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How will the 2019 Proposed Financing Provisioning Regulations affect mining companies?
ENSafrica, August 2019

  In May 2019, the South African Proposed Regulations Pertaining to the Financial Provision for the Rehabilitation and Remediation of Environmental Damage caused by Reconnaissance, Prospecting, Exploration, Mining or Production Operations, 2019 (the “2019 Regulations”) were released for public comment...

Does Section 187(1)(c) of the LRA Apply to Individual Dismissals?
ENSafrica, August 2019

Section 187(1)(c) of the South African Labour Relations Act, 1995 (“LRA”) has always been controversial because of the interplay between the definition of automatically unfair dismissals, employers’ rights to terminate contracts of employment on the basis of operational requirements and the institution of collective bargaining...

Tread Carefully: Insubordination and Insolence can Easily be Confounded
ENSafrica, August 2019

Unfair dismissal disputes arising from allegations of insubordination have had their fair share of attention from South African arbitrators and the courts. The latest of these decisions is that of the Labour Court in Naicker v Commission for Conciliation Mediation and Arbitration and Others. The employee in this matter, Ms Naicker, was employed by Africa Flight Services (a cargo handler) as a customer service agent...

The Remedy Against Taking the Law Into Your Own Hands
ENSafrica, August 2019

  It is a well-established principle of South African law that you may not take the law into your own hands. The remedy formulated to enforce this principle is the mandament van spolie.In its classic formulation, the mandament, or spoliation action, protects against a deprivation of possession otherwise than through a legal process. All a plaintiff need prove is that it was in peaceful and undisturbed possession of property and was deprived of that possession...

The Reciprocal Duty of Good Faith Undercuts Derivative Misconduct
ENSafrica, August 2019

  For the first time in employment law jurisprudence, the South African Constitutional Court has considered the nature and scope of the duty of good faith within the context of the contract of employment. This occurred in its recent decision inNUMSA obo Nganezi & Others v Dunlop Mixing and Technical Services (Pty) Ltd & Others. Factual background During August 2012, Dunlop’s employees embarked on a protected strike...

Dismissing an Employee for Dishonesty During a Disciplinary Hearing or Arbitration Proceeding  
ENSafrica, August 2019

  Dishonesty in the workplace can take various forms, including theft of the employer’s property (or that of fellow employees), fraudulent conduct, such as submitting incorrect time sheets, lying to managers and other unethical conduct...

Multinationals are Now Able to Second their Employees to Rwanda
ENSafrica, August 2019

  Rwanda has adopted a ministerial order implementing the law on immigration and emigration, introducing various changes to the Rwandan immigration and emigration landscape. The ministerial order provides for a new type of work/residence permit (the Q1 permit), which allows the secondment of employees of multinationals to their subsidiaries and/or branches in Rwanda without employees being required to enter into employment contracts with a Rwandan company...

Dividends Tax: Most-Favoured Nation Clause in Double Tax Agreement
ENSafrica, August 2019

On 12 June 2019, the Tax Court of South Africa delivered its judgment in ABC (Pty) Ltd v C:SARS (case no. 14287). The court was tasked with determining the application and interpretation of South African double taxation agreements (“DTAs”) entered into with the State of Kuwait (the “SA-KW DTA”), the Kingdom of the Netherlands (the “SA-NL Protocol”), and the Kingdom of Sweden (the “SA-SE Protocol”)...

Debt Capitalisations Between Two Controlled Foreign Companies
ENSafrica, August 2019

  The various changes to the so-called debt waiver provisions in section 19 of the South African Income Tax Act, 1962 (the “Act”) and paragraph 12A of the Eighth Schedule to the Act in terms of the Taxation Laws Amendment Acts of 2017 and 2018 have come and gone. It is understood that there is now finality in terms of the debt waiver provisions as contained in the Act, which we discussed in a previous article...

Africa Tax in Brief
ENSafrica, August 2019

  ANGOLA: Introduction of VAT postponed The introduction of value-added tax (“VAT”), scheduled for 1 July 2019, was postponed to October following discussions between the Angolan Government and the Business Technical Group (“GTE”), which advocated implementing VAT only in January 2020...

Mauritiaus' Environment Land Use Appeal Tribunal Delivers Ground Breaking Fish Farming Project Judgment
ENSafrica, August 2019

The Association Des Hoteliers et Restaurateurs Ile Maurice (“AHRIM”), an association of hotels and restaurants in Mauritius, and the Sea Users Association, an association of civilians, recently won an important appeal. The appeal was against the grant of an Environmental Impact Assessment (“EIA”) licence to a fish farming project by the Minister of Social Security, National Solidarity, and Environment and Sustainable Development...

New Decision May Deprive Commissioner Discretion to Refuse Legal Representation in CCMA and Bargaining Council Arbitration Proceedings
ENSafrica, August 2019

  A recent landmark decision of the of the South African Metal and Engineering Industries Bargaining Council could see Commission for Conciliation, Mediation and Arbitration (“CCMA”) commissioners stripped of their discretion in granting legal representation for those involved in unfair dismissal disputes arising from misconduct or incapacity...

