Topic: General

Subscribe to General RSS feed

Unreasonable delay in review of tender

The Constitutional Court in State Information Technology Agency Soc Limited v Gijima Holdings (Pty) Ltd held that a state applicant seeking the judicial review of their own decision may not rely on the Promotion of Administrative Justice Act 2000 and must do so in terms of the principle of legality. An application for review must … Continue reading

Principle of equity cannot override the provisions of the Pension Funds Act

The principles of equity, despite the equitable jurisdiction of the Pension Funds Adjudicator, cannot override the provisions of the Pension Funds Act (PFA) by permitting a fund to act in contravention of the PFA. The Financial Services Tribunal (Tribunal) has reaffirmed this position. The applicant had been a municipal councillor since 5 August 2016 but … Continue reading

Conduct of Financial Institutions

On 28 September 2020, National Treasury released the second draft Bill regulating the conduct of Financial Institutions, for comment. The aim of the Bill is to impose conduct standards for financial institutions to protect financial customers. The Bill is the second peak of the Twin Peaks model and will require market conduct that emphasises the … Continue reading

‘De bloedige hand’ principle and its application in s37C pension fund distributions

The Pretoria High Court has refused to extend the ‘bloedige hand’ principle in instances where the beneficiary of a death benefit was the child of the deceased’s killer. The ‘bloedige hand’ principle holds that no person who unlawfully causes the death of another may inherit from the deceased. The deceased and his wife were killed … Continue reading

Trustees’ duty to exercise independent discretion on withholding pension benefits

If an employer requests that provident fund benefits be withheld from an employee due to misconduct, the trustees of the fund must still independently exercise their discretion to satisfy themselves that a sufficient case against the employee has been established, in order to withhold the benefit. The Financial Services Tribunal has again considered the withholding … Continue reading

Tacit acknowledgement of a debt: payments and queries interrupts prescription

The Supreme Court of Appeal (SCA) in Investec Bank Limited v Erf 436 Elandspoort (Pty) Ltd and Others gave useful examples of what constitutes a tacit acknowledgement of liability (which interrupts the running of prescription of a debt in terms of section 14 of the Prescription Act 1969). The case involved a debt related to … Continue reading

Defences to liability for dog bites

The owner of a dog that attacks a person who neither provoked the attack nor by their negligence directly caused their own injury is liable, as owner, to make good the resultant damages. Based on Roman law, for nearly 200 years the law in South Africa has been accepted that owners of animals are strictly … Continue reading

Digitisation of trade finance transactions

The paper-based nature of trade finance presents significant risks of error, fraud and duplicated costs. The COVID-19 pandemic has revitalised efforts towards digitisation, because the transport of these documents is dependent on courier services and the processing is dependent on in-person handling. The International Chamber of Commerce (ICC) called on governments and central banks in … Continue reading

No general ‘prejudice principle’ protecting sureties

The court in Firstrand Bank Limited v Barreiro reconfirmed that there is no general ‘prejudice principle’ which holds that a debtor or surety is released from their obligations to a creditor if the creditor does anything that prejudices them. The court reiterated that a surety can be released, either wholly or in part, from their obligations … Continue reading

A warning to all unlicensed over-the-counter derivative providers

JP Markets, which markets itself as a global forex powerhouse, has been placed under final winding up as a result of a successful liquidation application brought by the Financial Sector Conduct Authority (FSCA). The FSCA brought the application in terms of section 38B of the Financial Advisory and Intermediary Services Act (FAIS Act) and section … Continue reading

Cross-border considerations for electronic signatures

The use of electronic signatures in cross-border transactions can be fraught with difficulties given the lack of uniformity relating to electronic signatures across countries. This position is further exacerbated by the lack of widespread adoption of the Convention on the Use of Electronic Communications in International Contracts 2005, which sought to standardise electronic communications. The … Continue reading

The scope and limits of the exercise of a public power

The Supreme Court of Appeal held that a public authority may not exercise powers which are not given to it by the express wording of its empowering statute. The relevant empowering provision in the Medical Schemes Act gives the Registrar the power to decide whether a medical scheme’s proposed name is likely to mislead the … Continue reading

High time for legislative change

Almost two years after the landmark Constitutional Court judgment legalising the private use of cannabis, the Bill regulating Cannabis for Private Purposes has been introduced. The Bill arrives just in time to meet the deadline set by the Constitutional Court in September 2018 and follows the trail blazed by other countries in legalising cannabis for … Continue reading

Managing construction sites and other workplaces in the new normal

Construction sites and other workplaces need to comply with regulations and manage health and safety risks, while attempting to increase production, as we move into less restrictive lockdown levels. The announcement of South Africa’s move to lockdown Level 2 with effect from 18 August 2020 is being celebrated by almost all economic sectors. Despite this, … Continue reading

Amendments to the Financial Sector Regulations published

The Minister of Finance, has published amendments to the Financial Sector Regulations under Gazette 43581 intended to simplify the process of appointing the Commissioner and Deputy Commissioner of the Financial Sector Conduct Authority (FSCA). The amendments provide that: The Minister must re-appoint a shortlisting panel (two panellists being the Deputy Govrnor of the South African … Continue reading

Procedural fairness in investigations

Life may not be fair but investigations should be. Our courts have on many occasions expressed the importance of the principle which requires that people should be afforded a chance to participate in a decision that will affect them and more importantly given an opportunity to influence the result of the decision (the audi alteram … Continue reading

Hot tub expert evidence catching on

Evidence of experts in dispute hearings can be dealt with efficiently by using the ‘hot tub’ method to deal with disputes issue-by-issue rather than expert-by-expert: The parties decide between them what remaining issues have to be resolved by expert evidence and the list is given to the experts to deal with. The experts for all … Continue reading

Access to personal devices in competition claims

The High Court in England has ruled that it can order companies accused of breaking competition rules to require employees to disclose work-related communications stored on personal electronic devices. The court was dealing with a disclosure and inspection dispute in relation to a competition damages claim filed by a mobile phone retailer. Phones 4U’s insolvency … Continue reading

Condonation for late notice of intention to sue

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

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
LexBlog