IMPORTANT NEWS 44 of 2016_MC.pdf · 2015/2016) weekly rate and R2205.17 (R1993.82: 2015/2016)...
Transcript of IMPORTANT NEWS 44 of 2016_MC.pdf · 2015/2016) weekly rate and R2205.17 (R1993.82: 2015/2016)...
IMPORTANT NEWS
NEW MINIMUM WAGE FOR DOMESTIC WORKERS
South Africa’s Domestic Worker Sector is to have a new upwardly adjusted minimum wage with effect from 1 December
2016. The latest relief ahead of the festive season will be applicable until 30 November 2017. The minimum wage
adjustment is in line with the Basic Conditions of Employment Act which is regulated through the Sectoral Determination.
Domestic Workers are by law classified as vulnerable, hence the Sectoral Determination governing minimum wage nd
conditions of employment.
The new sectoral determination of domestic workers prescribes that the minimum wages for domestic workers who work
more than 27 ordinary hours per week will earn as follows:
Area A (those in major metropolitan areas) will earn R12.42 (R11.44: 2015/2016) hourly rate, R559.09
(R514.82: 2015/2016 ) weekly rate and R2422.54 (R2230.70: 2015/2016) monthly rate.
Area B (those not mentioned in Area A) R11.31 (R10.23: 2015/2016) hourly rate, R508.93 (R460.15:
2015/2016) weekly rate and R2205.17 (R1993.82: 2015/2016) monthly rate.
In terms of Sectoral Determination Area A includes: Bergrivier Local Municipality, Breederivier Local Municipality,
Buffalo City Local Municipality, Cape Agulhas Local, Municipality, Cederberg Local Municipality, City of Cape Town, City
of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality,
Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan
Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland
Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini
Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local,
Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg
Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local
Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela,
Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai
Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality,
Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local
Municipality, Swellendam Local Municipality, Theewaterskloof, Local Municipality, Umdoni Local Municipality,
uMhlathuze Local Municipality and Witzenberg Local Municipality.
Source: Legalbrief, 09 November 2016 & http://www.gov.za/speeches/labour-increase-domestic-workers-minimum-wage-december-7-
nov-2016-0000
NEW MINIMUM WAGE FOR CONTRACT CLEANING SECTOR
South Africa’s contract cleaning employees’ minimum wages have been adjusted upward with effect from 1 December
2016. In terms of the Sectoral Determination that prescribes minimum wages in the sector - workers in Area A:
Metropolitan Councils that include City of Cape Town, Ekurhuleni, City of Johannesburg, City of Tshwane and Nelson
Mandela Bay; and also Local Councils of Emfuleni, Merafong, Mogale City, Metsimaholo, Randfontein, Stellenbosch,
Westonaria – will earn a minimum of R19, 38 (R18, 01: 2015/2016) per hour.
In Area B – the rates applicable are those as prescribed by the Kwa-Zulu Natal Contract Cleaning Bargaining Council.
And in the Area C – which includes the rest of South Africa the minimum rate per hour will be R17,66 (2015/2016:
R16,41).
The increases cover the period 1 December 2016 to 30 November 2017.
Source: Legalbrief, 09 November 2016 & http://www.gov.za/speeches/labour-increase-domestic-workers-minimum-wage-december-7-
nov-2016-0000
Bulletin 6 of 2013 Period: 1 February 2013 to 8 February 2013 Bulletin 44 of 2016 Period: 28 October 2016 – 04 November 2016
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REVISED ICT B-BBEE CODES IN FORCE
Revised broad-based black economic empowerment (B-BBEE) codes of good practice for the ICT sector were gazetted
and are immediately effective, reports Pam Saxby for Legalbrief Policy Watch.
Released in draft form during February for comment, the revised codes are aligned to the requirements of the amended
Act and include compliance targets of: 80% of procurement spend from empowering suppliers, half of which should be at
least 51% black owned; and 3% of net profit after tax dedicated to sector-specific supplier development programmes (in
addition to 2% on more general supplier development).
In the absence of statements from Trade and Industry Minister Rob Davies, Telecommunications and Postal Services
Minister Siyabonga Cwele and the B-BBEE ICT Sector Council, it is not apparent to the untrained eye whether the
ownership and control elements in the revised codes reflect more ambitious transformation commitments and
compliance targets than those set out in the 2012 codes. Interestingly, however, the sector will work towards ensuring
that 100% of black people appointed to learnerships, apprenticeships, internships and graduate programmes are
‘absorbed’ either by the entities concerned or the broader economy.
Source: Legalbrief, 08 November 2016
B-BBEE DEAL REGISTRATION THRESHOLD MOOTED
Proposals for the threshold above which major broad-based black economic empowerment (B-BBEE) ownership
transactions should be registered with the B-BBEE Commission were gazetted for comment, along with related
timeframes and documentary requirements, reports Pam Saxby for Legalbrief Policy Watch.
Once in force, they will require all deals equal to or exceeding R100m in combined asset value or annual turnover – and
concluded on or after 24 October 2014 – to be registered. This is noting that the 2013 amendment Act became effective
on that date. In the case of transactions concluded on or after 24 October 2014 but before the threshold becomes law, it
is proposed that the companies concerned would have 30 days in which to register.
Interestingly, the draft regulation makes registration voluntary for deals equal to or exceeding the proposed threshold
and concluded before the Act’s promulgation. Interested and affected parties have 30 days to comment.
Source: Legalbrief, 09 November 2016
PREMIUM RATED SERVICE CODE GAZETTED
A code of conduct for the provision of subscription premium-rated short message, ‘phone and broadcast services was
gazetted and is immediately effective. Released in draft form last December for comment, the new code has implications
for advertising, promoting and delivering contact, dating, adult, chat room and children’s services – requiring agreements
concluded before its promulgation to be aligned with the provisions within six months, notes Pam Saxby for Legalbrief
Policy Watch.
Against that background, the code addresses: price disclosure and increases; network operator and administration fees;
incremental costs; billing frequency; bill payer authorisation; activation messages; service number re-use/masking;
protecting end-user information; location, age and gender restrictions; age verification; child protection obligations;
managing bad debt and fraud; and service provider interconnection/interoperability.
In terms of the new code of conduct, a premium rated service may not: incite violence; cause conflict; promote
dangerous, harmful or unhealthy activities; constitute hate speech; contain defamatory statements; and (except in the
case of adult services) use strong language. With that and other compliance-related issues in mind, the new code spells
out the necessary complaints procedure – providing for a name-and-shame penalty, as well as a fine not exceeding
R1.5m.
Source: Legalbrief, 07 November 2016
RECOMMENDED READING
The need to plead when guilt is a given - 'When it is time to come clean?', by Johann Scheepers, SA Labour Guide,
www.polity.org.za
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Not all arbitrations are created equal, by Mohsina Chenia and Craig Thomas, Cliffe Dekker Hofmeyr,
www.polity.org.za
RECENT CONSTITUTIONAL COURT JUDGMENTS TOP COURT RULING CONDEMNS WORKPLACE RACISM
SOUTH AFRICAN REVENUE SERVICE v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
AND OTHERS (CCT19/16) [2016] ZACC 38 (8 NOVEMBER 2016)
A former SARS employee‚ fired in 2007 by then SARS Commissioner Pravin Gordhan for using racist and derogatory
language‚ has had the reversal of his dismissal overturned by the Constitutional Court. In what media reports describe
as a 'scathing' judgment handed down by Chief Justice Mogoeng Mogoeng‚ Jacobus Kruger was labelled a racist for
using the k-word at work in August 2007.
The court described use of the k-word as egregious, derogatory and humiliating, according to a Fin24 report.
