Recent additions and amendments to legislation bring it in line with international best practices

The law in South Africa is primarily derived from RomanDutch law, but it has been extensively influenced by English common law. Since the Constitution of the Republic of South Africa, 1996 (the “constitution”) came into effect, all statutory and common laws became subject to the constitution, with the effect that courts must now develop our law in line with the constitution, if statutory or common law provisions do not adequately protect a right contained in the Bill of Rights, which forms part of the constitution.

The period from mid-2013 to late 2014 was a fairly busy and productive one for the legislature in South Africa. A number of the additions and amendments were aimed at bringing South Africa’s legislation in line with global best practices. While some of these changes pose a regulatory and compliance burden on South African, and indeed foreign, businesses, they must be welcomed as positive steps in the development of our legal system. Two of these changes are discussed below.

Protecting Personal Information

On November 19, 2013, President Jacob Zuma assented to the Protection of Personal Information Act of 2013. Certain sections of the act commenced on April 11, 2014, but the bulk of the act is yet to commence. Once these remaining sections come into effect there is a further one-year grace period provided for in the act, allowing those affected by its provisions to achieve compliance. The stated aims of the act are, among other things, to “promote the protection of personal information processed by public and private bodies” and to “introduce certain minimum requirements for the processing of personal information”.

The definition of personal information includes not only the expected categories – race, gender, age, religion, criminal and employment history, and identifying numbers and addresses – but also opinions, views and preferences of the person concerned. This means that sooner rather than later, the minimum requirements for processing personal information, as defined in the act, will govern the processing of all personal information in South Africa. It is anticipated that nearly all businesses will have to update their processes and information security to comply with these requirements. Steps to achieve compliance will be time consuming, so it is wise to begin understanding personal information flows in and out of your business.

Regulating OTCD

The financial crisis of 2007-09 highlighted weaknesses in market regulation and thrust over-the-counter derivatives (OTCD) into the limelight. “Over-the-counter” simply means traded offexchange and, therefore, traded with more flexibility and less monitoring. While the Financial Advisory and Intermediary Act 37 of 2002 regulates the activities of financial advisors and intermediaries involving themselves in the OTCD market, this does not extend to persons acting as principal when trading in OTCDs.

A fair amount of self-regulation already exists given the use of the standard agreements of the International Swaps and Derivatives Association as the basis for these transactions. Furthermore, South Africa’s subscription to the Basel Core Principles for Effective Banking Supervision means there exists some capital requirements on market, operational and credit risk. However, in line with its commitments as a member of the G20, on July 4, 2014, South Africa published its proposed OTCD Regulations in terms of the Financial Markets Act 19 of 2012. In essence the regulations aim to regulate the OTCD market. The central counterparties (who perform clearing functions as buyer to every seller, and seller to every buyer), as well as OTCD providers are to be regulated so as to mitigate the systemic risk posed by OTCDs.

The goals of the draft regulations are sought to be achieved by, among other measures: requiring OTCD providers to be registered; to adhere to a code of conduct (to be published in late 2014); to report transactions to a licensed trade repository (Strate Limited has indicated that it will apply for a licence as a trade repository); and to clear OTCD transactions through a central counterparty, which central counterparties are made subject to stringent requirements to limit their credit, operational and market risk, and concerning margin requirements and collateral requirements, among others. The proposed regulations address the cross-border nature of the securities market, providing for participation by and delineating the extent of participation of, external players. These legislative interventions are but two of many changes in 2013-14 that represent steps toward entrenching South Africa’s place among countries applying international best practices, while hopefully ensuring peace of mind for citizens and investors alike.

Corporate Law

The South African corporate and company law landscape has for many decades been strongly influenced by, and modelled on, the English law model. With the advent of the new Companies Act 71 of 2008 (the “companies act”) which came into force in May 2011, influences and concepts from jurisdictions such as the US and Canada have also very much been brought into the fold and, as a result, the South African model is at present essentially a combination of Commonwealth and US law. South Africa has a very developed and advanced system of company and corporations law. The companies act is the primary piece of legislation in South Africa which governs and regulates companies. As South Africa has a common law legal system, case law and precedent play an integral role in interpreting and applying the statute. The companies act governs the incorporation, registration, governance, operation, rescue and closure of companies, as well as shareholder remedies and protections.

