South Africa updates

Corporate Tax

Contributed by Cliffe Dekker Hofmeyr
Another ruling on share schemes, but questions remain
  • South Africa
  • March 16 2018

The South African Revenue Service (SARS) recently published a binding private ruling on the application of Paragraph 38(1) of the Eighth Schedule to the Income Tax Act to the distribution of shares by a trust to beneficiaries in the context of an employee share scheme. Although SARS stated that Paragraph 38(1) was not applicable to the trust's distribution of shares, the matter is complicated by the interaction between Section 8C of the act and the rules contained in the Eighth Schedule.

SARS provides further clarity on VCCs
  • South Africa
  • March 09 2018

The South African Revenue Service (SARS) recently released a binding class ruling which addressed, among other things, the eligibility of a partner in an en commandite partnership to claim a deduction in respect of venture capital shares acquired by the partnership. SARS ruled that subject to the Income Tax Act, each class member will be entitled to claim the deduction pro rata to its proportionate share of the investment in the partnership.

A win against SARS: late delivery of Rule 31 statement
  • South Africa
  • February 02 2018

The Tax Court recently delivered a judgment that will be of interest to any taxpayers involved in prolonged disputes with the South African Revenue Service (SARS), particularly where there are delays on the part of SARS. The case involved an application by the taxpayer for default judgment and an application by SARS for condonation for the late filing of its answering affidavit opposing the default judgment application.

Deductibility of legal expenses
  • South Africa
  • January 26 2018

For the purposes of determining a party's taxable income derived from carrying on a trade, the Income Tax Act provides for the deduction of legal expenses which arise during or by reason of its ordinary trading operations. However, in order for a taxpayer to deduct legal expenses, they must relate to a claim, dispute or action at law. Further, they must have arisen during or by reason of the taxpayer's ordinary operations undertaken in the course of its trade and must not be of a capital nature.

VAT rulings: how and when to apply
  • South Africa
  • December 22 2017

The process of applying for a value added tax (VAT) ruling is quite efficient and comes at no cost to the applicant. Such a ruling provides guidance as to the South African Revenue Service's views on certain transactions before entering into them and therefore mitigates the risks of proposed transactions. As there is virtually no risk in applying for a VAT ruling, it is advisable to apply for such a ruling in cases of uncertainty.

Healthcare & Life Sciences

Contributed by ENSafrica
Medical products: incentives regulation reloaded
  • South Africa
  • February 14 2018

The South African minister of health has called for public comment on the recently published Draft General Regulations Relating to Bonusing. The draft regulations aim to flesh out Section 18A of the Medicines Act, which prohibits the supply of any medicine, medical device or in vitro diagnostic medical device that is subject to a bonus system, rebate system or any other incentive scheme.

Draft IP Policy Phase 1 – part two: access to medicines, state 'walk-in' rights and parallel import
  • South Africa
  • December 06 2017

The recently published Draft IP Policy Phase 1 2017 includes a number of provisions relating to parallel import and state 'walk-in' rights for access to affordable medicines. Although there are complex issues surrounding access to affordable medicines, the inclusive process that the government has used in the implementation of the new policy is encouraging.

Draft IP Policy Phase 1: access to medicines and compulsory licensing
  • South Africa
  • October 11 2017

The keenly anticipated draft IP Policy Phase 1 (2017) was recently published for public comment. It constitutes the first phase in the implementation of a comprehensive IP policy for South Africa. One of the key issues to be addressed is the interplay between the constitutional rights relating to property and access to healthcare. According to the policy, the scope of compulsory licences will be strengthened and clarified in an effort to facilitate the process of exporting IP goods, such as medicines.

Doctrine of equivalents and pharmaceutical patent infringement
  • South Africa
  • August 09 2017

South African pharmaceutical product litigation case law provides no particular test that refers to the doctrine of equivalents. However, when interpreting the scope of patent claims, the courts may hold that a claim extends to obviously substituted equivalents in the infringing product or process that are not literally provided for in the specification and claims. As such, a pharmaceutical product or process with chemical equivalents may also be considered to constitute infringement.

Human genome editing with CRISPR-Cas9: South African legal perspective
  • South Africa
  • May 17 2017

In South Africa, gene editing techniques have and are being used in research studies for therapy with adult human cells. However, the ethical concerns around somatic gene editing therapy are less controversial than with germline therapy. At present, the modification of a human embryo's germline for therapeutic purposes culminating in the reproduction of a human being is prohibited. Germline editing for research purposes might be permitted, but would require conditional ministerial approval.

