Topic: General

CCMA: unvaccinated employee’s dismissal fair

By Michael Balie on January 26, 2022 Posted in General

On 11 June 2021, South Africa’s landscape regarding mandatory vaccination in the workplace changed with the publishing of the Consolidated Directions on Occupational Health and Safety in certain workplaces (the Directive). This Directive led to wide debate on an employer’s ability to mandate employees to receive the Covid-19 vaccine. Employers potentially face reputational and financial … Continue reading

The “provision of goods and services” as government procurement under section 217 of the Constitution

By Patrick Bracher (ZA) on January 25, 2022 Posted in General

The “provision of goods and services” as government procurement under section 217 of the Constitution The Supreme Court of Appeal held that the requirements of section 217(1) of the Constitution regarding fair, equitable, transparent, competitive and cost-effective procurement were not met where a private contracting party was providing services to smallholder farmers to promote beef … Continue reading

Prescribed rate of interest is 7.25% from 1 January 2022

By Patrick Bracher (ZA) on January 21, 2022 Posted in General

The prescribed rate of interest changed with effect from 1 January 2022 to 7.25% per annum. The previous rate was 7.00%. 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 debts unless … Continue reading

Constitutional Court test for intolerable working relationship

By NRF Digital Team on January 18, 2022 Posted in General

This blog was co-authored by Hlonela Mayosi and Heidi Davis, associate designates A recent decision in the Constitutional Court has provided legal certainty on the application of section 193(2)(b) of the Labour Relations Act, 1995 (the LRA), which relates to reinstatement of employees as the primary remedy when a court or tribunal declares a dismissal … Continue reading

The law does not require impossibilities and its effect on prescription

By Patrick Bracher (ZA) on December 17, 2021 Posted in General, Insurance

In finding that the Road Accident Fund Act three year extinctive prescription period (with some exceptions) did not apply to the claimant who had become a person of unsound mind because of the motor accident, the Constitutional Court applied the impossibility principle (lex non cogit ad impossibilia). It was held that the claimant’s action had … Continue reading

Who decides whether an arbitration agreement is valid – the court or the arbitrator?

By Patrick Bracher (ZA) on December 10, 2021 Posted in General

In a dispute over whether an arbitration could be held to resolve the dispute between the parties, one party alleged that the arbitration agreement itself did not exist for lack of agreement between them. Where there is a challenge to the arbitration agreement itself, so as to put into question the consent of the parties … Continue reading

Speaker of the National Assembly must decide whether no confidence vote is by secret ballot

By Patrick Bracher (ZA) on December 7, 2021 Posted in General

A political party challenged the decision of the Speaker of the National Assembly to hold a vote of no confidence in the President by secret ballot. The court held that the onus was not on the political party to show the need for a secret ballot by producing evidence or reasons for that procedure to … Continue reading

Why a franchisor should conduct anti-bribery & corruption due diligence on franchisees

By André Vos and Sabeeha Kathrada on December 6, 2021 Posted in General

Why a franchisor should conduct anti-bribery & corruption due diligence on franchisees When supplying an independent owner with the right to use an established business, a trade name, trademark, proprietary business knowledge and business system, it is essential for a franchisor to conduct a comprehensive background due diligence on that proposed owner. South Africa has … Continue reading

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