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Bernard Mofokeng | Co-Head of Tax | South Africa

Bernard Mofokeng

Partner
Co-Head of Tax

CMS RM Partners
85 Grayston Drive
5th Floor
Sandton
2196
Johannesburg
South Africa
Languages Setswana, Sesotho, English, Afrikaans, Zulu
Tax

Bernard is a tax and exchange control lawyer.

Bernard has over 16 years of experience in the tax and dispute resolution field in the private and public sector.  His tax experience covers the full remit of the tax, customs, excise and dispute resolution process. His capabilities include all alternative dispute resolution processes and litigation in all the courts.

His experience of over 8 years with the South African Revenue Authority where he was involved in various aspects of the dispute resolution process including governance process, settlement, litigation and concession of tax, customs and excise cases makes him ideal to assist taxpayers in tax and customs disputes and general advice.

Bernard is also experienced in providing advice on group restructures, reorganizations, applications for various tax rulings, share-buy-backs and review of the tax implications and tax risks of various financing and acquisitions transactions. He has also advised local and international clients on the tax implications of investing in various African jurisdictions.

Bernard strives to understand the client’s business in order to obtain the best outcome for the client in any dispute with the Revenue Authorities and/or limit their exposure to any possible tax risks. 

His clients include private and public entities, financial institutions, wealth planning organisations and public benefit organisations. 

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Relevant experience

  • Two short-terms insurers - in the same group who merged using the re-organisation provisions of the Income Tax Act.
  • A German consulting company - assisted on how to enter South Africa (SA) in order to establish entities to manage international projects. Our advice entailed tax, customs, corporate law, labour law and immigration. It also involved in engaging with several government entities to understand their practical processes, timelines and thereafter properly advising the client thereon.  This involved international agreements with the European Union, SA government, the African Union, German government and the New Partnership for Africa's Development.
  • A Global Group - on the restructure and establishment of new entities around the world in terms of the asset-for-share transactions. The structure involved creation of trust to hold offshore assets including intellectual property via Malta, Zug and consolidation of IP agreements into some offshore entity and development of new IP.
  • African manufacturing company - involving the deduction of foreign blocked funds (in 3 African countries) due to currency restrictions and limitations by laws. The amount to be repatriated was over ZAR300 million and we assisted the company in obtaining the deduction. 
  • A Global Group - on the restructure in terms of section 42 of the Income Tax Act, the asset-for-share transactions. The structure involved creation of trust to hold offshore assets including intellectual property via Hong Kong and consolidation of supply agreements into one offshore entity.  The restructure involved advice on tax implications which included transfer pricing, thin capitalisation, trust law, corporate agreements and Exchange control regulations and compliance.
  • Ruling application review of a venture capital national hospitality company.
  • A Finance House - in relation to the review of a ZAR2 billion General anti-avoidance rule (GAAR) assessment where it subscribed for preference shares issued by an offshore entity and it in turn it subscribed for bonds or further preference shares issued by a SA entity.
  • A manufacturing company - in relation to the review of a ZAR1.6 billion GAAR assessment of its privatisation through a leveraged buyout of the public shareholders.
  • A private equity firm - in relation to the tax debt settlement of over ZAR2.1 billion where it acquired a listed major retail entity for over ZAR25 billion via a leverage buy-out.
  • Three large financial institutions - in relation to the settled assessments of over ZAR4 billion in relation to preference share finance schemes. The structure involved interposing special purpose vehicles to on-lend money to borrowers in order to convert interest into dividends.
  • A multi-billion-rand construction company - in relation to the settlement of ZAR200 million disallowed input VAT paid on importation of capital goods.
  • A large European manufacturing company - in relation to the settlement on waiver or reduction of a penalty of the forfeiture amount levied in respect of goods entered for a rebate for which the importer was not registered to use.
  • A global telecommunications company - in relation to the settlement of a transfer pricing dispute of over ZAR5 billion on royalties charged by it to its various African subsidiaries on its IP.
  • Pan-African manufactured goods supplier - in relation to the settlement of a transfer pricing dispute of ZAR100 million.
  • Reviewed the settlement for waiver or reduction of a penalty of the forfeiture amount levied in respect of goods entered for a rebate for which the importer was not registered to use.
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Education

  • 2017 – CIS professional Post-Graduate course: Company Secretarial and Governance Practice, Chartered Secretaries South Africa.
  • 2012 – Advanced Company law I & II, University of the Witwatersrand.
  • 2011 - Senior Management Programme, University of Pretoria.
  • 2006 – Master of Laws (Mercantile Law), University of Pretoria.
  • 2004 – Higher Diploma in Tax, University of Johannesburg.
  • 1999 – Admission as an Attorney, Legal Practice Council and High Court of South Africa.
  • 1998 – Bachelor of Laws, University of Pretoria.
  • 1996 – B Iuris degree, University of KwaZulu-Natal. 
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Memberships

  • Member of the Legal Practice Council.
  • Associate member of Chartered Secretaries South Africa.
  • Technical Committee member of Chartered Secretaries of South Africa.
  • South African Institute of Tax Practitioners.
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Lectures list

Bernard regularly speaks and writes on tax, customs & Excise matters, dispute resolution and corporate governance.

