across the bar

CIPC experiences teething problems

by Ashley - Posted 12 July 2011

The Companies and Intellectual Property Commission (CIPC), formerly known as CIPRO, was established pursuant to the New Companies Act which came into effect on 1 May 2011.

Since the get go the CIPC has been confronted with various problems ranging from its computer systems to its inability to deal with increased activity. These problems have caused havoc for companies and close corporations who wish to file their annual returns, some of which have already been deregistered for failing to meet the deadlines.

In light of these problems the acting commissioner of the CIPC has advised that the CIPC will waive the late filing fees and penalties for annual returns. The waiver is applicable to annual returns which become due during the period 1 April 2011 up to and including 31 March 2012.

In addition any company or close corporation which was and/or still is required to file their annual return during the period 1 April 2011 and 31 July 2011 will be given an additional 60 days to file their annual returns. This means that the CIPC will only be able to refer a company or close corporation for deregistration due to non-compliance after a period of 90 days and not 30 days.

permalink | comments (0) | back to top

Fixed term contracts and the management of an employee’s expectations

by Ashley - Posted 06 June 2011

The recent case of Joseph v University of Limpopo heard in the Labour Appeal Court highlights the dangers of dismissing an employee who reasonably expects an employer to renew a fixed term contract of employment on the same or similar terms and the employer fails to do so.

Dr Joseph, who was originally from India, was appointed on a fixed term contract of three years as a senior lecturer at the University of Limpopo.  When his fixed term contract had come to an end in 2000 the University advertised his position. This was a formality in order to comply with the legislative requirement pertaining to his employment as a non-South African citizen.  Dr Joseph applied for and was appointed to his position for a further period of three years and once again on a fixed term contract.

Towards the end of 2003 Dr Joseph became anxious when his post was not being advertised. It had by then become a formality for his post to be advertised just before his contract would come to an end, and he would then apply for and be re-appointed to that post.

After much delay, the post for senior lecturer in English in the Faculty of Humanities was finally advertised in December 2003. Dr Joseph applied for the position as advertised however, his application was unsuccessful. A person by the name of Dr Dlamini-Sukumane was appointed and Dr Joseph was placed as the second best candidate for the position.

Very shortly after accepting the position Dr Dlamini-Sukumane resigned and the position of senior lecturer was once again vacant. Nevertheless, the university declined to appoint Dr Joseph to that position.

Prior to 2003 Dr Joseph had developed two programs, Contemporary English Language Studies and Multilingual Studies. These programs were unique and were offered and applied in English Language studies. Dr Joseph had assumed that because of his involvement in teaching these new courses his services would be needed by the university and that his contract would be renewed.

The Court held that it was reasonable for Dr Joseph to have expected that his contract with the university would be renewed. A failure to renew his contract constituted an unfair dismissal and the University of Limpopo was ordered to reinstate Dr Joseph to his position. The university was further ordered to pay to Dr Joseph back pay in an amount of R 71 355.00. 

permalink | comments (0) | back to top

Tribunal gives the Massmart-Walmart Merger the thumbs up

by Ashley - Posted 31 May 2011

1. No retrenchments will take place at Massmart over the next two years for merger specific reasons;
2. Preference will be given to re-employing Massmart employees who were retrenched in June 2010 if vacancies arise;
3. Walmart will honour collective bargaining rights presently enjoyed and it will not challenge the status of  the South African Commercial, Catering and Allied Worker’s Union(SACCAWU) as the largest representative of workers in its divisions;
4. An investment remedy to address the local procurement concerns will be put in place.

Any violation of the above conditions could seriously jeopardise the merger so one wonders whether the above conditions will be adhered to or whether it is simply a public relations exercise…only time will tell!

permalink | comments (0) | back to top

1 May for New Companies Act

by Nicci - Posted 21 April 2011

Its official...the DTI have announced that the new Companies Act will come into effect on 01 May 2011.   The Regulations, recently published on 20 April 2011,  can be found here.

permalink | comments (0) | back to top

New Companies Act

by Nicci - Posted 03 April 2011

The implementation of the new Companies Act has been delayed yet again...01 May 2011 has been suggested by the DTI for its implementation, but at this stage it is anyone's guess. We'll keep you posted.
 

permalink | comments (0) | back to top

Consumer Protection in SA gets going

by Nicci - Posted 03 April 2011

The Consumer Protection Act came into force on 1 April 2011 as promised by the DTI. The finalised regulations were published the night before and the new National Consumer Commission (NCC) opened its doors for business on Friday.

