Latest Issue - October 2020


Gleason Publications Editor's Note

Gleason Publications faces the very real threat of the demise of without prejudice. In the words of a well-respected attorney – this would be a travesty.

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Editor’s note Editor's Note

September saw the loss of two legal luminaries – one held dear to South Africans, the other an American who was widely respected globally. Both fought for what is right and just, regardless of the reception their words might receive.

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Here Be Dragons – George Bizos Tribute

Against the background of a piercing, high-pitched buzzing and the trickling of water from a green hosepipe, George interrupted his own thoughts and said, "I try out my questions on my plants, sometimes aloud and sometimes in my mind." It was mid-summer in Vasilitsi, the village of George's birth on the most southern tip of the Peloponnese peninsula. The soundtrack was that of the Cicada, or Tzitsikas, as it's known in Greek, and George watering his beloved olive trees.

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Mining companies on the ropes again Mining

In the fight to balance the rights of mineral right holders versus interested and affected parties, the Pretoria High Court provided certain individuals affected by proposed mining operations with an added advantage in the legal boxing ring, in the landmark matter Duduzile Baleni & Others v Regional Manager Eastern Cape Department of Mineral Resources & Others (CALS intervening) (96628/2015) [2020] ZAGPPHC 485, on 11 September 2020. The court held that interested and affected persons are automatically entitled to a copy of a mining right application upon making a request, subject to sensitive financial information being redacted.

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National News National News

Cliffe Dekker Hofmeyr

Partner, Muhammad Ziyaad Gattoo has been appointed the new National Practice Head of the Real Estate team. CDH's Real Estate practice is the only one in South Africa ranked in Band One by Chambers Global. On par with Chambers Global, the Legal 500 EMEA placed the team at the top of the ranking table in Tier One.

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Traditional communities – Fiduciary and trustee duties Financial Law

Traditional Communities are a complex legal entity with legal roots in customary law, the common law and statute. Their inability to act swiftly and engage in commercial transactions has often frustrated their partners and potential investors. A number of Traditional Communities have to make their investment opportunities more appealing by employing other legal vehicles, including trusts, to provide for rapid decision making. However, the use of alternative commercial vehicles has led to other problems, including trustees enjoying the freedom of not needing to conform to the law relating to Traditional Communities, and acting contrary to the desires of the Traditional Community.

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Assessing cartel participation – context is key Competition Law

The Competition Appeal Court (CAC) recently handed down an important judgment in the matter involving the Competition Commission and NPC-Cimpor Pty Ltd (NPC). The Commission referred a complaint alleging that NPC contravened the Competition Act (89 of 1998) by engaging in price fixing and market allocation with the other cement producers in South Africa. NPC contested the allegations and, a decade later, was able to show that it was not part of these cartel arrangements.

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Should the competition authorities have more powers to tackle tender corruption? Competition Law

Recent reports of inflated bids to supply personal protective equipment to government during the national lockdown raise concerns that competition in a wide range of critical markets in South Africa is being disrupted by fraud, nepotism and corruption. An amendment to our competition legislation might assist to tackle this problem.

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Digital markets, big data, data privacy, and competition: where crossroads meet Competition law / digital economy

Digital markets and platforms have recently been dominating the international antitrust debate, and the intersection between competition laws, consumer protection laws, and data protection laws has become an increasingly important topic that is being recognised by many competition authorities.

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Reflections on reflective loss Company Law

The recent rise in shareholder activism, and claims by shareholders directly against company directors for the diminution in share value, face a particular difficulty: losses suffered by shareholders are reflective only of the losses suffered by the company and should, therefore, be recovered by the company itself.

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The World in September International

There are reports that new laws in Britain will give spies working for the British government a "licence to kill". In December 2019, the HighCourt ruled that if spies operating on behalf of MI5 are able to persuade authorities that their actions were done in the public interest, they can kill in the line of duty without being prosecuted. Currently spies working for Britain's foreign intelligence service – MI6 – are protected under s7 of the Intelligence Services Act 1994, which offers immunity to agents involved in bugging, bribery, murder, kidnap and torture – as long as their actions have been authorised in writing by a secretary of state.

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Introduction - Tax Law Feature October 2020 Tax Law Feature

If there is one thing on which South African tax payers are all in agreement, it is that we pay far too much for what we get in return.

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TAX PITFALLS WHEN ISSUING SHARES AT A DISCOUNT Tax Law Feature

Usually, in the case of a private company, the board of directors has the power to issue shares. In terms of s40 of the Companies Act (71 of 2008), the board must issue shares "for adequate consideration".

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LIFE IN A REMOTE WORLD – TAX ENFORCEMENT IN TRANSFER PRICING Tax Law Feature

The unusual business conditions of the COVID-19 outbreak will require a more flexible approach from tax authorities when analysing transfer pricing in the 2020 year of assessment.

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NEW TAX LEGISLATION PROPOSED FOR REITS Tax Law Feature

The 2020 National Budget Speech delivered by the Minister of Finance contained various tax policy proposals, including those aimed at refining the Real Estate Investment Trust (REITs) tax regime. The proposals included clarifying the definition of REITs and the meaning of a share in the definition of REITs. The Budget also proposed amending the provisions regarding the taxation of foreign dividends received by REITs.

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