KNOWLEDGE MANAGEMENT IN THIS ISSUE 23 FEBRUARY 2016 NEWSLETTER

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1 23 FEBRUARY 2016 NEWSLETTER KNOWLEDGE MANAGEMENT IN THIS ISSUE 1 SECTOR UPDATE 2. OTHER DEVELOPMENTS 3. RECENT PUBLICATIONS ACROSS PRACTICE AREAS At Cliffe Dekker Hofmeyr, we are committed to keeping our clients informed of important legal developments. Our partner-lead teams work with our public and private sector clients in a wide range of industries, from major brands to emerging businesses. This KM Alert provides a summary of important developments across a range of sectors/industries over the last 12 months. It is not intended to cover all sectors and/or legislation but to provide a high level overview only. The KM Team

2 1. SECTOR UPDATE 1.1 Administrative and Public Law Promotion of Access to Information Act, No 2 of 2000: Exemption of certain private bodies from compiling a manual. For a period of five years from 1 January 2016 to 31 December 2020 (GG 39504; GN 1222; 11 Dec 2015). 1.2 Aviation Air Service Licensing Act, No 115 of 1990: Application of the grant or amendment of Domestic Air Service Licence (GG 39679; GN 15; 12 Dec 2015). Civil Aviation Act, No 13 of 2009: Amendment of regulations Invitation to comment (GG 39692; RGN 176; 12 Feb 2016). Civil Aviation Act, No 13 of 2009: Civil Aviation Regulations - Thirteenth Amendment (GG 39687; RGN 173; 12 Feb 2016). The Department of Transport published the draft White Paper on National Civil Aviation Policy (September, 2015). Civil Aviation Act, No 13 of 2009: Civil Aviation Regulations - Eighth Amendment. Regulations in terms of remotely piloted aircraft systems. Commencement date: 1 July 2015 (GG 38830; 27 May 2015). 1.3 Broad-based Black Economic Empowerment (B-BBEE) Broad-Based Black Empowerment Regulations, 2016: Invitation for the public to comment on the draft (GG 39704; GN 185; 17 February 2016): Interested persons may submit written comments not later than thirty (30) days from the date of publication of this notice. Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016): Construction Sector Code (GG 32305); Chartered Accountancy (GG 34267). Amended Tourism B-BBEE Sector Code effective from 20 November 2015 (GG 39430; 20 Nov 2015). Amended B-BBEE Verification Manual: 30 day public commentary period effective from 1 November 2015 to 30 November 2015 (GG 39378; 6 Nov 2015). B-BBEE Amendment Act, No 46 of 2013: Public Statement on the commencement of s3(b) - 8 October the Minister of Trade and Industry, Dr Rob Davies (MP), published a public statement on the commencement of s3(b) of the Act. The commencement date of s3(b) is 24 October 2015: Section 3(b) also known as the trumping provision stipulates that in the event of any conflict between the B-BBEE Act and other law in force immediately prior to the date of commencement of the B-BBEE Act as amended, the B-BBEE Act will prevail if the conflict relates to a matter dealt with in the B-BBEE Act. This trumping provision was inserted to safeguard the objectives and spirit of transformation and was allocated a twelve (12) month transitional period, said Minister Davies. In terms of s10(3) of the Amendment Act, 2013, s3(b) comes into operation one year after the date on which the Amendment Act, 2013, was proclaimed. The transitional period was to enable alignment between B-BBEE Act and other pieces of legislation that speaks to economic transformation. The general public is therefore informed that s3(b) of the Amendment Act, 2013, by operation of law, automatically commenced on 24 October B-BBEE Act: Revised notice of clarification The Minister of Trade and Industry published a revised notice of clarification (GG 38799, 15 May 2015): Confirming that the Amended Codes of Good Practice (Notice 1019, GG of 11 October 2013 as amended by Notice 403, GG of 6 May 2015) will come into effect on 1 May 2015; Clarifying that all B-BBEE verifications in respect of a financial year ending on or before 30 April 2015 can be conducted using the old Codes of Good Practice (Notice 112, GG of 9 February 2007) and all B-BBEE verifications in respect of a financial year ending after 1 May 2015 must be conducted using the Amended Codes of Good Practice, with the exception of the Sector Codes; The Minister of Trade and Industry, Dr Rob Davies (MP), published a public statement on the commencement of s3(b) of the Act. 2 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