‘Revelations of our shameful and atrocious past, made to the Truth and Reconciliation Commission, were so shocking as
to induce a strong sense of revulsion against racism in every sensible South African,’ Mogoeng wrote. ‘But to still have
some white South Africans address their African compatriots as monkeys, baboons or kaffirs and impugn their
intellectual and leadership capabilities as inherently inferior by reason only of skin colour, suggests the opposite. And
does in fact sound a very rude awakening call to all of us.’ He said the k-word was a ‘more assertive insinuation that
African people are inherently foolish and incapable of providing any leadership worthy of submitting to’. He added: ‘It
bears testimony to the fact that there are many bridges yet to be crossed in our journey from crude and legalised racism
to a new order where social cohesion, equality and the effortless observance of the right to dignity is a practical real ity.’
The court held that the use of that k-word amounts to hate speech and that courts are obliged to act fairly, but firmly
against those who use it, to contribute to the eradication of racism in line with the foundational values of our Constitution.
It ordered that Kruger's reinstatement be reviewed and set aside‚ but ordered SARS to pay Kruger six months
compensation because the organisation had mishandled the dismissal.
The Chief Justice also noted that institutions across the board were failing to uphold their constitutional obligations to
eradicate racism. ‘Are we perhaps too soft on racism and the use of the k-word in particular? My observation is that very
serious racial incidents hardly ever trigger a fittingly firm and sustained disapproving response,’ he said, according to a
report in The Mercury. He also chastised Kruger for claiming he was forced to admit his racism. ‘He was disbelieved by
the (CCMA) arbitrator. The arbitrator was dealing with someone who tried to conceal his racist remarks and lie about
them,’ said Mogoeng. He said the CCMA’s decision to reinstate Kruger was the equivalent of bringing in a ‘ticking time-
bomb’, where his African fellow employees knew he regarded them as ‘lazy, incapable of leading him and intellectually
inferior to him solely because of their race’. While he acknowledged the correct CCMA ruling that the dismissal was
unfair, Mogoeng said a reinstatement was the least rational remedy. The arbitrator should also have factored into her
decision that SARS, as an organ of state, was required to eradicate racism in the workplace and society.
Source: Legalbrief, 09 November 2016
FIVE-YEAR ENATIS DEAL EXTENSION UNLAWFUL
DEPARTMENT OF TRANSPORT AND OTHERS v TASIMA (PTY) LIMITED (CCT5/16) [2016] ZACC 39 (9
NOVEMBER 2016)
The Constitutional Court found that a five-year extension won by a private company, Tasima, to run the national traffic
information system in 2010 was unlawful, ordering the system be handed over to the Road Traffic Management
Corporation within 30 days, notes a BusinessLIVE report. The court concluded that the contract violated the
Constitution, the Public Finance Management Act, and Treasury regulations. The report notes the long-running dispute
over the Electronic National Traffic Information System (eNatis) had also sucked in former Transport Minister Sbu
Ndebele, who was recently recalled from Australia, where he was SA’s ambassador. Ndebele is accused of receiving
more than R10m in bribes from Tasima and is due to appear in the Commercial Crimes Court in December. The
department had approached the court after years of legal battles with Tasima. The source of tension was a five-year
contract extension granted to Tasima in 2010, which the department contends it had contested. Also at play were the
department’s repeated failures to pay Tasima, despite a court order to do so, as well as numerous interdicts won by the
company seeking to compel payment.
The Constitutional Court wrote four judgments. In the majority judgment written by Justice Sisi Khampepe‚ where four
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other judges concurred‚ she said the extension of the contract in 2010 stood to be set aside. The judgment also upheld
the principle that court orders stood until they were set aside. The court upheld contempt of court rulings brought against
departmental officials. 'The courts find that the department’s reactive challenge should succeed. Despite this, the High
Court orders and orders of contempt from the SCA should be upheld,' she said, according to a TimesLIVE report.
‘Nevertheless‚ in the period between the granting of the extension and its setting aside (May 2010 to August 2015)‚ the
applicants were constitutionally obliged to comply with the various court orders granted‚’ Khampepe noted. She said in
this case‚ not only was the extension of the contract between the department and Tasima unlawful‚ but it had now
expired. ‘It can only be in the best interests of the public that the hand-over of the services and the eNaTIS to the
corporation happens as expeditiously as possible.’
Source: Legalbrief, 10 November 2016
CONCOURT DRUG RULE A ‘SETBACK’
A Constitutional Court judgment that declares it illegal for police to randomly search people and properties for drugs
without a warrant is ‘concerning, disappointing and altering drug policing’, according to Khayelitsha CPF chairperson
Eric Kweleta. A Cape Times report notes before the judgment was delivered, police officers had the right to search for
drugs freely. Now they need to apply for a warrant before searches. Kweleta said the judgment ‘does not sit well with us
because it is not assisting in apprehending suspects’. He added it was ‘an administrative nightmare and a serious
setback’.
Source: Legalbrief, 07 November 2016
RECENT SUPREME COURT OF APPEAL JUDGMENTS GROUND-BREAKING RULING ON PENSIONS IN DIVORCE
NDABA v NDABA (600/2015) [2016] ZASCA 162 (4 NOVEMBER 2016)
In what a report in The Mercury calls a ground-breaking judgment for couples married in community of property but
divorced, the SCA has ruled that pensions fall into their joint estate and form part of half of the assets each party would
receive. Pretoria divorce lawyer Selwyn Shapiro said that prior to this judgment, there were conflicting judgments as to
whether or not a pension interest automatically fell into a joint estate if the parties were married in community of
property. ‘The SCA has now clarified this and found that if an order is granted that the joint estate be divided – the so-
called blanket division order – the pension interest of both parties automatically formed part of their joint estate,’ Shapiro
said. The judgment was sparked by the divorce in 2012 of a couple. The High Court ruled in favour of the man and found
that in the absence of a court order by the divorce court declaring the pension interests formed part of the joint estate, it
did not form part of the joint estate. The woman approached the SCA, where three judges agreed that their pensions
should be equally divided. The judges said sight must not be lost of the fact that the parties were married in community
of property. One consequence of such a marriage was that, subject to a few exceptions, the spouses became co-owners
of all interests acquired during marriage. The joint estate in this case must include the pension interests of both parties,
the judges said.
Source: Legalbrief, 08 November 2016
STATE GRANTED LEAVE TO APPEAL PISTORIUS SENTENCE
The state will have to argue in the SCA why it thinks convicted murderer Oscar Pistorius' six-year jail term is lenient,
notes a News24 report. ‘The application for leave to appeal is referred for oral argument in terms of s 17(2)(d) of the
Superior Courts Act 10 of 2013. The parties must be prepared, if called upon to do so, to address the court on the
merits,’ the SCA said in its order. The state has one month to file five additional copies of the application for leave to
appeal. It also has three months to file the record of the High Court proceedings. The report notes in July Pistorius was
sentenced to six years in prison by Judge Thokozile Masipa. In her sentencing, Masipa said while the crime committed
was serious, a long term of imprisonment would not serve justice in this case.
Source: Legalbrief, 07 November 2016
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OTHER JUDGMENTS HISTORICAL MUNICIPAL DEBT RULED UNCONSTITUTIONAL
Municipalities may not hold a property owner liable for a previous owner’s historical municipal debts, the Gauteng High
Court (Pretoria) ruled, notes Business Day. It says the judgment will give relief to home and business owners who have
been saddled with years of historical municipal debt, and who have been refused municipal services until the debt had
been settled. A seller may not transfer a property unless he has a municipal clearance certificate for the last two years of
bills. But older debts – those that arose before the two-year cut-off – became the liability of the new owner. Failure to
pay entitled a municipality to attach and sell the property to satisfy the debt. However, this section of the Local
Government: Municipal Systems Act was declared unconstitutional by the High Court. Judge Dawie Fourie said the
section unjustifiably limited the new owner’s property rights under the Constitution. ‘Why should a municipality be entitled
to visit the sins of a predecessor in title upon innocent third parties,’ he asked. The judgment was the result of five
different court cases. One of them concerned a business premises with a historical debt of more than R12m. In another,
the applicant had been without electricity since December 2013. The judge said new owners had no connection to the
historical debt. New owners ‘were in no position whatsoever’ to control the indebtedness of their predecessors in title –
but municipalities were.