Business Vehicles

When considering the commencement of business or an investment in South Africa, one needs to consider which vehicle will be best suited to the circumstances. The company is the primary, but not only, vehicle that may be used for this purpose. The factors to be taken into account include the number of participants in the business, how the entity is to be operated from a management and conipants, the requirement of perpetual succession and, importantly, income tax considerations. There are a number of different investment methods and vehicles available in South Africa. These are (1) company – either a local profit or non-profit company or a branch of an external company; (2) partnership – either limited or unlimited; (3) business trust; (4) close corporation (although new close corporations cannot be formed as of May 1, 2011, with the advent of the companies act); and (5) sole proprietorship.

Company Law

For purposes of this discussion, we will focus on companies, as they are the primary investment vehicle. The companies act requires a Notice of Incorporation and Memorandum of Incorporation (MoI) to be filed with the Companies and Intellectual Property Commission (CIPC) in order for a company to be registered and incorporated. From the date of its incorporation, a company exists as a juristic person. The shareholders enjoy limited liability, since the liability of the shareholders for the company’s debts is limited to the amount that they have contributed to the company. The firm continues in existence irrespective of the change in shareholding over time, and both natural and juristic persons can hold shares.

In addition to shareholders, who do not generally participate in the active management of the company, each company has a board of directors. They are typically elected and appointed by the shareholders, but the company may determine this in its MoI. Forprofit companies are formed with authorised shares. Various classes of shares can be created, for example, ordinary, preference, redeemable or convertible shares, or a combination thereof. Debentures and other securities can also be issued by a for-profit company.

The companies act has partially codified directors’ duties, which include their common law fiduciary duties and the obligation to perform their duties with reasonable care, skill and diligence. However, the common law is not excluded by the statutory provisions and will continue to apply except in so far as it is specifically amended by the companies act or is in conflict with one of its provisions. Heightened director responsibility, accountability and liability are key features of the companies act, and a number of recent judgements of the High Court have applied the new director delinquency and liability provisions in order to redress misconduct on the part of company directors.

There is no requirement that a shareholder or director be South African. There are however ancillary consequences if the shareholders are foreign (for example, limitation of local borrowings, thin capitalisation rules and anti-transfer pricing provisions may apply).

Exchange control regulations may also apply. A public company, state-owned company or any other company required to do so in terms of the regulations, must appoint an auditor and have their annual financial statements audited. All other companies may be audited voluntarily, otherwise they must be independently reviewed, subject to the exception that a private company is exempt from the obligation to have its annual financial statements audited or independently reviewed, so long as all persons who are holders of or who have a beneficial interest in any securities issued by the company are also directors.

Public and state-owned companies are also required to have audit committees, the members of which are elected by shareholders, and listed and state-owned companies must have social and ethics committees that monitor and report on the company’s corporate social responsibility activities. This requirement also applies to certain large unlisted public or private companies.

The companies act introduced an entirely new business rescue regime for financially distressed companies, modelled, to some extent, on the Chapter 11 bankruptcy provisions in the US, and business rescue and administration provisions found in other jurisdictions. The business rescue provisions have been utilised extensively in practice as an alternative to liquidation, with the aim being to restore financially distressed companies to solvency with the concomitant benefits of continuing business and avoiding job losses. Business rescue may be commenced voluntarily by the company or through an application to court by any “affected person” as defined in the companies act, which includes creditors, shareholders, trade unions as well as employees.

Foreign Investment Law

External companies and subsidiaries: A foreign company may establish a presence and conduct business in South Africa as either an “external company”, as defined in the companies act, or by establishing a subsidiary in South Africa. An external company is a foreign company conducting business or non-profit activities in South Africa. It has to register as an external company, commonly referred to as a “branch”. It must always have at least one registered office within the Republic of South Africa. External companies are regulated under section 23 of the companies act. External companies will also need to lodge annual returns at the CIPC. The companies act also provides for the domestication of foreign companies. Subject to section 13(5) of the companies act, a foreign company may make an application to the CIPC to transfer its registration to South Africa from the foreign jurisdiction in which it is registered, and thereafter exists as a company in terms of the companies act as if it had been originally so incorporated and registered. A subsidiary, on the other hand, is a South African incorporated company which would typically be wholly owned by the foreign company.

