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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 themandament van spolie.In its classic formulation, themandament, 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 June2019, the Tax Court of South Africa delivered its judgment inABC(Pty)LtdvC: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...

Mauritius’ 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 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...

Porsche 911…Something a Bit Different Please!
ENSafrica, August 2019

  The Porsche 911 is undoubtedly an iconic car. Instant product recognition is, of course, something that most companies strive for. But fame and familiarity can create their own problems when it comes to issues of intellectual property. Porsche recently suffered a setback when the EU General Court upheld a decision of the European Union Intellectual Property Office to cancel certain design registrations relating to the appearance of the Porsche 911...

Time is of the Essence … Procedurally Speaking
ENSafrica, May 2019

Dismissals for misconduct are required to be for a fair reason and in accordance with a fair procedure. A fair procedure entails that disciplinary action be taken within a reasonable period of time.   In the recent decision inStokwe v Member of the Executive Council: Department of Education, the South African Constitutional Court highlighted this procedural requirement that disciplinary action must be taken within a reasonable period of time...

Five Easy Steps to POPI Compliance
ENSafrica, May 2019

  The enactment of the General Data Privacy Regulations (GDPR) in the EU last year and the imminent proclamation of the effective date of South Africa’s own data privacy legislation, the Protection of Personal Information Act, 2013 (“POPI”), has been the cause of disquiet for many organisations’ directors and compliance officers...

The National Environment Act 2019: Revamping the Law on Environmental Protection in Uganda
ENSafrica, May 2019

  Uganda has taken a bold and long overdue step to revamp its 24-year old environmental law, the National Environment Act (Cap. 153) (the “NEA”). An amendment was necessary given the massive infrastructure projects in the energy sector, the planned infrastructure of a refinery and pipelines in the oil and gas space, the imminent production of oil, increasing urbanisation and the consequent pressures on land, and climate change...

Zambia: Sales Tax Bill Published
ENSafrica, May 2019

  Following the Zambia’s Minister of Finance’s announcement in the 2019 Budget that the country’s value-added tax system is to be abolished and replaced with a sales tax system, the Sales Tax Bill (the “Bill”) was presented to parliament for its first reading on 2 April 2019...

Don’t be a Sell-Out, But Working During Strike Action Could be a Bonus
ENSafrica, May 2019

  Most employers are familiar with the principle of “no work, no pay” in the context of strike action, but what about the concept of “work, pay, extra pay”? Can employers incentivise or reward non-striking employees who pick up the slack? This question was recently considered by the Labour Court inNational Union of Mineworkers obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd...

Margin Requirements for OTC Derivatives – The Final Draft of the Joint Standard?
ENSafrica, May 2019

  On 8 April 2019, the South African Financial Sector Conduct Authority and Prudential Authority (collectively, the “Authorities”) published yet another draft of the Joint Standard on Margin Requirements for Non-Centrally Cleared OTC Derivatives (the “Margin Requirements”). The last draft had been published in August 2018. Implementation of the Margin Requirements has been delayed numerous times...

Is it Time to Rethink Broad-Based Black Ownership?
ENSafrica, May 2019

  Zodwa Ntuli, Commissioner of the Broad-Based Black Economic Empowerment (“B-BBEE”) Commission, indicated earlier this week that the commission has declared that the vast majority of transactions involving broad-based trusts are not compliant with the law and do not constitute genuine and effective Black ownership...

The National Bank of Rwanda Issues New Regulations on Major Investments and Placements by Banks and Regulatory Requirements for Banking M&A
ENSafrica, May 2019

  Effective from 12 April 2019, Rwanda has new regulations (the “Regulation on Banks' Major Investments and Placements” and the “Regulation on Banks' Shareholding and M&A”) governing major investments and placements by banks as well as the shareholding and M&A of banks. The new regulations repeal their predecessors, which have been in force for eight years...