Source: Legalbrief, 08 November 2016
JUDGE SETS PRECEDENT IN FAMILY ADVOCATE CASE
Durban attorney Estelle de Wet has been lambasted by KZN High Court (Durban) Judge Themba Sishi for ‘completely
unacceptable, obstructive conduct’ in her handling of a matter before the Family Advocate’s Office involving a father’s
bid for access to his son. The Mercury reports the ruling – against which the attorney intends to appeal – sets a
precedent in SA, effectively barring attorneys from being present during family advocate interviews. In the case, the
father of a boy (2) sought an order barring De Wet from sitting in as an observer during a court-ordered interview with a
family advocate in his attempt to get more time with his son. He alleged in his application – which was argued before
Sishi earlier this year – that De Wet smirked at him and made him feel uncomfortable. He also alleged she was making
worse an acrimonious relationship with the child’s mother. De Wet denied this, saying she neither liked nor disliked him
and was just doing her job. In his judgment, Sishi noted that the Office of the Family Advocate was established by the
Mediation of Certain Divorce Matters Act and its procedures were fairly unregulated but always had to be in the best
interests of the child. De Wet insisted that her client had a right to representation, that she was not prepared to be in the
same room as the father and would not attend the inquiry unless her wishes were accommodated. Sishi said: ‘These
demands amounted to an obstruction of justice. This conduct not only undermines the integrity of the Office of the
Family Advocate but also undermines the integrity of the court.’
Source: Legalbrief, 07 November 2016
MUNICIPALITY ORDERED TO DEAL WITH ELECTRICITY THIEVES
Buffalo City Metro must act against Nkandla informal settlement dwellers, who have been stealing electricity from a
private farm in Breezydale Road for the past two years. A Daily Dispatch report says this was ordered by the Eastern
Cape High Court (East London) in a victory for farm owner Satish Naire, who has been battling to get the BCM to protect
him from the electricity thieves. Naire claimed the illegal connections caused frequent power cuts on his farm and posed
a danger to people and animals as the fencing was always live due to exposed wires coming into contact with it. Judge
Thembekile Malusi ordered the municipality to do all in its power to stop the residents from stealing electricity from Naire
and to make sure all exposed wires on the farm were removed. The municipality was also ordered to remove electricity
poles and install a new electricity line that would be located inside the farm far away from the reach of the squatter
camp. Malusi also ordered BCM to ensure uninterrupted power supply to the farm.
Source: Legalbrief, 10 November 2016
MAN WHO FLED XENOPHOBIA GETS R4M RAF PAYOUT
A former spaza shop owner who fled SA because of xenophobic violence will get almost R4m from the Road Accident
Fund (RAF) for a crash in 2011 in which he was injured, says a News24 report. After the accident, which occurred near
Rustenburg, Ethiopian Alemanyehu Worku Ali (26) was unable to carry his supplies and his spaza shop was stripped
bare by looters. According to a psychological report, Ali decided to flee to Canada ‘due to his injuries and the
xenophobic violence in SA'. He is currently working in Canada as a caretaker and cleaner. Adams & Adams and Moloto-
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Weiss represented Ali in his claim against the RAF in the Gauteng High Court (Pretoria) where Judge Vivian Tlhapi ruled
the RAF has to pay Ali R3 882 360. The psychologist who interviewed Ali said according to Ali three of his friends were
attacked by locals and only one survived. ‘They hate us,’ he said.
Source: Legalbrief, 10 November 2016
COURT RULES FOR STUDENT WHO LEAPT FROM FIRE
The Western Cape High Court has ruled in favour of Isak Potgieter, a student forced by a raging fire to leap from the
third floor of the Eendrag men’s hostel at the University of Stellebosch in August 2007. The case hinged on the
defendant’s obligation to ensure proper and reasonable measures and procedures were in place, and were
implemented, for the safety of students in its hostels, including in the case of fire, notes Legalbrief. The university had
failed in this regard and its conduct was found to be both negligent and wrongful. Noting the defendant’s counsel urged
her to exercise caution in making the required value judgment because of the potential consequences to other owners of
buildings such as Eendrag in its pre-August 2007 condition, Judge Judith Cloete said she had given this careful
consideration, but said the finding was based on the particular circumstances of this individual case. ‘All cases such as
these are fundamentally fact bound and a finding of wrongfulness will depend on each particular set of proven facts. To
my mind therefore a finding of wrongfulness in this matter will not have the automatic consequence of opening the
floodgates of potential liability for others.’ The university was found to be liable for such damages as might be agreed or
proven.
Source: Legalbrief, 08 November 2016
LAWYER ERRED IN DAMAGES CLAIM
Ravi Perumal’s damages lawsuit against the eThekwini Municipality has hit a stumbling block because the letter of
demand sent by his attorney was ‘too respectful’ and did not warn of an impending legal claim, notes a report in The
Mercury. Perumal was injured in an incident in May 2008 at the Snake Park in Durban. In June 2008, his attorney sent a
letter to the municipality about the incident, and the municipality responded the following month stating that it was not
liable for damages. Perumal then launched legal proceedings against the municipality. However the municipality argued
that the letter had not been in the form of a demand and had merely been a ‘request for assistance’ in light of an injury
that had been sustained. KZN High Court (Durban) Judge Mahendra Chetty, in a recent judgment, agreed with the city
and found the letter had not been in line with the legislative requirements. Chetty said that the letter could not be
construed as a notice to institute legal proceedings and was ‘silent’ on the issue. ‘There is nothing which forewarns the
defendant (the municipality) that should it not pay towards the plantiff’s medical expenses, legal proceedings will be
instituted against it.’
Source: Legalbrief, 09 November 2016
TRANSNET TO PAY DAMAGES TO VICTIM’S MOTHER
The mother of motorcyclist Gareth Brooker (19) – who died when he drove into a stationary train at night at a train
crossing in Louis Trichardt – is to receive R120 000 in damages from Transnet. The Mercury reports Leonie
Labuschagne initially claimed R300 000 in the Gauteng High Court (Pretoria) for the secondary trauma she had suffered
following the death of her son in July 2011. A Transnet investigation and subsequent report found that the crossing at a
busy road was irregular and there were not enough signs warning the public about the danger of trains ahead. The
board of inquiry at the time recommended that the road surface leading to the crossing had to be marked with warnings
and speed humps at least 30m before the actual stop. It was further recommended that the train could only stop in the
nearby station or outside the crossing with the road. More lighting had also been installed since the fatal accident.
Source: Legalbrief, 08 November 2016
SURGEON SUED FOR KNIFE BLADE LEFT IN THROAT
A former estate agent is suing a specialist surgeon for failing to detect a 9cm broken blade of a kitchen knife lodged in
her throat after she was attacked in her home, says a Pretoria News report. It was only after Dorina Ward (65), who lives
in the Western Cape, detected blood in her mouth that the broken blade was discovered. The broken blade was in her
neck for about two weeks before it was removed in an emergency operation. She is claiming the damages in the
Gauteng High Court (Pretoria) from the specialist, Dr Mabudi Costa Bope. However, he has denied negligence and said
he could not be held liable for her ordeal. He said she should have joined the MEC for Health in Gauteng as a party in
the action, as he had no obligation in this instance toward her. He was on call in the emergency unit at the time. He was
not present, but handled her case via the telephone. Ward’s expert said a surgeon with the defendant’s qualifications
should have known that a deep, penetrating wound in the neck was serious and must be examined. It is claimed the
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surgeon simply phoned the staff and when he heard Ward was stable, he discharged her telephonically. The matter was
postponed to a date yet to be determined, as some of the parties have to file their papers.
