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THE SA ATTORNEYS’ JOURNAL

MARCH 2015

Gimme the money honey


The fairness of spousal maintenance
after divorce

Hate speech is a crime


Equality Court rules in favour
of domestic worker
TTORNEYS’ JOURNAL

THE SA ATTORNEYS’ JOURNAL CONTENTS


MARCH 2015 Issue 550
ISSN 0250-0329

Regular columns
Editorial
What every attorney should know about the Legal
Practice Act 3

Letters to the editor 4

News
Public Protector’s findings not legally binding 6
Survey on South Africa’s small law firms 8

6 Cape attorney globally recognised for contribution in


establishment of pro bono 9
Rationalisation of magisterial districts bringing justice
closer 10
2015 examination dates 10

People and practices 12

Practice note
Changes to the Administration of Estates Act 66 of 1965
and the Intestate Succession Act 81 of 1987 13

Practice management
7 9 Do you know whose money it was? 14

The law reports 29

New legislation 35

Employment law update 37

Recent articles and research 41

Opinion
Everyone has the right to life – fact or a nasciturus
fiction? 42

22 18 Books for lawyers 43

DE REBUS – MARCH 2015


-1-
FEATURES
EDITOR:
Mapula Thebe
NDip Journ (DUT) BTech (Journ) (TUT)
PRODUCTION EDITOR: News EDITOR:
Kathleen Kriel – Nomfundo Manyathi-Jele –

18 Gimme the money honey BTech (Journ) (TUT) NDip Journ (DUT)
BTech (Journ)(TUT)
The fairness of spousal maintenance sUB-EDITOR: sUB-EDITOR:
after divorce Kevin O’ Reilly – Isabel Janse van Vuren –

T
MA (NMMU) BIS Publishing (Hons) (UP)
here is a general misconception that the main, or even
the sole criterion, for a claim for spousal maintenance Editorial secretary:
Shireen Mahomed
on divorce is the claimant’s need or ability to main- Editorial Committee:
tain himself or herself. Magdaleen de Klerk discusses s 7(2) Danie Olivier (Chairperson), Peter Horn,
of the Divorce Act 70 of 1979 and that the purpose of the Mohamed Randera, Lutendo Sigogo

court’s inquiry in terms of s 7(2) is to determine what award Editorial Office: 304 Brooks Street, Menlo Park,
would be ‘just’. She also explains how each case should be Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. Tel
(012) 366 8800 Fax (012) 362 0969.
considered on its own merits in the light of the facts and E-mail: derebus@derebus.org.za
circumstances peculiar to it.
DE REBUS ONLINE: www.derebus.org.za
Contents: Acceptance of material for publication is not a guarantee
that it will in fact be included in a particular issue since this depends on

22
the space available. Views and opinions of this journal are, unless otherwise
The role of the Takeover Regulation stated, those of the authors. Editorial opinion or ­comment is, unless other-

Panel in protecting investors wise stated, that of the editor and publication thereof does not indicate the
agreement of the Law Society, unless so stated. Con­tributions may be edited
for clarity, space and/or language. The appearance of an advertise­­ment in

I
this publication does not neces­sarily indicate approval by the Law Society
t is generally accepted that legal protection of the invest- for the product or service ad­­ver­­­­tised.

ing public in a country encourages development of finan- De Rebus editorial staff use the LexisNexis online product: MyLexisNexis.
Go to www.lexisnexis.co.za for more information.
cial markets. In countries that have well-functioning legal Printer: Ince (Pty) Ltd, PO Box 38200, Booysens 2016.
rules, outside investors are willing to invest by providing Audio version: The audio version of this journal is available
funding to firms and are willing to participate in financial free of charge to all blind and print-handicapped members of
Tape Aids for the Blind.
markets. On the other hand, where investors are not pro-
Advertisements:
tected the development of financial markets may be retard- Main magazine: Ince Custom Publishing
ed. This article, written by Madimetja A Lucky Phakeng, Contact: Ian Wright • Tel (011) 305 7340 • Fax (011) 241 3040 Cell:
082 574 6979 • E-mail: IanW@ince.co.za
focusses on the regulation of mergers and acquisitions in Classifieds supplement: Contact: Isabel Janse van Vuren
terms of the Companies Act 71 of 2008 and the services Tel (012) 366 8800 • Fax (012) 362 0969
that the Takeover Regulation Panel offers. PO Box 36626, Menlo Park 0102 • E-mail: yp@derebus.org.za
Account inquiries: David Madonsela
Tel (012) 366 8800 E-mail: david@lssa.org.za
Circulation: De Rebus, the South African ­Attorneys’ Journal, is

24 Understanding deemed dismissal in published monthly, 11 times a year, by the Law Society of South
Africa, 304 Brooks Street, Menlo Park, Pretoria. It circulates free of
state departments charge to all practising attorneys and candidate attorneys and is
also available on general subscription.

T
Attorneys’ mailing list Inquiries: Gail Mason
he state, as employer, is immunised against unfair dis- Tel (012) 441 4629 E-mail: gail@lssalead.org.za
missal claims in the realm of deemed dismissal. This All inquiries and notifications by practising attorneys and candi-
date attorneys should be addressed to the relevant law society
is ensured by way of s 14(1) the Employment of Edu- which, in turn, will notify the Law Society of SA.
cators Act 76 of 1998 and s 17(3)(a) of the Public Service Subscriptions:
Act 103 of 1994. Frans Erasmus and Geraldine Kinghorn General, and non-practising attorneys: R 838 p/a
Retired attorneys and full-time law students: R 644 p/a
discuss this form of dismissal that operates outside of the Cover price: R 88 each
Labour Relations Act 66 of 1995. Subscribers from African Postal U­ nion countries (surface mail):
R 1 332 (VAT excl)
Overseas subscribers (surface mail): R 1 626 (VAT excl)
New subscriptions and orders: David Madonsela

26 Hate speech is a crime Tel: (012) 366 8800 • E-mail: david@lssa.org.za

Equality Court rules in favour of


domestic worker

T
he District Court of Cape Town, sitting as an Equality © Copyright 2015:
Law Society of South Africa 021-21-NPO
Court, recently made a landmark ruling, awarding a Tel: (012) 366 8800

domestic worker R 50 000 in damages. This was after


it found in the domestic worker’s favour in a case of hate
speech and harassment. Peter Williams discusses the case
Member of
The Audit Bureau of
Circulations of Southern Africa
and how the case can serve as a medium for social change.

DE REBUS – MARCH 2015


-2-
EDITOR’S NOTE

What every attorney


should know about
the Legal Practice Act

A
fter a long period torneys or pupils must comply with
of waiting the Legal before they can be admitted by the
Practice Act 28 of court as a legal practitioners;
2014 (LPA) was pub- (vi) the right of appearance of a can-
lished in Govern- didate legal practitioner in court or
ment Gazette 38022 any other institution; and
on 22 September 2014. In terms of s (vii) a mechanism to wind up the af-
120 of the LPA, different provisions fairs of the National Forum; Mapula Thebe – Editor
of the LPA will come into operation (b) prepare and publish a code of
on dates promulgated in the Govern- conduct for legal practitioners,
In the next few months De Rebus
ment Gazette and, in one instance, candidate legal practitioners and
intends to publish a series of arti-
after a lapse of a number of years juristic entities; and
cles, which will concentrate on the
after ch 10 has come into operation. (c) make rules, as provided for in
interaction of the profession with
On 23 January 2015 and in Gov- section 109(2).’
the LPA.
ernment Gazette 38412, the Presi- Until the LPA has come into op-
Should you have any questions
dent promulgated that parts 1 and eration in its entirety, very little is
relating to the LPA, you are invited
2 (ss 96 – 109) of ch 10 are to come expected to change in the way at-
to write to De Rebus, we will then,
into operation on 1 February 2015. torneys currently practise. The cur-
to the best of our ability, ensure
Chapter 2 of the LPA will then come rent Attorneys Act 53 of 1979 and
that your questions are published
into operation three years from 1 the current rules of the various law
together with answers.
February 2015, thereafter the re- societies will still apply to the prac-
maining provisions will come into tice of attorneys.
operation on a date still to be fixed In the period between 1 February Would you like to
by the President. 2015 and the final date on which write for De Rebus?
The sections that have come into the LPA comes into operation in its
operation pertain to the formation entirety, attorneys will be expected De Rebus welcomes article
of the National Forum (see 2015 to make input on various issues. contributions in all 11 official
(Jan/Feb) DR 21) and its mandate One important issue that attor- languages, especially from
legal practitioners. Practition-
during the transitional period. The neys will have to debate and give
ers and others who wish to
National Forum will be in existence input on is the forming of a volun- submit feature articles, prac-
for a period not exceeding three tary association that can look after tice notes, case notes, opinion
years. Section 97(1) states: the affairs of the profession as this pieces and letters can e-mail
‘(1) The National Forum must, with- will not be the function of the LPC. their contributions to dere-
in 24 months after the commence- When the LPA has come into opera- bus@derebus.org.za.
ment of this Chapter— tion in its entirety, the current four The decision on whether to
publish a particular submis-
(a) make recommendations to the provincial law societies will cease
sion is that of the De Rebus
Minister on the following: to exist and therefore also the Law Editorial Committee, whose
(i) An election procedure for pur- Society of South Africa, the pub- decision is final. In general,
poses of constituting the Council; lisher of De Rebus. A Legal Practice contributions should be use-
(ii) the establishment of the Provin- Council (LPC) will be formed to reg- ful or of interest to practising
cial Councils and their areas of juris- ulate legal practitioners. It is of the attorneys and must be original
diction, taking into account the fac- utmost importance that attorneys and not published elsewhere.
For more information, see the
tors referred to in section 23(2)(a); from now on sincerely and urgently ‘Guidelines for articles in De
(iii) the composition, powers and consider the forming of a voluntary Rebus’ on our website (www.
functions of the Provincial Coun- association to look after the affairs derebus.org.za).
cils; of attorneys. There is also debate • Please note that the word
(iv) the manner in which the Provin- whether other legal practitioners, limit is now 2000 words.
cial Councils must be elected; and non-practicing legal practi- • Upcoming deadlines for ar-
ticle submissions: 17 March
(v) all the practical vocational train- tioners should also be members of
and 20 April 2015.
ing requirements that candidate at- such a voluntary association.

DE REBUS – MARCH 2015


-3-
LETTERS TO THE EDITOR
PO Box 36626, Menlo Park 0102 Docex 82, Pretoria E-mail: derebus@derebus.org.za Fax (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys
who make their identities and addresses known to the editor may be considered for publication anonymously.

Recovering arrear levies result is that when the managing agent usually a much more costly exercise than
is approached for payment of costs, even to have done it with the appropriate le-
and legal costs disbursements, funds are not available. gal assistance in the first place.
Referring to the article ‘The recovery of There is of course the further factor that Returning to the issue of levy collec-
body corporates’ legal costs’ of attorney by approving a budget, the owners are tions and with reference to the last para-
Albert Reinecke (2014 (Dec) DR 16), I in fact determining what their levies will graph of Mr Reinecke’s article, it will
have scant criticism. His explanation of be. This is comparable to citizens being accordingly seldom be possible for the
a controversial issue of long standing able to determine their own taxes. attorney to recover ‘full indemnification’
related to the recovery of attorney-and- As far as levy collections are con- of his costs other than from the debtor
client costs from levy defaulters is much cerned, the attorney is accordingly ‘cor- in terms of a payment arrangement nor
appreciated. nered’ into a position in which he knows will it be possible for the trustees to de-
As an attorney specialising in section- that he will not be paid by his client and posit recovered costs into the common
al title matters for almost 40 years, I am has to make provision for payment of fund.
very aware of trustees of sectional title his attorney-and-client-costs when con- Tertius Maree, attorney,
bodies corporate (and sometimes also cluding a payment arrangement with Stellenbosch
the management committees of home the debtor and having to recover his
owners associations) being unwilling or disbursements and fees from payments Personal data on the
unprepared to pay the costs of their at- made by the debtor.
torneys mandated to collect arrear lev- To an extent some managing agents Internet
ies, the argument being that the costs, are complicit in sustaining this common I write in response to the article entitled
on an attorney-and-client scale, must budgetary inadequacy by comforting the ‘Personal data on the Internet – can POPI
be paid by the debtor and the attorney trustees that they, the managing agents, protect you?’ by Nthupang Magolego in
will be fully remunerated on successful are themselves perfectly able to provide 2014 (Dec) DR 20. The concept of data
completion of the matter. For this reason the necessary legal advice and drafting privacy is in its infancy stage in South
you will seldom see any provision for le- of such resolutions and rules as may Africa and the introduction of the Pro-
gal costs for collecting arrears included become necessary. While this remark tection of Personal Information Act 4 of
in the annual budget of a sectional title should not be seen as an indictment 2013 (POPI) is a welcome move to take
body corporate. I have in fact seen such against managing agents in general, I can South Africa towards respecting privacy
items being removed from budgets at mention that a large portion of my work and a reduction in the misuse of person-
annual general meetings notwithstand- as a sectional title specialist consists of al information.
ing good arguments to the contrary. The ‘correcting errors of the past’, which is In the article the author makes the

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DE REBUS –MARCH 2015


-4-
statement that: ‘The responsible party suing the legitimate interests of the re- very careful about obtaining consent
must obtain consent from the data sub- sponsible party…’ (s 11(1)(f)). where it is not required.
ject when processing personal data’. Bearing the above in mind I do not Returning to the example of Google,
The author then goes on to express his agree with the author that consent must there is a substantial difference between
concerns about whether a search engine always be obtained by a responsible par- a responsible party retaining PI until
such as Google would be able to obtain ty in order to process PI, and in particu- such time as a data subject objects to
this consent. lar, I do not believe that POPI seeks to the processing of the PI, and a respon-
In my view this statement is an incor- require responsible parties who provide sible party obtaining consent before the
rect interpretation of POPI. Even a cur- search engine services to obtain consent PI can form part of a result to a search
sory look at the remainder of s 11 makes from every data subject to process their engine query. It seems highly unlikely
it clear that there will be many instances PI (which is patently impossible). Instead (and quite impossible) for any search en-
where the personal information (PI) can the principles of POPI (which are termed gine to obtain consent from every data
still be processed without the consent ‘conditions’) should be interrogated by subject about whom the search engine
of the data subject, such as where the every responsible party in order to deter- holds PI. If POPI were to require this (and
‘processing complies with an obligation mine whether consent in their particular of course I submit that it does not) then
imposed by law on the responsible party’ circumstances is in fact necessary and search engines would either be almost
(s 11(1)(c)) or where processing ‘protects if so how this consent must be obtained useless due to the paucity of the search
a legitimate interest of the data subject’ and – equally important – maintained. results, or they would go out of business.
(s 11(1)(d)). In particular (and with refer- Consent is a ‘silver bullet’ to achieve
Paul Esselaar, attorney, Cape Town
ence to search engines) processing of PI compliance with POPI, there are several q
is permissible if it ‘is necessary for pur- good reasons why a business should be

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DE REBUS – MARCH 2015


-5-
NEWS

Public Protector’s findings


not legally binding

T
he Law Society of South
Africa (LSSA) held a col-
loquium on the Public
Protector’s powers on 4
February at the Universi-
ty of Pretoria. The theme
of the debate was: ‘Quo
vadis Public Protector?’ which means
where to from here Public Protector?
Issues discussed included whether –
• there is an attempt to undermine the
Public Protector’s office;
• attacks meted out on the office are jus-
tified;
• the office has misunderstood its pow-
ers and mandate and acts beyond its
powers, thus inviting the attacks and
criticism; and
• the office has done enough in terms of
advocacy.
Also of primary importance was the
issue of whether the Public Protector’s Public Protector, Thuli Madonsela and Law Society of South Africa
findings are binding. Co-chairperson, Max Boqwana at a colloquium on the Public Protector’s
On the panel were Deputy Minister of powers on 4 February at the University of Pretoria.
Justice and Constitutional Development,
John Jeffrey; Public Protector, Thuli Ma-
donsela; retired Judge of the Constitu-
tional Court, Justice Zak Yacoob; Deputy Ms Madonsela said it has still not been Ombudsman is in England, purely be-
Head of the School of Law at the Uni- made clear what the powers of her of- cause of South Africa’s history and Con-
versity of the Witwatersrand, professor fice are but that as far as she knew, the stitution.
Mtende Mhango and the executive secre- office’s powers are to investigate, report Justice Yacoob said, however, that
tary of the Council for the Advancement and to correct, but that it seems to have government has a responsibility to assist
of the South African Constitution, Law- changed. ‘Our understanding over the and protect all Chapter 9 institutions
son Naidoo. The Co-chairperson of the years is that appropriate remedial action and to ensure their independence, im-
LSSA, Max Boqwana, was the facilitator. meant different remedies. We have now partiality, dignity and effectiveness. He
Mr Boqwana said that the Office of the been told that it means only to mediate,’ said that government is obliged by the
Public Protector is an important institu- she said. Constitution to do so. ‘When a decision
tion in the DNA of South Africa’s democ- Professor Mhango said that the Public has been made by the Public Protector,
racy. He said that the Public Protector’s Protector’s powers are not adjudicative government must make absolutely cer-
office is the one institution that provides or binding. He stressed the point that tain that they obey the consequences’,
South African citizens with what will of- recommendations are never binding. he said.
ten be a last defense against bureaucrat- Professor Mhango said that the Pub- ‘Government must not interfere with
ic oppression and against corruption in lic Protector was accountable to Parlia- these institutions. No organ or state can
public office. ‘If the institution falters or ment: ‘Why would the law seek the Pub- interfere with the functioning of these
finds itself undermined the nation losses lic Protector to go to Parliament if her institutions. These institutions are not
an indispensable constitutional guaran- decisions are enforceable or binding?’ accountable to government, however,
tee’, he said. he questioned, adding that there would the government might wish it so, they
Mr Boqwana said that Ms Madonsela be no need to go to the legislature then. are only accountable to Parliament,’ Jus-
‘has been the epitome of bravery in the Professor Mhango said that the remedies tice Yacoob said.
country.’ of the Public Protector are political and For me, to ‘take appropriate action’
Ms Madonsela said that she never not judicial. means that the Public Protector has the
thought that there would ever have to be Justice Yacoob started his speech by right to decide what appropriate action
a discussion around whether the Office clarifying that nowhere in the world are is. ‘To go to court and say the Public Pro-
of the Public Protector is an ordinary om- the ombudsman’s powers binding. tector is wrong, is like setting aside ad-
budsman or if it is a special institution He said that the Office of the Public ministrative action’, Justice Yacoob said.
because she has always thought that it Protector is not a court, adding that the Mr Naidoo said that the findings of
was a given. Ms Madonsela argued that a recommendations of or actions taken by the Public Protector are binding but not
public protector’s findings were binding a Public Protector must be different from enforceable. He added that the Office of
– unless set aside by a court of law. ‘The a court order. Justice Yacoob added that the Public Protector is not a court of law
courts’ duty, as was the public protec- what the Public Protector is in South and its decisions do not hold the same
tor’s, was to the Constitution’, she said. Africa would be different to what the weight as the courts.

