change and oversight.

We want to see that this arbitrator is being given the ability to investigate complaints about infringements of taxpayers’ rights by South African Revenue Services (SARS). This includes recent allegations that SARS delays paying refunds, especially around its financial year end. These have never been investigated, so if the ombud can achieve this kind of power, then it would be of inordinate value to taxpayers. It means that SARS will be called to question when their actions are not in line with taxpayers’ constitutional rights, or fair and reasonable administrative actions.

It must be noted that the above is not something new, other jurisdictions like Canada, India and Australia have been given a similar mandate.

Rise of the tax ombud

This position was originally created in 2013 to engage with the rising concerns of taxpayers when dealing with SARS, as well as to take a vital seat at the taxation table.

There was a need to have an intermediary to deal with the complaints laid before SARS. Under the leadership of Judge Bernard Ngoepe, this office has seen considerable success and played a pivotal role in resolving a significant number of cases.

To date, 88% of the cases referred to it have been resolved with SARS taking its recommendations into consideration.It has, perhaps surprisingly, found joy on behalf of taxpayers and practitioners in spite of having limited authority and weight. These successes have played no small part in the proposed changes ahead.

More time for mandate

Also included within the draft bill are crucial proposed changes to the office of the ombud that could potentially give both taxpayers and ombud greater control and independence when it comes to dealing with SARS and provide taxpayers with a reliable, neutral space in which to address challenging situations or issues.

With the current legislation, the office of the ombud has only three years to achieve its mandate. The new draft legislation proposes to extend this duration to five years, a very welcome and applauded step, as it can be difficult to instigate real change in only three years. This is particularly true of an office that is so new.

By extending the length of time for the office to run, the draft legislation will allow the office potentially save even more taxpayers’ frustration and concern. Should the legislation be signed off, the office will run for five years effective from 2017, but how it will be managed and when its start date finalised has yet to be determined.

Other welcome changes

In addition to the time extension, the office of the ombud has been given more power. Previously, when the office wanted to appoint staff, they could only do so in accordance with the SARS Act and after consultation with the SARS commissioner. With the current draft legislation, the office now has the autonomy to independently appoint staff and this will support them in attracting talent. It shows that they are increasingly independent of SARS.

Finally, the proposed amendments also place control of the budget into the hands of the ombud. While the organisation will still be funded by SARS under the proposed legislation, there are at least some steps being taken to shift the boundaries of control.

Currently, the recommendations the office of the ombud makes are not binding to SARS and taxpayers. They may choose to follow them or not, however if not accepted by a taxpayer or SARS, reasons for such decision must be provided to the office. SARS has accepted all of these recommendations so far and it is clear that they take the office of the ombud seriously. Hopefully this will only bode well for the growth of the office going forward.


Advice on POPI, BBBEE and more from legal expert and entrepreneur Andrew Taylor


The legal sector has in recent years had to play catch-up to the current fast-changing business environment.

The sector has had to find ways to regulate new industries such as the new shared economy and disruptive innovations such asUber and AirBnB.

Other recent changes to the legal landscape was the introduction of new legislations such as the recently amended BBBEE codes as well as the Protection of Personal Information Act.

We sit with legal expert and entrepreneur, Andrew Taylor of LexNove, an online legal platform. He shares the legal developments that are likely to impact SMEs in the coming year and new legislation that may translate to more opportunities for entrepreneurs.

  1. A move towards value-based and on-demand flexibility for legal services
  2. There will be a gradual movement away from time-based, bill-by-the-hour legal services, to a more value-based, fixed price approach to rendering legal services.

    Clients are beginning to demand certainty as to their cost exposure, and hourly rates simply do not provide such certainty.

    A big movement being seen worldwide is toward freelance, on-demand, legal services, through disintermediating internet platforms such as LexNove.

    DLA Piper, in this regard, one of the biggest law firms on the globe, has recently announced that it will be launching its own freelance, on-demand, lawyer program, to be rolled out in the UK during the course of 2016. See also: Significant legal developments in the SME sector from the past year.

    There will also be a movement toward more legal process outsourcing. This entails the more mundane legal work, such as the ordering of court documents and basic research, being outsourced by law firms to lower cost jurisdictions or companies that specialize in these more mundane tasks. This will entail a significant cost saving, as high priced lawyers will not be dealing with such grunt work, where 25 years of legal experience is really not necessary.

