IMPORTANT CIRCULARS & NOTICES

Transcription

1 Bulletin 6 of Period: Period: 1 February 31 January 2013 to 8 07 February IMPORTANT CIRCULARS & NOTICES CHIEF REGISTRAR S CIRCULAR NO 2 OF 2014: CONVERSION FROM PRIVATE COMPANY INTO A PUBLIC COMPANY CONCERNING SIYAKHA FUND (RF) LIMITED CHIEF REGISTRAR S CIRCULAR NO 3 OF 2014: REGISTRATION OF FIRSTRAND BANK LIMITED AND TERMINATION OF ABSA BANK LIMITED AS TRUSTEE OF COLLECTIVE INVESTMENT SCHEME FOUNTAINHEAD PROEPRTY TRUST SCHEME CHIEF REGISTRAR S CIRCULAR NO 4 OF 2014: LODGEMENT OF RATES CLEARANCE CERTIFICATES IN TERMS OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT NO 32 OF 2000 AND WITHDRAWAL OF CHIEF REGISTRAR S CIRCULAR NO 1 OF 2004 POLICY ON THE APPOINTMENT OF INSOLVENCY PRACTITIONERS PUBLISHED The Minister of Justice and Constitutional Development has determined a Policy on the appointment of Insolvency Practitioners to promote consistency, fairness, transparency and the achievement of equality for persons previously disadvantaged by unfair discrimination. The Policy, which will commence on 31 March 2014, will replace all previous policies and guidelines related to the appointment of insolvency practitioners used in the Masters' offices and it is intended to form the basis of the transformation of the insolvency industry. PROPOSED AMENDMENT OF UNIFORM RULE 46 AND MAGISTRATES' COURTS RULE 43 The Rules Board for Courts of law is considering amending Rule 46 of the Uniform Rules and Rule 43 of the Magistrates' Courts to provide for the court, in the exercise of its judicial oversight function when ordering execution against primary residential immovable property, to set a reserve price at which bidding must begin at sales in execution. To assist the Board in assessing whether to provide for the court to determine whether a reserve price is to be set and set the reserve price in the pursuance of its judicial oversight function, the Board requests your comments on whether it is desirable that a reserve price be considered in the judicial sale of primary residential immovable property. Comments must be submitted to the Rules Board Secretariat by no later than 28 February DRAFT SOUTH AFRICAN AUTOMOTIVE INDUSTRY CODE OF CONDUCT - INVITATION TO COMMENT The Minister of Trade and Industry published a draft South African Automotive Industry Code of Conduct (the Code) in terms of Section 120(2)(a) of the Consumer Protection Act, Interested persons may submit written comments within 30 days from the date of publication. The Code will regulate the interactions between persons conducting business in the automotive industry and their interactions with consumers. The purpose of the Code is to provide for an alternative dispute resolution scheme between consumers and all participants in the industry and to create an industry ombud to administer the scheme. It is an industry code and it applies to the entire Automotive Industry as defined in this code of conduct irrespective of whether such persons are members of any automotive industry association. The Code relates to the conduct for the supply of goods and services by the Automotive Industry and consumers within the Republic of South Africa and focuses on consumer protection, supplier guidance and fair business practices. The Automotive Industry for the purposes of the Code includes manufacturers, producers, wholesalers, distributors, dealers, retailers, suppliers, importers, service centres, workshops and their agents, parts, services, body builders, body repairers, automotive component manufacturers and remanufacturers, testing and tyre businesses. Contact the Knowledge Centre for copies of the Gazettes, notices and circulars.

2 2 LEAD SEMINARS LEGAL COSTS SEMINAR 2014 Presenter: Alet Lubbe, an attorney at Phatshoane Henney Attorneys, Bloemfontein. She specialises in drafting, taxation and legal advice relating to litigious and non-litigious legal costs. She has been a lecturer since Seminar content: Litigious costs: Drafting of bills of costs, taxation and general rules and case law; Taxations and assessment of costs; Cost orders, expert fees etc.; Non-litigious costs: Drafting and criteria to be taken in account, fee agreements; and New developments in statutes, ethics, economics and technology and the influence on legal costs and a legal practice. Centres and dates (Time: 9:00-16:30) Bloemfontein - 7 March 2014 East London - 21 May 2014 Port Elizabeth - 22 May 2014 Johannesburg - 7 August 2014 Pretoria - 8 August 2014 Durban - 1 October 2014 Cape Town - 3 October 2014 Registration fees (VAT incl) per person Practising attorneys: R per person Candidate attorneys / support staff: R Practising attorneys from firms located further than 150 km from the closest venue: R 780 Non-practising attorneys / Others: R Registration Details: CONSUMER PROTECTION ACT Presenter: Trudie Broekmann is a commercial attorney with over 15 years experience. She focuses on the CPA and Company Law. Seminar content: The seminar focuses on interpreting the CPA as it relates to attorneys fields of practice; tricky issues which can occur, and applying the remedies. In addition, new case law, including practical issues such as how to obtain a certificate from the Tribunal, is covered. Centres and dates (Time: 9:00-16:30) Johannesburg - 14 February 2014 Cape Town - 20 February 2014 Pretoria - 28 February 2014 Durban - 6 March 2014 Bloemfontein - 13 March 2014 Port Elizabeth - 20 March 2014 East London - 27 March 2014 Registration fees (VAT incl) per person Practising attorneys: R 1 120