Extended Scope of “Electronic Services”: New VAT Frontier or Pandora’s Box?
ENSafrica, August 2019

On 18 March 2019, South Africa’s National Treasury published revised Electronic Services Regulations, significantly expanding the scope of electronically supplied services that are subject to value-added tax (“VAT”). The publication follows the Minister of Finance’s announcement in the 2017 Budget Review that the regulations defining electronic services would be broadened...

The Interaction Between the Debt Reduction Rules and Other Provisions of the Income Tax Act
ENSafrica, August 2019

Having gone through a number of substitutions and amendments, the debt reduction rules contained in section 19 of the South African Income Tax Act, 1962 (the “Act”) and paragraph 12A of the Eighth Schedule to the Act now provide for the implications arising for a debtor where a debt owed to a creditor is waived, cancelled or capitalised by way of the issue of shares etc...

Africa Tax in Brief
ENSafrica, August 2019

  AFRICA: African Continental Free Trade Area Agreement enters into force The Parliament of Zimbabwe and the Ethiopian House of Representatives approved the African Continental Free Trade Area Agreement (“ACFTA”) on 14 March and 21 March 2019, respectively. The Moroccan Council of Government approved the ACFTA on 21 February 2019...

SARS Publishes Draft Rules for the Administration of the Carbon Tax
ENSafrica, August 2019

  Introduction On 30 April 2019, the South African Revenue Service (“SARS”) published draft rules, schedules and forms for the implementation of the carbon tax and provided details on the envisaged carbon tax administration, including the registration of clients, licensing of emissions facilities, carbon tax environmental levy accounting and the application of allowances as rebates...

Large-scale Retrenchments: Compensation as a Remedy for Procedural Unfairness
ENSafrica, August 2019

  The general requirements for a fair dismissal based on an employer’s operational requirements are found in section 189 of the South African Labour Relations Act, 1995 (“LRA”). However, section 189A provides for specific procedures and remedies, should an employer embark on a large-scale retrenchment. Various consequences flow from the fact that a proposed retrenchment falls within the scope of section 189A...

Transfer of Shares in a Private Company: Misstep from the Supreme Court
ENSafrica, August 2019

  It is standard practice that for a share transfer in a private limited liability company to be effective, the transferor and transferee must execute a share transfer form, pay stamp duty on it and present it to the company for registration, together with the related share certificate, if any. The Ugandan Companies Act, 2012 prohibits the transfer of shares unless a proper instrument of transfer has been delivered to the company...

Carbon Tax Becomes Law on 1 June 2019
ENSafrica, August 2019

  South African President Cyril Ramaphosa has signed into law the Carbon Tax Act, 2019, which comes into effect on 1 June 2019. With the passing of the carbon tax into law, a price on carbon emissions is now a reality for the South African economy.The impact of the legislation, along with complementary measures such as the national greenhouse gas emission reporting regulations, will have a transformative effect on the South African economy...

The Supreme Court of Mauritius Sets Aside Award on Grounds of Breach of Domestic Public Policy
ENSafrica, August 2019

  In a judgment delivered on 31 May 2019, a bench of three Designated Judges of the Supreme Court constituted under section 42 of the Mauritian International Arbitration Act, 2008 (the “IAA”), set aside an arbitral award delivered under the Arbitration Rules of the Singapore International Arbitration Centre...

Rwanda has been Admitted as a Member of the OECD Development Centre
ENSafrica, August 2019

  On 20 May 2019, Rwanda was admitted as a member of the Organization for Economic Co-operation and Development (“OECD”) Development Centre, becoming the first East African country to join the Development Centre. Founded in 1961, the OECD Development Centre is an independent platform that enables developed economies to interact, share knowledge and have policy dialogues with developing economies...

The Advertising Regulatory Board: No One-Trick Pony
ENSafrica, August 2019

  We recently reported on a ruling of the new advertising authority in South Africa, the Advertising Regulatory Board (“ARB”). The dealt with the issue of misleading advertising. In this article, we’ll look at three more rulings that make it clear that the ARB deals with a range of important issues...

South Africa: Time to Elect IP
ENSafrica, August 2019

  South Africa recently held its general national election and the result was a win for the incumbent African National Congress (ANC) party. The election was fought against a backdrop of massive unemployment and a stagnant economy. During the course of the election, there was considerable focus on the issue of property rights and particularly, the possible expropriation of immovable property, especially farms...

Plain Packaging: An Issue That’s Not Quite Extinguished
ENSafrica, August 2019

  An article that appeared in the South AfricanDaily Mavericknews site, “Plain packaging for cigarettes is a bad idea”,suggests that the plain packaging debate is not yet over. A recap We’ve discussed plain packaging for cigarettes on a number of occasions. We’ve looked at how Australia has been at the forefront of this issue, with 2011 legislation requiring all brands of cigarettes to be sold in identical green packs featuring graphic images...

Mauritius: Trade Marks Filed “in Defiance of Commercial Morality”
ENSafrica, August 2019

  A recent decision of the Mauritian Industrial Property Tribunal (the “Tribunal”) will provide some comfort to international brand owners. The case involved an application by a foreign company to cancel a trade mark registration obtained by a local party. The facts inStrategic Foods International Company LLC v Meher Banon Gokhoolwere all too familiar...

 

 

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