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Electronic AGMs in South Africa: Reacting to a pandemic

Stephen Kennedy-GoodAlly Chalwin-MiltonBy Stephen Kennedy-Good and Ally Chalwin-Milton on Posted in General
Despite the nationwide 21 day lockdown, it is expected that social distancing measures, restrictions on travel and the ban on major public gatherings will continue well beyond these three weeks. In a time of uncertainty, and with the advent of self-isolation, panic buying and remote working, companies throughout the country are having to rethink their … Continue reading

Impossibility may be no defence if performance overdue (COVID-19)

Siyabonga MatheBy Siyabonga Mathe on Posted in General
As a general rule, a party is excused from rendering contractual performance if it becomes physically or legally impossible for such party to perform. But a defence of impossibility of performance will not succeed if, when the impossibility intervened, the performance was overdue. In such a case, the rule is that lateness perpetuates the obligation, … Continue reading

How to establish a business enterprise in South Africa: Ten things to know

Stephen Kennedy-GoodDale CridlanMpho DuikerAlly Chalwin-MiltonBy Stephen Kennedy-Good, Dale Cridlan, Mpho Duiker and Ally Chalwin-Milton on Posted in General
01 I Methods of incorporation A business presence can be established in South Africa, one can either incorporate a South African entity or incorporate a foreign offshore entity, as a so called ‘branch’ or ‘external company’. 02 I Applicable legislation Both forms of business enterprise are regulated by the Companies Act 2008. However, in the … Continue reading

Effect of lockdown regulations on landlords and tenants

Daniel BreierBy Daniel Breier on Posted in General
What is the effect of clauses 11B(1)(b), (c) and (d) of the lockdown regulations which read: “(b) All businesses and other entities shall cease operations during the lockdown, save for any business or entity involved in the manufacturing, supply, or provision of an essential good or service. (c) Retail shops and shopping malls must be … Continue reading

HPCSA guidance on telemedicine during COVID-19 outbreak

Yash NaidooBy Yash Naidoo on Posted in General
On 26 March 2020 – the eve of the 21 day nationwide lockdown in South Africa – the Health Professions Council of South Africa (HPCSA) issued a guidance note regarding the practice of telemedicine. The guidance note supplements and amends the HPCSA’s existing guidelines for the practice of telemedicine (booklet 10) as follows: The term … Continue reading

Employment law under COVID-19 lockdown: 10 things to know

Mohammed ChavoosBy Mohammed Chavoos on Posted in General
The government enforced 21 day lockdown raises many issues relating to employee rights, including concerns around whether leave (for workers who cannot work from home) will be paid or unpaid, whether UIF (Unemployment Insurance Fund) applies and what the rights of essential workers are. Here are ten things to know about employment law during the … Continue reading

Permits required for persons leaving home to perform essential services during South African lockdown

Christina PretoriusBy Christina Pretorius on Posted in General
Further regulations regarding the implementation of South Africa’s COVID-19 lockdown were released on the evening of 25 March, just over a day before the lockdown takes effect at 24:59 on 26 March. The lockdown applies to everyone within the borders of South Africa, and seeks to slow the spread of the COVID-19 virus. The new … Continue reading

First all-Skype trial in the UK

Patrick Bracher (ZA)By Patrick Bracher (ZA) on Posted in General
The Law Society Gazette (UK) reports that the UK has had its first Skype trial which could be another way to ensure court business continues during adverse circumstances (and even generally). It was a three day hearing where the judge, seven lawyers, eleven witnesses, three experts and two journalists joined the hearing online through Skype … Continue reading

FSCA relaxes reporting requirement in response to COVID-19

Desiree Reddy (ZA)By Desiree Reddy (ZA) on Posted in General
On 24 March 2020, in recognition of the impact of the current COVID-19 pandemic on the financial services industry, the FSCA released general communication 9 of 2020 which sets out relaxations of regulatory requirements. In summary, the FSCA has granted: Financial services providers A four month extension for the submission of some financial statements (not … Continue reading

COVID-19: Checklist of actions for Financial Services firms to consider

Desiree Reddy (ZA)By Desiree Reddy (ZA) on Posted in General
The speed at which the COVID-19 situation is evolving means that financial services firms are having to work rapidly to ensure that their business services can continue to operate. Effective and successful management of crises such as these is directly related to how well prepared organisations are to respond. In light of the developing situation, … Continue reading

Force majeure and contractual obligations (COVID-19)

