We publish commentaries on current issues falling within the focus areas of my consultancy practice.  We often also touch on any of the more than 200 other Acts of Parliament or Provincial legislatures in South Africa.  It will always be matters that we deem important to clients.

Do not construe our commentaries as legal advice on any of these aspects. Obtain professional advice on any matter before you act.

We sometimes also write a Post when a particular matter caught our eye.  These appear on the sidebar of every page.

The comments are grouped by Act, or category of an Act, where the volume of comments is high, or where searching for a specific comment would become difficult.

You can sort by Category or Sub-category to quickly find a commentary you are looking for:

Date PublishedCategorySub-CategoryTitleBrief Outline
2020-10-27Companies ActKey aspects of the Companies Amendment Bill 2018The Companies Amendment Bill 2018The Minister of Trade and Industry published the Companies Amendment Bill 2018 - a draft amendment Bill to the Companies Act, No 71 of 2008 (Companies Act) - for public comment on 21 September 2018.
2020-10-17CompaniesFront-line remunerationFront-line remuneration – focusing on what is soldFront-line remuneration – focusing on what is sold is not enough.  How the employee does the job is at least as important as what the employee does. 
2020-10-14PAIAThe prescribed ManualThe PAIA Information Manual. Have you filed it yet?As required by PAIA, I'm convinced that many private sector businesses have not yet published the PAIA Information Manual.
Have you filed it yet?
2020-10-10CompaniesExecutive remunerationExecutive Remuneration is lacking in symmetry.Executives continue to get very well paid when companies do well, but also get very well paid when results are poor. Executive remuneration is lacking in symmetry with the performance of the enterprise. 
2020-10-05CompaniesCorporate Governance“Corporate Governance”. Where does it come from?The term "corporate governance". Where does it come from?
2020-10-04CompaniesExecutive remunerationBlame the incentives for the evils of capitalismAre stock options the root cause of all the major shortcomings of capitalism?
2020-09-13CompaniesSeven pitfalls awaiting non-executive directorsSeven pitfalls awaiting non-executive directorsCorporate governance in South Africa differentiates between non-executive directors (“NED”) and independent directors (“ID”) of companies.
2020-09-09Internal auditInternal pressuresInternal pressure – a threat to internal audit’s objectivity.Internal pressure is a pervasive threat to the internal audit's objectivity.   Nothwithstanding this, the internal audit function of larger enterprises is critical for assessing the maintenance of good governance.
2020-09-07B-BBEE ActFronting practicesGuidelines defining B-BBEE fronting practicesNo clear guidelines defining B-BBEE fronting practices have been available since the Broad-Based Black Economic Empowerment Act 53 of 2003 as amended ("B-BBEE Act") became law. 
2020-09-06Companies ActShareholder resolutionsShareholders’ resolutions at AGMsConsidering shareholders’ resolutions at AGMs is allowed in terms of the Companies Act (“Act”). The Act grants shareholders wide powers to propose such resolutions.
2020-09-06Companies ActMoI vs Companies ActUnalterable provisions – MoI vs the Companies Act.It is important to note that unalterable provisions pitch the MoI vs the Companies Act. The latter will always prevail over provisions of the company’s MOI.
2020-08-30Companies ActCIPC Compliance ChecklistCIPC Compliance ChecklistSouth Africa’s Companies and Intellectual Property Commission (“CIPC”) introduced a new requirement with effect 1 January 2020. This must be done at the same time when lodging annual returns. It is a Compliance Checklist and it’s a mandatory submission to be made.
2020-08-22PoPI ActHow have businesses structured their compliance?How have businesses structured their compliance with PoPI?How have businesses structured their compliance with PoPI? Everywhere you turn you find companies offering you a download of something in exchange for your contact details.
2020-08-20Soft SkillsThe art of brevityBrevity – saying more with fewer wordsSaying more with fewer words. Brevity is a lost art in this age of data overload.
2020-08-18PoPI ActProcessing of personal informationProcessing of personal information – what you need to knowThe processing of personal information is an important compliance matter for all businesses these days. By now most people know that the Protection of Personal Information Act 4 of 2013 (the “PoPI Act”) is the law with effect 1 July 2020.
2020-08-16CompaniesConflicts of InterestConflicts of Interest at the workplace.Managing personal conflicts of interest in the workplace is not receiving enough attention.
Do you have a program to manage potential areas of conflict of interest?
2020-08-15PAIAThe prescribed ManualThe prescribed Manual from PAIA. Are you compliant?I fear that many private sector businesses have not yet published the prescribed Manual as required by PAIA. Are you compliant?
2020-08-04The PoPI Act10 Things to do nowThe PoPI Act – ten things you must do nowTo become compliant with the PoPI Act does not happen overnight. Here are the ten things you must do now (in no specific order).
You have to work at it. You also do not have much time left before the full force of the Act kicks in.