DE REBUS – MARCH 2015


-6-
Mr Naidoo questioned what the limits Jeffery said. ‘[Her] powers are to investi-
of the powers of the Public Protector are gate, and make findings and recommen-
and what the effect of its findings and dations, and put them into the public
remedial action are. domain. It is in the public domain that
Mr Naidoo said the country would be the action must be taken.’
on ‘a slippery slope’ if the Executive ig- Deputy Minister Jeffrey questioned
nored the Public Protector’s findings. whether the country was getting the max-
Deputy Minister Jeffery argued that imum effect out of the Pubic Protector’s
the Public Protector would wield too office adding that it should be possible
much power if her findings were to be to criticise the Office. ‘She keeps bring-
binding. ing up the issue of funding, but perhaps
He said that he was surprised that this she cannot manage her resources prop-
issue was such a debate because the pre- erly. In the 2010/2011 financial year the
vious Public Protectors were comfortable Office of the Public Protector was given
with the decision that the office’s pow- R 114 million, in the current year it was
ers are not binding. ‘It has always been given R 217 million. The South African
Deputy Minister of Justice and
like this. Ms Madonsela has even said Human Rights Commission received
Constitutional Development, John
that the government has implemented a R 128 million for this current financial
Jeffrey, speaking at a colloquium
large amount of her recommendations. year. Are the Public Protector’s resources
on the Public Protector’s powers in
If her decision is binding, should we not being used adequately?’ he concluded.
Pretoria in February.
do away with our courts then?’ he asked. With the exception of Ms Madonsela,
‘The Public Protector is essentially an the panelists in the debate agreed that
investigator, prosecutor and judge all ‘The institution works through public the Public Protector’s findings were not
rolled into one. That is quite unheard of pressure. This issue only sprung up af- legally binding.
in our law,’ he said. ter the Nkandla report, it should not be
Deputy Minister Jeffery said findings an issue because binding or not, govern-
of the Office of the Public Protector ment is responding as it is supposed to,’
do not need to be binding because an Deputy Minister Jeffery said.
extremely high percentage are recom- ‘Surely the Public Protector is not a Nomfundo Manyathi-Jele
nomfundo@derebus.org.za
mended by government anyway. quasi-judicial body,’ Deputy Minister

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DE REBUS – MARCH 2015


-7-
I
Survey on South Africa’s
n an effort to understand the
unique challenges that attorneys
in small law firms face, inde-
pendent research firm, Activate,
conducted a survey on behalf of
LexisNexis. Over 160 independ-
small law firms
ent small law firms across South
Africa were approached to partake in the a small law firm due to dissatisfaction in the current climate. Optimism about
survey. with large firms, while under 10% went the future and continued enjoyment of
According to the report, the survey this route because of a change in circum- the practice of law were still highly evi-
was carried out in August 2014 with stance. dent, with 96% of the firms confident to
responses from lawyers and support very confident in their practices while
staff in small law firms. LexisNexis’ data Technology 77% had plans to grow over the next five
shows that of the 10 930 law firms in years’, the report states.
South Africa, with over 21 000 lawyers According to the report, the survey
According to the survey findings, the
in total, more than three quarters, are showed that most of the law firms are
Legal Practice Act 28 of 2014 emerged as
considered small firms and are made up early adopters of change who recognise
a worry for some lawyers. They feel that
of one to ten fee earners who are mostly that technology will have a significant
the government is making it harder for
engaged in litigation, debt collecting and impact on their business. Seven out of
them to be competitive by over regulat-
conveyancing. The survey sample con- ten of the law firms surveyed have al-
ing while at the same time taking away
sisted of a balance of lawyers (56%) and ready increased their investment in new
business that was exclusively the domain
support staff (44%). Activate spoke to a technology and processes; recognising
of an attorney such as conveyancing and
total of 80 lawyers, which consisted of that this is going to have a significant
estates, as this is seen to be eroding the
42 black lawyers and 32 white lawyers, impact on their businesses.
work of smaller practices. Keeping up
as well as, a smaller number of Indian The majority (58%) view smarter use of
to date with legislation, precedents and
and coloured legal professionals. technology and networking as the most
new developments in their field is also a
The survey revealed that increased in- important ways to grow their business
concern to independent lawyers.
vestments in technology, coupled with with two thirds stating that they carry
Many of the challenges facing small
shifting research trends and the chal- out their legal research online.
law firms are common to small busi-
lenges of keeping up to date with fre- Six out of ten of the small law practic-
ness owners including cash flow, retain-
quently changing legislation, are just es cited word-of-mouth referrals as the
ing and growing a client base, economic
some of the aspects characterising the most effective marketing tool to grow
effects and being up to date with their
small law firms in South Africa. The their businesses and over three quarters
profession. However a strong entrepre-
survey also revealed that smarter use of favoured face-to-face networking over
neurial spirit is evident in this market.
technology is seen as a key catalyst for online and social media. Social media
There is some concern that the pie is
growth by the majority of the firms, with adoption was low among smaller firms,
shrinking, but more attorneys are want-
networking second and marketing and but among the 40% who are experiment-
ing a share of it.
online services sharing a close third. ing and innovating, LinkedIn is seen as
According to the survey report, law
Of the independent lawyers surveyed, their main social media channel to grow
is a chosen and intentional career deci-
just under half practise as sole practi- their business with 72% saying it is their
sion with over 57% citing it as a planned
tioners (47,8%), while 37,4% were firms platform of choice. Facebook was the
move, and a further 25% wanting to own
of one to two fee earners and the minor- next alternative at 58% with Twitter com-
a business.
ity were in boutique law firms or part- ing in third at 18%.
‘This is a significant and evolving part
nerships. The survey also revealed that personal
of our legal landscape, and we wanted to
The respondents had a wide range of service, specialisation and attention to discover their attitudes towards the chal-
experience, with the majority (68,2%) be- clients’ needs are seen as crucial to de- lenges facing them. What we discovered
ing experienced lawyers who had been livering the returns among small law were passionate dedicated lawyers who
practising law for five years or more, firms. Furthermore, the need to evolve believe strongly in what they do and en-
while 46,9% had been in their current and adapt was recognised by 88% of the joy contributing to their own sphere of
small law practices for three years or respondents. activity,’ the report states.
less. For most respondents (more than ‘In terms of their economic outlook,
80%), practising in a small law firm was more than half (58%) had a stable busi-
a conscious and planned career decision. ness outlook and more than two thirds
One in four lawyers specifically wanted (37%) said their business was growing,
to run their own business. Only a small although a significant 68% reported that Nomfundo Manyathi-Jele
it is harder to make a living out of law nomfundo@derebus.org.za
percentage of the sample (1,7%) were in

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DE REBUS – MARCH 2015


-8-
NEWS

Cape attorney globally recognised for


contribution in establishment of pro bono

C
ape Town attorney Taswell The college was formed in 1994 to
Papier has been recognised honour and recognise distinguished law
for his services to the profes- practice management professionals in-
sion, particularly for his work ternationally. Since its establishment,
in the human rights/access the college has inducted 200 fellows
to justice arena, and particularly in his from ten different countries.
contribution in the establishment of pro Mr Papier was also the first African
bono work in South Africa and has been to be adjudged the global lawyer of the
inducted as a fellow of the College of year in the United Kingdom in 2006. He
Law Practice Management in Boston, in said that this award was equally hum-
the United States. He is the first African bling, and added that none of this would
to receive this honour. have been possible without the work of
Mr Papier told De Rebus that member- the National Association of Democratic
ship at the College of Law Practice Man- Lawyers, the Black Lawyers Association,
agement is based on peer nominations the provincial law societies as a whole in
that are evaluated and approved by a se- adopting the obligatory pro bono rule,
lection panel. Individuals are recognised and those lawyers who continue to give
for having made a ‘significant contribu- Cape Town attorney Taswell Papier back generously to society.
tion to the legal profession over a period has been inducted as a fellow of the Mr Papier, who was admitted as an at-
of at least ten years’. ‘I was a bit embar- College of Law Practice torney in 1988, is a partner at ENSafrica
rassed at being singled out because there Management in the United States where he specialises in corporate and
are many lawyers who served the cause for his contribution in the commercial work. ‘My previous offices
of pro bono and human rights, and who establishment of pro bono. in Mitchells Plain have been retained by
could equally be recognised. As a mem- ENSafrica as its pro bono office and all
ber of the College, one has access to legal our attorneys serve time there during
professionals across the world, which issues where mutual benefit can be de- the week, advising the poor and con-
assists in building global networks on rived and expertise shared,’ he said. ducting workshops in the Mitchells Plain

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DE REBUS – MARCH 2015


-9-
NEWS

and Khayelitsha communities. We have tribute to building confidence in our le- CC15/2014, 8-12-2014) (Traverso DJP)),
replicated this model in the township of gal system, facilitating access to it, and has acted as a judge in the Cape High
Alexandra, where all the lawyers at our providing free legal services to our most Court on three occasions. He was the
Sandton office render free legal services marginalised communities is one way president of the Cape Law Society and
and training’, he said. of achieving that. This level of sophisti- chaired its disciplinary committee. He
Mr Papier said that pro bono work was cation does not only bring relief to the is also the past chairperson of the Law
imperative as it is about facilitating ac- poor and marginalised, but is indeed a Society of South Africa’s Pro Bono Com-
cess to justice, particularly to the poor. barometer for foreign direct investment, mittee, and was recognised as a leading
‘It is about building the rule of law, and growing our economy, and improving lawyer by Best Lawyers 2013 – Finance
respect for the rule of law. Having ac- our society. Our Apartheid legacy has (South Africa).
cess to justice irrespective of social or left a significant gap between rich and Mr Papier is also admitted as an attor-
economic standing is the right of every poor, which has to consciously and de- ney in Namibia.
human being, and it is this which builds liberately be eradicated,’ he said.
the rule of law and respect for the rule Mr Papier, who was the instructing
of law, and belief in a system of justice. attorney in the Shrien Dewani case (S Nomfundo Manyathi-Jele
As lawyers, we need to consistently con- v Dewani (WCC) (unreported case no nomfundo@derebus.org.za

Rationalisation of magisterial districts


bringing justice closer

C
ommunities in the Gauteng which is a distance of about 40 kilome- being dealt with in accordance with the
and North West provinces are tres. With the rationalisation process, newly-proclaimed areas of jurisdictions.
travelling shorter distances to the Diepsloot community will now be Other provinces will undergo the same
access justice services closer serviced by the Randburg Magistrate’s process from April 2015 starting with
to where they live. This initia- Court, which is some 15 kilometres away. Limpopo and Mpumalanga.
tive was launched by the Justice Depart- In a press release, the Justice Depart- There will also be a seat for a Divi-
ment and is known as the ‘rationalisa- ment said that the aim was to alleviate the sion of the High Court in each of the
tion of magisterial districts to municipal long distances travelled by communities nine provinces to ensure that communi-
boundaries’. to access courts and costs they incurred. ties are able to access services of a High
This initiative seeks to align the magis- Moreover, this programme seeks to re- Court in the province of their residence.
terial boundaries of the country’s courts dress the racially based judicial bounda- The construction of the Limpopo and
with municipal and provincial bounda- ries under Apartheid where courts were Mpumalanga seats of the High Court,
ries, which ensures that people are ser- established mainly in affluent areas while which are currently underway, is part of
viced by a court that is within their mu- historically disadvantaged areas were this reform process.
nicipal boundaries. serviced through under resourced and
For example, in terms of the old mag- dilapidated courts.
isterial boundaries, the Diepsloot com- The Justice Department said that all
munity had to travel to the Pretoria Mag- new cases enrolled from 1 December Nomfundo Manyathi-Jele
istrate’s Court to access justice services, 2014 in Gauteng and North West are nomfundo@derebus.org.za

2015
examination dates THE SA ATTORNEYS’ JOURNAL digital
Admission examination De Rebus is the South African attorneys’ journal. It is published monthly for the benefit
The admission examination dates of practising ­attorneys and candidate attorneys. De Rebus Digital is an exact replica
for 2015 are: of the print version and is available to everyone with access to a computer, laptop or
• 18 August tablet.
• 19 August
Can you afford not to have this valuable information at your fingertips?

Conveyancing Subscribe to this free service by e-mailing your name and e-mail address to:
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DE REBUS – MARCH 2015


- 10 -
LEGAL RESOURCES
from Juta Law

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Marleen Potgieter is a former partner at a law firm who

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The 2015 edition of Juta’s Compendium of Tax Legislation contains the
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JUTA’s 2015

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• The Employment Tax Incentive Act and the Rates of Normal Tax and the TRANSFER DUTY ACT
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Income Tax Monetary Thresholds and Rebates subject to The
Periodic
2015Legislative
edition of Juta’s Compendium of Tax Legislation contains the
Change (the latter having been updated by Juta’s Lawfollowing
Editors) features
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Perspectives on the Law of PartnershiP in South Africa

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Administration UPDATED AS AT 1 JANUARY 2015 VALUE-ADDED TAX ACT
the Transfer Duty Act
TAX ADMINISTRATION ACT
JUTA’s 2015
TAX LEGISLATION
COMPENDIUM OF

Volume 2:
• Prelex (wording in force until the date of the coming into operation of the
• Material relating to the Income Tax Act, the Value-Added Tax Act and
new wording)
the Tax Administration Act, such as Interpretation Notes, Practice Notes, ESTATE DUTY ACT

HIP Advance Tax Rulings and Regulations • Pendlex (wording of provisions that will not yet be in force by 1 April
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are published, one numerical in terms of the publication number and the Tax Incentive Act and the Rates of Normal Tax and the
• The Employment
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other numerical in terms of the sections of the Act in question
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in South Africa
2015 COMPENDIUM OF
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www.jutalaw.co.za
@jutalaw Juta Law
PEOPLE & PRACTICES

People and practices


Compiled by Shireen Mahomed

Bax Kaplan Attorneys and Russel Fasken Martineau in Johannesburg


Please note: Preference will be
Inc in East London will amalgamate has appointed seven new associates.
gi­
ven to group photographs from March 2015. Bradley Sparg and
where there are a number of Bridgette Magnus directors of Russell Siphamandla Dube
featured people from one firm Inc will join Steve Clarke and Mike has been appointed
in order to try and accommo- Francis as directors of Bax Kaplan in the labour,
Russell Inc. employment and
date everyone.
human rights de-
partment.

ENS has five new appointments:


Nikita Madikoto
Chavern Ismail has has been appointed
been appointed as a in the banking and
senior associate in finance department.
the intellectual prop-
erty department in
Johannesburg. Bridgette Bradley
Magnus Sparg

Shirley Mlombo has Robert Burman has


been appointed as been appointed in
an associate in the the banking and
employment depart- finance department.
ment in Johannes-
burg.

Mike Steve
Grant Morgan has
Francis Clarke Margo-Ann Palani
been appointed as
has been appointed
an associate in the
in the environmen-
mine and occupa-
tal department.
tional health and
safety department in Cliffe Dekker Hofmeyr in Johannes-
Johannesburg. burg has three new appointments:

Natasha Wagiet has Nayna Parbhoo has


been appointed as a been appointed as a Susan Braybrooke
pro bono coordina- director in the real has been appointed
tor in the pro bono estate department. in the corporate and
department in Cape commercial depart-
Town. ment.

Ryan Reddy has


been appointed as Mareli Treurnicht
Mzimasi Mabokwe
a senior associate has been appointed
has been appointed
in the shipping and as a senior associate
in the litigation and
logistics department in the tax depart-
dispute resolution
in Durban. ment.
department.

Fairbridges Dayne Muller has Ingrid Rogers has


Arderne & Lawton been appointed as been appointed in
Inc in Cape Town a senior associate the antitrust compe-
has appointed Brit- in the finance and tition and market-
tany Badham-Thorn- banking department. ing department.
hill as an associate
in the commercial
department.

