South African Post Office SOC Ltd Act, 2011 (Act No. 22 of 2011)

Act No. and Year

Short Title

Extent of amendment or repeal

Act No. 44 of 1958

Post Office Act, 1958

Amendment of section 1—

(a)   by the substitution for the definition of "postal company" of the following definition:

" 'postal company' means the South African Post Office SOC Ltd, referred to in section 3(1) of the South African Post Office SOC Ltd Act, 2011;";

(b)   by the deletion of the definition of "postal enterprise";

(c)    by the deletion of the definition of "railway";

(d)   by the substitution for the definition of "successor company" of the following definition:

" 'successor company' means [a] the tele-communications company incorporated as con- templated in section 3(1), and for the purposes of the definition of "officer", and section 5, Chapter 1B and sections 12U and 12W includes the postal company.".

2.     Amendment of Chapter I by the deletion of the heading "POWERS AND RIGHTS OF THE DIRECTOR-GENERAL".

3.     Repeal of section 2.

4.     Amendment of Chapter IA by the substitution for the heading of the following heading:

"SUCCESSOR [COMPANIES] COMPANY".

5.     Substitution for section 3 of the following section:

"Incorporation of successor [companies] company

3. (1) On a date or dates preceding the [postal transfer date or the] telecommunications transfer date[, as the case may be], the Minister shall effect the incorporation in terms of the Companies Act of [two] a public [companies] company namely, [a postal company to conduct a postal service and] a telecommunications company to conduct a telecommunications service, which [companies] company shall bear [names] the name approved by the Minister, and the issue to [each] the company of a certificate to commence business.

[(2) The Minister shall on behalf of the State sign all documents that are required to be signed by the promoters of the companies.

(3) The Director-General—

(a) shall be appointed as the first director of each successor company and shall in that capacity in respect of each company sign the documents which are required to be signed by a director of the company for the purpose of incorporation of the company and the issue to the company of a certificate to commence business;

(b) shall occupy the post of director of a successor company until the date immediately preceding the transfer date concerned.]

(4) [Each successor] The telecommunications company —

(a) shall upon incorporation issue one share with a nominal value of one rand to the State;

(b) shall in its memorandum of [association] incorporation inter alia provide that [that successor] the telecommunications company and its subsidiaries—

(i)  shall have as its main object and main business [in the case of the postal company to conduct the postal service and in the case of the telecommunications company] to conduct the telecommunications service;

[(ii) shall not have the power to perform the following acts without the approval of the Minister granted with the concurrence of the Minister of Finance, namely—

(aa) the alienation or encumbrance by the company otherwise than in the normal cause of its business of assets of the company with a market value of more than 10 per cent of the market value of all the assets of the company;

(bb) the cessation or alteration of the main  object or main business of the company;

(cc)  the alienation of shares held by the company in any subsidiary thereof so that the company retains 50 per cent or less of the voting shares of the subsidiary;

(dd) the merger of the company with another company or the entering into of a partnership or joint venture by the company;

(c)  must have articles of association providing, amongst other things in the case of the postal company, that the affairs of the company must be managed by a board of directors appointed in terms of the articles of association;

(d) shall, apart from the shares referred to in subsection (4)(a) and sections 5(1) and 12U(4)(a), not issue any shares:

Provided that paragraphs (b)(ii), (c) and (d) shall not apply to the telecommunications company.

(5) Notwithstanding the provisions of the Companies Act, the postal company and the telecommunications company may have fewer than seven members.]

(6) The powers and duties of the State as a member and shareholder of [each] the successor company shall be exercised and performed by the Minister.

[(7) A successor company shall not  conduct any business and shall not acquire any assets, liabilities, rights or obligations prior to the transfer date concerned.]".

6.     Amendment of section 4—

(a) by the substitution for the heading of the following heading:

"Transfer of telecommunications enterprise to successor company"; and

(b) by the substitution for subsections 1, 2 and 3 of the following subsections, respectively:

"(1) On a date determined by the Minister by notice in the Gazette—

[(a) The postal enterprise shall be transferred to the postal company, from which date the postal company shall, subject to the provisions of any other law, have the power to conduct the postal service;]

(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 [enterprises] 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 [those enterprises] 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 [a] 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).

(3)(a) In so far as the [postal enterprise and 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 [postal company or the] telecommunications company, [as the case may be,] 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 [concerned].

(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 [concerned].

[(c) If a particular piece of State land was used jointly  by the postal enterprise and the telecommunications enterprise immediately prior to the date mentioned in subsection (1), and the successor companies after that date agree to divide that piece of land between them without the payment of compensation by one party to the other or without giving anything in exchange therefor, the subdivision of the land concerned shall be exempted from the payment of transfer duty, stamp duty or other fees if, upon the registration of the subdivision, a certificate signed by the secretaries of both successor companies is submitted in which it is certified that an agreement as contemplated in this paragraph has been concluded.]";

(c) by the substitution in subsection (4) for paragraph (a) of the following paragraph:

"(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 postal enterprise or] the telecommunications enterprise shall on the said date pass to [the postal company or] the telecommunications company[,

as the case may be].";

(d) by the substitution in subsection (4)(b) for subparagraph (i) of the following subparagraph:

"(i) register the passing of the servitude, other real right or lease to the company [concerned] in terms of paragraph (a); or";

(e) by the substitution in subsection (4A) for the words "a successor company" of the words "the successor company", wherever they occur;

(f) by the deletion of paragraph (a) of subsection (5); and

(g) by the substitution for subsections (6), (7), (8), (9), (10) and (11) of the following subsections, respectively:

"(6) The successor company [concerned] 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 [concerned].

