SAIPA Your Law : Volume 12 Issue 21, 11 December 2017...Log-in details for SAIPA Members SAIPA Technical will keep you up to date with these changes so login and read the SAIPA YOUR

Copyright © 2017 The Contemporary Gazette / All rights reserved.

DISCLAIMER: This is purely an information service and does not constitute legal advice. The authors and parties related to this service will not be held liable for the misinterpretation, application or accuracy of the content provided by them.

This newsletter

This newsletter overviews new relevant National laws up to 11th December 2017. Log-in to www.gazette.co.za,

peruse the list and follow the hyperlinks to laws that interest you.

Please note that [words in bold brackets] in www.gazette.co.za show proposed deletions, and underlined

words in www.gazette.co.za show proposed insertions - this allows you to see current and planned requirements

at the same time, and helps with giving context to changes/proposed changes.

SAIPA Your Law : Volume 1 2 Issue 21,

11 December 2017

Page 2

Log-in details for SAIPA Members

SAIPA Technical will keep you up to date with these changes so login and read the SAIPA YOUR LAW. Please

see the Hlast page for log-in details. Please provide SAIPA with your membership number when updating your

details.

Index

Financial

1. Long-term Insurance Act: Insurance Bill

2. Short-term Insurance Act: Insurance Bill

General

3. Competition Act: Draft Amendment Bill 2017

Information

4. Films and Publications Act: Amendment Bill 2015

5. Political Party Funding Bill

Safety

6. Animals Protection Act: Draft Amendment Bill 2017

General

7. Notable one liners

Page 3

Financial

1. LONG-TERM INSURANCE ACT: INSURANCE BILL

Version B of the Insurance Bill 2017 proposes, amongst others:

(i) Repealing registration (except for the section 8 prohibition), business and administration, and financial

arrangements (except for section 36 returns), compromise etc, business rescue and winding up, policy

summary, certain policy matters (see sections 52, 53, 56, 59 and 60), 67 insurer offences, part

9 transitional provisions, special provisions, schedule 1 and schedule 3 provisions;

(ii) Expanding grounds for the making of policyholder protection rules (relating to adverts, claims handling,

manner and form of policy benefits, misrepresentation, contract validity, premium non-payment, product

design/review, intermediaries, data management, termination etc);

(iii) Expanding grounds for making regulations (relating to services by independent intermediaries or

other persons for an insurer, handling of premiums received, and binder agreement governance, risk

management, internal control, oversight and operational ability matters, etc); and

(iv) Amending definitions, relationship with the FSR Act, Authority, inducements, intermediary

collection, remuneration limit, binder agreements, suspension until first premium, unborn and certain

minors limitations, benefit protection, and offences.

Bill 1B of 2016 (Incorporated into the Long-term Insurance Act and Regulations)

Back to index

Page 4

Financial

2. SHORT-TERM INSURANCE ACT: INSURANCE BILL

The Insurance Bill 2017 proposes, amongst others:

(i) Repealing schedules 1 and 2, as well provisions relating

to registration (excluding prohibition), business and administration, financial

arrangements (excluding returns), compromise etc, business rescue and winding up), receipt of

cash, copy of policy, voidness, misrepresentation, validity, insurer offences, transitional

matters and special provisions;

(ii) Repealing the provisions relating to Lloyd’s, as well as schedule 3, 18 months after the effective date

of the Insurance Act;

(iii) Amending the definitions, relationship to Financial Sector Regulation

Act, administration, inducements, collection of premiums by intermediaries, remuneration limit, binder

agreements, and offences; and

(iv) Amending grounds for policyholder protection rules (for example product design and review, and data

management), and for regulations (for example prescribing certain services by an independent

intermediary or other person for an insurer).

Bill 1B of 2016 (Incorporated into the Short-term Insurance Act and Regulations)

Back to index

Page 5

General

3. COMPETITION ACT: DRAFT AMENDMENT BILL 2017

The memorandum to the Draft Amendment Bill 2017 states that the main objective of the Draft Bill is to address

the high levels of economic concentration in the economy and the skewed ownership profile of the economy. The

Draft Bill proposes, amongst many others, redefining:

(i) Exclusionary act to include an act that impedes or prevents a firm from participating (not defined) in

a market;

(ii) Restrictive horizontal practices to include dividing markets by allocating market shares (not defined);

(iii) Abuse of dominance and price discrimination by a dominant firm;

Note: The Draft Bill also proposes removing complex monopoly conduct, which the Amendment At 2009 proposed

inserting when a commencement date is gazetted.

