A partnership is a legal relationship brought about by a contract between two or more persons, creating a concept of participation amongst the partners. Each partner will contribute to the business, with the object of making and sharing profits. For the duration of an ordinary partnership all the partners will be deemed to be joint co-creditors and joint co-debtors towards third parties.
According to the Income Tax Act (the ‘‘Act’’), a ‘disposal’ of assets includes the forfeiture, termination, redemption, cancellation, surrender, discharge, relinquishment, release, waiver, renunciation, expiry or abandonment of an asset.
Various remedies for the protection of minority shareholders exist under the Companies Act. One of which is a shareholder’s appraisal right that allows a shareholder to demand the company to buy-back his / her shares at fair value.
Section 42 of the Income Tax Act makes no provision for the automatic exemption from transfer duty where fixed property is acquired as a result of an asset-for-share transaction.
A Company’s shares may be for the benefit of one person (“Beneficial Shareholder”) and be registered in the name of another person (“Registered Shareholder”), except to the extent that a company’s Memorandum of Incorporation provides otherwise. As such, the rights depicted in the share register is independent of the ownership of the shares.
The Minister of Trade and Industry Dr. Rod Davies announced, in the Government Gazette of 9 June 2017 (“Publication Date”), that all Major B-BBEE Transactions must be registered with the B-BBEE Commission.
The Chief Master’s Directive issued in March 2017, (the “Directive”), announced new changes to be implemented with respect to the administration of all trusts. The Directive demands the appointment of an independent trustee where the trust is registered for the first time with the Master’s Office and it emerges from the trust deed that the trust is a “family business trust”. This requirement results from the judgment in Land and Agricultural Bank of South Africa v Parker and Others, where the court determined that the Master must restrict or prevent the abuse of trusts.
In the case of Roazar CC v The Falls Supermarket CC 2017, Falls Supermarket (hereinafter ‘‘Falls’’) leased a premises from Roazar Close Corporation (hereinafter ‘‘Roazar’’). Apart from the main lease agreement, two other agreements between the parties were relevant, in terms whereof additional monies were agreed to be paid in cash by Falls to the individual members of Roazar. So-called off-the-record payments or “kickbacks”.
The Caveat Subscriptor is a common law principle that binds parties to an agreement reduced to writing and signed by the parties, irrespective of their true intentions, understanding or interpretation of the written agreement.
Imerys South Africa (Pty) Ltd. and Andalusite Resources (Pty) Ltd. merger:
The Turquand Rule (the “Rule”) allows a third party dealing with a company in good faith to presume the authority of a person acting on behalf of a company. The common law based Rule is recognised by our courts and is partially entrenched in the Companies Act (the “Act”).
The Black Economic Empowerment Codes of Good Practice (“BEE Codes”) published in 2013, introduced three priority elements, each with a sub-minimum requirement to be attained by measured entities. If not attained in any one of the priority elements, the measured entity’s BEE contribution is reduced with one level (“Discounting Penalty”). The priority elements are Ownership; Skills Development; and Enterprise and Supplier Development.