3 3 Candidate attorneys: R Registration Details: REVISITING THE TAX ADMINISTRATION ACT AND INCORPORATIONS Presenter: Prof Daniel Erasmus The first part of the seminar will revisit key aspects of SARS procedure and Tax Administration Act. The objective is to update, highlight and address key practical and day-to-day areas that affect tax practitioners and their clients when dealing with SARS. The second part of the seminar will revisit incorporated practices and will assist practitioners to evaluate their own existing and future structures and those of their clients. Centres and dates (Time: 9:00-16:30) Cape Town - 10 March 2014 Port Elizabeth - 11 March 2014 Durban - 12 March 2014 Johannesburg - 13 March 2014 Pretoria - 14 March 2014 Registration fees (VAT incl) per person Practising attorneys: R Candidate attorneys: R Registration Details: GENERAL SALE OF PROPERTY SPOUSES MARRIED IN COMMUNITY OF PROPERTY Gugu and Another v Zongwana and Others ALL SA 203 ECM The first respondent sold a property to the appellants without the consent of the second respondent, his former wife to whom he was married in community of property. He subsequently sold the property to a third party and when the appellants became aware of this, they approached the court a quo for an order to prevent the first respondent from acting in breach of the sale agreement. The respondents opposed the application by placing the validity of the sale agreement in dispute and they also challenged its existence and cancellation. The question to be decided was whether the fact that the second respondent was not a party to the sale agreement in any way affected the validity thereof, because they were married in community of property. The court a quo agreed with the respondents that the sale agreement was invalid, because (1) the sale agreement did not comply with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981 and (2) by reason of the fact that the property formed part of the joint estate of the first and second respondents and that the respondent was not entitled to sell the property without first having obtained the written consent of the second respondent as required by section 15(2) of the Matrimonial Property Act 88 of The Appeal Court stated that the answer to the question did not not lie in the legislation relied upon by court a quo, but rather in the application of, and interaction between a few fundamental principles and rules of our common law. The court investigated the legal relationship between the first and second respondents and their respective rights to the property and concluded the following: Par 16: The effect of a marriage in community of property is that it produces a universal community of property which entails that the husband and wife become tied or bound co-owners in undivided and indivisible half-shares of all the assets and liabilities they have at the time of their marriage. The community persists during the continuance of the marriage. Upon dissolution of the marriage it comes to an end. Unless the court granting the divorce makes an order for forfeiture of benefits, the divorce order automatically also operates as an order for a division of the joint estate.