Exchange Control

South Africa is subject to exchange control regulations which implies that foreign investments and the repatriation of funds are regulated and require the approval of the South African Reserve Bank (SARB). SARB has delegated much of its power and authority to so-called “authorised dealers” (essentially banks and other institutions licensed to undertake exchange control functions and grant approvals under exchange control). Exchange control authorities have wide discretion that is exercised in accordance with the Exchange Control Regulations, 1961 (including the various orders and rules issued under the said Regulations) and the Exchange Control Rulings in line with the policy guidelines laid down by the Ministry of Finance. All applications for exchange control approval must be made through an authorised dealer. In terms of smaller transactions, an authorised dealer is generally prepared to grant the requisite approval itself, however when more substantial transactions are involved it is quite usual that an authorised dealer would rather refer the matter to the SARB for its approval. An authorised dealer would then facilitate the application to the SARB.

In practice, the process of obtaining exchange control approval is quick, if all requisite documents are properly submitted. The exchange control system has been liberalised over the past few years in South Africa and it is the stated intention of the National Treasury that the gradual liberalisation and deregulation of exchange control will continue. Most (but not all) of the exchange control policies and regulations are focused on the exchange control transactions of South African residents (that is, outward transactions). It is important to keep in mind that the interpretation of the Exchange Control Regulations and Rulings, on which the exchange control system is based, is largely subject to the policies of the SARB and the National Treasury. Foreign investment: Generally speaking, a non-resident investor may freely invest in South Africa, provided that suitable documentary evidence is available in order to ensure that the transactions are concluded at arms-length, at fair market value and are financed in an approved (by exchange control authorities) manner. Non-resident investors seeking to invest in, and introduce funds into, South Africa may either purchase South African currency or borrow funds locally. The use of these mediums is regulated by exchange control law and approval will be dependent on the nature of the investment. Exchange control authorities will generally permit either loan capital or equity to be introduced into the country via the South African rand. A non-resident has a great degree of flexibility in the way in which it funds a South African investee company’s operations. Consideration should be given to possible adverse tax implications if the amount of interest-bearing debt of the resident, or the rate of interest payable, is too high. Although exchange control does not insist on a shareholder debt-to-equity ratio, the introduction of loan funding, its repayment and the interest rate charged nevertheless remain subject to approval by the authorities. The repatriation of funds is also regulated by exchange control.

Competition Law

South Africa has a modern and developed system of competition law which regulates essentially two broad aspects: merger control and prohibited practices. Merger control is concerned with the regulation of large mergers and acquisitions in South Africa. The Competition Act 89 of 1998 (the “competition act”) is the key piece of legislation in this regard.

The competition act establishes three categories of mergers, determined with reference to the turnover or assets (whichever is higher) of the acquiring firm and the target firm. A small merger occurs where the combined assets or turnover of the acquiring firm and the target firm are below R560m ($53m) or the target firm’s assets or turnover are below R80m ($7.6m). An intermediate merger occurs where the combined assets or turnover of the acquiring firm and the target firm equal or exceed R560m ($53m) and the target’s assets or turnover equal or exceed R80m ($7.6m). A large merger occurs where the combined assets or turnover of the acquiring firm and those of the target equal or exceed R6.6bn ($625m) and the target’s assets or turnover equal or exceed R190m ($17.9m).

For purposes of calculating the thresholds, the entire acquirer group is taken into account. In relation to the target firm, the firm over which control is transferred, together with all firms controlled by such transferred firm, is taken into account. The parties to an intermediate or large merger may not implement the merger without the approval of the competition authorities.

