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Air Traffic and Navigation Services Company Act, 1993 (Act No. 45 of 1993)

6. Transfer of functions and assets of State to company

 

 

(1) On or after 1 April 1993, subject to the provisions of this section and after consultation with the Shareholding Minister, the Minister of Public Works and the Minister of Finance, the Minister—
(a) shall by agreement—
(i) transfer to the company the responsibility for the maintenance of air navigation infrastructure and the provision of air traffic services and air navigation services established, maintained and provided by the State by the said date; and
(ii) transfer to the company such assets owned by, or liabilities, rights or obligations of, the State as may be necessary for the effective maintenance of such infrastructure and provision of such services; and
(b) may under subsection (3) or  (4) transfer any person to the company or make available the services of any person to the company.

 

(2) The agreement mentioned in subsection (1)(a) shall include provisions concerning—
(a) the relationship between the company and the State as member and shareholder of the company;
(b) the extent of the assets, liabilities, rights and obligations to be transferred in terms of that subsection; or
(c) any other matter which the Minister deems expedient for the functioning of the company.

 

(3) The Minister may, in accordance with the provisions of an agreement concluded between the Department and the company, with the concurrence of the Commission for Administration transfer to the company any person who is an officer or employee in the Department in terms of the Public Service Act, 1984 (Act No. 111 of 1984).

 

(4)

(a) Notwithstanding any provision to the contrary in any other law, the Minister may make available to the company the services of any person who is an officer or employee in the Department in terms of the Public Service Act, 1984 (Act No. 111 of 1984), and place such person under the control of the company for such period as he may deem fit, but without prejudice to such person's position as such officer or employee.
(b) The company shall compensate the Department at a scale determined by the Minister, with the concurrence of the Minister of State Expenditure, for the services of any person so made available to the company.
(c) A person dealt with in accordance with paragraph (a) may within 90 days after such action make representations to the Minister advancing reasons for his services not being made available to the company under paragraph (a), whereupon the Minister may amend or withdraw his decision in question.
(d) The Minister may delegate, on such conditions as he may deem fit, to an officer in the Department any power granted to him by this subsection.

 

(5) The company shall, as consideration for the transfer of assets, liabilities, rights or obligations in terms of subsection (1)(a), issue to the State additional fully paid-up shares in the company to the value determined by the Minister, with the concurrence of the Minister of Finance, the Minister of Public Works and the Shareholding Minister, and after consultation with the company, and such value shall be deemed to be reasonable consideration for such transfer.

 

(6) Notwithstanding any provision to the contrary in any other law, the company shall on the transfer date become the owner of the assets, movable and immovable, transferred to it in terms of subsection (1)(a).

 

(7) Notwithstanding the provisions of section 5 of the State Land Disposal Act, 1961 (Act No. 48 of 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 of a certificate by the Minister of Public Works that State land has been transferred in terms of subsection (1)(a), free of charge make such entries and endorsements as he may deem necessary in or on any appropriate register, title deed or other document in his office or laid before him, in order to register the transfer of such land in the name of the company.

 

(8) A registrar referred to in subsection (7) shall, on submission to him of a certificate by the Minister of Public Works that a servitude, other real right or lease has been transferred in terms of subsection (1) (a) or that a servitude exists over State land which has been transferred in terms of that subsection, free of charge make such entries and endorsements as he may deem necessary in or on any appropriate register, title deed or other document in his office or laid before him, in order to—
(a) register the transfer of such servitude, other real right or lease in the name of the company; or
(b) confirm the existence of the servitude over the State land so transferred in favour of any other person.

 

(9) Notwithstanding legal provisions to the contrary, no servitude or other right of any kind in respect of State land transferred to the company in terms of subsection (1)(a) shall be acquired by prescription.

 

(10) The company shall be substituted for the State as a contracting party in respect of any contract transferred to the company in terms of subsection (1)(a), without such substitution bringing about novation of such contract.

 

(11) Any litigation resulting from any cause of action in relation to the maintenance of an air navigation infrastructure or the provision of an air traffic service or an air navigation service transferred to the company in, terms of subsection (1)(a) which arose—
(a) before the transfer date, shall be conducted by or against the State, as the case may be; and
(b) on or after the transfer date, shall be conducted by or against the company, as the case may be.

 

(12) Notwithstanding any provision to the contrary in any other law, the company shall be exempt from any stamp duties, transfer duties or registering fees payable in terms of any law in relation to the transfer to the company of assets or rights in terms of subsection (1)(a).

 

(13) Unless otherwise provided for in this Act, the company shall not alienate or encumber, otherwise than in the normal course of its business, assets transferred to the company in terms of subsection (1)(a) having a value of more than 10 per cent of the value contemplated in subsection (5).

 

(14) For the purposes of the Income Tax Act, 1962 (Act No. 58 of 1962), the assets mentioned in subsection (1)(a) shall be deemed to have been acquired in terms of that subsection by the company at a price equivalent to the value determined in terms of subsection (5).