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COMPANIES AND INTELLECTUAL PROPERTY COMMISSION (CIPC)

    • Company registration
       Personal liability company This is a private company operating for profit. Its Memorandum of Incorporation (MOI) must state that it is a personal liability.
       Private company A private company trades for a profit. It may not offer its shares to the public and the transferability of its securities is restricted.
       Non Profit Company A non – profit business (previously known as a Section 21(b) company). It must have a public benefit as its object or an object relating to cultural, social, communal or group interest.
      Co-operative
      Updating your company details at CIPC
       Changing directors
       Registered address
       Appointment and Change of auditors
       Financial year end
       Company name change
       Memorandum of Incorporation update
       Special MOI
      Annual return
      All companies (including external companies) and close corporations are required by law to lodge their annual returns with CIPC within a certain period of time every year.
      An annual return is a statutory return in terms of the Companies and Close Corporations Acts and therefore MUST be complied with.
      Failure to do so will result in the Commission assuming that the company and/or close corporation is not doing business or is not intending on doing business in the near future. Non-compliance with annual returns may lead to deregistration, which has the effect that the juristic personality is withdrawn and the company or close corporation ceases to exist.
      CIPC now requires Companies and Close corporations to lodge their annual turnover, as reflected on their financial statements, so as to calculate the annual return to be paid. Failure to lodge the correct information constitutes a criminal offence.
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DRAFTING AND ASSISTANCE WITH YOUR LAST WILL

A will stipulates how the assets accumulated during your lifetime should be distributed when you die.
It enables you to select your heirs and also allows you to choose the executor of your estate. But, above all, it represents financial peace of mind to those you leave behind.

Why Do I Need a Will?

Every competent person of 16 years and older who owns assets and is mentally able to understand the results of his or her actions, should have a will. Why? If a person dies without a will, it could lead to severe administrative, tax and legal problems and possibly also lead to financial losses.

A will should comply with certain legal requirements to be valid. In your will, you determine how your assets should be divided, and nominate an executor and trustee to take care of the division of the estate’s assets and to handle the administration of any trust assets.

You have the right to name heirs as you wish in your will. If you don’t, your assets will be divided in terms of the Intestate Succession Act, No 81 of 1987, following your death. This could mean that persons you would have preferred not inherit from you, could inherit.

Your will therefore determines the future of everything that you’ve built up through the years – and your heirs can be directly disadvantaged if you don’t plan correctly. Estate duty, income tax, VAT and capital gains tax (CGT) can take a big chunk out of your estate if your planning is wrong. It thus goes without saying that you should get the advice of a specialist or adviser for the drafting of your will.

Why choose us to draft your will

  • We will address your needs and requirements and advise accordingly;
  • We will provide a preliminary valuation of your assets and draft a will to the extent that you will pay the minimum amount of Estate Duty Tax, if any;
  • We have experience dealing with the Master’s office and know which pitfalls to avoid;
  • We will hold your Will in safekeeping and you may review it and amend same as needed, at no additional cost;
  • We will draft your will free of charge in the instance where we are appointed as the executor of your estate;

DECEASED ESTATES - WHAT TO DO WHEN A LOVED ONE HAS PASSED AWAY?

A deceased estate comes into existence when a person dies. Such estate must then be administered and distributed in terms of the deceased’s will or Intestate Succession Act. The estate of a deceased person must be reported to the Master within 14 days from date of death. If the estate exceeds R250 000.00, the full process prescribed by the Administration of Estates Act must be followed.

Contact our offices if you need assistance in the process or have any questions.

WHO MUST REPORT EMPLOYMENT EQUITY?

  • All designated employers with 50 or more employees.
  • Employers with fewer than 50 employees who are designated in terms of the turnover threshold applicable to designated employers.
  • Employers, who have become newly designated on or after the first working day of April, but before the first working day of October, must only submit its first report on the first working day of October in the following year.
  • Employers who voluntarily wish to comply in terms of section 14 of the EE Act.
  • All designated employers must report every year.

If you are still unsure or require help with the report at the Department of Labour, contact our offices.

LEGAL CONTRACTS

A contract is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them. This can protect both parties in the future when matters are uncertain or no longer pleasant between the parties.

To ensure both parties are clear about what is expected from them and to protect yourself, contact our offices to arrange a meeting.

SARS REGISTRATIONS

  • Income tax
  • Pay as you Earn
  • UIF
  • Compensation Commissioner
  • Import – Export
  • VAT

TRUSTS

Types of trusts

  • Family trust
  • Investment trust
  • BEE employee share trust
  • Special and charitable trusts
  • Trust amendment
  • Dissolving of a trust

Information about trusts in general


WHAT IS A TRUST?

