Topic: General

Ombud must apply appropriate processes to disputes of fact

By Patrick Bracher (ZA) on December 3, 2021 Posted in General, Insurance

In November 2021 the Financial Services Tribunal emphasised that “time and again it has been pronounced that when there is a material dispute of fact, there should be a hearing of oral evidence”. It is only once the material disputes of fact are addressed that one can conduct an enquiry into the negligence, causation and … Continue reading

South African Cybercrimes Act is now law!

By Nerushka Bowan on December 3, 2021 Posted in General

This blog was co-authored by: Victoria Pillay, Associate The President has proclaimed that, from 1 December 2021, certain sections of the Cybercrimes Act, 2020 will come into full force. The Cybercrimes Act aims to: regulate and harmonise legislation in respect of offences committed using electronic mediums, and creates offences which have a bearing on cybercrime … Continue reading

Hospital records as evidence and drawing inferences

By Donald Dinnie on December 1, 2021 Posted in General

This blog was co-authored by: Bwanika Lwanga, Candidate Attorney Recently the Supreme Court of Appeal in Rautini v Passenger Rail Agency of South Africa (Case no. 853/2020) [2021] ZASCA 158 (8 November 2021) reaffirmed the general rule regarding the drawing of inferences. A court may only draw inferences that are consistent with all the proven facts. … Continue reading

Fitness and propriety re significant owner’s deadline 1 December 2021

By Patrick Bracher (ZA) on November 19, 2021 Posted in General, Insurance

Anyone who is a significant owner of a financial institution is required by Joint Standard 1 of 2020 to have in place procedures for assessing and attesting to fitness and propriety by 1 December 2021. This must thereafter be done on an annual basis and on written request by either Authority. The Joint Standard 1 of … Continue reading

Transferability of water use entitlements and other government-granted rights

By Patrick Bracher (ZA) on November 16, 2021 Posted in General

In a case where the Supreme Court of Appeal found that section 25 of the National Water Act, 1998 (NWA) permits the transfer of water use entitlements subject to a licence being granted to the transferee by the Minister, the court made some important observations about the transfer of government-granted rights generally. The NWA abolished … Continue reading

Municipalities’ power to impose rates may be limited by national legislation

By Patrick Bracher (ZA) on November 8, 2021 Posted in General

The power of municipalities to determine their rates policies is subject to regulatory supervision of the national legislature in terms of section 229(2)(b) of the Local Governance Municipal Property Rates Act of 2004. National legislation limits rates for public benefit organisations (in this case independent schools) to 25% of the rate levied on residential property … Continue reading

When can you claim compound interest?

By Patrick Bracher (ZA) on November 2, 2021 Posted in General

As a starting point, it is generally accepted that where compound interest is not expressly provided for in an agreement, only simple interest is due. Compound interest is claimable only in certain defined circumstances namely (a) where parties agree to pay compound interest (b) if the obligation to pay interest is alleged and it is … Continue reading

All interested parties need to be heard to determine eligibility for death benefits

By NRF Digital Team on October 28, 2021 Posted in General

This blog was co-authored by Michelle David, Director and Nomonde Sithole, Candidate Attorney It is important for a decision-maker to hear submissions from all interested parties. Failure to do so can result in a decision being irregular on the basis that the decision-making process was defective. This principle came to the fore in the Financial … Continue reading

Exclusion of Subsidiary Companies from financial assistance limits

By NRF Digital Team on October 18, 2021 Posted in General

This blog was co-authored by: Tshegofatso Rammutla, Associate; Darragh Meaker, Associate Designate and Devan Falconer, Candidate Attorney. The proposal in the Companies Amendment Bill of 2021 published for public comment on 1 October 2021 for the exclusion of subsidiary companies from the limiting provisions relating to inter-group financial assistance should be enthusiastically supported. Section 45 … Continue reading

Cancellation of a contract between private parties is not judicially reviewable

By Donald Dinnie on October 13, 2021 Posted in General

In this judgment the Supreme Court of Appeal confirmed as trite that a decision by a contracting party to cancel a contract concluded between two private parties cannot form the subject of review by the courts. The power of the courts to review the lawfulness, reasonableness and procedural fairness of decisions or actions applies only to … Continue reading

Companies Amendment Bill, 2021 – Securities and s45 Financial Assistance to subsidiaries

By Stephen Kennedy-Good and Steve Chemaly on October 12, 2021 Posted in General

This blog was co-authored by James Donald, candidate attorney The Ministry of Trade, Industry and Competition published the Companies Amendment Bill 2021 for public comment by 31 October 2021. The Bill proposes to amend the definition of “securities” and to exclude subsidiary companies from the financial assistance requirements in section 45 of the Companies Act … Continue reading

Parol evidence: what evidence outside the written contract can be used?

