Legal insights

The Department of Trade Industry and Competition (DTIC) recently published Practice Note 1 of 2021: Rules for Discretionary Collective Enterprises, together with an explanatory memorandum.

There is a common assumption among employees (and many employers) that restraint of trade covenants are invalid and unenforceable especially in light of the right for South Africa citizens to choose their trade, occupation, or profession freely as enshrined in the Constitution of the Republic of South Africa, 1996 (“the Constitution”).

The COVID-19 pandemic has brought significant changes in the way that ordinary people attend to their daily activities. Initially, the changes in behaviour were abrupt and disrupting, but as time progressed it seems as if the changes necessitated by the COVID-19 pandemic have slowly but surely become part of our daily routine.

This article demonstrates the role of the board of directors in light the King IV Report and the Companies Act 71 of 2008 (“the Act”).

Freedom of testation is a basic right in terms of the South African law of succession and enables a testator (or testatrix) to bequeath assets in a Will as they please. In South Africa, a person can leave his or her assets to whoever they like, this is called “freedom of testation “.

The tender process in South Africa is governed by certain requirements in line with section 217 of the Constitution of South Africa.

Three elements on the B-BBEE Scorecard use Net Profit After Tax (NPAT) to calculate the Compliance Targets: Enterprise Development (ED) (1% of NPAT), Supplier Development (SD) (2% of NPAT) and Socio-Economic Development (SED) (1% of NPAT). These three elements constitute 20 points (excluding 2 bonus points) on the Generic Scorecard.

The Labour Relations Act, Act 66 of 1995 (“LRA”) does not deal expressly with the question of whether legal representation should be allowed during disciplinary hearings.

“The Problem is not the Problem. The Problem is your attitude about the Problem” ~ Captain Jack Sparrow, Pirates of the Caribbean

It is important to have a Will. However starting the process to draw up a Will can be a very sensitive and daunting experience for most people. But death as we know is one of those certain things in life, and because we don’t know the time or the hour, it is always better to be prepared.

This article focuses on the last 3 elements on the B-BBEE Scorecard, namely Skills Development (Statement 300), Enterprise and Supplier Development (Statement 400) and Socio Economic Development (Statement 500). These 3 elements are determined at a point in time, i.e. the Measured Entity’s financial period.

The Coronavirus is having a significant impact on the global economy as it increasingly disrupts production, supply chains and travel. With that in mind, organisations should consider any potential legal risks and how to protect themselves against them.

Requirements & identification of suitable beneficiaries

The global financial crisis brought to the fore questions surrounding the scope and quality of external audit, market concentration and auditor independence. The crisis reopened concerns about auditor tenure and its consequences for auditor independence and audit quality.

On 3 September 2018, the Broad-Based Black Economic Empowerment Commission issued a Practice Guide, which clarified the Broad-Based Black Economic Empowerment (B-BBEE) requirements for Exempted Micro Enterprises (EMEs) and Qualifying Small Enterprises (QSEs).

How corporations should be maximising long-term sustainability

Whether the economy of a country is in a period of retraction or expansion, one element of commerce which remains relevant is the intermittent reliance of companies on its shareholders for the provision of adequate capital funding in conducting its business. The motivation for the provision of capital funding may well differ, i.e.

The Labour Laws Amendment Bill (“the Bill”), would allow for the amendment of the Basic Conditions of Employment Act of 1997 (BCEA).

Section 1 of the Companies Act 71 of 2008 (Companies Act) defines a Director as “a member of the board of a company, as contemplated in section 66, or an alternate director of a company and includes any person occupying the position of director or alternate director, by whatever name designated”.

On the 27th of March 2018, the President of the Republic of South Africa launched the Youth Employment Services (YES) Initiative, a business-led collaboration with government and labour, which aims to create more than one million paid internships for black youth.

From 9th June 2017, any Major B-BBEE Transaction is required to be registered with the B-BBEE Commission in the prescribed Form BBBEE 18, within 15 days of being concluded.

We live in a period where technology allows consumers to be contacted at any time via e-mail, phone calls and even through social media.