4 4 Par 17: The legal effect of the dissolution of the community of property is that the joint estate is divided ipso jure into two equal shares. Where the spouses were previously tied owners in undivided and indivisible half-shares of all the assets and liabilities forming part of the joint estate, their shares become determinate and divisible. They now become...in effect free co-owners entitled to a division of the estate. Their shares become divisible. Given the circumstances of divorce, it can rarely arise in practice that they would elect to continue co-ownership in this new form, and thus possibly the rule has grown up that the granting of a divorce carried with it an automatic order for division. It is open to the divorcing spouses (see section 7(1) of the Divorce Act 70 of 1979) to arrive at a settlement in terms of which they could, for example, continue as co-owners of particular assets. In practice the parties more often than not agree upon a division of the property comprising the estate. If the spouses are unable to agree on a division...the duty devolves upon the Court to divide the estate, and the Court has power to appoint some person to effect the division on its behalf. Under the general powers which the Court has to appoint curators it may nominate and empower some one... to collect, realise, and divide the estate. And that that has been the practice in South African courts is clear. Par 18: The Appeal Court concluded that the finding of court a quo that the provisions of section 15(2) of the Matrimonial Property Act found application to the sale agreement despite the dissolution of the first and second respondents marriage, because the property to be alienated formed part of the joint estate, was misplaced. The section, from a reading thereof, clearly regulates the relationship between the spouses during the course of the marriage in community of property. The word spouse in its ordinary meaning indicates a person who is, not was married. Further, the words joint estate is defined in section 1 of the Matrimonial Property Act as meaning the joint estate of a husband and wife married in community of property. The finding of the court a quo further lost sight of the fact that post divorce the community of property comes to an end and that the legal relationship between the spouses changed, which in turn effected their rights and duties as co-owners of the property. Where former spouses choose not to continue as co owners but to divide the assets by liquidating some or all of it without invoking the general power of the court to appoint a liquidator for that purpose, the division is jointly administered by them. The reason lies in the fact that following their divorce they are co owners of the assets of the joint estate and any juristic act with regard to the common property can only be effected with the co operation of both of them. Generally, a co-owner is not an agent for the others. This means that the one spouse cannot without the consent of the other alienate the assets of the joint estate. This requirement post divorce accordingly arises from their relationship as coowners, and not by virtue of the provisions of section 15(2) of the Matrimonial Property Act. The court accordingly found that the first respondent could not, without the consent of the second respondent, sell to the appellants anything more than his half share in the property. This was so despite the fact that the property was registered in the deeds office in the name of the first respondent. CAN A SECOND BILL OF COSTS (OR MORE THAN ONE BILL OF COSTS) BE TAXED IRO THE SAME CASE AND NOT INVOLVING AN INTERLOCUTORY AWARD OF COSTS Philemon M Ndhlovu v AA Mutual Insurance Association LTD (Supreme Court of SA TPD, Unreported Case No 3850/87) The parties settled the matter and the defendant undertook to pay the plaintiff s taxed party and party costs. Before the plaintiff s bill could be taxed and after having given notice to the defendant, the attorneys settled the bill by agreement and no items were taxed off. The taxing master completed the allocator and affixed her signature to the bills by inserting the words settled and allowed at R Counsel s fees were not included in the bills and it was common cause between the parties that it was negligently omitted as a result of an oversight by the plaintiff s attorneys. The plaintiff submitted a further bill consisting of three items solely related to counsel s fees, almost fifteen months after the first allocator and despite the defendant s objection, the taxing master taxed and allowed the second bill. The defendant relied on City Deep Ltd v Johannesburg City Council 1973 (2) SA 109 at 119 in support of its submission that a party is not entitled to submit more than one bill in a case. The plaintiff relied on rule 70(1)(a) and 70(5) for his contention that the taxing master was entitled to tax the bill. The court considered the passage relied on by the defendant and said that it was clear from the passage that an aggrieved party may at taxation explain, supplement or amend a bill. A bill may be amended on review by adding information or correcting an error. But the judge also stressed in the passage that there must be an end to all litigation including taxation. The court remarked that if one consideres the fact that a party is allowed at taxation and on review to supplement or amend a taxed bill, it seems fair to allow a party to tax a second bill or third bill, provided the circumstances warrant such

5 5 a procedure. The court however cautioned that an aggrieved party should not be allowed to present a bill for taxation ad infinitum and would also not be allowed to include in a supplementary bill any items in respect of which the taxing master had already exercised a discretion. The court could not find anything in the rule itself which warranted the suggestion that a party was limited to the taxation of one bill of costs only and accordingly found that the taxing master was correct in taxing the second bill of costs. PROCLAMATIONS AND NOTICES CONSUMER PROTECTION ACT 68 OF 2008 Draft South African Automotive Industry Code of Conduct published for comment GG ( ) COMPANIES ACT 71 OF 2008 Companies Regulations, 2011 amended GG ( ) RULES BOARD FOR COURTS OF LAW ACT 107 OF 1985 Proposed amendment to Uniform Rule 46 and to Magistrates' Courts Rule 43 published for comment INSOLVENCY ACT 24 OF 1936 Policy on the appointment of insolvency practitioners published with effect from 31 March 2014 MERCHANDISE MARKS ACT 17 OF 1941 Proposed prohibition of the use of certain words published for comment Proposed prohibition of the use of certain words annexure published GG ( ) FERTILIZERS, FARM FEEDS, AGRICULTURAL REMEDIES AND STOCK REMEDIES ACT 36 OF 1947 Regulations relating to fertilizers, farm feeds, agricultural remedies, stock remedies, sterilising plants and pest control operators, appeals and imports: Proposed amendment to tariffs published for comment FOODSTUFFS, COSMETICS AND DISINFECTANTS ACT 54 OF 1972 Authorisation of enforcement by local authority published GG ( ) PETROLEUM PRODUCTS ACT 120 OF 1977 Regulations in respect of the single maximum national retail price for illuminating paraffin published with effect from 5 February 2014 Publication of amendment of regulations in respect of petroleum products with effect from 5 February 2014 GG ( ) Regulations in respect of the maximum retail price of Liquefied Petroleum Gas supplied to residential customers published with effect from 5 February 2014 CONSERVATION OF AGRICULTURAL RESOURCES ACT 43 OF 1983 Revised tariffs for services rendered in terms of the Act published GG ( ) ANIMAL DISEASES ACT Tariffs payable for veterinary import permits published

