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Africa tax in brief
ENSafrica, June 2018

COMOROS: Treaty with United Arab Emirates enters into forceThe income tax treaty between the Comoros Islands and the United Arab Emirates, signed on 26 March 2015, entered into force on 2 January 2018 and generally applies from 1 January 2019...

Controlled foreign companies: look before you leap
ENSafrica, June 2018

Section 9D of the Income Tax Act, 1962 (the “Act”) is aimed at South African residents who directly or indirectly hold more than 50% of the total participation (broadly speaking shares) or voting rights in a foreign company. A foreign company in this context is classified as a controlled foreign company (“CFC”)...

Mauritius Supreme Court sheds some light on priority of tax claims in liquidations
ENSafrica, June 2018

In The Car Company Ltd (in Liquidation) v...

Reducing the cost of transfer pricing compliance for MNEs
ENSafrica, June 2018

Many countries have become more focused on combating tax avoidance. As such, transfer pricing compliance has become much more burdensome due to substantial documentation requirements and multiple filing deadlines. Multinationals (“MNEs”) have to take action to control their transfer pricing risks, but the cost of doing so could substantially increase...

Doing IP deals: licences and sales
ENSafrica, June 2018

With intellectual property (“IP”), the focus is often on protection (generally in the form of registration) and enforcement, which often takes the form of an infringement action. Yet, there is also always a great deal of transactional activity taking place in respect of IP assets. This activity tends to fly under the radar, but two recent deals have made the news. These deals are examples of two of the most common IP transactions: licences and sales...

Celebrity IP: it can only be Messi
ENSafrica, June 2018

Celebrities have done a great deal to increase awareness of intellectual property (“IP”). The reason for this is simple: celebrities make significant use of IP and when they get into legal spats, their disputes make the news. The reason why celebrities are attracted to IP in the first place is equally simple: they know that they can use IP to significantly increase their wealth...

Chocolate bar brawls
ENSafrica, June 2018

Over the past few years, we’ve reported on a number of legal battles involving chocolate bars such as Kit Kat and Toblerone. These cases have dealt with the shape or appearance of chocolate bars. Another “food fight” has erupted in the UK, and this time it involves a speciality chocolate manufacturer called Hotel Chocolat and the retail chain Waitrose...

South Africa’s unforgotten and relevant past (mind your language)
ENSafrica, May 2018

In the decision in Rustenburg Platinum Mine and SAEWA obo Meyer Bester and Others, the Constitutional Court dealt with the question of whether an employee referring to a colleague as a “swart man” (“black man”), within the facts set out below, constituted misconduct justifying dismissal.The adjacent large 4x4 vehiclesThe employee in this matter, Mr Bester, was employed by the Rustenburg Platinum Mine (the “employer”)...

When can a difference in pay be justified?
ENSafrica, April 2018

The decision in National Education Health & Allied Workers Union on behalf of Sinxo & others and Agricultural Research Council is important primarily for two reasons. Firstly, it deals with when an employee can claim that he or she has been discriminated against on an arbitrary ground as envisaged in section 6(1) of the Employment Equity Act, 1998 (the “EEA”)...

Does the Prescription Act apply to unfair dismissal disputes in terms of the LRA?
ENSafrica, April 2018

The relationship between the periods set for pursuing unfair dismissal claims in terms of the Labour Relations Act, 1995 (“LRA”), and the prescription periods set in the Prescription Act, 1969 (“PA”) has been the subject of some confusion and debate. At the heart of the debate is the interpretation and application of section 16(1) of the PA...

Can algorithm bias result in employment discrimination?
ENSafrica, April 2018

A modern, technologically driven society generates large amounts of information about members of that society. Think, for example, of the information regarding statuses and activities that banks, credit card providers, medical aid schemes, cell phone networks and employers have in their possession. Think further of the information that Google, Facebook, Uber and Amazon have in their possession...

Government’s drive to achieve black ownership and control, but at what expense?
ENSafrica, April 2018

The South African Department of Trade and Industry (“DTI”) recently published certain draft amendments to the Broad-Based Black Economic Empowerment Codes (“B-BBEE Codes”)  for public comment. The proposed changes appear to signify the government’s drive to achieve more black ownership and control in South African business...

South African High Court Rules That B-BBEE Mining Deals Do Not Need To Be Topped Up
ENSafrica, April 2018

Earlier this year, a full bench of the High Court of South Africa made a ground breaking ruling on the recognition of the continuing consequences of previous broad-based black economic empowerment (“B-BBEE”) ownership transactions in the mining industry...

