IN THIS ISSUE - NOVEMBER 2012

SARS - New Search and Seizure Powers

   

 

Property: The Pitfalls Of Joint Ownership

 

 

“Wildcat” and “Protected” Strikes – The Rules, and The Risks

 

 

“Tick Tock”.  All Companies – Countdown to the “MOI” Deadline!

 

 

Up! UIF Earnings Ceiling, Contributions and Benefits

 

 

The November Website: It’s All Geek to Me

SARS - NEW SEARCH AND SEIZURE POWERS

 

The powers ….

sarsSARS has a powerful new weapon.  The Tax Administration Act (TAA), which has just come into effect, allows SARS to “search and seize” without first obtaining a court warrant.  This enables the taxman to take immediate action to stop tax evaders from destroying records and hiding evidence during the period of delay that would normally precede the issue of a court warrant.  

…..and the limitations

 

 

That’s a great boost for SARS in its fight against tax evasion, but our constitutional rights to privacy and fair administrative action require that strict limitations apply.  Thus a warrantless search is only permitted if either -

  1.   The owner or person in control of the premises consents in writing to the search; or
  2.   If no consent is given, if a senior SARS official “on reasonable grounds” is satisfied that:

         a. There may be an imminent removal or destruction of relevant material likely to be found on the premises,

         b. SARS would have obtained a warrant had it applied for one, and

         c. The delay in obtaining a warrant would defeat the object of the search and seizure.

If it happens to you

Even if you are totally innocent of any wrong-doing, to have a team of SARS officials arriving unannounced on your doorstep is always going to be a traumatic experience, quite apart from the resulting disruption to your business activities.  So what do you do if it happens?

  •  First check the officials’ SARS I.D. cards.  These I.D. cards are a requirement of the TAA.  And if you have any doubt  as to the genuineness of any card, phone 012-4227435 to check.  
  •  Then call in legal assistance immediately - you must of course co-operate with lawful requests made of you, but the  TAA also gives you many rights and safeguards, and you are entitled to urgent access to the courts to enforce  them if need be.

“My Home is My Castle” - can SARS search it?

Note that SARS may not without your consent enter your residence (“dwelling-house or domestic premises”), except any part that is used for business purposes.

PROPERTY: THE PITFALLS OF JOINT OWNERSHIP

 

Property PitfallsCouples (married and unmarried) often decide to buy their home and/or other property jointly.  It may seem like the common sense thing to do, but there are many pitfalls for the unwary.  Take advice upfront on the various advantages and disadvantages to be considered – depending on your particular circumstances, these could range from tax and estate planning considerations, to practical issues of control and rights of usage.

When the going gets tough

 

Things will really come to a head if and when things go wrong and your relationship comes to an end.  

You may think for example that as co-owners you are automatically entitled to 50% of the net proceeds on break-up.  Not so!  A recent High Court judgment illustrates the danger of making this assumption –

  •   A couple had registered two properties in their names jointly,  
  •   Then on divorce, they fought over whether the proceeds should be split either

*   50/50 (per the wife’s claim that her husband had donated half shares to her), or

*   Pro rata to their respective contributions (per the husband’s claim that the properties were “joint      ventures”),

  •    The Court held for the husband in regard to one of the properties, and for the wife on the other, ordering that    they each  pay their own legal costs.

All the uncertainty, acrimony, delay and legal expense of a case like that can be avoided simply and easily.

How?  The remedy

Before you sign any sale agreement, and before you decide in whose name/s you are going to buy the property –

  • Take advice on whether to hold the property in one name, both names jointly, or in another legal entity altogether
  • If you are going to own the property jointly, have an agreement drawn up to cover all possible contingencies, such as -

              - Will you hold equal 50/50 undivided shares in the property, or will you apply some other ratio?

              - Who will pay for what? Cover all possible costs -

  •    The purchase price
  •    Bond instalments
  •    Rates, repairs, maintenance, other running expenses, etc
  •    Any other costs?

- What happens if you divorce or part company?  Will you jointly sell the property and split the net proceeds?  Can   one of you sell his/her share and if so how is the other protected from landing up with a stranger as co-owner?   Will you each have first right to buy out the other’s share, and if so at what price?  

- What happens if one of you dies?  