2020-08-02Risk ManagementThree Lines model of risk managementThree Lines Model for risk managementA new model for governance and risk management issued Monday 20 July 2020 by the Institute of Internal Auditors (IIA) makes major updates to the Three Lines of Defense model that has been popular for years.
2020-08-02Companies Business rescue processesBusiness rescue process – a very low success rate“The business rescue process of South African Airways, which, after almost eight months and billions of rand, is still not complete, has put the spotlight on whether business rescue is indeed a viable option provided by the Companies Act.”
2020-08-01Companies ActAlterable provisionsCompanies Act – what are the alterable provisions?The most important document governing a company is the Memorandum of Incorporation (MOI). The MOI sets out the rules governing the conduct of the company, as specified by its shareholders.
2020-07-30PoPI ActRight to privacy vs right to assess informationBalancing right to privacy with the right to access personal informationWe believe that the aim of the PoPI Act is to balance the right to privacy with the right to access the personal information of individuals and businesses. A difficult balancing act at the best of times.
2020-07-27PoPI ActData breachesData breach – how valuable is a memory stick?By now most individuals know that the Protection of Personal Information Act 4 of 2013 (the “PoPI Act”) is with effect 1 July 2020, law. Every public and private enterprise has to comply, and a grace period of 1 year applies.
2020-07-26CompaniesCIPC Compliance ChecklistThe CIPC Compliance ChecklistThe CIPC Compliance Checklist- This is an online form to be completed to enable CIPC to track
compliance with the Companies Act and Regulations
2020-07-26CompaniesShare buy-backWhy does a board opt for a share buy-back of the company’s shares?Ever wondered why a board opts to buy back the company’s shares? This is almost always the subject of a
shareholders’ resolution at each AGM of an issuer.
2020-07-25Companies ActExemptions From The Unalterable MOI Provisions Exemptions From The Unalterable MOI ProvisionsSection 6(2) of the Act creates a process for a person to apply to the Companies Tribunal (Tribunal) for an administrative order exempting "an agreement, transaction, arrangement, resolution or provision of a company's MOI or rules from any prohibition or requirement established by or in terms of an unalterable provision of this Act"
2020-07-25Companies ActAlterable and unalterable provisionsAlterable and unalterable provisions of the Companies ActThere is no doubt that the Companies Act (71 of 2008) (“Act”) has modernised corporate
law in South Africa, by amongst other things, creating flexibility and simplicity in the
formation and maintenance of companies whilst promoting a balance between the rights and
obligations of shareholders and directors.
2020-07-25Corporate CultureCulture & ethicsAs your corporate culture goes, so does your companyEvery great company requires a foundation, and the foundation of a company is its culture.
Every employee should say “It’s my company, so I want to drive the culture”. If you fail to
shape the culture in your business, then society will do it for you.
2020-07-25Companies ActSales of shares in a private companySale of shares in a private companyThis article deals with the sale of shares in private companies and the possible involvement of the Takeover Regulation Panel (the “TRP”).
2020-07-25Companies ActThe Public Interest (PI) ScoreThe “public interest” score: important factor for many companiesThis article only deals with companies which have to use the public interest
score (“PI Score”) per Regulation 28 to determine if an audit needs to be performed in respect of a financial year.
2020-07-25Companies ActAccess to company recordsCompany records – who has right of accessThe Companies Act 2008 provides for individuals’ right of access to the records of a company, within limits:
2020-07-22CompaniesVirtual shareholder meetingsVirtual AGMs. How not to do it.Everything about the #JSEZED AGM held on 17 July is what gives #virtualagm shareholder meetings a bad name
2020-07-19Companies ActDirectors
Shareholders
Virtual shareholder meetings – six issues to considerCorporate South Africa has been in national lockdown since late March.  However, business life must go on.  This includes the fact that boards of all companies have struggled to call shareholders' meetings.  The only option is to opt for virtual shareholder meetings.
2020-07-06PoPI ActThe PoPI RAM toolkitThe PoPI-RAM Toolkit will help you to comply with the ActAll businesses need to assess the relative level of compliance readiness of all their respective departments responsible for the personal information of clients, suppliers, service providers, HR and other operations such as security access, reception and security gate records.
2020-06-09Companies ActDirectorsReckless trading: a director’s liabilityThe well-known “CNA” case brought by the CNA liquidators against John Newton, the financial director of CNA on the basis of alleged reckless trading, is still very relevant today, even though the case was decided under the 1973 Companies Act.
2020-04-12Companies ActDirectors and "deemed directors"Directors and “deemed directors”Much has been written about the many, often onerous requirements
of directors and people deemed to be directors of a company.
2020-04-12Companies ActThe Prescribed OfficerThe “prescribed” officerRegulation 38(1) of the Companies Act 2008 as amended states:

