Without Prejudice - Volume 16, Issue 2, March 2016

M&A feature

This month we include not only the Awards made to legal advisers in both M&A and general corporate finance on 16 February at the annual Deal Makers Gala Awards by sister publication Deal Makers, but also a feature on the topic of Mergers and Acquisitions. The aspects covered are just a few of those essential to a successful deal. The year ahead is likely to be challenging but there are already a couple of interesting events to chew over, including the anticipated departure of Barclays from Absa and Bidvest's plan to bring its Food service business onto the JSE.

On 30 November 2015, the Competition Tribunal heard argument from the Competition Commission and the Delatoy Group regarding the definition of a "firm", and the attribution of liability to entities which form part of the same corporate group.

2015 saw a marked increase in dawn raids by the South African Competition Commission.

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There were four dawn raids conducted by the Commission across the following industries:

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• fire control and protection systems companies (20 March 2015)
• recruitment advertising agencies (23 September 2015)
• furniture removal companies (30 September 2015)
• liquefied petroleum gas suppliers (14 October 2015)

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In the wake of the increased reliance on dawn raids by the Commission, it has become more imperative than ever that firms are aware of their rights and duties, as well as the best practices, that should apply in anticipation/response to a dawn raid.

In Motale v Abahlobo Transport Services (Pty) Limited and others [2015] JOL 34696 (WCC), Mr Motale (the applicant) repeatedly applied for access to certain company records of Abahlobo Transport Services (Pty)Limited (the first respondent, referred to as "the company"), of which he was a director and a shareholder. The documents requested related to the tax affairs of the company,and included certain bank statements.

In South African corporate law, the business and affairs of a company must be managed by or under the direction of its board of directors (s66(1) of the Companies Act (71 of 2008)). Given the vital role that directors play in companies, it is necessary for there to be some degree of accountability to ensure that they act in the best interests of the company and have the degree of care, skill and diligence reasonably expected of a person carrying out the functions in relation to the company(s76(3)(b) read with s76(3)(c)(ii)).

The notion "piercing the corporate veil" remains one of the most contested areas of litigation within the corporate law context, yet it is the least understood subject. The general principle is that companies or corporate entities are regarded as legal entities with their own juristic personalities, separate from their shareholders and directors. As such, corporate obligations remain that of the company and not the shareholders and directors acting in its interest.

An applicant (the creditor) serves an application for the winding-up of a respondent (the company). The application is based, firstly, on the fact that the company is both factually and commercially insolvent and, secondly, that it is just and equitable to do so. The merits are uncontentious.

Arbitration proceedings constitute "legal proceedings"for purposes of s133(1) of the Companies Act and are covered by the business rescue moratorium. The moratorium only suspends the time limits for a creditor's right to commence proceedings or otherwise assert a claim against the company during the moratorium and is not an absolute bar. The Supreme Court of Appeal provided this clarity in Chettyt/a Nationwide Electrical v Hart and Another NNO 2015(6) SA 424 (SCA) (Chetty v Hart).

Human interaction is founded on relationships and, by virtue of its nature, conflict is inevitable. In instances where parties themselves cannot settle disputes, the most appropriate method of resolution must be determined according to the nature of the dispute at hand.

International experience has shown that abusive tax avoidance can be broken down into three categories. The first involves abnormal arrangements that are entered into or carried out in a manner which would not be employed but for the tax benefits they promise to provide. The second involves arrangements that lack commercial or economic substance, and typically involve common features such as circular cash flows, tax indifferent parties and offsetting or self-cancelling elements. In practice, these categories often overlap, involving artificial and contrived composite transactions. At the extreme end of the spectrum, arrangements in these categories may also fall foul of the substance over form doctrine.

Section 8EA of the Income Tax Act (58 of 1962) constitutes an anti-avoidance provision which, if applicable, has the effect that the amount of any dividend or foreign dividend received or accrued to the holder of a preference share is deemed to be an amount of income as opposed to exempt income for tax purposes. In order for the provisions of s8EA of the Act to apply, the preference share in question must be regarded as a "third-party backed share".

In his Foreword, Tax Ombud, Judge B M Ngoepe describes the book as being "written in a manner that makes tax law knowledge accessible. It can be used not only by tax experts, but also by anyone seriously wanting to acquit themselves with our tax regime." When the Tax Administration Act 28of 2011 (TAA) came into effect on 1 October 2012 it opened up a whole new sphere of tax law which although always existed, was previously concealed within the various tax Acts. This work sets out to explain the TAA and this emerging area of law in an easy to use guide. The book opens with an introduction on the background to the TAA. Thereafter it closely follows the chapters in the Act with twenty of its twenty four chapters dedicated to a detailed section by section analysis of the TAA. Accordingly, there is an examination of all the tax administration processes,starting with tax registrations, through to returns, assessments, dispute resolution, liability and so forth, until all the provisions in the TAA have been examined.

A number of years ago I came across a research article by Justin Kruger and David Dunning, "Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self- Assessments" (Kruger, J and Dunning, D; Journal of Personality and Social Psychology 1999, Vol. 77 no. 6.). According to their research, people with limited knowledge in a particular domain frequently do not realise the extent of their lack of skill. This not only leads to them making regrettable errors but it also robs them of the ability to realise it.

Part 1

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Being a trustee of a pension or provident fund is an onerous engagement. Trustees are often responsible for millions (and sometimes billions) of rands' worth of future or existing retirement benefits. It is a responsibility not to be taken lightly,and should only be accepted on an informed basis.

Lately, questions have arisen in local case law regarding the nature and extent of the use that a defendant in a trade mark infringement claim must establish in order to rely on the "prior use" defence.

Most people in the intellectual property world will be aware of the current spat between the Anne Frank Fonds (AFF) and two French individuals, called Olivier Ertzscheid and Isabelle Attard, regarding copyright in the famous diary of Anne Frank.

In The South African Music Performance Rights Association ("SAMPRA") v Foschini Retail Group (Proprietary) Limited and 9 Others (50/2015) [2015] ZASCA 188 (30 November 2015), retailers took on SAMPRA about needle-time royalty fees for playing sound recordings in retail stores; and won.

From December 2014 to November 2015 Cliffe Dekker Hofmeyr (CDH) donated 7184 hours (in monetary terms - in excess of R12 600 000) in pro bono legal services to individuals and organisations unable to afford to pay for such services. CDH was also involved in a number of high profile human rights and public interest law matters.

The Captive Insurance Act 2015 was recently passed before the National Assembly of Mauritius and the law will now be proclaimed in stages. This Act was drafted under the aegis of the Financial Services Commission a few years back and was finally presented by the Honourable Minister for Financial Services and Good Governance in December 2015. This is a very positive move for the diversification of the financial and corporate services sector.