What the dickens is money?

Craig Dewar 
Craig Dewar is a senior associate in ENSafrica's banking and finance department. This article was reviewed by Angela Itzikowitz, an executive in the firm's banking and finance department. Contact them at [email protected].

"'Papa! What's money?'

Mr Dombey was in a difficulty. He would have liked to give him some explanation involving the terms circulating-medium, currency, depreciation of currency, paper, bullion, rates of exchange, value of precious metals in the market, and so forth; but looking down at the little chair, and seeing what a long way down it was, he answered: 'Gold, and silver, and copper. Guineas, shillings, half-pence. You know what they are?' 'Oh yes, I know what they are,' said Paul. 'I don't mean that, Papa. I mean what's money after all?'"

- Dombey and Son, Charles Dickens

In this article, we attempt to answer Paul Dombey's question to his father by providing an overview of the various kinds of "money" (including cash, bank and electronic money, and virtual currency) in the South African context.

For present purposes, we attribute to money its widest meaning, namely, any tangible or intangible thing that functions as a means of exchange or debt settlement, a measure of value, a unit of account or as a store of value.

Money, in its simplest form, is cash or currency that (subject to its meeting certain criteria set out in the South African Reserve Bank Act, 1989) constitutes "legal tender", namely, physical coins or notes issued by the South African Reserve Bank (SARB) that must (if tendered) be accepted by a creditor in discharge of a debt. Payment in cash entails the physical transfer of the coins or notes from the payer to the payee, coupled with the intention of the payer to transfer his or her ownership therein.

Intangible money (or "bank money"), in essence, constitutes a credit against an asset account held at a bank, convertible into cash or currency by the bank on demand. Although bank money does not constitute legal tender, it is the most commonly used (and convenient and secure) form of payment, particularly for large transactions. Payment is initiated by way of a payment instruction, which is then cleared and settled among participant banks in the national payment system, each of whom hold an account at the SARB.

This entails a series of debits and credits, ultimately resulting in a debit to the bank account of the payer and a credit to the bank account of the payee. The payer does not cede or transfer his or her claim against the bank to the payee; rather, the payer's claim is extinguished or reduced, and the payee's claim is created or increased in exchange. If the payer and payee hold accounts at separate banks, corresponding debits and credits occur between the two banks.

A variant of bank money is electronic money or "e-money". In its Position Paper on Electronic Money, the SARB defines electronic money as follows:

"Monetary value represented by a claim on the issuer. This money is stored electronically and issued on receipt of funds, is generally accepted as a means of payment by persons other than the issuer and is redeemable for physical cash or a deposit into a bank account on demand."

Forms of electronic money include the monetary value used to execute payment transactions over the internet or mobile phones, as well as that stored on certain pre-paid instruments.

Electronic money is distinguishable from the following, among others:

  • a credit card with an embedded credit facility (in that a credit card is not issued on receipt of funds);
  • pre-paid cards that are not generally accepted as a means of payment; that is, they can be used to acquire goods or services only in or on the issuer's premises or under a commercial agreement with the issuer, either within a limited network of service providers or a limited range of goods or services; and
  • subject to certain exceptions, pre-paid cards that have a monetary value irredeemable for physical cash or for a deposit into a bank account on demand.

In South Africa, only a registered bank (as defined in the Banks Act, 1990) may issue electronic money. An example of electronic money is the monetary value "loaded" on a pre-paid smart or chip card. For a non-bank commercial entity wishing to offer such a card to its customers, it must first be "sponsored" by a registered bank, which grants it the right to receive and advertise for deposits as agent on the bank's behalf. The bank issues the card, bearing the entity's brand on its face and on the back, the words "operated by [entity name] under the banking licence of [name of bank]" or words to this effect.Customer funds received by the entity may be held in a pooled account at the bank in the name of the bank, with various virtual sub-accounts or "e-wallets" for each cardholder. Payment is effected by way of debits and credits, either closed- or open-loop, depending on where the payee's account is held, or whether the payee has an e-wallet with the entity.

Craig Dewar

Another kind of money is virtual or digital currency, examples of which include Bitcoin, Ripple, Tether, Ethereum, and WingCash. There is no universal definition or taxonomy of "virtual currency", nor is there consensus on whether it constitutes "money" and whether (or to what extent) it should be regulated.