Source: Legalbrief, 31 October 2016
DOG OWNER CLAIMS TEASING LED TO ATTACK
The father of Eli Barnard – whose face was mauled by a bull terrier which tried to grab a chicken thigh out of his mouth –
is claiming R322 000 in damages from the dog’s owner. A Weekend Argus report says Eli is now six, but he was four
when he was bitten. Marius Barnard told the Gauteng High Court (Pretoria) that Martinus Ras knew his dog was vicious.
Ras had a duty to ensure the dog could not escape from his backyard, where it was usually kept. Ras countered that the
child had teased the dog by waving the chicken thigh in front of it. When the dog wanted to grab it, the child had placed
the meat into his own mouth. ‘It was an error of judgment on the part of the dog,’ Ras told Judge Johan Louw. According
to Ras, his dog was not vicious at all, but was well-behaved and friendly. The court reserved judgment.
Source: Legalbrief, 07 November 2016
MEDICAL STUDENT WHO DOCTORED RESULTS CLEARED IN COURT
A KZN University student who allegedly faked his matric results to get into medical school may continue his studies after
charges against him were withdrawn in the Durban Magistrate’s Court, says a Sunday Tribune report. Rivaaz
Manisunker (24) was cleared after the whistle-blowers did not want to testify because they claimed they were being
intimidated. Magistrate Mondli Nhlangulela took the decision to drop the case, despite Manisunker’s affidavits that he
had doctored his results to secure a highly-contested place at the medical school. The university was not a complainant
in the matter. Manisunker obtained 34% for maths in Grade 12 and his overall average was below the 90% aggregate
required for Indian students. In his doctored certificate, his marks were adjusted to meet the requirements. Manisunker
admitted to doctoring his results and pleaded for leniency in his application. ‘I am not a rapist or a murderer. I did nothing
wrong. I am remorseful for my actions and I did what I did for the betterment of society. I am passionate about medicine
and I am an intelligent pupil who excelled in my grade 11 year. Due to some tragic circumstances, I was unable to
perform well in my matric year,’ Manisunker said outside court. He attended school for only 33 days in his matric year
due to an illness, but said he had still managed to pass the year. He claimed a number of factors had influenced his poor
results including deaths in his family and his parents divorce.
Source: Legalbrief, 07 November 2016 FRAUD VICTIM SEEKS FULL ACCOUNT RECORDS
George businesswoman Monica Kruger – who lost R1.8m in an online banking fraud coupled with an illegal SIM swop –
is fighting back against her bank and mobile service provider, demanding full disclosure of her account records. A
Weekend Argus reports Kruger has launched a novel forensic attack on Absa and Vodacom, demanding key evidence
on her accounts, including who at the bank had access to her profile and login prior to the fraud taking place. Instead of
making allegations of liability for any wrongdoing or negligence on the part of the bank or mobile service provider, she
has asked the Gauteng High Court (Johannesburg) to order Absa and Vodacom to give her critical data that they have
so far refused to give her. She says she is entitled to the information, and that it will help her determine who is liable for
her loss. She has also asked the court to order Absa and Vodacom to preserve all evidence relating to her case in terms
of generally accepted forensic practice, and the provisions of the Electronic Communications and Transactions Act.
Fraudsters stole almost R2m from Kruger after performing a SIM swop on her number with Vodacom and transferring
money from her Absa account, according to Rapport. Kruger says in her court papers she was alerted to a request for a
SIM swop in June and immediately warned Vodacom that it was a fraudulent transaction that should be stopped. A week
later, the SIM swop was performed without her permission and the money was stolen. Both Vodacom and Absa,
presumably aware that a precedent could be set, refuse to accept responsibility, arguing that Kruger must have been
negligent. Justin Steyn, an attorney acting on behalf of several fraud victims, says banks and cell phone service
providers won’t be able to withhold this information in future if the court finds in Kruger’s favour.
Source: Legalbrief, 07 November 2016
SON WINS BATTLE FOR R3M LIFE POLICY
Jhrajhrshlall ‘Roy’ Ramnarain has won a protracted legal battle against Momentum Life over a R3m life policy taken out
by his mother, says a report in The Mercury. Ramnarain claimed his mother had agreed that he should be the sole
beneficiary of the policy, but the insurance company alleged that her signature had been forged. When Chandermani
Behari died in November 2009, Momentum refused to pay out on the policy. Ramnarain sued and the matter was argued
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before Gauteng High Court (Pretoria) Judge Ronel Tolmay. In her recent judgment, she noted that the case centred on
the evidence of three expert handwriting analysts – two for the company and one for Ramnarain. ‘It seemed Behari’s
signature varied a lot and one cannot find the disputed signature is a forgery,’ the judge said.
Source: Legalbrief, 07 November 2016
MEN JAILED FOR PLANNING TO POACH RHINO
Planning rhino poaching could bring a jail sentence of between eight and 10 years. The Mercury reports this message
was loud and clear from the Gauteng High Court (Pretoria), which turned down the appeal of three men who planned to
poach rhino in the Kruger National Park. Armando Mkhabela, David Mabaso and Jacob Ntuli received effective jail
sentences ranging from eight to 10 years. The trio were earlier convicted of contravening the contentious Riotous
Assemblies Act as they conspired to illegally hunt rhinos. They were also convicted on a charge of conspiring to commit
the crime of rhino hunting. As they were caught red-handed in a police trap, they pleaded guilty and made confessions.
In appealing against their sentences, they told the High Court that the magistrate over-emphasised the interests of
society, while placing little value on their personal circumstances. Acting Judge CM Sardiwalla commented that the fact
that the crime was carefully planned was an aggravating factor. ‘They had a chance to change their minds and withdraw
from the conspiracy. This court takes note of the alarming proportions which rhino poaching has reached,’ the judge
said.
Source: Legalbrief, 10 November 2016
SOCIETY ERRED IN BACKING DODGY ATTORNEY – JUDGE
An application to be enrolled as an attorney of the High Court by an armed robber – and endorsed by the Cape Law
Society – fell foul of Judge Clive Plasket in the Eastern Cape High Court (Grahamstown), who found Ntsikeleo
Mdyogolo’s three different accounts of the incident ‘at odds with the ethical probity expected of an attorney’, amounting
‘to a cynical attempt to mislead both the Law Society and the court’, reports Legalbrief. Mdyogolo, who also has
convictions for shoplifting and drunken driving, provided unlikely versions of the armed robbery at a Fort Beaufort petrol
station, during which he was armed with a semi-automatic rifle. Among his claims was that during the 1990s he was a
member of the Azanian Peoples’ Liberation Army (Apla), which was the military wing of the Pan Africanist Congress
(PAC). One of Apla’s methods of fundraising for the PAC, he stated, was by committing robberies – that ‘robbery in the
name of “repossession” became one of the prominent methods used (repossession of the wealth of the African people
back to its rightful owners)’ and that the aim was to ‘facilitate a way forward towards achieving its aims and objectives in
a “Struggle for Liberation”.’ However, this explanation, given in 2015, is at odds with what he said in his Truth and
Reconciliation application for amnesty – that the police got him drunk and used him in a planned operation to discredit
the PAC.