Despite not being a director of a particular company, a person is a prescribed officer of the company for all purposes of the Act if that person....
2020-04-12Companies ActCompany NamesCompany namesSection 11(3)(c) of the Companies Act 2008 provides that:

"a company name, irrespective of its form or language, must end with ......
2020-04-12Companies ActSocial & Ethics committee15 Steps to compiling a great management report to the Social and Ethics Committee (“SEC”)The development of a corporate social and ethical behaviour is a journey and not a destination for every company and even starting from a low base is still worth reporting.
2020-04-12Companies ActRegistered office;
Company records
Registered office and company records: what you need to knowWhat is the registered office of a company?  What company records must be kept at this office? Why is the registered office and company records so important?
2020-04-12Companies ActFinancial reportingFinancial reporting – the responsibility of directorsSubject to Section 214(2) of the Companies Act 2008, it is an offence under
Section 29(6) for the board of a company to approve its AFS....
2020-04-12Protection of Personal Information ActPoPIAProtection of Personal Information Act – are you on top of your game?The PoPI Act was signed into law in November 2013. However, PoPI isn't effective yet. The president still has to decide on the commencement date.

Not only do we need to wait for a commencement date, but PoPI also allows an additional year from the commencement date for you to comply with its requirements.
2020-04-12Companies ActThe independent directorThe Independent non-executive directorAn independent non-executive director.  Who is it?

When are you truly independent for the company and/or other members of the board?
2020-04-11Companies ActInter-company LoansInter-company loans – not a good idea anymoreDoes your group still process inter company loans by:

consolidating the daily bank balances of group companies into a single bank account on an overnight basis, or
operating a structured inter company deposit & loan business via a finance subsidiary, where group companies are obliged to deposit or borrow funds instead of using their bankers?
2020-04-11Companies ActSolvency & LiquiditySolvency and liquidity: the test for companiesThe Companies Act 2008 reflects a shift away from the principle of maintaining the capital structure, to maintaining the solvency and liquidity of the enterprise, when compared to the previous 1973 Act.
2020-04-11VAT ActFailure to pay over VATFailure to pay over VAT is not theftFailure to pay over VAT is not theft. A Supreme Court of Appeal decision handed down in December 2014 (Director of Public Procecutions, Western Cape v Parker [2014] ZASCA 223) has dismissed the contention of SARS that the failure to collect and pay over VAT to SARS constitutes common law theft.
2020-04-11VAT ActClaiming input VAT without invoicesClaiming input VAT without tax invoices is allowableAn interesting case relating to claiming input VAT was recently adjudicated on by the Western Cape High Court (ABC (Pty) Ltd vs Commissioner for SARS [2015] ZAWCHC 8) relating to the use of sponsorship agreements as a basis for claiming input VAT without tax invoices from the sponsor (despite having asked for it), when the same sponsorship agreement is used to determine the value of output VAT payable by the vendor.
2020-04-11Companies ActDirectors' remunerationDirectors’ remunerationSection 30(4) of the Companies Act 2008 requires the annual financial statements of
every company which is required to have its annual financial statements audited in terms of the Act, to
disclose remuneration received by each director.....
2020-04-11Companies ActCorporate BoardsCorporate boards: its role and functionI find it interesting and informative to work through the opinions expressed by others in recent times. Much has been written about corporate boards and their role and function.
2020-04-11Companies ActBoard committeesAppointing Committees of the BoardAppointing board committees