In its Position Paper on Virtual Currencies, the SARB defines a virtual currency as "a digital representation of value that can be digitally traded and functions as a medium of exchange, a unit of account and/or a store of value, but does not have legal tender status."

Other definitions include the following:

  • the European Central Bank: "a digital representation of value, not issued by a central bank, credit institution [ie bank] or e-money institution, which in some circumstances, can be used as an alternative to money".
  • the International Monetary Fund: "digital representations of value issued by private developers and denominated in their own unit of account".

Most virtual currencies are privately issued, although a number of central banks (including the SARB) have expressed an interest in the development of a national virtual currency. Virtual currencies may be centralised or decentralised, convertible or inconvertible (into real currency), self-anchored or in a claim-check format. So far as virtual currency is not redeemable against an issuer, it is not seen as deposit-taking under banking legislation, and is also unlike electronic money.

Tax updates in Ghana's 2017 Budget

Celia Becker 
Celia Becker is an executive in ENSafrica's Africa regulatory and business intelligence team in South Africa. Contact her at [email protected].

The Ghanaian Minister of Finance, Mr Ken Ofori-Atta, presented the country's 2017 Budget to Parliament on 2 March 2017. The Budget's theme is "Sowing the seeds for growth and jobs", and is aimed at strengthening Ghana's business environment, promoting fiscal discipline and stimulating investment in critical infrastructure in rural and deprived communities.

Despite the country's disappointing economic performance in 2016 (only 3.6% real GDP growth was achieved against the targeted 4.1%), the government had to deliver on its 2016 election campaign promises to reduce taxes, implement policies for free secondary education and provide jobs for the youth.

Free secondary education in all public senior high schools across the country will commence in September, when the 2017/18 academic year starts. In addition, the "One District One Factory" initiative, to be launched in 2017, was announced.

This is a comprehensive programme for rural industrialisation driven by the private sector and involves the establishment of at least one medium to large-scale factory in each of Ghana's administrative districts. The budgeted capital and operating expenditure of the programme amounts to GHS456.25-million (almost US$100-million).

The minister indicated that the government intends to eliminate what he terms "nuisance taxes", including the abolition of the 1% special import levy and duties on spare parts, the reduction of the National Electrification Scheme levy from 5% to 3% and the Public Lighting Services levy from 5% to 2%.

In an attempt to address the rising fuel price, excise duty on petroleum is to be abolished and the special petroleum tax rate is to be reduced from 17.5% to 15%, while the 5% value-added tax (VAT) on real estate is to be scrapped to spur growth in the real estate industry. Following lobbying by the financial services and airline sectors, the 17.5% VAT on financial services and domestic airline tickets will also be abolished.

To improve investment and strengthen Ghana's capital market, it has been proposed that the exemption from income tax for gains from the realisation of shares listed on the Ghana Stock Exchange (GES) be reinstated. This was scrapped by the Income Tax Act, 2015 and requires companies operating in the energy, oil and gas, financial services, telecommunications and mining sectors to list a minimum percentage of their shares on the GES within five years of commencing operations.

According to 2014 Ghana Statistical Service data, 3.4 million people are employed in Ghana, however, Ghana Revenue Authority (GRA) data indicates that about one million are registered as taxpayers. In order to bridge the gap, the government will take action to ensure that all employers file annual employee returns and that social security and employees' tax data are properly reconciled. As a result, employers can expect tougher audits of employees' tax returns in the coming year.

There is also renewed focus on broadening the tax base by formalising the economy through the re-launching of the national identification card system and rolling out a national digital address system. Although the National Identification Authority Act was passed in 2006 to mandate the issuing of national identity cards by the National Identification Authority, this has not yet been implemented. It is also expected that the Revenue Administration Act, 2016, which entered into force in January 2017, will aid in the identification of taxpayers in the informal sector.

A key focus area in combating tax evasion is building the capacity of the GRA's transfer pricing unit to fight transfer pricing abuses in the extractive sector and conduct integrated audits in free zones and specialised sectors. Although Ghana's Transfer Pricing Regulations were introduced in 2012, these have not been strictly enforced by the GRA.