What the court observed and the Law Society apparently missed was that the robbery he had claimed was in the cause
of the armed struggle in fact took place two months after the new democratic order was born on 27 April 1994 when the
armed struggle was in fact over. The court found the applicant showed a lack of honesty, integrity and trustworthiness,
‘all of which are essential qualities for any member of the attorneys’ profession’. On the Law Society, Plaskett said: 'With
the greatest of respect to the Cape Law Society, those who considered the application could not have applied their
minds properly. The most perfunctory reading of the founding affidavit would have raised a red flag: the date 27 April
1994 is an iconic date, and is perhaps the most important date in the history of South Africa – the day the new,
democratic SA was born; as the date of the robbery was nearly two months later, it should have been apparent that the
explanation that the applicant committed the offence in the course of the armed struggle was unlikely to be true. At the
very least, this issue required thorough investigation before a decision could be taken on it.' He ordered his judgment be
sent to the society
Source: Legalbrief, 07 November 2016
PENNY SPARROW'S BID TO APPEAL BOTCHED
Real estate agent Penny Sparrow has unsuccessfully attempted to apply for leave to appeal an Equality Court judgment
on her racist Facebook rant, says a News24 report. The Scottburgh Equality Court set aside her application – which it
deemed irregular in terms of the court's rules – and ordered her to pay the ANC’s legal costs. The argument was that
she had not stipulated an address for documents to be served and lodged her application in the Magistrate’s Court, not
High Court, said the ANC’s lawyer. He added that the notice of appeal was also delivered outside of the stipulated time
period and failed to set out the relevant order and grounds.
Source: Legalbrief, 07 November 2016
9
TENDER FRAUD WHISTLE-BLOWER GETS JOB BACK
The former chief financial officer of the Department of Defence and Military Veterans, fired after blowing the whistle on
tender fraud in the department, has been cleared by the Johannesburg Labour Court, according to a TimesLIVE report.
The court declared Rabelani Tshimomola's dismissal unfair and unprocedural and ordered his reinstatement. However,
the department plans to challenge the judgment. In his affidavit, Tshimomola also alleged that after blowing the whistle
he was threatened and had to hire bodyguards. Mbulelo Musi, a spokesperson for the department, said: ‘Immediately
upon learning of the default judgment the department filed papers to have the decision rescinded.’ The judge said that
Tshimomola's disclosure should have been protected under the Protected Disclosures Act.
Source: Legalbrief, 07 November 2016
EMPLOYEE DISMISSAL UPHELD
An Eskom employee has been shown the door by the courts after she applied to review the company’s decision to fire
her over incorrect sick leave and travel claims, says a Daily Dispatch report. The Labour Court in Cape Town found that
SD Kama’s dismissal was substantively fair, just as the CCMA had found. Kama was sacked from her customer relations
post in 2014 for failing to capture 17 days of sick leave and one day of annual leave on Eskom’s leave application
system. Eskom says Kama also fiddled with the travel system in order to score R3 000 more than she was entitled to.
Kama said in defence the errors on her trip sheets were genuine and due to a lack of training. The CCMA did not make
light of Kama’s mistakes‚ finding her dismissal substantively fair and ruling that the relationship of trust between her and
Eskom had broken down. Applying to take the CCMA’s finding on review in the Labour Court, Judge Hilary Rabkin-
Naicker dismissed Kama’s application with costs.
Source: Legalbrief, 01 November 2016
SOUTH AFRICAN LAW REPORTS – NOVEMBER 2016 COCHRANE STEEL PRODUCTS (PTY) LTD v M-SYSTEMS GROUP (PTY) LTD AND ANOTHER 2016 (6) SA 1
(SCA)
Intellectual property - Trademark—Use by competitor of claimant’s commonlaw trademark as keyword in Google
AdWords advertising—Whether conduct amounting to passing off or unlawful competition—No likelihood of confusion—
Conduct not amounting to passing off or unlawful competition.
Competition - Unlawful competition—Passing off—Whether conduct amounting to passing off—Use by competitor of
claimant’s common-law trademark as keyword in Google AdWords advertising—No likelihood of confusion—Use not
amounting to passing off.
Competition - Unlawful competition—Use by competitor of claimant’s common-law trademark as keyword in Google
AdWords advertising—Whether conduct amounting to wrongful interference—Whether use fair and honest— Whether
likelihood of confusion or deception—No likelihood of confusion or deception in circumstances where advertiser, without
more, using other trader’s trade name only as keyword—Use not amounting to unlawful competition.
NATIONWIDE AIRLINES (PTY) LTD (IN LIQUIDATION) v SOUTH AFRICAN AIRWAYS (PTY) LTD 2016 (6) SA 19 (GJ)
Competition- Promotion of competition—Prohibited practices—Abuse of dominance—Quantification of damages— Lost
profits—Linear-interpolation method—Three-step procedure involving counterfactuals used to determine lost profits—
Appropriate contingency deduction—Competition Act 89 of 1998, s 8(d)(i).
Damages- Anticompetitive conduct—Quantification—How competitor performed versus how it would have performed but
for abuse—Linear interpolation—Contingency deduction—Competition Act 89 of 1998, s 8(d)(i).
Aviation- National airline—Anticompetitive practice—Exclusion of competitor—Commission agreements between South
African Airways and travel agents—Quantification of competitor’s damages—How competitor performed versus how it
would have performed but for abuse by SAA—Linear interpolation used to estimate lost passengers and hence lost
profits—R105 million awarded.
10
KYTHERA COURT v LE RENDEZ-VOUS CAFE CC AND ANOTHER 2016 (6) SA 63 (GJ)
Company - Business rescue—Moratorium on legal proceedings against company—Scope—Ejectment proceedings
against company under business rescue—Where lease agreement lawfully cancelled and company failing to vacate
premises—Company in unlawful possession—Moratorium not encompassing ejection proceedings in such
circumstances—Companies Act 71 of 2008, s 133(1).
SOLIDARITY AND OTHERS v SOUTH AFRICAN BROADCASTING CORPORATION 2016 (6) SA 73 (LC)
Labour law - Dismissal—Summary dismissal—Dismissal in breach of contractual right to disciplinary procedure and right
to freedom of expression—Dismissal void ab initio—Reinstatement ordered.
Costs - Costs de bonis propriis—When to be awarded—Against public official—Applicant dismissed without regard to
pending applications and expense—Court directing responsible officials to show cause why they should not be held
personally liable for applicant’s costs on attorney and client scale.
BLUE CHIP 2 (PTY) LTD T/A BLUE CHIP 49 v RYNEVELDT AND OTHERS (NATIONAL CREDIT REGULATOR AS
AMICUS CURIAE) 2016 (6) SA 102 (SCA)
Magistrates’ court - Civil proceedings—Jurisdiction—Whether cause of action arising wholly within jurisdiction of court—
Where delivery of notice, preceding debt enforcement, in terms of s 129(1)(a) of the NCA occurring outside of district of
magistrates’ court—Delivery of notice constituting essential element of cause of action—Matter not arising wholly within
jurisdiction of court—Magistrates’ Courts Act 32 of 1944, s 28(1)(d); National Credit Act 34 of 2005, s 129(1)(a).
Credit agreement - Consumer credit agreement—Debt enforcement—Preliminary procedures—Notice of default—
Delivery—Constituting essential element of cause of action—Where delivery taking place outside area of jurisdiction of
magistrates’ court, cause of action not wholly arising within jurisdiction of court—Court lacking jurisdiction—National
Credit Act 34 of 2005, s 129(1)(a); Magistrates’ Courts Act 32 of 1944, s 28(1)(d).
SHERIFF, PIKETBERG AND ANOTHER v LOURENS 2016 (6) SA 110 (WCC)
Consumer protection - Auctions—Sale in execution—Whether Sheriff of High Court must before sale enter into written
agreement with ‘owner or rightful holder (who has the right to sell)’ of goods to be sold—Consumer Protection Act 68 of
2008, s 45(1); Consumer Protection Regulations, reg 22(2).