DE REBUS – MARCH 2015


- 12 -
PRACTICE NOTE

Changes to the Administration of Estates


By
Act 66 of 1965 and the Intestate
Maurice
Alexander
Succession Act 81 of 1987

T
he Minister of Justice and exceed the amount … [R 250 000] … and the Republic or in any mortgage over
Correctional Services re- the alienation would be in the interest of such immovable property on behalf of
pealed and confirmed the the minor or of such person, as the case the minor or other person, approved by
changes to the amounts may be’. the Master: Provided that, subject to the
in respect of the following • In terms of s 80(2)(b) the Master may at terms of any such will or instrument, the
sections of the Administra- any time authorise ‘any mortgage of any aggregate of the payments made in the
tion of Estates Act 66 of 1965 – such immovable property to an amount case of any minor or other person for
• s 18(3); not exceeding in the case of any one purposes of maintenance, education or
• s 80(2)(a); such minor or person, the amount … [of other benefit shall not, without the sanc-
• s 80(2)(b); and R 250 000] … if the mortgage is neces- tion of the court, exceed … [R 250 000]
• s 90(1) (see GN R920 GG38238/38238/ sary for the preservation or improve- … of the capital amount received for ac-
24-11-2014). ment of the property or for the mainte- count of the minor or other person con-
It is important for all practitioners to nance, education or other benefit of such cerned’.
note that the amounts in respect of the minor or person, as the case may be’. The Minister also repealed and fixed
above sections have now been increased • In terms of s 90(1): ‘The Master may, the amount in respect of s 1(1)(c)(i) of
to R 250 000 from its previous limit of subject to subsection (2) and subject to the Intestate Succession Act 81 of 1987
R 150 000, which implies the following: the terms of any will or written instru- and it is important for all practitioners
• In terms of s 18(3), if the value of the ment disposing of the money or, in the to note that the change has the following
estate exceeds R 250 000, letters of exec- case of a tutor or curator, by which the implication:
utorship must be issued and the full pro- tutor or curator has been nominated, • In terms of s 1(1)(c)(i), if after the
cess prescribed by the Administration of pay to the natural guardian or to the tu- commencement of the Act a person
Estates Act must be followed. However, tor or curator, or for and on behalf of dies intestate, either wholly or in part,
if the value of the estate is less than the minor or other person concerned, and is survived by a spouse as well as
R 250 000, the Master may dispense with so much of any moneys standing to the a descendant, such spouse shall inherit
letters of executorship, and issue letters credit of the minor or other person in a child’s share of the intestate estate or
of authority. the guardian’s fund as may be immedi- so much of the intestate estate as does
• In terms of s 80(2)(a), the Master may ately required for the maintenance, edu- not exceed R 250 000, whichever is the
at any time authorise ‘any alienation of cation or other benefit of the minor or greater.
immovable property belonging to a mi- other person or any of his dependants,
nor or to a person for the administration or for any purpose referred to in subpar- Maurice Alexander LLB (UWC) is a
of whose property a tutor or curator has agraph (i), (ii) or (iv) of paragraph (c) of candidate attorney at Knowles Hu-
been appointed, if the value of the par- the proviso to section 82, or for any in- sain Lindsay Inc in Cape Town.
ticular property to be alienated does not vestment in immovable property within q

175x78REPRO.pdf 1 2012/05/02 11:09 AM

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like home.
We have our place.
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Visit nspca.co.za for
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DE REBUS – MARCH 2015


- 13 -
PRACTICE MANAGEMENT

By the Financial
Forensic
Investigation
Do you know whose
money it was?
Team of the At-
torneys Fidelity
Fund

C
lients from time to time and information of – held and paid by it for and on account
entrust their money and/ 13.5.3.1 all monies received, held and of any person as well as of all moneys
or property to practition- paid by it for and on account of any per- invested by it in terms of section 78(2)
ers for future payments son; or section 78(2A) of the Act and of any
on their instructions to 13.5.3.2 all monies invested by it in interest referred to in section 78(3) of
the practitioner/s. Prac- terms of section 78(2) or section 78(2A) the Act which is paid over or credited to
titioners are required by of the Act; it, as well as any interest credited to or
the Attorneys Act 53 of 1979 (the Act), 13.5.3.3 any interest referred to in sec- on any separate trust savings or other
the rules applicable to the various law tion 78(3) of the Act which is paid over interest – bearing account referred to in
societies and the draft uniform rules to or credited to it; section 78(2A).
keep accounting records for monies that 13.5.3.4 any interest credited to or in • The draft uniform rules also capture
they are entrusted with. respect of any separate trust savings or these requirements under r 35.5 in more
• Section 78(4) of the Act states: ‘Any other interest-bearing account, referred or less the same way as it is captured in
practising practitioner shall keep prop- to in section 78(2A)’. the Cape Law Society rules.
er accounting records containing par- • Law Society of the Northern Provinces Every practitioner/practice allocates
ticulars and information of any money – r 68.1 states: ‘A firm shall keep in an a client reference for each of its clients,
received, held or paid by him for or on official language of the Republic such that reference is used in all correspond-
account of any person, of any money accounting records as are necessary to ence between the practice and the client.
invested by him in a trust savings or represent fully and accurately in accord- The client is also expected to quote this
interest-bearing account referred to in ance with generally accepted accounting reference whenever money is paid into
subsection (2) or (2A) and of any interest practice the state of affairs and business the attorney’s trust account in order for
on money so invested which is paid over of the firm and to explain the transac- the funds to be correctly allocated to the
or credited to him’. tions and financial position of the firm client’s respective account. Instances
• KwaZulu-Natal Law Society – r 20(1) including and without derogation from occur where clients either do not quote
states: ‘A firm shall keep in an official the generality of this rule – the reference when they make deposits
language of the Republic such account- 68.1.1 records showing its assets and or they misquote the reference resulting
ing records as are necessary fairly to liabilities; in difficulties for the practice to allocate
present in accordance with generally ac- 68.1.2 records containing entries from the funds received in the trust account,
cepted accounting practice the state of day to day of all moneys received and as these become unknown/unidentified.
affairs and business of the firm and to paid by it on its own account; When this happens, an account in the
explain the transactions and financial 68.1.3 records containing particulars general ledger called ‘suspense’ is used.
position of the firm including, without and information of all moneys received, A suspense account can be defined as
derogating from the generality of this held and paid by it for and on account ‘an account in the general ledger that
rule – of any person as well as of all moneys temporarily stores any transactions for
(a) records containing particulars and invested by it in terms of section 78(2) which there is uncertainty about the ac-
information of all monies received, cred- or section 78(2A) of the Act and of any count in which they should be recorded’
ited to, held and paid by it including in- interest referred to in section 78(3) of (www.accountingtools.com/questions-
terest for and on account of any person the Act which is paid over or credited to and-answers/what-is-a-suspense-ac-
as well as of all monies invested by it in it, as well as any interest credited to or count.html, accessed 29-1-2015). Once
terms of section 78(2) or 78(2A) of the on any separate trust savings or other the owner of the funds is known/iden-
Act; interest – bearing account referred to in tified, the funds are removed from the
(b) records showing its assets and li- section 78(2A)’. suspense account and allocated in the
abilities’. • Free State Law Society – r 16.1 states: owner’s account.
• Cape Law Society – r 13.5 states: ‘A ‘A firm shall keep in an official language It is useful to have a suspense account,
firm shall keep in an official language of the Republic such accounting records rather than not recording transactions
of the Republic such accounting records as are necessary to reflect in accordance at all until there is sufficient informa-
as are necessary to present fairly and in with generally accepted accounting prac- tion available to create an entry to the
accordance with generally accepted ac- tice the state of affairs and business of correct account(s). Otherwise, larger
counting practice the state of affairs and the firm and to explain the transactions transactions may not be recorded by the
business of the firm and to explain the and financial position of the firm includ- end of a reporting period, resulting in
transactions and financial position of ing and without detracting from the gen- inaccurate reporting. However, accurate
the firm including, without derogation erality of this rule – records and reports of the suspense ac-
from the generality of this Rule – 16.1.1 records showing its assets and count should be maintained by the prac-
13.5.1 records showing its assets and liabilities; tice, including regular reconciliations of
liabilities; 16.1.2 records containing day to day these accounts. It is in the best interest
13.5.2 records containing entries from entries of all moneys received and paid of the practitioner to ensure that these
day to day of all monies received and by it on and from its own account; accounts are cleared on a regular basis
paid by it on its own account; 16.1.3 records containing particulars to avoid keeping transactions in the ac-
13.5.3 records containing particulars and information of all moneys received, count for prolonged periods. In clearing

DE REBUS – MARCH 2015


- 14 -
these accounts, the practitioner should were in fact received but never correctly misappropriation of trust funds. Practi-
ensure that the rightful account is first allocated. This becomes an administra- tioners need to have in place a system
identified and then funds are removed tive error, which may result in the client where a suspense report and reconcilia-
from the suspense account into that ac- being called on to pay in, and putting a tion is regularly generated and reviewed
count. There will be accounting entries burden on the client to prove over and as means to monitor movements in and
reflecting on both the suspense and the over again that the money was paid in, out of suspense.
rightful account as evidence of realloca- and in the process ruin the reputation of • Other instances have also been noted
tion of the funds. Should fees be due to the practice and the practitioner/s. where malicious staff reflect having
the practice, these should not be taken • Instances have been noted for some passed journals in reallocation of these
directly from suspense but should first practices where funds sitting in sus- amounts, thus creating an entry in sus-
be allocated to the rightful account and pense remain in suspense for prolonged pense but the contra leg is untraced,
fees taken from that account. periods. There could be malicious staff only to find that there were payments
There are a number of reasons why working with these accounts who ob- effected and not journals passed. This
these accounts should be cleared on a serve these monies on a daily basis and is another form of misappropriation of
regular basis, ranging from administra- may get tempted to use the money as trust funds. In order to deal with this
tive reasons to risk of misappropriation. they know that it is unknown and believe risk, practitioners should monitor the
The sections that follow explore what it may not be noticed if it goes miss- suspense account closely and ensure
could happen: ing. They then start paying directly out that all journals are pre-authorised.
• Let us assume that a client pays into of suspense for their own benefit. This From the foregoing examples of what
the attorney’s trust account for fees due would constitute misappropriation of may happen on the suspense account,
but does not put a reference or puts an trust funds. Should the rule of not pay- the resultant effect is that funds may be
incorrect reference. On receipt of the ing directly from suspense have been en- misappropriated, which may cause ir-
money by the practice, the amount will forced at the practice, it would be easier reparable damage to the practice and the
be allocated to suspense pending cor- for the practitioner/s to notice such pay- practitioner/s. As a principle, any money
rect identification of the owner. On iden- ments and investigate soon. sitting in suspense is unknown and re-
tification of the owner of the money, • Other instances have also been noted mains unknown until it is known and is
the practitioner takes his or her fees where malicious staff, due to enforce- removed from suspense to the correct
directly from suspense to business ac- ment of the rule not to pay directly out of account. It, therefore, follows that one
count (makes a transfer from trust to suspense by the practice but to first allo- may not make any payments or take any
business), without first removing it from cate to the correct account, would create fees from unknown funds (suspense ac-
suspense to the owner’s account. The fraudulent accounts, allocate funds re- count). Monies entrusted are to be used
owner’s account remains open in the moved from suspense to these accounts only for the benefit of the owner of the
practice’s records as it would continue and effect payments from those for their funds, and that owner being known.
to reflect fees outstanding while these own benefit. This would also constitute Sub-rule 35.10.2 of the draft uniform

What’s Next. WIN a Lenovo Tablet


and one year’s free access to LexisMobile
The winner of the 2015 LexisNexis Prize for the best article contributed to De Rebus by
a practicing attorney will receive a Lenovo Tablet, as well as 12 months free access to
LexisMobile.
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The following conditions apply to entries.


The article should not exceed 2 000 words in length and should also comply with the other guidelines for the publication
of articles in De Rebus.
• The article must be published between 1 January 2015 and 31 December 2015
• The Editorial Committee of De Rebus will consider contributions for the prize and make the award. All contributions that
qualify, with the exception of those attached to the Editorial Committee or staff of De Rebus, will be considered.
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Any queries and correspondence should be addressed to:
The Editor, De Rebus, PO Box 36626, Manlo Park, 0102.
The Admont Abbey Library, Austria
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C001/15

C001-15_LN_prize_ad_120x175_6.indd 1 2015/01/16 2:46 PM


DE REBUS – MARCH 2015
- 15 -
PRACTICE MANAGEMENT

rules requires that a firm transfers trust account practice following the date
money from its trust banking account upon which those funds were deposited
to business banking account ‘35.10.2.2 in the trust account of the trust account
if the trust creditor from whose account practice, be paid over to the Fund by the
the transfer is made is identified’. trust account practice.
The KwaZulu-Natal Law Society issued (b) Nothing in this subsection deprives
a guideline on 14 August 2006 (https:// the owner of the money contemplated in
www.lawsoc.co.za/upload/files/2007- paragraph (a) of the right to claim from
CIRC%2001.pdf, accessed 4-2-2015), the Fund any portion as he or she may
and s 87(4) of the Legal Practice Act 28 prove an entitlement to’.
of 2014 captures this guideline which This subsection aims to avoid monies
states: lying in suspense for too long as people
‘(a) Any money held in the trust ac- may begin to have ideas of how to misap-
count of a trust account practice in re- propriate the funds as suspense money
spect of which the identity of the owner is a ‘soft target’ for misappropriation.
is unknown or which is unclaimed after In summary, what to do if you receive
one year, must, after the second annual unknown/unidentified monies in trust
closing of the accounting records of the account:

Receive
unidentified/
unknown money
in trust
Claim back
from Open a
Attorneys’ Fidility suspense
Fund once account
identified

Pay over
unidentified
money to the Monitor
Attorneys’ Fidility suspense
Fund after two account
accounting
periods
Reallocate
identified
money

What not to do with suspense money: Do not


pay out or
take fees,
money is
unknown

Suspense Do not pass


Account unauthorised
and/or false
journals

Do not
create
fraudulent
Always know whose money was used
accounts
and what it was used for.

Financial Forensic Investigation Team of the Attorneys Fidelity Fund in


Centurion.
q

DE REBUS – MARCH 2015


- 16 -
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Gimme the money honey
The fairness of spousal By
Magdaleen

maintenance after divorce de Klerk

T
here is a general miscon- laid on any one or more of these factors,
ception that the main, or and they are not listed in any particular
even the sole criterion, order of importance or of greater or less-
for a claim for spousal er relevance.
maintenance on divorce The feature of overriding importance
is the claimant’s need or is that the court will grant such order as
ability to maintain him- it considers to be just.
self or herself. The discretion given to the
The law to be applied is s 7(2) of the court in terms of s 7(2) must
Divorce Act 70 of 1979 (the Act). be judicially exercised. This
Section 7(2) of the Act provides that means that discretion must
the court granting a decree of divorce be exercised according to es-
may make a maintenance order in favour tablished rules of law and
of one of the spouses after considering practice.
the following factors, namely – This presupposes
• their existing or prospective means; that evidence
• their respective earning capacities;
• their financial needs and obligations;
• the parties ages;
• the duration of the marriage;
• the standard of living of the
parties prior to the divorce;
• the parties’ conduct inso-
far as it may be relevant
to the break-down of the
marriage;
• an order in terms of
subs (3); and
• any other factor,
which in the court’s
opinion should be taken
into account.
The purpose of the
court’s inquiry in terms
of s 7(2) is to determine
what award would be
‘just’.
The court is required
to consider the factors
referred to in s 7(2) in
order to decide, firstly
whether maintenance is
to be paid at all and, if
so, the amount to be paid
and the period for which
maintenance is to be paid.
Section 7(2) gives the
court the widest discre-
tion to take into account
the factors listed and any
other factor that in the
opinion of the court should
be taken into account. Picture source: Gallo Images/istock
No particular stress was

DE REBUS – MARCH 2015


- 18 -
FEATURE

regarding those factors should be placed into account the fact that the division of (W) that an approach that no more than
before the court. roles in families influences not only the financial need on the part of the claim-
Each case should be considered on its past earning capacity of the parties, but ant and ability to pay on the part of the
own merits in the light of the facts and also their future earning capacities. For other spouse need be established for the
circumstances peculiar to it and with re- a discussion of this view, see the article court to make a maintenance order ‘is
gard to those factors set out in s 7(2). entitled “Labours of Love: Child custody not consistent with the wording of s 7(2)
and the division of matrimonial property which requires consideration of a mul-
With regard to the at divorce” (Elsje Bonthuys, BA LLB PhD, tiplicity of identified factors which are
question whether (2001) 49 THRHR p 192 at 202), of which not a numerous clauses. One is required
the following quotation is an extract: to go further than “financial needs” and
maintenance is to be paid: “A legal reluctance to order maintenance “existing means” and “earning capaci-
It was held in K v K 2006 (6) SA 127 (C) for working women who are considered ties”’ (at para 49).
that: ‘This Court, however, also takes able to support themselves not only en- It was held further that: ‘What is
tails, therefore, a refusal to compensate thought to be a “just” order in the con-
them for past diminution in earning text of the Divorce Act must contain a
power, but fails to ac- moral component of what is thought
count for loss of to be “right” and “fair”. Fairness envis-
earning power ages that the order is “appropriate” as
which inevi- between the parties, and when measured
tably attaches against all the factors specified in s 7(2)
to post-divorce and those others which a court decides
custody”’ (at para should also be taken into account. What
11.2.11). is “appropriate” brings one back full cir-
It was further held cle to the moral consideration that the
that the decision of Mullins J in P v P order must be “deserved”’ (at para 46).
1990 (1) SA 998 (E) is supported where it It was held in N v N 1984 (2) SA 294
is stated that: ‘A woman’s ability to earn (C) that: ‘A proper weighing of all these
income does not per se, in my view, dis- factors is important to counter-balance
entitle the Court from ordering her for- the inherent immorality that could fol-
mer husband to pay her maintenance’ low were the sole or even the main cri-
(at 1003–G). terion for a claim for maintenance to be
It was held in B v the plaintiff’s need or ability to maintain
B 2009 (3) herself’(at 297–B).
SA 89 It was held further that: ‘Had the
Legislature intended to preserve the
common law and limit maintenance in
accordance with a wife’s ability to
maintain herself … the Divorce
Act could encourage im-
morality in many ways. It
could then be the middle-
aged libertine’s charter
of freedom. A man could
throw out the woman
who had shared his bed,
ran his home, and reared
his children, after twenty
years or so, replacing her
with something younger
and prettier, and claim
that his wife is not enti-
tled to maintenance be-
cause during twenty years
of minding his home and
family she had also earned
money outside that home
… and could now that the
children were off her hands
work that much harder. On
the other hand it would be
equally unjust that an indi-
gent woman unable to earn
much money could marry
a wealthy man, walk out of
her wifely duties and try to
use him as a meal-ticket for
life … I can think of no rea-
son why a blameless husband
who has sacrificed his own
career advancement and along