A trust is the arrangement through which control and ownership in property is by virtue of a trust instrument made over or bequeathed to another person or persons (the trustees) for the benefit of beneficiaries. There must be separation between control and enjoyment of the trust property.

WHAT IS A TRUST INSTRUMENT?

The existence of a trust is found in a written document in terms of which the initial trust property is identified and transferred to trustees. This can be amended if needed at a later stage, by following the correct proses.

WHO ARE THE PARTIES TO A TRUST?

The trust has 3 main parties, namely the settlortrustees, and beneficiaries.

SETTLOR

The trust is formed by a person (known as the settlor) making over, by way of donation, a nominal sum of money to trustees. This act of making over assets to trustees, combined with the trustee’s acceptance of such assets, forms the trust.

TRUSTEES

A trustee is the person who has bare ownership of the trust assets and who administers the assets on behalf of the beneficiaries. A trust must have at least one trustee. The property to be held in trust must be made over to the trustees who hold this property for the benefit of the beneficiaries.

Trustees will have ownership of all trust property, but will not personally benefit or enjoy the trust property. (However the trust property will not form part of the personal estate of the trustee in his or her capacity as such). A trustee must act in all trust matters with the utmost good faith observe all duties imposed in terms of the law and trust deed. A trustee must actively participate in the affairs of the trust. The trustee can only act as trustee if authorized in writing by the master.

In performing the duties and exercising the powers of trustee, a trustee must act with the care, diligence and skill that can be reasonably be expected of a person who manage the affairs of another.

A trustee must deposit all money that is received in a separate trust account. (The trust account can be opened once the trustees receive their letter of authority from the master). The trustees must keep the financial records in order. A trustee can resign by following the necessary steps.

BENEFICIARIES

The beneficiary is the person who has certain rights in terms of trust property, the person who receives the enjoyment of the trust property. A trust must have at least one beneficiary. The trustee and the beneficiary cannot be the same person. Exactly what rights the beneficiary has must be ascertained from the trust deed. There can be distinguished between income beneficiaries and capital beneficiaries. Until the trustees have exercised their discretion, a discretionary beneficiary only has a hope that some benefit will be received by such beneficiary in the future. The beneficiaries of the trust must be ascertained, defined or ascertainable, or the impersonal object of the trust must be clearly defined.

THE MASTER OF THE HIGH COURT

All trusts should be submitted at the Master of the High Court. The Master in whose jurisdiction the trust property shall be kept shall have jurisdiction.

TRUST AND AUDITS

There is no statutory obligation to appoint an auditor, but the master often insists on the appointment. It can still be stated in the trust deed that it is not required to be annually audited.

TRUST PROPERTY

Trust property is defined as movable of immovable property. It must be clearly indicated in the financial records what property is held by trustees. Trust property is used to determine which Master’s office has jurisdiction over the trust and where same should be submitted. It should be noted that the trustees do not beneficially own trust property and thus the trust property will not form part of the personal estate of a trustees in his capacity as trustee.

TRUST RECORDS AND DOCUMENTS

All trust documents should be kept for 5years after the termination of the trust.
Trust documents include:

  • Ownership of the trust property
  • Investment of trust property
  • Shares held in companies
  • Location of trust property
  • Acquisition and disposal of trust property
  • Distribution of trust property
  • Administration of trust property

FAMILY TRUST

A family trust is a trust that is designed to secure the interests and protect the property of a group of family members. It must be properly controlled and administered by independent trustees.

The High Court of South Africa has recently handed down judgment in terms of which the Master of the High Court was instructed not to issue Letters of Authority in the instance of family trusts, save where at least one independent trustee is to be appointed, in conjunction with the other trustees, as the Court requires a clear separation between ownership and enjoyment of trust assets.

ESTABLISHMENT OF THE TRUST

The making over of an asset to the trustees forms or establishes the trust. The trust is arguably not formed until the asset is actually received by the trustees. It is therefore extremely important for the trust bank account and the trust records to indicate that the monies have been paid to, and received by the trustees.

ADVANTAGES OF A TRUST

  • Flexibility:
    A discretionary trust is extremely flexible, and can be administered to take into account changes over time in family, financial and legislative circumstances.
    This means the trustees can manage the trust’s assets in the best interest of the beneficiaries at any particular time by taking into account all relevant factors. This flexibility caters for such uncertainties as divorce, insolvency, increase in family size or fortunes, and of course annual changes to tax legislation.
  • Tax planning:
    If created and operated with care and with appropriate advice from tax experts, a trust can be administered so as to mitigate taxes such as estate duty, income tax, capital gains tax, donations tax and transfer duty (depending on the relationship between the settlor – the person who establishes a trust and transfers assets into it – and the beneficiaries) for both the settlor and the beneficiaries.

The assets owned by the trust will not be subject to estate duty, capital gains and executor’s fees on the death of the settlor.