3 SECTOR UPDATE...continued Further extending the transitional period for the alignment of Sector Codes to 30 October From 1 November 2015, Sector Codes that are aligned shall be effective in accordance with paragraph (b) of this Notice. Consideration shall be given to repealing any Sector Codes that are not aligned and ready for gazetting by 30 October 2015; Determining that during the inaugural year of the Amended Codes of Good Practice, all valid B-BBEE certificates issued under the old Codes of Good Practice, as well as the relevant Sector Codes, should remain valid and should therefore be accepted and treated as conferring empowering supplier status. In respect of EME (Exempted Micro Enterprises) certificates which were issued without Empowering Supplier status, the interpretation stated in the Amended Codes of Good Practice clause 3.3.1, Amended Code Series 400 Gazette No will be applied, which states that Exempted Micro Enterprises and Start-Ups are automatically recognised as Empowering Suppliers. The Department of Trade and Industry (DTI) issued a Statement on the Recognition of Broad-Based Schemes (GG 38764; 5 May 2015). Statement 003: Amended guidelines for developing and gazetting of sector codes (GG 38766; GN 408; 6 May 2015). Amendment of Code Series 400, Statement 400-Add 9 Fifth criterion for the empowering supplier (GG 38765; GN 407; 6 May 2015). B-BBEE Amendment Act, No 46 of 2013: Codes of Good Practice on Broad Based Black Economic Empowerment [Draft Amended Tourism B-BBEE Sector Code] (GG 38915; GN 657; 30 June 2015). Draft AGRIBEE Sector Codes. Comments on the draft sector code within 60 days from 20 November 2015 (GG 39429; GN 1160, 20 Nov 2015). 1.4 Communications Electronic Communications Act, No 36 of 2005: Invitation to apply for individual commercial free to air sound broadcasting service licence (secondary markets) (GG 39700; GN 75; 16 Feb 2016). Independent Communications Authority of SA: Public hearings to be held in respect of review of the draft publication on End-User and Subscriber Service Charter Regulations (GG 39694; GN 73; 12 February 2016). It applies to any person licenced by ICASA and are aimed at creating a more informed consumer who is better able to select products and services best suited to their needs and circumstances. Digital Migration Regulations, 2012: Declaration of the performance period and start of the dual illumination period that starts on 1 February 2016 (GG 39642; GN 87; 1 Feb 2016). Independent Communications Authority of SA: Fees and charges for postal services (GG 39637; GN82; 29 Jan 2016). Department of Telecommunications and Postal Services: Proposed policy direction. This is aimed at finalizing regulations to ensure effective competition in the broadband market and the reduction of data costs. (National Broadband Policy: SA Connect. This is the national broadband policy adopted by Cabinet in 2013 to deliver 100% broadband connectivity for all schools, health and government facilities by The broadband project aims to deliver broadband access to 90% of the country s population by 2020 and 100% by 2013.) Independent Communications Authority of SA: Draft regulations for on Code of Conduct for Premium Rates Services (GG 39536; 17 Dec 2015). Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016). The following sector codes are not repealed and remain valid until they are amended: ICT Sector Code (GG 35423). 1.5 Company law/the Companies Act Draft legislation: Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the INSOL Africa Round Table, Cape Town, 12 October 2015: Department is currently finalizing the Insolvency Bill which is intended to revise the law of insolvency in South Africa, as well as the statutory provisions dealing with the liquidation of companies, bringing them in line with international best practice. The Bill will replace the out-dated 1936 Insolvency Act and provide a revised and modern statutory framework for overseeing the winding up of insolvent estates and the estates of juristic persons. 3 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

4 SECTOR UPDATE...continued Alternative dispute resolution (ADR) mechanism should be made accessible to all: The Acting Deputy Director- General of Consumer and Corporate Regulation at the Department of Trade and Industry says ADR should mechanism should be made accessible to communities across the country: As policy makers in SA we are grappling with the challenge of promoting equitable, inclusive and sustainable economic growth. One of the ways of achieving such economic growth is through the creation of a fair regulatory environment that enables the development of investment, trade and enterprise in an equitable and sustainable manner. The main purpose of the Companies At of 2008 was to promote the development of the SA economy by encouraging entrepreneurship and enterprise efficiency, creating flexibility and simplicity in the formation and maintenance of companies, as well as encouraging transparency and high standards of corporate governance. 1.6 Construction and Engineering CIDB Best Practice Contractor Recognition Scheme: Implementation (GG 39204; 11 Sept 2015). CIDBA - Standard for Uniformity in Construction Procurement July 2015 (GG 39204; 11 Sept 2015). Other developments which may impact on this sector: Mandatory Adjudication and Prompt Payment Regulations for all construction works contracts; International Arbitration Bill; and Establishment of the China/Africa Joint Arbitration Centre (CAJAC) in Johannesburg and Shanghai - Arbitration Foundation of Southern Africa (AFSA) announced the creation of the China Africa Joint Arbitration Centre (CAJAC) Johannesburg (August 2015). Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016): Construction Sector Code (GG 32305). 1.7 Consumer Law and Consumer Protection National Credit Act, No 34 of 2005: Amendment to the regulations for matters relating to the functions of the tribunal and rules of the conduct of matters before the National Consumer Tribunal (GG 39663; GN 157; 4 Feb 2016). National Credit Act, No 34 of 2005: Invitation for the public to comment on the determination of a threshold for credit provider registration (GG 39663; GN 158; 4 Feb 2016). National Credit Act, No 34 of 2005: Regulations on Review of Limitations on Fees and Interest Rates: The Minister of Trade and Industry has published a Government Notice on the Review of Limitations on Fees and Interest Rates Regulations, 2015 on 6 November The Regulations will come into effect on 6 May 2016 (GG 39379). The regulations contain revised maximum prescribed interest rates, initiation fees and service fees. The micro-lending industry is most affected by these regulations. Draft Debt Collectors Amendment Bill, 2016: This is intended to amend the Debt Collectors Act, 1998 and to regulate abusive behaviour in the debt collection process. Suspension of the Affordability Assessment Regulations of the National Credit Regulations, 2015 (GG 39127; GN 756; 21 Aug 2015). Invitation for public comment on the Draft Credit Life Insurance Regulations in terms of s171(1)(d) (ii) of the National Credit Act, No, 34 of 2005 (GG 39407; GN 1104; 13 Nov 2015). 1.8 Courts Cabinet approves the submission of the Courts of Law Amendment Bill, 2015 to Parliament (18 February 2016). The Bill: amends the Magistrates Courts Act, 1932 of 1944 and the Superior Courts Amendment Act, 10 of The amendments seek to alleviate the plight of debtors who find themselves on the receiving end of abuses in the debt-collecting system in the magistrates courts and to accommodate the Department of Trade and Industry s project to remove adverse consumer credit information. The Bill seeks to amend sections of the Magistrates Courts Act to address abuses in the Emoluments Amendments Order. The Bill seeks to address and bring to an end judgments that are granted irregularly, mostly by clerks of courts without any judicial oversight, many times due to inexperience or collusion with the creditors, their attorneys or debt collectors. The Bill would ensure debtors are granted judgment that complies with an instalment order or Emoluments Attachment Order that is within the legal set out instalment threshold. Establishment of Small Claims Courts for Limpopo and Mpumalanga (GG 39691; GN 175; 12 Feb 2016). 4 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