    There will also be significant increases in the adoption of technology to speed up and increase the efficiency of legal services. A good example of this are the early in-roads being made in e-discovery for the purposes of litigation. This is not a novel concept in overseas jurisdictions but is at an early adoption stage in South Africa.

  3. POPI gets its teeth
  4. With the promulgation of the Protection of Personal Information Act 2013, it's likely that the enforcement arm of the Act, the Information Regulator, will be appointed during 2016.

    The Information Regulator will, in theory, enforce strict compliance with what personal information is collected from clients and 3rd parties by companies, and how such information is processed and utilized by the company. Companies will be required to specify exactly what personal information they collect, who they share such information with, and what that information will be used for.

  5. Legal compliance requirement an additional burden for startups looking scale
  6. As startups reach a point of inflection and begin to scale, there are still significant burdens and regulatory challenges for entrepreneurs.

    The new BBBEE codes, for example, impose regulatory compliance burdens on all businesses above certain thresholds while issues such as VAT compliance as revenue related thresholds are met will continue to be pertinent for businesses in South Africa.

    The particular legal nuances of each entrepreneur’s situation need to be considered, but, a firm grasp of the Protection of Personal Information Act will be helpful. In the event that the information regulator is appointed, the necessary changes to a company’s policy regarding the manner in which personal information is processed will need to be effected. This may also entail the amendment of client contracts, terms of service, privacy policies and the like, so as to ensure compliance with the Act.

  7. Affordable and accessible legal services
  8. The movement toward on-demand, freelance, lawyers charging a more affordable rate, will allow entrepreneurs and start-ups, which have been unable to afford legal services until now, the ability to obtain quality legal services at a fraction of the cost.

    This will enable the entrepreneur to concentrate on his/her core business, instead of attempting to hash together their own legal contracts and documents for example, and allow for an experienced on-demand lawyer to take care of such needs.

  9. Opportunities for disruptive technologies
  10. The first stage of implementation of the Competition Amendment Act is expected in 2016 and this could provide some significant opportunities for disruptive technologies and start-ups with a new angle of approach to existing markets, as the amendments manifest themselves in the market. Quite how this will happen, is a matter of some speculation.


In their unpacking of the recent local elections three experts believe that Zuma will be with us till 2019, that the African National Congress (ANC) might split or it might not, and the rise of leaders such as Mmusi Maimane and Julius Malema are giving South Africans different choices. Lumkile Mondi, senior lecturer the University of the Witwatersrand, Justice Malala, political commentator and newspaper columnist, and Peter Bruce, editor in chief, BDFM Publishers, presented their interpretations of what the recent local elections really mean now and in the future, at an event sponsored by Nandos, moderated by Jeremy Maggs and hosted at the Wits Business School.

The President

While the discussion was about the local elections, it was not long before the President was mentioned. While it is time for President Zuma to go, I don’t think he is going anywhere states Malala, who believes that his influence on our politics will be felt till 2019 and even beyond that. “That narrative has already started, with the blame for the ANC’s performance in Gauteng being no-one’s - not Zuma’s or anyone else’s, but everyone’s’. On Monday the ANC will tell us that they have reflected and need to go back to the masses and reflect more.”

Bruce believes that President Zuma has a very hard job between now and the ANC elective conference next year, as he does not want to end up being the victim of negotiations between parties that are far from him that could weaken him in the elections. “This is not because he can be elected but because he wants to control the elections so that he is protected by whoever gets elected and so that his networks are protected.

They both agree that the President’s position is entrenched and who replaces President Zuma will be like President Zuma because his networks need to be maintained, but now people are showing an impatience with this so there is the risk that that person may be protested against as well. “The problem is that this distracts from running the country so until this is gone our country is not running properly. It eats at you legitimately,” says Bruce.

A positive of the elections has been the rise of leaders such as Julius Malema and Mmusi Maimane coming through as they come from a different background and represent different options for the country, where you can make clear choices and not choices based on legacy and liberation, he adds.

In pain

These elections are a reflection of what is going on in the ANC and it is an organisation that is in pain; a pain that is probably the deepest it has ever felt in its 104 years of existence. “It is under such strain, that it might not splinter, but instead split down the middle. It is so factionalised that it is impossible for it to function, but it will continue to maintain and preserve the current status quo until it is clear who will succeed Zuma,” says Malala.

