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Subscribe to our
bi-monthly
HPASA newsletter. |
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Legal |
| HPASA
legal matters are attended to by Schliemann
Incorporated; a property law firm of great distinction.
The firm has established an excellent reputation for
providing practical advice on a wide range of legal
matters. |
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Property Law |
Investing in property
can be a complex process and will inevitably involve
enlisting the services of a property law firm.
When you are ready to purchase property, Schliemann
Incorporated are there to offer you resolute,
reliable advice and to ensure a swift and hassle-free
transfer. The firm has been practicing since 1995 and
have grown from humble beginnings to a diverse
and dynamic team of professionals and paralegals with
a wealth of knowledge and experience.
Schliemann
Incorporated adopt a holistic approach to dealing
with legal concerns and they ensure that their clients
receive professional legal service
every step of the way. This dedicated team of attorneys
and property lawyers are experts in
their respective fields and offer a premium service
that outshines that of their contemporaries.
As the firm has grown and developed, Schliemann Incorporated
attorneys have become well-equipped in niche legal fields
making them the industry leaders across the board. From
sale agreements and sectional titles to transfers and
mortgage bonds, this team of talented legal professionals
are leaders in all aspects of property law.
Let Schliemann
Incorporated take care of all of your property law
concerns.
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April 2013
MISCONCEPTIONS
AROUND THE NEW MOI FOR COMPANIES
By Ripley Evans
BA LLB LLM (Com), Schliemann Incorporated
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The new
Companies Act, No. 71
of 2008 (“Companies
Act”) came into
effect on 1 April 2011.
This Act has significantly
changed the regulations
around the constitutional
(founding) documents of
South African companies.
The constitutional documents
of a company under the
previous Companies Act,
the memorandum and articles
of association, have been
replaced by a single document,
a Memorandum of Incorporation
(“MOI”), which
will be binding between
the company and its shareholders,
each director and any
person serving on a board
committee.
A very common misconception
around the Companies Act
and one that is causing
much concern leading up
to the compliance deadline
of 30 April 2013
is around the lodging
of a ‘new’
MOI for each company.
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February 2013
INTEREST EARNED
BY NON- SA RESIDENTS: WITHHOLDING
TAX TO BE INTRODUCED
By Ripley Evans
BA LLB LLM (Com), Schliemann Incorporated
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The
South African Revenue
Service’s (“SARS”)
tax treatment of interest
earned by non-residents
has been amended. These
amendments will be effective
from 1 July 2013
and will apply in respect
of any interest that accrues
after this date.
Globally, withholding
taxes is used to ensure
that the relevant tax
stays in its source country
before the non-resident
falls outside the taxman's
net, and this withholding
tax is no exception.
This tax will bring the
tax treatment on non-resident’s
interest earned in line
with the withholding tax
on dividends (also 15%),
that came into effect
on April 1, 2012.
Currently, South Africa’s
tax system provides for
a tax exemption on all
interest payable to foreign
residents, with two exceptions...
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December / January 2013
THE CONSUMER
PROTECTION ACT – CONSEQUENCES
OF CONTRAVENING THE ACT
By Marie-Claire
Olivier, Schliemann Incorporated |
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We are
often asked “Why
should I comply with the
Consumer Protection Act
(“CPA”)?”
We have dealt with certain
provisions of the CPA
in previous editions;
however, we have not yet
dealt with the penalties
for contravening the CPA.
The CPA has sharp teeth
and the cost of not complying
with its provisions can
be high.
Realisation
and Enforcement of Consumer
Rights
Section 4 of the CPA provides
that a person may approach
a court, the Tribunal
or the Commission, if
they feel that a consumer's
rights in terms of the
CPA have been infringed,
impaired or threatened,
or that prohibited conduct
has occurred or is occurring.
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Section 69 provides that a matter
may be referred to the applicable
ombud with jurisdiction, an
industry ombud, a consumer court
or an alternative dispute resolution
agent, which would include conciliation,
mediation and arbitration.
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October 2012
SHOULD
YOU HAVE A TRUST?
By Gabriel Steyn,
Schliemann Incorporated. |
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Much has been written
and said about the advantages
and disadvantages of
having a Trust as a
special vehicle through
which to invest and
grow assets. Opinions
vary and at times the
debate can get heated.
I am however of the
opinion that no debate
about the advantages
or disadvantages of
an asset building trust
is necessary. The only
question should be whether
or not in your specific
circumstances you need
a Trust.
Once you have answered
that question in the
affirmative, then it
stands to reason that
you should get a well-constructed
Trust. Such a Trust
should be specifically
designed for the purposes
taking into consideration
the reasons why you
need the Trust in the
first place. That will
ensure that your Trust
would be user-friendly.
With such a Trust the
few “disadvantages”
that may remain, will
be far outweighed by
the advantages and positives
resulting from such
a Trust.