Don't Be Grumpy!
ENSafrica, April 2018

This is a story of the age, a story of a character that became a global sensation thanks to the internet. The story is also about the creator of that character, who had the foresight to understand that the character might well become a valuable marketing property and took steps to legally protect the character (its name and image) through IP law, particularly trade mark and copyright law, thus creating “the IP rights” and making the creator “the IP owner”...

New Islamic Banking Regulations to increase financial inclusion in Uganda
ENSafrica, April 2018

BackgroundThe Bank of Uganda recently released the Financial Institutions (Islamic Banking) Regulations (the “Regulations”), which were gazetted on 2 February 2018. The Regulations seek to operationalise Islamic banking in the country, which was introduced by The Financial Institutions (Amendment) Act, 2016 as part of its wider efforts to boost financial inclusion...

Design law: a welcome reminder
ENSafrica, April 2018

Two recent European IP decisions are a welcome reminder of that much-overlooked area of IP law: registered designs. If patent protection is primarily about functionality, design protection is primarily about product appearance (more on this later). These European cases are worth discussing because there are very few court decisions on registered designs in South Africa. They are also worth discussing because they highlight two fundamental aspects of design law...

Alexa... Buy Me a Hoover
ENSafrica, April 2018

Artificial intelligence (“AI”) is big news at the moment, so it’s no surprise that lawyers are considering the IP issues relating to AI. Some of the implications are really quite profound. In this article, I will discuss some of the copyright and trade mark implications. The copyright issues of AI have been discussed by a number of people...

Is Uganda ready for REITs?
ENSafrica, March 2018

Introduction The Ugandan Collective Investment Schemes (Real Estate Investment Trusts) Regulations, 2017 (the “REIT Regulations”) are the latest initiative by the Capital Markets Authority (the “CMA”) in Uganda...

Debt forgone for the benefit of mining companies
ENSafrica, March 2018

The South African Taxation Laws Amendment Act, 2017 was signed into law on 18 December 2017 and made some notable changes to the tax regime. In this article, we deal specifically with the amended section 36 of the Income Tax Act, 1962 (the “Act”) by the insertion of subsection 36(7EA) of the Act...

Amendments to Zimbabwe’s indigenisation laws to open economy to foreign investment
ENSafrica, March 2018

Amendments to Zimbabwe’s controversial Indigenisation and Economic Empowerment Act, Chapter 14:33 (the “Act”), were gazetted on 14 March 2018. These far-reaching changes, first announced in the 2018 Budget in December 2017, should pave the way for foreign investors wishing to establish operations in the country and boost the economy...

Uganda: when can domestic laws override tax treaties?
ENSafrica, March 2018

In the case of White Sapphire Ltd/Crane Bank Ltd vs the Commissioner General of the Uganda Revenue Authority (“URA”), the Ugandan High Court considered the notoriously controversial anti-avoidance provisions, in terms of which the benefits of a double tax agreement (“DTA”) concluded by Uganda would not be available where at least 50% of the underlying ownership of the resident of the other contracting state is not held by individuals resident in such other contr

The “specific” doubtful debts allowance
ENSafrica, March 2018

Over the past few years, the South African Revenue Service (“SARS”) appears to have created a new category of doubtful debts allowances which they have termed a “specific” doubtful debts allowance, as distinct from the “ordinary” doubtful debts allowance to which a taxpayer is entitled under section 11(j) of the Income Tax Act, 1962 (the “Act”) in the ordinary course in respect of its doubtful debts...

JSE Debt Listings Requirements: project bonds
ENSafrica, March 2018

Following an extensive consultation process over a two-year period with relevant stakeholders in the project finance market, the South African Registrar of Securities Services (the “Registrar”) has announced that the Johannesburg Stock Exchange (“JSE”) Debt Listings Requirements (“DLRs”) have been amended with effect from 1 March 2018 to include a new section 10, which will now specifically cater for so-called “project bonds”...

New international standard a key feature in ENSafrica’s latest anti-bribery and corruption survey
ENSafrica, March 2018

A key feature of ENSafrica’s fourth annual anti-bribery and corruption (“ABC”) survey was understanding whether organisations were familiar with the new ISO 37001 anti-bribery management standard (“ABMS”). The International Organization for Standardisation released the ABMS in October 2016...

Amendments to the ARIPO Harare Protocol: modified substantive examination
ENSafrica, March 2018

We have previously reported on the amendments to the Harare Protocol that came into effect on 1 January 2017. One of these changes was that a mandatory request for search and examination must be made to the African Regional Intellectual Property Organization’s (“ARIPO’s”) office within three-years of the ARIPO filing date, along with payment of search and examination fees...