(iv) Exemption conditions;

(v) The manner in which mergers are considered, and introducing mergers by way of a series of

transactions and enforcement of merger conditions (also see merger proceedings);

(vi) Information requests to include requesting information from any firm in order to compile an impact

study report;

(vii) Market inquiries meanings, confidentiality, grounds, duty to remedy, outcome, appeals,

and participation;

Note: Also see forced divestiture.

(viii) Confidentiality so that, amongst others, the Minister may in certain circumstances have access to a

firm’s confidential information, and any other relevant Minister and any relevant regulatory authority may

have access to a firm’s confidential information unless the Tribunal determines otherwise ;

(ix) Appellate jurisdiction to remove the Supreme Court of Appeal; and

(x) Limitations on bringing action.

Comment deadline 60 calendar days from 1 December 2017.

GN1345 GG41294 / 1 December 2017 (Incorporated into the Competition Act and Regulations)

Back to index

Page 6

Information

4. FILMS AND PUBLICATIONS ACT: AMENDMENT BILL 2015

Version B of the Amendment Bill 2015 proposes reviewing the Act in line with current technology (see for

example distribute, social media, streaming, and false online submissions), and amongst others:

(i) Enhancing the objective of enabling adults to make informed choices objective;

Note: See, for example, the right to request, in the prescribed manner, that certain publications be classified,

the duty to display a classification, and the right to apply for a re-classification.

(ii) Enhancing the objective to protect children;

Note: See, for example, the increased officer powers, duty to refer certain publications or certain movies and

games to the SAPS, the prohibition on certain depictions of violence through photographs or films, requirements

for online films and games, certain forms of possession, certain forms of enabling exploitation offences , certain

forms of enabling violence depiction offences, and penalties to offences.

Reminder: There is an existing general duty to report a reasonable suspicion of certain child-related offences.

There is also a further existing specific duty on child orientated-services using chat-rooms, mobile apps etc to

report certain suspicions.

(iii) Defining prohibited content in relation to war propaganda, imminent violence incitement, certain hate

speech);

Note: See, for example, the complaints that may be made against commercial /non-commercial online distributors

complaints, as well as the prohibited content offence.

(iv) Defining publication as, amongst others, including any content made available using the internet.

Note: This definition will exclude a film or game (as film and game will be redefined, and are covered under

the films and games classification provision).

(v) Allowing for any person to apply, in the prescribed manner, for a publication distributed in SA to be

classified under section 16.

Note: This does not apply to a publication that falls within the ambit of the Press Council SA or the Advertising

Standards Authority SA.

(vi) Requiring publication submission for classification (before distribution, exhibition, offer or

advertisement) if it involves, amongst others, certain prohibited content;

Page 7

(vii) Additional internet service provider reporting and preservation duties if it has knowledge its services

are being used for hosting or distributing prohibited content; and

(viii) Offence to distribute certain private sx intimate photographs or films through any medium without

prior consent and where the individual is identifiable.

Note: Also see the related section 18F offence.

Reminder: Laws such as the Criminal Laws (S Offences and Related Matters) Amendment Act or common law

crime iniuria may also apply in certain circumstances covered by the Act.

Bill 37B of 2015 (Incorporated into the Films and Publications Act and Regulations)

Back to index

Page 8

Information

5. POLITICAL PARTY FUNDING BILL

The Bill proposes, amongst others:

(i) Defining donation and donation in kind, and adding offences and administrative fines;

Note: Additional offences in other laws may also apply for example, potentially, the general corruption offence.

(ii) Prohibiting political parties from accepting donations from a person or entity above R15 million within

a financial year;

(iii) Prohibiting political parties from accepting donations from state-owned enterprises, organs of state,

foreign governments, or foreign agencies;

(iv) Prohibition on accepting donation from foreign person/entity (unless for training or skills development

of a party member or policy development by a party, and such amount is less than R5m within a financial

year);

(v) Requiring that a political party must report a suspicion that a donation offered to it originates from the

proceeds of crime (and must not accept it);

(vi) Requiring a political party must disclose as prescribed all donations received by the party above

R100 000 within a financial year; and

Note: A juristic person or entity that made donations above R100 000 must also disclose in the prescribed manner.

(vii) Requiring that a person or entity may deliver a donation to a member of a political party only for party

political purposes, and a party member may only receive such donation on behalf of the party.