(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 postal company or] the telecommunications company in terms of this section, and may request the [successor] company [concerned] to submit or produce to him or her such information or document as he or she may deem necessary for such purpose.

(8) If any doubt arises as to whether anything for the purposes of this Act pertains to or is connected with [the postal enterprise,] the telecommunications enterprise, the department or anyone else, the decision of the Minister shall be conclusive.

(9)(a) [Each] 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 [such] the successor company, shall apply mutatis mutandis to the subsidiary thereof while the successor company is the sole member and shareholder of the subsidiary.

(10) No stamp duty, transfer duty or any other tax or levy shall be payable in respect of the transfer of [the postal enterprise or] the telecommunications enterprise in terms of this section.

(11) Any officer in the employment of [a] 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).".

7.     Deletion of section 7A.

8.     Amendment of section 12V by the substitution for the words "each successor company" of the words "the successor company".

9.     Substitution for subsection (1) of section 89 of the following subsection:

"Order of transmission of [telegrams] telephonic communications

89. (1) [Telegrams and telephonic] Telephonic communications shall be sent for all persons alike, without favour or preference, and shall as far as practicable be transmitted in the order in which they are received, but [telegrams and] telephonic communications relating to the preservation of the peace of the Republic or of the adjacent territories or the arrest of criminals or the discovery or prevention of crime or any other matter connected with the administration of justice shall have precedence over all other [telegrams and] telephonic communications: Provided [that nothing in this section contained shall be held to prevent precedence being given to any class of telegrams under such conditions and upon payment of such special rates of charges as may be prescribed by the telecommunications company: And provided further] that no person shall be permitted to occupy a telecommunications line in such a manner as unreasonably to impede the speedy transmission of other [telegrams and] telephonic communications.

10.    Deletion of section 90.

11.    Substitution for section 99 of the following section:

"Unauthorized use of words ["Post Office", "mail",] "yellow page directory", "telex directory", "telephone directory", etc

99. Any person who without the authority of [the postal company or] the telecommunications company[, as the case may be (the proof of which shall be on the accused)]—

[(a) places or maintains or suffers to be placed or maintained or to remain in, on or near any house, premises, wall, door, window, box, post, pillar or other place belonging to him under his control the words "Post Office" or any other word or a mark which may imply or may give reasonable cause for believing that house, premises, wall, door, window, box, post, pillar or other place to be a post office;

(b) places or maintains or permits to be placed or maintained or to remain on any vehicle or vessel the word "mail" or any other word or mark which may imply or may give reasonable cause for believing that such vehicle or vessel is used for the conveyance of mails; or]

(c) in connection with any publication or proposed publication, or in any invitation, prospectus, order form, notice, invoice or advertisement relating to any publication, uses the words "telephone directory", "yellow page directory", "yellow pages", "telex directory" or any other word or a mark, in circumstances or in a manner which may imply or may give reasonable cause for believing that such a publication or proposed publication is a telephone directory, yellow page directory, telex directory or other publication published on the authority of [the postal company or] the telecommunications company,

shall be guilty of an offence and liable on conviction to a fine not exceeding R2 000 or imprisonment for a period not exceeding six months or to both such fine and such imprisonment.".

12.    Substitution for section 102 of the following section:

"Personating officers of [department, postal company or] telecommunications company with fraudulent intent

102. Any person who with fraudulent intent personates or represents himself or herself to be an officer of the [department or the postal company or] telecommunications company, shall be guilty of an offence and liable on conviction to a fine not exceeding R4 000 or imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.".

13.    Substitution for section 105 of the following section:

"Divulging contents of [telegrams or] telephonic communications

105. Any officer who, not being a witness in a court of law, without the consent of the sender [or addressee] or receiver, or otherwise than in pursuance of his or her duties—

[(a) opens or tampers with or divulges the contents or substance of any telegram, or discloses its existence otherwise than by delivering it or giving a copy thereof to the person to whom he is authorized to deliver it or to give such copy, or who maliciously or wilfully misdelivers, mistimes, secretes, intercepts, destroys, makes away with, alters or omits to transmit or deliver or prevents or delays the delivery or transmission of any telegram or makes use for his own purposes of any knowledge he may acquire of the contents thereof;]

(b) divulges the existence, contents or substance of any telephonic communication or maliciously or wilfully intercepts a telephonic communication or prevents or delays the transmission thereof or makes use for his or her own purposes of any knowledge he or she may acquire of the contents thereof,

shall be guilty of an offence and liable on conviction to a fine not exceeding R4 000 or imprisonment for a period not exceeding twelve months or to both such fine and such imprisonment.".