No Work Permit Required for Foreign Spouses of Mauritian Citizens Employed Prior to 8 March 2019
ENSafrica, May 2019

  An amendment to the Non-Citizen (Employment Restrictions) Exemptions Regulations, published through GN 55 of 2019, removed foreign spouses of Mauritian citizens from the category of non-citizens who were exempted from the requirement of a work permit for working in Mauritius. All foreign spouses of Mauritian citizens were therefore under an obligation to hold a valid work permit to be entitled to work lawfully in Mauritius...

Changes in Mauritian Court Jurisdiction and Costs
ENSafrica, May 2019

  Following the implementation of the new rules governing the jurisdictional threshold of the courts in Mauritius, District Courts will now hear claims of up to MUR250 000 (as opposed to MUR50 000 previously) and the Intermediate Court will hear claims of up to MUR2-million, whenever such claims do not fall with the District Court threshold. Claims higher than MUR2-million will continue to be lodged before the Supreme Court...

The Male Torso: Is it Distinctive?
ENSafrica, May 2019

  There was a highly unusual trade mark opposition matter in the USA recently. The case of In re Coscentra B.Vinvolved a comparison of two perfume bottles in the shape of a male torso. A company applied to register a male torso-shaped perfume bottle as a trade mark for perfumery. The application was refused on the basis of an existing trade mark registration for a male torso-shaped perfume bottle covering perfumery...

Donald Trump and Bad Faith
ENSafrica, May 2019

  Donald Trump comes up in our articles from time to time, as does the issue of bad faith. Both come up in this one. In a recent case in the UK, a company called Trump International, which is owned by a German by the name of Michael Gleissner, filed applications to register the trade mark Trump TV in the communications and entertainment categories (classes 38 and 41). The US President, via a rights management company, opposed these applications...

The Range Rover in China, Copyright in South Africa
ENSafrica, May 2019

  We have written before about the case concerning the look-a-like Range Rover Evoque on sale in China for a fraction of the price of the real thing. In this case, Jaguar Land Rover ("JLR") sued the makers of the copycat Land Wind X for copyright infringement. JLR have now won, with the court finding that five features of the vehicle were copied and that damages should be paid. According to one report, other car manufacturers are now considering similar actions...

MHSA Guidance Note on Medico-Legal Investigations of Mine Deaths Published
ENSafrica, May 2019

  On 10 May 2019, the Chief Inspector of Mines published, in terms of the Mine Health and Safety Act, 1996 (the “MHSA”), a Guidance Note on Medico-Legal Investigations of Mine Deaths.Legal status of the Guidance Note:It is important to note that the Guidance Note has been compiled with a view to provide guidance to all relevant stakeholders regarding their roles and responsibilities with regard to medico-legal investigations of both natural and unnatural mine deaths...

Parody and Abuse
ENSafrica, April 2019

A long-running legal dispute in the USA involving the brand Louis Vuitton is interesting. Not only does it deal with parody as a defence to trade mark infringement, but it also deals with trade mark bullying.What happened here was that Louis Vuitton sued a company called My Other Bag for selling cartoon-style tote bags bearing the name Louis Vuitton, claiming trade mark and copyright infringement. The case failed, with the alleged infringer successfully raising the defence of parody...

Chips – a Hot Topic in South Africa
ENSafrica, April 2019

  We have reported on the demise of the Advertising Standards Authority (“ASA”) in previous articles, but there’s now a new advertising sheriff in town, the Advertising Regulatory Board (“ARB”), a body whose strapline is “Consumer protection through responsible advertising”. Gail Schimmel is the CEO of this new body...

Amazon: Lessons from the World's Biggest Brand
ENSafrica, April 2019

Some brands simply seem to play a major role in our lives – Apple, Facebook, Google, Netflix. These are brands that for many of us have become something of an ever present. One brand that surely belongs on that list is Amazon, one of the most important, influential and high-profile brands in the world. Brand Finance recently declared Amazon to be the world’s most valuable brand, valuing it at USD 50 billion. So, it makes sense to keep abreast of what is going on there...

