Interpreting conflicting statutory provisions – a closer look at merger provisions in the Companies Act and Income Tax Act

Abstract

It sometimes occurs that provisions of two separate national laws are in conflict with each other, or certain inconsistencies arise with the interpretation of the two provisions. When interpreting legislation where there is an inconsistency or conflict, these provisions must, in terms of the common law, be interpreted so as to be reconciled and to exist coherently. This is, however, not always possible. In this contribution, the author considers the rules of interpretation of statutes with reference to the merger and amalgamation provisions in the Companies Act 71 of 2008, and the Income Tax Act 58 of 1962. Although the aims of the two Acts differ, both may apply to the same transaction. Therefore, in order to ensure certainty for the merger parties, the two Acts should coincide in terms of their provisions governing the merger or amalgamation transaction. If a narrow interpretation is used to apply the provisions concurrently and the “mischief” is still not resolved (i.e., the provisions remain in conflict with one another), the question of the next step arises. In terms of the examples used, the Companies Act is the “dominant” Act (the prevailing Act), but what does that mean for the irreconcilable provisions in the Income Tax Act? The author attempts to address how best to approach the identified discrepancies where an outright conflict between the provisions has been identified.