-  How will you resolve any disputes over cost contributions, whether or not to sell, whether to raise a second bond,    etc?

Our courts are called upon daily to resolve disputes over property ownership.  Disputes which should have been avoided by obtaining legal assistance before signing any sale agreement.  

“WILDCAT” AND “PROTECTED” STRIKES – THE RULES, AND THE RISKS

 

South Africa Strikes

The constitutional right of employees to strike is a fundamental one, limited only by the requirements of our labour laws.  Both employees and employers need to be clear on when strikes are “protected”, and when they aren’t.  The risks of not understanding the law, and/or of not complying with it, are substantial.

 

In broad terms: -

  •  A strike that complies with the requirements of the LRA (Labour Relations Act) is “protected” by law, in which case any dismissal of strikers will be “automatically unfair”.
  •  An “unprotected” or “wildcat” strike is one that does not comply with the LRA, in which case participation amounts to misconduct which could result in dismissal.  

The requirements of the LRA in regard to strikes are many and complicated so it is essential to take proper advice in each specific case.  But given the current rash of both protected and wildcat strikes in South Africa, two aspects bear particular mention –

  • One of the steps which employees must follow is to give 48 hours’ notice of an impending strike, either personally or through a representative (normally a trade union).  With new minority unions in the media spotlight recently, the question arises - what happens where more than one union has members in a workplace?  Must each of those unions, and each non-union employee, individually issue a separate strike notice?  The Constitutional Court answered that question recently in a matter where a strike notice had been issued by a majority union (which was in this case also the recognised bargaining agent for all employees), the Court holding that the strike notice, although issued only by the one union, was enough to protect all employees, including non-members.
  • Even “protected” strikers must act lawfully and peacefully.  Violence, intimidation, or destruction of property risks criminal prosecution, disciplinary action and liability for damage caused.  Unions themselves risk liability for “riot” damage in certain circumstances, so member discipline is essential for them.

 

“TICK TOCK”.  ALL COMPANIES – COUNTDOWN TO THE “MOI” DEADLINE!

 

I love deadlines. I like the whooshing sound they make as they fly by”   - MOI deadlineDouglas Adams

You have until 30 April 2013 to bring your shareholder agreements and your company’s “MOI” (what used to be called your “Memorandum and Articles of Association” is now a “Memorandum of Incorporation”) into line with the new Companies Act.  

And you really don’t want to hear this deadline “whooshing by” – if you do, you risk invalidity of your existing agreements and founding documents.  From 1 May 2013, these will be void to the extent that they contravene or conflict with the provisions of the new Companies Act.  And that could have extremely serious consequences for your company, its directors and shareholders.

 

Don’t procrastinate on this one!

Take professional advice now on how to structure your MOI and shareholder agreements.  If you delay, you risk not only the legal issues mentioned above but also extra cost (you will miss the window period to lodge with CIPC free of charge) and delay (both your advisors and CIPC will inevitably come under workload pressure as the deadline approaches).

UP! UIF EARNINGS CEILING, CONTRIBUTIONS AND BENEFITS

 

UIFWith effect from 1 October the earnings limit for UIF has been increased to R14,872 per month (R178,464 per year).  Employers and employees will continue to contribute at the rate of 1% each so maximum contributions will increase, as will maximum benefits for those employees entitled to them. Remember to update your payroll systems and EMP 201 returns!

 

 

 

THE NOVEMBER WEBSITE: IT’S ALL GEEK TO ME

 

Do you know your ‘4G’ from your ‘Firewire’, and your ‘P2P’ from your ‘POP3’?  If not, and if you want to hold your own in this exciting new electronic era, do some catching up at these sites -

  • For basic cyberworld terminology, go to About.com’s “The Top 30 Internet Terms for Beginners, 2012” at http://netforbeginners.about.com (click on the links under each definition for more advanced information),
  • For higher level terminology, see PC.net’s “The PC Glossary” at http://pc.net/glossary/,
  • Videos - How Stuff Works has an “It’s All Geek to Me” series of videos on things like “How to Transfer a VHS to a DVD”, “Podcasts” and “YouTube Video Conversion”.  Go to the playlist page at http://videos.howstuffworks.com/electronics/.              

 

Have a Great November!

 

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