The trend is a rejection of the ANC. Essentially the ANC has killed itself off, he states, and the people showed their dissatisfaction by staying at home. “Over three million (3.3) people stayed home and did not vote. The ANC has the opportunity to get them back by changing their narrative, but the EFF and the Democratic Alliance (DA) will also work hard to capture these votes. Who these 3.3 million will vote for in 2019 will be interesting.”

The trend of the ANC losing votes in urban areas has continued, with it even losing some support in the urban Gauteng townships, but more than that, it has also happened to some degree in the rural areas. Bruce adds that he is not sure about the ANC splitting into a rural and urban party. “I would think they would try very hard to avoid this.” Mondi felt that interesting dynamics are taking shape within the ANC and so it has to split, with those reluctant to see President Zuma go, and those who want to see him go.

Turning point or tree in the distance?

While this election marks a big change, it is not yet a turning point for Bruce. He described it as driving through the Karoo and coming up a hill and seeing a tree in the distance. “That tree is 2019, and that is what everyone is positioning themselves for. This is step, a big step on the way to 2019.”

The prize here is the country - not Tshwane or City of Johannesburg or Ekurhuleni, and that is where we are heading he adds. “I want to get to the tree on the hill and that is 2019. So we need to get up every morning and do what we do. Time will reveal itself. Events happen. We don't know what is going to happen this afternoon and regardless of whether coalitions are formed or not, we will survive. We are resilient and tough.”

Malala felt that the elections are a turning point in the country, “Society is changing and there are consequences. The future is beyond the ANC now, but it is about how we get there,” says Justice.


On 15 July 2016, the Constitutional Court in Solidarity and Others v Department of Correctional Services and Others(CCT 78/15) [2016] ZACC 18 handed down its judgment on disputes surrounding the Department of Correctional Services' (Department) refusal to promote or employ individuals based on the demographic targets set out in the Department's Employment Equity Plan (EEP). ConCourt clarifies employment equity measures.

In terms of s21(1) of the Employment Equity Act, No 55 of 1998 (EEA), certain employers are required to, among other things, “prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce”. The Department’s EEP for the period 2010 – 2014 contained numerical targets to be achieved by the Department within a five year period based on national demographics. The Department assessed its level of racial and gender group representation exclusively on national demographics.

In 2011, the Department advertised vacant posts in the Western Cape. The 10 individual applicants in this case (five coloured women, four coloured men and one white male) applied for these posts. Nine out of the 10 applicants were recommended for appointment. However, eight of the applicants were denied appointment to the respective positions due to race and gender considerations which were “over represented”, according to the Department.

The Labour Court ruled in favour of Solidarity, the trade union representing the applicants, stating that the EEP was non-compliant with s42 of the EEA in that it failed to take into account both regional and national demographics. However, the Labour Court desisted from granting any relief to the applicants or declaring the EEP invalid. Instead, the Labour Court deemed it most appropriate to order that the Department take immediate steps to ensure that in the future both national and regional demographics are taken into account when the setting equity targets for its workforce.

The applicants appealed to the Labour Appeal Court (LAC) against the Labour Court’s decision not to grant the individual applicants any relief and/or declare the EEP invalid due to its non-compliance with s42. The LAC dismissed the applicants’ appeal, ruling that the EEP passed the test required in terms of the EEA, read together with the Constitution of the Republic of South Africa, 1996.

In the Constitutional Court, the court addressed the Barnard principle set out in South African Police Service v Solidarity obo Barnard [2014] ZACC 23 which states that an employer may refuse to appoint a candidate who falls within a category of persons that is already adequately represented at a certain occupational level. In this case, the court was required to consider whether the Barnard principle’s application is limited to white people only and whether this principle may also be applied in respect of gender. The court ruled that the Barnard principle is not only limited to white people but rather to candidates from all racial groups as well as both men and women.

The applicants’ submission that the Department’s EEP be declared null and void due to its non-compliance with s42(a) was dismissed by the court, ruling that that the EEP had already run its course and there was no need for an order declaring its invalidity.

