Without Prejudice - Volume 16, Issue 4, 2016
Volume 16, Issue 4, 2016
Author Myrle VanderstraetenSource: Without Prejudice 16 (2016)More Less
This month, I was personally challenged with the very topical issue of where one draws the line between expressing a genuinely held opinion and offending people. without prejudice received an interesting and well written article for inclusion in this issue of the magazine. However, it included comments that I believed could have been hurtful to various people for various reasons. Given the history of South Africa, and the pride we take in our Constitution which includes in the Bill of Rights the right to equality and the right to human dignity, I believe parts of the article would give offense. So, despite our freedom of speech, which we also hold dear I asked the writer if I could remove the "offending sections"; I did not believe it would detract from the article. I did also say that I would understand if the writer would prefer that the article not be published in its edited version.
Author Yaniv KleitmanSource: Without Prejudice 16, pp 8 –9 (2016)More Less
In a recent judgement, the Supreme Court of Appeal confirmed and restated some important principles around the "reflective loss" principle found in the common law pertaining to companies (Itzikowitz v Absa Bank Ltd (20729/2014)  ZASCA 43 (31 March 2016)). The principle precludes a shareholder of a company from claiming loss or damages (for example, a diminution in the value of their shares) resulting from circumstances where the company itself has suffered lossor damages. The courts have held that the shareholder's loss is merely "reflective" of the company's loss and, if anyone, it is the company which must institute action for that loss. The shareholder can only claim if he has a distinguishable and independent cause of action.
Author Natasha BouwmanSource: Without Prejudice 16, pp 9 –10 (2016)More Less
The King Report on Governance for South Africa 2009 (King III) states that an independent director should be independent in character and judgement and there should be no relationships or circumstances which are likely to affect or could appear to affect this independence.
Author Dimitri ClaytonSource: Without Prejudice 16, pp 12 –13 (2016)More Less
Under South African law, the employees of a business and the employer itself have some very specific rights and obligations in terms of both the common law and existing labour legislation. One of these duties is the duty of employees to act in their employer's best interests (Tshishonga v Minister of Justice and Constitutional Development (JS898/04) ZALC 104 (26 December 2006) at ).
Source: Without Prejudice 16, pp 16 –18 (2016)More Less
During the course of 2015, the South African Ministery of Public Works notified the public that it intends to amend the 2004 Regulations under the Construction Industry Development Board Act, 2000. The Proposed Amendments aim to introduce requirements in relation to prompt stage payments and fast-track dispute adjudication to address constraints to effective infrastructure development by ensuring proper cash flow for contractors. The period for public comment ended in August last year. However, a recent enquiry directed to the Construction Industry Development Board (CIDB) indicated that it had escalated a number of changes to the Minister's office for further consideration. At the time of writing, nothing further has been made publically available and it is difficult to estimate when the Proposed Amendments will come in to force.
Author Euan MasseySource: Without Prejudice 16 (2016)More Less
Statutory adjudication in the construction sector is to be introduced in South Africa, but there are insufficient adjudicators to meet the anticipated demand. The Regulations are being reviewed by the Department of Public Works and Treasury for conflict with existing legislation. They were due out by the end of March but have been delayed, with no reason disclosed for the delay.
Author Philip ThompsonSource: Without Prejudice 16, pp 21 –22 (2016)More Less
Use of the Joint Building Contracts Committee's (JBCC) Principal Building and N/S Subcontract Agreements has dominated the South African construction landscape for some time. However, there is an increase in the use of the standard form suite of construction contracts published by The International Federation of Consulting Engineers (FIDIC), particularly in larger construction and infrastructure projects.
Author Giles FreebodySource: Without Prejudice 16, pp 22 –23 (2016)More Less
Since the enactment of the Consumer Protection Act (68 of 2008) (the CPA), there have been several changes to the law that have, in turn, affected lease agreements involving immovable property. Accordingly, it is important to become au fait with these, from both a landlord's perspective as well as a tenant's.