6 6 35 OF 1984 with effect from 1 April 2014 PROFESSIONAL AND TECHNICAL SURVEYORS' ACT 40 OF 1984 South African Council for Professional and Technical Surveyors: Further opportunity for persons to apply for registration as Professional Geoinformation Science Practitioners published BANKS ACT 94 OF 1990 Withdrawal of consent for a foreign institution to maintain a representative office within the Republic of South Africa published with effect from 18 December 2013 AGRICULTURAL PRODUCT STANDARDS ACT 119 OF 1990 Amendment of standards and requirements regarding control of the export of citrus fruits published with effect from seven days after publication Amendment of standards and requirements regarding control of the export of fruit excluding citrus and certain deciduous fruits published with effect from seven days after publication OCCUPATIONAL HEALTH AND SAFETY ACT 85 OF 1993 Construction Regulations, 2014 published and Construction Regulations, 2003, published in GN R1010 in GG of 18 July 2003 repealed Categories of construction health and safety professionals identified GG ( ) SPECIAL INVESTIGATING UNITS AND SPECIAL TRIBUNALS ACT 74 OF 1996 Referral of matters to existing special investigating unit and special tribunal in respect of the affairs of the South African Post Office Limited published Referral of matters to existing special investigating unit and special tribunal in respect of the affairs of the Department of Co-Operative Governance and Traditional Affairs published GG ( ) GG ( ) NATIONAL HERITAGE RESOURCES ACT 25 OF 1999 Declaration of Lake Fundudzi Cultural Landscape, situated in Venda, Limpopo Province as a National Heritage Site published MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT 28 OF 2002 Restriction in terms of s. 49 (1) on granting of new applications for reconnaissance permits, technical cooperation permits, exploration rights and production rights in terms of ss. 74, 76, 79 & 83 of the Act published Proposed restriction under s. 49 (1) on the granting of reconnaissance permits, technical co-operation permits, exploration rights and production rights in terms of ss. 74, 76, 79 & 83 published for comment GG ( ) NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 10 OF 2004 Norms and Standards for Biodiversity Management Plans for Ecosystems published GG ( ) ELECTRONIC COMMUNICATIONS ACT Call Termination Regulations, 2014 published with effect from 1 March 2014 GG ( )

7 7 36 OF 2005 Notice regarding availability of reasons for decisions in respect of applications for individual commercial sound broadcasting service licences in the Free State, Eastern Cape and Northern Cape provinces published GG ( ) NATIONAL REGULATOR FOR COMPULSORY SPECIFICATIONS ACT 5 OF 2008 Current compulsory specification for incandescent lamps (VC 8043) withdrawn and replaced with effect from six months after publication (unless otherwise indicated) Proposed Compulsory Specification for Energy Efficiency and Labelling of Electrical and Electronic Apparatus (VC 9008) published for comment GG ( ) NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE ACT 59 OF 2008 Draft national norms and standards for organic waste composting published for comment GG ( ) PROVINCIAL LEGISLATION Limpopo Local Government: Municipal Systems Act 32 of 2000 Polokwane Local Municipality: Outdoor Advertising By-laws published in LAN 236 in PG 1638 of 3 July 2009 amended PG 2311 ( ) Limpopo Environmental Management Act 7 of 2003 Open Season: Game, 2014 published PG 2312 ( ) Mpumalanga Remuneration of Public Office Bearers Act 20 of 1998 Determination of remuneration and allowances of Members of the Executive Council and Members of the Provincial Legislature published and PremN 8 in PG 2091 of 28 September 2012 repealed with effect from 1 April 2013 PG 2265 ( )