Bill 33 of 2017

Back to index

Page 9

Safety

6. ANIMALS PROTECTION ACT: DRAFT AMENDMENT BILL 2017

The Draft Amendment Bill 2017 proposes, amongst others,

(i) Expanding on the meaning of animal in the definition of animal, and defining cosmetic and premises;

Note: The expanded meaning will in turn affect the ambit of the offences under the Act.

(ii) Enhancing court general powers (for example ordering sterilisation) and powers relating to

damages (for example recouping reasonable costs incurred for veterinary attention or for treatment, food

or accommodation);

(iii) Making it an offence to test a cosmetic on an animal.

Note: A proposal is also made to allow for regulation of other areas of testing a compound, chemical, foodstuff,

disinfectant or other matter on an animal.

(iv) Making it an offence to fail to make available to an animal (owned or controlled), sufficient space in

an environment that adequately corresponds to its physiological and ethological needs; and

(v) That, subject to the provisions of the Act or any other law, every director or prescribed officer who was

knowingly a party to a contravention of this Act by a company, will be guilty of an offence.

Comment deadline 3 January 2018.

GN942 GG41289 / 30 November 2017

Back to index

Page 10

General

7. NOTABLE ONE LINERS

Broad-based Black Economic Empowerment Act :

(i) The Financial Services Sector Code commenced 1 December 2017. Note: the Code is relevant to,

amongst others, Banking; Insurance; Retirement fund admin; Collective investment scheme asset

management; Financial services intermediation/brokerage; Asset management etc.

(ii) The construction sector code commenced 1 December 2017. Note: The Code defines construction

sector as deriving more than 50% of annual revenue from Construction Related Activities (ie activities by

Contractors, BEP’s and Construction Material Suppliers).

(iii) The AgriBEE Code commenced 8 December 2017. Note: The Code is relevant to any enterprise that

falls under a 2.3 determination, or else which derives more than 50% of its turnover from: the primary

production of agricultural products; the provision of inputs and services to enterprises engaged in the

production of agricultural products; the beneficiation of agricultural products whether of a primary or semi-

beneficiated form; and the storage, distribution, and/or trading and allied activities related to non-

beneficiated agricultural products.

Child Justice Act: The Judicial Matters Amendment Act 2014 amended the Child Justice Act provisions relating

to proof of criminal capacity of children 10 to 14, diversion programmes and diversion service providers,

and regulations on 1 December 2017.

Choice on Termination of Pregnancy Act, 1996: The Amendment Bill 2017 proposes, amongst others, access to

ultrasound examinations and sufficient mandatory counselling to enable a pregnant woman to make a fully

informed choice. Note: The Memorandum is strikingly balanced, considerate of the practical situations of the poor,

and informative in simple terms.

Page 11

Competition Act:

(i) The terms of reference for a market inquiry into the private healthcare sector has been amended so

that the final inquiry report must be completed by 31 August 2018. The inquiry has been in operation

since 6 January 2014, which underlines the uncertainty created by inquiries that can be initiated and

amended at any time .

(ii) Reminder that the current SA Petroleum Industry Association conditional exemption (required to

ensure the continuity and stability of liquid fuels supply), and current Western Cape Citrus Producers

Forum short-term exemption (required to coordinate logistical, marketing and sales support), both end on

31 December 2017.

Customs and Excise Act: Guidelines/rules/conditions/application gazetted for rebate item 460.17/87.03/04.04

permits. This relates to certain types of vintage and/or internationally collectable motor vehicles.

Electronic Communications Act: The comment deadline for the Draft Amendment Bill 2017 has been extended to

31 January 2018. You may also wish to revisit the past overview .

Electronic Deeds Registration Systems Bill: The Bill 2017 proposes that the registration, execution and filling of

deeds and documents prescribed by the Deeds Registries Act and Sectional Titles Act continue under those laws

until the EDR system is in place.

Financial Sector Regulation Act: The Insurance Bill version B proposes amending the Act by making changes to

the definition of eligible financial institution, financial product, financial sector law, and responsible authority .

Foodstuffs, Cosmetics and Disinfectants Act: The Draft Animals Protection Bill 2017 proposes prohibiting the sale

or manufacture of any cosmetic, which has been tested on an animal in the Republic. Note: The Bill also proposes

related special defences, SPCA inspector function, inspector powers, penalties, and forfeiture changes .

Insurance Bill: Version B of the Insurance Bill has replaced the original version .

Page 12

Marine Living Resources Act: The recreational fishing permit, and closed season, periods for West Coast Rock

Lobster have been amended.