14.    Substitution for section 112 of the following section:

"In criminal proceedings, etc., property [in postal articles, money, money orders, etc.,] may be laid in [postal company or] telecommunications company

112. In any information or complaint as to or any prosecution for any crime or any offence committed in respect of the [postal company or] telecommunications company or of any [mail, telegram or] telecommunications line [or any property, moneys, money order, postal order or other document authorized to be used for the purpose of remitting, paying or depositing money through or with the postal company or telecommunications company, as the case may be], or with respect to any act, deed, matter or thing which has been done or committed with any malicious, injurious or fraudulent intent relating to or concerning the [postal company or] telecommunications company[, as the case may be], or any such [mail, telegram,] telecommunications line[, property, moneys, money order, postal order or other document], it shall be sufficient—

[(a) to allege that any such mail, telegram, property, moneys, money order, postal order or other document belongs to or is in the lawful possession of the postal company or telecommunications company, as the case may be, and to put in the same in evidence, and it shall not be necessary to allege or prove the same to be of any value;]

(b) to allege that any such act, deed, matter or thing was done or committed with intent to injure or defraud the [postal company or] telecommunications company[, as the case may be], without setting forth its or any other name, addition or description whatsoever; and

(c) if the offender be an officer, to allege that the offender was an officer of the [postal company or] telecommunications company[, as the case may be,] at the time of the committing of the offence without stating the nature or particulars of his employment.".

15.    Deletion of section 114.

16.    Substitution for section 115 of the following section:

"Nonliability of [postal company and] telecommunications company

115. Save as is otherwise provided in this Act or any other law, the [postal company or] telecommunications company[, as the case may be, or any officer or any person  conveying postal articles in pursuance of any contract entered into or arrangements made in terms of this Act or conveying mail which he or she is obliged to convey, in terms of this Act or any other law or any employee of a mail carrier] shall not be liable by reason of any error, default, delay, omission, damage, destruction, nondelivery, nontransmission or loss, whether negligent or otherwise, in respect of [any postal article or telegram or by reason of] anything lawfully done under this Act, or any other law, [and bona fide payment of any sum of money under the provisions of this Act or any other law shall, to whomsoever made, discharge the postal company or telecommunications company, as the case may be, and the officer by whom any such payment was made, from all liability whatsoever in respect of any such payment, notwithstanding any forgery, fraud, mistake, neglect, loss or delay which may have been committed or have occurred in connection therewith]: Provided that nothing in this section contained shall be construed as exempting the [postal company or]  telecommunications company[, as the case may be,] from liability for damage or loss caused to any person by reason of fraud on the part of an officer in relation to his or her official duties [or as exempting any mail carrier from liability for damage or loss caused to any person by reason of fraud on the part of such carrier or of any employee of such carrier in relation to his or her duties].".

17.   Deletion of section 119B and 120A.

18.    Substitution for section 121 of the following section:

"Officers to take oath or make affirmation

121. Every officer required by the [Director-General, postal company or] telecommunications company to do so, shall before exercising the duties of his or her office take an oath or make an affirmation before a justice of the peace in the form set forth in the First Schedule.".

19.    Substitution for section 123 of the following section:

"Short title

123. This Act shall be called the Post [Office] and Telecommunication-related Matters Act, 1958.".

20.    Substitution for the long title of the following long title:

"To provide for post and telecommunication-related matters, and to provide for matters connected therewith.".

21.    Substitution for the First Schedule of the following Schedule:

"FIRST SCHEDULE

OATH TO BE TAKEN OR

AFFIRMATION TO BE MADE BY

EMPLOYEES

I (name in full) .......................................................... do solemnly swear/affirm* faithfully in my position as an employee of the telecommunications company to be honest, trustworthy and fair without respect of persons according to the law and to the best of my knowledge, that I will not contrary to the law or to my duty communicate or divulge any information regarding any telephone conversation, and that I will give account of any responsibility entrusted to me whenever and wherever such may be required of me.

Signature

Sworn/Affirmed* before me at

.........................................

on the ........................ day

of .............................. 20 ....

JUSTICE OF THE PEACE

*delete which is not applicable

Act No. 124 of 1998

Postal Services Act

1.     Substitution in section 1 for the definition of "postal company" of the following definition:

" 'postal company' means the South African Post Office SOC Ltd, referred to in section 3(1) of the South African Post Office SOC Ltd Act, 2011;" ;

2.     Deletion of section 29.

3.     Insertion of the following sections after section 32:

"Order of transmission of telegrams

32A. (1) Telegrams must be sent for all persons alike, without favour or preference, and must as far as practicable be transmitted in the order in which they are received, but telegrams relating to the preservation of the peace of the Republic or of the adjacent territories or the arrest of criminals or the discovery or prevention of crime or any other matter connected with the administration of justice shall have precedence over all other telegrams.

(2) Any person who contravenes this section is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

Telegrams which must be refused transmission

32B. Any telegram which contains anything in its contents, address or signature of a blasphemous, indecent, obscene, offensive or libellous nature or anything repugnant to law or decency, must be refused transmission."