“The degree of consumer care is becoming more heightened as the novelty of the Internet evaporates and online commerce becomes commonplace.” This quote, which comes from a United States (“US”) decision, is quoted in the South African Supreme Court of Appeal’s (“SCA’s”) judgment in the so-called “Clearvu case” – Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd and Another (unreported case no. 227/2015, 27 May 2016) ...
A South African court has found that, for the purposes of fair dealing in copyright law, hyperlinks are a sufficient way of acknowledging source and ownership. The recent decision in the case of Moneyweb (Pty) Limited v Media 24 Limited and Another (unreported case no. 31575/2013, 5 May 2016) attracted a great deal of publicity. This is possibly because the two main parties are media companies ...
On 20 June 2016, the South African National Treasury published draft Carbon Offsets Regulations (“draft regulations”), intended as a component of the proposed carbon tax. The draft regulations mark the next step in the process of bringing the carbon tax into operation by early 2017 ...
A court has ruled that the South African Advertising Standards Authority (“ASA”) does not have the authority to consider and rule on adverts placed by entities that aren’t members of the organisation. Regular readers will know that the ASA is frequently used as a forum for dealing with what are essentially trade mark or passing-off disputes. This is because the ASA Code contains provisions that prohibit advertising that causes consumer confusion or involves slavish copying ...
The Organisation for Economic Co-operation and Development (“OECD”)/G20 Base Erosion and Profit Shifting (“BEPS”) Project identified 15 actions based on the following three key themes, being: · the introduction of coherence in the domestic rules that affect cross-border activities; · the reinforcement of substance requirements in the existing international standards; and · the improvement of transparency and certainty ...
It is the long-standing practice of traders and service providers to grant customers extended payment terms for the goods or services they supply as a means to enhance turnover. Where the credit provided is interest-free, the question that arises is whether the provision of such credit impacts on the entitlement of the supplier to claim input tax for value added tax (“VAT”) purposes ...
Egypt’s Ministry of Trade and Industry has issued Decree No. 43 of 2016, which amends the rules organising the registration of factories and companies that are eligible to export their products to Egypt. The decree took effect on 15 March 2016, and replaces all previous decrees or stipulations that contradict it ...
One of the innovations introduced by the Companies Act, 71 of 2008 (“Companies Act”) is the mechanism of business rescue proceedings in South Africa. In particular, chapter 6 of the Companies Act was inserted to “provide for the efficient rescue and recovery of financially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders” (see section 7(k)) ...
On 17 May 2016, the Competition Commission (the “Commission”) held a press conference to update all stakeholders on the Grocery Retail Market Inquiry (the “Inquiry”). The press conference introduced the Inquiry Panel (the “Panel”) and provided an opportunity for stakeholders in attendance to ask any questions to assist in clarifying the purpose of the Inquiry and what can be expected during the process. A summary of the press conference is set out below ...
A lifelong right to live in a house owned by someone else is referred to as a right to habitation. Once this right is registered in the Deeds Office, it is enforceable against everyone, including the registered owner of the immovable property (“property”).This position was confirmed in the recent Supreme Court of Appeal case of Hendriks v Hendriks and Others (case no ...
The judgment of the Supreme Court of Appeal (“SCA”), which established certain guidelines and principles regarding the claiming of input tax for value added tax (“VAT”) purposes in the Commissioner for South African Revenue Services v De Beers Consolidated Mines Ltd (503/11) (1 June 2012) case may have far-reaching consequences for the private equity and venture capital industry ...
DEMOCRATIC REPUBLIC OF THE CONGO (DRC): Refund of input VAT credit suspendedIn terms of the DRC value added tax (“VAT”) legislation, export businesses, companies ceasing their activities, oil and mining companies (during the exploration phase) and companies making significant investments are entitled to request input VAT credit refunds ...
In terms of the South African controlled foreign company ("CFC") legislation contained in section 9D of the Income Tax Act, 58 of 1962 (the "Act"), where South African residents directly or indirectly hold more than 50% of the total participation rights (essentially, the right to participate in the benefits of the rights attaching to a share) in a foreign company, a proportional amount of the “net income” of that foreign company (as a CFC) will be included in the income of those residents ...
Is the current international tax focus on base erosion and profit shifting (“BEPS”) relevant for tax-exempt pension funds? In particular, should the trustees and/or administrators of pension funds take note of the finalisation by the Organisation for Economic Co-operation and Development (“OECD”) of the 15 point action plan to address BEPS? Both of these questions should be answered “yes” by South African pension funds that invest outside of the country ...
With tax litigation becoming more prevalent in recent years, taxpayers are now faced with new issues.One such issue is: when and to what extent will documents bearing an electronic signature be acceptable under the relevant tax legislation?In this regard, section 255(2) of the Tax Administration Act No ...
On 15 April 2016, the Minister of Mineral Resources published the draft Reviewed Broad Based Black-Economic Empowerment Charter for the South African Mining and Minerals Industry 2016 (“the draft reviewed Mining Charter”) for public comment, addressing among other issues, the targets to be met by the mining industry in respect of the housing and living conditions of mine workers ...
ENSafrica successfully represented Virgin Active in a South African Advertising Standards Authority (“ASA”) matter, regarding a Virgin Active TV advertisement that used the expression “get off your ass”. The case in question is S Jack & others v Virgin Active South Africa (Pty) Ltd, and the ruling was handed down on 26 February 2016. The point of the advertisement was to persuade people to start working out at Virgin Active gyms ...
A recent Australian decision on keyword usage of a registered trade mark is in line with decisions in many other countries, including South Africa. The facts in the case of Veda Advantage Limited v Malouf Group Enterprises (Pty) Ltd (2016) FCA 255 were straightforward. Veda is a company that compiles credit reports and has trade mark registrations for the trade mark Veda in class 36 for financial services. Malouf is a company that helps people remove their negative credit ratings ...
A recent South African court ruling dealing with one company’s use of another’s trade mark on an aggregator website has attracted some interest. The case in question is Car Find (Pty) Ltd v Car Trader (Pty) Ltd and Others (South Gauteng High Court, Judge van Oosten, 12 February 2016) ...
With the advent of the Construction Regulations, 2014 (the “regulations”), which are binding in terms of the Occupational Health and Safety Act, 1993 (“OHASA”), additional duties are now placed on the “client” that did not exist under the previous regulatory regime. For example, the client now assumes the duty to prepare a baseline risk assessment for a construction work project and, depending on the factual circumstances, to apply for a construction work permit ...
The Lagos Tax Appeal Tribunal (“TAT”) on 12 February 2016 ruled in favour of the Federal Inland Revenue Service (“FIRS”) in its case with Vodacom Business Nigeria Limited (“Vodacom”) that satellite-network bandwidth capacities provided to Vodacom outside Nigeria by New Skies Satellites (“NSS”), a Dutch incorporated company, are liable to value added tax (“VAT”) in Nigeria ...
