South Africa updates

Corporate Tax

Timing of tax on gift cards
  • South Africa
  • 31 May 2019

The Cape Town Tax Court recently addressed the timing of income tax in relation to retailer gift cards. The court found that a taxpayer had been correct to have included its receipts for unredeemed gift cards as part of its gross income before the Consumer Protection Act came into force. During the case, the counsel for the commissioner of the South African Revenue Service raised an interesting argument – namely, that the act was introduced to protect consumers' rights and not to change the incidence of tax.

Further amendments to VAT e-services regulations enter into force
  • South Africa
  • 24 May 2019

Revised regulations clarifying the e-services supplied by foreign suppliers to South African consumers which are subject to value added tax were proposed in 2018, which significantly broadened the scope of e-services. In the 2019 Budget Review, the minister of finance announced that further amendments would be made to the e-services regulations to address certain oversights. The regulations came into effect on 1 April 2019.

Preference share funding structures: overview of Companies Act and Income Tax Act provisions
  • South Africa
  • 17 May 2019

Preference share funding structures are often preferred by banks and other financial institutions because dividends received by certain holders – including banks and other juristic persons – are exempt from income tax. As such, the provisions of the Companies Act and the Income Tax Act must be considered in the context of the outcome which a company wishes to achieve before it settles the terms of a preference share funding structure.

Creature of statute: decision about Tax Court's power to increase understatement penalties
  • South Africa
  • 10 May 2019

The Supreme Court of Appeal recently ruled on the South African Revenue Service's (SARS's) right to impose understatement penalties on a taxpayer and the quantum thereof. The judgment will be welcomed by taxpayers involved in disputes with SARS regarding understatement penalties, as it reaffirms that the Tax Court cannot, of its own volition, increase an understatement penalty.

Proposed amendments regarding dividend stripping rules in 2019 Budget: further reflection
  • South Africa
  • 03 May 2019

This article delves into the National Treasury's proposal to address abusive arrangements aimed at avoiding the anti-dividend stripping provisions in the Income Tax Act. It first discusses the history of the amendments, followed by an examination of the anti-dividend stripping provisions and a brief discussion of the National Treasury's proposal in the 2019 Budget.


Environment & Climate Change

National Biodiversity Economy Strategy: opportunities for innovation and investment
  • South Africa
  • 11 February 2019

In October 2018 the draft National Biodiversity Framework (NBF) was published for public comment. Considering that South Africa is the third most biodiverse country in the world, the government, as custodian of the country's biodiversity, has implemented approximately 30 national strategies, frameworks and systems in the biodiversity sector. The NBF's purpose is to coordinate and align the efforts of the many organisations and persons involved in the complex interplay between these strategies.


Healthcare & Life Sciences

Contributed by ENSafrica
Q&A on ABS compliance in South Africa
  • South Africa
  • 22 July 2020

There has been much debate in recent years as to the effectiveness of access and benefit sharing provisions relating to indigenous biological and genetic resources (IBGRs) and traditional knowledge or indigenous knowledge (IK) as set out in the Convention on Biological Diversity and adapted into local legislation of member countries. This article explores the situation in South Africa, one of the most megadiverse countries in the world with a wealth of IK relating to IBGRs.

Life sciences acquisitions and divestments
  • South Africa
  • 01 July 2020

To establish a portfolio of investments, BioVentures, South Africa's first niche biotechnology and life sciences venture capital fund, looked for South African start-ups with proprietary technology that gives them a competitive advantage; a large, growing and preferably international market; multiple products and markets rather than a single product and market; and a quality and balanced management team. This article considers these points in more detail to create a checklist for divestiture preparation or asset hunting.

Scheduling change for cannabis
  • South Africa
  • 24 June 2020

Health Minister Aaron Motsoaledi recently implemented various changes to Schedules 4, 6 and 7 of the Medicines Act in relation to cannabis and its related components. Although amendments to the Drugs and Drug Trafficking Act remain to be seen, the recent changes to the Medicines Act are a step in the right direction and a significant contribution to the rights of adults to cultivate, possess and use cannabis in private.

Donations to the state: gone with the wind, but now back for three years?
  • South Africa
  • 17 June 2020

On the recommendation of the South African Health Products Authority, the minister of health recently issued Government Gazette 43346, which essentially exempts, under Section 36(1) of the Medicines and Related Substances Act, the free supply of medicines, medical devices and in vitro diagnostics to the state for three years. This exemption also extends to the supply of samples to the state as part of a tender published by the state.

How does EPO opinion on patentability of plants and animals affect South Africa?
  • South Africa
  • 03 June 2020

The European Patent Office Enlarged Board of Appeal may have ended the debate on the patentability of plants and animals which are exclusively obtained by essentially biological processes by ruling that these are not patentable. If South Africa follows the board's interpretation, where essentially biological processes such as natural breeding techniques have been used to produce a plant or animal product, such a plant or animal product (and the process for producing the plant or animal) will not be patentable.


Intellectual Property

Contributed by KISCH IP
Patent rights for vaccines and research against COVID-19
  • South Africa
  • 04 May 2020

As the COVID-19 pandemic spreads across the globe, companies are scrambling to find a cure and be the first to own patent rights to a vaccine against the virus. In South Africa, the Patents Act does not define an invention but rather lists a number of exclusions as to what could constitute a patentable invention. In particular, the act specifies that a scientific discovery is not an invention, which raises the question of whether the genetic sequence of COVID-19 could be patented in South Africa.

Copyright infringement and reverse engineering of computer programs
  • South Africa
  • 13 April 2020

The Copyright Act defines a 'computer program' as a set of instructions fixed or stored in any manner and which, when used directly in a computer, directs its operation to bring about a result. From this definition, it is apparent that source code forms the subject matter of copyright protection as a computer program. However, the owner of the copyright in a computer program cannot object if a third party mimics the functionality of the computer program, provided that the third party had no access to its source code.

Conditional acceptance of trademark applications
  • South Africa
  • 17 February 2020

Trademark applications are examined by the Office of the Registrar of Trademarks approximately eight to 10 months after their date of application. This article discusses several possible conditions that examiners often prescribe for accepting trademark applications and which applicants must therefore consider before filing.

Relationship between cannabis and trademark law
  • South Africa
  • 25 November 2019

A trademark will not be registered, or can be removed from the register, if it is inherently deceptive or likely to deceive or cause confusion, contrary to law, against good morals or likely to offend anyone. This article provides insight into the contrary to law provision, particularly insofar as it relates to the controversial discussion regarding the partial legalisation of cannabis in South Africa and its impact on trademark law.

The power of part marks
  • South Africa
  • 11 November 2019

Copycat products imported into South Africa often replicate well-known brands. In such cases, an analysis must be undertaken to determine whether the owner of the legitimate well-known brand can sue based on various grounds. In this respect, although word marks are often seen as the most important because they are a brand's primary name, from an enforceability perspective, filing a part mark can help to avoid ambiguity.


Product Regulation & Liability

Is the 2020 Cannabis Bill a flower among weeds or a weed among flowers?
ENSafrica
  • South Africa
  • 17 September 2020

The 2020 Cannabis Bill outlines the regulations under which adults may legally cultivate, possess and use cannabis for private use and recreational purposes. The bill also groups cannabis-related offences into four categories, which each carry different penalties. Even though South African adults can legally possess significantly more grams of cannabis than adults in various other countries, the cost of exceeding these amounts is far greater.