Domain names: getting real
ENSafrica, March 2018

By its own very high standards, Real Madrid is not having the greatest of soccer seasons, although it has, at least, triumphed in a recent domain name case.The decision in the case of Real Madrid Club de Futbol v Jose Delfim Mendosa de Vasconelos was handed down by panelist Eduardo Machado on 24 January 2018. The issue in the case was straightforward: an individual in Brazil registered the domain name www.realmadrid.com.br...

IP: will you be a player or a hater?
ENSafrica, March 2018

Taylor Swift has been in the IP spotlight again and, as always, there are valuable lessons to be learned. The singer was recently sued in a US court for copyright infringement...

Offensive trade marks vs free speech
ENSafrica, March 2018

The issue of offensive trade marks rumbles on.In 2017, the landmark US decision in Matal v Tam came after the founder of an Asian-American rock group sought trade mark registration for the band’s name, The Slants. The US Patent and Trademark Office (the “USPTO”) refused the application on the basis that the trade mark was offensive...

Are Pension Funds, PBOs and Universities Exempt From All Taxes?
ENSafrica, March 2018

The South African Income Tax Act, 1962 (the “Income Tax Act”) contains exemptions from income tax that apply to institutions such as pension funds, certain universities and non-profit public benefit organisations, with an altruistic or philanthropic intent...

REITs and corporate reorganisations: 2018 updates
ENSafrica, March 2018

The South African tax provisions applicable to real estate investment trusts (“REITs”) were introduced by way of the insertion of section 25BB of the Income Tax Act, 1962 (the “Act”), as well as consequential insertions in various sections of the Act during 2013. These provisions relating to REITs have been subject to various changes and refinements over time in order to resolve various issues and legislative anomalies...

Stifling Uganda’s secondary bond market: the case of David Chandi Jamwa
ENSafrica, March 2018

The recent decision of the Ugandan Court of Appeal to uphold a 12-year custodial sentence against a former managing director of the National Social Security Fund (“NSSF”) has sparked much debate among finance and legal professionals. Speculation is rife on the impact the decision will have on fund managers (falling within the scope of the Anti-Corruption Act, 2009), as they trade on the secondary bond market...

Surviving the transition to a 15% VAT rate
ENSafrica, March 2018

Surviving the transition to a 15% VAT rate   The South African Minister of Finance, Malusi Gigaba, tabled the 2018/19 Budget in Parliament on Wednesday, 21 February 2018. Government announced a lower than predicted 1% increase in the value-added tax (“VAT”) rate from the current 14% to 15% with effect from 1 April 2018...

A Clearvu on endorsements
ENSafrica, February 2018

Every now and then, a dispute comes along that adds an extraordinary amount to the law. One such dispute is the Clearvu trade mark case.We have reported on the case of Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd on a number of occasions. This was the case in which a South African court had to consider whether or not it is unlawful for a company to bid on the trade mark of a competitor as a keyword/search term...

Akanamali: feeling like you can make some money?
ENSafrica, February 2018

In South Africa, the song Akanamali, sung by the artist Sun-El Musician and featuring Samthing Soweto, was one of the most popular songs of 2017. Towards the end of the year, South African financial services giant First National Bank (“FNB”) ran a campaign to promote its products and services. It called this campaign Akanamali and featured the hook of the song, which was about a lack of money...

Copyright: joint ownership and databases
ENSafrica, February 2018

A South African judgment dealing with joint ownership of copyright in databases has recently come to light. The judgment was handed down almost a year ago, but it seems to have slipped under the radar. This judgment will, however, be of interest to those involved in IP.The case is The Philanthropic Collection (Pty) Ltd v Girls & Boys South Africa...

Trade marks and politics
ENSafrica, February 2018

It’s interesting how often trade marks and politics intersect, especially in South Africa!In the most recent example, the issue was whether a political party that had broken away from the ruling African National Congress (“ANC”) – the African Democratic Change – had infringed the rights of the ruling party. As is commonly known, the logo of the ANC features the colours black, green and gold, as well as an image of a hand grasping a spear...

When will POPI come into force?
ENSafrica, February 2018

  The question of when the South African Protection of Personal Information Act, 2013 (“POPI”) will come into force has been asked many times since the Bill was signed into law by the president on 19 November 2013...

Greater B-BBEE disclosure requirements for JSE-listed companies
ENSafrica, February 2018

In an effort for the South African government to assess the state of transformation of publicly listed companies, the Broad-Based Black Economic Empowerment Act, 2003 (the “B-BBEE Act”), read together with the B-BBEE Regulations, requires that all companies listed on the Johannesburg Stock Exchange (“JSE”) report to the B-BBEE Commission annually on their compliance with broad-based black economic empowerment (“B-BBEE”)...