Intellectual Property

Contributed by KISCH IP
Stay app-dated
  • South Africa
  • January 29 2018

Apps have become increasingly popular owing to users' desire to stay in touch with rapidly developing technology-driven content and services dissemination. They have been created to satisfy just about any need, from gaming to fitness, transport to live updates and shopping to socialising – whatever you require is out there at the tap of a button. However, before releasing an app, IP considerations must be taken into account.

Who owns the copyright in your joint database?
  • South Africa
  • January 22 2018

The Johannesburg High Court recently had to decide whether transacting parties shared joint ownership of the copyright subsisting in a database of donors for a charity event organised by one of the parties. This case should have IP owners questioning where the ownership in the copyright subsisting in any original and protectable work that has arisen in the course of a partnership or joint venture truly lies.

Online shoppers beware – don't let your bytes bite back!
  • South Africa
  • October 30 2017

As online consumer confidence grows in South Africa, the online market is becoming an increasingly attractive space for counterfeiters and fraudsters. Counterfeiting not only affects consumers and brand owners, but can also weaken a country's economy and impact its ability to attract foreign investment. However, consumers have the antidote to counterfeiting and, as such, must make sure to use it.

Is there any craft in your craft beer?
  • South Africa
  • October 02 2017

In recent years, the South African craft beer industry has grown rapidly. Larger commercial beer companies have been heavily affected by this shift in the market and have thus started to acquire craft breweries. In order to prevent the term 'craft beer' from becoming diluted in the near future, many remaining craft breweries feel that the market should be completely transparent. As such, it is surely only a matter of time before South Africa adopts a certification process to protect the nature of 'true' craft beer.

Protecting trade secrets
  • South Africa
  • August 28 2017

In order to protect trade secrets, companies should, among other things, require that anyone exposed to trade secrets sign a non-disclosure agreement. Where this party is an employee, a restraint of trade agreement may also be used. However, the courts are reluctant to enforce excessively onerous restraint of trade agreements, as these restrict employees' rights to practise their trade and make a living.

Media, Marketing, Sports & Entertainment

Lights, camera, action! Tax exemption for films
  • South Africa
  • October 26 2017

Section 12O of the Income Tax Act provides an incentive to stimulate the domestic production of films in the form of an exemption from normal tax for income derived from the exploitation rights of a film. The South African Revenue Service recently issued guidance reflecting its interpretation of this provision.

Shipping & Transport

Contributed by Bowmans
What the International Arbitration Act means for maritime law
  • South Africa
  • February 14 2018

The recent promulgation of the International Arbitration Act gave the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration the force of law in South Africa. Given the cross-border nature of shipping disputes, the act promises to enhance ​the attraction of what is already a litigation-friendly jurisdiction.

Hanjin fallout – part two: High Court refuses time extension for writs of arrest in rem
  • South Africa
  • November 22 2017

The High Court's decision in a recent case involving a protective writ issued by a creditor of Hanjin at the time of the company's collapse was recently appealed before the Supreme Court of Appeal. A number of Hanjin creditors have filed an application for a time extension to serve the writs of arrest pending the outcome of the appeal. In the absence of an extension, the writs will have no further force or effect.

Hanjin fallout: end of protective writs in South Africa?
  • South Africa
  • September 27 2017

The longstanding practice of issuing a protective writ is directed at preserving the claimant's right to arrest a vessel in rem, notwithstanding a subsequent change of ownership. This matter did not come before the South African courts until recently, when the buyer of a vessel applied to the courts to have the protective writ set aside. The root of the problem lies in the apparent paradoxical Admiralty Jurisdiction Regulation Act provisions relating to the time of commencement of an admiralty action.

Court recognises territory of Western Sahara's prima facie right in cargo dispute
  • South Africa
  • June 28 2017

In a recent case, the Saharawi Arab Democratic Republic and the Polisario Front successfully applied to the Eastern Cape Local Division of the High Court for an order restraining and prohibiting the owners, master and charterers of the Cherry Blossom vessel, among other parties, from taking a cargo of phosphate out of the court's jurisdiction, pending the determination of the applicants' claim to ownership and delivery of the cargo.

Draft Comprehensive Maritime Transport Policy open for public comment
  • South Africa
  • March 22 2017

The Department of Transport recently released the long-awaited draft Comprehensive Maritime Transport Policy (CMTP) for public consultation and comment. The CMTP aims to facilitate the revival, development and transformation of South Africa's maritime transport sector, in order to enhance its contribution to international trade and the development of the South African economy.