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August 2012
THE CONSUMER
PROTECTION ACT AS APPLICABLE TO OVERSELLING
AND OVERBOOKING
By Marie-Claire
Olivier, Schliemann Incorporated |
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Have
you ever arrived at an
airport only to be “bumped
off” your flight
due to the flight having
been overbooked?
Section 47 of the CPA
provides that a Supplier
may not accept payment
(or other consideration)
for goods and/or services
which the Supplier has
no reasonable basis for
asserting an intention
to supply such goods or
services or if the Supplier
intends to supply goods
or services which are
materially different to
those for which the Consumer
has paid. This section
of the CPA does not apply
to franchise agreements
or special-order goods.
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June 2012
DID YOU
KNOW? DEATH AND TAXES PITFALLS
By
Jan Eberhard Schliemann, Schliemann
Incorporated |
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Estate
duty/death taxes
and estate planning
is a wide and very
intricate field
of law. Thus we
will try and focus
on certain aspects
and issues that
may be of interest
especially to readers
who may have assets
both within South
Africa and outside
South Africa.
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April 2012
THE CONSUMER
PROTECTION ACT AS APPLICABLE TO PREPAID
VOUCHERS
By Marie-Claire
Olivier LLB (Stellenbosch), Schliemann
Incorporated |
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How
often have you received
a voucher as a gift
and, before you
know it, the expiration
date is looming
or, worse yet, has
come and gone before
you’ve had
the opportunity
to use it?
The Consumer
Protection Act 68
of 2008 (“CPA”)
provides that a
prepaid certificate,
credit, voucher
or similar device
(“voucher”)
will not expire
before three years
after the date of
issue (or a longer
period agreed between
the Supplier and
the Consumer) or
the date on which
the full value has
been redeemed, whichever
occurs first.
This means that
a prepaid voucher
falling within the
ambit of the CPA
cannot expire earlier
than three years
from the date that
it was issued and
that the days of
a voucher expiring
within a couple
of months of receiving
it (and often before
you have the opportunity
to use it) are bygone.
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October 2011
IS YOUR
ZONING REALLY IN ORDER?
Long usage cannot
condone zoning contravention |
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In the
hospitality industry,
zoning issues are a real
concern. Whether you are
running a restaurant,
bed and breakfast, hotel
or other business from
a premise, the property
must be zoned for such
use.
Incorrect Zoning
If it is not
correctly zoned, then
your hard-earned profits
will be applied towards
penalty payments and the
business may be ordered
to discontinue activities
until (and if) the re-zoning
application has been successful.
And do not acquiesce in
appearance: long usage
of premises in contravention
of zoning regulations
remain unlawful and open
to penalty.
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August 2011
DIRECT MARKETING
AND THE CPA:
THE DO'S AND
DON’T'S |
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We all know that marketing
is a crucial element of most
successful businesses. But how,
now that the new Consumer Protection
Act (CPA) places substantial
limitations on what is termed
'direct marketing'?
What it is all about
In its effort to protect
consumers who, when faced with
a very persuasive marketer,
finds it hard to say 'no', the
Act places limitations on direct
marketing.
Direct marketing occurs
when a consumer is approached
- either in person, by mail
or via electronic communication
(for example, using telephone,
fax, SMS or e-mail) for the
direct or indirect purpose of:
• promoting
or offering
to supply goods or
services in the ordinary course
of business to the person ;
or
• requesting the
person to make a donation. |
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June 2011
NOW IS THE TIME
TO ADJUST YOUR CANCELLATION POLICY
STBB | SMITH
TABATA BUCHANAN BOYES |
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The
provisions of the Consumer Protection
Act (the Act) finds extensive
application in the hospitality
industry as members of the industry
provide a service to the general
public, i.e. the everyday user
of the various facilities offered
by this industry.
Canceling Reservations or Bookings
Consumers are expressly granted
the right to cancel any advance
reservation or booking and a
service provider can therefore
not disallow a consumer the
right to exercise this right.
The service provider may require
that a deposit is paid upfront
and may, in addition, impose
a reasonable charge for the
cancellation (except where the
cancellation occurs as a result
of death or hospitalisation). |
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April 2011
DO YOU USE COMPETITIONS
TO ATTRACT CUSTOMERS? WHAT THE CONSUMER
PROTECTION ACT SAYS
STBB | SMITH TABATA
BUCHANAN BOYES |
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It’s not so simple
any more. The Consumer Protection
Act became fully operational on 01
April 2011 and deals specifically
with promotional competitions by imposing
a series of requirements for:
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What should be
included in competition rules;
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What information and documentation
should be retained after the
competition was finalized |
A person conducting a
competition needs to know, amongst
other things, that: |
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February/March 2011
WASTED COSTS WHEN A
BOOKED FUNCTION IS CANCELLED: The New Consumer
Act Says …
By Hanlie Kotze, STBB
| SMITH TABATA BUCHANAN BOYES |
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Cancellation of
a booked event can cost a caterer,
hotel or any other venue facility
a great deal in the way of wasted
time and costs. Against this background,
those in the hospitality industry
may find it alarming that the Consumer
Protection Act, which will become
fully operative on 01 April 2011,
affords consumers the right to cancel
any advance bookings and reservations.
