November 2010


From My Window - November 2010 From My Window November 2010

Carmel Rickard is recognised as one of this country's most eminent journalists whose speciality is the legal field. In addition to her work as a journalist – and whenever her articles appear they are always well-worth the read – she is a published author and her books include Balancing Acts, a review of the country's AIDS epidemic, and now Thank You, Judge Mostert, a biography of Judge Anton Mostert, the man who spilt the beans on the Infogate scandal. Rickard was also the first editor of George Bizos's book, Odyssey to Freedom. without prejudice is very proud that Rickard is one of its regular monthly columnists. Her columns are always worth the read, with the subjects well- researched and subjected to the kind of critical analysis that is too frequently absent from journalism in this country.

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Tax Administration Bill and taxpayers rights Tax November 2010

The concept of a separate and distinct Tax Administration Bill (TAB) was first mooted in the Budget Review published by National Treasury at the time of the 2005 Budget. It was indicated that National Treasury was contemplating introducing a single piece of legislation to deal with all the administrative provisions contained in the fiscal statutes administered by the South African Revenue Service (SARS), except for customs and excise duties.

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Time to formalise self-assessment Tax November 2010

When it comes to assessment of tax returns, South African taxpayers have the worst of both worlds. They no not have the legislative checks and balances usually contained in a self-assessment system and, in practice, are denied important protections inherent in the alternative. The reason is that South Africa has a de facto self-assessment system for income tax, but that is not what the law provides.

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Adding some tax bounce to the springboard into Africa Tax November 2010

When the Taxation Laws Amendment Bill 2010 (TLAB 2010) was first published in May for comment, the proposed introduction of a tax regime specific to headquarter companies set up in South Africa was greeted with considerable enthusiasm as likely to reinforce South Africa's credentials as a gateway for investment into Africa. The explanatory memorandum accompanying TLAB 2010 added to the air of anticipation by clearly indicating a desire to enhance South Africa's credentials as “an economic powerhouse of Africa" and as “an ideal location for the establishment of regional holding companies by foreign multinationals".

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Changes to Transfer Pricing Legislation Tax November 2010

S31 of the Income Tax Act (58 of 1962), the transfer pricing section, will be substantially amended with effect from October 1 2011. The new s31 seeks to capture indirect transactions for transfer pricing purposes, thereby substantially widening the scope and application of the section.

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The axe awaits incompetent municipal officials Labour Law November 2010

The incompetence of Municipal Officials, and in particular senior officials such as municipal managers and managers directly accountable to them (senior managers), is becoming an all too prevalent feature in newspaper articles and reports within South Africa. With effective service delivery being at the core of most political manifestos, the need to regulate and govern the performance of senior managers within municipalities is increasingly coming under the spotlight.

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Ill-health or injury – the practicalities of the dismissal process Labour Law November 2010

The Labour Relations Act (LRA), 1995, Schedule 8: Code of Good Practice: Dismissal (11) clearly sets out what needs to be taken into account when determining the fairness of dismissals arising from ill health or injury. Similarly, specific boarding and ill-health retirement criteria are stipulated in most pension and provident fund wording, as well as in disability insurance contracts entered into by employers and/or individuals covering themselves in the eventuality of ill health or injury that could result in the inability to work.

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When compensation is not a guarantee Labour Law November 2010

Since the inception of the Labour Relations Act, there has been a perception that a successful unfair dismissal claim will always result in compensation being awarded to the wronged employee. The 2009 case of Kemp v Rawlins brought this once unfaltering belief into question.

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A matter of principle Platteland Perspective November 2010

THERE'S a new book on former Judge Anton Mostert out on the bookshop shelves, and without prejudice was indirectly involved in getting it there. Perhaps we have a new role in the book world.

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No glow-worms here Not The Law Reports November 2010

Foss-Harbottle J: The applicant is the PPE Society. The PPE degree was established in the 1920's as a degree at Oxford University in philosophy, politics and economics, known as the Modern Greats. The applicant complains that bookshops have replaced their shelves of books laden with philosophy, politics and economics with far-from-great books categorised as 'self-help,' 'business' and 'esoteric.' They seek to claw back what they have lost from the publishers of the world.

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Rocky road ahead for the mining sector Mining Law November 2010

The Western Cape Provincial Department of Environmental Affairs and Development Planning has contended for a number of years that, where any mining and associated activities in the province triggers activities listed under the National Environmental Management Act1 (NEMA), NEMA authorisation is required before mining activities may commence. This view, supported by the National Department of Environmental Affairs in recent years, requires the completion of an environmental impact assessment and compliance with the more stringent environmental requirements of NEMA in addition to those under the Minerals Act2 and its successor, the Minerals and Petroleum Resources Development Act3 (MPRDA).

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The mystery that is CIPRO Company Law November 2010

Correspondence between Alex Eliott, director of Knowles Husain Lindsay, and CIPRO confirms that CIPRO policy is automatically to deregister companies which do not submit their annual returns. This is done without giving the companies any of the warning notices required in terms of the Companies Act.

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King Code and developments in corporate governance Company Law November 2010

The First King Report on Corporate Governance (First Report) was published in 1994 by the Institute of Directors in response to the increasing concern over corporate failures and the perceived need for a formal code of corporate governance. It sought to assist companies and their directors by providing a comprehensive set of principles and guidelines to codify, clarify and, in certain circumstances, expand upon the common law principles of corporate governance.

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The Derivative Action Company Law November 2010

The common law of companies has not afforded minority shareholder rights much protection. This has been due to various company law principles. First, a company, as a legal person independent from its shareholders, bears its own rights and responsibilities. Second, in the Foss v Harbottle judgement the court confirmed the 'majority rule' principle and stated that because of the majority's power to bind the minority, the courts will be hesitant to interfere in the running of the company as long as the majority acts lawfully. This principle in Foss v Harbottle was said to have been based on two components, namely that the company is the proper plaintiff that should sue and be sued in its own name regarding its own rights and duties; and also that that the court will not interfere with the internal management of the company.

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