The court also rejected Solidarity’s contention that the numerical targets constituted ‘quotas’, which are outlawed under the EEA. One of the distinctions, as set out in Barnard, is that a quota is ‘rigid’ as opposed to numerical targets, which are flexible. The court ruled that because the EEP made provision for deviations from the set targets, the targets could not be said to be rigid and did not constitute quotas.

Most importantly, the court held that the Department acted unlawfully and in breach of its obligations under s42 of the EEA in failing to consider regional demographics in assessing the levels of representation and subsequently setting targets for its EEP. The Department thus made use of a benchmark which was not authorised under the EEA and as such had no justification for using race and gender as a means to refuse the appointment/promotion of the individual applicants. Therefore, the decision not to appoint most of the individual applicants constituted unfair discrimination.

The Department also argued that because it is a national department, it is excluded from the requirement to consider both national and regional demographics. The court similarly rejected this argument on the basis that s42(a) does not exclude national departments from its application.

Finally, the court ordered the coloured applicants, who were recommended for appointment, be appointed to the relevant posts, to the extent that those posts were vacant and be paid the remuneration attached to those posts with retrospective effect. Regarding the applicants whose posts were currently occupied, the court ordered that the Department pay the applicants the remuneration attached to those posts with retrospective effect.

The court’s ruling serves as a reminder of the delicate position of employers who fall within the requirements of s42(a) of the EEA and goes a long way to clarify what is required, procedurally, to achieve a ‘transformed’ workplace which is compliant with the EEA.


Social media platforms such as Twitter, You Tube, Instagram and Facebook, have become an integral part of our everyday lives and have an important role to play in our social environment and help us keep in touch with others and stay informed of events around the world. Yet despite many of the benefits of social media platforms, these platforms also create opportunity for abuse and often bring out the worst in people, often without thought as to the consequences of their action.

Many people lose sight of the fact that the moment something is posted on social media sites, it is considered “published” and is therefore subject to the laws applicable to traditional media, such as newspapers. Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities.


Defamation can be defined as the wrongful, intentional publication of words or behaviour in relation to another person which has the effect of injuring his status, good name or reputation.Our courts have recently set a new legal precedent after it granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform after she defamed him thereon. In another case a woman was awarded R40,000 in damages after claiming that her former husband and his new wife were bad-mouthing her on Facebook. The judge found that although the former husband was not the author of the postings, he was tagged in and knew about them and allowed his name to be coupled with that of his new wife thus creating liability jointly with the author of the postings.

Hate speech

Hate speech is any speech, gesture or conduct, writing, or display which is prohibited because it may incite violence or prejudicial action against a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.


Disciplinary action, including dismissal for social media conduct have increased drastically over the past few years often following on the heel of comments made or posted on social media sites by employees. The Commission for Conciliation, Mediation and Arbitration (CCMA) have dealt with several of these cases where the dismissal was found to be fair based on the evidence garnered from the social media sites.Some of the grounds for dismissals have included derogatory Facebook status updates, an employee criticising management, criticising the employer, employees using social media to convey internal matters of the business to former employees, etc.

Take Note

What should you take note of when using social media to avoid legal or disciplinary action arising from your conduct on these social platforms? The most common defence against defamation is that the publication was true and in the public interest. Make sure about your facts before posting anything and ensure that you can back your comments with substantiating evidence and factual information. Accordingly, making a comment about a friend on a matter that is not in public interest could be defamatory even if it is true.

Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others. Do not post anything which could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc. Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep the following guidelines in mind:

  • Keep posts legal, ethical and respectful.
  • Do not engage in online activities which could harm the reputation of the company.
  • Do not disclose any confidential or business information of the company.
  • Do not discuss colleagues, managers or information pertaining to the company.

A good rule of thumb is to ask yourself whether you would be willing to say something out loud in a room full of people or colleagues. If the answer is no, then you shouldn’t consider posting it on social media.(Author and extract from

For further Advise on Social Media policies please contact our offices.

FPS Attorneys Freddie Steyn / Louis Lourens


The legal issue of whether the purchaser or seller of an immovable property is responsible for the payment of special levies raised by the body corporate or the homeowners association concerned before transfer occurs is one that can be ratified by a tripartite agreement. Is purchaser or seller responsible for special levies?When a property is located within a sectional title scheme or within an estate governed by a home owners association, there are levies payable to either the body corporate (if it is a sectional title scheme) or home owners association (if it is an estate, also known as a home owners association area). These levies are utilised by the entity concerned to pay for expenses common to all of the owners in the scheme or estate concerned. These levies are in addition to amounts payable to the municipality each month for rates and taxes.