5 SECTOR UPDATE...continued Magistrates Courts Act, No 32 of 1944: Creation of magisterial districts and establishment of District Courts (GG 39601; 15 Jan 2016). Superior Court Act, No 10 of 2013: Determination of areas under jurisdiction (GG 3960; 15 Jan 2016) and (GG 39595; 14 Jan 2016). Rules Board for Courts of Law Act, No 107 of 1985: Amendment of rules regulating the conduct of the proceedings of the Magistrates Courts of South Africa (GG 39715; GNR 2; 19 Feb 2016). Rules Board for Courts of Law Act (107/1985): Amendment of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa (GG 39715; GNR3; 19 Feb 2016). 1.9 Data Protection and Privacy Protection of Personal Information Act, No 4 of 2013 (POPI): POPI was assented to 19 November 2013, with a limited number of its provisions (eg the establishment of an Information Regulator and the power for the Justice Minister to make regulations relating to the Regulator) taking effect on 1 April The majority of its provisions will come into effect on a date still to be proclaimed. The process of appointing the Information Regulator in terms of this Act has not been finalized and, on 30 November 2015, the Justice & Correctional Services committee agreed to schedule a further workshop for Education and Training National Qualifications Act, No 67 of 2008: Proposed occupational qualifications for registration on qualifications sub framework for trades and occupations. Invitation to comment within 21 days from date of publication (GG 39702; GN 183; 17 Feb 2016). Department of Higher Education and Training: Draft policy on the evaluation of creative outputs and innovations produced by public higher education institutions (2015) invitation to comment (GG 39666; GN 159; 8 Feb 2016). National Education Policy Act, No 27 of 1996: Appointment of members to serve on ministerial committee to evaluate broad sample of existing textbooks and to develop textbook policy towards promotion of diversity (GG 39690; GN 174; 12 Feb 2016). Higher Education Amendment Bill, No 36 of 2015 was introduced in Parliament on 13 November The Bill has prompted fears that the new amendments will put the autonomy of universities at risk. The bill is expected to attract wide attention amidst ongoing calls and protests for transformation, increased funding and improved access in the higher education sector. Public hearings were scheduled for Tuesday, Wednesday and Friday 16, 17 & 19 February Constitution of the RSA, 1996: Establishment of a Commission of Inquiry into Higher Education and Training (GG 39608; 22 Jan 2016). Continuing Education and Training Act, No 16 of 2006: Policy standard on approval to conduct research in public colleges (GG 39583; GN 18; 8 Jan 2016). Proposal for the New National Skills Development Strategy (NSDS) call for public comments (GG 39386; 10 Nov 2015). 5 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

6 KNOWLEDGE MANAGEMENT NEWSLETTER 23 FEBRUARY 2016 SECTOR UPDATE...continued 1.11 Employee Benefits Code of Good Practice on Employment of Persons with Disabilities: The introduction of the Protected Disclosures Amendment Bill, No 40 of 2015 in Parliament. This Bill extends the application of the Protection Disclosures Act, No 26 of 2000, beyond the employer/employee relationship (paragraph 15 deals with employee benefits) Energy Nuclear Programme: Determination under s34(1) of the Electricity Regulation Act (GG 39541; 21 Dec 2015). Energy releases State of Renewable Energy in SA report (6 October 2015). Electricity Regulation Act: IPP Procurement Programme 2015: Determinations (GG 39111; 18 Aug 2015) Financial Services Financial Markets Act, No 19 of 2012: JSE Listing Requirements amendments. Coming into operation on 21 March 2016 (GG 39711; BBN15; 19 Feb 2016). Financial Sector Regulation Bill [B ]: to give effect to Twin Peaks reform. This represents a shift to a two-pillar regulatory regime in the financial sector: a new prudential authority within the Reserve Bank for financial product providers and the Financial Sector Conduct Authority for financial service providers. The Twin Peaks in South Africa: Response and Explanatory Document accompanies the second draft Financial Sector Regulation Bill: twinpeaks/pages/default.aspx Public hearings were held on 10 February Proposed amendments to the State Rules (GG 39433; GN 256; 20 Nov 2015). Click here for an Explanatory Memorandum to the proposed amendments (November 2015): capitalmarkets/pages/documents-for- Consultation.aspx And: Amendments to JSE Listing Requirements; Amendments to JSE Equities Rules; and Amendments to the STATE Rules (GG 39531; 18 Dec 2015). Banks Amendment Act, No 3 of 2015 (GG no 38942; 29 June 2015). Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016) - The following sector codes are not repealed and remain valid until they are amended: Financial Services Sector Code - (GG 35914). Development Bank of Southern Africa Amendment Act, No 41 of 2014 (GG 38403; 20 Jan 2015). Finance Act, No 19 of This is aimed at approving authorized expenditure. Financial Markets Act, No 19 of Financial Services Board: Notice regarding conflicts of interest published with effect from 31 December 2015 (GG 38369; BN 1; 2 Jan 2015). Hedge Funds: On 20 November 2015 the FSB released a Draft Noticeinvestment in Hedge Funds for consultation. Click here for the Draft Notice and the Explanatory Memo cis/pages/hedge-funds.aspx# New Development Bank Special Appropriation Act, No 20 of This is aimed at appropriating an additional amount of money for the requirements of the National Treasury to pay the first capital instalment to the New Development Bank. Determination of Conditions for Registration of Managers of Collective Investment Schemes and Determination of Fit And Proper Requirements for Directors and Management. The draft subordinate legislation together with application forms is available on the official website of the Financial Services Board ( cis/pages/doccomments.aspx#) for public comment Franchising Consumer Protection Act, No 68 of 2008: Draft Franchise Code of Conduct (GG 39631; GN 33; 29 Jan 2016) Health (General) Department of Health: Traditional Health Practitioners Regulations, 2015: Extension of comment period (GG 39685; GN 171; 12 Feb 2016). National Health Act, No 61 of 2003: White Paper on National Health Insurance: Extension of commend period) (GG 39675; GN 165; 11 Feb 2016). Medicines and Related Substances Act, No 101 of 1965: Regulations relating to a transparent pricing system for medicines and scheduled substances: dispensing fee for pharmacists (GG 39658; GN153; 5 Feb 2016). Medicines and Relates Substances Act, No 101 of 1965: Annual adjustment of the single exit price of medicines and scheduled substances for the year 2016 (GG 39594; GN24; 13 Jan 2016) 6 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

