Consumer Protection Act: Requirements for consumer contracts
The Consumer Protection Act 68 of 2008 enters into full force on 1 April 2011 and contains a number of requirements for consumer agreements. The purpose of this article is to provide a concise overvi ...Read More

New Contractual Clauses to Transfer Personal Information from Europe to South Africa
The Directive sets the standards for the processing information relating to individuals and restricts the circumstances under which personal information can be transferred to countries outside of the ...Read More

Protection of Personal Information Bill set for a quick passage through Parliament
South Africa’s new privacy and data protection law, the Protection of Personal Information Bill, has recently been introduced to Parliament. The Bill aims to bring South Africa’s information privacy l ...Read More

Choosing the way your company is regulated
Even though the final version of the Companies Act has now been published, it will only came into effect and replace the current 1973 Act after a period of 12 months has lapsed from date of publicatio ...Read More

Close Corporations: to be or not to be?
Once the new Companies Act comes into effect in 2010 it will make amendments to the Close Corporation Act 69 of 1984 and will then co-exist with the remaining provisions of the Close Corporation Act. ...Read More

New Companies Act signed into law
On 16 April 2009 the department of trade and industry announced that President Kgalema Motlanthe has signed the Companies Bill, which will now be known as the Companies Act 2008. ...Read More

Liability due to pure economic loss
Fourway Haulage SA (Pty) Ltd (Fourway) appealed against the decision of the Pretoria High Court which held Fourway liable for pure economic damages suffered by the South African National Road Agency L ...Read More

Name changes to high courts in South Africa
With effect from 1 March 2009 the names of the High Courts in South Africa (previously Supreme Courts) have been changed. The name change will not only have an impact on the headings of pleadings and ...Read More

Corporate reform to continue with King III
The “comply and explain” approach of King II is watered-down by King III which now only requires entities to apply and explain. ...Read More

Director’s Duties in terms of the companies bill, 2008
Currently director’s duties are regulated by the common law, Companies Act of 1973 and the Corporate Laws Amendment Act of 2006. Once the Companies Bill of 2008 becomes law, the statutory duties as is ...Read More

Director’s Duties in terms of the companies bill, 2008
Currently director’s duties are regulated by the common law, Companies Act of 1973 and the Corporate Laws Amendment Act of 2006. Once the Companies Bill of 2008 becomes law, the statutory duties as is ...Read More

Self-imposed formalities in contracts
An agreement does not need to be in a specific form in order to be a valid contract. In certain instances however the law does require that a contract conform to certain formalities, for example an ag ...Read More

When is a company not able to pay its debts?
The Companies Act 61 of 1973 provides for the instances when companies may be liquidated. Section 344(f) amongst others provides that a company may be liquidated when it is unable to pay its debts. In ...Read More

Three key bills expected to become law in 2009
As previously reported by Floor Inc, the Companies Bill will replace the current Companies Act, which have been effective since 1973. ...Read More

Retention of documents in terms of the Companies Bill
In terms of the Companies Act 61 of 1973 (“the Act”) no less than 45 different documents need to be retained for periods ranging between 3 to 15 years. This position will change when the Companies Bi ...Read More

Overview of the Companies Bill, 2008
The Bill provides for two main categories of companies, namely “for profit companies” and “not for profit companies”. For profit companies will be private companies, personal liability companies, publ ...Read More

Consumer protection legislation: almost here
On 16 September 2008 the Committee on Trade and Industry deliberated on the new draft of the Consumer Protection Bill which contains amendments that was proposed by the Department of Trade and Industr ...Read More

Overview of the Companies Bill, 2008
The Bill provides for two main categories of companies, namely “for profit companies” and “not for profit companies”. For profit companies will be private companies, personal liability companies, publ ...Read More

When is a company not able to pay its debts?
The court held that if a company was able to obtain finance from a third person in order to satisfy its creditors, it cannot be deemed unable to pay its debts. ...Read More

Labour court confirms acceptance of an employment offer by sms
The Labour Court in Durban recently ruled on the legal status of accepting an offer for employment by e-mail and SMS. This judgment is one of very few instances so far where our courts have interprete ...Read More

Competition Amendment Bill widens scope for anti-competitive behaviour
South Africa’s competition authorities have been very busy since its introduction in the late 90s. This is especially true in the realm of investigating mergers and acquisitions for possible violation ...Read More

Commercial loan agreements exempt from the National Credit Act
The implementation of the National Credit Act has drawn a lot of fire from various quarters and the Act is often blamed for the weak market conditions in retail, motor vehicle sales and the residentia ...Read More

