Regulatory Services

We advise on a diverse range of regulatory matters, including drafting of laws and regulations, High Court review applications, the interpretation and application of statutes as well as commercial and transactional matters, across a wide variety of areas including:

• Government contracting and public procurement
• Environmental law
• Broad-based black economic empowerment
• Infrastructure
• Mining
• Technology, media and telecommunications
• Pharmaceuticals and healthcare
• Gaming and gambling

• We assisted the University of Cape Town (UCT) to implement a strategy to regulate trade union recognition in response to fragmentation of traditional union membership patterns, including urgent Labour Court litigation and strike interdict. UCT has suffered significant disruption in recent years from student protests, in part related to industrial relations and the change in trade union affiliations.

• We advised Uber Technologies BV on the legal and regulatory aspects of its UberBoda product in Uganda.

• We assisted the Chief and the First and Second Houses of the Bakgatla Ba Mmakau Royal Family, to successfully challenge the decision of the Premier of the North West Provincial Government and the North West Provincial Committee of the Commission on Traditional Leadership Disputes and Claims, who rejected our client’s claim to be reinstated as the Kgosi (Chief) of the Bakgatla Ba Mmakau.

• We advised the South African Post Office (SAPO) on its complaint to the Independent Communications Authority of South Africa that PostNet is encroaching on the reserved postal services exclusively licensed to SAPO.  SAPO is the only licensed provider of ordinary postal services. The ability of alternative providers to provide certain services is a key factor in how the postal services market is structured. This is a key case in the sector.

• We helped Royal Bafokeng Platinum Mine successfully defend enforcement proceedings threatened under the Mine Health and Safety Act and the Mineral and Petroleum Resources Development Act.

• We advised Royal Bafokeng Platinum Mine on its acquisition of a concentrator plant and related surface rights (including the water and power allocations) in respect of the immovable property owned by Maseve Investments 11 Pty (Maseve) which may be required by RBPlat to access and operate the plant and access to tailings infrastructure, for a consideration equal to the ZAR equivalent of USD 58 million, and the acquisition of 100% of the shares in and shareholder claims owing by Maseve for a consideration equal to the ZAR equivalent of USD 12 million.

• We advised Rain Networks on the establishment of a new LTE network including infrastructure leasing and roaming arrangements. We also successfully represented Rain in the subsequent investigation by regulatory authorities into the legality of the arrangements following complaints by competing operators. The complaints were ultimately dismissed.

• We assisted Primedia with its submissions to the Independent Communications Authority of South Africa (ICASA) regarding ICASA’s policy development inquiry into ownership and control issues in the communications sector.

• We advised PPC, the largest cement manufacturer in South Africa and a Johannesburg Stock Exchange listed entity, on its proposed merger negotiations with AfriSam Group and various other interested investors.

• We advised Netflix on the regulatory framework applicable to the provision of online content in South Africa and its engagements with the regulator.

• We assisted Kgalagadi Pipeline JV (a consortium in which Group Five Construction is the lead party) in defending interdict proceedings against the implementation of a contract awarded to the consortium by Sedibeng Water, a regional water utility based in the Northern Cape. The interdict proceedings sought to halt the implementation of a ZAR 1.2 billion contract to install a water pipeline in a remote area of the Northern Cape. Judicial review proceedings were subsequently launched, also on an urgent basis, which sought to set aside the award of the tender on various grounds provided for in the Promotion of Administrative Justice Act, 2000. We were successful in opposing these judicial review proceedings and recovered significant costs in favour of our client.

• We advised the Development Bank of Southern Africa, the South African Department of Energy and the South African National Treasury (through the IPP Office) on the various independent power producer (IPP) procurement programmes that are pursued by the South African government including IPP bid processes for renewable energy which has won several awards, base load coal, LNG gas to power, and a number of related programmes in South Africa.

• We advised Ericsson on the regulatory requirements that apply to its OTT VoD service NuVu in a range of countries in Africa.

• We assisted the Government Employees Medical Scheme (GEMS) with a multi-disciplinary investigation and provided advice involving forensic investigations, employment disciplinary proceedings, termination of certain contracts of employment and public procurement law.

• We advised Harmony Gold Mining Company (Harmony) on a broad-based black economic empowerment transaction in which Harmony will sell to a BEE SPV 3% of its shares in, and 3% of its loan claim against, Harmony Moab Khotsong Operations, the SPV through which Harmony acquired certain significant mining assets from AngloGold Ashanti. Harmony Gold made vendor financing available to the BEE SPV in order to fund the purchase of the loan claim. The transaction also included the creation of a community trust, as well as an employee stock ownership plan (ESOP).

• We advised the Independent Communications Authority of South Africa on its enquiry into pay-TV market.  The outcome of the inquiry has the potential to have a significant impact on the structure of the pay-TV sector and media sector more generally.

• We assisted Eskom Holdings in a dispute regarding the right to distribute electricity in a municipal area. The challenge related to whether South African municipalities have an exclusive power to supply electricity to consumers within municipal boundaries.  The High Court found that the Constitution of the Republic of South Africa 1996, does create an exclusive right for municipalities to supply electricity within their boundaries, but that Eskom may supply any customers within its area of supply if a municipality does not already supply such customer.