7 SECTOR UPDATE...continued Medicines and Related Substances Amendment Act, No 14 of 2015 (GG 39585; GN19; 8 Jan 2016) Draft National Public Health Institute of South Africa Bill, Draft National Health Laboratory Service Amendment Bill, Medicines and Related Substances Act, No 101 of Draft dispensing fee to be charges by persons licensed in terms of s22c(1) (GN 899; GG 39190; 10 Sept 2015) Health and Safety Mine Health and Safety Act, No 29 of 1996: Guideline for a mandatory code of practice for an occupation programme; Guideline for a mandatory code of practice on the minimum standards of fitness to perform work on a mine; Guideline for a mandatory code of practice on the right to refuse dangerous work and leave dangerous working places; and Guideline for a mandatory code of practice for the management of medical incapacity due to illhealth and injury (GG 39656; 5 Feb 2016). Occupational Health and Safety Act, No 85 of 1993: Notice relating to the application for a construction work permit required in terms of the 2014 Construction Regulations to the OHSA (GG 39025; 24 July 2015). Occupational Health and Safety Act, No 85 of 1993: Driven Machinery Regulations. Commencement date: 30 September 2015 (GG 38905; 24 June 2015). Mine Health and Safety Act, No 29 of 1996: Regulations Relating to Explosives. Commencement date: take effect three months after its publication (GG 38970, 10 July 2015) Hospitality and Leisure Codes of Good Practice on Broad Based Black Economic Empowerment: Amended Tourism Sector Code (GG 39429; 20 Nov 2015). Broad-Based Black Economic Empowerment Act, No, 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016). The following sector codes are not repealed and remain valid until they are amended: Tourism Sector Code (GG 32259) Immigration (Corporate) Cabinet Statement on Immigration Regulations (21 October 2015). Draft Immigration Amendment Bill, 2015 published for comment by 20 January 2016 (GG 39501; 11 Dec 2015). Immigration Regulations Concessions: Cabinet was briefed on the progress on the Inter-ministerial committee on Immigration Regulations which was led by the Deputy President. The President had set up this IMC so as to investigate the unintended consequences that were raised by the stakeholders in the tourism sector. Having investigated and explored areas that can be adjusted to deal with both the security consideration and the unintended consequences the IMC made certain recommendations (Cabinet Statement; 21 Oct 2015) Business Rescue, Restructuring and Insolvency Draft legislation: Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the INSOL Africa Round Table, Cape Town, 12 October 2015: Department is currently finalizing the Insolvency Bill which is intended to revise the law of insolvency in South Africa, as well as the statutory provisions dealing with the liquidation of companies, bringing them in line with international best practice. The Bill will replace the outdated 1936 Insolvency Act and provide a revised and modern statutory framework for overseeing the winding up of insolvent estates and the estates of juristic persons Insurance Law Long Term Insurance Act, No 52 of 1998: Financial Services Board Penalty for failure to furnish registrar with returns etc (GG 39718; BN4; 19 Feb 2016). Short Term Insurance Act, No 53 of 1998: Financial Services Board Penalty for failure to furnish returns etc (GG 39718; BN4; 19 Feb 2016). Insurance Bill, No 1 of 2016: The Bill aims to provide a legal framework for the prudential supervision of insurance business in the Republic that is consistent, where relevant, with international standards for insurance regulation and supervision; to introduce a legal framework for micro insurance to promote financial inclusion; to replace certain parts of the Long-term Insurance Act, 1998, and the Short-term Insurance Act, 1998 and to provide for matters connected therewith. 7 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