By Patrick Bracher (ZA) on October 12, 2021 Posted in General

In a matter where there was a partly written and partly oral agreement, the court allowed evidence to be admitted regarding the terms of the oral agreement because it did not contradict nor vary the written agreements but rather supplemented them. The parol evidence rule applies where the written agreement is intended to be the … Continue reading

Companies Amendment Bill 2021 blog series – Amending the Memorandum of Incorporation

By Stephen Kennedy-Good on October 8, 2021 Posted in General

This blog was co-authored by Stacy Smit, candidate attorney The Companies Amendment Bill, 2021 published on 1 October 2021 for public comment proposes amendments to section 16 of the Companies Act of 2008 and provides clarity as to when a change to a company’s Memorandum of Incorporation (MOI) will take effect. Section 16 of the … Continue reading

Companies Amendment Bill Blog Series – Access to more Information

By Stephen Kennedy-Good on October 6, 2021 Posted in General

This blog was co-authored by: Preshanta Poonan, candidate attorney The Companies Amendment Bill, 2021 published on 1 October 2021 for public comment proposes amendments to section 26 of the Companies Act of 2008 which outlines the requirements for a company to make documents accessible for inspection to third parties aligned with the provisions of the … Continue reading

Companies Amendment Bill, 2021 – Directors’ Remuneration and Beneficial Ownership

By Stephen Kennedy-Good on October 6, 2021 Posted in General

This blog was co-authored by: Hishaam Khan, candidate attorney As we continue to unpack the proposed amendments of the Companies Amendment Bill, 2021 in this series we consider directors’ remuneration and beneficial ownership. Director’s remuneration Remuneration of directors continues to be in focus. The Bill proposes to introduce various disclosure and reporting requirements in respect … Continue reading

Companies Amendment Bill 2021 comments – Appointing a Social and Ethics Committee

By Stephen Kennedy-Good on October 5, 2021 Posted in General

This blog was co-authored by: Uzair Bulbulia, candidate attorney On 1 October 2021, the Ministry of Trade, Industry and Competition published the Companies Amendment Bill, 2021 for public comment. The Bill proposes amendments to the requirements for a company to establish a Social and Ethics Committee (SEC) in terms of section 72 of the Companies … Continue reading

Companies Amendment Bill 2021 comments – blog 1 of a series

By Stephen Kennedy-Good on October 4, 2021 Posted in General

This blog was co-authored by Uzair Bulbulia, candidate attorney On 1 October 2021, the Ministry of Trade, Industry and Competition published the Companies Amendment Bill, 2021 (2021 Bill) for public comment. The 2021 Bill seeks to amend the Companies Act, 2008 and is a revision of the bill that was published for public comment in … Continue reading

“Misconduct is tantamount to dishonest conduct,” says the Financial Services Tribunal

By Amina Yuda on October 1, 2021 Posted in General

On 21 September 2021, the Financial Services Tribunal (“Tribunal”) in Royal Bafokeng Platinum Limited & Others v Pension Funds Adjudicator & Others, considered what constitutes “misconduct” as contemplated in section 37D of the Pension Funds Act, 1956 (“PFA”) and in which instances a member’s benefit may be reduced. In this case, the holding over by … Continue reading

Litigation funding in South Africa

By Donald Dinnie on September 17, 2021 Posted in General

In South Africa third party litigation funders are increasingly playing an important role in assisting claimants in pursuing litigation both in respect of future legal expenses and costs already incurred. And in particular for class actions, commercial litigation, consumer disputes, and medical negligence claims. In certifying a class action the court must be told how … Continue reading

There is no direct access to the Pension Funds Adjudicator

By Ntokozo Ngubane on September 8, 2021 Posted in General

The Pension Funds Act, 1956 (“PFA”) is the primary legislation regulating retirement funds. Section 30A of the PFA provides that any person who has a complaint as defined in section 1 “may lodge a written complaint with the retirement fund for consideration by the board, which must be properly considered and responded to within 30 … Continue reading

Affidavit commissioned via WhatsApp video call valid for COVID 19 realities

By NRF Digital Team on September 6, 2021 Posted in General

This blog was co-authored by Sa’ood Lahri, Director and Muhammad Mirza, Candidate Attorney In August 2021 the High Court[1] accepted that an affidavit commissioned over a WhatsApp video-call constitutes substantial compliance with the applicable regulations[2] and is valid in light of the practical difficulties faced by the deponent due to the raging Covid19 pandemic. The … Continue reading

Commentary on Draft Guidelines on collaboration between competitors on localisation initiatives

By Marianne Wagener (ZA) on August 30, 2021 Posted in General

This blog was co-authored by James Donald, Candidate Attorney Following the economic fallout of the Covid-19 pandemic, one of the aims of government’s Economic Reconstruction and Recovery Plan (ERRP) is to encourage localisation. With a focus on purchasing local inputs instead of importing, this is intended to assist in uplifting the economy. The challenge is … Continue reading

The Rise of Digital Markets in Competition Law

By NRF Digital Team on August 27, 2021 Posted in General

This blog was co-authored by Julia Sham-Guild and James Donald The Covid-19 pandemic has forced many industries to become highly reliant on digital markets. The gradual move over the past few decades and this recent sharp uptake as a result of Covid-19 has resulted in an increased need for regulators to be able to monitor … Continue reading

Auditors not liable to employees of failed bank

By NRF Digital Team on August 11, 2021 Posted in General

This blog was co-authored by: Kristin January and James Donald On 6 May 2021, the Johannesburg high court reaffirmed that auditors do not generally owe a legal duty to the employees of an insolvent company and consequently no valid claim can arise on the part of the employees for any alleged misstatement concerning the company’s … Continue reading