DE REBUS – MARCH 2015


- 19 -
with it income and pension benefits, in favour of his wife’s, income if in fact she does not find employment’.
should not be entitled to a contribution towards his mainte- With regard to the amount of maintenance to be paid it was
nance from her, merely because he would not starve without’ held in the K v K (1986) case (op cit) that in most cases persons
(at 297–C). who have become divorced will be compelled by necessity to
It was held in VDW v VDW (GNP) (unreported case reduce their standards of living, for where the available means
no55831/08, 23-3-2011) (Southwood J) that: ‘Before the com- of support are not adequate to maintain both according to
mencement of the Act it was said that no maintenance will be their former scale of living, each must of necessity scale down
awarded to a wife who is able to maintain herself and that a his or her budget. To say that two can live as cheaply as one, is
wife cannot expect to enjoy, after divorce, the same standard not true. The fact of the matter is that two living together can
of living that she had as a married person – see Hahlo Hus- live more cheaply than two living apart, for obvious reasons
band and Wife 5ed 361 and the cases there cited. However it is such as the need for two residences plus rates, maintenance,
clear from the factors enumerated in section 7(2) and the wide service charges and all the rest of it.
discretion which is conferred on the trial court that it is not In the P v P (1990) matter (op cit) it was held that ‘a wife
bound to refuse a wife’s claim for maintenance simply because should, in my view, be able to expect the same standard of
she can support herself.’ living that she had as a married woman. In most cases it may
It was held in R v R 1980 (3) SA 446 (C) that: ‘A wife of long not be possible to achieve this goal, and of course a husband
standing who has assisted her husband materially in building should be entitled to the same expectation, but in the final
up his separate estate would in my view in justice be entitled to result it is a question of balancing up the needs of both parties
far more by way of maintenance, in terms of this section, than and making an equitable distribution of the available income’
one who did not more for a few years than share his bed and (at 1002–F).
keep his house’ (at 450–G). In MB v NB 2010 (3) SA 220 (GSJ) it was held that ‘the proper
In G v G 1987 (1) SA 48 (C) the complainant kept a home approach is to postulate that the parties should each contin-
about which no complaints could be made. ‘She was a devoted ue, following divorce, to live in the style to which they have
and exemplary mother to her children. She strove to make a become accustomed for so long as this was permitted by the
happy home for her husband …’. It was held that: ‘In all these resources at their disposal. If, as so often happens, the capital
circumstances she would be entitled to more by way of main- and income are insufficient to meet this standard, then each
tenance than a wife in a marriage of short duration would be…’ should abate their requirements accordingly. In this limited
(at 53–A). sense the touchstone is subjective: The issue is not what peo-
It was held in K v K 1986 (4) SA 616 (E) that bride-grooms ple generally would regard as reasonable … but what the par-
must take their brides, as they find them and if they marry ties have come to depend on, subject always to the criterion of
wives who probably cannot obtain or retain employment they affordability’ (at para 33).
are not entitled to expect a court to attribute a notional earning
capacity to those wives on divorce. Clean break principle
In B v B 1987 (1) SA 967 (A) the wife had spent her whole It was held in AV v CV 2011 (6) SA 189 (KZP) that: ‘[O]ur courts
married life at home and in her husband’s office helping him will always bear in mind the possibility of using their pow-
for many hours a day, as well as running the house and yet ers … in such a way as to achieve a complete termination of
despite her ability to do various useful work of an unskilled the financial dependence of the one party on the other, if the
nature, was not attributed any notional earning capacity. circumstances permit. The last-mentioned qualification is of
It was held that ‘one should find some balance in favour of course, very important’ (at para 17).
the assumption that she will not obtain work (although not It was held further that ‘there will no doubt be many cases
necessarily giving full effect to such assumption), for justice in which the constraints imposed by the facts … will not allow
requires that it should be the appellant who must suffer the justice to be done between the parties by effecting a final ter-
hardship of paying an additional amount of maintenance, be- mination of the financial dependence of the one on the other’
yond what may turn out to be strictly necessary, rather than to (at para 17).
allow the respondent to suffer the hardship of an inadequate In VW v VW (SE) (unreported case no 136/2005, 4-4-2006)
(Jones J) it was held: ‘There is much to be said in a case such
as this for achieving a clean break between the parties. This
is normally only possible, in a case of spouses of mature age,
where there are assets of sufficient worth to enable both par-
ties to be self-sufficient if the assets are divided. That is not
Do you have something that you the position here’ (at para 9.4).
would like to share with the readers It was held in the B v B (2009) matter (op cit) that ‘our courts
may have been quick to proclaim the need for former spouses
of De Rebus? to be financially independent of each other whilst not always
fully cognisant of the many experiential barriers and familial
Then write to us. responsibilities which render such security no more than a chi-
mera for many women’ (at para 39).
De Rebus welcomes letters of 500 It was stated by M de Jong ‘New trends regarding the main-
words or less. tenance of spouses upon divorce’ (1999) THRHR 75 at 82 that
‘the most important asset of most households is the stream of
Letters that are considered by the future income that represents a return on career investment’.
Editorial Committee deal with topical Conclusion
and relevant issues that have a direct In the end the feature of overriding importance is that the
impact on the profession and on the court will grant such order as it considers to be just.
public.
Send your letter to: Magdaleen de Klerk BProc BA (UFS) is an attorney at
derebus@derebus.org.za DDKK Attorneys Inc in Polokwane.
q

DE REBUS – MARCH 2015


- 20 -
UNIVERSITY OF SOUTH AFRICA

LEGAL ADVISOR: LABOUR LAW

The objective of this post is:


- to render, under the supervision of the Director: Labour Law, a professional, cost-effective, centralised, all-inclusive legal service
specialising in Labour Law and the management of the employer – employee relationship in support of the strategic objectives
of Unisa.

Requirements
• A qualified and admitted and practising Attorney or Advocate with a Grade 12 (Matric) and relevant legal University
Honours Degree or equivalent qualification (LLB)
• 6 Years’ relevant experience of which 3 years is post-admittance prosecutorial experience (criminal law, particularly
commercial crimes; criminal procedure law and law of evidence)
• Understanding and sound knowledge of the operation and application of Labour Law and Labour Relations and all
legal processes relating thereto
• Excellent written and verbal communication skills and expertise in MS Office are required
• Conflict resolution skills and ability to work under pressure
• Ability to work independently and to self-manage

Recommendations
• Practical experience in the field of Labour Law including but not limited to CCMA appearances
• Knowledge of the functioning of a Public Provider of Higher Education

Duties
• Management of all aspects of the employer – employee relationship from a legal perspective
• Render across-the-board legal services, including but not limited to labour-related contracts, legal opinions,
CCMA, labour court attendance, employment-related debt collections
• Keep Unisa community informed regarding the requirements of relevant case law, legislation, policies and internal
and external directives
• Keep abreast of new developments and conduct research with regard to Labour Law and related fields
• Assist Managers in negotiating, drafting and vetting of regulatory (Statutory and otherwise) documentation
• Ensure legal and technical compliance
• Develop policies and procedures with Managers
• Management of and compliance with, regulatory labour law requirements in terms of internal policies and processes,
regulatory manuals, fees and departmental reporting

Assumption of Duty: As soon as possible


Salary: Remuneration is commensurate with the seniority of the position
Closing Date: 20 March 2015

• Before you can apply for any position/s you will be required to register and create an account on Unisa’s recruitment site.
Please note that this is a secured site and not all employers allow staff to access such sites.
• Positions are available on iRecruitment – to apply online please logon to www.unisa.ac.za click on vacancies, jobs and
careers and click on https://irec.unisa.ac.za:4443/
• If you are a current active e-tutor or teaching assistant who wishes to apply for a permanent position, the following link should
Chillibush2469Unisa

be used https://irectest.unisa.ac.za:4458/OA_HTML/AppsLocalLogin.jsp
• Manual or email applications will not be accepted.

Learn without limits.


The role of the Takeover Regulation
Panel in protecting investors
Picture source: Gallo Images/istock

By
Madimetja
A Lucky
Phakeng

DE REBUS – MARCH 2015


- 22 -
FEATURE

T
his article briefly discusses tive business practices, abuse of domi- • that all shareholders receive the same
the regulation of mergers nant positions and mergers, in order information from all parties; and
and acquisitions in terms to achieve equity and efficiency in the • that shareholders are provided suf-
of the Companies Act 71 South African economy. Its purpose is ficient information, and permitted suf-
of 2008 (the Act). It is gen- to promote and maintain competition in ficient time, to enable them to reach a
erally accepted that legal South Africa. It carries out its mandate in properly informed decision.
protection of the investing public in a terms of the Competition Act 89 of 1998. In furtherance of its mandate the pan-
country encourages development of fi- The Takeover Regulation Panel (pan- el may –
nancial markets. In countries that have el) is another regulator of mergers and • require the filing, for approval or oth-
well-functioning legal rules, outside in- acquisitions. The panel has a differ- erwise, of any document with respect to
vestors are willing to invest by provid- ent mandate. It carries out its mandate an affected transaction or offer;
ing funding to firms and are willing to in terms of the Act. In particular, ch 5 • issue compliance certificates;
participate in financial markets. On the of the Act and ch 5 of the regulations • initiate or receive complaints, conduct
other hand, where investors are not (the takeover provisions). The mandate investigations, and issue compliance no-
protected the development of financial of the panel is triggered when certain tices, with respect to any affected trans-
markets may be retarded. Shareholders companies (defined as ‘regulated com- action or offer; or
and creditors feeling that their rights panies’) undertake particular transac- • issue a compliance notice which notice,
are protected are willing to pay more tions (defined as ‘affected transactions’ may prohibit or require any action by a
for financial assets including equity and or ‘offers’). The rationale for regulating person; or order a person to divest of an
debt, with the recognition that they will affected transactions and offers is to acquired asset or account for profits.
be repaid in the form of either dividend protect minority shareholders by ensur- The panel may also wholly or partially,
or interest rather than losing their in- ing that during affected transactions or and with or without conditions, exempt
vestment to expropriation; investors offers such shareholders will have ac- an offer to an affected transaction or an
may be willing to pay more. Share prices cess to certain information. The informa- offer from the application certain provi-
may increase. This in turn, may lead to tion include financial reports and valua- sions relating to affected transactions
investors putting more money in the tions of their shares. By having access to and offers.
financial markets and subsequent ex- this information, shareholders can make The powers of the panel are limited in
pansion of the financial markets. (R La informed decisions about their invest- that it must not express a view or opin-
Porta, F Lopez-De-Silanes, A Shleifer and ments. ion on the commercial advantages or
R Vishuy ‘Investor Protection and Corpo- The panel is responsible for – disadvantages of affected transactions
rate Valuation’ (2002) 57 The Journal of • regulating affected transactions or of- or offers.
Finance 1147 (http://onlinelibrary.wiley. fers; The regulations provide detailed re-
com/doi/10.1111/1540-6261.00457/ • investigating complaints in respect of quirements and how the requirements
pdf, accessed 30-1-2015). By improving affected transactions or offers; must be complied with. Directors of
protection for investors’, confidence in • applying to court to wind up a compa- companies undertaking these transac-
financial markets is improved. ny where appropriate; and tions need to be aware of their obliga-
The role of regulators is often not • consulting with the Minister of the tions in terms of the takeover provisions
well appreciated by some market par- Department of Trade and Industry in to ensure that they stay within the law.
ticipants. Their role is often misunder- respect of deletion, amendments or ad- The investing public needs to be aware
stood by the general public. Some pro- ditions of the takeover provisions. that regulators have limitations. No num-
fessionals view regulators as obstructive The panel may also – ber of laws or regulations can adequately
bureaucrats’ who are intent on delaying • consult with any person on application protect the investing public against all
and interfering with their mega deals. of the provisions; risks, despite the diligence and good in-
The general public often overestimate • attend to representations by any per- tentions of the regulators. In general, the
the powers and mandates of these bod- son; or principles set out in the Act are bench-
ies. The fact that the powers of these • issue, amend or withdraw information marked against international best prac-
bodies are circumscribed in some cases on policy on affected transactions and tice, and offers protection mechanisms,
is also missed by the general public. This offers. which have been practised internation-
may lead to investors failing to take ad- In the main, the protection offered is ally. However, this does not mean that
ditional measures to safeguard their in- by – the responsible regulator should be con-
vestments. There is little doubt that the • ensuring the integrity of the market- tent. The increasing globalisation, and
investing public needs protection. How- place and fairness to the shareholders of resultant complex cross-border mergers
ever, the amount of protection is often the regulated companies; and acquisitions requires continuous
debatable. In certain instances a light • ensuring the provision of necessary vigilance, adaptation and improvement.
touch approach may be required – lest information in adequate time to share- While the role of the panel may not be
one interferes with the efficient work- holders to facilitate the making of fair immediately visible, it nevertheless plays
ings of financial markets – while in oth- and informed decisions; and an important role in creating confidence
ers, a more robust approach may be re- • preventing actions by regulated com- among investors. Investors should be
quired. A balance is needed. panies designed to impede, frustrate, or comforted in knowing that should there
Regulation of mergers and acquisi- defeat an offer, or the making of fair and be a takeover of their company, they
tions in South Africa is undertaken by a informed decisions by shareholders. would be entitled to protection in terms
number of regulators. These regulators The panel must further ensure – of the takeover provisions.
consider each mergers and acquisition • that no person may enter into an af-
from a different regulatory mandate. For fected transaction unless that person is Madimetja A Lucky Phakeng LLM
instance the Competition Commission ready, able and willing to implement that MBL (Unisa) is a non-practicing at-
considers mergers and acquisitions with transaction; torney, notary and conveyancer and
a view to promoting and maintaining • that all shareholders are treated equal- Executive Director of the Takeover
competition in South Africa. To achieve ly and equitably; Regulation Panel. He writes in his
these objectives, it has powers to in- • that no relevant information is with- personal capacity.
vestigate, control and evaluate restric- held from shareholders;
q

DE REBUS – MARCH 2015


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Picture source: Gallo Images/iStock
Understanding deemed dismissal
in state departments By
Frans Erasmus
and Geraldine
Kinghorn

T
he state, as employer, is immunised against Legislation
unfair dismissal claims in the realm of deemed
dismissal. This is ensured by way of s 14(1) of On 1 April 2008 the PSA was amended and the subsections of
the Employment of Educators Act 76 of 1998 s 17 changed. Section 17(3)(a) of the PSA states that an em-
(the Act) and s 17(3)(a) of the Public Service Act ployee is considered deemed dismissed if he or she absents
103 of 1994 (PSA). himself from official duties without permission of the head
In this short article, we will attempt to pro- of the department for more than a calendar month from his
vide a clearer understanding of this form of dismissal that op- place of work.
erates outside of the Labour Relations Act 66 of 1995 (LRA), Section 14(1) of the Act states similar provisions except that
sch 8 thereof and the Department of Public Service and Ad- the period is 14 consecutive days. If these three requirements
ministration Resolution 1 of 2003. The role of the shop stew- (conditions precedent) are present, then the contract of em-
ard is vital throughout this process. The employee will in all ployment has by operation of law (ex lege) been terminated.
likelihood be unaware of his or her rights in this regard and In Phenithi v Minister of Education and Others 2008 (1) SA 420
will rely heavily on the guidance of the shop steward and legal (SCA), the court held that the Act mentioned (the Employment
representatives. of Educators Act), creates a mechanism to infer desertion. The
letter of dismissal is merely a notification of that result.
Private sector
Employer’s enforcement of deemed
Deemed dismissal is not found in the private sector (even if
there is such a provision in the contract of employment) as dismissal
held in Jammin Retail (Pty) Ltd v Mokwane and Others [2010] 4 The employer needs to ensure beforehand that the abovemen-
BLLR 404 (LC). A hearing needs to precede the dismissal. tioned conditions precedent are met before issuing a deemed

DE REBUS – MARCH 2015


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FEATURE

dismissal letter. This implies that the employer needs to gather no reasons for the decision …’. The court also stated that: ‘The
facts surrounding the absence before considering whether the same must hold true of the MEC’s decision. Without him hav-
three requirements were met or not. ing given any reasons for his decision, it cannot be said to be
reasonable. How can it be ascertained if it was reasonable, if he
What to do with a deemed dismissed gave no reasons?’ The court further stated: ‘And, as Cora Hoex-
employee ter notes, “the giving of reasons is commonly regarded as one
of the more fundamental requirements of administrative jus-
Shop stewards need to actively assist the employee in imme- tice and an important component of procedural fairness”…’.
diately reporting back to duty (in person), as held in PSA obo
Van Der Walt v Minister Public Enterprise and Another [2010] 1 Criteria for review
BLLR 78 (LC) and in terms of s 17(3)(b) of the PSA or s 14(2) of
the Act. The onus shifts to the employee to show good cause Section 158(1)(h) of the LRA empowers the Labour Court to
for reinstatement, as stated in MEC: Department of Education review the actions by the state in its capacity as an employer.
Gauteng v Msweli 2012 JDR 1476 (LC). Written representations This was held in both the De Villiers and Mogola and Another
in the form of an application for reinstatement, needs to be v Head of the Department: The Department of Education NO
drafted showing good cause for the absence. It must be shown [2012] 6 BLLR 584 (LC) cases.
that the absence was not wilful and that the employee always
intended to return as stated in Grootboom v NPA and Another Administrative action
[2010] 9 BLLR 949 (LC) at 56. Annex an original document as The Constitutional Court held in Gcaba v Minister of Safety
proof of the absence. The application for reinstatement must and Security and Others [2009] 12 BLLR 1145 (CC) that the dis-
be submitted to the head of department. Regular written fol- missal of a public servant is not an administrative act subject
low-ups should be conducted as to its progress. Retain a prop- to review, if the cause of action and the remedy is covered
erly served copy of the application for the union’s record. by the LRA. In the matter of De Villiers, it was stated that the
conduct of the state as employer will generally not constitute
Reinstatement administrative action. Departure from this rule is justified in
specific cases under specific conditions. In the Mogola matter
In De Villiers v Head of Department: Education, Western Cape
the court held that the decision by an member of executive
Province 2010 31 ILJ 1377 (LC) the test for reinstatement was
council (MEC) (not to reinstate) constitutes administrative ac-
stated by Van Niekerk J as follows: ‘… unless the employer,
tion, which is reviewable under the Promotion of Administra-
having regard to the full conspectus of relevant facts and cir-
tive Justice Act 3 of 2000 (PAJA) or s 158(1)(h) of the LRA. The
cumstances, is satisfied that a continued employment relation-
legislature could not have intended to deprive employees of
ship has been rendered intolerable by the employee’s conduct,
a remedy if the discretion afforded to the MEC is improperly
the employer should as a general rule approve the reinstate-
exercised. Even if the Labour Court cannot apply PAJA, it has
ment of the employee …’.
jurisdiction to review administration relating to employment
in terms of s 158(1)(h) of the LRA. The court stated that had the
Employer’s refusal to reinstate MEC applied his mind he would have realised that the condi-
In the event that the employer decides not to reinstate in terms tions precedent for the invocation of the act were not present.
of the application for reinstatement; the employee may refer
the matter to the bargaining council and thereafter on review Other employment while on suspension
to the Labour Court. This track was laid down in the PSA obo
There is a prohibition on employees to take up remunerative
Van Der Walt case.
employment while on suspension. In such an instance the em-
ployee will be deemed dismissed as stated in Solidarity and An-
Employer’s reasons for a decision not to other v Public Health and Welfare Sectoral Bargaining Council
reinstate and Others [2013] 4 BLLR 362 (LAC).
In the PSA obo Smit v Mphaphuli NO and Others (LC) (unreport-
ed case no C742/11, 16-4-2014) the court referred to Weder v Frans F Erasmus LLB (UFS) is an attorney, notary, con-
Member of the Executive Council for the Department of Health, veyancer and mediator in Johannesburg. Geraldine
Western Cape [2013] 1 BLLR 94 (LC) at 35, wherein it was stat- Kinghorn LLB (Unisa) is an advocate at the Johannes-
ed: ‘… it is difficult to assess whether a decision could have burg Bar.
been reasonable and rational when the decision maker offers q