Marine Spatial planning Bill: The Bill proposes, amongst others, the documentation, mapping and understanding

of the physical, chemical and biological ocean processes and opportunities in, and threats to, the ocean.

Medical Schemes Act: Contractual, administrative or intermediary service providers to medical schemes, and

medical schemes, note the prohibition on certain practices that influence trustee voting (that applies from 5

December 2017).

Medicines and Related Substances Act :

(i) The draft bonusing regulations propose clarifying the prohibition on the supply of any medicine,

medical device or IVD subject to a bonus system, rebate system or incentive scheme. Comment deadline

1 March 2018.

(ii) Opportunity has been given to comment by 1 March 2018 on the proposed review of the guidelines

for pharmacoeconomic submissions.

National Environmental Management Waste Act: Notice has been given that certain persons that commercially

manufacture, convert, refurbish or import new or used prescribed goods (i.e. paper or packaging material; lighting

equipment; electrical and electronic equipment; or goods wrapped in primary or secondary packaging) intended

for distribution within SA must register as a producer by 6 February 2018, and must furthermore submit an industry

waste management plan or subscribe to an approved plan within the prescribed timelines. Note: A plan must

cover 23 prescribed areas (e.g. identify any incentives to encourage good waste management by end-users) .

National Health Act: New public and private emergency medical services regulations commenced 1 December

2017

Page 13

National Regulator for Compulsory Specifications Act:

(i) Amendments have been proposed to the circuitbreakers specification (VC8036) definitions,

and evidence of conformity, provisions. Comment deadline 1 February 2018.

(ii) A draft specification VC8014 has been gazetted (manufacture, production, processing and treatment

of canned fish, canned fish products, canned marine molluscs, canned marine molluscs products, canned

crustaceans and canned crustaceans products).Comment deadline 1 February 2018.

Public Finance Management Act: A draft standard for the varied application of generally recognised accounting

principles 18, 20, 32 and 105 to 110 to municipalities, public entities etc has been gazetted. Comment deadline

22 December 2017.

Public Funding of Represented Political Parties Act: The Political Party Funding Bill 2017 proposes repealing this

Act.

Public Service Act: Section 38(2)(b)(i) declared unconstitutional. “…empowers the State, as employer, to recover

monies wrongly paid to its employees directly from salaries or wages without due process or agreement”.

Recognition of Customary Marriages Act: On polygamous customary marriages concluded before 15 November

2000, note Constitutional Court 194/16 (relating to the section 7(1) invalidity being suspended for two years, order

on property consequences during suspension order, and exceptions to the property consequences order).

Refugees Act: The Refugees Amendment Bill 12D of 2016 proposes overhauling the Act, including making it an

offence for an employer or educational institution to fail to give a prescribed letter 14 days after an asylum seeker

with a visa has been employed or enrolled. Note: This Bill must be read with Amendment Acts 33 of 2008 and 12

of 2011 (that have not commenced yet) .

Short-term Insurance Act: Reminder that contracts that fall within part 7 (contracts identified as accident and

health policies), and entered into before 1 April 2017, must comply with part 7 by 1 January 2018 .

Page 14

Standards Act: New, proposed amended, and withdrawn standards have been gazetted for December

2017 (notice 1 and notice 2). Note: Generally related laws may in certain circumstances involving standards

include, for example, section 55 of the Consumer Protection Act, the Occupational Health and Safety Act,

the National Regulator for Compulsory Specifications Act, the Agricultural Products Standards Act, and/or

the Competition Commission and SABS MoU.

Tax Administration Act: Tax Administration Act: New deadline to file returns under the notice requiring submission

of country-by-country, master file and local file returns. Now 28 February 2018 for reporting fiscal years

commencing before 1 March 2016.

Value-added Tax Act: Reminder that the current cessation date for section 18B (temporary letting of fixed

property) is 1 January 2018.

Back to index

Page 15

SAIPA member log-in details and support

Please DO NOT register on Hwww.gazette.co.zaH if you are a SAIPA member (unless you wish to add a non-SAIPA

member) as SAIPA has given members full access to the website.

To access Hwww.gazette.co.zaH simply use the following:

▪ Username: first initial + surname + last two digits of membership number (e.g. pstassen32)

▪ Password: full membership number (e.g. 5432).

Contact [email protected] for log-in queries or if you wish to change your personal details. Please note that

if you are not receiving the newsletter twice a month you may need to ask your IT department to check whether

it is being blocked by your IT systems or check that SAIPA has your newest email address.

Kind regards,

SAIPA Technical and Standards Department

Back to index