Execution - Sale in execution—Immovable property—Duties of sheriff—No general duty to establish and disclose
whether value-added tax payable by purchaser.
PALALA RESOURCES (PTY) LTD v MINISTER OF MINERAL RESOURCES AND ENERGY AND OTHERS 2016 (6)
SA 121 (SCA)
Mining and minerals - Mining and prospecting rights—Lapsing of upon deregistration of rights-holder company—
Subsequent reinstatement of company’s registration retrospectively reviving lapsed prospecting right—Mineral and
Petroleum Resources Development Act 28 of 2002, s 56(c); Companies Act 61 of 1973, s 73(6A).
Company - Register of companies—Reinstatement—Effect on prospecting rights which lapsed as result of
deregistration—Reinstatement retrospectively reviving lapsed prospecting right—Mineral and Petroleum Resources
Development Act 28 of 2002, s 56(c); Companies Act 61 of 1973, s 73(6A).
EX PARTE FULS AND THREE SIMILAR MATTERS 2016 (6) SA 128 (GP)
Insolvency - Voluntary surrender—Disclosure—Application including debt arising from ‘credit agreements’ as intended in
the National Credit Act—NCA’s debt review procedures may be more advantageous to creditors than voluntary
surrender—Incumbent on applicant for voluntary surrender to disclose whether NCA remedies used, and if so also
disclose report of debt counsellor involved—Insolvency Act 24 of 1936, s 3(1); National Credit Act 34 of 2005, ss 86–88.
KLAASE AND ANOTHER v VAN DER MERWE NO AND OTHERS 2016 (6) SA 131 (CC)
Land - Land reform—Statutory protection of tenure—Protected occupation of land—Wife residing on farm with occupier
husband—Legal basis for—Whether husband’s right to family life, or that wife was occupier—Extension of Security of
Tenure Act 62 of 1997, ss 1 and 6(2)(d).
11
OFF-BEAT HOLIDAY CLUB AND ANOTHER v SANBONANI HOLIDAY SPA SHAREBLOCK LTD AND OTHERS 2016 (6) SA 181 (SCA)
Company - Shares and shareholders—Minority shareholder—Personal action—Prescription—Minority shareholder’s
right of action against company—Constituting ‘debt’ and prescribing after three years—Companies Act 61 of 1973, s
252; Prescription Act 68 of 1969, s 10(1).
Company - Shares and shareholders—Minority shareholder—Derivative action—Prescription—Minority shareholder’s
entitlement to enforce company’s rights against delinquent directors and officers—No ‘debt’ capable of prescription
existing until curator appointed to pursue company’ claims against delinquent officers or directors— Companies Act 61
of 1973, s 266; Prescription Act, s 13(1)(e).
RAMUHOVHI AND ANOTHER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 2016 (6) SA
210 (LT)
Constitutional law - Legislation—Validity—Recognition of Customary Marriages Act 120 of 1998, s 7(1)—Having effect
that polygamous customary marriages entered into prior to commencement of Act, as well as their proprietary
consequences, still regulated by customary law—Venda customary law providing that wives in polygamous customary
marriages having no rights in or control over marital property—Provision unjustifiably discriminating against women in
polygamous customary marriages on basis of gender, race and ethnic or social origin—Provision unconstitutional—
Interim relief to be granted pending enactment of legislation by Parliament governing matrimonial property regimes in
respect of old polygamous customary marriages—In interim, wives in msuch marriages to have joint and equal rights of
management of and control over marital property.
GRIESSEL AND ANOTHER v LIZEMORE AND OTHERS 2016 (6) SA 236 (GJ)
Company - Business rescue—Aims—Companies Act 71 of 2008, s 128(1)(b).
Company - Business rescue—Resolution—Requirement that board act in good faith in adopting resolution— Companies
Act 71 of 2008, ss 129(1) and 130(5)(a)(ii).
Company - Business rescue—Practitioner—Time periods for filing and publishing notice of appointment— Commission
has no power to extend—Companies Act 71 of 2008, s 129(4).
Company - Business rescue—Practitioner—When liable for costs—Companies Act 71 of 2008, s 140.
Company - Business rescue—Moratorium on legal proceedings against company—Not barring shareholders instituting
proceedings against third parties to recover company’s property—Companies Act 71 of 2008, s 133.
POTGIETER v OLIVIER AND ANOTHER 2016 (6) SA 272 (GP)
Credit agreement - Consumer credit agreement—Credit provider—Whether obligation to register—Once-off credit
agreement—Registration not required—Authority to this effect doubted—National Credit Act 34 of 2005, s 40(1) (b).
TSHWANE CITY v AFRIFORUM AND ANOTHER 2016 (6) SA 279 (CC)
Appeal - Appealablity—Interim interdict—Interdict ordering local authority, pending review of its decision to change street
names, to stop changing street signs and restore those already changed—Application for leave to appeal directly to
Constitutional Court—Common-law requirements for appealability of interim orders subsumed under constitutional
‘interest of justice’ standard—Leave to appeal against interim interdict must be granted if in interests of justice—
Constitution, s 167(6)(b).
Constitutional law - Human rights—Right to freedom of religion, belief and opinion and rights relating to cultural, religious
and linguistic communities—Whether Constitution recognising interests or rights based on a sense of belonging to place
one lives, rooted in a particular history—Constitution, s 31(1).
Constitutional law - Separation of powers—Interim interdict ordering local authority, pending review of its decision to
change street names, to stop changing street signs and restore those already changed—Interdict offending against
principle of separation of powers—In interests of justice to grant leave to appeal directly to Constitutional Court -
Whether appeal should be upheld—Balance of convenience favouring organ of state where interdict intruding on
separation of powers.
12
Constitutional practice - Appeals to Constitutional Court—In what cases—Interim interdict—Common-law requirements
for appealability of interim orders subsumed under constitutional ‘interests of justice’ standard— Leave to appeal must
be granted if in interest of justice regardless of common-law impediments—General requirement that applicant must
show irreparable harm not applying where in interests of justice to grant leave to appeal—Constitution, s 167(6)(b).
Interdict - Interim interdict—Irreparable harm—What constitutes—Not irreparable if harm complained of could be
reversed by final order.
Interdict - Interim interdict—Balance of convenience—Competing rights or interests—Whether right or interest based on
sense of belonging to place one lives, rooted in particular history, deserving of legal protection—Balance of convenience
favouring organ of state where interdict would intrude on separation of powers—Constitution, s 31(1).
Source: www.Legalbrief.co.za
SOUTH AFRICAN CRIMINAL LAW REPORTS – OCTOBER 2016
S v MOTHWA 2016 (2) SACR 489 (SCA)
Theft - Proof of—Doctrine of recent possession—When to be applied—Not limited to specific period but dependent on
circumstances and particularly nature of property—Money and motor vehicles easily circulated.
DEMOCRATIC ALLIANCE v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 2016 (2) SACR
494 (WCC)
Constitutional practice - Courts—Jurisdiction—Power of President in terms of s 12(6)(a) of National Prosecuting
Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions and to institute enquiry into her
alleged misconduct to determine her fitness to hold office—Constitution not conferring on President obligation to
suspend or enquire into fitness to hold office—High Court having necessary jurisdiction to determine whether President
had exercised his powers in terms of s 12(6)(a) rationally and lawfully—Constitution, s 167(4)(c) not applicable.
Constitutional practice - Application for review and setting-aside of decision of President not to invoke power in terms of
s 12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions
and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Defence of lis alibi
pendens—Proceedings in another court in which same relief sought but by different applicant—Another case in different
court where relief sought by another striking name of DNDPP off roll of advocates for same alleged misconduct—
Cardinal requirement of plea of lis alibi pendens that litigation be between same parties, not present—Plea of lis alibi
pendens dismissed.
