Nwanda Internal News
(October 2016)

DAYS

Awesome Reward goes to:

Rafeeah Razak – For being your manager’s right hand
Roald van der Heiden – For being your manager’s left hand
Hennie de Beer and Merusha Yenketsamy – Embracing the role of a senior clerk

CTA Students:

Welcome back from study leave to all our CTA students, you were missed.

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Office closure:

We wish to notify our clients that our offices will be closed from 16 December 2016 and will reopen on 3 January 2017.

Farewell to staff members:

We bid farewell to the following staff members:
– Teboho Magodiele
– Natali Ferrao
We wish them success in their future endeavours.

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Removing Directors of a Company

The Companies Act, 71 of 2008, requires that the business and affairs of any company be managed by or under the direction of its board, which has the authority to exercise all of the powers and perform any of the functions of the company, except to the extent that the Companies Act or the company’s Memorandum of Incorporation provides otherwise (section 66(1)). The Companies Act further requires that a company must have at least one director (section 66(2)), and further that only natural persons may serve in that capacity (section 69(7)(a)).Those individuals occupying the position of directors of a company are therefore responsible for managing the affairs of the company and they do so as custodians on the shareholders behalf. It should be remembered that the directors do not own the company: the company rather is owned by the shareholders and the directors serve to promote the interests of the company, and indirectly the economic interests of the shareholders. Quite often, in the case of private companies, the directors and shareholders may be the same individuals. However, where the directors have no or limited shareholding interest in the company itself, it may happen that the shareholders may wish to move to have certain directors removed and replaced on the company’s board if e.g. the company’s financial performance or operations are not satisfactorily conducted according to the shareholders’ liking.

Naturally, a director may be requested to resign under amicable circumstances. However, where a director refuses to resign (and may perhaps have the backing of other shareholders), the question becomes what remedies the aggrieved shareholders still have? It is possible to have these matters regulated in terms of the company’s Memorandum of Incorporation specifically to dictate under which circumstances a director may be removed from the board of a company. It could also be agreed with the director initially by way of a clause in the appointment contract.

Irrespective of whether the Memorandum of Incorporation or an appointment contract addresses the matter specifically, a director may always be removed by way of a majority vote at an ordinary shareholders’ meeting (section 77(1)). Before the shareholders of a company may consider such a resolution though, the director concerned must be given notice of the meeting and the resolution, and be afforded a reasonable opportunity to make a presentation, in person or through a representative, to the meeting, before the resolution is put to a vote (section 77(2)). In terms of procedures not entirely different from that as applied to shareholders, the directors may among themselves resolve to remove a director from the board of a company (sections 77(3) & (4)).

It is important for directors to realise that they serve at the pleasure of shareholders. It is likewise necessary for shareholders to know that they have remedies against directors who do not deliver on their mandate, and that keeping directors in check amounts to good corporate governance.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Impermissible Exchange Control “Loop Structures”