  • Estate and succession planning:
    Trusts provide for the creation of flexible succession arrangements.

 

Also, the assets owned by the trust will not be subject to cumbersome and often lengthy legal procedures after your death, as is the case with the administration of assets in your personal estate. Trust assets are accessible at all times, while assets in your personal estate are frozen during the estate administration process.

  • Family asset management:
    A trust can provide a centralised asset management structure and controlled distributions for beneficiaries who are not in a position to manage assets themselves. This may be due to minority, disability or prodigality. A trust can provide for joint ownership of indivisible assets like holiday homes and farms.

 

Should the estate owner subsequently be mentally incapacitated through sickness or injury, a trust prevents the need for the appointment of a curator bonis (a person appointed by a court to manage finances) to take care of the founder’s affairs.

  • Asset protection:
    A properly set up and administered trust can help a family to protect assets from potential creditors, although care must be taken to ensure that transfers of property are not made in such a way as to prejudice creditors.

 

The manner in which assets are transferred is also important and relevant to the extent of the protection. For example, if you transfer an asset on a loan account, the amount of the loan account will remain an asset in your estate until the trust repays you. That means that the amount of the loan account will not be protected from creditors, only the increase in the value of the asset during the period of the trust’s ownership of the asset.

However, over a period of time, as the value of the trust’s assets goes up and the value of your loan account goes down, so will the benefit of asset protection be established. Remember also that the ownership of the asset by the trust also means that it will not fall into your beneficiaries’ personal estates on your death, is the asset will be protected from creditors of your beneficiaries.

  • Choosing the right trustees:
    By choosing your trustees wisely, you can ensure professional asset and investment management and that your assets are taken care of when you are not around or able to look after them yourself.

 

POTENTIAL DISADVANTAGES INCLUDE THE FOLLOWING:

  • The settlor will lose control of the underlying assets. To set up a valid trust, a settlor must intend to and actually transfer legal (although not beneficial) ownership of the trust assets to the trustees.
    This means that the trustees then must administer and control the trust assets.
  • The security the settlor then has regarding the management of the assets is that the trustees are legally bound to comply with the terms of the trust deed and with their fiduciary duties.
    This means that the trustees may only distribute assets to the beneficiaries as defined in the trust deed, and in the manner it prescribes. They are also obliged at all times to act in the best interests of the beneficiaries.
  • Higher tax rates apply to income and gains retained by the trust. Capital gains tax is payable in the trust at an effective rate of 20%, and there are no abatements. Income retained in a trust is taxed at 40%. However, accurate application of the anti-avoidance provisions and income splitting can facilitate overall tax savings rather than additional tax.
  • Taxes and costs incurred in setting up the trust and transferring the assets to it. You need to assess whether these costs are outweighed by the long-term benefits.
  • Establishing a trust generates additional administrative costs and complexity in your affairs. It can be difficult to find dedicated and knowledgeable independent trustees. And if not set up and administered properly, you run the risk of the trust being regarded as a sham (or as not having been established in the first place), in which case the benefits of asset protection may be lost.

In summary, trusts are not appropriate for everyone. However, if set up and administered properly, they still provide real and substantial advantages which could benefit you and your family.

LABOUR LAW

IMPORTANCE OF FOLLOWING THE CORRECT PROCEDURE

Employers should always ensure that they are aware of, and that they follow, the correct procedure when taking disciplinary action against an employee. A distinction must be made between misconduct and poor work performance.

  • The Disciplinary procedure applies to misconduct;
  • Evaluation, counselling training and guidance procedure applies for incapacity – poor work performance.

Following the wrong procedure will result in losing a case instituted by the aggrieved employee at the CCMA.There is a general perception that the CCMA is not totally impartial, and despite following a fair procedure, and dismissing for a fair reason, the Commission may still rules in favour of the employee.

Even though there may be a valid reason for dismissal, the employer must always ensure that they follow a fair procedure, including providing the employee with an opportunity to state his case.

Having proper policies and procedures in place, and following such policies and procedures, may ensure that employers stay out of the CCMA, or as the CCMA is easily accessible and free of charge to employees, win the cases instituted against them.

IMPORTANCE OF FOLLOWING THE CORRECT PROCEDURE

  • Drafting of Company Policies, in keeping with Labour Legislation;
  • Assistance with disciplinary hearings, drafting of warnings, retrenchments, recordkeeping;

CIDB REGISTRATIONS

Assistance with and tracking of CIDB registration for the different levels, as well as renewals.

CREDIT SEARCH

We are able to assist with same day credit searches for individuals, Companies and Close Corporations.

Contact Our Specialists

Janine Snyman (Legal Specialist)
e: janine@AmaxSA.co.za

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If you are in need of legal assistance/services please feel free to log a service request and we will get back to you.