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Search and Seizure powers of the Independent Regulatory Board for Auditors

High profile corporate collapses and judicial commissions of enquiry have shone the spotlight on the possible role of auditors in these matters.  In what can be considered a step by the Independent Regulatory Board for Auditors (IRBA) to strengthen its ability to investigate such allegations, it published its new disciplinary rules effective from 01 April … Continue reading

Blog: Covid-19 Vaccine injury no-fault compensation scheme

This no-fault compensation scheme previously discussed here, has now amended regulations and directions published on the 4th April 2022, available here. The purpose of the Scheme is to provide expeditious and easy access to compensation for persons who suffer from a Covid-19 Vaccine Injury caused by the administration of an improved Covid-19 vaccine. Injuries covered … Continue reading

PAJA applies to regulations made by a Minister

The Supreme Court of Appeal has reaffirmed that the making of regulations by a Minister acting in terms of a statute constitutes administrative action within the meaning of the Promotion of Administrative Justice Act, 2000.  This means that such regulations can be challenged if they are outside the powers of the Minister under the enabling … Continue reading

Retention of records in South Africa

This blog was co-authored by: Preshanta Poonan, associate designate. South African businesses are required by law to retain a multitude of records depending on the relevant legislation and the industry or business. Since South Africa’s Protection of Personal Information Act, 2013 (POPIA) enactment, there has been much uncertainty surrounding retaining information in South Africa. POPIA … Continue reading

A brief guide to ESG

This blog was co-authored by: Bongubuhle Sibanda, candidate attorney There has been a global trend encouraging the integration of environmental, social and governance issues to be part of the business strategy and reporting practices of companies. While the concept of ESG is broad, the component parts of ESG can be broken down as follows – … Continue reading

Reserving low skilled jobs for South Africans is not likely to pass constitutional muster

This blog was co-authored by Thando Ndita, Candidate Attorney Last month the Minister of Employment and Labour published proposed amendments to the Employment Services Act, 2014, the purpose of which is to address high unemployment and the “high representation of foreign nationals” in the unskilled sector. Foreign nationals include all persons who are not South … Continue reading

Distinguishing trademark and patent protection and the Nespresso coffee capsules court battle

This blog was co-authored by: Allison Williams, Director and Bongekile Gasa, Candidate Attorney. The term trademark law refers to a branch of intellectual property law which differentiates between different goods and services through providers’ independent use of brand names, slogans, logos or other non-traditional mark. The term trademark can be described as a sign capable … Continue reading

In-duplum rule applies to arrear interest not if capital payment deferred

The in-duplum rule essentially provides that interest stops running when the unpaid interest equals the amount of the outstanding capital.  Our courts have repeatedly made clear that the in-duplum rule limits arrear interest to the outstanding capital sum.  The agreed accrual of interest on a capital sum, payment of which has been postponed, is not … Continue reading

Jurisdiction of Pension Funds Adjudicator and Financial Services Tribunal over non-participating employers

On 23 February 2022, the Financial Services Tribunal (FST) reinforced that an employee who does not have a “complaint” as provided for, in section 30A of the Pension Funds Act,1956 (PFA) cannot have recourse under the PFA. The fact of the case are: The applicant was employed as a truck driver by during the period … Continue reading

Use of background material when interpreting statutes

When the Constitutional Court had cause to interpret a section of the Labour Relations Act regarding the requirements for a secondary strike, the court had recourse to what it called the ‘main secondary source’ namely the Parliament’s Explanatory Memorandum on the Labour Relations Bill in order to gather the intention of the legislature. A secondary … Continue reading

Deduction of gratuitous payments received by damages claimants

In the June 2021 judgement of Chantell Martin v Road Accident Fund, the court decided that gratuitous or benevolent payments, received by an injured claimant from her husband, should not be taken into account in the calculation of that person’s damages for loss of earnings. The accident occurred in 2015, and the RAF had conceded … Continue reading

A cautionary tale on expert evidence

In the April 2020 case of MTV v MEC Health, the Pretoria High Court has once again placed the issue of expert evidence firmly in the judicial spotlight.  Focus was squarely placed on the requirement for expert witnesses to provide the court with as objective and unbiased opinion as possible, based on their expertise. This … Continue reading

Close Corporations and derivative actions

This Supreme Court of Appeal judgment confirms that the common law derivative action is available to members of close corporations. The common law derivative action was abolished in section 165(1) of the Companies Act and replaced with a statutory derivative action for companies. Sections 49 and 50 of the Close Corporation Act do not exclude … Continue reading

Financial Services Tribunal members

The FSCA has published a list of the members of the Financial Services Tribunal.  The Tribunal is headed by Chairperson Justice Y Mokgoro and led in the field of action by Deputy Chairperson Judge LTC Harms. There are 21 other capable members most of whom are experienced advocates. The Financial Services Tribunal has proved to … Continue reading

Opt-out class actions – a review and a certification

This judgement contains: a very useful review of the development of class actions in South African law; a consideration of whether to certify the particular class action on an opt-out or opt-in basis and decides that the interests of justice warranted certification of the class action on an opt-out basis. An opt-out class action automatically … Continue reading

Privately agreed dispute resolution rules, adjudication and the constitution

Where parties voluntarily agree a dispute resolution procedure and its rules by way of contract, they will have great difficulty in successfully alleging that those rules are unconstitutional. Our Constitutional Court has already held that as a matter of principle private arbitration is not unconstitutional and in that regard the “courts should be respectful of … Continue reading

Judgments and Peremption

The principles of peremption (abandoning a right of appeal by conduct inconsistent with an intention to exercise that right) were restated in this Constitutional Court judgment and are worth remembering. “Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self-resignation … Continue reading

Distance yourself from collusive conduct as soon as possible

This blog was co-authored by James Donald, Candidate Attorney According to the Competition Appeal Court (CAC) the competition authorities cannot apply the same test to all types of collusive behaviour when investigating whether such conduct had ceased. A firm accused of collusive conduct may be able to extricate itself from the collusive conduct without proving … Continue reading

Asylum Seekers’ right to apply for asylum not barred by delay

This blog was co-authored by: Anneline Coetsee, Candidate Attorney The Constitutional Court held in December 2021 that, although the amendments to the Refugees Act, 1998 and its regulations imposed more onerous procedural requirements on asylum seekers, these requirements do not rob them persons of their right to apply for asylum, even if there had been … Continue reading