The board of directors of a company may appoint any number of committees, and may delegate to any committee any of the authorities of the board in terms of Section 72 of the Companies Act This is subject to the provisions of the Memorandum of Incorporation.
2020-04-03CompaniesBoards of directorsHolding corporate boards to accountServing as a director of a company, be it a JSE-listed group or a small family-owned business, brings with it several onerous responsibilities.
2019-12-31Labour LawEmployment in SATen things you should know when employing in South AfricaThe Employment Equity Act (EEA) was established to achieve equity in the workplace through the elimination of unfair discrimination and the implementation of affirmative action measures.
2019-12-31Labour LawEmployment EquityEmployment Equity – new requirementsDepartment of Employment and Labour recently amended the Employment Equity regulations to include an updated EEA4 form applicable to ‘designated employers’.
2019-10-19Companies ActCIPC;
iXBRL
Companies that must utilise iXBRLDepending on the regulatory requirements of the Companies Act (the “Act”) applicable to a specific enterprice, all entities MUST submit their annual financial statements (“AFS”) together with their Annual Returns.
2019-10-19CIPCCIPC;
iXBRL
iXBRL – the digital financial reporting solutionWith effect 1 July 2018 the CIPC’s Digital Financial Reporting Programme using iXBRL came into operation.
2019-10-19Companies ActPI ScoreCalculating the Public Interest (“PI”) ScoreThe Companies Act No. 71 of 2008 (the “Act”) came into effect on 1 May 2011, and amongst other important provisions, introduced the concept of the public interest (“PI”) score of a company.
2019-10-19Companies ActCIPCCIPC – failure to submit AFS with Annual ReturnsThree companies slapped with 10% of turnover fines as they did not file annual financial statements and another 20 companies are being investigated.
2019-10-19PoPI ActData breachPoPI Act – cost of a data breachA new IBM Security study finds that hidden costs in data breaches – such as lost business, negative impact on reputation and employee time spent on recovery – are difficult and expensive to manage.
2019-10-19Companies ActAuditsTypes of companies subject to audit in SARegulation 28 of the SA Companies Act 2008 provides that the following types of companies are subject to audit (unless they are exempted in terms of Section 30(2A) of the Act):
2019-10-19Companies ActIndependent Review of AFS in SAIndependent Review of AFS in SARegulation 29 of the SA Companies Act 2008 provides that every company is subject to an independent review unless:
1 – it is exempted in terms of Section 30(2A) of the Act, or
2 – it is required in terms of its MoI to have its AFS audited, or
3 – it has voluntarily subject its AFS for that year to audit.

An independent review must be carried out in the case of:
1 – a company which a public interest score of at least 100 for a particular year, by an auditor or a member of an accredited professional body, or
2 – a company which has a public interest score of less than 100 for that particular year, by an auditor or a member of an accredited professional body, or a person qualified to be appointed as the accounting officer of a close corporation.

An independent review may not be carried out by the person involved in the preparation of the AFS.
2019-10-19Companies ActCIPCCompany Annual ReturnsRegulation 30 of the SA Companies Act 2008 provides that a company must, unless its exempted by CIPC from doing so, file its annual return with CIPC
2018-06/06Companies ActDuties of directorsDuties of directorsThe duties and liabilities of directors are dealt with in sections 75 to 77 of the Companies Act, 2008. The definition of “director” now includes:
2017-08-16AccountingIFRSInternational Financial Reporting Standardswww.ifrs.org: “Our mission is to develop IFRS Standards that bring transparency, accountability and efficiency to financial markets around the world. Our work serves the public interest by fostering trust, growth and long-term financial stability in the global economy.”
2017-08-16Tax Administration ActBanks' power to freeze fundsTax Administration ActSection 190(5A) of the Tax Administration Act, 2011 requires a bank to immediately report to SARS if it has a reasonable suspicion that the payment of an amount is related to a tax offence.
2017-08-15Companies ActDocument retentionDocument retentionCompany Records required to be maintained

In terms of Section 24 of the Act, each company registered in South Africa must keep the following:
2017-08-15Protection of Personol Information ActObtaining your detailsThis is how they got your number….The next time a call centre agent tells you they got your number from the “national consumer database”, ask to speak to their manager.
2016-02-16Protection of Personal Information ActSigned into LawProtection of Personal Information ActThe Protection of Personal Information Act was signed into law in November 2013, and certain sections of the Act became effective during April 2014.
2015-09-23Companies ActBoard diversityKing III: Is there really a flaw in King’s board formula?I recently came across an article by Lesley Stones dated 15 December 2014 titled “The flaw in King’s board formula”.  It covered the opinion of public relations practitioner Shonisani Makhari expressed in his MBA dissertation against the background of King III.
2015-05-10Companies ActSocial & Ethics CommitteeSocial and Ethics Committee of the boardThe intention of the Act in prescribing the establishment of  a social and ethics committee of the board for defined enterprises, is to bring about a more structured and focused approach to social and ethical issues encountered in the workplace
2015-05-09Companies ActCompanies ActCompanies Act, 2008The South African Companies Act 71 of 2008 has replaced the Companies Act 1973 with effect 1 May 2011, except for the sections dealing with the winding-up and liquidation of insolvent companies. These sections remain in force. The new Act introduces many new principles, rights, obligations, procedures, remedies and sanctions
2015-04-23Corporate GovernanceCorporate governance, ethics and valuesCorporate governance, ethics and valuesCorporate governance is the framework of laws, regulations, internal policies and procedures controlling the way in which businesses operate.

These are both external to the enterprise and internally formulated rules as defined by the shareholders and/or the board from time to time.