National Credit Act: process to follow when a debtor is in default of a credit agreement
The National Credit Act (“NCA”) brings about a new process that needs to be followed when a debtor is in default and in breach of an agreement. In terms of the common law and law of contract, a cr ...Read More

Financial Reporting for companies
On 14 December 2007 the Corporate Laws Amendment Act finally became law and brought with it a new dispensation for allowing a company to provide financial assistance for the purchase of its shares and ...Read More

Piercing of the corporate veil of close corporations
Separate legal personality is one of the characteristics of close corporations (“CC’s”) and companies and since 1897 companies have been seen as being equal in law to a natural person. Once incorporat ...Read More

EPA Negotiations Trying on Regional Relations
At the end of December 2007 the WTO waiver which exempted the EU’s non-reciprocal trade arrangements with the ACP countries expired. In advance of this expiry there was a veritable flurry of negotiati ...Read More

Corporate Laws Amendment Act finally becomes law
Previously Floor Incorporated Attorneys reported that important changes will be effected to South Africa’s corporate landscape before the implementation of the much talked about Companies Bill (which ...Read More

Contracts are rectifiable
A written and signed document is, save for the purchase of land and where legislation requires a written contract, not a requirement for the validity of an agreement. However, due to the evidentiary p ...Read More

Credit life insurance is not security for loans under the National Credit Act
The status of credit life insurance as a form of security in terms of the National Credit Act has been one of many contentious issues that have made implementing the National Credit Act such a challen ...Read More

Draft Tariff Amendments for 2008
The South African Revenue Service (SARS) has proposed tariff amendments to a host of goods. A draft containing the proposed tariff amendments has been placed on their website and interested persons ...Read More

Proposed code for director remuneration
South African Institute of Directors (IoD) recently announced that it will launch a code of good practice for director remuneration committees (“the code”) in order to address the issue of executive r ...Read More

Firm Engages on Trade Teaching Programmes
The emergence of international trade law as a teaching subject within the curricula of local and regional law schools is proving to be a definite contributor to the emergence of a new generation of la ...Read More

Inconsistencies between pending corporate legislation
During the course of 2007 Floor Inc reported on the expected legislation which was to facilitate the long awaited corporate law reform in South Africa. Two pieces of legislation are set out with t ...Read More

SA President Sites Multilateral Flaws
South African President, Thabo Mbeki, contends that while the concepts of freedom, justice and equality are core to the United Nations, global governance has fallen short of the institutional transfor ...Read More

Minority shareholders afforded more protection
As we reported in numerous previous articles, the Companies Bill (the “Bill”) contains better protection for minority shareholders. Such increased protection is especially important for minority share ...Read More

Another change to the South African corporate landscape…
It was recently announced that the second King Code (King II), which was published in 2002, will be updated during the course of 2008 (already speculated to be called King III). Even though this annou ...Read More

The rules of competition to get tougher
Currently the Competition Act is being reviewed in order to tighten the rules regulating competition. The amendments that may be proposed would not deal with the entire Act and all aspects surrounding ...Read More

South African preliminary safeguard measure overturned by the courts
The International Trade Administration Commission of South Africa (“ITAC”) imposed a safeguard duty on the 11th May 2007 on lysine powder imported from the United States into the Southern African Cust ...Read More

Restraint of trade clause still a powerful mechanism
A recent court case in the Supreme Court of Appeal confirmed the power of the restraint of trade clause in an employment agreement. In order to decide whether a restraint of trade clause is enforc ...Read More

BEE made easy
The Department of Trade and Industry recently released an interpretive guide to understanding the Broad-based Black Economic Empowerment Act’s Codes of Good Conduct. The dti released this guide on 28 ...Read More

G8 Summit Weak on Trade
Realistically the business of breaking the WTO’s negotiating inertia is likely to be conducted at the politically orientated level, where compromises can be sanctioned from the highest levels, than at ...Read More

Tax relief for individuals and small business alike
On 7 June 2007 the Taxation Laws Amendment Bill (18 of 2007) and the Taxation Laws Second Amendment Bill (19 of 2007), was tabled by the minister of finance, Trevor Manuel. The Bill contains measures ...Read More

Limited liability of directors still intact
When starting a new business venture in South Africa, an entrepreneur has a vast number of options as to the form of the business organisation, including close corporations, partnerships and sole prop ...Read More

Quick fix for corporate compliance?
Corporate Governance in South Africa, as in most parts of the world, relies on the principle of self-regulation in order to ensure compliance with corporate governance principles and to combat misuse ...Read More