Soul Destroying - Perhaps Not!
ENSafrica, April 2019

South Africa’s East Coast Radio listeners recently got a great beginners’ class in trade mark law. It would be a shame if all the people who missed the broadcast lost out.The discussion dealt with a dispute involving the fast-food chain Chicken Licken and a small Durban vegan restaurant called Oh My Soul. It featured an interview with the couple who own the restuarant, Tallulah and Richard Duffin, as well as the attorney acting for Chicken Licken...

Uganda Passes New Investment Code
ENSafrica, April 2019

Uganda has enacted the Investment Code Act, 2019 (the “Code”). The previous Code was enacted in 1991 and was long overdue for amendment given the changes in approach to attracting investment and the glaring weaknesses in the old Code. The new Code strengthens the Uganda Investment Authority (the “Authority”), establishing it as a one-stop investment centre, and also provides for the financing and auditing of the Authority...

Africa Tax in Brief
ENSafrica, April 2019

AFRICA: African Continental Free Trade Area Agreement developments Botswana and Zambia signed the African Continental Free Trade Area Agreement (“ACFTA”) on 10 February 2019 at the 32nd summit of the African Union in Addis Ababa, whereas the Ethiopian Council of Ministers approved the ACFTA on 2 February 2019 and the Parliament of Senegal on 23 January 2019...

Not All Dividends are Ordinary
ENSafrica, April 2019

In the listed sector, shareholders may be presented with various elections to be made as regards the nature of distributions made by companies in which equity investments are held. Shareholders can therefore be faced with an election to receive payment of a cash dividend, or in lieu thereof, to receive capitalisation shares from the underlying company or to partake in a dividend reinvestment plan...

Proposed Amendments to Clarify Income Tax Treatment of Statutory Mergers
ENSafrica, April 2019

Sections 113 and 115 of the Companies Act, 2008 provide for an automatic statutory merger of two companies. The transfer occurs by way of operation of law, and barring any express prohibition to the contrary in a contractual arrangement, no third party consent is generally required to implement the merger. This type of transaction may typically give effect to a desired corporate reorganisation, in terms of which an existing company is liquidated, wound up and/or deregistered...

Reportable Arrangement: Proposed Reporting Burden on Mining Companies and Rehabilitation Trusts
ENSafrica, April 2019

The reportable arrangement provisions were established by the South African Revenue Service (“SARS”) with the objective of obtaining information on certain types of transactions. The circumstances under which a person should report an “arrangement” to SARS, as defined in section 34 of the Tax Administration Act, 2011 (the “TAA”), are contained in sections 34 to 39 of the TAA...

Apples and Pears, Beers and Confusion
ENSafrica, March 2019

  Are the two trade marks confusingly similar? It’s the question that’s most commonly asked in trade mark law. The issue of confusion can arise in the context of registration: should the trade mark be registered in the face of the earlier trade mark? It can also arise in the context of use: does the trade mark that’s being used infringe the registered trade mark? The two cases that we will consider here both involve registration...

Cloud Outsource Directive and Guidance Note Issued by the South African Reserve Bank
ENSafrica, March 2019

  Cloud computing and offshoring of data is no longer a taboo among banks. It is becoming a necessity and is the current definitive trend. However, the South African Reserve Bank (“SARB”) has issued a directive and guidance note detailing items banks must consider when electing to adopt cloud computing as a service or any offshoring of data...

Cybercrime Legislation on South Africa's Horizon: Is Your Organisation Ready?
ENSafrica, March 2019

The implementation of cybercrime legislation is a pressing issue given that South Africa has one of the highest numbers of cybercrime victims in the world. In addition, a number of unsuspecting individuals and organisations alike fell prey to the scourge of cyber scams which seemed to spike quite rapidly in the past year. The Cybercrime Bill was adopted by the Portfolio Committee for Justice and Correctional Services in November 2018 and sent to the National Assembly for debate...

Eavesdropping: The Privacy Myth
ENSafrica, March 2019

The pervasiveness of the Internet of Things has spawned a recent fear that the devices are listening to the conversations of their users. For instance, the My Friend Cayla doll talks to children and answers their questions by connecting to the internet and using a combination of voice recognition software and Google searches to provide these responses...