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DE REBUS – MARCH 2015


- 25 -
Picture source: Gallo Images/iStock

By
Peter
Williams

Hate speech is a crime


Equality Court rules in favour of domestic worker

T
he District Court of Cape by awarding a domestic worker R 50 000 while she took a shower. He was upset
Town, sitting as an Equality in damages. This was after it found in about this, grabbed her by her pyjamas,
Court, has recently made a the domestic worker’s favour in a case of spat in her face and told her that she was
landmark ruling in Nomaso- hate speech and harassment. Ms Kente, ‘a pathetic Kaffir, that he hated Kaffirs
mi Gloria Kente v Andre van a domestic worker, complained that af- and that he hated her.’ He continued by
Deventer (EqC) (unreported ter her shift had ended, she requested saying that ‘Kaffirs had stolen our land’.
case no EC 9/13, 24-10-2014, Cape Town her employer’s boyfriend to look after Ms Kente complained that she had been
Magistrates Court) (Magistrate Koeries), his own child for a brief period of time. subjected to racial abuse and harass-

DE REBUS – MARCH 2015


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FEATURE

ment over a number of years and that and a derogatory meaning and would approach should be used. If the con-
she had previously lodged a case with be construed as such by a reasonable junctive approach is used, it means that
the police, only to find out that the per- African person.’ Similarly, in the case three requirements must be present or
petrator had paid an acknowledgment of Strydom v Chiloane 2008 (2) SA 247 the acts must occur in a group-context,
of guilt fine in the sum of R 150. (T) a person had called another person before a court can find that an utter-
Magistrate Jerome Koeries a ‘baboon’ in the presence of two co- ance amounts to hate speech. For the
found that the incidents had workers. The court (two justices of the disjunctive approach, it is sufficient for
occurred as described by Ms High Court) found that the magistrate a complainant to prove that the prohib-
Kente and indicated that was right ‘to find that the words com- ited words were either hurtful or harm-
hate speech will not be toler- plained of fall within the definition of ful. This issue was expressly discussed
ated by our courts and that “hate speech” as defined in section 10 of in the Herselman case, where two jus-
violence against women will PEPUDA [the Equality Act].’ Referring to tices of the High Court considered this
have dire consequences. Mangope v Asmal and Another 1997 (4) provision and held the following: ‘If one
The court found that the SA 277 (T) at 286J – 287A, the court stat- has regard to the purpose of the Act, the
word ‘Kaffir’ constitutes ed that: ‘Applying that definition, it is, in object of the Act and the Interpretation
hate speech. The judg- my view, clear that when the epithet “ba- clause it militates against the acceptance
ment implies that where boon” is attributed to a person when he of the conjunctive approach ... In this
derogatory words, such is severely criticised, as in this case, the case the disjunctive approach appears to
as ‘Kaffir’, or even ‘Hot- purpose is to indicate that he is base and be the correct approach in interpreting
not’ or ‘coolie’ or other of extremely low intelligence. But I also the provisions of section 10(1) or else
derogatory words are think that it can be inferred from the use the very purpose of the Act may well be
used, the court will of the word in such circumstances that defeated.’
not hesitate to deal the person mentioned is of subhuman The court held the following: ‘If one
with it harshly. The intelligence and not worthy of being de- were to adopt a conjunctive approach
Promotion of Equal- scribed as a human being.’ then racially discriminatory words which
ity and Prevention There can therefore be no doubt that are clearly hurtful and even harmful,
of Unfair Discrimi- the word ‘Kaffir’ constitutes hate speech which are directed at an individual may
nation Act 4 of as defined in s 10(1) of the Equality Act not fall within the ambit of the Act sim-
2000 (the Equality as it refers to the race, colour, ethnic or ply because they may not per se promote
Act) provides for social origin of the complainant and it is or propagate hatred because they were
victims of hate both hurtful and harmful. not uttered in a group context. This is
speech to claim Section 11 of the Equality Act provides untenable and could not have been the
damages for the that: ‘No person may subject any person intention of the legislature, having re-
hurt, humilia- to harassment.’ ‘Harassment’ is defined gard to the purpose and objectives of the
tion and degrada- as ‘unwanted conduct which is persis- Act and the interpretation clause. Such
tion, which they tent or serious and demeans, humiliates an approach would undermine the pur-
suffered and in or creates a hostile or intimidating envi- pose of the Act.’
Ms Kente’s case, a ronment or is calculated to induce sub-
substantial a­­mount mission by actual or threatened adverse User-friendly courts
was aw­ard­­ed, relatively consequences and which is related to –
In the case of Woodways CC v Vallie 2010
speaking. (a) sex, gender or sexual orientation; or
(6) SA 136 (WCC), the following was said:
(b) a person’s membership or presumed
Hate speech and membership of a group identified by
‘It is clear to me that the Act creates an
informal and inexpensive platform for
harassment one or more of the prohibited grounds
adjudication of unfair discrimination [as
or a characteristic associated with such
In terms of s 10 of the well as hate speech] disputes. It marks a
group ...’. It is clear that the conduct that
Equality Act, words that shift from the conventional way of litiga-
the complainant was exposed to meets
are communicated amount to tion, which emphasises elegance in the
the requirements of this definition and
hate speech if: formulation of pleadings.
as such constitutes harassment.
‘i. The words are based on one or more It creates a space for the victims of
of the prohibited grounds referred to in How to interpret s 10(1) of unfair discrimination to tell their stories
the Act. Prohibited grounds include race, so that systemic inequalities and unfair
gender, ethnic or social origin and col-
the Act discrimination, which ... remain deeply
our; Section 10(1) has given rise to interpreta- embedded in social structures, may be
ii. Objectively it is considered to be tion issues. It reads as follows: eradicated.’
hurtful, harmful, incite harm or propa- ‘10 Prohibition of hate speech At para 32 it states: ‘The informal
gate hatred. The intention of the person Subject to the proviso in section 12, nature of proceedings before the Equal-
who utters the words is irrelevant; and no person may publish, propagate, ad- ity Court was considered in George and
iii. It does not fall within the proviso vocate or communicate words based on Others v Minister of Environmental Af-
to section 12 (the proviso refers to bona one or more of the prohibited grounds, fairs and Tourism 2005 (6) SA 297 (EqC)’,
fide engagement in artistic creativity, against any person, that could reason- where the following was held: ‘An inte-
academic and scientific inquiry and the ably be construed to demonstrate a clear gral part of the Equality Act, then, is the
like.)’ intention to – focus on the creation of a user-friendly
In the case of Herselman v Geleba (a) be hurtful; Court environment where proceedings
(ECG) (unreported case no 231/2009, (b) be harmful or to incite harm; are conducted along inquisitorial lines,
1-9-2011) (Dawood J), the court held that (c) promote or propagate hatred.’ with an emphasis on informality, par-
the use of the word ‘baboon’ amounted The question is whether subsections ticipation and the speedy processing of
to hate speech as defined in s 10 of the (a), (b) and (c) should be read with an matters ... The formal, adversarial, often
Equality Act. The court held that ‘the ‘and’ or with an ‘or’, in other words expensive and potentially intimidating
word “baboon” has racial undertones whether the conjunctive or disjunctive proceedings that prevail in an ordinary

DE REBUS – MARCH 2015


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FEATURE

magistrate’s court or High Court and Equality Act v Employment practices are violated, the employee may
which may act as a barrier to those seek- approach the Labour Court for relief in
ing justice, have no place in an Equality Equity Act terms of s 23(1) of the Constitution.
Court.’ Section 5(1) of the Equality Act pro-
In Manong & Associates (Pty) Ltd v De- vides that the Act does not apply to Conclusion
partment of Roads and Transport, East- any person to whom and to the extent The Equality Act is a product of the South
ern Cape, and Others (No 2) 2009 (6) SA that the Employment Equity Act 55 of African Constitution, which has been de-
589 (SCA) at para 53, the Supreme Court 1998 applies. In Kente’s case, although scribed as a transformative constitution.
of Appeal held, as per Navsa J that: ‘The the incidents occurred partially at her This concept entails that law can serve
Equality Court was established in order workplace, the main incident occurred as a medium for social change and that
to provide easy access to justice and to outside her working hours. It was per- through the enforcement of individual
enable even the most disadvantaged in- petrated by someone who was not her rights (such as in the present case) peo-
dividuals or communities to walk off the employer and the various incidents oc- ple can change not only their own lives,
street, as it were, into the portals of the curred sometimes during working hours but also effect change in society. The
Equality Court to seek speedy redress and sometimes outside of her working Equality Court serves as an important
against unfair discrimination, through hours. At the time of instituting proceed- tool to transform society from the ves-
less formal procedures.’ tiges of apartheid and should serve as a
ings, Kente’s employer was sympathetic
In Manong and Associates (Pty) Ltd v vehicle for transformation.
towards her and supported her. For that
City of Cape Town and Another 2011 (2)
SA 90 (SCA) the court held: ‘Section 20(2)
reason Kente did not deem it necessary • In The State v Andre van Deventer (un-
to institute proceedings against her reported case no 17/1430/2013, 6-02-
of the Act provides that a person wish-
employer. She would have had a case 2015, Cape Town Magistrates Court)
ing to institute proceedings in terms of
against her employer as well, since her (Magistrate Alta Le Roux) the court sen-
or under the Act must, in the prescribed
employer has an obligation to maintain a tenced Andre van Deventer to two years’
manner, notify the clerk of the Equality
safe working environment. In the case of house arrest and he is also required to
Court of their intention to do so. Regula-
Piliso v Old Mutual Life Assurance Co (SA) complete 70 hours of community ser-
tion 6 of the Regulations governing pro-
Ltd and Others (2007) 28 ILJ 897 (LC), vice for calling Ms Kente a ‘kaffir’. The
ceedings in the Equality Court provides
Nel AJ awarded constitutional damages community work will be in the service of
for a prescribed form to be completed
against an employer even though the ap- black women - Editor.
in which the complaint is to be formu-
lated. It is clear that a succinct statement plicant was subjected to sexual harass-
Peter Williams BA LLB (UWC) is a
of complaint is required.’ The court then ment at the workplace by an unknown
consultant at Robert Charles Attor-
went on to criticise one of the parties, perpetrator. The court found that where
neys & Conveyancers in Cape Town.
stating that, ‘instead of using the pre- an employee cannot obtain relief through
Mr Williams represented Ms Kente
scribed form, (he) resorted to a rambling statutory or common-law remedies and
in the Equality Court. q
30 page exposition.’ their constitutional right to fair labour

DE REBUS – MARCH 2015


- 28 -
LAW REPORTS

THE LAW REPORTS


January 2015 (1) South African Law Reports (pp 1 – 313);
[2014] 4 All South African Law Reports December no 1 (pp 539 – 672);
and no 2 (pp 673 – 763); 2014 (12) Butterworths Constitutional
Law Reports – December (pp 1397 – 1513)

This column discusses judgments as and when they are published in the South
Heinrich Schulze BLC LLB African Law Reports, the All South African Law Reports and the South African
(UP) LLD (Unisa) is a Criminal Law Reports. Readers should note that some reported judgments may
professor of law at Unisa. have been overruled or overturned on appeal or have an appeal pending against
them: Readers should not rely on a judgment discussed here without checking
on that possibility – Editor.

Abbreviations: the agreement between DCP ship between them. Zhongji spect of Zhongji’s claims aris-
and Zhongji. Kamoto was threatened that if its demand ing from the main agreement.
CC: Constitutional Court
also a Congolese company. In went unsatisfied, it would in- The duly appointed arbitra-
GP: Gauteng Division – Preto-
consequence of the award of stitute proceedings. The par- tion tribunal would then have
ria
the tender, Zhongji and Ka- ties agreed that the dispute the power to decide whether
KZP: KwaZulu-Natal Division
moto entered into an agree- would be referred to arbitra- or not Kamoto was liable to
– Pietermaritzburg
ment (the main agreement). tion. Relying on the arbitra- Zhongji for its claims that
SCA: Supreme Court of App­
In terms of the agreement, tion clause in the main agree- arose from the interim agree-
eal
the ‘governing law’ thereof ment, Zhongji sought redress ment.
was ‘English law’. The agree- by way of arbitration. It ap- The High Court upheld
Arbitration ment provided that, unless proached the High Court for Kamoto’s argument, and dis-
Disputes arising from the parties otherwise agreed, a declaratory order that be- missed Zhongji’s application.
agreement: In Zhongji De- disputes between them would cause Kamoto had assumed It is trite that both Zhongji
velopment Construction En- ‘be finally settled under the the rights and obligations and Kamoto were peregrine
gineering Company Ltd v Ka- Rules for the Conduct of Ar- under the main agreement; in South African courts.
moto Copper Company SARL bitrations as published by the that it was bound by the arbi- On appeal Willis JA held
[2014] 4 All SA 617 (SCA) the Association of Arbitrators tral regime catered for in the that in terms of the Rules of
court was asked to pronounce (Southern Africa) (the “Arbi- main agreement in relation to the Arbitration Association,
on the question whether dis- tration Association”)’. disputes in connection with an arbitrator may decide any
putes that arise from an Problems arose with the or arising out of the main dispute regarding the exist-
arbitration agreement, are implementation of the main agreement; and that certain ence, validity, or interpreta-
arbitrable. The appellant, agreement. Zhongji and Ka- stipulated disputes to be ar- tion of the arbitration agree-
Zhongji, a Chinese company, moto then signed an interim bitrable. ment and, unless otherwise
was awarded a tender for cer- agreement to cover the par- Kamoto argued that if the provided therein, may rule
tain work at the mining site of ties until there was more cer- court were to find that there on his or her own jurisdiction
a Congolese company, DCP. tainty around the project. was a binding obligation, in to act. Accordingly, once the
DCP later merged with the In 2010, Zhongji claimed terms of the main agreement, arbitration tribunal has been
respondent, Kamoto and Ka- payment from Kamoto as a read together with the merger duly appointed in terms of
moto took over all the rights result of a dispute arising agreement, Kamoto was to the main agreement, the rules
and obligations in terms of from the contractual relation- submit to arbitration in re- of the Arbitration Association

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Tjakie Naudé • Sieg Eiselen (managing editors)

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LAW REPORTS

would give the tribunal itself De Lange appealed to the did become involved, it ought the proprietor’s stock and
jurisdiction to decide the is- church’s connexional disci- to refrain from deciding is- equipment. In some cases the
sues, which may be raised be- plinary committee. It con- sues of religious doctrine. police closed the shops of
fore it. Because an arbitrator firmed the verdict, and as The appeal was dismissed. Somalis and Ethiopians even
has the power to determine sentence discontinued her The church commendably where they held permits. This
his or her jurisdiction in an is- holding of the office of min- agreed to forgo the costs of prompted the appellants (the
sue that arises from the refer- ister. De Lange then referred the appeal. applicants) to approach the
ral to arbitration itself, there the matter to arbitration, and In a separate concurring GP.
was no reason why the dis- its convenor entered into an judgment Wallis JA consid- The applicants were an or­-
pute about whether or not the arbitration agreement on her ered two issues that were of gan­isation representing So­m­
claims arising from Zhongji’s behalf. The church rules pro- obiter value only. These is- alis, an organisation represent­
performance in terms of the vided that arbitration had to sues nevertheless merit a ing Ethiopians, an Ethiopian
interim agreement were in- be used for resolution of dis- reference here. The first was asylum seeker, an Ethiopian
deed arbitrable, should not be putes between ministers and whether this was a ‘matter re- and a Somali refugee, and a
decided by the arbitration tri- the church. lating to status’. Section 2(b) Somali permanent resident.
bunal prior to an application However, before the arbi- of the Arbitration Act 42 of They asked for declarations
to the High Court. The pro- tration proceeded, De Lange 1965 provides that ‘a refer- that asylum seekers and refu-
cess of arbitration, therefore approached the High Court ence to arbitration shall not gees had the following rights:
had, to be respected. and applied to set aside the be permissible in respect of
• First, the right to self-em-
The court referred with ap- arbitration agreement; for a any matter relating to status’.
ployment.
proval to earlier English case declaration that the decision Wallis JA held that because ‘a
• Secondly, the right to apply
law (Fiona Trust and Hold- to discontinue her ministry matter relating to status’ pos-
for and to renew licenses and
ing Corporation and Others was unlawful in its being sibly included a person’s right
permits in terms of the appli-
v Primalov and Others [2007] based on a policy that was to hold office; and an office
UKHL 40; [2007] 4 All ER unfairly discriminatory on could include the position of cable legislation and land-use
951 (HL)) in which a liberal the ground of sexual orienta- an ordained minister of reli- scheme.
construction of an arbitra- tion; for the review and set- gion, the present issue might • Thirdly, that closure of busi-
tion clause is advocated and ting-aside of the disciplinary indeed be not referred to arbi- nesses run by asylum seekers
which allows for a presump- committee’s decisions; and tration. The second issue was and refugees with valid per-
tion in favour of so-called for her reinstatement. She whether there was an arbitra- mits were unlawful.
one-stop arbitration. In terms later abandoned the claim of tion agreement. The litigants The High Court dismissed
of such a ‘one-stop arbitra- unfair discrimination in her simply assumed there was, the application. It held that
tion’ approach, arbitrators replying affidavit. but Wallis JA held that there s 22 of the Constitution gave
are allowed, where possible, The High Court dismissed was no agreement. Method- only South Africans a right to
to resolve issues which arise the application and held that ist ministers did not contract self-employment, and it con-
during the arbitration pro- De Lange ought first to have with the church to be bound cluded from this that there
cess. concluded the arbitration. It by the Laws and Discipline of was a blanket prohibition on
The court concluded that granted leave to appeal to the the Methodist Church. Minis- asylum seekers and refugees’
Zhongji’s application to the SCA. ters followed the Laws rather self-employment.
High Court was thus prema- The SCA held that in view as a discipline. On appeal to the SCA, Nav-
ture and perhaps even unnec- of De Lange’s express disa- sa ADP held as follows:
• First, neither Minister of
essary. vowal of any contention that Constitutional law Home Affairs and Others v
The appeal was accordingly she was discriminated against
dismissed with costs. on the grounds of her sexual Right of asylum seeker: The Watchenuka and Another
orientation, the court did not facts in Somali Association 2004 (4) SA 326 (SCA) nor
Voluntary association dis- have to explore the relation- of South Africa and Others v Union of Refugee Women and
ciplinary proceedings: The ship between her equality Limpopo Department of Eco- Others v Director: Private Se-
facts in De Lange v Presiding rights and the rights of free- nomic Development, Environ- curity Industry Regulatory
Bishop, Methodist Church of dom of religion enjoyed by ment and Tourism and Others Authority and Others 2007 (4)
Southern Africa and Another the church and all people in 2015 (1) SA 151 (SCA); [2014] SA 395 (CC) considered s 22
2015 (1) SA 106 (SCA); De South Africa. 4 All SA 600 (SCA) were as of the Constitution as plac-
Lange v Presiding Bishop for The crisp issue was there- follows. Musina is a town in ing a blanket prohibition on
the time being of the Method- fore about an alleged arbitra- the northern part of the Lim- asylum seekers and refugees
ist Church of Southern Africa tion agreement and whether popo province and the closest seeking employment. Section
and Another [2015] 1 All SA it should be set aside or major town to the South Af- 27(f) of the Refugees Act 130
121 (SCA) were as follows. De avoided. Ponnan JA held that rican border with Zimbabwe. of 1998 entitles refugees to
Lange, a Methodist Church De Lange had not concluded Municipal and police officials ‘seek employment’ and does
minister, announced to her the arbitration proceed- stationed in Musina informed not restrict that expression to
congregations her intent to ings. In this regard the court spaza-shop proprietors in wage-earning employment.
enter into a same-sex mar- reasoned that the grounds that town that they needed • Secondly, the court decided
riage. This caused the church she advanced as constitut- permits to operate. However, that refugees and asylum
to charge her with breaking ing good cause were with- when Ethiopian and Somali seekers have a right to self-
its rules. The rule in ques- out merit; and because the proprietors attempted to ap- employment, where they have
tion was that ministers had dispute – concerning church ply, the municipality alleg- no other means to support
to obey church policy, and rules – ought to be left to the edly frustrated their efforts. themselves. This on the basis
church policy recognised only church to determine. It fur- The police meanwhile con- of the constitutional right to
heterosexual marriages. The ther pointed out that a court ducted inspections, and on dignity.
church’s district disciplinary should only become involved a proprietor not producing a • Finally, in the present case
committee later found her in such a dispute if it were permit, immediately closed there were in fact no restric-
guilty. strictly necessary; and if it the business and confiscated tions on the grant of permits