What recourse
is there for the service provider
who suffers a loss as a result of
such a cancellation?
Section 17 of the Act allows a supplier
to require payment of a reasonable
deposit when a booking is made and
to impose a reasonable penalty in
respect of the cancellation of the
booking.
What is
a reasonable deposit and penalty? |
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December 2010
BOOKING CANCELLATIONS
- WHAT THE CONSUMER PROTECTION ACT SAYS
By Maryna Botha, STBB
SMITH TABATA BUCHANAN BOYES |
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From the point of
view of the hospitality industry,
many of the provisions of the new
Consumer Protection Act will have
a direct impact on the day-to-day
running of businesses.
Postponed
Considering that the implementation
date of the Act has been postponed
to 1 April 2011, the days to
full implementation are numbered
and it is necessary to acquaint
oneself with the impact that
the Act will have on a business’
daily interaction with clients.
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Cancel Bookings & Orders
One of the more far-reaching
provisions of the Act is the consumer’s
right, under certain circumstances,
to cancel advance bookings and orders.
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Up to now, businesses in the
industry usually dealt with the risk of
a booking cancellation...
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be it because the guest
changed plans at the last minute on
a whim; or |
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as a result of accidental
double-booking or for more serious
reasons |
...by agreeing upfront that a penalty would
be payable or that the client would lose
his/her deposit in the event of a late cancellation.
Will this still apply when the Consumer
Protection Act is implemented?
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October
2010
HEED THE NEW LIFT &
ESCALATOR REGULATIONS
Effective from 30
November 2010 |
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New safety regulations
relating to lifts, escalators
and passenger conveyors were
published in the Government Gazette
(335613, Notice 828) on 17 September
2010 and will come into operation
on 30 November 2010.
GNR
828 Lift Escalator and Passenger
Conveyor Regulations 2010
- click
here |
All Businesses
All businesses - body corporates,
restaurants, guesthouses, hotels,
shopping centres and the like - that
have such conveniences installed at
their premises need to ensure that
they are compliant in time. |
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August
2010
NON-RESIDENT PURCHASERS
MUST BE CAUTIONED NOW!
What will you need
should you intend to repatriate your investment
later on
By Maryna Botha, STBB | SMITH TABATA BUCHANAN
BOYES |
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Proceeds
Most property practitioners and investors
are aware of the fact that a non-resident
seller may take the proceeds from the sale
of his/her house out of South Africa (repatriate)
after:
• any sums still owing
under a mortgage bond over the property
have been paid; and
• the non-resident’s
Capital Gains Tax liability was settled
with SARS. |
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June
2010
WHAT THE CONSUMER PROTECTION
ACT BRINGS
By Maryna Botha, STBB
| SMITH TABATA BUCHANAN BOYES
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The Consumer
Protection Act 68, 2008 (‘CPA’)
was signed into law on 24 April last year.
Some chapters of this Act became effective
on 25 April of this year whilst the remainder
(and bulk) of the provisions will become
effective in October this year (unless the
Minister applies for the maximum 6 month
extension provided for in the CPA).
Consumer is King
The Act is fittingly heralded as introducing
the ‘Consumer is King’ era and
it undoubtedly expands the areas in daily
transacting where consumer protection is
offered, improves the level of protection
and invites consumer participation by introducing
new tribunals where complaints can be lodged
and allowing consumer groups to act on behalf
of the individual consumer in class actions.
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RENTING
OUT TO WORLD CUP VISITORS? Consider the
legalities...
By Annetjie Van Rooyen
of STBB Smith Tabata Buchanan Boys
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Ever since the announcement
in 2004 that South Africa would host the
Soccer World Cup in 2010, the tourism and
business industries have shown as much excitement
as the local soccer fans at the prospect.
Rent or Not?
Homeowners in host cities have seen a possibility
of making a little profit by renting out
their homes to visitors. Now that the World
Cup is imminent, many homeowners are still
unsure whether or not to plunge in and rent
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| THE
PHASING OUT OF CLOSE CORPORATIONS |
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Do you have a business in a close
corporation? Then you need to know how the
new Companies Act will affect close corporations.
New Companies Act
The new Companies Act 71, 2008 was signed
into law on 08 April 2009 and is expected
to become operational (and replace the current
1973 Act) in April 2010. |
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AMENDED
TAX LAWS OFFERS RELIEF TO SOME
The 2009 Taxation Laws Amendment
Act came into operation on 30 September
2009. |
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Act relates to the attractive
possibility to transfer a domestic
residence that is held in an
entity (such as a company, close
corporation or trust) free from
any tax liability. |
In the following paragraphs, we will
briefly look at the legislature’s
motivation for these new provisions
as well as to their application.
SARS’ Concerns
Prior to 2001, many individuals used
entities as vehicles in which to purchase
their residential homes. |
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