Georg KahleYasmine WilsonBy Georg Kahle and Yasmine Wilson on Posted in General
COVID-19 and force majeure Will the corona virus (COVID-19) constitute a force majeure event under South African law? The answer to that is it depends. The virus has been declared as a pandemic by the World Health Organisation and is causing economic chaos on an international scale never seen before, due to the closure of … Continue reading

Financial Service Provider has to pay back customer who was hacked

Rosalind Lake (ZA)Priyanka NaidooBy Rosalind Lake (ZA) and Priyanka Naidoo on Posted in General
On 18 March 2020 the Supreme Court of Appeal found that funds were improperly transferred by a financial services provider (FSP) when it received fraudulent instructions from a hacker posing as its client because there was no signature on the instruction as required by the mandate. The FSP therefore acted without receiving proper instructions and … Continue reading

SCA: When is an electronic signature a signature?

Rosalind Lake (ZA)Priyanka NaidooBy Rosalind Lake (ZA) and Priyanka Naidoo on Posted in General
A signature communicated through an electronic medium like email correspondence is not a binding signature unless agreed to by the parties. In the absence of such agreement, a signature will only be valid if it appears in manuscript form regardless of the medium of communication. When entering into contracts, explicit provision must be made regarding … Continue reading

Cyber risk during COVID-19 outbreak

Priyanka NaidooRosalind Lake (ZA)By Priyanka Naidoo and Rosalind Lake (ZA) on Posted in General
A common response by businesses to the spread of COVID-19 has been to implement measures that require social distancing and remote working. To ensure business continuity, some of these measures rely on the availability of technology like VPN access, as well as the use of online platforms to hold team meetings, client calls, vendor engagement, … Continue reading

Disclaimer notice at the entrance to a store

Hishaam KhanYash NaidooBy Hishaam Khan and Yash Naidoo on Posted in General
The High Court has refused to apply the terms of a disclaimer notice to defeat the claim of a shopper who tore his bicep while trying to stop a rack from falling. The shop owner’s defence relied on the display of a disclaimer notice alongside the entrance to the store which contained an exemption of … Continue reading

Your storekeeper’s duty of care

Hishaam KhanYash NaidooBy Hishaam Khan and Yash Naidoo on Posted in General
The High Court has held that the owner and manager of a supermarket negligently breached the duty of care it owed to a shopper who was injured trying to stop a loose rack from falling. The customer’s claim arose out of an incident in which he sustained a ruptured bicep when he was shopping at … Continue reading

Coronavirus and pension funds – South Africa

Michelle DavidBy Michelle David on Posted in General
In the wake of coronavirus and the possibility of negative impacts on the economy, trustees of pension funds need to focus on their fiduciary duties. Trustees must ensure that they are well-advised on the possible impact of COVID-19 on their investments and seek to mitigate any loss to assets under investment. The mitigation must include … Continue reading

Club fees lawful under National Credit Act

Patrick Bracher (ZA)By Patrick Bracher (ZA) on Posted in General
The respondent furniture retailer in The National Credit Regulator v Lewis Stores (Pty) Ltd offered club membership to its customers including its credit agreement customers which afforded certain benefits to the club members including the chance to win attractive prizes. Club membership is open to any person whether a credit customer or not, and the … Continue reading

Grace period for pension funds with no remaining members to comply with the Pension Funds Act

Amina YudaBy Amina Yuda on Posted in General
The Financial Sector Conduct Authority published a communication on 6 March 2020 aimed at pension funds who have no remaining members and still have historical outstanding actuarial valuation report submissions and outstanding annual financial statement submissions. The purpose of the communication is to set out the process to be followed by these pension funds in … Continue reading

PAJA applies to s37C Pension Funds Act decisions

Amina YudaBy Amina Yuda on Posted in General
In February the high court confirmed that the Promotion of Administrative Justice Act (PAJA) applies to section 37C decisions on the distribution of death benefits made by the boards of retirement funds under the Pension Funds Act. In Mbatha v Transport Sector Retirement Fund and Salt Employee Benefits the court also confirmed the accepted principles … Continue reading

Disclaimers and the Consumer Protection Act

Donald DinnieBy Donald Dinnie on Posted in General
For the first time, a South African court in Van Wyk v UPS dealt with the application of the Consumer Protection Act to disclaimer clauses in a contract. On the facts, the court applied sections 22, 49 and 52 to sever from the agreement the specific clauses on which the defendant sought to escape liability … Continue reading
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