Special levy

A special levy is a levy raised by the governing body when there are no funds available from the ordinary levies raised according to the annual budget, which is determined in advance for each coming year. Special levies are raised only to cover extraordinary or unusual expenses that are not budgeted for in the ordinary course. Common examples would include covering emergency maintenance events, such as repairing collapsed or damaged walls or security features, or for paying large, unanticipated and unbudgeted for municipal bills. These might occur where a municipality levies a huge amount of money against a sectional title scheme or homeowners association in one month, which includes billing for the prior three-year period.

Tripartite agreement

The best way to ensure that a dispute does not arise in relation to whom is liable for special levies, is to ensure that a tripartite agreement is signed by the purchaser, seller and managing agent or, if there is no managing agent, directly by the trustees of the body corporate concerned.

This tripartite agreement usually stipulates that the seller is liable for any special levy billed to the levy account before transfer and that the purchaser will be liable for any special levy billed to the levy account after transfer. This very clearly sets out the rights and obligation of all the parties concerned and usually with such an agreement in place there is very little scope for a dispute to arise in relation to special levies.

Disclosure of future special levies

If a seller is aware that future special levies will be billed to the levy account after transfer, and the seller does not advise the purchaser of this before the signature of the offer to purchase, the existence of the special levy raised after transfer may constitute what is commonly known as a ‘latent defect’, in terms of law. Generally, the seller will be liable to the purchaser for latent defects discovered after transfer unless seller has disclaimed liability in respect thereof offer to purchase itself, usually by way of a voetstoots clause.

A voetstoots clause is a clause that states that the item sold is sold in its current condition and that the purchaser accepts the state of that item in that condition and that the seller will accept no responsibility for any faults or defects that are subsequently found to exist in relation to that item.

However, a voetstoots sale will still result in liability to the seller in respect of the latent defect if the seller fraudulently misrepresented to the purchaser the state of affairs in respect of the item sold.

The courts have looked at this issue several times and have set a relatively high bar in relation to what constitutes fraudulent misrepresentation in this context. If a seller knew about the existence of the latent defect but did not disclose this to the purchaser, this alone will not constitute fraudulent misrepresentation. The seller would need to have actively taken measures to hide the existence of the default from the purchaser (upon the purchaser investigating same) or would have had to have taken active measures or specifically had remained silent in the face of questions about the issue, in order for this to constitute fraudulent misrepresentation and negate the effect of a voetstoots clause.

Returning to the issue of special levies, this means that if a seller does not disclose the existence of future special levies that it is known will be raised in relation to the property, that seller has failed to disclose the existence of latent defects in relation to the property. However, this does not render the seller liable to the purchaser in respect of same, unless the actions of the seller in the situation constituted a fraudulent misrepresentation in relation to those special levies. For example if the purchaser had inquired whether there were any future special levies that were to be passed and the seller had responded in the negative or had not responded at all, this would arguably constitute fraudulent misrepresentation.

However if the purchaser had not made this enquiry and the seller had not volunteered the information, this would not constitute fraudulent misrepresentation and the seller would not be liable to the purchaser in respect to same, as there is no legal obligation on a seller to disclose this to a purchaser.


Accordingly, it is imperative for a purchaser of any property in a sectional title scheme or an estate to investigate actively whether there are any future special levies planned in respect of the property, which the purchaser may become liable for after transfer – this must be done before signature of the offer to purchase. It is imperative when buying or selling immovable property that you get the right advice from a knowledgeable and experienced attorney. Do not get caught out by an issue as important as special levies, regardless of which side of the fence you are on.



“I bought a house a few months ago. The municipality issued a rates clearance certificate to the seller and the property was transferred in my name. When I recently queried a high water account with my municipality, the municipality responded by saying that there is still quite a large arrear debt against the property and that unless I pay they will take steps against me to collect and even sell my property if necessary. Surely this can’t be lawful?”

