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Corporate
COMESA Merger Assessment Guidelines

Article 55 of the Treaty Establishing the Common Market for Eastern and Southern Africa (the "Treaty"), provides for the prohibition of any agreement or concerted practice between undertakings, which has as its objective or effect, the prevention, restriction or distortion of competition within the Common Market. It further authorises the Council to: "make regulations to regulate competition within the Member States." The COMESA Competition Regulations (the "Regulations"), made under the Treaty, establish the COMESA Competition Commission (the "Commission") and empower it to regulate competition in the Common Market.

Employment Law
Compensation in Unfair Discrimination Cases

In South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC) an airline pilot, Van Vuuren, reached the retirement age of 60 on 5 August 2005. At the same time a collective agreement with the union was being negotiated in terms of which the retirement age would be increased to 63. Agreement on the increased retirement age of 63 was in fact reached on 19 August, but the collective agreement was only signed in November 2005. While the collective agreement was being finalised Van Vuuren was asked to remain at home on standby. When he resumed his duties in December 2005 he received a reduced salary that was lower than that of his younger colleagues who performed the same work.

Corporate
Mining rehabilitation funds - what if they are no longer needed?

Mining companies are obliged to perform environmental rehabilitation of mining sites upon the termination or premature closure, decommissioning and final closure, of mining activities. Section 37A of the Income Tax Act, 62 of 1968 (“the ITA”) serves to align tax policy with environmental regulation and regulates mining rehabilitation funds created with the sole object of applying their property for the environmental rehabilitation of mining areas.

Corporate
Getting the Deal Through - Climate Regulation 2015 - South Africa

Do any international agreements or regulations on climate matters apply in your country? South Africa ratified the United Nations Framework Convention on Climate Change (UNFCCC) in August 1997 and acceded to the Kyoto Protocol in July 2002. As South Africa is classified as a non-Annex I country, it is not required to meet targets and timetables for emission reductions in the Kyoto Protocol. The first commitment period of the Kyoto Protocol ended in 2012. Heavier burdens are placed on developed nations (or Annex I countries) than on developing countries under the principle of 'common but differentiated responsibilities'.

Litigation
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.

Corporate
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.

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.

Corporate
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.

Corporate
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.

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