DE REBUS – MARCH 2015


- 31 -
or licenses to asylum seekers Satisfied that a prima facie Health under the Compensa- This means that, for the
and refugees. case had been made for relief, tion for Occupational Inju- purposes of the Act, and in
The court thus declared the court granted a rule nisi ries and Diseases Act 130 of particular s 35(1), the em-
that asylum seekers and ref- as prayed for. In the applica- 1993 (the Act) and instituted ployer of Thomas was not the
ugees had the right to apply tion for final relief the main a claim for damages against state as a single, overarching
for and renew licenses and area of dispute concerned the the Minister of Defence (the entity, but the Head: Western
permits in terms of the leg- ability of the court to restrain Minister). Cape Department of Health.
islation and land-use scheme material not yet known to the The Minister raised a spe- It further means that s 35(1)
involved; and that the closure court as per (b) and (c) above. cial plea based on s 35(1) of does not find application in
of businesses run by asylum Chetty J pointed out that the Act. It provides that: ‘No the action and Thomas is
seekers and refugees holding other than a denial that the action shall lie by an employ- entitled to pursue her claim
valid permits were unlawful. postings were defamatory, ee … for the recovery of dam- against the Minister.
The appeal was allowed the respondent did not make ages in respect of any occupa- The SCA concluded that the
with costs. out any argument of the pub- tional injury … against such special plea was incorrectly
lic interest in respect of the employee’s employer.’ upheld and her claim incor-
Defamation statements attributed to the The Minister contended rectly dismissed by the court
applicant. The rule nisi had that for the purpose of de- a quo.
Facebook: The decision in RM therefore to be confirmed in termining who an ‘employer’ As a result, so the SCA rea-
v RB 2015 (1) SA 270 (KZP) respect of prayer (a). was, the Act regarded all parts soned, Thomas’ employer was
concerned an application The court held that not of the state (in this case the the Department of Health,
for an interdict restraining every defamatory statement Department of Health and the and s 35(1) did not bar her
the respondent from posting about the applicant by the Department of Defence) as claim against the Minister.
further defamatory postings respondent would be action- simply the state. Thus Thom- The appeal was allowed
about the applicant on her Fa- able. If she were to repeat as was employed by the state with costs.
cebook page. her conduct in the future and (the Department of Health).
The parties involved in the make derogatory or defama- As a result, so the Minister ar- Medical negligence: In Medi-
present application, RM, the tory statements about him, gued, Thomas’ claim against Clinic Ltd v Vermeulen 2015
applicant and the father of the the applicant could always her employer, the state, was (1) SA 241 (SCA) Vermeulen,
child, and RB, the respond- approach the court for relief invalid. The High Court up- the plaintiff, was admitted
ent and the mother of the in the form of an interdict or held the Minister’s plea but to Medi-Clinic’s hospital, the
child, had been in a relation- sue for damages. The court granted leave to appeal. defendant, in Nelspruit for
ship. They were the biologi- further held that despite On appeal the SCA upheld treatment for malaria, which
cal parents of a five-year-old the possibility of defama- the appeal and rejected the he contracted in Mozam-
daughter. The applicant and tory postings on the internet Minister’s contention. Gorven bique. During his two month
respondent were never mar- posing a significant risk to AJA held that each part of stay in the intensive care unit
ried. The child stayed with the reputational integrity of the state was an ‘employer’ (ICU) in the defendant’s hos-
the respondent. In terms of individuals, to have granted for the purposes of the Act. pital, he developed a bedsore
an arrangement the applicant the relief sought in prayers It based this conclusion on in the area of his sacrum,
had contact with his daugh- (b) and (c) above, would have ss 31(1), 39(2), 84(1) and 88(1) which, in turn, caused nerve
ter every alternate weekend. been too drastic a limitation of the Act. In this regard it damage. The nerve damage
After one such weekend the and restraint on the respond- pointed out that the signifi- left him paralysed and bound
respondent made certain ent’s freedom of expression. cance of s 84(1) read with s to a wheel chair. He sued the
postings on her Facebook The court accordingly dis- 39(2) is as follows. A clear defendant for damages, al-
page relating to the appli- missed prayers (b) and (c). distinction is drawn between leging that the latter’s nurses
cant’s care of their daughter As a case had been made on the heads of the listed depart- had negligently failed to regu-
and referring to the use of al- the papers by the applicant ments who are the employers larly turn him, and that this
cohol and drugs. A Facebook for the first part of the rule in the national and provin- had caused the bedsore. The
debate ensued with many of nisi it was accordingly con- cial spheres of government. High Court agreed, but grant-
the respondent’s Facebook firmed. The respondent was These are distinguished from ed the defendant leave to ap-
‘friends’ critical of the appli- ordered to pay the costs of the employers in the legisla- peal to the SCA.
cant’s behaviour. At the time the application. tive bodies in these spheres. The crisp issue before the
of the posting the respondent These are, in turn, distin- SCA was how a court should
had 592 ‘Facebook friends’. Delict guished from the employers evaluate conflicting expert
The applicant alleged that the Exclusion of liability: In in the sphere of local govern- opinion on what constituted
postings had defamed him as Thomas v Minister of Defence ment. If, for the purposes of reasonable conduct.
a father and were detrimental and Military Veterans 2015 (1) the Act, all of these entities Zondi JA held that to de-
to his business reputation. He SA 253 (SCA) the appellant, were regarded as a single termine whether or not the
approached the High Court Thomas, who was employed employer, s 84(1) would read defendant’s nurses were
for an urgent interdict order- as a medical registrar by the very differently. All that it negligent in not turning the
ing the respondent to – Western Cape Department of would need to say is that the plaintiff while he was in ICU,
(a) remove the messages Health (the Department of state, regardless of whether it the court below had to have
from her Facebook page; Health), slipped and injured is the national, provincial or regard to the views of the par-
(b) refrain from posting fur- herself in 2 Military Hospital local sphere and regardless of ties’ experts (see Buthelezi v
ther defamatory statements (the hospital). It was trite the whether it is the executive or Ndaba 2013 (5) SA 437 (SCA)
about him on her Facebook; hospital was a building under legislative entity, would not at para 14). This is so because
and the control of the Department be assessed for the purposes a court’s preference for one
(c) refrain from publishing of Defence (the defendant). of the Act in respect of its body of distinguished profes-
defamatory statements about Thomas claimed compensa- employees. The Act does not sional opinion to another also
him in any other way. tion from the Department of provide this. professionally distinguished

DE REBUS – MARCH 2015


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LAW REPORTS

is not sufficient to establish tion company. Country Cloud the Department’s blamewor- the plaintiff was that a de-
negligence. Failure to act in instituted an action against thiness and the risk of inde- lictual award would interfere
accordance with a practice the Department in the High terminate liability were rel- with the existing contractual
accepted as proper in the rel- Court, for delictual damages evant, they did not compel a relationship between Coun-
evant field is necessary, and in an amount of R 20,5 mil- finding of wrongfulness be- try Cloud and Tau Pride. In
it was for the court to decide lion together with interest. cause Country Cloud was un- the premises Country Cloud
that issue. And in doing so, it The Department’s conten- able to indicate which of its failed to show that the De-
had to be satisfied that their tion was that the contract had legal rights or interests were partment was responsible for
opinions have a logical basis been validly cancelled as a harmed by the Department. its loss.
and whether, in forming their result of misrepresentations Nor did Country Cloud’s reli- The appeal was dismissed
views, the two experts had by the contractor regarding ance on state accountability with costs.
directed their minds to the the validity of its tax clear- aid its cause: The doctrine
question of comparative risks ance certificate and because did not always give rise to a Exchange control
and benefits and reached a the tender awarded to the private-law duty, and in the Lawfulness of regulations:
defensible conclusion on the contractor was contrary to present case there was no dis- The decision in Shuttleworth
matter. the procurement regulations honesty or corruption on the v South African Reserve Bank
It held that the court a quo and policies of the Depart- part of the Department on and Others [2014] 4 All SA
erred in simply accepting the ment. The court a quo held which to hang liability. In any 693 (SCA) elicited huge me-
plaintiff’s expert witness’ that the contract was invalid event, the link between Coun- dia attention. The facts were
opinion and deciding the is- and unlawful and dismissed try Cloud and the department as follows: During 2009 the
sue of negligence on the ba- Country Cloud’s claim (Coun- was too tenuous to impose li- respondent, South Africa
sis thereof. It did not subject try Cloud Trading CC v MEC, ability on this basis. Reserve Bank (the Reserve
the plaintiff’s expert witness’ Department of Infrastructure The court’s decision regard- Bank) imposed a 10% levy on
opinion to critical analysis Development [2012] 4 All SA ing wrongfulness as a brake the appellant, Shuttleworth,
with a view to establishing 555 (GSJ) (see 2014 (May) DR on liability in cases of pure when he took his assets out
two findings. First whether it 49 – 50)). economic loss merits our at- of South Africa. Shuttleworth
had a logical basis, and sec- Country Cloud appealed to tention. In dealing with the paid the levy under protest.
ondly, whether in forming the SCA, which, citing policy aspect of pure economic loss The levy amounted to more
his views the expert witness reasons, refused to impose the court confirmed that the than R 250 million. The levy
directed his mind to the ques- delictual liability on the De- wrongfulness enquiry focus- was imposed in terms of
tion of comparative risks and partment. es on ‘the [harm-causing] con- s 9 of the Currency and Ex-
benefits and reached a defen- On appeal in the CC, Coun- duct and goes to whether the changes Act 9 of 1933 (the
sible conclusion on whether try Cloud argued that the SCA policy and legal convictions Act); read with various Ex-
the pressure sore which the erred in focusing on the build- of the community, constitu- change Control Regulations,
plaintiff sustained was avoid- ing contract instead of the tionally understood, regard it specifically, reg 10(1)(c); and
able. loan agreement. As a result, as acceptable. It is based on Exchange Control Circulars.
Accordingly its finding so Country Cloud argued, the the duty not to cause harm – In the GP, Shuttleworth ar-
of negligence, based on the Department unlawfully inter- indeed to respect rights – and gued that these legislative
opinion of the plaintiff’s ex- fered in this contract, render- questions the reasonableness measures were unconstitu-
pert witness, was wrong, and ing it liable to Country Cloud of imposing liability.’ tional and therefore invalid.
its judgment had to be set under the established delict Wrongfulness is generally He further argued that by
aside. of interference with a con- uncontentious in cases of introducing reg 10(1)(c) the
The appeal was allowed tractual relationship. positive conduct that harms Reserve Bank and the Minis-
with costs. For its argument on wrong- the person or property of an- ter of Finance did not com-
fulness Country Cloud relied, other. Conduct of this kind is ply with the enabling legisla-
Delict – pure economic loss: among other things, on the prima facie wrongful. Howev- tion, in particular s 9(5)(a) of
The facts in Country Cloud nature of the department’s er, in cases of pure economic the Act which empowered a
Trading CC v MEC, Depart- fault (intent) and the con- loss – that is to say, where fi- person to make orders and
ment of Infrastructure Devel- stitutional value of state ac- nancial loss is sustained by a rules by regulation. The GP
opment 2015 (1) SA 1 (CC); countability. Khampepe J plaintiff with no accompany- dismissed Shuttleworth’s ap-
Country Cloud Trading CC held that the central issue ing physical harm to her per- plication.
v Member of the Executive was whether the Depart- son or property – the criteri- On appeal to the SCA Shut-
Council, Department of In- ment’s conduct was wrong- on of wrongfulness assumes tleworth again argued that
frastructure Development, ful vis-à-vis Country Cloud. special importance. taxation required a statute
Gauteng 2014 (12) BCLR 1397 Since Country Cloud’s claim Our law is generally reluc- passed by Parliament. He fur-
(CC) were as follows. The ap- was one for pure economic tant to recognise pure eco- ther submitted that the re-
pellant, Country Cloud, had loss, and wrongfulness was nomic loss claims, especially quirement contained in ss 75
lent money to a construction not assumed, liability would where it would constitute an and 77 of the Constitution,
company contracted by the depend on whether Country extension of the law of delict. that a money bill (including
respondent’s Department Cloud was able to positively Wrongfulness must be posi- the appropriation of money
(the Department) to complete establish wrongfulness.* tively established. It has thus or imposition of taxes), must
the construction of a par- (*Country Cloud was unable far been established in lim- be approved by Parliament. It
tially built clinic. In terms of to bring its claim within the ited categories of cases, like was common cause that reg
the loan agreement, Country established ambit of the de- intentional interferences in 10(1)(c) was not approved by
Cloud stood to make a prof- lict of unlawful interference contractual relations or neg- Parliament.
it of R 8,5 million. However, in a contract. Had Country ligent misstatements, where The SCA was thus asked to
the Department cancelled Cloud succeeded in doing the plaintiff can show a right pronounce on the constitu-
the construction contract, so, the department’s conduct or legally recognised interest tionality and validity of the
which ultimately led to the would have been regarded as that the defendant infringed. 10% exit levy.
liquidation of the construc- prima facie wrongful.) While An additional obstacle for Navsa ADP and Ponnan

DE REBUS – MARCH 2015


- 33 -
LAW REPORTS

JA in a joint judgment held CC and Another v Phay- a residential occupant, from in the context of the repealed
that the 10% exit levy on the ane 2015 (1) SA 54 (CC); MC its operation. legislation as a whole, Mpati P
export of capital was a levy Denneboom Service Station The court accordingly re- concluded that such differen-
of general application that, CC and Another v Phayane fused leave to appeal, ex- tiation was permissible. The
while in force, was imposed 2014 (12) BCLR 1421 (CC) cept insofar as it related to Authority had misconstrued
on the export of capital in the respondent, Phayane, had the amendment to the order the provision, thereby com-
excess of R 750 000. It can bought an immovable prop- granted by the High Court. mitting an error of law, which
hardly be in dispute that the erty from the insolvent es- The order of the High Court had materially affected the
levy was a revenue-raising tate of the second applicant, was set aside and replaced outcome of its decision. The
mechanism for the state. Chiloane, at a public auction. with the following order: Minister was consequently
The levy could only have Phayane subsequently ob- ‘Ejecting [Denneboom] and misinformed on two fronts.
been intra vires reg 10(1)(c) tained an eviction order in the all those persons working for The first is that he was in-
if the regulation legitimately High Court against Chiloane it, excluding [Chiloane] as a correctly informed that the
authorised the raising of rev- and the first applicant, Den- residential occupant, and any authority had no power to im-
enue for the state. It was com- neboom, who together had other residential occupant pose differentiated fees. This
mon cause that reg 10(1)(c) run businesses on the prop- [from the present property]’ constituted an error of law.
had not followed the proce- erty. The eviction order was (own insertions). Each party The second is that he was in-
dure for taxation prescribed sought and granted only in was ordered to pay its own correctly informed that all
by s 9(4) of the Act. respect of the commercial oc- costs. avenues had been exhausted
Section 9(4) is animated cupants, specifically exclud- to arrive at a more equitable
by the ‘no taxation without ing ‘all residential occupants Security industry fee structure when there was
representation by Parliament of the premises’, so that no Validity of regulations: The no evidence to support that
principle’. The Constitution compliance with the Preven- decision in Security Industry assertion. This constituted
requires that the power of tion of Illegal Evictions from Alliance v Private Security a misinformation as to the
taxation should be tightly and Unlawful Occupation of Industry Regulatory Author- facts. The court held that in
controlled. First, s 77(1) of Land Act 19 of 1998 (PIE) was ity and Others 2015 (1) SA these circumstances the Min-
the Constitution provides required. However, the or- 169 (SCA); Security Industry ister could not be said to have
that a so-called money bill is der was ambiguous because Alliance v Private Security taken a proper decision.
one that appropriates money, Chiloane, in addition to run- Industry Regulatory Author- The Minister’s decision was
or imposes taxes, levies, du- ning the business with Den- ity and Others [2014] 4 All SA contaminated by the incor-
ties and surcharges. Secondly, neboom, had also resided on 21 (SCA) concerns the review rect interpretation, by the au-
s 73(2) of the Constitution the premises. of amendments to certain thority, of the provisions of
provides that only the Minis- Although the court of first regulations by the Minister s 32(2) of the repealed legisla-
ter of Finance may introduce instance GP and the SCA re- of Police (the Minister). These tion and the consequent mis-
a money bill in Parliament. It fused leave to appeal against regulations affect the security apprehension of its powers,
is thus unconstitutional for the eviction order, the CC al- industry in South Africa. The as well as the factual misin-
taxes or levies to be raised by lowed leave to appeal on the Minister amended the regula- formation.
delegated legislation, which narrow issue of the effect of tions on the recommendation The amendment to the
is not specifically authorised this ambiguity on the validity of the Private Security Regu- regulations was set aside. The
in a money bill enacted in ac- of the eviction order. latory Authority (the Authori- appeal was thus allowed with
cordance with the provisions Khampepe J held that PIE ty). The amendments entailed costs.
of the Constitution. did not apply to the evic- an increase in the fees paya-
The imposition of the 10% tion of juristic persons and ble by all security businesses OTHER CASES
levy is inconsistent with persons not using buildings to the authority by huge mar-
Apart from the cases and top-
ss 75 and 77 of the Consti- and structures as ‘a form of gins. The Security Industry
ics that were discussed or re-
tution and invalid and ultra dwelling or shelter’. Phayane Alliance (SIA), an umbrella
ferred to above, the material
vires reg 10(1)(c). was, therefore, not obliged body representing various
under review also contained
The appeal was accord- to comply with the require- interests within the security
cases dealing with adminis-
ingly upheld and the Reserve ments of PIE in seeking the industry, brought an applica-
trative law, civil procedure,
Bank was ordered to repay eviction of Denneboom and tion to have it reviewed and
constitutional law, criminal
Shuttleworth the amount of persons working for it or set aside. When this failed the
procedure, evidence, immi-
R 250 474 893 with interest. working for Chiloane, pro- present appeal was lodged
gration, judges, local author-
Each party had to pay its own vided those persons did not with the SCA.
ity, minerals and petroleum,
costs. also reside on the property. One of SIA’s main com-
mortgage, practice, revenue
In passing it needs to be But because Chiloane was plaints was the failure by
and traditional leadership.
mentioned that the court an ‘unlawful occupier’ under the Authority to differentiate
considered the possibility of the Act and thus the court between the fees payable by
a flood of similar claims, but was required to ensure that large and small security ser-
held that because the exit levy PIE’s requirements were met vice providers with very seri- q
had been repealed by the Min- before ordering his eviction. ous consequences for the lat-
ister more than three years The High Court’s order was ter. Although it appreciated
ago (on 27 October 2010), defective in that it could po- the need for such differentia-
there is no danger of a flood tentially result in Chiloane’s tion, the Authority believed
of similar claims. eviction when it was common that the enabling legislation,
cause that the PIE Act was which is contained in s 32(2)
Land not complied with. It would, of the now repealed Security
therefore, be just and equita- Officers Act 92 of 1987, did
Unlawful occupation: In MC ble to amend the high court’s not permit this.
Denneboom Service Station order to exclude Chiloane, as After examining the section

DE REBUS – MARCH 2015


- 34 -
NEW LEGISLATION

NEW LEGISLATION
Legislation published from
22 December 2014 – 30 January 2015

Philip Stoop BCom LLM (UP) LLD


(Unisa) is an associate professor in the
department of mercantile law at Unisa.