Prosecution—Deputy National Director of Public Prosecutions—Alleged misconduct—Power of President in terms of s
12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions
and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Principle of legality requiring
President to act personally, in good faith and without misconstruing nature of his power— Decision to be rationally
related to purpose for which power given—Both process by which decision made and decision itself having to be
rational.
Prosecution - Deputy National Director of Public Prosecutions—Alleged misconduct—Power of President in terms of s
12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions
and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Whether decision of
President not to suspend Deputy National Director and to institute enquiry into her fitness to hold office rational and
lawful—No real basis laid for drastic measure of suspension and institution of enquiry—And no basis laid for real
apprehension of harm if Deputy National Director were to remain in office pending application for removal of her name
from roll of advocates—Decision of President to await outcome of application to strike Deputy National Director off roll of
advocates rational and lawful—Application for review and setting-aside of such decision dismissed.
S v GAMA 2016 (2) SACR 530 (GJ)
Evidence - Witness—Cross-examination—Of state witness—On statement made to police—Magistrate not permitting
cross-examination on unsigned statement of complainant in police docket in situation where complainant had made two
statements, but only signed one—Irregularity committed vitiated entire proceedings.
13
MR v MINISTER OF SAFETY AND SECURITY 2016 (2) SACR 540 (CC)
Child - Arrest—Special requirements applicable to child—Provisions of s 28(2) of Constitution requiring that best
interests of child be accorded paramount importance—There had to be no other, less invasive means of securing
attendance of child at court.
S v KUYLER 2016 (2) SACR 563 (FB)
Evidence - Witnesses—Accomplice—Discharge from prosecution of witness in terms of s 204(2) of Criminal Procedure
Act 51 of 1977—Enquiry into whether discharge to be given—Such sui generis and separate from main trial on merits To
be held at earliest after judgment on merits in main trial—Court to establish on balance of probabilities whether witness
answered all questions frankly and honestly—Test subjective— Witness to be allowed to advance reasons and present
evidence to justify his discharge—State also having interest to advance reasons and adduce evidence—Decision of
court and complete order to be recorded on record of proceedings.
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v AIRPORT CLINIC, JOHANNESBURG INTERNATIONAL
(PTY) LTD AND ANOTHER 2016 (2) SACR 576 (GJ)
Prevention of crime - Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of
1998—Property sought to be forfeited—Respondents receiving foreign currency legitimately for services rendered and
goods sold, but committing offence under Exchange Control Regulations in not selling foreign currency received within
30 days—Foreign currency not 'proceeds of unlawful activities'— Order refused.
Words and phrases - 'Connection'—Meaning of in definition of 'proceeds of unlawful activities' in s 1 of Prevention of
Organised Crime Act 121 of 1998—Some form of consequential relation between return and unlawful activity required.
S v FENI 2016 (2) SACR 581 (ECB)
Trial - Record—Language—Use of indigenous languages—Government programme for elevating use of indigenous
languages not sufficiently advanced that it should be used where exigencies of matter did not demand such use— Delay
of two and a half years in preparing record because of translation difficulties leading to compromise of accused’s
fundamental rights.
MCBRIDE v MINISTER OF POLICE AND OTHERS (HELEN SUZMAN FOUNDATION AS AMICUS CURIAE) 2016 (2)
SACR 585 (CC)
Constitutional practice - Courts—Constitutional Court—Confirmation proceedings—Court having duty to satisfy itself that
High Court’s declaration of invalidity of various impugned sections of statute properly made— Constitution, s 172(2)(a).
Police - Independent Police Investigative Directorate (IPID)—Independence of—Provisions of s 6 of Independent Police
Investigative Directorate Act 1 of 2011 giving Minister enormous powers and control over executive director of
Directorate—Such provision antithetical to entrenched independence of IPID envisaged by Constitution and might lead
to IPID becoming politicised and being manipulated—Subjecting executive director to laws of public service, as s 6(3) of
IPID Act did, subversive of IPID’s institutional and functional independence—Invoking provisions of s 16A(1) of Public
Service Act, Proclamation 103 of 1994, to suspend executive director and institute disciplinary proceedings against him
inconsistent with s 206(6) of Constitution and invalid and set aside.
Police - Independent Police Investigative Directorate—Independence of—Section 6(3)(a) and 6(6) of Independent Police
Investigative Directorate Act 1 of 2011 declared inconsistent with Constitution and invalid—Just and equitable remedy—
Court declaring suspension and institution of disciplinary proceedings by Minister against executive director invalid—
Court suspending declaration of invalidity for 30 days to enable National Assembly and Minister to exercise their
disciplinary powers in terms of ss 17DA(3)–17DA(7) of South African Police Service Act 68 of 1995—Such order
enabling Minister to restart disciplinary process on proper basis and also protecting presumption of innocence in favour
of executive director—Constitution, 1996, s 172.
Source: www.Legalbrief.co.za
14
BILLS
NATIONAL VELD AND
FOREST FIRE
AMENDMENT BILL, 2016
B22-2016
DRAFT SOCIAL
ASSISTANCE
AMENDMENT BILL, 2016
Published for comment GG 40391 (01.11.16)
DRAFT IMPLEMENTATION
OF THE ROME STATUTE
OF THE INTERNATIONAL
CRIMINAL COURT ACT
REPEAL BILL, 2016
Notice of intention to introduce and explanatory summary
published for comment
GG 40403 (03.11.16)
PROCLAMATIONS AND NOTICES
INDEPENDENT
REGULATORY BOARD
FOR AUDITORS (IRBA)
Notice of publication for comment of Mandatory Audit
Firm Rotation consultation paper published
GG 40392 (01.11.16)
CUSTOMS AND EXCISE
ACT 91 OF 1964
Schedule 1 amendment published in GN R1284 in GG
40356 of 21 October 2016 corrected with effect from 10
October 2016
Schedule 1 amendment published in GN R1283 in GG
40356 of 21 October 2016 corrected with
effect from 10 October 2016
GG 40401 (04.11.16)
GG 40401 (04.11.16)
PHARMACY ACT 53 OF
1974
South African Pharmacy Council: 2017 Fees payable to
the Council published
GG 40405 (04.11.16)
PETROLEUM PRODUCTS
ACT 120 OF 1977
Regulations in respect of the single maximum national
retail price for illuminating paraffin published with effect
from 2 November 2016
Regulations in respect of the maximum retail price of
Liquefied Petroleum Gas supplied to residential
customers published with effect from 2 November 2016
Amendment of regulations in respect of petroleum
products published with effect from 2 November 2016
GG 40388 (01.11.16)
GG 40388 (01.11.16)
GG 40388 (01.11.16)
BANKS ACT 94 OF 1990 Designation of Ithala SOC Limited, a wholly owned
subsidiary of Ithala Development Finance Corporation
Limited, as an institution of which the activities do not fall
within the meaning of 'the business of a bank' for the
period 1 July 2016 to 30 September 2017 published and
GenN 956 in GG 39252 of 2 October 2015 substituted