Section 118 of the Municipal Systems Act (“MSA”) has been the cause of a lot of concern for home owners as this section and in particular Section 118(3) is viewed as enabling a municipality to hold a new home owner responsible for the arrear municipal debts of a previous owner.

According to Section 118(1) of the MSA, a property may not be transferred unless a rates clearance certificate has been issued by the municipality where the property is situated. The certificate must certify that all amounts due to the municipality for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties (“municipal fees”) during the two years preceding the date of application for the certificate have been fully paid. This subsection says nothing about historical arrears which may be older than two years.

According to Section 118(3) an amount due for municipal fees is a charge upon the property and enjoys preference over any mortgage bond registered against the property, thereby creating a security provision in favour of the municipality for the payment of the outstanding debts. No time limit is attached to this provision and it does not matter when the secured debt became due. It can include debts up to 30 years old (for rates, refuse and sewer charges) and 3 years old (for electricity and water), including debts of more than one previous owner, all of which are secured through Section 118(3) in favour of the municipality.

The issue that is the cause of the consternation is where a new (innocent) owner is now held responsible for municipal debts older than two years incurred by previous owners, without any prior knowledge that there is arrear debt and that municipalities may, as in your case, hold the new owner responsible for the arrear debt of someone else. The new owner is caught by surprise, particularly as a rates clearance certificate was issued creating the impression (even if not legally correct) that all debts with the municipality have been settled by the seller.

Our Supreme Court of Appeal has recently confirmed that a rates clearance certificate does not mean that there is no further municipal debt tied to a property. Our courts also confirmed that if the seller or previous seller is unable to pay or cannot be located, the purchaser or new owner will be held liable for these debts, in extreme cases even potentially allowing the municipality to sell the property itself to settle the arrear debts. This right (or hypothec) of the municipality over the property established by Section 118(3) thus survives any form of property transfer without exception.

Based on this court decision, it potentially leaves a new owner vulnerable to the municipality enforcing its rights over the property, even resorting to disconnecting water and electricity to force a new owner to settle arrear municipal debts.

Our courts have not however had occasion to test the constitutionality of Section 118 of the MSA, and in our view there could be constitutional grounds for testing the fairness of the current interpretation of Section 118(3) and the application thereof by municipalities. We accordingly recommend that should the municipality persist in your case to require settlement of a previous owner’s arrear municipal debts or face disconnection of municipal services, you should approach a legal advisor for assistance.

Extract from DupWestInc


Real Estate transactions usually involve the biggest financial investment most people ever have in their life. Transactions today usually exceed R 1 000 000. If you were being sued for R 1 000 000 would you attempt to deal with it without the help of a lawyer? Considering the amount of risk, it would be foolish to consider a deal in real estate without professional assistance. Below we have compiled a dozen more reasons to consider using FPS Properties.