Is your organisation ready for POPI and the GDPR?
ENSafrica, January 2018

In an increasingly connected world, the protection of privacy and personal data has become a key concern for legislators in a number of jurisdictions. In South Africa, an attempt to give effect to the constitutional right to privacy resulted in the Protection of Personal Information Act, 2013 (“POPI”), which was gazetted on 26 November 2013...

Africa tax in brief
ENSafrica, January 2018

ANGOLA: Draft law on tax and foreign exchange compliance approvedParliament approved a draft law on the Extraordinary Regime on Tax and Foreign Exchange Compliance, regulating the repatriation of assets held abroad that have not been declared in Angola in December 2017...

Amendments to the taxation of debt restructures
ENSafrica, January 2018

Since 1 January 2013, section 19 of the Income Tax Act, 1962 (the “Act”) and paragraph 12A of the Eighth Schedule to the Act (the “Eighth Schedule”) have determined the tax implications where a debt owing by a taxpayer is cancelled, waived, forgiven or discharged for no consideration (or for consideration that is less than the amount of the debt)...

Are you aware of your B-BBEE compliance obligations?
ENSafrica, January 2018

Broad-based black economic empowerment (“B-BBEE”) is a policy of the South African government that is aimed at increasing participation by previously disadvantaged South Africans in economic activities. The Broad-Based Black Economic Empowerment Act, 2003 (the “B-BBEE Act”) is the primary legislation through which this B-BBEE policy is implemented...

Potential VAT cash flow problem for residential property developers
ENSafrica, January 2018

The recent end of the value-added tax (“VAT”) relief period for property developers in South Africa, who temporarily let their residential units, may have a significant impact on their cash flow.  BackgroundOrdinarily, property developers acquire or develop fixed property (including residential properties) for the purpose of resale...

Regulators join forces to ensure B-BBEE compliance
ENSafrica, January 2018

On 15 December 2017, the South African Department of Trade and Industry (the “DTI”) published a memorandum of understanding entered into between the Companies and Intellectual Property Commission (the “CIPC”) and the Broad-Based Black Empowerment Commission (the “B-BBEE Commission”) (the “CIPC MOU”)...

Employment Discrimination Outlawed if Based on a Criminal Record Irrelevant to the Work in Question
ENSafrica, January 2018

The Mauritian Equal Opportunities Act, 2008 (the “Act”) prohibits and sanctions discrimination in employment on the basis of a person’s status. Status encompasses age, ethnic origin, race, sex and sexual orientation, among others...

Labour Court rules on automatically unfair dismissals in the context of changes in employment conditions
ENSafrica, January 2018

The recent decision of the Labour Court in National Union of Metalworkers of South Africa obo members and Aveng Trident Steel (A division of Aveng Africa (Pty) Ltd) may provide some cheer to employers facing the challenges of restructuring their workforce in difficult economic times. Since 2014, the employer in this matter has faced strong economic headwinds caused by a downturn in sales and increased costs...

Introduction of the in Duplum Rule in Rwanda
ENSafrica, January 2018

  The end of 2017 saw a number of changes in the regulatory framework of the Rwandan financial sector, the most significant of which included a change in the law governing the regulator of the financial sector (the National Bank of Rwanda) and the enactment of the New Banking Act governing the organisation of banking, both of which were gazetted in October 2017...

Draft Carbon Tax Bill released for comment
ENSafrica, January 2018

On 14 December 2017, the South African National Treasury published a Draft Carbon Tax Bill (the “Bill”) for public comment, with the comment period commencing immediately and continuing until 9 March 2018...

Does resigning with immediate effect put a stop to disciplinary proceedings?
ENSafrica, December 2017

The past year has seen a number of high-profile instances of employees resigning, allegedly to avoid disciplinary proceedings against them. This issue was dealt with in the case of Mtati v KPMG Services (Pty) Limited.The employee in this matter was informed by her employer that an investigation was being conducted into allegations of misconduct levelled against her. She then provided her employer with a letter in which she tendered her notice of resignation...

The National Minimum Wage Bill released for public comment
ENSafrica, December 2017

On 17 November 2017, the National Minimum Wage Bill was gazetted for public comment. Given that the Bill was the subject of negotiation and agreement at the National Economic Development and Labour Council (“NEDLAC”), its progress through the legislative process is likely to be fairly smooth. The Bill envisages that it should be in force by 1 May 2018. We highlight its most important provisions below...

 

 

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