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Class-action storm brewing on the horizon

In the wake of the unsuccessful bid to form a class action for affected consumers in the R699-car-scheme, and with murmurs of a class action being launched over African Bank's alleged reckless lending practices, it seems this mechanism is increasingly being considered to obtain recourse for aggrieved consumers.The class action, a procedure where a person can institute action on behalf of a similarly affected group of people, aggregates the small claims of many into one significant claim. In countries where this legal procedure is more developed, companies have bemoaned the potentially oppressive nature of class actions, which use the threat of mass-scale litigation to induce settlements.

The Mergers & Acquisitions Review

M&A activity started picking up again in the first quarter of 2013 and this trend has continued in the first half of 2014. Most recent M&A activity in South Africa has been in the telecommunications, financial services, real estate, mining and resources, and hospitality and leisure sectors. While there has been some inward investment into South Africa, M&A activity has been more pronounced between South African companies and by companies investing from South Africa into other African jurisdictions. Recent transactions involving foreign investors have included Marriott's acquisition of the Protea Hotel Group and BNP Paribas's acquisition of RCS Investment Holdings Ltd. There is also increasing interest shown by Japanese and Korean investors in all sectors.

Maritime & Transport
Reefer owners beware

The Department of Agriculture, Forestry and Fisheries appears to have adopted a concerning stance on the requirements of the Marine Living Resources Act regarding the licensing of vessels entering South African waters. The policy affects reefer vessels in particular and owners are advised to pay attention to this development. Among other things, the act requires that every foreign-flagged fishing vessel entering the South African exclusive economic zone apply for and obtain a fishing permit.

Mutual assistance and co-operation between the South African Revenue Service and foreign tax authorities

Recent international developments have made it increasingly difficult for taxpayers to hide their assets or to avoid tax and South Africa has joined the list of countries that fully comply with international standards on the transparency and exchange of taxpayers’ information. South Africa is a member of the OECD’s Global Forum on Transparency and Exchange of Information for Tax Purposes (the Global Forum) (chaired by the chief officer of legal and policy at the South African Revenue Service (SARS), Kosie Louw). The Global Forum recently conducted a peer review of 50 jurisdictions, and South Africa is one of only 18 fully compliant countries.

Employment Law
Traditional healer ‘certificates’ for sick leave

If a person chooses to visit an alternative medical practitioner like a traditional healer for health-related ailments and is consequently absent from work, is an employer obliged to accept a sick note produced by the alternative medicine practitioner? In the case of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (875/12) [2013] ZASCA 189 the Supreme Court of Appeal (SCA) had to answer the question of whether a traditional healer’s certificate can be equated to a medical certificate for the purposes of sick leave.

Dealing with competitively sensitive information in a merger context

It is widely accepted that information exchanges between competitors can have the effect of "substantially preventing, or lessening, competition in the market", and therefore may fall foul of section 4(1)(a) of the Competition Act 89 of 1998, as amended (the "Competition Act). Parties intending to acquire or merge with a competitor ought to be wary of the information that is exchanged between them during the necessary due diligence and pre-merger negotiations. The most obvious risk is that the transaction fails, leaving competitively sensitive information in the firms’ hands, exposing them to the risk of allegations of anti-competitive conduct. Information exchanges in the course of the due diligence and negotiations are thus a walk on the proverbial tight rope.

Employment Law
Annual Leave: Take it or lose it

A recent Labour Court ruling has helped to remove uncertainty as to whether statutory annual leave that is not taken is forfeited. The Basic Conditions of Employment Act, 1997 (the BCEA) provides that employees are entitled to a minimum of 21 consecutive days’ annual leave for every leave cycle of 12 months’ continued employment. This works out to approximately 15 working days of leave a year for employees who work a five-day week, and 18 working days’ annual leave for those who work a six-day week.

Employment Law
Youth wage subsidy a delicate balancing act

The Employment Tax Incentives Act, 2013 (EITA), was signed into law on 18 December 2013 as one of government’s responses to the persistently high rate of youth unemployment. The EITA seeks to encourage the employment of younger workers by allowing a reduction in the mandatory pay as you earn tax (PAYE) that is payable by employers to the South African Revenue Service (SARS), in respect of employees who qualify in terms of the Act. The EITA has, however, not been without controversy. Critics have expressed concern about the temptation created for employers to give preference to younger workers over older workers in order to gain the tax benefit. The Act does, however, seek to address this concern.

Using derivatives to enhance portfolio management

Pursuant to regulation 28(7) of the Pension Funds Act of 1956 (the Act), a notice permitting pension funds (Funds) to obtain exposure to derivative instruments (the Notice) has been published wherein guidelines are set out to which Funds need to abide when making use of derivative instruments. It is clear from the wording of the Notice that Funds are only to use derivatives as a mechanism to hedge any risks that may arise by virtue of the assets held by a Fund in terms of regulation 28, or as a mechanism to enhance the portfolio management of any such assets. The Notice is however unclear in regards to certain aspects that relate to the use of derivative instruments. One such an ambiguity is to be found in the provisions of section 1.3.2 of regulation 28 (7) where it is stated that:

Employment Law
Dealing with processing errors that cause the mismatching of retirement fund returns

Many retirement funds are experiencing practical difficulties in paying members their fund return which remained in the fund after the member had exited the fund as a result of processing errors. The processing errors typically relate to timing difference between the actual time the transactions occur and the time when those transactions are deemed to have occurred for purposes of calculating the member’s benefits. The effect of the processing errors is that the minimum individual reserve paid to a member in terms of section 14A(1)(a) of the Pension Funds Act, 1956 (PFA) is less (or more) than the notional fund reserve to which that member is entitled. In many instances the value of the notional fund return owed to a member by a fund is only a small amount.

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