When a company (the “Acquirer”) plans to purchase another company (the “Target”), it is important to research the integrity of the counterparty. A proper legal, operational and financial due diligence will assist the Acquirer to asses risks relating to the Target.
Minority shareholders had limited protection under the Companies Act, 61 of 1973 (“the 1973 Act”). Only a member, being a minority shareholder, could approach a court in cases of oppressive or unfair prejudicial conduct. When approaching a court for relief under the 1973 Act, the minority shareholder had to show that the decisions taken by the board or majority shareholders were unfairly prejudicial, unjust or inequitable towards the minority shareholder.
Parties to an agreement should always be aware of the relevant jurisdictions and laws governing the enforcement of foreign judgments.
Our newsletter remitted in August 2016 and titled ‘‘Closing the Gap on Trusts’’ has reference. The article dealt with the new rules proposed by the TLAB expected to come into operation on 01 March 2017.
Section 22(3) of the Value Added Tax Act (the ‘‘VAT Act’’) states that where a vendor has claimed an input tax deduction on the basis of a tax invoice remitted, but has not made payment of the relevant consideration within a period of 12 (twelve) months, the transaction is effectively reversed.
Debt reduction measures have become more prominent considering the difficulty with which obligations towards creditors of a company are honoured. One of the most common transactions resulting in debt reduction / debt relief is the issuance of shares by a company – i.e. a company issues shares and utilises the subscription price paid for such shares to settle its debts. Another alternative is to capitalise shareholders’ loans.
The Companies Act states that any documents, accounts, books, writing, records or other information pertaining to a company must be kept for a period of 7 (seven) years. However, the Income Tax Act, the Customs and Excise Act and the Value Added Tax Act require records of a company to be kept for a period of no longer than 5 (five) years.
The Companies and Intellectual Property Commission (the ''Commission'') recently issued a public notice stating that all companies and close corporations which have continued to fail to submit their annual returns on an annual basis will be deregistered on the 29th of July 2016.
The Consumer Protection Act (the ''CPA'') provides protection for consumers against the purchase of second hand defective goods. This position was re-affirmed in a recent Eastern Cape High Court. The CPA allows consumers a 6 (six) month window to exploit the remedies provided for in the CPA.
The use of privileged information by an 'insider' for the purposes of gain (or to avoid a loss) at the expense of others is morally and legally reprehensible and therefore concepts of inside information, price-sensitive information, and insider trading are a number of the practices prohibited by the Financial Markets Act (“FMA”).
Cartel activity is a form of practice prohibited by the Competition Act. Cartel activities involves, but is not limited to the direct or indirect fixing of purchase or selling prices, the dividing of markets by allocating customers or suppliers and / or collusive tendering and other activities by a group of persons or trade organisations that promotes their self-interest. It is difficult for the competition authorities to detect cartel activities due to its intrinsic secret nature which renders both its detection and investigation difficult.
An agreement to negotiate a contract or further terms of a new contract in the future that is vague, illusory or unacceptably uncertain will not be enforceable in South African Law. For example, a promise in a purchase of land contract stating that should the purchase of land not be realised, the purchaser and seller will negotiate and conclude a lease agreement in respect of the land may be too vague and uncertain. This may be despite the intention of the parties for it to be a binding legal obligation to which the parties should be held.