To improve revenue collection under the VAT system, electronic point of sales devices will be deployed by the third quarter of 2017 to ensure that VAT collections are monitored on a real-time basis by the GRA. Full implementation of the 2013 Excise Tax Stamp Act will be carried out to boost revenue collection and curtail under-invoicing and smuggling.

The Excise Stamp Duty Act was due for implementation on 2 March 2015, but stakeholders have had challenges complying with the mechanisms adopted by the tax administration to implement the regime. The reintroduction of the 3% VAT flat rate scheme for retailers has been proposed in order to simplify compliance requirements and incentivise qualifying traders to register and comply with their VAT obligations.

A self-assessment system to enable taxpayers to prepare their own estimates was introduced in medium taxpayer offices and will also be piloted in five small taxpayer offices in 2017.To empower the local private sector, government intends to pass legislation to require that, over time, at least 70% of all government projects and procurement are to be executed by local corporations and enterprises, with specific provision made for entities owned by women, disabled people and those established under the Youth Enterprise Fund.

Celia Becker

The local content policy will focus on job creation and local value addition with emphasis on skills improvement by requiring, among other things, a job impact analysis of all qualifying projects that must demonstrate positive job creation with skills improvement and other local value addition according to strict criteria established by government.

Although many of the announced initiatives have been lauded as a step in the right direction to support the recovery of the Ghanaian economy, concerns remain regarding the sources of funding of such programmes. The minister admitted that excessive borrowing and financial indiscipline contributed to the current weakness of the economy and it is yet to be seen if the government will manage to bring spending under control during the next fiscal year.

Amnesty for cartel initiators/ringleaders in Mauritius

Shrivan Dabee and Valentine Mayer  
Shrivan Dabee and Valentine Mayer are associates at ENSafrica in Mauritius. This article was reviewed by Camille Desvaux de Marigny, an executive at ENSafrica in Mauritius. Contact them at [email protected].

The Competition Commission of Mauritius (CCM) is temporarily extending its leniency programme to initiators/ringleaders of cartels until 31 August 2017. To this effect, the CCM has amended its Guideline on Collusive Agreements (CCM 3).

Ordinarily, cartel initiators/ringleaders are excluded from the leniency programme and the CCM imposes an asymmetrically harsh penalty on them, in line with the absolute prohibition on cartel activities under sections 41 and 43 of the Competition Act, 2007.

However, under the temporary amnesty, cartel initiators/ringleaders and any other cartel participant may benefit from total immunity or up to 100% reduction in penalties.

If any cartel participant, including the initiator/ringleader, reports cartel activities in which it has participated before the launch of an investigation by the CCM, it may benefit from total immunity.

If a participant in a cartel comes forward after the launch of an investigation, it may benefit from up to 100% reduction in penalties.

Although the terms "initiator" and "ringleader" are not defined by the CCM or under the Competition Act, the CCM is likely to consider criteria such as the cartel participants' involvement in the leadership of the cartel, the organisation of the agreements and the enforcement of the agreements, as well as any coercive measures taken by a participant to determine whether a participant has acted as an initiator/ringleader of a cartel.

This means that it may be possible for the CCM to find that there is more than one initiator/ringleader in respect of a particular cartel.

Shrivan Dabee
Valentine Mayer

As such, a cartel participant may be deterred from coming forward under the normal leniency programme out of fear of being identified as the initiator/ringleader. By extending its leniency programme to all cartel participants, including initiators/ringleaders, the CCM believes that this apprehension may be reduced, thus making its leniency programme more attractive to all participants.

Automatic termination of employment in South Africa: allowed but not always clear-cut

Irvin Lawrence and Kara Barnard 
Irvin Lawrence is a director and Kara Barnard is an associate in ENSafrica's employment department in South Africa. Contact them at [email protected].

In the recent decision in Enforce Security Group v Mwelase Fikile and Others, the South African Labour Appeal Court was tasked with looking at the validity of an automatic termination clause in the context of a fixed-term employment contract.

In this matter, the employer, Enforce Security Group (Enforce), was a private security services provider contracting out security officers to its clients. The security officers were employed on the basis that their period of employment would endure until the termination of the service contract between Enforce and the client whose premises the employee would be assigned to. This type of provision is commonly referred to as an "automatic termination clause".

