November 2015


“No man can serve two masters” Employment Law November 2015

In the recent matter between Assign Services v the Commission for Conciliation, Mediation and Arbitration (the CCMA) & Others, handed down on 8 September, the Labour Court, considered, inter alia, the interpretation of the deeming provision contained in s198A(3)(b) of the Labour Relations Act (66 of 1995) (the LRA).

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R1.4 million in damages for unprotected strike Employment Law November 2015

In the 7 May judgement of Algoa Bus Company (Pty) Limited v Transport Action Retail And General Workers Union ( "Targwu") and Others, the South African Labour Court in Port Elizabeth ordered Targwu and its members employed by Algoa to pay R1.4m in damages for conducting an unprotected strike at the Algoa Bus Company. The seven-day unprotected strike carried out by a number of Algoa bus drivers took place in January 2013.

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“Rescued” by the Trade Union Employment Law November 2015

We recently acted for the National Union of Metalworkers of South Africa (NUMSA) in a ground-breaking matter (National Union of Metal Workers of South Africa Obo Hlongwane and Others v Wilro Supplies CC (JS 207/12) [2015] ZALCJHB 96 (16 March 2015) in which a close corporation was put into business rescue by means of a high court application which was opposed by the corporation itself.

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Tough reality from a legal fiction? Employment Law November 2015

Approximately six months into the post-transitional phase of the applicable provisions of the Labour Relations Amendment Act (6 of 2014), it may be fair to state that discomfort levels in the labour broking world are at an all-time high in view of the express provisions of s198A(3)(b), the material portions of which are:

"For the purposes of this Act, an Employee – not performing such temporary service for the client is – deemed to be the employee of that client and the client is deemed to be the employer... and employed on an indefinite basis by the client." [added emphasis]

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Trust me, I'm a doctor . . . Employment Law November 2015

Imagine the embarrassment – you appoint an executive to a key role. The applicant impressed you and the rest of the panel during the recruitment process and left you with no doubt that she was the right person for the role. Whatever concerns regarding her ability may have lingered were vanquished by her impressive résumé: anyone who has successfully completed the excruciation that is a doctoral thesis will certainly have the ability to deal with the rigours of the job, everyone reasoned. But then you establish that she does not have the doctorate she claimed. She probably has not even been for a medical check-up recently, let alone qualified as a doctor.

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Toilet trouble Platteland Perspective November 2015

Toilets are becoming an increasingly common part of South Africa's political protest life. This is the first case I have found in which the toilet was actually occupied at the time.

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Remote surveillance v workers’ rights Africa - Mozambique November 2015

In Mozambique, like everywhere else, the advent of information and communication technology (ICT) has been the subject of debate in various fields especially in the social sciences, due to its impact on people's day to day lives. The legal sector is also taking note of developments and seeking to evolve and regulate the use of ICT to ensure these it is used properly, particularly in respect of handling data gathered and generated by technology.

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Advance health directives – a constitutional right Africa - Namibia November 2015

In what has been described by The Namibian news- paper as a "Landmark ruling given on patients' rights", the Supreme Court of Namibia, in the appeal case of ES v AC (Case no: SA 57/2012), recently considered the often complicated relationship between a patient and their doctor. Judgement was given on 24 June.

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Reflections on Sydney practice – the difference is in the detail Accounting November 2015

What was it like to practise law in Sydney? Hectic for a South African. Sydney is to Johannesburg what Johannesburg is to Cape Town – but not of course in beauty.

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A contract is the sum of its parts Contract Law November 2015

In the recent Supreme Court of Appeal decision of Novartis South Africa (Pty) Ltd v Maphil Trading (Pty) Ltd (20229/2014) [2015] ZASCA 111, the court was tasked with deciding whether, taken together, a written document, oral agreement and certain e-mails constituted a valid contract. In practice it is often the case, particularly for instance in due diligence exercises, that a practitioner is presented with contracts that have not been signed by all the parties and appear still to require agreement on certain matters. This case demonstrates that the formal documents may only tell part of the story.

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Board evaluations Company Law November 2015

Board evaluations have become an accepted part of the governance framework for companies and other types of corporations, both internationally and locally. It is encapsulated in Principle 2.22 of the King Report of Corporate Governance 2009 (King III) and applies to all entities, whether in the public, private or non-profit sectors.

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Same same, but different Company Law November 2015

The doctrine of the undisclosed principal is an age old doctrine that has troubled many legal minds over the years. It has been described as odd, anomalous, unsound and inconsistent with legal principles not only in South Africa but also in England. Despite the constant battle associated with the implementation of this doctrine, our courts have confirmed that its existence is, in fact, justified on the grounds of commercial convenience (In SA Metal & Machinery Company (Pty) Ltd v Klerck 2005 1 All SA). Whilst it is trite law that the doctrine is justified in certain instances, what does not appear to have been explored in any detail is how this doctrine fits in with s56 (Beneficial Interest in Securities) of the Companies Act, (71 of 2008).

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The regulation of interest rates Financial Law November 2015

Understanding the way in which interest rates (the price of present money or goods against future money or goods) are regulated in South Africa is of value to attorneys.

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Ad hoc lenders Financial Law November 2015

The purpose of the NCA is inter alia to protect vulnerable consumers from unscrupulous credit providers. However, the registration requirements governed by s40 lent themselves to abuse by "unscrupulous debtors" who sought refuge behind the draconian consequences associated with failing to register when so required.

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Bitcoin – A new kind of money Financial Law November 2015

Technology experts have compared Bitcoin to the Mona Lisa, calling it a masterpiece of technology. Bitcoin is undoubtedly the wild west of finance where huge amounts of wealth can be created and destroyed in a nano-second.

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