• We advised Harmony Gold Mining Company on its USD 300 million acquisition of the Moab Khotsong Mine, the Great Noligwa Mine and related infrastructure from AngloGold Ashanti. We were named  Energy and Natural Resources Team of the Year at the African Legal Awards in 2018 for this work.

• We assisted Peermont Global Group in its raising of ZAR 5.3 billion of new debt and the associated recapitalisation and restructuring of the hospitality and gaming group.

• Transnet on the:

  • privatisation of its Pan-African rail concession subsidiary, Comezar;
  • privatisation of Freight Dynamics;
  • privatisation of Transwerk;
  • privatisation and restructuring of state assets and the disposal of certain non-core assets, including the proposed disposal of the Carlton Centre in 2008 and the proposed disposal of the Outeniqua Choo- Tjoe in 2009/ 2010;
  • proposed privatisation of Spoornet (which spanned passenger rail services and general freight business at the time); and
  • proposed concessioning of the Blue Train.

• The SBC/ Telekom Malaysia Consortium on the acquisition and subsequent disposal of 30% of Telkom in South Africa and in relation to the Telkom IPO.

• The Port of Singapore in the second attempt to privatise Portnet (now the Port Authority of South Africa).

• Hutchison Port Holdings of Hong Kong on the privatisation of the container terminal at the Port of Toamasina, including a full contractual and documentary due diligence, legal risk analysis and review of real estate and other security, as well as advice relating to negotiation strategy with the government and its agencies.

• Botswana Telecommunications Corporation in respect of its proposed privatisation in 2006, including the preparation of draft legislation in this regard.

• Various state-owned entities on the application of the Preferential Procurement Policy Framework Act, 2000 to their operations and assisting in the design of preferential procurement policies.

• The City of Johannesburg on the unbundling of municipal owned assets.

• Telecommunications and broadband companies on various disputes with municipal entities with regard to the use of infrastructure and procurement principles, including settling a long running dispute between the City of Johannesburg and a major supplier to the City of Johannesburg.

• The state party, National Treasury, lenders, sponsors and/ or concessionaires on the regulatory and procurement aspects of public private partnerships, including the Gautrain Project, Prisons Projects and State Accommodation Projects.

• Successfully acted for Hall Longmore (a member of the Barnes Group) in a number of public procurement disputes involving municipalities and water boards such as Rand Water and Sedibeng Water (total value of the contracts more than R2billion).  Our clients challenged certain public procurement awards which were made and in turn other contractors challenged awards made to our clients (we refer to it as the Great Pipeline War of 2016).  All involved urgent interdict proceedings and we were successful in all of these, both in obtaining interdicts and defending them as applicable.  Some of the judicial review proceedings are underway, we have successfully settled one and one which we opposed was not pursued by the applicant. 

• Munitoria PPP Consortium, the private party consortium that (in 2015) successfully reached financial close for the City of Tshwane metropolitan office accommodation, on the procurement approval processes and Municipal Finance Management Act, 2003 principles applicable to the financing, design, construction and facilities management concession for a new head office for the City of Tshwane, including participating in the negotiation of final concession and project agreements and negotiating and settling the financing agreements.

• Eskom Holdings SOC Ltd, the state electricity provider, on all aspects of the development, construction and procurement processes for the Medupi (6000MW) and Kusile (6000MW) coal fired power stations, as well as in relation to the successful defence of the high court review proceedings relating to decision-making for the coal fired power stations.

• The Department of Energy and the National Treasury, who are running a ground-breaking independent power producer procurement process for renewable energy, baseload coal and baseload gas including imported LNG in South Africa. Our advice covered all aspects of the design and implementation of the process, the drafting of the procurement process documents, the implementation of the process, as well as the evaluation of bids and the negotiation with preferred bidders.

• The Department of Energy, which is running a national solar water heater programme for the supply, installation and maintenance of 1.75 million solar water heater systems as well as the repair of existing solar water heater systems in residential homes throughout the country, on all aspects of the design and implementation of the process, the drafting of the procurement process documents, the implementation of the process, as well as assisting with any challenges to the decision-making process

• We advised Cell C during an investigation by the Independent Communications Authority of South Africa into whether Cell C was required to obtain regulatory approval prior to its multi-billion Rand recapitalisation and whether it had breached the approval requirements.

• Bowmans acted as South African counsel to Exova Group (UK) Limited in respect of the acquisition of the entire issued share capital in Jones Environmental Forensic by Exova Group (UK) Limited.

• We assisted the Council of the Advancement of the South African Constitution (CASAC) in  instituting proceedings in the Constitutional Court against the President of South Africa to compel him to fulfil his constitutional obligations and assent to the Financial Intelligence Centre Amendment Bill (FICA Bill).

• Advised Rio Tinto on the sale of its entire shareholding in Riversdale Holdings Proprietary Limited, which holds a 74% direct shareholding in Zululand Anthracite Colliery Proprietary Limited to Galaxy Investments B.V. This transaction was important to the Rio Tinto group to enable it to focus on other core aspects of its global business and to facilitate an exit in a responsible manner by selling to a purchaser committed to making significant investments to ensure the long term sustainability of the mine and associated employment. Galaxy fits such criteria as it falls within the larger Menar Holding Group which has experience in coal mining in South Africa through its interest in Canyon Coal.