Late March 2024
Ben Pieters - the Business Support Specialist
Constantly challenging ourselves to deliver more to our clients.
The NPA
State-building is a long-term undertaking. It takes patience, resources, innovative partnerships, political commitment and bureaucratic skill.
This had better be, as good governance is required by all of us.
Intentionally bad policy decisions and poor leadership during the State Capture period scuppered progress in key areas.
Calling-in the chips is now happening according to the Daily Maverick.
Read the full article here .
Notice issued by Information Regulator
The Information Regulator (“Regulator“) issued its first Enforcement Notice regarding non-compliance with the direct marketing provisions of the Protection of Personal Information Act?4?of?2013 (“POPIA“). This followed a complaint from a data subject of countless direct marketing messages, particularly emails, received from the entity.
The Regulator found that the entity ignored the opt-out requests from the data subject. However, can the Regulator read in the word "telephone" into the definition of electronic communications?
Read the full article by Werksmans.
Is your business struggling?
Section 155 of the Companies Act, 2008 (the "Act”), presents a compelling alternative that should not be overlooked, as outlined by Werksmans.
It stands as a potent and underutilized tool in the realm of corporate restructuring and insolvency in South Africa.
Importantly, it can be employed proactively by a solvent company to implement financial reorganization measures.
Section 155 of the Companies Act is firmly grounded in the principles of equity and fairness. but requires compliance. It recognizes the need for flexibility and adaptability in corporate affairs, especially during times of financial distress.
Read the article here .
Lessons from the LAC
Reported by Werksmans, the Labour Court (“LC“) found the dismissal of the employee to be automatically unfair, as it was as a result of a protected disclosure and ordered that the employee be reinstated.
Before the LC the employee did not plead or seek an order for reinstatement but rather compensation equal to 24 months.
On appeal by the employer, the Labour Appeals Court ("LAC"), found that parties are required to be held strictly to their pleadings and it is not open for a court to ignore the pleadings and grant an order not sought by the employee.
Read the full article here .
Securities registration and transfer
SchoemanLaw reports in GoLegal that the registration and transfer of securities play a crucial role in the functioning of companies and the broader financial markets.
Regardless of whether securities are certificated or uncertificated, the rights and obligations of security holders remain equal under the law. Companies are mandated to maintain a securities register by the Companies Act. This register serves as proof of ownership and contains essential details regarding securities issued by the company.
Upon transfer, a proper instrument of transfer must be delivered to the company for registration, and restrictions on transferability may apply.
Read the article here .
The Wilgenhof Residence saga
A scandal has recently surfaced surrounding a multitude of allegations regarding Wilgenhof Residence, a men’s residence of Stellenbosch University.
The question arises: if the students, or “participants”, did sign an indemnity agreement, would that be legally binding?
It is commonly accepted that South African citizens may freely enter into contractual agreements with each other. A contract is merely an agreement of reciprocal legal obligations, and this is an agreement which the courts will generally protect, provided it was entered into freely and voluntarily and without undue influence and duress.
However, indemnity clauses must, firstly, be very clear about what is indemnified. If the clause is vague in terms of the indemnification, that vagueness will generally count against the party that seeks to be indemnified.
Read the full article here .
Trustee vs Trust Administrator
SchoemanLaw writes in GoLegal that the role of a trustee is established by the Trust Property Control Act 57 of 1988 (“TPCA”), and it is a position of great responsibility.
In contrast, a trust administrator is a professional who may be appointed to assist with the administrative aspects of trust management. The TPCA does not explicitly define this role but is commonly used in practice to delegate specific non-fiduciary tasks.
The critical distinction between a trustee and a trust administrator under the TPCA lies in their roles and legal obligations. Trustees are fiduciaries with significant legal responsibilities and obligations to beneficiaries, while trust administrators primarily provide administrative support without the same level of fiduciary duty.
Read the article here .
New earnings threshold effective 1 April 2024
Cliffe Dekker Hofmeyr indicates that the earnings threshold impacts the application of provisions of
In terms of the BCEA, employees earning in excess of the earnings threshold are excluded from the provisions, which regulate ordinary hours of work, overtime, compressed working weeks, averaging of hours of work, meal intervals, daily and weekly rest periods, Sunday pay, pay for night work and pay for work on public holidays.
“Earnings” means an employee’s regular annual remuneration before the deduction of income tax, pension fund contributions, medical aid contributions and similar payments, but excludes similar payments or contributions made by the employer in respect of the employee.
Read more here.
When does the clock start under section 7(1) of PAJA?
Cliffe Dekker Hofmeyr recently wrote that a ruling was made by the Constitutional Court at the end of last year, confirming that the 180-day period afforded by section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") starts running from the date that reasons for the decision are provided with sufficient detail to allow the offended party to file an objection against the decision.
Parties intending to use the review proceedings afforded by section 7(1) of PAJA should thus be mindful of when sufficient reasons for administrative action have been given, as this would determine when the 180-day period stipulated in the section would begin to run.
Read the article here .
Perspective on Water Rights
Fasken attorneys wrote in Lexology that according to section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 (the "Constitution"), the supreme law of South Africa, everyone has the right to have access to ‘sufficient’ water.
Section 3(1) of the Water Services Act 108 of 1998 (the "WSA"), which provides that everyone has the right to have access to a basic water supply and basic sanitation necessary to ensure sufficient water and an environment not harmful to health or well-being.
The National Water Act 36 of 1998 (the "NWA") provides for fundamental reform of the law relating to water resources. National government has overall responsibility for and authority over water resource management, including the equitable allocation and beneficial use of water in the public interest. It also provides for the acknowledgment of existing water use entitlements.
Read the full article here .
Anti-Bribery and Anti-Corruption
Deloitte writes in Lexology that bribery and corruption continue to pose a significant threat to the integrity of organisations and the global economy.