Author Gail SchimmelSource: Without Prejudice 16 (2016)More Less
A few years ago, with the introduction of the Consumer Protection Act (68 of 2008) (CPA) everyone was worked up about plain language, and plain language practitioners saw a surge of work. But then the Act became enforceable, and nothing happened, and slowly the compulsion to have contracts and consumer facing communications in plain language petered out.
Author Patrick BracherSource: Without Prejudice 16, pp 26 –27 (2016)More Less
Blanket ban on renting to convicted criminals violates Fair Housing Act
Law firm sanctioned $25K for altered discovery documents
Pre-trial freeze on assets untainted by crime violates Sixth Amendment
Supreme Court splits 4-4 upholding mandatory union dues for public employees
Is an association of office-sharing lawyers liable for one member's malpractice?
Insider trader seeks hacker to access law firm networks
Facebook threats against judge lead to a 366-day prison term
Six month sentence and cellphone destroyed for courthouse photos
Outspoken judge's remarks
F-word settlement refusal does not require tossing of lawyer from case
Eighteen year kidnap victim loses damages claim against government
Judge reinstates employee fired for tweet
Female lawyers and law-related employees earn less than males
Latest $22K sanction for attorney increases sanctions to $166K
Reprimanded judge presided over his own divorce case
Source: Without Prejudice 16, pp 28 –30 (2016)More Less
The Employment Equity Amendment Act, 2013, introduced two changes to s6 of the Employment Equity Act, 1998 (the EEA). The first is that discrimination in terms of s6(1) may be unfair on any of the listed grounds, or on any other arbitrary ground. The second is the insertion of s6(4) which says that "a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in ss(1) is unfair discrimination."
Author Chris HaralambousSource: Without Prejudice 16 (2016)More Less
In my previous article (which first appeared in the magazine distributed at the World Labour Law Congress in September and again in the November issue of without prejudice, p40), it was indicated that the Labour Court would still have to pronounce upon the interpretation of the deeming provision, as expressed in s198A(3)(b) of the Labour Relations Amendment Act of 2014. On 8 September 2015, our Labour Court did so, per Brassey AJ in Assign Services (Pty) Ltd v CCMA and Others  11 BLLR 1160 (LC).
Source: Without Prejudice 16, pp 31 –32 (2016)More Less
The mining industry is under increasing pressure to consider alternative means of power supply. The industry is faced with the effects of a growing energy deficiency as evidenced by the recent approval by NERSA of an Eskom tariff hike exceeding 9% and energy supply constraints to the mining industry and resulting losses in excess of R1.3 billion, as reported by Consultancy Africa Intelligence. Mining companies are looking inwards and exploring solutions that allow for independent electricity generation in mitigation of what EY, in its 2015 - 2016 report on business risks facing mining and metals, ranks as one of the top ten business risks in the mining industry - inadequate access to energy.
Author Wietske FelmoreSource: Without Prejudice 16, pp 33 –34 (2016)More Less
Has the recent Constitutional Court decision of Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape 2015(12) BCLR 1471 (CC) resulted in the effective substitution of expert evidence by the logical reasoning of court? If so, the question is, where does this leave us?
Author Rekha AjoodhaSource: Without Prejudice 16, pp 38 –40 (2016)More Less
In the recent Supreme Court of Appeal decision of ABSA Bank v Hammerle Group (Pty) Ltd  JOL33570, the SCA confirmed the general rule that statements made without prejudice in the course of bona fide negotiations for the settlement of a dispute are inadmissible. However, there are often exceptions to general rules and, as the old saying goes, there are always bad pennies that turn up at the most inopportune times.
Author Kent DavisSource: Without Prejudice 16 (2016)More Less
On 27 October 2015, the Financial Sector Regulation Bill [B34 - 2015] (FSR Bill) was introduced in the National Assembly. A curious feature of the Bill is the clause which deals with the liability of members of a financial institution's governing body; its application is extremely onerous.