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
Bolar provisions for generic and biosimilar medicines
  • South Africa
  • 14 August 2019

South Africa is in the process of reviewing all existing IP laws, particularly in the context of access to medicines. It appears that the type of changes to be made in respect of the Bolar exception will relate to whether the narrow exception should be extended and, if so, to what. In particular, it is likely that an early experimental research exclusion will be included, such as for pre-clinical research. It remains to be seen whether South Africa's laws may change to allow stockpiling of generic medicines.

New breeding techniques and regulation of genetically modified organisms
  • South Africa
  • 15 May 2019

A recent European Court of Justice ruling on the status of organisms obtained by new breeding techniques as genetically modified organisms (GMOs) has again brought the scope of the South African GMOs Act into question. The difficulty with regulating organisms created through such techniques is that these organisms may be indistinguishable from organisms which have naturally evolved.

Medical cannabis: growing pot-ential
  • South Africa
  • 05 December 2018

Cannabis has enjoyed heightened attention following a recent ruling decriminalising the private possession, consumption and cultivation of the plant for recreational purposes. While there have been several positive developments in the promotion of the medical cannabis market in South Africa, the overarching regulatory framework and authorities' current practice remain barriers to entry for prospective local players in the medical cannabis product manufacturing market.

Bioprospecting and biotrade requirements
  • South Africa
  • 03 October 2018

The Biodiversity Act regulates bioprospecting on and biotrade with indigenous biological resources and indigenous genetic resources and the use of traditional knowledge. Although the early years of regulation under the act were stormy and there was much confusion over who needed to apply for permits and what was required from applicants, there is now more certainty as to what is required.

Ownership of genetic information and tissue under National Health Act
  • South Africa
  • 08 August 2018

The legal and philosophical issues relating to the concept of ownership of various kinds of human biological material has been hotly debated. This is an emotive topic that requires balancing societal and commercial interests with individuals' rights, such as the constitutional right to bodily and psychological integrity, which includes the right not to be subjected to medical research or scientific experiments without giving informed consent.


Intellectual Property

Contributed by KISCH IP
Patentability of living things – a South African approach
  • South Africa
  • 30 September 2019

Patent protection of living organisms – and the substances derived therefrom – has long been an area of confusion and controversy in South Africa. However, there has been a recent move towards clearer boundaries regarding what constitutes patentable subject matter in relation to living things.

Who should you institute infringement proceedings against?
  • South Africa
  • 23 September 2019

What should a company do when its distributor terminates their supply and distribution contract stating that it is more economical for it to acquire the products from another company? If the first company has a registered patent for the products that the other company is manufacturing, it can institute infringement proceedings. However, the question then becomes against whom should it institute these proceedings: the distributor or the company infringing its patent?

Who takes the cake? Copyright over baked goods
  • South Africa
  • 16 September 2019

Professional and amateur bakers are often inspired by the extravagant and intricately designed cakes shown on TV shows. However, this begs the question of whether bakers can reproduce these cakes (or at least try to) without getting into trouble. Perhaps surprisingly, the answer is probably no, as these creations may be subject to copyright protection. Therefore, as with all copyright infringement, it is important to be cautious when taking inspiration from other people's creations.

Copyright conundrum: what you need to know when rebranding
  • South Africa
  • 09 September 2019

Many corporates and start-ups that enlist third-party graphic designers to create logos or corporate identities during a rebrand are unaware of the legal implications of contracting third parties and thus often find themselves in costly and time-consuming litigation. This is because, under South African law, a third-party graphic designer commissioned to design a corporate's logo will own the copyright in said work. To avoid this situation, a logo must be assigned from a third-party graphic designer to the corporation or start-up immediately.

Nedbank and IT entrepreneurs in developing patent saga
  • South Africa
  • 02 September 2019

Two IT entrepreneurs recently applied for an interdict to prevent an asset management company from using (ie, infringing) their invention. The case has raised many questions regarding the validity of certain patents, including what protections are afforded to entrepreneurs. Young entrepreneurs in particular are encouraged to follow this case earnestly to ensure that they are well acquainted with South African patent law and thus able to protect their inventions.


Real Estate

Clarification in SARS' latest issue of Interpretation Note 64
  • South Africa
  • 11 January 2019

The South African Revenue Service recently published the fourth issue of Interpretation Note 64, which seeks to provide guidance on the application and interpretation of Section 10(1)(e) of the Income Tax Act. With the rising prevalence of complex developments, security estates, shopping centres, wellness compounds and high-rise flats in South Africa, body corporates, homeowners' associations and share block companies are commonplace and clear guidelines as to the taxation of these entities is imperative.

Residential property developers face cash-flow crunch due to VAT on temporary letting of units
  • South Africa
  • 06 April 2018

Many residential property developers will begin 2018 with a major cash-flow challenge, as they may be faced with a substantial value added tax (VAT) liability in respect of the temporary letting of residential units which have been developed for resale. It is hoped that the South African Revenue Service and the National Treasury will urgently address the problems with regard to the VAT rules concerning the change-in-use adjustments for property developers.