8 SECTOR UPDATE...continued New Fit & Proper Requirements published (GG 39095; 14 Aug 2015). Effective 1 October Revised draft Conduct of Business Returns (CBR s) released for public comment by the FSB. Comments must be submitted on or before 18 March 2016 (15 December 2015) Listings, Stock Exchanges and Public Documents The JSE issued an announcement regarding amendments to the JSE Listings Requirements. The amendments relate to the treatment of fractions: Schedule 18 (January 2016) Mining and Minerals Mineral & Petroleum Resources Development Act, No 28 of 2002: Regulations for Petroleum Exploration and Production. Commencement date: 3 June 2015 (GG 38855; 3 June 2015). The publication of the Draft African Exploration Mining and Finance Bill, 2015 for public comment (GG 39615; GN56; 22 Jan 2016). This Bill establishes the African Exploration Mining and Finance Corporation. The technical processes of Parliament seem to have hampered the progress of the Mineral and Petroleum Resources Development Amendment Bill. The Portfolio Committee is expected to provide clarity in this regard and to quell speculation whether the Bill will continue to be debated in Parliament, be withdrawn or replaced by a new draft. Broad-Based Black Economic Empowerment Act, No 53 of 2003: Exemption: Exempt the Department of Mineral Resources from applying the requirements contained in s1 0(1) of the Broad - Based Black Economic Empowerment Act, 2003 to the upstream petroleum industry and mining and minerals industry administered in terms of the Mineral and Petroleum Resources Development Act, No 28 of 2002 for a period of 12 (twelve) months, pending the finalisation of these Sectors Charter(s): In that, the Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry was gazetted under the Mineral and Petroleum Resources Development Act, No 28 of 2002 as amended by Act, No 49 of 2008; and That the process of alignment and circumstances peculiar to these sectors, necessitate more time to finalise alignment with the Broad-Based Black Economic Empowerment Act, 2003, and Codes of Good Practice as amended. 8 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

9 SECTOR UPDATE...continued 1.23 Pensions Cabinet debated and considered the full implications of the commencement of the Taxation Laws Amendment Act, 2014: In terms of the Act the annuitisation of provident fund benefits will commence on 1 March That means that from that date provident fund benefits and pension fund benefits will be treated equally in that provident fund members will on retirement be permitted to take one third of their provident fund benefits in cash as a lump sum payment and the remaining two thirds of their benefits will have to be used by them to purchase annuities. The very same provision applies to members of pension funds currently. The changes in the legislation affect high end earners and all other persons who belong to provident funds. A number of organisations and individuals have expressed concern about the implementation of the new changes and have made representations to the government about the implementation. It is apparent that despite the extensive consultation processes which were embarked upon before the law was passed that those concerns still exist and that those concerns have to be addressed urgently to ensure that when the law commences the changes to the provident fund benefits will be implemented smoothly and efficiently. Cabinet has decided to table a legislative amendment to the Taxation Laws Amendment Act as a matter of urgency to postpone the commencement date from 1 March 2016 to 1 March 2018 to allow for further consultations with all key stakeholders. Those consultations may result in further amendment to the laws. An Amendment Bill will be tabled in Parliament within the next few days (Cabinet Statement; 17 Feb 2016). Implementation of Tax Harmonisation of Retirement Fund Contributions and Benefits will be implemented from 1 March 2016 (National Treasury Media Statement; 3 Dec 2015) Regulatory Promotion of Access to Information Act, No 2 of 2000: Exemption of certain private bodies from compiling a manual. For a period of five years from 1 January 2016 to 31 December 2020 (GG 39504; GN 1222; 11 Dec 2015). Financial Intelligence Centre Amendment Bill, No 33 of 2015: Tabled in Parliament (27 October 2015). Financial Intelligence Centre Act 38 of 2001: Exemption (GG 38844; GN 461; 5 June 2015). 9 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

