Cryptocurrency & Exchange Control – do I need SARB approval to transfer cryptocurrency offshore?
South Africa operates a complex exchange control regime, governed primarily by the Currency and Exchanges Act, 1933 and the Exchange Control Regulations, 1961. The principle object of the exchange control regime is to regulate inward and outward flows of ‘capital’ from South Africa, each of which are subject to the oversight of the South African […]
Delinquency and fiduciary duties; SCA reaffirms that an order of delinquency must follow where the conduct justifies a finding that the director acted in a manner that amounted to gross negligence, wilful misconduct and a breach of trust
Section 162 of the Companies Act 71 of 2008 (“Companies Act”) entrenches the right of a company, director, shareholder, company secretary, or prescribed officer to approach a court for an order declaring a director delinquent. Importantly, section 162(5) provides that once the statutory grounds are established, the court has no discretion—it must declare the director […]
Section 34 of the Insolvency does not apply to the disposal of a business where such business is being disposed of pursuant to an approved business rescue plan.
Section 34 of the Insolvency Act (“Section 34”) is aimed at protecting creditors from the risk of asset-stripping by financially distressed companies. Specifically, it seeks to prevent such companies from transferring their business, goodwill, or assets to third parties who are not liable for the company’s debts. To mitigate this risk, the section provides that […]
Director removals under section 71 of the Companies Act: clarity from the courts.
Section 71 of the Companies Act, 2008 (the “Companies Act”) sets out the framework for the removal of directors and distinguishes clearly between removal by fellow directors and removal by shareholders. Where directors seek to remove a fellow director, section 71(4) of the Companies Act requires the board to provide written reasons for the proposed […]
The Cape Town Tax Court has confirmed that raising fees are included as ‘interest or similar finance charges’ and are therefore tax deductible.
In decision IT 76795, ‘Taxpayer Trust v Commissioner for the South African Revenue Service’, the Cape Town Tax Court held that raising fees are ‘interest or similar finance charges’ in terms of 11(x) read with section 24J (1) of Income Tax Act 1962. The Court, in examining 24J (1) and other relevant provisions, relied upon […]
The Expropriation Act repeals pre-democratic legislation and sets out how organs of state may expropriate land
In January 2025, President Cyril Ramaphosa signed the Expropriation Bill into law. The Expropriation Act of 2024 repeals the 1975 legislation and establishes processes and procedures for expropriation of property by the State. The Expropriation Act seeks to align expropriation legislation with the Constitution. Section 25 of the Constitution has always permitted expropriation, where it […]
SCA confirms that post-commencement creditors have the right to vote on the adoption of a business rescue plan
In its landmark decision of Mashwayi Projects (Pty) Ltd and Others v Wescoal (Pty) Ltd and Others, the Supreme Court of Appeal confirmed that post-commencement creditors have the right to vote on the adoption of a business rescue plan. Examining the use of the word ‘creditor’ in sections 128, 135, 145 and 150 of the […]
An agreement cannot be revived by way of an addendum once the agreement has lapsed.
In Vantage Goldfields SA v Siyakhula Sonke Empowerment Corporation, (Pty) Ltd and Another, the principal agreement, signed in 2017, between Vantage Goldfields (the seller) and Flaming Silver Trading (the purchaser), involved the sale of shares and claims for R310 million. The agreement contained various suspensive conditions which were to be fulfilled by certain specified dates, […]