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.

Healthcare & Life Sciences

Contributed by ENSafrica
Telemedicine: time for an upgrade?
  • South Africa
  • 03 March 2021

The COVID-19 pandemic has led to a significant increase in the use of electronic platforms to provide access to health services. These platforms seemingly push the legal boundaries of telemedicine. Looking beyond the COVID-19 pandemic, it is hoped that the Health Professions Council of South Africa considers patients' best interests and takes decisive action to incorporate national and international telehealth successes in a much-needed revamp of the existing legislative framework.

Battling COVID-19: mechanisms for access to antiviral products and diagnostics
  • South Africa
  • 11 November 2020

While the world is in the grip of the deadly COVID-19 pandemic, the patenting of pharmaceutical and biological compositions and the launch of generic products is even more hotly debated than before, particularly in the world's developing and least-developed countries. What mechanisms are available at present to provide for access to medicines and diagnostics?

Genetic information: a new resource to be mined?
  • South Africa
  • 21 October 2020

Given that humankind originated in Africa, Africans (and South Africans in particular) have significant genetic diversity. As such, there is a potential wealth of genetic information available to be mined. Unfortunately, without effective regulation, the collection and use of African genetic information could result in the unfair exploitation of the donors of this information. Due to the asymmetrical power relationships between donors and users of genetic information, this is a sensitive issue.

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.

Intellectual Property

Contributed by Spoor & Fisher
IP success for shoe brand Bathu
  • South Africa
  • 05 April 2021

Proudly South African trainer brand Bathu is not only becoming a beloved household name, but also building a legacy that will last. The brand has arguably captured consumers' attention by ticking all of the boxes of a Western trainer brand while simultaneously presenting an African-centric narrative. This article explores how Bathu is successfully protecting its intellectual property and, in doing so, building a sustainable and financially viable business.

Intellectual property: the lesser-known actor in film making
  • South Africa
  • 15 February 2021

In the film industry a lesser-known actor, so to speak, is intellectual property. This article explains the ins and outs of creative rights in the film industry. Film makers must be able to prove that they own all of the rights to every piece of content in their film. If film makers did not originally create something, they will need a document showing that they have authority (usually ownership of all rights, including in particular, copyright) of use and copying.

Wine as case study for diverse IP rights
  • South Africa
  • 23 November 2020

With regard to the IP rights that exist in viticulture and viniculture, winemaking provides a comprehensive case study when unpacking plant breeders' rights, registered designs, patents and trademarks. At each step of the winemaking process, products of the human intellect or creations of the mind are at play. This is exciting, but contains a worthwhile lesson for those developing or manufacturing a product: there are IP rights that come into existence and they may require legal protection.

Product Regulation & Liability

Is the 2020 Cannabis Bill a flower among weeds or a weed among flowers?
  • 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.

Shipping & Transport

Contributed by Bowmans
Collisions in the Suez Canal: revisiting genuine and reasonable need for security
  • South Africa
  • 24 March 2021

A recent judgment by the Durban High Court has highlighted, once more, that the assessment of a genuine and reasonable need for security must be made on the careful analysis of all of the facts and circumstances of the particular case and that the reliance on generalised grounds can be dangerous. While the legal test for the genuine and reasonable need is unlikely to change in years to come, its application will vary from case to case and sound advice is essential before proceeding with an arrest.

Cargo theft and liability: Fujitsu v Schenker
  • South Africa
  • 26 August 2020

A recent Johannesburg High Court decision places the legal liability issues arising from cargo theft sharply into focus. The case raises interesting questions regarding the scope of liability and the degree to which carriers and logistics operators can exclude liability for theft perpetrated by their employees. Many in the industry will no doubt need to revisit their own standard trading terms and conditions in light of the judgment.

Court's discretion trumps International Arbitration Act in admiralty case
  • South Africa
  • 19 February 2020

In 2017 South Africa promulgated the International Arbitration Act (IAA) with a view to creating a viable arbitral forum on the African continent to resolve international disputes. Although the IAA is still in its infancy, the Supreme Court of Appeal recently delivered an important judgment which illustrates the tension created by the overlapping boundaries of the IAA and the High Court's well-established admiralty jurisdiction under the Admiralty Jurisdiction Regulation Act.

Ship arrests: revisiting 'genuine and reasonable' need for security
  • South Africa
  • 26 June 2019

The Supreme Court of Appeal recently took a hard line regarding an arresting party and delivered a salutary message to pay close attention to establishing a plausible link between the factors justifying a 'genuine and reasonable' need for security and the particular facts and circumstances of the party against which an arrest order is sought. The judgment is a cautionary tale for arresting parties that seek to rely on generalised allegations.

Hanjin fallout: Supreme Court of Appeal rules on protective writs in South Africa
  • South Africa
  • 27 February 2019

The litigation following the collapse of Hanjin Shipping and coming off the back of the Supreme Court of Appeal judgment handed down in January 2019 is ongoing in the South African courts. The latest decision in this regard hinged on whether, for the purposes of timing, the mere issuing of a writ of arrest was sufficient to commence an admiralty action (having the effect of protecting against a change of ownership) or whether physical service of the writ on the vessel was necessary.