10 2. OTHER DEVELOPMENTS 2.1 Accounting and Auditing Auditing Profession Act, No 26 of 2005: Proposed amendments to the Code of Professional Conduct for Registered Auditors (GG 39718; BN2; 19 Feb 2016). Auditing Profession Act, No 26 of 2005: Proposed amendments to the Code of Professional Conduct for Registered Auditors (GG 39657; BN11; 5 Feb 2016). Auditing Profession Act, No 26 of 2005: The adoption of international quality control, auditing, review, other assurance, and related services pronouncements (GG 39531; BN272; 18 Dec 2015). Auditing Profession Amendment Act, No 2 of 2015 (GG no 38889; 17 June 2015). 2.2 Agriculture Draft Aquaculture Bill: Comments by 31 March 2016 (GG 39713; GN 78; 19 Feb 2016). Plant Improvement Act, No 53 of 1976: Regulations relating to Establishments, Varieties, Plants and Propagating Material: Amendment (GG 39718; GN 2; 19 Feb 2016). Agricultural Products Standards Act, No 119 of 1990: Proposed publication of regulations relating to the Protection of Geographical Indications and Designations of Original on Agricultural Products intended for sale in the RSA invitation to comment (GG 39678; RGN3; 12 Feb 2016). Genetically Modified Organisms Act, No 15 of 1997: Amendment of regulations and tariffs for services (GG 39678; GN 3 and 5; 12 Feb 2016). Marketing of Agricultural Products Act, No 47 of 1996: Request for the continuation of statutory measures relating to levies, registrations and records and returns in the pork industry in terms of the marketing of the act (GG 39678; GN2; 12 Feb 2016). Plant Breeders Rights Act, No 15 of 1976: Amendment of regulations (GG 39679; GN 4; 12 Feb 2016). Draft Perishable Products Export Control Bill, Draft AGRIBEE Sector Codes: Comments on the draft sector code within 60 days from 20 Nov 2015 (GG 39429; GN 1160, 20 Nov 2015). Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016) - The following sector codes are not repealed and remain valid until they are amended: Agri BEE Sector Code (GG 36035). 2.3 Competition Competition Act, No 89 of 1998 Guidelines on the assessment of public interest provisions in merger regulation under the Act: For comment (GG 38448; GN 86; 30 Jan 2015). 2.4 Criminal law Criminal Law (S exual Offences and Related Matters) Amendment Act Amendment Act, No 5 of 2015 (GG 38977; 7 July 2015). 2.5 Cyber law Draft Cybercrimes and Cybersecurity Bill published for comment before 30 November 2015 (GG 39161; 2 September 2015). The Bill is aimed at combating cybercrimes. It has been criticized for threatening freedom of expression and association as well as the right to privacy. 2.6 Employment Labour Laws Amendment Bill [PMB5-2015]. Employment Equity Act, No 55 of 1998 (GG 39383; GN 1085; 9 Nov 2015). Code of Good Practice on Employment of Persons with Disabilities: The introduction of the Protected Disclosures Amendment Bill, No 40 of 2015 in Parliament. This Bill extends the application of the Protection Disclosures Act, No 26 of 2000, beyond the employer/employee relationship. Labour Relations Amendment Act, No 6 of Environmental law Department of Water and Sanitation: Draft National Sanitation Policy invitation to comment (GG 29688; GN70; 12 Feb 2016). Department of Agriculture Forestry and Fishers: Invitation to submit applications for a DAFF quota import permit (GG 39643; GN 88; 2 Feb 2016). National Environmental Management: Protected Areas Act, No 57 of 2003: Draft notice to declare protected areas (GG 39646; 3 Feb 2016). National Water Act, No 36 of 1998: Proposed classes of water resources and resource quality objectives: invitation to comment (GG 39614; 22 Jan 2016). National Environmental Management: Biodiversity Act, No 10 of 2014: Draft amendment of the norms and standards for the marketing of rhinoceros and rhinoceros horn, and for the hunting of rhinoceros for trophy hunting purposes (GG 39589; GN 55; 12 Jan 2016); National Environmental Management Laws Amendment Bill: Extension of the public comment period for the National Environmental Management Laws Amendment Bill, 2015 (GG 39287; GN 986; 13 Oct 2015) until 30 November KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

11 KNOWLEDGE MANAGEMENT NEWSLETTER 23 FEBRUARY 2016 OTHER DEVELOPMENTS...continued National Water Act, No 36 of 1998: Regulations relating to access and use of Government Waterworks and surrounding state-owned land for recreational purposes in terms of this Act (GG 39348; GN 1046; 2 Nov 2015). National Water Act, No 36 of 1998: Revision of the pricing strategy for water use charges in terms of s56(1) of the National Water Act (GG 39411; GN 1154; 13 Nov 2015). Water Services Act, No 108 of 1997: Revision of the norms and standards for setting water services tariffs in terms of s10 of the Water Services Act, 1997 (GG 39411; GN 1153; 13 Nov 2015). National Environmental Management Act, No 107 of 1998: Amendment to Environmental Impact Assessment Regulations, 2014 and Listing Notices 1, 2 and 3 of 2014 (GG 39343; GN 1030; 30 Oct 2015). Waste Management Plan (25 October 2015) National Environmental Management: Air Quality Act, No 39 of 2004: Draft National Greenhouse Gas Emission Reporting Regulations for comment (GG 38857; GN 541; 5 June 2015). Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016) - The following sector codes are not repealed and remain valid until they are amended: Forest Sector Code (GG 32320). 2.8 Export and Development Proposed National Export Development and Promotion Bill (Department of Trade and Industry website June 2015). The Department of Trade and Industry has identified the need for export promotion and development legislation in South Africa. The DTI is preparing a White Paper and drafting a Bill on Export Development and Promotion. This is in line with government policies including the National Development Plan (NDP) and the New Growth Path. 2.9 Films and publications Films and Publications Act, No, 65 of 1996: Invitation of nominations for appointment as members of the Appeal Tribunal of the Film and Publication Board (GG 39647; GN 136; 3 Feb 2016). Films and Publications Amendment Bill [B ] Investments Protection of Investment Act, No 22 of 2015 has been approved and signed into law by the President (GG 39514; 15 Dec 2015). The Act will come into operation after a proclamation by the President confirming the commencement date. It is aimed at providing for the protection of investors and their investments and to achieve a balance of rights and obligations that apply to all investors Revenue Division of Revenue Bill (GG 39707; GN 187; 18 Feb 2016). The Bill proposes to provide for the equitable division of revenue nationally for the 2016/17 financial year and the determination of each province s equitable share of the provincial share of that revenue. Customs and Excise Act, No 91 of 1964: Amendment of Schedule 1 (GG 39686; RGN 172; 12 February 2016). Rates and Monetary Amounts and Amendment of Revenue Laws Act, No 13 of 2015 (GG 39421; 17 Nov 2015). Rates and Monetary Amounts and Amendment of Revenue Laws Act, No 42 of 2014 (GG 38404; 20 Jan 2015) Refugees Draft Refugees Amendment Bill (GG 38893; 19 June 2015) Shipping Merchant Shipping Amendment Act, No, 12 of 2015 (GG 39303; GN991; 20 Oct 2015) Road Traffic National Road Traffic Act, No 93 of 1996: Regulations amendment (RGG 39710; GN 188; 19 Feb 2016). Draft Administrative Adjudication of Road Traffic Offences Amendment Regulations, 2008: Extension of period of public comments (GG 39672; GN 163; 10 Feb 2016). Administrative Adjudication of Road Traffic Offences Amendment Bill [B ]. Draft National Road Traffic Amendment Bill [2015] For comment. (GG no 38429; 28 Jan 2015) Property Expropriation Bill [4 of 2015]: The Bill seeks to align the Expropriation Act, No of 1975, with the Constitution and to provide for the expropriation of property for a public purpose or in the public interest. Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016) The following sector codes are not repealed and remain valid until they are amended: (Property Sector Code - GG 35400). 11 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