Important changes to company law
As previously reported by Floor Inc there is currently draft legislation out, namely the Companies Bill, which will transform the corporate landscape as we know it. On 11 April 2007 the President sign ...Read More

BEE Fronting: Will your business move forward?
Ever since Trevor Manual criticised the implementation of Black Economic Empowerment in March this year, BEE has been receiving its fair share of attention, not only from the media, but from various b ...Read More

Deadline for National Credit Act looms
On 1 June 2007, the most important sections of the National Credit Act will come into force, for both consumers and credit providers. Thus far the only sections of the National Credit Act which were a ...Read More

Small enterprises benefit from revised BEE Codes
In our February newsletter, Floor Inc reported that the BEE Codes have yet again been revised by the legislature and although the revised Codes are criticized for one again changing the face of BEE co ...Read More

Floor Inc acting again for Chinese in anti-dumping investigations
After Floor Inc Attorneys successfully defended an anti-dumping investigation on behalf of a major Chinese tyre exporter and an industry association body, the International Trade Administration Commis ...Read More

Effectiveness of non-executive directors in the limelight (again…)
In the aftermath of massive corporate failures in the likes of ENRON, Maxwell Enterprises and Leisurenet in the USA, UK and South Africa, corporate governance principles has been updated by means of r ...Read More

Companies Bill Update
On Friday 16 March 2007 the Trade and Industry Portfolio Committee (the “Portfolio Committee”) of Parliament sat for the first time to discuss the new Companies Bill (the “Bill”) which has recently be ...Read More

Regulatory bodies proposed as new corporate watchdogs
Various regulatory and overseeing bodies are proposed by the Companies Bill in order to oversee the compliance with the various corporate acts by affected companies, specifically to enforce compliance ...Read More

Companies Bill proposes rescue system for troubled companies
Companies that find themselves in financial difficulties will undergo a complete different process of corporate rescue then what is currently practiced by judicial managers. Despite having been the re ...Read More

New Corporate dispensation for SA
Corporate failures and the changes in the economic and political landscape in South Africa as well as changes in corporate structures and financial reporting instruments, led to the announcement of co ...Read More

South Africa’s BEE policy in trouble
The South African government is being challenged on its BEE policy and the result could open the floodgates for further challenges. Despite sensitivity to the issue, this development can perhaps be at ...Read More

GATS in action – opening a bank branch in Zambia
In this issue we take a look at the World Trade Organisation’s (“WTO”) General Agreement on Trade in Services (“GATS”) and its application in the financial services sector. More specifically we look a ...Read More

BEE: Where are we now?
For the last couple of years Broad-based Black Economic Empowerment (“BEE”) has featured prominently in the headlines. One cannot open a business publication without reading something on BEE. Just bef ...Read More

Disclosure of Grey or Parallel imports required
As from 9 February 2007 businesses selling grey or parallel imports will have to disclose this fact to consumers. This is in accordance with a regulation which the Minister of Trade and Industry signe ...Read More

Shareholders Agreements a necessity
It is better not to be a shareholder in a business if you do not have a shareholders’ agreement unless, of course, you have deep pockets and do not mind litigating (which some people do seem to have a ...Read More

Online gambling to be legalised in South Africa
The legality of online gambling has been a controversial issue ever since the early days of the Internet. The thorny question was whether it was possible to regulate gambling that takes place over the ...Read More

Good governance guidelines for pension funds
The Financial Services Board has recently issued regulations for the good governance of pension funds. It is up to the stakeholders of each fund, including the members and the employer organisations, ...Read More

Insurance Companies: The future corporate watchdogs over Executive-Management?
In the aftermath of Leisurenet, Parmalat, ENRON and WorldCom, the same question arises; who were supposed to be the watchdogs and what were they doing while executive directors abused their powers? Wh ...Read More

Online gambling is illegal in South Africa
The Pretoria High Court recently confirmed that online gambling is illegal in South Africa. At issue was whether punters based in Gauteng are allowed to gamble on the website of a casino operator ...Read More

New Regional Laws on Finance and Investment
New Regional Laws of Finance and Investment During the last two months the majority of the SADC Member States have signed the SADC Protocol on Finance and Investment. The Protocol deals with amongs ...Read More

Anti-dumping Regulations to be revised
The International Trade Administration Commission (ITAC) published a draft proposal for the revision of South Africa’s anti-dumping regulations in November 2006. The document, officially titled ‘The D ...Read More

South African banking industry may soon have tough competition
In late 2004 the South African legislature introduced a possible new type of bank which will come into existence possibly in 2007. As Floor Inc Attorneys had already then reported, this is a tremendou ...Read More