Small businesses (cc's, companies and partnerships) with annual turnover or asset values of R2 million or less will enjoy protection as "consumers" (although not all the protection under the Act will be applicable to them).

Complaints can now also be lodged by consumers with the NCC.

Check out http://consumerlaw.co.za for more information. 

permalink | comments (0) | back to top

Extended tax relief for residential owning entities

by Nicci - Posted 09 October 2010

From 2002, the transfer of a residential property entity was treated by SARS as being equivalent to the transfer of a residential property, i.e.:

-transfer duty was payable by a purchaser buying a property owning CC or Company; and

-the Company was subject to tax on the transfer (Capital Gains Tax and Secondary Tax on Companies).

In 2009, SARS gave taxpayers relief from transfer duty in terms of which residential properties bought by the entity, including Trusts, could be transferred out free of CGT, STC and transfer duty.  An example is a Company which bought a property and its sole shareholder lives in it as his primary residence.  The purpose of the amendment was to eliminate unnecessary CC's, Companies and Trusts, when the sole asset owned by these entities is the residential property.

SARS has now extended the relief (Paragraph 51A to the 8th Schedule) with effect from 01 October 2010 and the extension applies to disposals of property made on or after that date and before 01 January 2013.

The requirements are:

a)the disposal must take place before 31 December 2012;

b)the residence is mainly used for domestic purposes by a family member who has ordinarily resided in the residence from 11 February 2009 to the date of disposal;

c)within six months of the disposal, the CC, Company or Trust must be liquidated, wound up or deregistered.

What happens if new shareholders buy the entity after it has bought the residential property?

Shareholder no. 2 will be allowed to transfer the property in terms of the new provision, provided:

a)that the property is the biggest asset in the entity; and

b)that 90% of the value of the shares is attributable to the value of the property.

permalink | comments (0) | back to top

New Companies Act and Consumer Protection Act update...

by Nicci - Posted 03 October 2010

This week the implementation of both the 2008 Companies Act and the Consumer Protection Act were postponed to April 2011. This allows time for the various commissions provided for in the Acts to be created (the Companies Commission and the National Consumer Commission) and for the Regulations to be finalised, which will give businesses more certainty around what to prepare for in the months coming up.

permalink | comments (0) | back to top

google victory in the you tube copyright lawsuit

by Steve - Posted 26 June 2010

Google have successfully defended the lawsuit brought against them by Viacom and its co-plaintiffs for direct and secondary copyright infringement involving copyright protected material being uploaded to You Tube. The New York district court ruled that Google were entitled to safe harbour protection under the Digital Millenium Copyright Act, and that general knowledge of copyright infringement on its site did not disqualify it from such protection. Viacom have said that they will appeal the decision.

Check out the ruling.  

permalink | comments (0) | back to top

when crime does pay (at least 6 months salary)

by Ashley - Posted 21 May 2010

So what happens if one of your employees is arrested on suspicion of committing a crime and remains in custody for a long period of time? Does this constitute incapacity and can you then fire them?

The Labour Appeal Court was faced with this very question in the recent case of Samancor Tubatse Ferrochrome v Metal and Engineering Industries Bargaining Council (MEIBC) and Others. Mr. Maloma (not Malema) was employed by Samancor as a furnace operator. He was arrested on suspicion of having committed an armed robbery. He remained in custody and was absent from work for approximately 150 days!

10 days after his arrest, Mr. Maloma received a dear john letter from his employer advising him that he had been dismissed on the ground of incapacity, i.e. that he was physically unable to tender his services.

Previously, our law recognized two aspects of incapacity: a) poor performance - where the employee was incompetent at doing the work because of a lack of skill, knowledge, ability or efficiency; and b) ill health or injury. However, the new case law has extended these 2 categories and incapacity can now be permanent or temporary and may take other forms, for instance, imprisonment and military call-up.

The court took into account that Samancor had no idea how long Mr. Maloma's incarceration would last, and that they needed a quick replacement because of the skilled nature of his job. The court decided that the dismissal was substantively fair. Unfortunately Samancor dropped the ball by not giving Mr. Maloma a fair opportunity to present his case and so the dismissal was held to be procedurally unfair. They were ordered to pay him 6 months salary as compensation.

In other words, Mr. Maloma received paid leave from his employer for his stay in jail. Who says crime doesn't pay.   

permalink | comments (0) | back to top