IMPORTANT NEWS

THE MINISTER OF LABOUR ANNOUNCES MINIMUM WAGE INCREASES FOR THE FARMING AND THE

FORESTRY SECTORS

After extensive consultations and consideration of submissions received from employers and employees both in the

farming and forestry sectors, the Department of Labour has decided to adjust upwards the minimum wages for farming

and forestry sectors. Wage adjustments are morally right so as to ensure that workers’ earnings keep pace with the

rising cost of living while boosting the purchasing power which benefits the economy.

To calculate minimum wage increases, the Department applied consumer price index (CPI) excluding owner’s equivalent

rent which is lower than what the Department used to apply which was CPI for quintile 1 as published by Stats SA for a

specific period. As at 1 March 2016, the minimum wage increases are adjusted as follows: Hour rate of R14.25

(2015/16: R13.37); Weekly of R641.32 (2015/16: 601.61); and Monthly rate of R2778.83(2015/16: R2606.78). A daily

wage for a farm worker is R128.26(2015/16: R120.32) who works nine hours per day.

The Department is aware of the challenges faced by the agricultural sector with regard to certain areas affected by

drought and how farmers are toiling with some tough decisions on whether or not to retain labour. We encourage

farmers in areas that are affected by drought to apply for ministerial variations in terms of section 50 of the Basic

Conditions of Employment Act. Section 50makes provision for the Minister to replace or exclude any basic condition of

employment provided for in the Act. “My Department will expeditiously assist in processing variation applications. I

further encourage farmers to solicit guidance on how to apply for variations from their relevant associations,” said

Oliphant.

Source: Statement Issued by Department of Labour Communication Directorate - Mokgadi Pela - 03.02.16

INVITATION FOR THE PUBLIC TO COMMENT ON THE DETERMINATION OF A THRESHOLD FOR CREDIT

PROVIDER REGISTRATION & AMENDMENT OF THE REGULATIONS FOR MATTERS RELATING TO THE

FUNCTIONS OF THE TRIBUNAL AND RULES FOR THE CONDUCT OF MATTERS BEFORE THE NATIONAL

CONSUMER TRIBUNAL

Minister of Trade and Industry Dr Rob Davies, in terms of Section 42 (1) of the National Credit Act 34 of 2005 published

the determination of the threshold required for registration as a credit provider as NIL - R0 for public comments.

Interested persons may submit written comments not later than thirty 30 days from the date of publication of this notice.

In terms of Section 171(1)(c) of the National Credit Act 2005 34 of 2005 and Section 120(1)(c) of the Consumer

Protection Act 68 of 2008, Dr Rob Davies, Minister of Trade and Industry, also amended the regulations for matters

relating to the functions of the Tribunal and rules for the conduct of matters before the National Consumer Tribunal.

Source: GG39663 ( 04.02.16)

DRAFT HATE CRIMES BILL IN THE PIPELINE

A Draft Hate Crimes Bill will be released for comment soon. The Deputy Minister of Justice and Constitutional

Development, John Jeffery, revealed this during a speech at the Current Affairs and Media Forum held in Somerset

West last week. According to the Deputy Minister, the proposed legislation “seeks to address crimes directed at

individuals or groups of people because they belong to a certain group”. He described the motive behind such crimes as

prejudice against a specific group.

The Deputy Minister also indicated that consideration was being given to possibly strengthening the existing common

law crime of crimen injuria to provide penalties for “blatant racism”. Reference was also made to the recently released

draft National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance.“The

purpose of the NAP is to provide South Africa with a comprehensive policy framework to address racism, racial

Bulletin 6 of 2013 Period: 1 February 2013 to 8 February 2013 Bulletin 4 of 2016 Period: 22 January 2016 – 29 January 2016

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discrimination, xenophobia and related intolerance at both a private and public level”. The NAP is not intended to replace

existing laws and policies but rather to complement existing legislation, policies and programmes which address

equality, equity and discrimination. Written comment on the proposals is invited until 30 June 2016. It can be emailed to

nap@justice.gov.za.

Source: http://www.sabinetlaw.co.za/justice-and-constitution/articles/draft-hate-crimes-bill-pipeline

BILL INTRODUCES FRAMEWORK FOR MICRO-INSURERS

The Insurance Bill will introduce a regulatory framework for micro-insurers and a consolidated legal framework for the

prudential supervision of insurers, according to the Bill’s memorandum. The Bill introduces a new solvency assessment

and management regime to ensure the financial soundness of insurers, a framework for the supervision of insurance

groups and enhanced arrangements for reinsurance. The Bill will replace those sections of the Long-term Insurance Act

and the Short-term Insurance Act dealing with prudential supervision. The Bill builds on the twin peaks model of financial

regulation provided for in the Financial Sector Regulation Bill, and aims to protect policyholders, enhance access to

insurance for low-income groups and maintain the stability of insurers.

Source: Legalbrief 01.02.16

POPI FACES INDEFINITE DELAY

The rollout of the Protection of Personal Information Act (Popi) has been ‘delayed indefinitely’, notes ENSafrica’s

Anneke Meiring in a Financial Mail report. Meiring said the final step in Popi’s rollout – the call for five nominees for the

position of information regulator – was taken in 2015. While the deadline was 14 August, little took place until 11

November, when Parliament called for a workshop to discuss Popi further. Once the appointments were made,

companies would have had 12 months to prepare for Popi. However, no reason was given for the delay, but Meiring

suggests that it will buy time for companies that have dragged their heels on Popi’s implementation. Nerushka

Deosaran, of Norton Rose Fulbright, said SA modelled Popi on the UK’s Data Protection Act, and that SA’s delay could

have something to do with the fact that the UK law faces change when the EU’s new data protection regulation kicks in.