Recent developments on the National Credit Act
Although the National Credit Act will only be fully in force from 1 June 2007, various parts of the Act has already been implemented. The parts already in force include the duty of credit providers to ...Read More

Closed Corporations need to submit annual returns or cease operations
On 10 November 2006 President Thabo Mbeki ordered the commencement of certain sections of the Corporate Laws Amendment Act No. 39 of 2002. Although this Corporate Laws Amendment Act has entered into f ...Read More

Are insurers affected by the draft Consumer Protection Bill?
Insurers and those operating in the financial services arena have seen a dramatic increase in regulation over the past decade. And just then you thought your industry couldn’t possibly be regulated fu ...Read More

The Consumer Protection Bill will change the rules of promotional competitions
We have all received mail which either states on the envelope or on the letter something like “Congratulations! You have won….” If the Consumer Protection Bill comes into force, as it now stands, cons ...Read More

Rian Geldenhuys joins BUSA Trade Committee
Rian Geldenhuys has been nominated to represent the interests of the Afrikaanse Handelsinstituut (AHI) at the Business Unity of South Africa’s (BUSA) Trade Committee. He will serve in conjunction with ...Read More

Over-booking and over-selling illegal
In terms of the new Consumer Protection Bill suppliers will no longer be allowed to over-sell or over-book any goods or services. It has perhaps always been doubtful whether over-booking or over-selli ...Read More

Call dropping: Cellular customer must foot the bill
All of us have experienced the frustration of losing the connection on a cellular phone midway during a conversation. The High Court recently ruled in a case brought by Hilti against Vodacom on who sh ...Read More

Quotations for work done a necessity
Service providers who supply repair or maintenance services or who supply or install any replacement parts must give quotations. Failure to provide quotations will result in the service provider being ...Read More

Bundled offerings to be prohibited
In terms of the draft Consumer Protection Bill businesses shall no longer be allowed to offer bundled services or packages. Specifically the Bill states that a business many no longer supply to a cons ...Read More

Businesses take note – Consumer Differentiation
One of the objectives of the Consumer Protection Bill, released in March this year, is that goods and service suppliers should not unfairly target particular market segments. This seems like an admira ...Read More

Retaining information under the Interception of Communications Act (
The commencement of legislation allowing police to monitor communications such as telephone conversations and e-mail has recently received a lot of media attention. ...Read More

Financial Advisors hit with more than just FAIS
Recently we heard that certain financial advisors were investigated for selling Leaderguard foreign exchange investment products. Three interesting aspects emerged from the media reports on the determ ...Read More

FSB releases new levies on Financial Institutions
On 29 May 2006 the Financial Services Board announced new levies to be imposed on financial institutions. The new levies affect all the erstwhile levies as determined in Board Notice 42 of 22 April 20 ...Read More

Participants in National Payment System given time to clean up their act
On 26 May 2006, also the date of becoming effective, the South African Reserve Bank issued a new directive with respect to the conduct within the National Payment System (“NPS”). Specifically the dire ...Read More

National Credit Act impacts on insurers
On 1 June 2006 South Africa saw the introduction of a new piece of consumer protection legislation, namely the National Credit Act. As one of the by-products of consumer protection this new Act also b ...Read More

Floor Inc Contributes to Swiss International Trade Course
In July and August 2006 Floor Inc will contribute to a high level programme addressing trade topics with a particular emphasis on trade practitioners in the filed. The event will take place in Switzer ...Read More

President signs new Credit Act into law
The new National Credit Act has been signed into law by President Thabo Mbeki on 9 May 2006. The Act will be applicable to all institutions which provide credit either to consumers or to their supplie ...Read More

Vast changes to South Africa’s corporate laws
On 8 May 2006 the draft Corporate Laws Amendment Bill was tabled before Parliament and it promises to change the corporate landscape as we know it. Probably the most important change that is proposed, ...Read More

Prohibited practices: a focus on price fixing on a horizontal level
The Competition Act prohibits three types of horizontal conduct per se, which means that no justification is allowed for their existence. They are price fixing, market allocation and collusive tenderi ...Read More

Cost of continuing to provide credit increased under National Credit Act
Since the first news of the then proposed National Credit Act started trickling in we have had numerous calls from credit providers asking us what this new piece of legislation means for their busines ...Read More

Consumer Protection Bill
The department of Trade and Industry (“DTI”) has released the Consumer Protection Bill hot on the heels of the recently introduced National Credit Act. The timing of introducing these two consumer law ...Read More

The Appeal Court spells out instances where the in duplum rule does not apply
The in duplum rule prohibits a lender from charging interest in excess of the principal debt. This well recognised rule means the total amount of interest may not exceed the capital. The working o ...Read More