In this instance, the client gave notice of termination of the service agreement to Enforce and, pursuant to the automatic termination clause, Enforce terminated the employment of those employees based at the client's site.

The employees referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA). The Commissioner held that the contracts were "indefinite (period)" contracts where the period of employment could be determined with certainty. The Commissioner further found that the client's termination of the contract with Enforce led to an automatic termination of the employment contracts and there was therefore no dismissal.

The matter was taken on review to the Labour Court. The court overturned the CCMA's decision on the reasoning that "any contractual provision that infringes on the rights conferred by the [Labour Relations Act, 1995 (the LRA)] or Constitution is not valid, and even though the employee might be deemed to have waived his or her rights, such waiver is not valid or enforceable." The Labour Court further found that while Enforce may have had an obligation to embark on a retrenchment exercise, the termination of employment constituted a dismissal and this dismissal was substantively and procedurally unfair.

The matter was then taken on appeal to the Labour Appeal Court, where Enforce maintained its argument that the termination of the employees' contracts did not constitute a dismissal as defined in section 186(1)(a) of the LRA as the cause of the termination of employment was not an act of the employer, but an act of the employer's client. The Labour Appeal Court confirmed that an employment contract can be terminated in a number of ways that do not constitute a dismissal in terms of section 186(1) of the LRA, in particular, the termination of employment by the occurrence of a specific event.

The court held that the employment contracts were fixed-term contracts where the end of the fixed term was defined by the completion of a specific task or project; in this case, the termination of the contract between Enforce and its client.

As the client terminated the contract, there had been no direct or indirect act by the employer to cancel the employment contracts and although the employer could have retrenched the employees or considered other options, this did not negate the terms agreed to by the employer and the employees.

As such, the court held that automatic termination clauses based on an event indicated in a fixed-term contract are not necessarily invalid. The court cautioned that it is necessary to consider the circumstances of each case to determine if the clause is intended to circumvent the employer's obligations under the LRA.

In so doing, one must consider, among other issues, the precise wording, the context of the entire agreement, the relationship between the fixed-term event and the purpose of the contract with the client, whether it is left to the client to pick and choose who is to render the services under the service agreement, whether the clause is used to unfairly target a particular employee by the client or the employer, and whether the event is based on proper economic and commercial considerations. In this case, the court found that the automatic termination clause was not invalid and that its inclusion in the employment contracts did not automatically render the termination of the contract, based solely on its terms, a dismissal.

Irvin Lawrence
Kara Barnard

It is important for employers to carefully consider automatic termination clauses together with the abovementioned factors as it is these factors that are likely to be used to interpret the validity of such clauses.

As illustrated by this case, the interpretation and valid application of an automatic termination clause is not always clear-cut and employers should be mindful when adopting such clauses.

Navigating post-arbitral award procedures in Tanzania

Sinare Zaharan and Jacqueline Kapinga  
Sinare Zaharan is a partner and Jacqueline Kapinga is an associate at ENSafrica in Tanzania. Contact them at [email protected].

Post-arbitral award procedures in Tanzania are governed by a number of pieces of legislation, including the Arbitration Act, the Arbitration Rules, 1957 and the Civil Procedure Code (the CPC). The High Court of Tanzania is the only forum for the enforcement of arbitral awards. Below, we summarise the process for the filing, registration, enforcement and possible challenge to post-arbitral awards.

Filing and registration
Upon making an award, and at the request of a party in arbitral proceedings or any other person claiming an interest under the arbitration, the arbitrator or arbitral tribunal must cause the filing of a certified copy of the award, including evidence of the reference, the minutes of the proceedings and a copy of each notice given to the parties. These documents are put in a sealed envelope addressed to the Registrar of the High Court of Tanzania, with a letter requesting the Registrar to have the award filed in court.

At this stage, all outstanding fees and costs must have been paid to the arbitrator before he/she can be requested or compelled to file the award in court. This applies to both domestic and foreign awards. The filing may be done by the arbitrator himself/herself or any other person appointed by the arbitrator to do so. Notice of the filing must be sent to the parties in the arbitration.