BILLS INTRODUCED Agricultural Product Standards Act 119 the exchange of information relating to
of 1990 tax matters. GN4 GG38378/8-1-2015.
Financial and Fiscal Commission Amend- Amendment of standards and require- National Environmental Management
ment Bill B1 of 2015. ments: Export of rooibos and rooibos Act 107 of 1998
mixtures. GN18 GG38398/23-1-2015. Amendments to the regulations on
fees for consideration and processing
PROMULGATION OF ACTS Amendment of standards and require-
of environmental authorisations and
ments: Export of avocados. GenN66
Taxations Laws Amendment Act 43 GG38419/30-1-2015. amendments thereto. GN R43 GG38417/
of 2014. Commencement: See sections Regulations regarding the classification 23-1-2015.
of the Act for various commencement and marking of meat intended for sale National Environmental Management:
dates. GN21 GG38405/20-1-2015. in South Africa. GN R55 GG38431/30-1- Waste Act 59 of 2008
Tax Administration Laws Amendment 2015. Amendments to the regulations on
Act 44 of 2014. Commencement: See s Airports Company Act 44 of 1993 fees for consideration and processing
79 for various commencement dates. Airport charges. GenN1164 GG38362/22- of applications for waste management
GN22 GG38406/20-1-2015. 12-2014. licences, transfer and renewal thereof.
Development Bank of Southern Af- Air Traffic and Navigation Services GN R44 GG38417/23-1-2015.
rica Amendment Act 41 of 2014. Com- Company Act 45 of 1993 Road Accident Fund Act 56 of 1996
mencement: 20 January 2015. GN19 Traffic service charges. GN1167 Adjustment of the statutory limit in
GG38403/20-1-2015. GG38364/31-12-2014. respect of claims for loss of income and
Rates and Monetary Amounts and loss of support. BN6 GG38419/30-1-
Basic Conditions of Employment Act 75
Amendment of Revenue Laws Act 42 2015.
of 1997
of 2014. Commencement: See sections Amendment of sectoral determina-
of the Act for various commencement Rules Board for Courts of Law Act 107
tion: Contract cleaning sector. GN6 of 1985
dates. GN20 GG38404/20-1-2015. GG38384/6-1-2015. Amendment of rules regulating the
Public Administration Management Act Civil Aviation Act 13 of 2009 conduct of proceedings of the
11 of 2014. Commencement: To be pro- Amendment of the Civil Aviation Regu- Magistrates’ Courts (Rules 27 and 55
claimed. GN1054 GG38374/22-12-2014. lations (passenger safety charges). GN with effect from 13 February 2015). GN
R1053 GG38367/22-12-2014. R5 GG38380/9-1-2015.
COMMENCEMENT OF ACTS Dental Technicians Act 19 of 1979 Amendment of rules regulating
Annual fees payable. GN R45 GG38424/ the conduct of proceedings of the
Correctional Matters Amendment Act 5 26-1-2015. Magistrates’ Courts (Annexure 2 to
of 2011, s 9. Commencement: 5 January Regulations relating to the restricted reg- the Rules with effect from 24 February
2015. Proc1 GG38377/5-1-2015. istration of informally trained persons 2015). GN R33 GG38399/23-1-2015
Criminal Law (Forensic Procedures) as dental technicians. GN R46 GG38425/ and GN R32 GG38399/23-1-2015.
Amendment Act 37 of 2013 (except s 27-1-2015. Amendment of rules regulating
2). Commencement: 31 January 2015. Financial Markets Act 19 of 2012 the conduct of proceedings of the
Proc89 GG38376/30-12-2014. Amendments to the Johannesburg Stock Magistrates’ Courts (Rule 70). GN R31
Exchange (JSE) interest rate and currency GG38399/23-1-2015.
Legal Practice Act 28 of 2014, chapter rules. BN2 GG38388/16-1-2015. Amendment of rules regulating the
10 (parts 1 and 2). Commencement: 1 conduct of proceedings of the
Health Professions Act 56 of 1974
February 2015. Proc R2 GG38412/23- Magistrates’ Courts (Rule with effect
Regulations relating to the qualifications
1-2015. from 24 February 2015). GN R30
for registration of oral hygienists. GN
R42 GG38416/23-1-2015. GG38399/23-1-2015.
SELECTED LIST OF DEL- Amendment of regulations defining the
scope of the profession of optometry. Small Claims Courts Act 61 of 1984
EGATED LEGISLATION GN R47 GG38426/28-1-2015. Establishment of a small claims
Agricultural Pests Act 36 of 1983 Income Tax Act 58 of 1962 court for the area of Molteno. GN39
Amendment of control measures. GN Agreement between the governments of GG38415/22-1-2015.
R49 GG38420/30-1-2015. South Africa and the Cook Islands for Establishment of a small claims

DE REBUS – MARCH 2015


- 35 -
court for the area of Hanover. GN40 tional Road Traffic Act 93 of 1996. ing to the grading, packing and mark-
GG38415/22-1-2015. GenN1168 GG38370/23-12-2014. ing of pears intended for sale in South
Establishment of a small claims court Draft Guidelines for the determination Africa in terms of the Agricultural Prod-
for the area of Hay. GN41 GG38415/22- of administrative penalties for prohibit- uct Standards Act 119 of 1990. GenN68
1-2015. ed practices in terms of the Competition GG38419/30-1-2015.
Establishment of a small claims court Act 89 of 1998. GenN1158 GG38340/24- Proposed amendment regulations relat-
for the area of Postmasburg. GN38 12-2014. ing to the grading, packing and marking
GG38415/22-1-2015. Draft norms and standards for translo- of apples intended for sale in South Af-
Establishment of a small claims court cation of indigenous species in South rica in terms of the Agricultural Product
for the area of Mapumulo. GN37 Africa in terms of the National Environ- Standards Act. GenN67 GG38419/30-1-
GG38415/22-1-2015. mental Management: Biodiversity Act 10 2015.
Establishment of a small claims of 2004. GenN44 GG38395/15-1-2015. Proposed amendment regulations relat-
court for the area of Tseki. GN36 Draft research regulations in terms of ing to the grading, packing and mark-
GG38415/22-1-2015. the National Environmental Manage- ing of table grapes intended for sale in
Establishment of a small claims court ment: Integrated Coastal Management South Africa in terms of the Agricul-
for the area of Empangeni and Mtun- Act 24 of 2008. GenN16 GG38388/16-1- tural Product Standards Act. GenN65
zini. GN35 GG38415/22-1-2015. 2015. GG38419/30-1-2015
Proposed amendments to the JSE eq- Proposed amendment regulations relat-
South African Schools Act 84 of 1996 uities, derivatives and interest rate ing to the grading, packing and marking
Amended national norms and standards and currency rules in terms of the Fi- of table maize products intended for
for school funding. GN17 GG38397/16- nancial Markets Act 19 of 2012. BN4 sale in South Africa in terms of the Agri-
1-2015. GG38398/23-1-2015. cultural Product Standards Act. GenN69
Draft National Road Traffic Amendment GG38419/30-1-2015
Draft legislation Bill. GenN77 GG38429/28-1-2015.
Draft Regulations in terms of the Na- Proposed amendment regulations relat- q

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- 36 -
EMPLOYMENT LAW

Employment law update

Talita Laubscher BIur LLB (UFS) LLM Monique Jefferson BA (Wits) LLB (Rho-
(Emory University USA) is an attorney des) is an attorney at Bowman Gilfillan in
at Bowman Gilfillan in Johannesburg. Johannesburg.

Must discipline be the CCMA commissioner, the sanction of condoned dishonesty. It would not make
dismissal was too harsh in the circum- sense for an employee who commits seri-
consistently applied? stances, especially when regard was had ous misconduct to get off lightly because
While there is a general rule that dis- to the following factors – a previous employee was not dismissed
cipline must be consistently applied, • ABSA had previously not dismissed an because of a technicality or differing
the Labour Appeal Court (per Waglay employee for similar misconduct and views of presiding officers. Thus, there
JP, Ndlovu JA and Coppin AJA) held in thus had demonstrated that not all trans- needs to be a degree of flexibility so that
ABSA Bank Ltd v Naidu [2015] 1 BLLR 1 gressions of this nature are dismissable; discretion can be exercised in each case.
(LAC) that the mere fact that another em- • Naidu had 20 years’ service with ABSA; Ndlovu JA concluded that there was no
ployee was previously not dismissed for • Naidu had thought that she was act- justification to condone Naidu’s conduct
similar misconduct did not mean that ing in the best interest of the client and based on one single instance of miscon-
the employer condoned such behaviour ABSA; duct by another employee. Furthermore,
and that it would be unfair to dismiss an- • she did not gain personally from her Ndlovu JA was of the view that the cases
other employee for similar misconduct. actions; and were not exactly alike as the other em-
In this case, Naidu was an investment • she seemed remorseful and thus it was ployee’s case did not involve a financial
banker at ABSA and was dismissed after unlikely that Naidu would commit simi- transaction but a quotation. In addition,
switching funds from one portfolio to lar misconduct again. the other employee had committed the
another without the client’s knowledge Furthermore, Naidu had actually come act in the spur of the moment while it
or consent. She had tried to obtain con- clean about her actions and raised the seemed that Naidu had had time to re-
sent from the client to move his funds issue before ABSA found out about it. flect on the potential gravity of her ac-
to another fund but allegedly could not The CCMA commissioner concluded that tions and her conduct was premeditated.
get hold of him because he was out of the act of dishonesty and breach of FAIS Thus, these two cases were not identical.
the country. She nevertheless switched legislation was not sufficient to warrant Furthermore, they were presided over
his investment from the Money Market dismissal. by different chairpersons. The LAC held
to the Property Market as she thought it On review the Labour Court dismissed that while the issue of parity is an im-
would be in his best interest to do so. In the review application on the basis that portant factor, it is only one factor and is
order to do this, she relied on the client’s the dismissal was substantively unfair as not decisive. One still needs to consider
signature from a previous switch form. another employee had received a final all the facts of the case.
This was done in violation of ABSA’s written warning for similar misconduct A mitigating factor that was consid-
Rules and Codes of Conduct and was in and thus that the commissioner’s award ered was that Naidu’s conduct was not
breach of Financial Advisory and Inter- was reasonable in the circumstances. for personal gain but in the best interest
mediary Services Act 37 of 2002 (FAIS) ABSA then appealed to the Labour Ap- of the client. However, Ndlovu JA was of
legislation. Naidu later informed her em- peal Court (LAC). At the LAC Naidu ar- the view that this was not entirely true
ployer that she had done this and was gued that ABSA did not apply the parity as prior to this event, Naidu had given
dismissed following a disciplinary in- principle as another employee who had the client some bad financial advice and
quiry into her misconduct. committed similar misconduct was not there was a threat that she would be held
After an internal appeal was dis- dismissed and thus Naidu’s dismissal personally liable for a previous loss of
missed, Naidu referred an unfair dis- was substantively unfair. Ndlovu JA con- R 40 000. Thus, the switch was prob-
missal claim to the Commission for sidered the parity principle and found ably motivated by a desire to recoup the
Conciliation, Mediation and Arbitration that the concept of parity requires fair- perceived financial loss. Another miti-
(CCMA) alleging that her dismissal was ness and equality before the law. This gating factor that the LAC considered
substantively unfair as another employ- requires like cases to be treated alike. was Naidu’s alleged remorse. The LAC
ee had previously committed similar Ndlovu JA, however, found that the par- considered the fact that she did not take
misconduct but received a final warning. ity principle must be applied with cau- responsibility for her actions in the in-
The outcome at the CCMA was that the tion and the fact that another employee ternal appeal and was accordingly of the
dismissal was substantively unfair and was not dismissed for similar miscon- view that the remorse she subsequently
reinstatement was ordered. According to duct did not mean that the employer showed was not true remorse. It was

DE REBUS – MARCH 2015


- 37 -
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EMPLOYMENT LAW

held further, that even if there had been case was gross or not depended on the was irreparably broken down and the re-
genuine remorse, this did not constitute impact it had on the employer’s busi- morse, whether genuine or not, was not
an absolute immunity to the sanction of ness. Naidu’s conduct severely affected likely to restore the trust relationship. In
dismissal as remorse is merely one fac- the business and ABSA’s reputation. the circumstances, the LAC held that the
tor to be taken into account. She also occupied a senior position and commissioner did not reach a decision
The LAC held that there are varying was involved in significant transactions that a reasonable decision maker could
degrees of dishonesty and thus each where a high level of trust was placed in make and the appeal was upheld.
case must be decided on its own facts. her.
Whether the dishonesty in a particular It was held that the trust relationship

bour Court Rules, to join Intervalve and jurisdictional precondition to the Labour
BHR as employers. Court adjudicating an unfair dismissal
It was not disputed that Steinmüller, dispute, was that the dispute must first
Intervalve and BHR were subsidiaries of be referred to conciliation and either a
the same holding company, had com- certificate of non-resolution be issued
mon directors and shareholders, oper- or a 30 day lapse from when the dispute
ated from the same site and shared a was referred.
common human resources service and Having arrived at this conclusion the
legal representative. next question was whether it could be ar-
gued that by sending the referral to the
Litigation shared human resources department,
Moksha Naidoo BA (Wits) LLB (UKZN) The Labour Court, in National Union the referral to conciliation against Stein-
is an advocate at the Johannesburg Bar. of Metalworkers of South Africa obo its müller encompassed both Intervalve and
Members v Steinmüller Africa (Pty) Ltd BHR.
and Others [2012] 7 BLLR 733 (LC), as In answering this question the court
per Steenkamp J, granted joinder hav- turned its attention to s 191 of the LRA,
Joinder v Jurisdiction ing found that Intervalve and BHR had in particular s 191(3) which stipulates
National Union of Metalworkers of South a substantial as well as a sufficient legal that when an employee refers a dispute
Africa v Intervalve (Pty) Ltd and Others interest in the subject matter of proceed- for conciliation, the employee must sat-
(CC) (unreported case no CCT 72/14, 12- ings. The court held that the rule permit- isfy the CCMA or bargaining council that
12-2014) (Cameron J) ting joinder would serve little purpose a copy of the referral has been served on
Can an employee who alleges his dis- if Numsa was required to refer disputes the employer.
missal was automatically unfair, join against the individual employers and
another employer, which had not been then later consolidate proceedings at Was this statutory
cited in the initial referral to the Concili- court. requirement fulfilled?
ation, Mediation and Arbitration (CCMA)
or bargaining council, nor was a part of LAC When dealing with an issue of this nature
the conciliation process; to proceedings On appeal in Intervalve (Pty) Ltd and An- a court will firstly ascertain, among oth-
at the Labour Court? other v National Union of Metalworkers er things, the purpose for the statutory
This was the question before the Con- of South Africa obo Members (LAC) (un- requirement and then examine whether
stitutional Court. reported case no JA 24/2012, 26-3-2014) such purpose has been fulfilled – in casu
204 National Union of Metalworkers Waglay JP (with Francis AJA and Dlodlo whether the referral against Steinmüller
of South Africa (Numsa) members were AJA concurring) held that s 191(5) of to the shared human resources services,
dismissed for allegedly participating in the Labour Relations Act 66 of 1995 fulfilled the requirement of s 191(3) in
an unprotected strike. Acting on behalf imposes, as a jurisdictional precondi- respect of Intervalve and BHP.
of its members, Numsa referred a dis- tion, that an employee refer a dispute to Applying this principle and dealing first-
missal dispute to the bargaining council conciliation before such dispute can be ly with the purpose of s 191(3), the court
citing the third respondent (Steinmüller adjudicated by the Labour Court. In this held:
Africa (Pty) Ltd) as the employer. At con- case the court a quo did not have juris- ‘The objective cannot be just to let the
ciliation the representatives of Steinmül- diction to hear any claim against BHP or employer know that a dispute, related
ler disputed that it was the employer of Intervalve because no dispute had been to the dispute that affects it, is being
all 204 employees. The matter remained conciliated wherein either of these two conciliated. It must be to put each em-
unresolved and a certificate of non-reso- entities were cited as the employer. The ployer party individually on notice that
lution was issued. Labour Appeal Court (LAC) went onto it may be liable to legal consequences if
Three months after their members say that ‘the discretion to join parties the dispute involving it is not effectively
were dismissed Numsa referred a second to proceedings cannot trump the clear conciliated. Those consequences may be
dismissal dispute, together with condo- jurisdictional requirements of the LRA’. severe. They may include enterprise-
nation, on behalf of the same members threatening implications: trial proceed-
but this time cited Steinmüller, alterna- The Constitutional Court ings, reinstatement orders, back pay and
tively Intervalve (Pty) Ltd, alternatively In the majority judgment penned by costs orders. So the notice must be di-
BHR Piping Systems (Pty) Ltd as the em- Cameron J (Mogoeng CJ, Moseneke DCJ, rectly targeted.’
ployer. The bargaining council refused Khampepe J, Leeuw AJ and Zondo J con- The next question was whether this
condonation. curring), the court began by confirming purpose had been fulfilled. The court’s
On the strength of the certificate of the legal position, (as held in the major- view can be gleaned from the following
outcome (consequential to the initial re- ity decision in National Union of Metal- extract of the judgment:
ferral), Numsa filed a statement of claim workers of South Africa and Others v ‘So the purpose of the statutory provi-
at the Labour Court and then made an Driveline Technologies (Pty) Ltd and An- sion – to tell those on the line that the
application, in terms of r 22 of the La- other 2000 (4) SA 645 (LAC)), that as a impending legal process might make