Expanding your Data Governance Policies to Accommodate Drone Data
ENSafrica, March 2019

  Gone are the days when a helicopter had to be hired to secure fantastic shots of a neighbourhood or local stadium in anticipation of a major public or private event. Drones have ushered in a new kind of photography and can be used in many instances and applications even in traditional industries like agriculture or last mile logistics. One of the primary functions of using drones is to capture, store and transmit data...

High Court Overturns Practice of Appointment of Arbitrators
ENSafrica, March 2019

  Every so often, a judgment is passed that upsets settled ways of doing business. When the hue and cry has hushed, upon closer and sober examination, it is often discovered that the old way of doing business was indeed wrong thus a new era is born.International Development Consultants Ltd -V- Jimmy Muyanja and others Misc. 133 of 2018is one such decision...

Non-Employers may Approach the Labour Court for Interdictory Relief Against Unregistered Trade Unions
ENSafrica, March 2019

In the recent matter ofVodacom & others v the National Association of South African Workers and 1 other, which was handed down on 4 March 2019, the South African Labour Court grappled with the issue of its jurisdiction to grant interdictory relief against a trade union where the entity seeking the relief is not the employer of the trade union’s members. The Labour Court also dealt with the rights of unregistered trade unions...

Peek-a-Boo, I See You: Privacy Concerns Around Digital Rights Management and Monitoring Tools
ENSafrica, March 2019

  Digital rights management (“DRM”) refers to the methods used by content owners to protect their digital content. A number of methods can be used to control and restrict access and usage of digital material. Popular DRM mechanisms include password protecting a digital file/content, as well as platform DRM, which is typically deployed by online streaming platforms and electronic databases to restrict access to content that users are required to pay for...

Precautionary Suspension: Do Employees Have the Right to Make Representations?
ENSafrica, March 2019

  If an employer suspects an employee of committing an act of misconduct, it is possible that the employer will want to place that employee on what is usually referred to as a “precautionary suspension”. The question that arises is whether the employer must give the employee a chance to make representations on why he or she should not to be suspended, prior to a decision being taken in this regard...

The Double Big Mac Attack
ENSafrica, March 2019

  TheBig Maccase has enjoyed considerable publicity – many publications have reported on it, includingWorld IP Review. The decision shines a spotlight on some important aspects of trade mark law. In this case, an Irish company called Supermac’s applied for the cancellation of the EU trade mark registration for Big Mac (belonging to McDonald’s) on the basis of non-use...

The Importance of Having a Social Media Manager
ENSafrica, March 2019

  It is no surprise that in this digital age, social media is more than a platform to connect with old school friends, share experiences or watch funny videos. Businesses have realised the value in leveraging social media platforms so as to directly connect with and market themselves and their businesses to existing and potential customers. Social media platforms allow businesses to increase their brand awareness and entrench themselves with their clients and secure their loyalty...

Undue Delay in Prosecuting Review Applications: A Cautionary Tale
ENSafrica, March 2019

  Delaying the prosecution of a review application can carry the risk of a court refusing to hear the application...

Valentine’s Day: Not a Great Deal of Romance
ENSafrica, March 2019

  Valentine’s Day has come and gone, but from a trade mark point of view, it’s been anything but romantic. As the following stories indicate, the world of trade marks has done little to set hearts aflutter...

Financial Matters Amendment Bill with Amendments to the Insolvency Act Published – Financial Market Participants Have Until 8 February to Comment
ENSafrica, February 2019

On 1 February 2019, the South African Minister of Finance published the Financial Matters Amendment Bill (the “Bill”) containing a long-awaited amendment to section 83 of the Insolvency Act, 1936. Wepreviously discussedthe purpose of the amendment to the Insolvency Act, as well as a number of issues associated with the first draft of the Bill (the “Draft Bill”), which was published on 24 August 2018...

 

 

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