  • Tax lecture | Black Lawyers Association Legal Education Center | 2019
  • Budget 2019 Review | Centre for Risk Analysis | February 2019 
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Corporate Governance & Compliance

Bernard is a corporate governance and company secretarial lawyer.

He is an associate member of the Chartered Secretaries of South Africa (CSSA). As an associate member, he is qualified in corporate secretaryship, corporate governance, corporate administration and corporate financial management. He also possesses an understanding of the corporate governance principle as expounded in the King III and King IV, Public Finance Management Act and Municipal Finance Management Act and various regulations and Acts governing State-Owned Entities. 

Bernard is a technical committee member of Chartered Secretaries of South Africa and has written articles on corporate governance and gave radio talk thereon.

He was a member of the former audit committee the Road Traffic Management Corporation (RTMC) and the North-West Provincial Government (NWPG). He was also the Chief Legal Counsel for a junior mining company where he was responsible for the entire legal compliance function for the group. He was also a member of the board, audit and risk committee of City Power SOC Limited, Johannesburg. 

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Relevant experience

  • City Power SOC Limited - in relation to the Companies Act, board governance, audit committee requirements and governance on compliance.
  • North West Provincial Government - on  audit committee matters, General anti-avoidance rules and Public Finance Management Act.
  • Road Traffic Management Corporation - on audit committee matters, Companies Act, financial reporting requirements, governance and Public Finance Management Act.
  • Central Rand Gold - on legal compliance, tax compliance and mining laws compliance.
  • South African Revenue Authority - on governance committees, chairing and compliance of various tax laws.
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Education

  • 2017 – CIS professional Post-Graduate course: Company Secretarial and Governance Practice, Chartered Secretaries
  • South Africa.
  • 2012 – Advanced Company law I & II, University of the Witwatersrand.
  • 2011 - Senior Management Programme, University of Pretoria.
  • 2006 – Master of Laws (mercantile law), University of Pretoria.
  • 2004 – Higher Diploma in Tax, University of Johannesburg.
  • 1999 – Admission as an Attorney, Legal Practice Council and High Court of South Africa.
  • 1998 – Bachelor of Laws, University of Pretoria.
  • 1996 – B Iuris degree, University of KwaZulu-Natal. 
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Memberships

  • Legal Practice Council.
  • Associate member of Chartered Secretaries South Africa.
  • Technical Committee member of Chartered Secretaries of South Africa.
  • South African Institute of Tax Practitioners.
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Lectures list

Bernard regularly speaks and writes on tax, customs & Excise matters, dispute resolution and corporate governance.

  • Tax lecture | Black Lawyers Association Legal Education Center | 2019
  • Budget 2019 Review | Centre for Risk Analysis | February 2019 
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SA firms and SOEs need more than gov­ernance tick-boxes
Sug­ar pro­du­cer Tongaat Hu­lett is con­sid­er­ing wheth­er to sue sev­er­al seni­or ex­ec­ut­ives to re­cov­er bo­nuses and be­ne­fits they ac­crued while presid­ing over “un­desir­able ac­count­ing prac­tices” at the com­pany.If...
Re­vital­ised Sars vi­tal in a time of ra­ging cor­rup­tion
It is that time of the year when the min­is­ter of fin­ance squeezes South Afric­an tax­pay­ers for more money in or­der to fin­ance the dif­fer­ent gov­ern­ment pro­grammes and try to bal­ance the na­tion­al budget...
July 2020
CMS Tax Glob­al Bro­chure
At the start of the 2020s, the roles of cor­por­ate tax plan­ning and reg­u­la­tion are un­der in­creas­ing scru­tiny as ques­tions of eth­ics and cor­por­ate cit­izen­ship con­tin­ue to rise up the com­mer­cial and trade...

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How to avoid pay­ing double tax on your off­shore in­vest­ments
Many South Afric­ans have ac­quired for­eign prop­erty, of­ten res­id­en­tial, either for in­vest­ment pur­poses or with the in­ten­tion of even­tu­ally re­lo­cat­ing to that for­eign coun­try, of­ten the United King­dom.A...
08 July 2020
CMS Ex­pert Guide to cli­mate change tax re­forms and in­cent­ives
There is strong evid­ence that the cli­mate is warm­ing.  The Par­is Agree­ments on Cli­mate Change puts the re­spons­ib­il­ity on gov­ern­ments to lim­it glob­al warm­ing and they are ex­pec­ted to un­der­take sig­ni­fic­ant...
12 May 2020
SA firms and SOEs need more than gov­ernance tick-boxes
Sug­ar pro­du­cer Tongaat Hu­lett is con­sid­er­ing wheth­er to sue sev­er­al seni­or ex­ec­ut­ives to re­cov­er bo­nuses and be­ne­fits they ac­crued while presid­ing over “un­desir­able ac­count­ing prac­tices” at the com­pany.If...
12 May 2020
Re­vital­ised Sars vi­tal in a time of ra­ging cor­rup­tion
It is that time of the year when the min­is­ter of fin­ance squeezes South Afric­an tax­pay­ers for more money in or­der to fin­ance the dif­fer­ent gov­ern­ment pro­grammes and try to bal­ance the na­tion­al budget...