February 2019


Editor's Note - February 2019 Editor's Note February 2019

A new year, perhaps another opportunity to do the right thing? 2018 was yet another of those "interesting" years, for South Africa and globally. Governments and politicians made the headlines, generally not for reasons to make citizens proud.

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Levelling the playing field? Competition Law February 2019

On 21 December 2018, the Minister of Economic Development published draft Price Discrimination Regulations and Buyer Power Regulations (collectively, the Regulations) for public comment (Government Gazette No. 42133). The swift publication of the Regulations, following the passing of the Competition Amendment Bill 2018 late last year, is a clear indication of government's intention to ensure that proposed amendments to the Competition Act (89 of 1998) are effected as soon as possible.

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Blockchain IPOs: capital raising in a crypto-world Financial Law February 2019

Disclaimer: the footnotes are there for cryptosuper-nerds and those especially interested in crypto-culture and history.

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Business rescue, section 133 and employment litigation Employment Law February 2019

When a company is placed in business rescue, employee claims continue to arise in places like the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Court. And, there are cases where employees who have not received payment from their employer approach the Labour Court. The question that arises is how these claims are to be addressed.

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What 2019 will bring in the labour law landscape Employment Law February 2019

2018 was characterised by a number of significant events in the labour law arena. These events occurred against a backdrop of numerous external factors. For example, the Quarterly Labour Force Survey for the third quarter of 2018 had unemployment sitting at around the 27% mark, where it had been for most of the year. Inflation continued to climb year-on-year, and violent strike action cost the South African taxpayer dearly. The Department of Labour's Industrial Action Report of 2016 estimated this cost to be 2.5 million working days in the 10-year period between 2005 and 2015.

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Tales from the US of A... - February 2019 International February 2019

Law firm wins $12.8 million judgment against South African telemarketer

A Miami law firm has obtained a default judgment for nearly $12.8 million against a South African company that used the phone number of its managing partner to make thousands of calls to consumers. Sidqcon (Pty) Ltd has been ordered to pay damages of $10 659 000 for violations of the Florida Telemarketing Act and $2 131 800 for tortious interference with business relationships. Their phone provider is jointly liable for the tortious interference damages. Sidqcon made it appear that the calls were coming from the law firm when they contacted mostly elderly consumers and gauged their interest in different insurance products. When consumers indicated interest, the company recorded their personal information and sold it to insurance companies. Sidqcon used an auto-dialling system that allows it to input any phone number it chooses even if the number is already in use. Sidqcon made at least 10 600 calls in two months using the law firm's number. The judgment was based on damages of $1 000 per call. - Debra Cassens Weiss November 13 2018

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The World in December 2018 and January 2019 - February 2019 International February 2019

A letter from Albert Einstein explaining his views on religion was expected to fetch between $1m and $1.5 million at auction in New York in December. The so-called "God letter" written in 1954, in which he grapples with the concept of religion, smashed predictions and sold for nearly $2.9m (£2.3m). The Nobel Prize-winning scientist, 74 at the time, wrote the one-and-ahalf page note to German philosopher Eric Gutkind in response to one of his works, "Choose Life: The Biblical Call to Revolt". It is seen as a key statement in the debate between science and religion.

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Mining Feature Introduction - February 2018 Mining Feature February 2019

January 2008 is etched forever on my mind – Eskom blackouts, roads full of potholes and pouring rain, generally welcome but not along with the former two issues. For me, January 2008 provided a salutary lesson not to take things for granted.

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PROTECTING ANCESTRAL LAND FROM THE PURSUIT OF PROFIT MINING | ENERGY | INFRASTRUCTURE FEATURE February 2019

In November 2018 the community of uMgungundlovu, which has called the Xolobeni area of the Eastern Cape in South Africa home since the early 1800s, secured a critical legal victory to stop planned mining activities on its ancestral land.

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INFORMAL LAND RIGHTS: WHAT DOES THIS MEAN FOR HOLDERS OF MINING RIGHTS? MINING | ENERGY | INFRASTRUCTURE FEATURE February 2019

The current clamour for redistribution of land in South Africa has heightened an interest in land reform and placed raging socio-political discourse centre stage.

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COMMUNITIES TO HAVE FINAL SAY ON MINING? MINING | ENERGY | INFRASTRUCTURE FEATURE February 2019

Land remains one of the most important, and emotional, political and economic issues in South Africa. In a country where mining constitutes one of the largest contributors to the economy, it is unavoidable that the mining sector will be a key participant in the larger debate regarding land. Unfortunately, the mining sector was also historically associated with some of the worst effects of racially discriminatory practices, including the creation of homelands which deprived black South Africans of economically productive land, and migrant labour that destabilised traditional social structures.

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HOLDERS OF INFORMAL LAND RIGHTS HAVE THE RIGHT TO SAY NO TO MINING MINING | ENERGY | INFRASTRUCTURE FEATURE February 2019

On 22 November 2018 the North Gauteng High Court, Pretoria, in the matter of Baleni and Others v Minister of Mineral Resources and Others (73768/2016) [2018] ZAGPPHC 829 (22 November 2018) (Baleni judgment) delivered a judgment which has far-reaching ramifications for the mining industry, including policies of the South African government. For many years, the practice has been that the mining laws of the country require mining companies to "consult" affected communities – but do not require explicit consent from landowners or communities to mine.

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“BLACK GOLD” REMAINS CRITICAL TO SOUTH AFRICA’S ENERGY MIX MINING | ENERGY | INFRASTRUCTURE FEATURE February 2019

Mineral Resources Minister, Gwede Mantashe, has, once again, publicly defended the role of coal in South Africa's energy mix. He has also brought into stark reality the costs of producing electricity from nuclear, coal, and renewable energy. Minister Mantashe has highlighted that Eskom generates electricity at its Koeberg Nuclear Plant for approximately R0.40 per unit, for approximately R0.80 a unit at the coal-fired power plants but that it was purchasing renewable energy from independent power producers at approximately R2.20 a unit.

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LOAD SHEDDING OVER 10 YEARS: ESKOM, THE ECONOMY AND THE FISCAL CRISIS MINING | ENERGY | INFRASTRUCTURE FEATURE February 2019

Economy out of recession but still in the dark

On Tuesday, 4 December 2018, Statistics South Africa released data indicating that "farms and factories dragged South Africa out of its first recession in almost a decade … as the economy grew by more than expected in the third quarter of 2018."1 The data would have given South Africans reason to celebrate under any other circumstances but a few days before its release, Eskom Holdings, the electricity utility, had released its own salvo of data about Stage 2 load shedding. In this author's view, "load shedding" is a euphemism used by Eskom to force the public to keep the lights off and for the public and private sectors to refrain from using Eskom's only product - electricity.

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RESOLVING SOUTH AFRICA’S ELECTRICITY CRISIS MINING | ENERGY | INFRASTRUCTURE FEATURE February 2019

The recurrence of "rolling blackouts" towards the end of last year coupled with Eskom's warning that this is likely to continue for a considerable time, its present precarious financial position and continued quest for significantly increased electricity charges, has highlighted the electricity crisis we are in. Alarmed South Africans are wondering what can be done and what is being done (and not being done) to alleviate this calamity.

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