GG 40402 (04.11.16)
AGRICULTURAL PRODUCT
STANDARDS ACT 119 OF
1990
Notice of publication for comment of proposed
amendments to the regulations relating to the grading,
packing and marking of bananas intended for sale in the
Republic of South Africa published
GG 40402 (04.11.16)
SOUTH AFRICAN POLICE
SERVICE ACT 68 OF 1995
South African Police Service Discipline Regulations,
2016 published and South African Police Service
GG 40389 (01.11.16)
15
Discipline Regulations, 2006 repealed
NATIONAL HERITAGE
RESOURCES ACT 25 OF
1999
Declaration of the Samora Machel Memorial and Crash
Site as a National Heritage Site published in GN 1219 in
GG 40334 of 7 October 2016 corrected
GG 40386 (31.10.16)
INDEPENDENT
COMMUNICATIONS
AUTHORITY OF SOUTH
AFRICA ACT 13 OF 2000
Independent Communications Authority of South Africa
(ICASA): ICASA code of conduct for premium rated
services regulations published
GG 40402 (04.11.16)
MEAT SAFETY ACT 40 OF
2000
Draft Game Meat Regulations, 2016 published for
comment
GG 40402 (04.11.16)
LANDSCAPE
ARCHITECTURAL
PROFESSION ACT 45 OF
2000
South African Council for the Landscape Architectural
Profession (SACLAP): Notice of implementation from 4
November 2016 of Revised Registration Policy and
Rules relating to:
• Registration of Landscape Architectural
Professions (Addendum);
• Registration of Landscape Management
Professions (Addendum);
• Weighted Core Competency Table for the
Landscape Architectural Profession; and
• Weighted Core Competency Table for the
Landscape Management Profession
published
GG 40402 (04.11.16)
DISASTER MANAGEMENT
ACT 57 OF 2002
Guideline on Conducting a Comprehensive Risk
Assessment, Part 1: Hazard Analysis, Identification and
Prioritisation published
Establishment of the Intergovernmental Committee on
Disaster Management published
GG 40393 (02.11.16)
GG 40393 (02.11.16)
NATIONAL
ENVIRONMENTAL
MANAGEMENT:
PROTECTED AREAS ACT
57 OF 2003
Proposed norms and standards for the inclusion of
private nature reserves in the register of protected areas
of South Africa published for comment
GG 40402 (04.11.16)
NATIONAL HEALTH ACT 61
OF 2003
Procedural Regulations Pertaining to the Functioning of
the Office of Health Standards Compliance and Handling
of Complaints by the Ombud published and GN 1275 in
GG 40350 of 13 October 2016 replaced
GG 40396 (02.11.16)
NATIONAL
ENVIRONMENTAL
MANAGEMENT:
BIODIVERSITY ACT 10 OF
2004
Draft distribution maps for certain indigenous species
published for comment
GG 40398 (03.11.16)
PROTECTION OF
CONSTITUTIONAL
DEMOCRACY AGAINST
TERRORIST AND
Entities identified by the United Nations Security Council
published
GG 40390 (01.11.16)
16
RELATED
ACTIVITIES ACT 33 OF
2004
NATIONAL
ENVIRONMENTAL
MANAGEMENT: AIR
QUALITY ACT 39 OF 2004
Notice of intention to declare certain printing industry
activities as controlled emitters and to establish emission
standards published for comment
GG 40402 (04.11.16)
ELECTRICITY
REGULATION ACT 4 OF
2006
Electricity Regulations on New Generation Capacity
amended
GG 40401 (04.11.16)
NATIONAL
QUALIFICATIONS
FRAMEWORK ACT 67 OF
2008
Qualification documents for proposed occupational
qualifications for registration on the qualifications sub-
framework for trades and occupations published for
comment
GG 40395 (02.11.16)
PROVINCIAL LEGISLATION
Free State
Free State Gambling and
Liquor Act 6 of 2010
Draft Free State Liquor Amendment Regulations, 2016
published for comment
PG 86 (04.11.16)
Gauteng
Gauteng Provincial
Languages Act 3 of 2016
Date of commencement: to be proclaimed PG 355 (03.11.16)
Kwazulu-Natal
Local Government:
Municipal Structures Act 117
of 1998
KwaDukuza Local Municipality: Notice to designate seven
Executive Committee members, Chief Whip and
Chairperson, in addition to the Speaker, Mayor and
Deputy-Mayor of the Municipal Public Accounts
Committee as full-time councillors published
Dr Nkosazana Dlamini Zuma Local Municipality: Notice to
designate two Executive Committee members, in addition
to the Speaker, Mayor and Deputy-Mayor as full-time
councillors published
Ray Nkonyeni Local Municipality: Notice to designate
eight additional Executive Committee members, single
Whip and Chairperson of the Municipal Public Accounts
Committee (MPAC) as full-time councillors Published
Alfred Duma Local Municipality: Notice to designate Whip
and Chairperson, in addition to the Speaker, Mayor and
Deputy-Mayor of the Municipal Public Accounts
Committee as full-time councillors published
City of uMhlathuze Municipality: Notice to designate eight
additional Executive Committee members, Whip and the
Chairperson of the Municipal Public Accounts Committee
(MPAC) as full-time councillors published
Harry Gwala District Municipality: Notice to designate two
additional Executive Committee members, in addition to
PG 1749 (31.10.16)
PG 1749 (31.10.16)
PG 1749 (31.10.16)
PG 1749 (31.10.16)
PG 1749 (31.10.16)
PG 1749 (31.10.16)
17
the Speaker, the Mayor and the Deputy-Mayor as full-
time councillors published
Limpopo
National Road Traffic Act 93
of 1996
Registration and licensing fees for [2016/2017] published
with effect from 1 April 2017
PG 2763 (03.11.16)
Constitution of the Republic
of South Africa, 1996 and
Local Government:
Municipal Systems
Act 32 of 2000: Polokwane
Local Municipality
Credit Control and Debt Collection By-law published and
previous By-law repealed
Polokwane Local Municipality: Property Rates By-law
published and previous By-law repealed
Polokwane Local Municipality: Tariff By-law published
PG 2764 (04.11.16)
PG 2764 (04.11.16)
PG 2764 (04.11.16)
Local Government:
Municipal Structures Act 117
of 1998
Amendment notice to Names of traditional leaders to
serve in proceedings of district and local municipal
councils for a period of five years (2016-2021) as
published under PN 111 in PG 2752 of 26 September
2016 published
PG 2765 (04.11.16)
Mpumalanga
Local Government:
Municipal Structures Act 117
of 1998
Notice identifying traditional leaders who may participate
in the Municipal Councils proceedings published
PG 2748 (04.11.16)
North West
North West Province Party
Fund Act Repeal Act 5 of
2015
Date of commencement: 1 April 2016
Repeals: North West Province Political Party Fund Act 3
of 2010
PG 7703 (31.10.16)
Licensing tariffs increase 2016 published with effect from 1 December 20161 PG 7705 (01.11.16)
Local Government:
Municipal Structures Act 117
of 1998
Names of Senior Traditional Leaders who are to attend
and participate in the meetings of respective municipal
councils published
PG 7705 (01.11.16)
Western Cape
Constitution of the Republic
of South Africa, 1996
Cape Agulhas Local Municipality: Liquor Trading Hours
Amendment 2 By-law, 2016 published
PG 7696 (28.10.16)
City of Cape Town Cape Town Sub-council Amendment By-law, 2016
published
PG 7698 (04.11.16)
City of Cape Town Informal
Trading By-law
City of Cape Town (Table Bay District): Informal Trading
Plan for Halt Road Elsies River Corridor published
PG 7698 (04.11.16)
18
SEMINARS
For more information contact the Knowledge Centre or visit www.lssalead.org.za
NAME OF SEMINAR DATES PRESENTER
CASE MANAGEMENT -
THE FUTURE OF DISPUTE
RESOLUTION
Cape Town 17-18 November 2016 Ismail Hussain SC &
Ettienne Barnard
INTER-VIVOS TRUSTS East London: 21 November 2016
Midrand: 23 November 2016
Prof Willie M van der
Westhuizen
MEDIATION - THE WHAT,
HOW & WHEN
Bloemfontein 25 November 2016
Cape Town: 21 November 2016
Experienced lawyers
MEDICAL MALPRACTICE
LITIGATION 2016
Midrand: 18-19 November 2016 Dr Henry Lerm