Many people or companies with offshore activities will be aware of the existence of exchange controls imposed by the South African Reserve Bank and monitored by its Financial Surveillance Department. Yet despite being aware of its existence, many do not appreciate what transactions are permissible and what would constitute a contravention of the exchange control regulations. In practice we often encounter such illegal structures, even though it may have been innocently created. One typical structure often encountered, and which the South African Reserve Bank considers to be illegal, is the so-called “loop structure”.Loop structures in essence involve a resident in the common monetary area (comprised of South Africa, Namibia, Swaziland and Lesotho, “the CMA”) investing via loan or shares back into the CMA through an entity non-resident in the CMA. For example, a structure whereby an individual owns shares in a UK company which in turn holds shares in a South African company will amount to an illegal loop structure.Share investments do not represent the only mechanism through which loop structures may be created: loans held back into the CMA through offshore entities, or even contingent rights created by way of a discretionary trust may also give rise to a loop structure. To give another example: if an individual is a discretionary beneficiary of an offshore trust, and which trust directly or indirectly holds loans receivable against or shares investments in South African companies, that too would be considered a contravention of the prevailing exchange control regime.In other words: a loop structure would be created where a South African resident holds South African investments (in whichever form) indirectly through an offshore entity.Although there is no blanket prohibition against all offshore investments which give rise to loop structures, the South African Reserve Bank is loath to approve these and take the view that any such structure created without seeking its prior approval amounts to an illegal structure. An exception which is noted though in the recently published Currency and Exchange Guidelines for Business entities (published by the Reserve Bank on 29 July 2016) involves companies which may hold between 10 to 20 per cent of the shares in an offshore entity, which may in turn hold investments in and/or make loans back to the CMA. (This dispensation does not apply though to foreign direct investments where the South African company on its own, or where several South African companies collectively, hold an equity interest and/or voting rights in the foreign entity of more than 20 per cent in total.)It is true that many people are completely unaware of the prohibition against loop structures and that these have inadvertently been created in the past without those involved being aware of the illegal nature thereof. If one were to voluntarily come forward and declare such an illegal structure though, taking also into account that the loop was inadvertently created, the Financial Surveillance Department may very well allow transgressing persons to unwind the unintended loop structure without levying penalties (which could otherwise amount to as much as 40% of the capital illegally exported from the CMA). It would be important for individuals and companies alike to be aware of these potentially illegal structures and to be sure that steps are taken to have these resolved as soon as possible. Given the newly introduced special voluntary disclosure programmes (SVDP) announced by National Treasury and which extends beyond tax transgressions only, it may now be an appropriate time to take steps to have such transgressions rectified.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Dividends Tax Compliance

Our clients will know that dividends tax replaced the old Secondary Tax on Companies (“STC”) on 1 April 2012 already. Briefly, the STC was a tax on companies and calculated as a factor of dividends declared by that company. The regime was somewhat out of touch with international trends though (which also gave rise to certain anomalies when South Africa negotiated double tax agreements with other countries): the international norm is rather what we have in South Africa today too, being a tax on shareholders (as opposed to the dividend declaring company) and which tax is withheld from payment of dividends to the shareholders. The dividends tax is levied at 15%. By way of an example therefore, if a person (not exempt from the dividends tax) were to receive R100 in dividends from a South African company, that company will only pay R85 to the shareholder, and R15 would be withheld and paid to SARS on the shareholder’s behalf.

Although in our experience most of our clients exhibit an understanding of how the dividends tax regime operates, many of our corporate clients appear to be unaware of their filing obligations which go hand-in-hand with both dividend declarations as well as dividends received. Companies are required to file a dividend tax return when declaring a dividend (section 64K(1A)), but persons are also required to file a return if they receive a dividend exempt from the dividends tax. Since generally all South African tax resident companies are exempt from the dividends tax, this will effectively translate into South African tax resident companies having to file dividends tax returns for all South African dividends which they receive too.

The necessary dividends tax returns (the SARS DTR01 and DTR02 forms) are required to be filed by the end of the month following the month during which the relevant dividend was paid/received. The dividends tax payment (where relevant) should accompany said return.

Therefore, even if a company only pays and receives dividends none of which are subject to the dividends tax the exempt taxpayer is still obliged to file the requisite returns. The returns are also not the only compliance requirement to be observed: where a shareholder relies on a double tax agreement in terms of which a reduced dividends tax rate is to be applied (as opposed to the statutorily imposed 15% applicable domestically), or that person is exempt from the dividends tax altogether, that shareholder must inform the company of this status by way of a declaration made, together with an undertaking that the shareholder will inform the company should the status of the aforementioned change in future. In the absence of such a declaration, the company must still withhold dividends tax even if the shareholder is, objectively speaking, exempt from the dividends tax.

As one will no doubt realise, non-observation of the relevant dividends tax compliance requirements – even if they do appear to be somewhat trivial and admittedly not practically heavily policed by SARS – one ignores these requirements at one’s own peril. In this instance non-compliance may have a significant impact if a taxpayer is upon investigation found to be wanting in this regard.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)