Topic: General

Constitutionality of the public school four week break

By Thabang Dikgale and Christina Pretorius on August 3, 2020 Posted in General

Following the President’s address on 23 July 2020, the re-closing of public schools for four weeks has left most questioning why public schools are forced to take the four week break and private schools are not. Although grade 12’s will only be taking a week break and grade 7’s two weeks, this blog is focused … Continue reading

Condonation for late notice of intention to sue

By Keaoleboga Molefe on July 28, 2020 Posted in General

Claimants who sue the State often have to apply for condonation for late notice, because the State must be notified of an intention to sue within 6 months of an incident occurring, and many claimants are unaware of this special time restriction. In Ndlovu v Member of the Executive Council for Police, Roads and Transport: … Continue reading

Sick leave and self-isolation: A guide for employers

By Murray Alexander and Jenine Naidu on July 24, 2020 Posted in General

With the increasing number of COVID-19 infections, employers must deal with employees who test positive for the virus, those who come into contact with individuals who test positive, and those who present with COVID-19 related symptoms. It is therefore important for employers to understand when sick leave must be used. The different sick leave options … Continue reading

Arbitration clauses usually do not survive termination of contract for fraud

By Donald Dinnie and Patrick Bracher (ZA) on July 21, 2020 Posted in General

An arbitration or similar adjudication clause, contained in an agreement that is found to have been induced by fraud, does not survive the avoidance of the agreement. That would be offensive to justice. The position can only change if the parties specifically make provision in their contract for a dispute regarding fraud, misrepresentation or concealment … Continue reading

No lease renewal unless the rent is fixed by the parties or a third party

By Patrick Bracher (ZA) on July 21, 2020 Posted in General

An option to renew a lease at a rental to be agreed between landlord and tenant, failing which to be determined by a third party, was not validly renewed by the lessee offering an increased rent that was unacceptable to the landlord and then not invoking the process for third party determination. The tenant gave … Continue reading

Interventions to facilitate the raising of capital on the JSE

By Alastair Dixon and Olivia Radford on July 19, 2020 Posted in General

There have been calls for the JSE to amend its Listings Requirements to allow listed companies to issue shares more quickly in times of crisis ‘without interference from shareholders’. The JSE’s regulatory framework already provides listed companies with various capital raising methods, including some expedited methods. Having to obtain shareholder approval is an important element … Continue reading

Skills and training Conduct Standard for pension fund trustees

By Amina Yuda on July 15, 2020 Posted in General

On 10 July 2020, the Financial Sector Conduct Authority (FSCA) published the awaited Conduct Standard prescribing the minimum skills and training requirements for members of the board of trustees of pension funds as contemplated in section 7A(3)(a) of the Pension Funds Act 1956, effective from date of publication. Section 7A(3)(a) requires the trustees of pension … Continue reading

Methods of raising capital on the JSE

By Alastair Dixon and Olivia Radford on July 10, 2020 Posted in General

The JSE has amended its Listings Requirements in the past few years by introducing alternative methods of raising capital and measures aimed at expediting traditional methods. The JSE is aware that, in times of crisis, listed companies may need to raise capital at short notice. Delays in the raising of capital, particularly those caused by … Continue reading

Jurisdiction of the Financial Services Tribunal: medical scheme matters

By Ntokozo Ngubane on July 9, 2020 Posted in General

A medical scheme aggrieved by a decision of the Registrar for Medical Schemes must appeal to the Council for Medical Schemes and not the Financial Services Tribunal, even if the decision relates, broadly, to financial sector laws. In Medihelp Medical Scheme v The Registrar for Medical Schemes and Another, the Council for Medical Schemes, instituted … Continue reading

Tender award to unlawfully preferred bidder set aside

By Sandile Khoza, Purnel Gangiah and Ismene Nayagar on July 9, 2020 Posted in General

Tender processes require fairness and transparency. In order to ensure fairness and transparency, an organ of state must adopt a proper evaluation process when considering and awarding tenders. An organ of state cannot rely on its selection of a preferred bidder in circumstances where the process for a preferred bid is not followed. When the … Continue reading

Even peremptory provisions in a statute may yield

By Patrick Bracher (ZA) on July 7, 2020 Posted in General

Even peremptory provisions in a statute may yield to two rules of interpretation: Laws must be interpreted to promote the spirit, purport and objects of the Bill of Rights. Due regard must be had to the purpose of the statute and more particularly whether adopting a strict or literal interpretation is consistent with what the … Continue reading

POPI compliance – have you considered your existing data protection measures?