12 OTHER DEVELOPMENTS...continued Spatial Planning and Land Use Management Act, No 16 of 2013: Commencement date: 1 July 2015 (GG 38828, ProcN 26; 27 May 2015); Regulations made in terms of s54 (GG 38594, GNR 239; 23 Mar 2015) Safety and Security Private Security Industry Regulation Act, No 56 of 2001: Consultation Paper: Review of the Annual Fees 2016 for private security industry (GG 39682; GN69; 12 Feb 2016) Tax SARS Draft Interpretation Note: The taxation of foreign individuals in terms of the Income Tax Act, No, 58 of Taxation Administration Laws Amendment Act, No 23 of 2015 (GG 39586; GN20; 8 Jan 2016). Taxation Laws Amendment Act, No 25 of 2015 (GG 29588; GN22; 8 Jan 2016) SARS: Binding General Ruling: Interpretation of the term substantially the whole (January 2016). Taxation Laws Amendment Act, No 43 of 2014 published in (GG 3840; 20 Jan 2015) Tax Administration Laws Amendment Act 44 of 2014 published in (GG 38406; 20 Jan 2015). Employment Tax Incentive Act, No 26 of The Davis Tax Committee - First Interim Report on Base Erosion and Profit Shifting (BEPS) released for public comment. Documents available at Tax Administration Act, No 28 of 2011: Draft Public Notice on Implementing the Common Reporting Standard in South Africa in terms of Regulations under the Tax Administration Act, 2011 with: Briefing Notes for Non-Reporting Financial Institutions; Templates for Excluded Accounts; The Draft CRS Regulations; and The unofficial draft CRS Regulations. Please refer to our Tax and Exchange Control Alert focusing on the National Budget Speech, 24 February KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

13 KNOWLEDGE MANAGEMENT NEWSLETTER 23 FEBRUARY 2016 OTHER DEVELOPMENTS...continued Draft Taxation Laws Amendment Bill, 2015 (Issued by the National Treasury for comment by 26 June 2015). Bills passed by National Council of Provinces on 1 December 2015: Adjustments Appropriation Bill [B ] (National Assembly s77); Taxation Laws Amendment Bill [B 29B ] (National Assembly s77); Tax Administration Laws Amendment Bill [B ] (National Assembly s75) Finance Bill [B ] (National Assembly s77); and New Development Bank Special Appropriation Bill [B ] (National Assembly s77) Trade and Industry Special Economic Zones Act, No 16 of Commencement from date of publication (GG 39667; RProc6; 9 Feb 2016) Transport Broad-Based Black Economic Empowerment Act, No 53 of 2003: Notice to repeal sector codes and repeal sector codes that are not aligned to the B-BBEE codes (GG 39703; GN 184; 17 Feb 2016) - The following sector codes are not repealed and remain valid until they are amended: Integrated Transport Sector Code (GG 34267). Looking ahead - New Bills Copyright Amendment Bill; Carbon Tax Bill; Regulation of Landholdings Bill; Liquor Amendment Bill. Deeds Registries Amendment Bill approved for publication (Cabinet Statement; 17 Feb 2016); Protection, Promotion, Development and Management of Indigenous Knowledge Bill - approved for publication (Cabinet Statement; 17 Feb 2016) Plant Health (Phytosanitary) Bill - approved for publication (Cabinet Statement; 17 Feb 2016); and Courts of Law Amendment Bill - approved for publication (Cabinet Statement; 17 Feb 2016). 13 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

14 3. RECENT PUBLICATIONS ACROSS PRACTICE AREAS COMPETITION Tribunal rules on interlocutory application in Pioneer Fishing case Namibian and South African competition authorities formalise terms of cooperation Co-operation agreement entered into between the Competition Commission and the International Trade Administration Commission Update on healthcare inquiry Commission embarks on dawn raids in September and October Competition Commission revises mergers & acquisitions division service standards Conditional approval of Telkom and Business Connection merger, following Dimension Data intervention Conditional approval of Telkom and Business Connection merger, following Dimension Data intervention Tribunal relaxes administrative penalty on the back of market division Commission conditionally approves large merger between black-owned investment firms Guarding against information exchange in situations of cross directorships Commission prohibits small merger following a voluntary merger submission Competition Tribunal imposes employment conditions in agri-market Commission settles with two respondents in shipping cartel Please search under the name of the practice area: Competition 14 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

15 RECENT PUBLICATIONS ACROSS PRACTICE AREAS...continued CORPORATE AND COMMERCIAL Cliffe Dekker Hofmeyr appoints new head of private equity Cliffe Dekker Hofmeyr appoints three directors in its Corporate and Commercial practice Please search under the name of the practice area: Corporate and Commercial DISPUTE RESOLUTION Public policy trumping pacta sunt servanda (agreements must be kept) rule Overview of the draft franchise industry code published in January 2016 Non-compliance with prescribed mode of acceptance Contracting with the state caveat! Validation of dispositions in terms of s341(2) of the Companies Act The Constitutional Court restricts an organ of state s power not to award a tender Please search under the name of the practice area: Dispute Resolution New International Arbitration Forum opens Africa up to the International Community Do courts have the power to substitute a decision to award a tender? Out of time: do the paja time periods apply to organs of state? Business rescue: moratorium on alternative dispute resolution mechanism Do our courts interfere in unfair contracts? 15 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