The law has not only provided for the sealed envelope to be dispatched by registered post, but has also expanded the scope and manner of filing. In the Tanzania Cotton case, Judge Lubuva expanded the provisions of section 11(2) of the Arbitration Act, which mandate an arbitrator "upon request to cause the award to be filed in Court" to mean that the arbitrator can either file the award in court himself, or by instructing somebody else to do it on his or her behalf.

This means that the arbitrator's act of filing the award in the court transforms the private unenforceable arrangements (arbitration proceedings) into a fully enforceable decree of the High Court capable of being executed.

Enforcement proceedings
Formal proceedings subsequent to making the award start with filing the award. Upon filing the award in court, the Registrar of the High Court will notify the parties to show cause why the award should not be registered as a decree of the court.

In the absence of a challenge by any of the parties, the award, upon registration in court, will be enforceable as if it were a decree of the court. Upon a proper petition, the award may be enforced as a decree under the CPC or may be challenged and set aside where the person against whom it is sought to be enforced shows that the arbitrator or umpire has misconducted himself/herself or an arbitration or award has been improperly procured and serious irregularities affected the tribunal, the proceedings or the award.

Misconduct and serious irregularities include the negligent conduct of the proceedings by the arbitrator and behaviour that causes one or all of the parties involved to lose confidence in his or her abilities to settle the dispute out of court. If any of these grounds are proved, the court may set aside the award.

When an award is incapable of execution or leaves some points undecided or undetermined, or where the award has determined matter not referred to arbitration and the agreement to refer disputes to arbitration provided for giving reasons, the award can be remitted if reasons are not given. In these situations, the court is empowered to remit an award that cannot be separated from other matters in the arbitration to the arbitrator for reconsideration. Where the court has ordered such remittance, an arbitrator or umpire is required to make a fresh award within three months after the date of the order remitting the award. In this situation, the court's jurisdiction is confined to remitting the award for reconsideration. The court cannot take upon itself the duty to fill the gap left undetermined by the award while passing the decree on the award. If it does, the decree will be invalid.

Sinare Zaharan
Jacqueline Kapinga

In principle, there are no other legally accepted methods that an aggrieved party may use to challenge an award, other than making an application to set it aside or remit it. As a rule of law and practice, an arbitral award is final and binding; it cannot be appealed against, reviewed or revised. It may only be set aside or remitted, as set out above.

Sexual harassment in South Africa - who enforces the rules?

Pareen Rogers and Nils Braatvedt  
Pareen Rogers is a director and Nils Braatvedt is a candidate attorney in ENSafrica's employment department in South Africa. Contact them at [email protected].

Employers should act swiftly when dealing with allegations of sexual harrassment even if the parties have settled the matter.

The seriousness with which sexual harassment is viewed by the courts is illustrated by the Labour Appeal Court (LAC) decision in MEC for Education (North West Provincial Government) v Makubalo. This judgment emphasises the principle that the decision to discipline for instances of sexual harassment lies with management and the fact that the victim has "settled" the matter with the perpetrator does not prevent the employer from instituting disciplinary action. The seriousness with which this type of misconduct is viewed is also evident from the fact that the LAC accepted that the previous inconsistent application of discipline need not prevent the perpetrator from being disciplined.

This case concerned allegations of sexual harassment and financial mismanagement levelled against the school principal of Bafokeng High School. The principal, JMK Makubalo (Makubalo), was dismissed for financial mismanagement and three incidents of sexual assault that took place in 1998 and 2000 involving his subordinate, Dora Monegi (Monegi), a teacher at the school. Aggrieved by his dismissal, Makubalo referred an unfair dismissal dispute to the Education Labour Relations Council (ELRC). The arbitrator appointed to adjudicate the matter found Makubalo's dismissal to have been substantively fair. In coming to this conclusion, the arbitrator found that Makubalo had abused his position of power, as the school principal, over Monegi, his subordinate, and was guilty of sexually assaulting Monegi during visits to her home in 1998 and 2000. The arbitrator found that the evidence demonstrated that at the year-end party in 1998, Makubalo had held Monegi by the cheeks, kissed her and touched her genitals in the lounge in front of other people. In relation to the 2000 incident, Makubalo was found to have "grabbed Monegi around her buttocks and attempted to drag her out of the kitchen". The arbitrator also found that Makubalo had committed serious irregularities in handling school funds and that the trust relationship between Makubalo and the relevant member of the provincial executive council had been irretrievably severed.