Developments In Foreign Investment

The majority of the bilateral investment treaties (BITs) that South Africa has concluded with those countries with which it has trade and investment relationships are nearing completion or are in the process of being terminated by the South African government (pursuant to the relevant BITs terms), as the intention is for South Africa to regulate the protection of foreign investments in the future by means of national legislation, in the form of the draft Promotion and Protection of Investment Bill, 2013 (the “investment bill”) released for public comment in November 2013. The intention of the investment bill is to incorporate international investment protection principles usually found in BITs into South Africa’s domestic legislation to ensure that all investors (whether foreign or national) are treated equally in all aspects of investment in South Africa. It is proposed that the investment bill will have retrospective application in respect of commercial investments made prior to the investment bill being proclaimed as law. The investment bill incorporates the following principles of investor protection:

• National treatment: South Africa must give effect to national treatment and treat foreign investors, their investments and returns not less favourably than it treats South African investors in their business operations that are in similar circumstances;

• Security of investment: South Africa must accord foreign investors and their investments and returns, equal levels of security as may be generally provided to other investors, subject to available resources and capacity;

• Expropriation: An investment in South Africa may not be expropriated except in accordance with the constitution and in terms of a law of general application for public purposes or public interest, under due process, against just and equitable compensation effected in a timely manner;

• Transfer of funds: A foreign investor may, in respect of any investment, transfer funds, subject to taxation and other applicable legislation; and

• Dispute resolution: A foreign investor who raises a dispute, in respect to their investment, against the government of South Africa may resolve the dispute by means of a mediation with the Department of Trade and Industry, an independent tribunal or a statutory body created for the resolution of a dispute relating to investment, a court action and/or application, or a domestic arbitration under the terms of the Arbitration Act No 42 of 1965. The investment bill has sparked a great deal of debate in legal and commercial circles concerning its provisions. However, it is still early days in the process of developing and ultimately enacting this piece of legislation, a process which will undoubtedly be under much scrutiny in the coming months.

Black Economic Empowerment

Transformation is a very important part of the South African legal and economic landscape. To this end, there are a number of legislative measures in South Africa aimed at promoting black economic empowerment. Section 10 of the Broad-Based Black Economic Empowerment Act 53 of 2003 (the “BEE act”) compels state organs and public entities to apply BEE Codes of Good Practice (“codes”), wherever reasonably possible in determining qualification criteria for the issuing of licences, concessions or other authorisations, in terms of any law and the development and implementation of a preferential procurement policy, qualification criteria for the sale of state-owned enterprises or criteria for entering into partnerships with the private sector.

While this provision is a mandatory obligation of the public sector (being specifically, a national or provincial department, municipality, parliament, a constitutional institution and other public entities), it does have indirect application to private sector businesses that have or are required to have a regulatory relationship with the public sector because they conduct one or other form of licensed business activity, or provide goods or services to the public sector, or provide goods or services to other businesses that have a regulatory relationship with the public sector. Such private businesses will find themselves subject to commercial requirements to become and remain BEE compliant and their compliance will be measured according to the principles and methodology of the codes.

The requirements to become and remain BEE compliant applies not only to businesses interacting with the public sector, but also to those businesses interacting with private sector suppliers and service providers to the public sector.

The codes have been amended recently and these amendments (the “new codes”) will commence on April 30, 2015. The new codes provide for five elements, as opposed to the seven that were provided for in the original codes, against which measured entities are tested for BEE compliance. These five elements are: (1) ownership; (2) management control; (3) skills development; (4) enterprise and supplier development; and (5) socio-economic development. These amendments will in essence make it more difficult for entities to achieve the levels referred to above, i.e. the standards and thresholds have been heightened. Until the new codes take effect, entities may elect to use either the codes in their current or their amended form, but once the amendments are in full force and effect, entities must use the new codes.

Labour Law

South Africa’s labour legislation is among the most progressive in the world, and continues to rapidly evolve. However, with progression comes change. The primary legislation governing labour law in South Africa – the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA), Employment Equity Act 55 of 1998 (EEA), and the new Employment Services Act 4 of 2014 (ESA) – are in the process of undergoing a significant overhaul. Some of these amendments are already in force (e.g., in respect of the BCEA and the EEA) while others remain pending (the LRA and ESA), although they are all near the end of the legislative process.

Non-Standard Employment

One of the aims of the amendments to labour legislation is to respond to the growth of informalisation of work in the South African labour market and, in particular, labour broking and fixed-term contracts of employment. To the extent that businesses have previously relied on such nonstandard forms of employment to generate flexibility, and avoid the consequences of labour legislation, the new limitations to be imposed on such non-standard forms of employment may have a profound effect on the manner in which organisations are structured. It is advisable for businesses using these mechanisms to start planning alternatives (for instance entering into collective agreements allowing for greater use of fixed-term contracts of employment) as soon as possible. Many of the limitations imposed apply only to employees earning below the employment threshold as determined in terms of the BCEA (currently R205,433.30 per annum), and higher earners may still be employed in non-standard structures.