DE REBUS – MARCH 2015


- 39 -
EMPLOYMENT LAW

them liable to adverse consequences – strike action by the three entities shared distils the components of a dispute. The
was not fulfilled. That the three compa- human resources services and received facts of this case are in conformity with
nies’ shared HR services, and the com- identical dismissal letters, a representa- this position. Intervalve and BHR rely
panies’ attorney, knew about the referral tive from the shared human resources on the lack of initial service and their
against Steinmüller did not mean that services and the same attorney repre- citation. However, the three companies
they knew, or should have concluded, senting all three entities both attended must have been aware of the dispute. I
that the dispute against Intervalve and the conciliation, the conciliated dispute find it difficult to maintain that with the
BHR had also been referred for con- involved Intervalve and BHR. shared HR services and legal representa-
ciliation. On the contrary, the referral When interpreting these factors pur- tion, Intervalve and BHR were unaware
against Steinmüller alone told them the posively (having regard to the primary of the referred dispute. The three com-
opposite. Intervalve and BHR were left purpose to the LRA, the constitutional panies’ argument regarding non-service
out. The ensuing legal process did not right to fair labour practice (s 23), the is a technical one based on the formal
encompass them.’ right to have a dispute resolved by a requirement to cite and serve employer
The appeal was dismissed with no or- court or tribunal (34) and the s 39(2) of companies with the referral form. This,
der as to costs. the Bill of Rights, which obliges a court in my view, elevates form over sub-
In a dissenting judgment by Nkabinde to interpret legislation having regard to stance.’
J (Froneman J, Jafta J, Madlanga J and the spirit and purpose of that legisla-
Van der Westhuizen J concurring), the tion); the minority found that there had
minority agreed with the importance been substantial compliance with s 191.
Do you have a labour law-related
of conciliation but differed in regard to Nkabinde J held: question that you would like
whether there had been substantial com- ‘I agree that conciliation requires the answered?
pliance with s 191. referral of a dispute and that parties
Send your question to
Relevant to the matter were the fol- to the dispute should be granted the derebus@derebus.org.za
lowing factors; all the employees were opportunity to represent themselves.
collectively dismissed over the same Driveline confirms this position when it q

THE SA ATTORNEYS’ JOURNAL

De Rebus welcomes contributions in any of the 11 official languages,


especially from practitioners.

The following guidelines should be complied with:

• Contributions should be original not exceed 1 000 words. Letters • The editorial committee and the
and not published or submitted should be as short as ­possible. editor reserve the right to edit con-
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­opinions and similar items should in any format.

DE REBUS – MARCH 2015


- 40 -
RECENT ARTICLES AND RESEARCH

By
Meryl
Federl Recent articles
and research
Note: From this issue forward, where articles are available on an open access platform,
articles will be hyperlinked on De Rebus Digital.

ABBREVIATIONS tential of capstone learning experiences defence of trade liberalisation and na-
APPLJ: African Public Procurement Law in addressing perceived shortcomings in tional sovereignty: An appraisal of Unit-
Journal (Faculty of Law, Stellenbosch LLB Training in South Africa’ (2014) 17.4 ed States-measures affecting the produc-
University, South Africa) PER 1349. tion and sale of clove cigarettes’ (2014)
17.4 PER 1262.
EL: Employment Law Journal (LexisNexis) Legal philosophy
PER: Potchefstroom Electronic Law Jour- Roos, MC ‘Is law Science?’ (2014) 17.4
nal (North West University)
PLJ: Property Law Journal (LexisNexis)
PER 1391.
Open access law
Legal profession
Affirmative action Slabbert, M and Boome, DJ ‘Reforma- journals:
Grogan, J ‘The chronicles of Barnard – tion from Criminal to Lawyer: Is such
affirmative action on trial’ (2014) Dec Redemption Possible?’ (2014) 17.4 PER • African Human Rights Law Journal:
EL 3. 1497. www.chr.up.ac.za/index.php/about-
the-journal.html
Company law Medical law
Beukes, HGJ and Swart, WJC ‘Peel v Ha- Le Roux-Kemp, A and Burger, E ‘Shaken • De Jure published by the Universi-
mon J&C Engineering (Pty) Ltd: Ignoring Baby Syndrome: A South African medi- ty of Pretoria: www.dejure.up.ac.za/
the result-requirement of s 163(1)(a) of co-legal perspective’ (2014) 17.4 PER
the Companies Act and extending the 1286. • Journal for Juridical Science: htt-
oppression remedy beyond its statutori-
Municipal law ps://africansunmedia.snapplify.com/
ly intended reach’ (2014) 17.4 PER 1690. product/journal-for-juridical-sci-
Ferreira, G and Ferreira-Snyman, A ‘The
Customary law incorporation of public international ence-382
Kruuse, H and Sloth-Nielsen, J ‘Sailing law into municipal law and regional law
between Scylla and Charybdis: Mayelane against the background of the dichoto- • Law, Democracy & Development is
v Ngwenyama’ (2014) 17.4 PER 1709. my between monism and dualism’ (2014) the journal of the Faculty of Law at
Soyapi, CB ‘Regulating traditional justice 17.4 PER 1470. the University of the Western Cape:
in South Africa: A comparative analysis www.ldd.org.za/current-volume.html
Property law
of selected aspects of the Traditional
Mongoato, R ‘Landlords, leases and liq- • Potchefstroom Electronic Law Jour-
Courts Bill’ (2014) 17.4 PER 1440.
uidations: Timing is everything’ (2014) nal: www.nwu.ac.za/p-per/volumes
Delict Dec PLD 2.
Ahmed, R ‘“Contributory intent” as a de- Warburton, D ‘Options to purchase and • Speculum Juris: www.speculum-
fence limiting delictual liability’ (2014) their binding effect on successors in ti- juris.co.za/articles
17.4 PER 1516. tle’ (2014) Dec PLD 4.
Environmental law Public procurement Open access websites:
Humby, T ‘Localising Environmental Tsabora, J ‘Public procurement in Zim-
• www.lawsofsouthafrica.up.ac.za
Governance: The Le Sueur Case’ (2014) babwe: Law, policy and practice’ (2014)
• www.saflii.org
17.4 PER 1659. 1.1 APPLJ 1.
Williams-Elegbe, S ‘The changes to the
Housing world bank’s procurement policy and
Strydom, J and Viljoen, S ‘Unlawful oc- the implications for African borrowers’
cupation of inner-city buildings: A con- (2014) 1.1 APPLJ 21. Meryl Federl BA Higher Dipl Li-
stitutional analysis of the rights and ob- brarianship (Wits) is an archivist
ligations involved’ (2014) 17.4 PER 1206. Religion at the Johannesburg Society of
Osman, F ‘Legislative prohibitions on
Labour law wearing a headscarf: Are they justified?’
Advocates library. E-mail: mer-
ylfederl@yahoo.co.uk
Cohen, T and Matee, L ‘“Public servants’ (2014) 17.4 PER 1317.
right to strike in Lesotho, Botswana and
South Africa – a comparative study’ Social security
(2014) 17.4 PER 1630. Mosito, KE ‘A panoramic view of the so- Please note that copies of the arti-
Gladwin, C and Civin, A ‘The 2014 occu- cial security and social protection provi- cles mentioned in this feature are
pational health and safety construction sioning in Lesotho’ (2014) 17.4 PER 1571. not supplied by the author, but may
regulations’ (2014) Dec PLD 6.
Trade law be obtained from the publishers of
Legal education Warikandwa, TV and Osode, PC ‘Man- the journals, or a law library.
Quinot, G and van Tonder, SP ‘The po- aging the trade-public health linkage in q

DE REBUS – MARCH 2015


- 41 -
OPINION

By
Valerie Everyone has the
right to life – Fact or a
Teresa
Smit

nasciturus fiction?

T
he debate surrounding pre- cludes the right to make decisions con- that in making their decision not to allow
natal life is a multifaceted cerning reproduction. wrongful life actions, have the judges
and convoluted legal topic, erred in bringing the development of our
notwithstanding the various Analysis common law in line with constitutional
religious and philosophical principles, which clearly do not accord
The most recent wrongful life claim in
arguments it triggers. Without becom- any constitutional rights to unborn chil-
which judgment was given by our courts
ing all dogmatic about life and when it dren, let alone the right to life?
took centre stage at an appeal to the
begins, it seems appropriate in light of With constitutional values being ap-
Constitutional Court in August 2014,
recent case law surrounding delictual plicable to all law and thus also to the
after the Western Cape High Court deliv-
claims of children, to evaluate the right Act, (which we accept as constitutional),
ered judgement in April 2014, uphold-
that children have to institute wrongful the decision by the courts not to rule
ing an exception to a mother’s claim for
life claims and the repercussions this on the right to life versus never being
wrongful life on behalf of her minor son.
has for law reform in the interpretation born at all, seriously questions whether
Exception was raised by the defendant
of the right to life. they are of the opinion that social ethics
in H v Kingsbury Foetal Assessment Cen-
have shifted. It could be argued from the
tre (Pty) Ltd (WCC) (unreported case no
Definitions above that our courts are giving the im-
4872/2013, 24-4-2014) (Baartman J), in
• Everyone’s right to life is guaranteed in pression that the blessing of life, albeit
that, inter alia –
s 11 of our Constitution, which section is a tainted one, reigns sovereign over the
• the particulars of the claim were al-
further left unqualified. prevention of a child’s birth by abortion
leged to be contra bones mores and
• In Christian Lawyers Association v Min- needed to protect the foetus from the fu-
against public policy, as our courts
ister of Health and Others (Reproduc- ture harms of disability.
should not be tasked with the question
tive Health Alliance as Amicus Curiae) Many would advocate that there is a
of whether it is better to not have life
2005 (1) SA 509 (T) however, the High great public interest in having the right
at all than to have a life shrouded with
Court ruled that the word ‘everyone’ as to life extended to include a foetus and
disabilities; and
contained in s 11, does not extend to un- there could very well have been a change
• that in applying general principles of in the convictions of the community
born foetuses, which do not have legal delictual law, the defendant could not
personality under our Bill of Rights. since the promulgation of the Act almost
have undertaken a legal duty towards 20 years ago.
• The so-called nasciturus fiction, refers the foetus that would oblige the defend- Even more so now than ever, public
to the legal principle in which foetuses ant to take such action as might be nec- opinion is being influenced by the over-
if subsequently born alive, will acquire essary to cause the foetus to be termi- achieving and spirited disabled persons
all of the rights of born children when- nated. of the world who against all odds achieve
ever this is to its advantage. Pinchin and The above together with Friedman success in sports, arts and science.
Another NO v Santam Insurance Co Ltd v Glicksman 1996 (1) SA 1134 (W) and The Pinchin case also lends the idea
1963 (2) SA 254 (W) also confirmed that Stewart and Another v Botha and Anoth- that since an unborn child can acquire
this principle extends to the law of de- er 2008 (6) SA 310 (SCA) are the cases subjective rights as a foetus, the law re-
lict. thus far that stand as precedent for the gards the foetus as a legal person.
• Wrongful life is a legal action, which institution of wrongful life actions. The Pro-life and pro-choice, the debate is
embodies a severely disabled child suing irony in these decisions is that in re- never-ending. And while South Africa’s
a medical practitioner and/or hospital jection of such claims, our courts have progressive laws are applauded for up-
through the assistance of a parent, for more firmly established their regard for holding women’s rights, there seems
failing to prevent the child’s birth. It is the right to life of an unborn foetus and to be a grey area into which the courts
argued that had the medical practitioner its value vis-à-vis termination of a defec- do not feel comfortable entering: The
provided a genetic outlook before the tive pregnancy. It is clear from the rea- delicate balance between the right to life
pregnancy or alternatively information soning given by the judges who upheld and the right to prevention of child birth
about the likelihood of disability during exceptions to the wrongful life claims in when considering wrongful life actions.
the pregnancy, the mother would have these matters, that in making the deci- It seems this great debate will stand the
prevented the child’s birth or opted sion to grant such claims, the courts will test of time.
for termination of the pregnancy inevitably have to decide on and accept
respectively. in its calculation of damages, that never
• The Choice on Termination of Pregnan- being born at all is a better alternative Valerie Teresa Smit BCom LLB
cy Act 92 of 1996 (the Act), is the law to a disabled life. This is something for (Unisa) is a candidate attorney
governing abortion in South Africa and public policy reasons that the courts are at Boshoff Njokweni Inc in Cape
embodies the mother’s right to bodily refusing to rule on. Town.
and psychological integrity, which in- The questions that need to be asked is q

DE REBUS – MARCH 2015


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BOOKS FOR LAWYERS

Workplace Law
What makes this edition of Workplace Law so valuable is that
it has been updated to include the recent amendments to the
Employment Equity Act 55 of 1998 (EEA), the Labour Relations
Act 66 of 1995 (LRA) and the Basic Conditions of Employment
By John Grogan Act 75 of 1997. What I would have liked this book to include
is more emphasis on the equal treatment provisions that have
Cape Town: Juta recently been included in the EEA and the LRA and hopefully
(2014) 11th edition this is something that we can look forward to in the next edi-
tion once there has been case law on these issues. I also would
Price: R 675 (incl VAT) have enjoyed a section on the recent amendments pertaining
518 pages (soft cover) to atypical forms of employment such as the use of labour bro-
ker employees and part-time employees. There is, however, a
brief section on fixed-term employees and the deeming provi-
sions in respect of fixed-term employees who earn below the
prescribed earnings threshold and are engaged for a period of

J
uta has recently published longer than three months, unless certain exceptions apply or
the 11th edition of John there is a justifiable reason for doing so.
Grogan’s Workplace Law. This book is an in- For me personally, I particularly enjoyed the chapter on un-
valuable source of information on employment law fair discrimination, which sets out what constitutes unfair dis-
in South Africa and contains everything you need to crimination in a clear and succinct manner. This chapter has
know about how to manage the employment relation- been updated to include recent case law on age discrimination
ship. From the basic terms and conditions of employment, how and a detailed summary of the Solidarity obo Barnard v South
to terminate employment fairly, how to guard against unfair African Police Service 2014 (2) SA 1 (SCA) case. However, it
labour practices and unfair discrimination in the workplace, as does not include the recent Constitutional Court decision in
well as, how to implement affirmative action measures and en- this matter, which was handed down in September 2014.
sure compliance with the employment equity laws in South This book contains comprehensive chapters on dismissals
Africa. This book also contains information on collective la- for misconduct, poor work performance, incompatibility and
bour law and industrial action. incapacity with reference to recent and relevant case law. In
In my view, a copy of Workplace Law is a must-have for every this regard, it has been updated to include the latest decision
labour law practitioner and employee relations practitioner. by the Supreme Court of Appeal on dismissal for absence
I find this book just as helpful to me now, as an attorney without leave. There is also a very insightful chapter on auto-
practising labour law, as I did as a student. It is, however, im- matically unfair dismissals.
portant to always do a recent case search in conjunction with
using this book as our case law changes rapidly. In this regard, Monique Jefferson is an attorney at Bowman Gilfillan
there were some judgments from the latter half of 2014, which in Johannesburg.
were not referred to in this book. q

2015 Juta Law Prize for the best Candidate Attorney Article

win a tablet device & Jutastat


online Essential Legal
Practitioner Bundle worth R20 000
Juta Law, in conjunction with De Rebus are again offering a prize for the best published
article submitted by a candidate attorney during 2015. Valued at R20 000, the prize consists
of a 32GB tablet with wi-fi & 3G PLUS a one-year single-user online subscription to Juta’s
Essential Legal Practitioner Bundle.

Submission conditions:
• The article should not exceed 2000 words in length and should comply with the general De Rebus publication guidelines.
• The article must be published between January and December 2015.
• The De Rebus Editorial Committee will consider all qualifying contributions and their decision will be final.

Queries and correspondence must be addressed to: The Editor, De Rebus, PO Box 36626, Menlo Park 0102
Tel: (012) 366 8800, Fax (012) 362 0969 • Email: derebus@derebus.org.za

www.jutalaw.co.za
@jutalaw Juta Law

DE REBUS – MARCH 2015


- 43 -
BOOKS FOR LAWYERS

Book announcements
A practitioner’s guide to Labour Law Rules!
the Mental Health Care By Marié McGregor (ed)
Act Cape Town: Siber Ink
By Adolph A Landman (2014) 2nd edition
and Willem J Landman Price: R 350 (incl VAT)
Cape Town: Juta 281 pages (soft cover)
(2014) 1st edition
Price: R 650 (incl VAT)
383 pages (soft cover)
CD included

Electricity law in Introduction to Intellectual


South Africa Property Law
By Andreas Klees By Owen Dean and
Cape Town: Juta Alison Dyer (eds)
(2014) 1st edition Cape Town:
Price: R 550 (incl VAT) Oxford University Press
384 pages (soft cover) (2014) 1st edition
Price: R 550 (incl VAT)
550 pages (soft cover)

Collective Labour Law The Law of Commerce


By John Grogan in South Africa
Cape Town: Juta By Johan Scott and
(2014) 2nd edition Steve Cornelius (eds)
Price: R 585 (incl VAT) Cape Town:
435 pages (soft cover) Oxford University Press
(2014) 2nd edition
Price: R 465 (incl VAT)
528 pages (soft cover)

Labour relations in
South Africa
By Robert Venter and For further inquiries regarding the
Andrew Levy (eds) books on the book announcements
Cape Town: Oxford page, please contact the publisher of
University Press the book.
(2014) 5th edition
Price: R 449 (incl VAT) All the books on this page are avail-
662 pages (soft cover) able to purchase from the publisher.

DE REBUS – MARCH 2015


- 44 -
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