By Desiree Reddy (ZA) and Claire Friedman on July 3, 2020 Posted in General

The majority of the Protection of Personal Information Act 2013 (POPI) effectively commenced on 1 July 2020. The sections that commenced deal with how personal information (which is any information that can identify and infringe the privacy rights of a natural or juristic person) may be processed in South Africa or transferred across borders. As POPI … Continue reading

Courts will rarely refuse to enforce contracts on grounds of public policy

By Siyabonga Mathe and Romy Allen on July 2, 2020 Posted in General

Contracting parties cannot escape the enforcement of a contract on the basis of the terms being contrary to public policy unless they can prove that the terms are so unfair, unreasonable or unjust in the circumstances that a court should intervene. The Constitutional Court reaffirmed that although constitutional values such as Ubuntu, reasonableness and fairness … Continue reading

Progressive changes for the retirement fund industry in FSCA draft Conduct Standards

By Amina Yuda on June 29, 2020 Posted in General

On 8 June 2020, the Financial Sector Conduct Authority published three draft conduct standards for public comment to be made by 31 July 2020. The purpose of the draft conduct standards is to regulate the: conditions for living annuities in an annuity strategy; communication of benefit projections to members of pension funds; and conditions for … Continue reading

Supplementary budget 2020

By Belinda Sussman and Dale Cridlan on June 29, 2020 Posted in General

South Africa’s Finance Minister Tito Mboweni delivered a supplementary budget on Wednesday 24 June 2020, highlighting that business confidence will remain near historic lows, with investment and employment remaining constrained. This emergency budget comes only four months after the National Budget which has been left defunct in the wake of COVID-19 and a three-month lockdown … Continue reading

Mediate before you litigate

By Busisiwe Nhlapo on June 28, 2020 Posted in General

An amendment to the High Court Rules (Rule 41A) which came into effect from 9 March 2020 has made it mandatory for parties to consider mediation at the outset of any contemplated litigation. There are a number of judgments where the courts have censured the parties’ and their representatives’ failure to consider alternative dispute resolution … Continue reading

Prescribed rate of interest is 8.75% from 1 May 2020

By Patrick Bracher (ZA) on June 28, 2020 Posted in General

The prescribed rate of interest has been changed with effect from 1 May 2020 to 8.75% per annum. The previous rate was 9.75%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all … Continue reading

South African Data Privacy laws finally come into force

By Rosalind Lake (ZA) and Priyanka Naidoo on June 22, 2020 Posted in General

On 22 June 2020, the effective commencement of the Protection of Personal Information Act 2013 (POPI) was gazetted as 1 July 2020. Anyone processing personal information in South Africa will have a 12 month grace period to ensure that they comply with the requirements of POPI. After 1 July 2021, any non-compliance with POPI will … Continue reading

Must a union hold a secret ballot before calling a strike?

By Verushka Reddy on June 22, 2020 Posted in General

An attempt to stop NUMSA from calling a strike because it had not held a secret ballot failed. In the matters between NUMSA and Mahle Behr and NUMSA and Foskor with AMCU as amicus curiae the Labour Appeal Court had to determine whether in the absence of compliance with the transitional provisions of the Labour … Continue reading

Obligations of independent schools before expelling a pupil

By Hishaam Khan and Patrick Bracher (ZA) on June 18, 2020 Posted in General

On 17 June 2020 the Constitutional Court handed down a landmark judgment which pronounced on a child’s own right to take part in due process or hearings concerning the termination of the contract between independent schools and their parents. The judgment concerns the constitutionality of a decision by an independent school to expel two scholars … Continue reading

What does data privacy mean for due diligence investigations?

By Rosalind Lake (ZA) and Priyanka Naidoo on June 17, 2020 Posted in General

Given many entities’ proactive compliance with the provisions of the Protection of Personal Information Act despite it not being enforceable, companies should be considering the impact of POPI (or data privacy laws with wide reach) when they carry out due diligence investigations. Depending on the nature of the transaction, the due diligence process can involve … Continue reading

External companies cannot have prescribed officers

By Christina Pretorius and Susan Bisset on June 16, 2020 Posted in General

An external company is not a company as defined in the Companies Act, and it cannot therefore have prescribed officers with the obligations and liabilities imposed by the Act. Prescribed officers are employees or other persons who, although they are not directors, exercise executive control over a significant part of a company’s business or participate … Continue reading

No more secrets – political party funding now in the open

By André Vos and Sabeeha Kathrada-Khan on June 9, 2020 Posted in General

Political parties will soon be required to make private funding information public when the May 2020 law in this regard comes into force. The Promotion of Access to Information Act 2000 (PAIA) gives effect to the constitutional right of access to information. PAIA recognises that the pre-1994 government system resulted in a secretive and unresponsive … Continue reading

Balancing employee religious rights and the need for protective equipment

By Laura Macfarlane and Frances Barker on June 5, 2020 Posted in General

The COVID-19 pandemic has brought to the fore the rights of an employer to insist on the wearing of personal protective equipment (PPE) despite religious objections. For COVID-19 protection, such equipment may include masks, gloves, goggles, face shields, and other forms of protective gear. Ordinarily, the failure to adhere to an employers’ reasonable PPE requirements … Continue reading