Trade Unions

The amendments signify a move away from the majoritarian approach to trade union recognition, which is currently the preferred status, by allowing for enforced recognition of trade unions with less employee support than required under existing legislation, even in the face of opposition from the majority union. The focus on additional protections for non-standard employment is also evident in this context, as trade union membership and protection for industrial action, with respect for non-standard employees, have been extended.

Protection For Lower Earning Employees

undefined As stated above, many of the limitations imposed on the use of non-standard employment structures do not apply to employees earning above the BCEA threshold. An initial proposal included in earlier drafts of the Labour Relations Amendment Bill, to the effect that high earning employees would forego some unfair dismissal protections under the LRA have, however, been abandoned in the parliamentary process.

Equal Pay

Section 6 of the EEA contains a general prohibition of unfair discrimination, applicable to all employers in South Africa. Discrimination on any of the 19 grounds listed in the EEA (three more than in the LRA and the constitution) are prohibited. These prohibited grounds listed in the EEA include race, gender and disability. The amendments to the EEA highlight the importance of the principle of “equal pay for work of equal value”.

On August 1, 2014 the Ministry of Labour published regulations in terms of the EEA (the “new regulations”). These new regulations, as well as the amendments to the EEA, took effect on that date.

The new regulations prescribe the manner in which employers must apply the “equal pay for work of equal value” principle. The equal pay regulations explain the meaning of “work of equal value”, and provide guidelines to employers on how to go about determining whether they are complying with their equal pay obligations under the EEA read with the new regulations.

In considering whether work is of equal value, employers must objectively assess the “value” of the work, based on an open list of criteria, which includes the responsibility demanded of the job, the skills and related criteria required to perform the job, the effort (physical, mental and emotional) required to do the job, conditions under which the job is performed, and any other relevant factor. Once the value of a position is determined, the employer must establish whether there is a difference in terms and conditions of employment, including remuneration, between positions that qualify as equal value positions. If the answer to this latter question is yes, it must then be established whether the reasons for the differentiation is based, directly or indirectly, on one of the prohibited grounds. If so, discrimination has been established.

If discrimination has been established, the employer can still escape liability on the basis that one of the defences against a finding of unfair discrimination is available to it. The new regulations elaborate on the general defences available in a discrimination context, by providing a list of factors that may justify a differentiation in terms and conditions of service. Once again this is not a closed list, and it includes factors such as the individuals’ respective seniority or length of service, qualifications, performance, scarce skills, market forces etc.

Affirmative Action

Since inception of the EEA, certain South African employers were under an obligation to apply the affirmative action requirements contained in the EEA, if they qualified as designated employers based on the number of employees in employment, or their annual turnover.

Affirmative action obligations are enforced by the Department of Labour, while employer breaches of the general discrimination provisions are enforceable directly by aggrieved employees. The affirmative action obligations resting on designated employers revolves around a process of establishing whether its workforce contains a fair distribution of so-called designated employees (black, coloured, Indian people, women and people living with disabilities). A firm can establish this by comparing its workforce against a standard chosen in consultation with an employment equity committee, which must be appointed in accordance with the requirements of the EEA. If the comparison results in a finding that a particular designated group or groups is/are under-represented, the employer must (again in consultation with the employment equity committee) craft an employment equity plan, which must contain goals and targets for the employer to achieve over a determined period of time, in order to progressively eliminate such under-representation.

It should be noted that these goals are not quotas to be achieved at all costs. Both the goals created, and subsequent compliance, will depend on the particular circumstances of the employer.

The amendments to the EEA and the new regulations will impact on the manner in which employment equity plans are drafted and reported on. The standards used by employers to determine representivity must be re-evaluated, and employment equity plans will in future have to be prepared with reference to a new template document, and must include goals relating to each element contained in the template, in each instance measurable against very clear deadlines, and with provision being made for monitoring and evaluation methods to establish progress. It would for instance not be sufficient to assert that progress will be monitored on an ongoing basis.