Each year corruption and illicit financial flows cost the global economy US$3.6 trillion, according to the United Nations, a sum equivalent to more than 5 per cent of the global GDP.
领英推荐
Companies that operate in international jurisdictions face several significant challenges when reviewing financial transactions and books, and records for bribery and corruption risks. Many organisations can still benefit from a data-driven approach to accelerate the monitoring capabilities of their compliance teams.
Data analytic tools are already bringing value across organisations and have the potential to bring further value in a compliance context.
Read the full article here .
SARS dispute resolution process
SARS reporting recently in their SMME Connect series, dealt with the common mistakes or errors made by taxpayers:
SARS acknowledges that it demonstrated that there is still much work to be done around disputes. "No doubt, we have to provide clarity and certainty to make it easier for you to meet your tax obligations"
The Companies Act 2023 as amended
Anticipating that the Companies Amendment Bill 2023 will be signed into law shortly, we published an article on LinkedIn in February 2024, referring to it as the Companies Act 2023 as amended.
The Companies Act and its Regulations play a central role in the private sector in general and specifically in our consulting practice.
At Talk2Us Advisory, our consulting arm, a decision was taken some time ago to produce the Companies Act 2023 once the Amendment Act becomes law.
We intend to make it available online in electronic format only to our many LinkedIn and Twitter followers, and to others via word of mouth.
We do not intend to produce it as a bound hard copy or even as a paper-back, but rather offer the Act in A4 PDF format only, to keep the cost to our followers as low as possible.
Read the full article here .
Eskom’s coal plants hitting a cliff
Shaun Jacobs reports in Daily Investor that South Africans can expect load-shedding and problems at Eskom to get worse as the utility’s plants reach the end of their design life.?
Eskom cannot afford to let these plants be shut down as they provide critical generation capacity. Thus, it has chosen to try to extend the life of several power stations.?
Coal-fired power plants are expected to have a service life of about 30 to 40 years for economic and technical reasons.?Eskom’s 15 coal-fired power plants have an average age of 42 years.?
For the lifespan of a plan, one important influence is the quality of the operation and maintenance.? Most equipment and components of the power plant are to be changed in a lifetime extension program after 40 years of operation.
This is not happening.?
Read the full article here .
Sars is not always right
A MoneyWeb article written by Amanda Visser shows that a taxpayer approached the Office of the Tax Ombud ("OTO") with its complaint when the objection it raised against a SARS tax assessment was invalidated, preventing the taxpayer from lodging an appeal against the decision.
The dispute arose from a 2023 assessment in which Sars disallowed a claim for the tax exemption on income earned abroad. The taxpayer objected and submitted supporting documentation for the claim. Sars requested additional supporting documents, and the taxpayer obliged.
Sars can invalidate an objection if:
The OTO notes that Sars is not allowed to invalidate an objection because it disagrees with the taxpayer’s grounds of dispute.
If Sars requests further supporting documentation – as it did in this case – it must decide to allow, disallow, or partially allow the objection based on the information submitted by the taxpayer.?
Transfer pricing
Cliffe Dekker Hofmeyr reports that with increasing economic globalisation, revenue authorities around the world continue to shift their focus to issues of transfer pricing. Broadly, this fits in with the global move to combat so-called ‘profit shifting’, a practice where multinational groups attempt to concentrate their profits in low-tax countries in which they operate.
South Africa has enacted section 31 of the Income Tax Act 58 of 1962 (ITA) and published its Interpretation Note 127 last year on thin capitalisation and the application of transfer pricing rules to inter-company loans.
The Tax Court’s recent decision in the ABD Limited case - the first to deal with the matter- serves as a useful guide to the basics of transfer pricing within the context of South African tax law.
Read the full article here.
Unlocking funding options for small businesses
The NSBC reports in its latest newsletter that Small and Medium Enterprises (SMEs) are the backbone of South Africa’s economy and are pivotal in driving economic growth and job creation.? Despite their critical role, approximately?40%?of these enterprises struggle to secure the necessary funding to thrive and operate at their full potential, creating not only financial challenges but also constraints,? resulting in limited market access and resources.?
In South Africa,?three out of ten?SMEs have expressed concern about the rising cost of operating a business, due to high inflation and economic instability. The additional administrative duties required by SARS and CIPC adds to the workloads.
SMEs can explore alternative funding sources, including government grants, venture capital funds, crowdfunding platforms, and angel investor networks.
Read the article here .
No solution for load-shedding
No political party in South Africa has a credible solution to end load-shedding, despite many claiming that the problem would be solved quickly if they were in power.?
This is feedback from energy analyst Professor Hartmut Winkler reporting in Daily Investor.
He estimated that the current electricity crisis cannot be solved within the next five years.?Until new generation capacity is implemented, load-shedding is unlikely to improve.
He says “The way to go is to install more renewables, get those up to the level where about half the country’s electricity is run off renewables – the rest off coal, nuclear and gas – and then see from there.”
Read the full article here .
Massive Africa internet outage
TechCentral reports that disruption to internet services for millions of users in Africa could take weeks or even months to fix, following damage to undersea cables off the continent’s west coast.
Eight West African countries were suffering a second day of major connectivity issues on Friday with users in South Africa also affected, following damage to four subsea cables. The cause of the cable cutting was still not known, though a shifting of the seabed was among the likely possibilities.
The cable faults off Ivory Coast come less than a month after three telecoms cables were severed in the Red Sea, highlighting the vulnerability of critical communications infrastructure.
Read the article here .
Our Focus
We specialise in the provision of focused GRC consulting input on an informed basis, and in a manner that adds value to the enterprise.?
Put succinctly: we can help; we know what has to be done.
Call us.