December 2018


Editor's Note - December 2018 Editor's Note December 2018

2018 has been a particularly tough year for most people. In fact, it is a long time since South Africans have said "What a great year". For most citizens, and foreigners who contribute in so many ways to our economy and culture, it feels like a long, hard slog to nowhere. And when those in the infamous "corridors of power" continue to behave this year in the same way as they did last year – and the year before that down the tunnel of time – it is little wonder that people question the law and the length of time it takes to provide justice, if it ever comes.

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How to deal with employee risk effectively Employment Law December 2018

What do you do when an employee comes forward with criminal, legal non-compliance or other allegations against a colleague, or the company?

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South Africa's gig economy – a solution to addressing un“employment” Employment Law December 2018

At the time of writing, there are about six million unemployed citizens in South Africa. When the definition of unemployment is expanded to people who have stopped looking for work, this amounts to 36,7% of the population. Against the backdrop of an economy in a technical recession, the South African employment landscape is crying out for contemporary methods to create alternative economic opportunities. This is particularly important as there are no significant projections as to when the GDP will improve.

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Race discrimination: employers not “innocent bystanders” Employment Law December 2018

In recent months, South African society has witnessed an upsurge of racist incidents that have resulted in certain people becoming household names for all the wrong reasons. Names such as Vicky Momberg, who lashed out at Black police officers trying to assist her following a smashand-grab incident in Johannesburg using the word, kaffir, 48 times; Jacobus Kruger in the reported ConCourt decision of SARS v Kruger who called his manager kaffir saying "I don't understand how kaffir's think. A kaffir must not tell me what to do"; Penny Sparrow, the estate agent, who referred to Black people as "monkeys" on Facebook; and Velaphi Khumalo who posted a racist tirade on Facebook in January 2016 stating that "I want to cleanse this country of all White people. We must act as Hitler did to the Jews", are some of the now infamous names that have made headlines.

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Mining Charter 3 and B-BBEE Employment Law December 2018

The third iteration of the Mining Charter – Mining Charter 3 – was published and became effective on 27 September 2018. This was preceded by a legislative process shrouded in controversy, one where the evidence of state capture was all over the previous code. The publication of this document has specific implications for how mining houses deal with their Broad-Based Black Economic Empowerment (B-BBEE) requirements. It is a better document, which will hopefully create investment confidence in an industry that has been through a tough economic period.

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Unfair labour practice: job grading Employment Law - Management December 2018

Every employee has the right not to be: (a) unfairly dismissed or (b) subjected to an unfair labour practice.

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Far-reaching consequences for right holders Mining Law December 2018

On 25 October, the Constitutional Court in Maledu v Itereleng Bakgatla Mineral Resources (CCT 265/17) handed down judgment in an application for leave to appeal against the decision of the High Court of South Africa, North West Division, Mahikeng. The judgment has direct bearing on the interpretation of s54 of the Mineral and Petroleum Resources Development Act (28 of 2002) (the MPRDA) and has far reaching practical consequences for both right holders on the one hand and landowners and/or lawful occupiers on the other.

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Assault with GBH is a misstatement of the law The Law December 2018

Assault with GBH is a misstatement of the law, misapprehension, and lacuna and not an offence envisaged or cited in terms of a Schedule 1 of the Criminal Procedure Act (51 of 1977).

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Gender equality in law… the unfinished business The Law December 2018

In October 2012, the Commission for Gender Equality (CGE) received a complaint that the pace of gender transformation in the judiciary was too slow. The irony is that a discussion document was only published in the Government Gazette on 13 July 2018 by the Department of Trade and Industry: six years later.

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Prescription in the time of changing jurisdictions The Law December 2018

With the changing territorial jurisdiction of some of our high courts (most recently in Gauteng and North West under GN 408 in GG 41552 of 29 March 2018), litigants may find that they have inadvertently instituted action in a court which lacks territorial jurisdiction to hear their matter. A defendant in these circumstances may believe it tactical to raise the special plea of the court's lack of jurisdiction, hoping that by the time the correct forum is approached, the claim will have prescribed.

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Cannabis – South Africa reaching new heights Commercial - Constitutional Law December 2018

"The right to privacy is not confined to a home or private dwelling. It will not be a criminal offence for an adult person to use or be in possession of cannabis in private space." – Deputy Chief Justice Raymond Zondo

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Selling Mary Jane Commercial - Constitutional Law December 2018

Mary Jane, slang for marijuana, is now legal and can be used, possessed and cultivated in private, for personal use. This was confirmed by the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others (CCT108/17) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC) (18 September 2018). The question which has been on everyone's lips is whether they can legally commercialise the selling of cannabis and if so, how?

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Are you covered? – Warranties on medical devices Law in Life sciences December 2018

Part 1

Despite new drugs, biological products and medical devices having saved thousands of lives, and dramatically improving the quality of life for tens of thousands more, the industries involved in their manufacture have been the target of some of the largest, and most costly product liability actions.

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The rise of the multi-family office Wealth Protection December 2018

The combined wealth of the ultra-high-net-worth population rose in 2017 by 16,3% to $31,5 trillion, implying healthy gains in average net wealth. This is according to The World Ultra Wealth Report 2018, produced by intelligence and data company, Wealth-X.

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The “Client Relationship Partner” – Is it necessary or is it about control? Management December 2018

With the dawn of the Pan African Bar Association of South Africa (PABASA) upon us, I could not help but ponder on the concept of a "client relationship partner" which I was exposed to during my time in practice, and which some law firms have instilled as part of their practice and culture. It never made sense to me as a young associate or even as a partner because I saw it as a barrier specifically and strategically designed to ensure that certain groups of people maintained a hold on big commercial clients and the lucrative commercial work.

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