National Credit Act receives juice which may leave a bitter taste
The Department of Trade and Industry released its proposed regulations under the National Credit Act on 20 February 2006. Currently these draft regulations have no legal force and the Department invit ...Read More

New legislation on privacy proposed by the SALC will regulate the way all businesses handle personal information
Individuals are increasingly uneasy about the ways in which their personal information is used. The misuse of personal information allows unwanted third parties to snoop into one’s personal affairs an ...Read More

Authorities launch company investigations
THE Office of Company and Intellectual Property Enforcement (OCIPE) recently launched their first large-scale investigation into the dealings of Garek, Matric and Rsi. There has been investigations la ...Read More

Confusion surrounding mortgage bonds cleared up
A mortgage bond is an indispensable tool for the spreading of home ownership’ says the Constitutional Court in its recent ruling in Standard Bank v Saunderson. This is especially the case when one con ...Read More

DTI has released more BEE Codes of Good Practice
On the 20th of December 2005, the Department of Trade and Industry (“DTI”) release further Codes of Good Practice “the Codes”. Whereas the Codes of 1 November 2005 dealt with the broad issues of Black ...Read More

National Credit Bill does not affect all credit providers
Whilst it is true that the National Credit Bill (the “Bill”), once it has become an Act of Parliament, applies to every credit agreement, there are certain exemptions to its application according to a ...Read More

BEE uncertainty cleared
The Department of Trade and Industry has on 1 November 2005 released the final BEE Codes of Good Practice. ...Read More

Administration and legal requirements for company decisions: special resolutions and unanimous assent
It seems that more and more companies are confused as to how they should go about making decisions, in other words, what formal requirements companies need to meet in order to have a valid decision. N ...Read More

Minister grants at the eleventh hour an exemption to compile PAIA Information Manual
he Minister of Justice issued at the very last minute an exemption to private bodies from compiling information manuals as required by section 51 of the Promotion of Access to Information Act 2 of 200 ...Read More

National Credit Bill’s Parliamentary Hearings Update
n 5 August 2005 the Department of Trade and Industry’s Portfolio Committee started having public hearings on the National Credit Bill in an attempt to bring the Bill closer to finalisation and let var ...Read More

Floor Inc, Capitec and UWC join hands in developing banking law
Recently Floor Inc, Capitec and UWC entered into an arrangement in terms whereof the respective parties would give banking law students the opportunity to further develop their skills through practica ...Read More

Judgement granting shareholders the right to access a company’s books is overturned
The Supreme Court of Appeal in Clutchco v Davis 2005 (3) South Africa 486 (SCA) reversed a decision by the Cape High Court that a shareholder has a right to access a company’s accounting books. The ...Read More

The New Companies Act Amendment Bill
The Department of Trade and Industry issued the new Companies Act Amendment Bill in the Government Gazette of 13 July 2005. The Gazette only became available to the public on the 19th of July. In t ...Read More

Bank held liable for misleading financial advice given by independent broker
The Review Panel of the ombudsman for banking services recently ruled in Nel v Standard Bank that the bank must compensate their client for losses suffered due to misleading financial advice given by ...Read More

Supreme Court of Appeal finds in favour of bank after monies were mistakenly transferred to incorrect bank account
The Supreme Court of Appeal had found in a recent case that payment cannot be effected where money was mistakenly transferred, due to a clerical error, to an incorrect bank account, as payment require ...Read More

New BEE draft codes
The Department of Trade and Industry released the new revised codes of good practice on empowerment. These codes are supposed to act as guidelines for empowerment transactions. At this stage the actua ...Read More

Competition Commission investigates Banking Industry
According to the Competition Commission’s spokeperson, Zodwa Ntuli, the Commission is investigating fees and charges in the banking sector. Supposedly the purpose of the inquiry is to determine whethe ...Read More

Accounting for BEE transactions - SAICA's draft interpretation
The South African Institute for Chartered Accountants issued a draft interpretation of statements of Generally Accepted Accounting Practice (GAAP) for Broad-Based Black Economic Empowerment transactio ...Read More

Implementation of Mergers subject to pending Competition Law Approval
In terms of section 13A(3) of the Competition Act 89 of 1998 (the “Act”), parties to an intermediate or large merger may not implement that merger until it has been approved, with or without condition ...Read More

The opportunity has arrived to start a bank
With the arrival of the Dedicated Banks Bill (“the Bill”) in November of 2004, government has created the opportunity for businesses with a large customer base to enter into the banking sector. Govern ...Read More