  1. We can help you determine how much you can afford. We ask and obtain the correct information about your available savings, income and current debt, and then we have the top qualified working support team best to help you. Take note that most financial institutions (banks and mortgage companies) offer limited advice and choices.
  2. We have many resources to assist you. Sometimes the property you are seeking is available but not actively advertised in the market, and it will take some investigation by your agent to find all available properties.
  3. FPS Properties can assist you in the selection process by providing objective information about each property. Agents who at FPS Properties have access to a variety of informational resources. We can provide local community information on utilities, zoning, schools, etc. There are two things you'll want to know. First, will the property provide the environment I want for a home or investment? Second, will the property have resale value when I am ready to sell?
  4. Our agents can help you negotiate. There are countless negotiating factors, including but not limited to price, financing, terms, date of possession and often the inclusion or exclusion of repairs and furnishings or equipment. The purchase agreement should provide a period of time for you to complete appropriate inspections and investigations of the property before you are bound to complete the purchase. Your agent can advise you as to which investigations and inspections are recommended or required.
  5. FPS Propertiesoffers due diligence during the evaluation of the property. Depending on the area and property, this could include inspections for termites, dry rot, asbestos, faulty structure, roof condition, septic tank and well tests, just to name a few. FPS Propertiescan assist you in finding qualified responsible professionals to do most of these investigations and provide you with written reports. You will also want to see a preliminary report on the title of the property. Title indicates ownership of property and can be mired in confusing status of past owners or rights of access.
  6. FPS Properties can help you in understanding of different financing options and in identifying qualified lenders.
  7. FPS Properties can guide you through the closing process and make sure everything flows together smoothly.
  8. When selling your home, FPS Properties gives you up-to-date information on what is happening in the marketplace; including the price, financing, terms, and condition of competing properties. These are key factors in getting your property sold at the best price, quickly and with minimum hassle.
  9. FPS Properties markets your property to other real estate agents and the public. Often, we recommend repairs or cosmetic work that will significantly enhance the saleability of your property. FPS Properties markets your property to other real estate agents and the public. In many markets across the country, over 50% of real estate sales are cooperative sales; that is, a real estate agent other than yours brings in the buyer. Our agents at FPS Properties acts as the marketing coordinator, disbursing information about your property to other real estate agents through a Multiple Listing Service or other cooperative marketing networks, open houses for agents, etc.
  10. FPS Propertieswill know when, where, and how to advertise your property. There is a misconception that advertising sells real estate. Our studies and research show that 82% of real estate sales are the result of agent contacts through previous clients, referrals, friends, family and personal contacts. When a property is marketed with the help of FPS Properties, you do not have to allow strangers into your home. Our agents will generally pre-screen and accompany qualified prospects through your property.
  11. FPS Properties can help you objectively evaluate every buyer's proposal without compromising your marketing position. This initial agreement is only the beginning of a process of appraisals, inspections and financing and to side step a lot of possible pitfalls. FPS Properties can help you write a legally binding, win-win agreement that will be more likely to make it through the process.
  12. FPS Properties can help close the sale of your home. Between the initial sales agreement and closing, questions may arise. For example, unexpected repairs are required to obtain financing or a cloud in the title is discovered. The required paperwork alone is overwhelming for most sellers. FPS Properties is the best person to objectively help you resolve these issues and move the transaction to closing.
    So if you are in the thinking of:
  • Selling
  • Buying
  • Wanting a valuation

Or just want to meet the team

Please give us a call at (021) 9820965


After media recently reported events of violence against toddlers, many parents may be considering installing Nanny Cam Monitors in their homes. A child’s safety is a priority for any parent and this seems a logical step to help identify or provide proof for a concerned parent of possible abuse or mistreatment. As an employer, you want to trust your domestic worker or nanny, and your concern could possibly even extend to the security of your property. But can you just install a Nanny Cam to provide evidence for your suspicions, and if you did, and it does, can you use this information?

In this article, we will shed some light on the legal position from an employer / employee relationship perspective, address the right to privacy to be considered as well as establish the steps that need to be followed before a Nanny Cam can be used to monitor a domestic worker or nanny and any recording be used for criminal prosecution and/or disciplinary proceedings.

Parents must be aware of the legal implications of installing and making use of a Nanny Cam in their households before doing so. In South Africa the use of electronic devices and the recording thereof is regulated and governed by legislation. The relevant Act is known as the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”).

RICA requires that you obtain the written consent of the person in your employment that might be captured and or recorded on a Nanny Cam Monitor before you install such a Nanny Cam Monitor. The issue of consent has been debated in our courts to establish the admissibility of recordings being introduced as evidence which display misconduct by employees.

In Satawu obo Assagai v Autopax 2002, 2 BALR 17 the CCMA Commissioner ignored the provisions of RICA’s predecessor, the Interception and Monitoring Act 127 of 1992 (“IMA”) dealing with consent, where an employee was captured on video being involved in a dishonest transaction. The employee claimed that the videotape must be disallowed because he was unaware that he was being taped. The arbitrator dismissed the argument, and found that the provisions of IMA did not strongly apply in civil cases. It is yet to be determined how our Courts and arbitrators will deal with the provisions of RICA, which are stricter than that of IMA.

The reasoning behind obtaining your domestic worker’s or nanny’s consent is to be found in the right to privacy. The right to privacy includes the right to privacy of your communication, which in terms of RICA, includes a prohibition on the monitoring or recording of actions/movements by an electronic device without prior written consent.

The element of consent is however a cause for concern for an employer/parent, in that firstly it is the employer/parent’s premises that are being monitored and the need for consent in respect of your own property seems superfluous, and secondly most employers/parents install Nanny Cam Monitors only when they either suspect that their children are being abused by the domestic worker or nanny or