The Unemployment Insurance Fund (“UIF”) allows contributors to receive benefits from the fund in the event that they become unemployed, or are unable to work as a result of maternity leave, illness or the adoption of a child. UIF also provides benefits to the dependants of a deceased contributor.

Prior to 1994, South Africa was governed by apartheid regime, a system in which people were discriminated based on the colour of their skin, gender, disabilities, etc. As a result of apartheid, companies had unequal racial and gender representation of people in different levels of the organisations.

During consultation with clients, the question often arises as to which individuals in a company would be considered to be a Prescribed Officer in terms of the Companies Act 71 of 2008 (“the Act”), and what does this mean for such an individual?

I attended a Corporate Governance conference in September 2016. Judge Mervyn King was one of the speakers presenting on the King IV report which replaces King III and was officially released on 1 November 2016. It is effective for financial years commencing 1 April 2017.

The Companies Act 71 of 2008 (“the Act”), provides that a company may acquire its own shares, to the extent that it is solvent and liquid, as more fully described in Section 4 of the Act.

The 2016/2017 Budget Speech by the Minister of Finance, Pravin Gordhan saw the announcement of a Special Voluntary Disclosure Programme (“SVDP”), which is aimed at encouraging South African residents with undisclosed offshore assets and income to regularise their affairs through the SVDP.

One of the most significant changes in the Codes of Good Practice for Broad-Based Black Economic Empowerment (“the New Codes”) that came into effect on 1 May 2015 was the requirement to be an Empowering Supplier.

Much has been written in the past as to the doctrine of Constructive Notice and the application of the Turquand rule.

When attending to investing in a South African entity as an offshore shareholder, it is important to understand the requirements of the Exchange Control Regulations of 1961 (promulgated in terms of the Currencies and Exchanges Act, 9 of 1933), hereinafter referred to as “the Regulations” and its application as regards to any person or entity in South Africa.

A Look at the Disposal of Intellectual Property Owned in South Africa to an Offshore Purchaser It often occurs that a company established in South Africa has developed a specific software program or other processes and/or applications upon which it basis its particular service offering or product.

Directors’ resolutions are common place in commerce as a convenient and effective manner in which the Directors of a Company can make a decision on behalf the Company.

Global business is increasingly showing interest in expanding their business operations into the African continent.

In terms of the Companies Act, 2008 ("the Act"), all public companies are required to have a company secretary who is accountable to the Board. The appointment may be a natural person or a juristic person.

1. Section 30(4) of the Act and the non-binding opinion of CIPC

Instalment 4: What should a pregnant employee do if they feel like they are being discriminated against in their workplace for being pregnant?

Instalment 3: Are there any cases in South Africa where women have been discriminated against for being pregnant?

1. Introduction

On 20 August 2013, the Labour Relations Amendment Bill 2013 (“the Bill”) was adopted by the National Assembly and, as it presently stands, this Bill will have a significant impact on labour relations in South Africa.

It is common practice in business today that a company provides financial assistance to certain of its directors or prescribed officers.

The contract of employment is a vital document as it regulates the terms and conditions of employment between the employer and the employee.

1. Introduction In transactions where immovable property is sold or transferred, it has been generally accepted that the transfer of immovable property would require two elements, namely: 1.1. A Sale of Land Agreement; and 1.2. Registration of the deed of transfer in the deeds office.

The Companies Act 71 of 2008 (“the Act”) came into effect on 1 May 2011 bringing with it a number of significant changes.  The Act introduced, amongst other changes, the Memorandum of Incorporation (“MOI”) as the sole governing document of the company to replace the existing Memorandum and Articles of Association.

1. Introduction

The Consumer Protection Act 68 of 2008 (the “CPA”) as amended, has, for many industries, altered the way in which business is conducted, specifically within the arena of the supply of goods to customers.

Instalment 2: What are a pregnant employee’s legal obligations in declaring her pregnancy when a) applying for a job and b) telling her employer that she is pregnant?

Instalment 1: What laws protect a pregnant employee and what is such an employee protected against?