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POPI progress

At the end of June 2019 the Information Regulator announced that the process of putting the Protection of Personal Information Act into effect is “going very slowly” and that: A CEO started on 1 June 2019; A CFO started on 1 July 2019; Other executives are being appointed; They are now at a point where they are … Continue reading

Rationality of an administrative decision

A government administrator’s decision may be irrational because it does not take into account a vital material fact for making a rational decision in the light of the empowering legislation and its purpose. The relevant question for rationality is whether the means, including the process of making a decision, are linked to the purpose or … Continue reading

Corporate joint venture not a partnership

Section 13(1)(d) of the Prescription Act 1969 delays prescription where there is a debt between partners arising out of the partnership relationship. The legal relationship of partnership arises from a contract between two or more persons who each agree to make a contribution (whether in money, property or service) to a venture to be carried on … Continue reading

Meaning of the word ‘acquire’ and other interpretation issues

A building contractor sought to argue that the word ‘acquire’ in the Housing Consumers Protection Measures Act 1998 meant ‘buying or obtaining ownership’. The court held that the primary meaning of ‘acquire’ is ‘come to possess something’. The suggestion that persons who have rented their places of permanent residence have not ‘acquired a home’ as … Continue reading

Powers of CIPC to investigate a Companies Act related complaint

The Supreme Court of Appeal made important findings regarding the powers of the Companies Commission to investigate a complaint. Where the complaint relates to the inaccuracy of the company records as to who was a director, the failure to ensure that the record was maintained accurately constitutes either an ongoing act or omission under section 219(1)(a) … Continue reading

The trustees’ authority to act on behalf of a trust

A sale agreement had been signed on behalf of a trust, as purchaser, by a single trustee whose conduct was thereafter ratified by the remaining trustees. The court held that the agreement of sale was not valid and enforceable and it could not be ratified after the fact. In terms of section 2(1) of the … Continue reading

The elements of defamation

The Johannesburg High Court discussed the balance between the constitutional right of freedom of expression and the required respect for inherent dignity ‘to all human beings’. The defendant argued the allegedly defamatory statements made about the plaintiff were true and in the public interest. It is for the defendant in a defamation claim to establish … Continue reading

Employees of municipality and government proportionately liable for breach of finance management laws

Where a former managing director of a municipal entity was sued by that entity for alleged breach of the Municipal Finance Management Act 2003 (MFMA) it was held that she was entitled to join 19 other municipal officials on the ground that they were allegedly joint wrongdoers and equally liable to the municipality if she … Continue reading

Concourt will only decide on non-constitutional law points if in the interests of justice

Where an appeal does not raise any constitutional issue, the South African Constitutional Court will only consider a law point on appeal if the interests of justice require it to do so no matter how interesting, arguable or important the point is. The applicant in Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) … Continue reading

Informed consent to medical procedure

The claim in R B v Smith was based on an alleged failure by a surgeon (who performed a laparoscopic hernia repair on the appellant) to provide the appellant with sufficient information to enable her to give informed consent for the surgery which resulted in colon perforation. There was no negligence on the surgeon’s part in … Continue reading

Burden of proof in actions against ship owner for loss of cargo and the principles of bailment (UK)

England’s highest court finally, after over four centuries of reported decisions on the issue, definitively held that the burden of proof lies on the carrier where cargo owners sue a ship owner for loss or damage to cargo. If the carrier could and should have taken precautions which would have prevented some inherent characteristic of … Continue reading

Penalties for failing to notify mergers will increase in South Africa

In March 2019, the Competition Commission published its latest guidelines for the determination of administrative penalties for failure to notify mergers and implementation of mergers contrary to the Competition Act 1998. The highest penalty to date for a failure to notify is R10 million. The methodology in the Guidelines could result in much higher figures … Continue reading

Religious practices and workplace incapacity

The Labour Appeal Court (LAC) has reaffirmed that employers must be tolerant of employee religious beliefs. In TDF Network Africa (Pty) Ltd v Deidre Beverley Faris, it ruled that the employee was discriminated against and unfairly dismissed for practising her religion. Faris, a Seventh Day Adventist, refused to attend monthly Saturday stock takes as her … Continue reading
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