Property

South African law in regard to title in property, the transfer of property, as well as the use of property as security in financing and other transactions, is well-developed, drawing both on our Roman-Dutch common law heritage as well as on legislation. The result is a complex area of the law operating within the framework of section 25 (the property clause in the Bill of Rights) of the constitution, and which is supported by a sophisticated and efficient system of registration of rights in land, primarily through the machinery of the Deeds Registries Act 47 of 1937.

The sale and purchase of immovable property is regulated, to a large extent, by common law. The Alienation of Land Act 68 of 1981; the Sectional Titles Act 95 of 1986, which covers the transfer of units and the cession of real rights in sectional title schemes; and the Subdivision of Agricultural Land Act 70 of 1970, affecting the granting of real rights in agricultural land, all also play important roles. Delivery of immovable property is effected through registration of the title deed in the relevant Deeds Registry. South Africa applies the abstract system of passing of ownership, meaning that the requisite intention combined with delivery would pass ownership. If there is a defect in the real agreement (a matter of intention rather than form) then ownership will not pass.

Section 13(1) of the Deeds Registries Act 47 of 1937 provides that “… deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar’s signature thereto, and deeds, documents or powers of attorney lodged for registration shall be deemed to be registered when the deeds registry endorsement in respect thereof is signed …”

As early as 1957, the Appellate Division (now the Supreme Court of Appeal) recognised that registration of title protected the owner’s rights stating, “As far as the effect of registration is concerned, there is no doubt that the ownership of a real right is adequately protected by its registration in the Deed’s Office. Indeed the system of land registration was evolved for the purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered.

Generally speaking, no person can successfully attack the right of ownership duly and properly registered in the Deeds Office …” (Hoexter JA in Frye’s Ltd v Ries 1957 [3] All SA 573 [AD]).

Mention was made of “real rights” above, and in South African property law the distinctions between so called “real rights” and “personal rights”, as well as “limited real rights”, are conceptually, and practically, important. Personal rights are created in terms of contract and apply between the parties to the contract (the obligation to respect and the power to exercise the right rests with the contracting parties only). Real rights are rights – mostly created through registration thereof against the title deed of a property – which must be respected by, and are enforceable against, all persons even if they were unaware of such rights. Limited real rights are rights that run with the land (in the case of property law) and include among others: servitudes; registered long-term leases; and rights in terms of the Sectional Titles Act 95 of 1986, such as rights to exclusive use areas. These rights are all additionally enforceable against third parties.

In the context of security by means of movable and immovable property, parties requiring security, or securing an obligation often require and provide land or movables as security. This type of security includes among others: mortgage bonds over immovable property and special notarial bonds over clearly defined and identified movable property in terms of the Security by Means of Movable Property Act 57 of 1993. There are no restrictions on foreign lenders obtaining such security, but exchange control regulations will apply. Deeds Office fees are payable and are calculated as a specific percentage of the value of the bond. Creditors (foreign or not) with valid claims in an insolvent estate of a debtor, and who possess real security, will have preference over concurrent creditors for the proceeds of the sale of the asset.

There are no restrictions on foreign persons ( including foreign juristic persons, save that foreign companies must register as an external company, in terms of the companies act), owning South African real estate. A draft bill was tabled in parliament in May 2014 entitled the Acquisitions and Disposal of Land by Foreign Persons Bill. It is too early to comment on this draft bill, but if it were to be promulgated it would regulate, but not prohibit, foreign land ownership. The draft bill has a particular focus on foreign ownership of agricultural land. A foreign investor in South African land must be aware of the fact that planning laws ( including zoning schemes and restrictive conditions) may affect the usefulness of a particular property for a specific purpose. It is advisable for foreign investors to obtain a copy of the title deed for the property via an attorney to check on any restrictive conditions and obtain a zoning certificate through a town-planner to assess any restrictions on use.

In line with an international trend toward environmental awareness, a recent Supreme Court of Appeal judgement held that the relevant governmental department may issue a directive calling on previous and current landowners to take anti-pollution measures in respect of ground and surface water contamination caused by mining activities (Harmony Gold Mining Company Ltd v Regional Director: Free State Department of Water Affairs ((9719/12) [2013] ZASCA 206 [December 4, 2014]). Foreign investors operating in this space should properly assess the potential costs related to this environmental compliance requirement.