16 RECENT PUBLICATIONS ACROSS PRACTICE AREAS...continued EMPLOYMENT AND IMMIGRATION Can unions still wash their hands of the unlawful conduct of their members during a strike? Anticipate additional reform in our pension law Does a certificate of outcome cure a dispute s jurisdictional issues? Does the right to privacy protect employees from their duplicitous conduct on social media? Please search under the name of the practice area: Employment Retrenchment: is LIFO the only way to go? Important guidance from the constitutional court on validity and fairness in large-scale retrenchments Employment equity plans: quotas v numerical targets Think twice before you tweet The jurisdictional fight: greater Tzaneen municipality v Le grange (685/2013)[2015] ZASCA 17 Constitutional Court reviews and sets aside an arbitration award in the absence of a record Does a possible order of reinstatement limit an employer s discretion to fill an upgraded post in cases of restructuring? Does a possible order of reinstatement limit an employer s discretion to fill an upgraded post in cases of restructuring? Planning for public holidays and extra public holidays in 2016 Claims for payment of arrear wages prospective from the date of a reinstatement order may prescribe sooner rather than later 16 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

17 RECENT PUBLICATIONS ACROSS PRACTICE AREAS...continued ENVIRONMENTAL Draft Carbon Tax Bill B-2017 Please search under the name of the practice area: Environmental FINANCE AND BANKING Anticipate additional reform in our pension law Co-operation for clearing OTC derivatives: ESMA and the FSB More regulatory intervention for insurers? Please search under the name of the practice area: Finance and Banking PRO BONO AND HUMAN RIGHTS Video: Nationals Schools Moot Competition Seminar hosted by the Pro Bono and Human Rights Practice Please search under the name of the practice area: Pro Bono and Human Rights 17 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

18 RECENT PUBLICATIONS ACROSS PRACTICE AREAS...continued PROJECTS AND INFRASTRUCTURE Forfeiture as a Joint Operating Agreement default remedy in upstream petroleum operations in South Africa New Ministerial Determinations issued by South Africa s Minister of Energy Please search under the name of the practice area: Projects and Infrastructure REAL ESTATE Historical debt and clearance certificates: are we all (un)clear? Please search under the name of the practice area: Real Estate 18 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

19 RECENT PUBLICATIONS ACROSS PRACTICE AREAS...continued TAX Tax and Exchange Control Alert: National Budget Speech New reportable arrangement: non-resident service providers REITs a recent ruling about qualifying distributions Is the OECD s base erosion and profit shifting action plan on transfer pricing flexing the arm s length principle s muscles; or proposing a different pricing standard under the guise thereof? Please search under the name of the practice area: Tax Ruling on third-party backed shares Preservation orders - the court sets a high bar for SARS Estate duty implications for non-resident individual investors in South African assets Interpretation of the term substantially the whole Absolving of employer liability process to be formalised Converting loans into equity: another SARS ruling Residential property and VAT Proposed extension of existing prescription periods (s99 of the Tax Administration Act) Victory for taxpayer in motor vehicle salary sacrifice scheme TECHNOLOGY, MEDIA AND TELECOMMUNICATIONS (TMT) The sinking ship of transatlantic data transfers Please search under the name of the practice area: Technology, Media and Telecommunications 19 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016

20 KNOWLEDGE MANAGEMENT NEWSLETTER 23 FEBRUARY 2015 TRAINING, LEARNING AND SKILLS DEVELOPMENT We value training and skills development as an important part of our corporate culture. We offer various training sessions, presentations, updates and workshops on a range of topics. We recently hosted seminars on developments in the areas of: Corporate and Commercial Company Law Corporate Governance Higher Education Employment law Environmental law Please visit our website for more information about upcoming events and client seminars. The KM Team RANKED #1 BY 2015 DEALMAKERS FOR M&A DEAL FLOW 7 YEARS IN A ROW, 1 st by General Corporate Finance Deal Flow st by M&A Deal Flow, 1 st by M&A Deal Value, 1 st by General Corporate Finance Deal Flow st by M&A Deal Flow, 1 st by M&A Deal Value, 1 st by Unlisted Deals - Deal Flow st by M&A Deal Flow, 1 st by General Corporate Finance Deal Flow, 1 st by General Corporate Finance Deal Value, 1 st by Unlisted Deals - Deal Flow. FINANCIAL AND CORPORATE RECOMMENDED FIRM ST South African law firm and 12 th internationally for Africa & Middle East by deal value 2 ND South African law firm and 2 nd internationally for Africa & Middle East by deal count 1 ST South African law firm and 15 th internationally for Europe buyouts by deal value BBBEE STATUS: LEVEL TWO CONTRIBUTOR This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication. JOHANNESBURG 1 Protea Place, Sandton, Johannesburg, Private Bag X40, Benmore, 2010, South Africa. Dx 154 Randburg and Dx 42 Johannesburg. T +27 (0) F +27 (0) E jhb@cdhlegal.com CAPE TOWN 11 Buitengracht Street, Cape Town, PO Box 695, Cape Town, 8000, South Africa. Dx 5 Cape Town. T +27 (0) F +27 (0) E ctn@cdhlegal.com /FEB 20 KNOWLEDGE MANAGEMENT NEWSLETTER 23 February 2016