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Virusha Subban

Virusha Subban is a Partner in Baker McKenzie, Johannesburg office.

The introduction of an augmented and accelerated capital expenditure deduction for the cost of constructing renewable energy infrastructure in South Africa is a boon for companies that have not yet reached their Environmental, Social and Governance goals. It provides the opportunity to undertake reportable ESG initiatives and simultaneously enjoy a reduction in tax costs. Fully leveraging this opportunity will require a comprehensive understanding of the mechanics of amended incentives and the dynamics of ESG reporting.

The main objectives of the African Continental Free Trade Area (AfCFTA) agreement are to create a single continental market for goods and services with free movement of business persons and investments, and thus to pave the way to accelerate the establishment of a customs union in the future.
The AfCFTA agreement has the ultimate goal of increasing the ease of trade and investment across African borders as well as eliminating tariffs on intra-African trade, reducing unemployment, increasing infrastructure development and creating a more competitive and sustainable environment for cross-border trade.
The AfCFTA entered into force on 30 May 2019, and trade under the AfCFTA started on 1 January 2021.

As a top producer of numerous critical mineral commodities, Africa is set to benefit from the rapid increase in the rate of global energy transition, with the continent’s mining industry playing a role in sourcing and supplying these critical minerals for use in clean energy initiatives. Exporting these critical minerals as raw materials, however, reduces Africa’s trading position to one of price takers, and the current disruptions in global supply chains are hampering the trade of these commodities in Africa, with mining companies subject to long delays and higher costs. The African Continental Free-Trade Area, implemented in 2021, acts as a strong impetus for African governments to address their infrastructure gaps, streamline their supply chains, boost their manufacturing capacity and overhaul regulation relating to trade, cross-border initiatives, investment-friendly policies and capital flows.

The strengthening partnership between the United States and Africa is having a positive impact on the myriad of trade and investment opportunities created by the African Continental Free Trade Area. At the recent US-Africa Leaders’ Summit in Washington, DC in December 2022, a number of exciting initiatives and investments were announced by the US to boost two-way trade and investment between the two regions.

The implementation of Pillar 2, a principal rule of the Organization of Economic Cooperation and Development’s 15% global minimum tax proposal, has been debated for several years. Recently, Japan took a firm step towards affirming its adoption of Pillar 2 when the country outlined its 2023 Tax Reform Package, which included the implementation of the 15% global minimum tax. The Package also introduced an Income Inclusion Rule that in broad terms, aligns with the Global Anti-Base Erosion (GloBE) Model Rules, expected to become effective in 2024. This affirmative step by Japan puts some pressure on other states that have committed to implementing the GloBE rules, particularly in the European Union (EU), the United States (US) and South Africa.

This article explores the scope of the South African Revenue Service’s (SARS) direct and substantial interest in the case of “Commissioner: South Africa Revenue Service: In re: Cyril and Another v Additional Magistrate, Magistrates Court for Region of Alexander.” This case confirms that SARS has a direct and substantial interest in the evidence admitted in a review application stemming from criminal proceedings under the Customs and Excise Act. It further confirms that there is no time limit for intervention applications.

The African Continental Free Trade Area Agreement (AfCFTA) recently launched the Guided Trade Initiative to test meaningful, continuous trade under AfCFTA and to assist in the development of shorter, regional value chains that will allow for more climate-resilient, sustainable trade across the continent. But for Africa to make the most of free trade, it is essential that large gaps in continent-wide infrastructure and manufacturing be developed in a sustainable way.

There are many examples of non-resident shareholders of South African companies failing to endorse their shares. This constitutes a breach of South Africa’s Exchange Control Regulations and may be subject to penalties and/or imprisonment. This endorsement should be carried out as soon as possible after the acquisition of shares, and if this was not done, it should be rectified straight away.

Carbon tax was introduced in 2019 to assist South Africa to deliver on commitments made in the Paris Agreement in 2015. This tax is expected to increase in the years ahead, and carbon-intensive businesses have spoken out about the negative impact of this tax on their bottom lines, especially as they continue to recover from the pandemic and invest in energy transition infrastructure. As the clean energy industry grows, so does the need for specific incentives or legislation to deal with certain spin-offs from the measures introduced to reduce exposure to carbon tax. As such, more policies that incentivize the reduction of carbon emissions and the transition to clean energy are likely to be announced in the coming years.