Post and Telecommunication-related Matters Act, 1958 (Act No. 44 of 1958)Chapter IA : Successor Company4. Transfer of telecommunications enterprise to successor company |
[Heading substituted by section 31 of Act No. 22 of 2011]
| (1) | On a date determined by the Minister by notice in the Gazette— |
| (a) | [Subsection (1)(a) deleted by section 31 of Act No. 22 of 2011]; |
| (b) | the telecommunications enterprise shall be transferred to the telecommunications company, from which date the telecommunications company shall, subject to the provisions of any other law, have the exclusive power to conduct the telecommunications service. |
(2)
| (a) | The value of the assets and liabilities of the enterprise transferred in terms of subsection (1) shall be determined by the Minister with the concurrence of the Minister of Finance, and the net asset value of the enterprise shall likewise be determined, regard being had to the obligations imposed upon the postal company and the telecommunications company by section 12U. |
| (b) | For the purposes of the Income Tax Act, 1962 (Act No. 58 of 1962), or any other law in terms of which a tax or levy may be imposed, it shall be deemed that expenses were actually incurred by the successor company in acquiring the assets transferred to it in terms of subsection (1) and that, notwithstanding the provisions of any other law, the expenses concerned, including the cost of the assets, are equal to the value determined in terms of subsection (2)(a). |
[Subsection (2) substituted by section 31 of Act No. 22 of 2011]
(3)
| (a) | In so far as the telecommunications enterprise have the use of State land immediately prior to the date referred to in subsection (1), such land shall on the said date pass to the telecommunications company, and it shall be deemed that such land was on the said date sold by the State President in terms of the provisions of the State Land Disposal Act, 1961 (Act No. 48 of 1961), to the company. |
[Subsection (3)(a) substituted by section 31 of Act No. 22 of 2011]
| (b) | Notwithstanding the provisions of section 5 of the State Land Disposal Act, 1961, and section 18 of the Deeds Registries Act, 1937 (Act No. 47 of 1937), a registrar as defined in section 102 of the Deeds Registries Act, 1937, shall, on submission to him or her of a certificate by the Ministers of Public Works and Land Affairs that State land has passed in terms of paragraph (a), free of charge make such entries and endorsements as he or she may deem necessary in or on any relevant register, title deed or other document in his or her office or laid before him or her, in order to effect the transfer in the name of the company. |
[Subsection (3)(b) substituted by section 31 of Act No. 22 of 2011]
| (c) | [Subsection (3)(c) deleted by section 31 of Act No. 22 of 2011] |
(4)
| (a) | Any servitude, other real right or lease existing immediately before the date referred to in subsection (1) in favour of the State, the department or the Director-General and which is exercised in favour of the telecommunications enterprise shall on the said date pass to the telecommunications company. |
[Subsection (4)(a) substituted by section 31 of Act No. 22 of 2011]
| (b) | The registrar as referred to in subsection (3)(b) shall, on submission to him of a certificate by the Minister of Public Works and Land Affairs that a servitude, other real right or lease has passed in terms of paragraph (a) or that a servitude exists over State land which has passed in terms of subsection (3)(a), free of charge make such entries and endorsements as he may deem necessary in or on any relevant register, title deed or other document in his office or laid before him, in order to— |
| (i) | register the passing of the servitude, other real right or lease to the company in terms of paragraph (a); or |
[Subsection (4)(a)(i) substituted by section 31 of Act No. 22 of 2011]
| (ii) | confirm the existence of the servitude in favour of any other person, over the State land which has so passed. |
(4A)
| (a) | Subject to the provisions of paragraph (b), the successor company shall have the right to use its immovable property for the purpose for which the department used the property concerned on the date immediately prior to the date mentioned in subsection (1) of for which it was intended to be used on that date. |
[Subsection (4A)(a) substituted by section 31 of Act No. 22 of 2011]
| (b) | If land of the successor company has not bee zoned, or has in terms of an applicable township construction or development scheme, guide plan or statutory provision been zoned or intended for purpose other than those for which it is used on the date immediately prior to the date mentioned in subsection (1), the successor company concerned shall as soon as practicable conclude an agreement with the local authority responsible for the zoning or re-zoning of land in the area concerned with regard to the zoning or re-zoning of the land concerned for a purpose which is in accordance with the use thereof on the date immediately prior to the date mentioned in subsection (1): Provided that— |
| (i) | if such agreement has been concluded, that agreement shall be reduced to writing and the local authority concerned shall, if necessary, amend its township construction or development scheme or guide plan accordingly; |
| (ii) | if such agreement could not be concluded, the matter shall be referred to the Administrator of the province concerned, who may grant permission for or approval of the zoning or re-zoning concerned on such conditions as he may deem necessary. |
| (c) | The local authority— |
| (i) | with which any agreement in terms of paragraph (b) has been concluded; or |
| (ii) | within whose area of jurisdiction that land is situated, in the case of land referred to in paragraph (b)(ii). |
Shall record, in respect of the land concerned, the appropriate zoning, after which such zoning shall for all purposes be regarded as the zoning of such land.
[Subsection (4A) substituted by section 31 of Act No. 31 of 2011]
| (5) | The Minister shall in all litigation whatsoever, including arbitrations, to which the Minister is a party, be substituted as the party to the suit— |
| (a) | [Subsection (5)(a) deleted by section 31 of Act No. 31 of 2011]; |
| (b) | by the telecommunications company with effect from the telecommunications transfer date in the case of litigation pertaining to the telecommunications enterprise. |
| (6) | The successor company may apply for the registration of any registerable right relating to intellectual property or inventions (including the registration as patents of patentable inventions) transferred by the State in terms of this section to the successor company. |
[Subsection (6) substituted by section 31 of Act No. 31 of 2011]
| (7) | The Registrar of Trade Marks shall make such entries, notes and endorsements as he or she may deem necessary in or on any relevant register, certificate or other document in his or her office or submitted to him or her so as to effect the transfer of trade marks to the telecommunications company in terms of this section, and may request the company to submit or produce to him or her such information or document as he or she may deem necessary for such purpose. |
[Subsection (7) substituted by section 31 of Act No. 31 of 2011]
| (8) | If any doubt arises as to whether anything for the purposes of this Act pertains to or is connected with the telecommunications enterprise, the department or anyone else, the decision of the Minister shall be conclusive. |
[Subsection (8) substituted by section 31 of Act No. 31 of 2011]
(9)
| (a) | The successor company may establish subsidiary companies of which the successor company shall be the sole member and shareholder and shall allow the assignments, substitutions and transfers contemplated in this section to be made to such subsidiary. |
| (b) | The provisions of this Act applicable to the successor company, shall apply mutatis mutandis to the subsidiary thereof while the successor company is the sole member and shareholder of the subsidiary. |
[Subsection (9) substituted by section 31 of Act No. 31 of 2011]
| (10) | No stamp duty, transfer duty or any other tax or levy shall be payable in respect of the transfer of the telecommunications enterprise in terms of this section. |
[Subsection (10) substituted by section 31 of Act No. 31 of 2011]
| (11) | Any officer in the employment of the successor company shall be deemed to be an officer in the service of the State for the purposes of section 7 of the State Land Disposal Act, 1961 (Act No. 48 of 1961), and section 24 of the Expropriation Act, 1975 (Act No. 63 of 1975). |
[Subsection (11) substituted by section 31 of Act No. 31 of 2011]
[Section 4 inserted by section 5 of Act No. 85 of 1991]