Makubalo took the arbitrator's award on review to the Labour Court. The Labour Court found that the award had been well reasoned and that it was clear from the transcript of the arbitration proceedings that Makubalo had sexually assaulted Monegi. However, the Labour Court found that the arbitrator had failed to consider that the allegation of sexual harassment had been settled when the employee acknowledged his wrongdoing and apologised to his victim in a meeting that took place between the parties and a third party. The pre-arbitration minute accordingly recorded that the parties agreed that the allegations of sexual harassment were amicably resolved. In light of this, the Labour Court found that the arbitrator should have found the matter to have been settled insofar as the sexual harassment allegation was concerned.

The Labour Court also found that the arbitrator had failed to consider the issue of inconsistent application of discipline. In particular, the parties had agreed (again, in the pre-arbitration minute) that no disciplinary steps had been taken against another employee accused of the sexual assault of female learners in 1996. The Labour Court found that the arbitrator had therefore exceeded his powers by failing to find that the employer had applied discipline inconsistently.

The court took the view that Makubalo was guilty of financial mismanagement but that this alone did not warrant his dismissal. It ordered that he be retrospectively reinstated with full back pay. The employer took this decision on appeal to the LAC.

In relation to the defence Makubalo raised at the arbitration, that the sexual assault matter had been settled at the meeting with the third party, the LAC considered the nature of a pre-arbitration agreement and noted that, once signed, it is binding on the parties as well as the court (or appropriate dispute resolution tribunal). However, the court found that it appeared from the record of the arbitration proceedings that Makubalo's testimony contradicted the provisions of the pre-arbitration agreement.

Makubalo's version at the arbitration was that he was never guilty of sexual assault but had only asked his victim: "please forgive me if I have wronged you in the past and I forgive you if you have wronged me in the past." The LAC accepted the employer's argument that the "settlement" contained in the pre-arbitration minute was not related to the complaint before the arbitrator. Therefore, the arbitrator could not be faulted for finding that the pre-arbitration minute did not preclude the allegation of sexual harassment from being considered.

The LAC went further and noted that an employer is nevertheless entitled to take disciplinary action against an employee for contraventions of the accepted behavioural standards in the workplace. The resolution of a dispute between employees does not render that misconduct resolved from the employer's perspective. Indeed, misconduct of such a serious nature may impact the trust relationship and the employer has a duty in terms of the Code of Good Practice: Sexual Harassment to create and maintain a working environment in which sexual harassment is unacceptable.

The court went on to consider the issue of the inconsistent application of discipline. It stated that while the "parity principle" requires employees to be measured by the same standards, this is by no means decisive of the outcome on the fairness of a dismissal. The fact that another employee committed a similar transgression in the past but was not disciplined does not give an employee licence to commit serious forms of misconduct with impunity.

Makubalo was a senior employee in a position of authority. This, coupled with the seriousness of the allegations of sexual assault, required the employer to act decisively and apply the appropriate disciplinary mechanisms. It would have been patently wrong for the employer not to discipline such misconduct on the basis that it had previously failed to do so, especially considering the nature of the misconduct and the workplace within which it was committed.

The LAC accordingly found that the arbitrator had reached a decision that a reasonable decision-maker in the circumstances could have reached and that the Labour Court had erred in finding otherwise. Accordingly, the decision of the Labour Court was set aside and replaced with an order dismissing the employee's application to review the arbitration award.

Pareen Rogers
Nils Braatvedt

Employers should continue to act swiftly and appropriately when faced with sexual harassment allegations and should pursue disciplinary proceedings even if the alleged perpetrator and victim have purportedly settled the matter. The overriding consideration is acceptable standards of behaviour in the workplace and for the employer to ensure that it maintains a working environment that is free from all forms of harassment. Insofar as the issue of inconsistent application of discipline is concerned, this decision seems to suggest that there may be instances where this is justifiable and that this is but one factor to take into account when considering the overall fairness of the decision to dismiss. The application of the so-called "parity principle" is not a free licence to employees to commit acts of misconduct or to encourage unacceptable behaviour. A defence of the inconsistent application of discipline must be properly made for it to succeed.

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