Source: Legalbrief 29.01.16

RECOMMENDED READING

How does the law protect initiates and their rite of passage?, by Nicholas Mgedeza, De Rebus, Jan/Febr 2016

Section 65A(1) Notice to appear for a s 65 hearing of the Magistrate’s Court Act, by Yusuf Mahmood Surty, De

Rebus, Jan/Febr 2016

Reading the small print – are e-mail disclaimers really important?, by Jesicca Rajpal, De Rebus, Jan/Febr 2016

Will legislation protect your virtual space? Discussing the draft Cybercrime and Cyber Security Bill, by Dingaan

Mangena, De Rebus, Jan/Febr 2016

RECENT CONSTITUTIONAL COURT JUDGMENT

CONSTITUTIONALITY OF SECTION 45 OF KWAZULU-NATAL PLANNING AND DEVELOPMENT ACT 6 OF 2008

TRONOX KZN SANDS (PTY) LTD v KWAZULU-NATAL PLANNING AND DEVELOPMENT APPEAL TRIBUNAL

AND OTHERS (CCT114/15) [2016] ZACC 2 (29 JANUARY 2016)

The Constitutional Court handed down judgment in a matter concerning the constitutional validity of section 45 of the

KwaZulu-Natal Planning and Development Act.The applicant, Tronox KZN Sands (Pty) Ltd, is a large producer of

titanium ore and titanium dioxide. n February 2014 its application for prospective land-use rights was approved by the

fourth respondent, Umlalazi Municipality. Subsequently, the second and third respondents, the Mtunzini Conservancy

and the Mtunzini Fish Farm (Pty) Ltd sought to appeal that decision in terms of section 45 of the PDA. The section

provides that any person who is aggrieved by a municipality’s planning decision may appeal to the first respondent, the

KwaZulu-Natal Planning and Development Appeal Tribunal.

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Before the Appeal Tribunal could decide the two appeals, Tronox launched proceedings in the KwaZulu-Natal Division of

the High Court in Pietermaritzburg, challenging the constitutionality of section 45 of the PDA. The Court held that

section 45 was unconstitutional since the appeal process created by the province impermissibly interfered with the

municipalities’ constitutionally-recognised power to manage municipal planning. The Court declared the two appeals

unlawful, subject to the declaration of invalidity being confirmed by the Constitutional Court.

Before the Constitutional Court, Tronox asked for confirmation of the High Court order. The confirmation application was

opposed by the fifth respondent, the Member of the Executive Council for Co-operative Governance and Traditional

Affairs. She contended that section 45 is constitutionally acceptable, as the Appeal Tribunal is an independent and

impartial body staffed by experts and not provincial officials. If the confirmation order were to be granted, the MEC

called for a 24-month suspension to give the Legislature enough time to remedy the defect. Alternatively, she contended

that this Court should order a reading-in to render section 45 constitutionally valid. The sixth respondent, eThekwini

Municipality, argued that all provisions of the PDA that provide for an appeal to the Appeal Tribunal against exclusive

municipal decisions are constitutionally invalid. It submitted that any reading-in had to be crafted in a just and equitable

manner.

In a unanimous judgment, written by van der Westhuizen J, the Court confirmed the High Court order insofar as it

declared section 45 of the PDA constitutionally invalid. It agreed with the High Court that section 45 of the PDA

interfered with municipalities’ exclusive constitutional power to make municipal planning decisions. The fact that the

Appeal Tribunal was not staffed by provincial officials did not save the provision. Municipalities were still subjected to an

appeal process by the province, which intruded upon their autonomous power. The Court held that neither a reading-

down nor a reading-in was possible in this case. It also declined to suspend the declaration of invalidity. It held that

appeals already finalised under section 45 were not to be affected. Appeals still pending in terms of the appeal process

had to continue until finalised. However, in considering them, the Appeal Tribunal was required to uphold the

municipalities’ integrated development plans, if in existence. Accordingly, the MEC’s application for leave to appeal was

dismissed and she was ordered to pay the legal costs of Tronox.

Source: Media Summary of the Constitutional Court http://www.saflii.org/za/cases/ZACC/2016/2.html

RECENT IMPORTANT SUPREME COURT OF APPEAL JUDGMENT

SECTION 118(3) OF THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT 32 OF 2000 CREATING CHARGE

ON LAND IN FAVOUR OF MUNICIPALITY FOR DEBT DUE TO IT FOR RATES, TAXES AND SERVICES

CITY OF TSHWANE METROPOLITAN MUNICIPALITY v PJ MITCHELL (38/2015) [2016] ZASCA 1 (29 JANUARY

2016)

The Supreme Court of Appeal handed down judgment upholding the appeal by the appellant and substituting the order

of the order of the court below. The issue before the SCA was whether a municipality could hold a successor in title, in

respect of property, liable for an unpaid debt incurred by a previous owner for municipal services supplied prior to

transfer and the interpretation of section118(3) of the Local Government: Municipal Systems Act, 32 of 2000 (the Act).

The respondent purchased the fixed property known as Erf 296, Wonderboom Township, Gauteng (the property), at a

sale in execution. The property was situated within the appellant’s municipal boundaries. When the respondent applied

for a clearance certificate, the appellant (the Municipality) issued a ‘written statement’ reflecting a total amount of

R232 828.25 as being outstanding in respect of municipal service fees, levies and rates. That amount included debts

older than two years preceding the date of the application for a clearance certificate (historical debt).

The respondent disputed the correctness of the amount reflected in the ‘written statement’ as being payable for

purposes of obtaining a clearance certificate in terms of section 118(1) of the Act. The dispute was, however, settled and

the Municipality issued a certificate reflecting the outstanding amount due to it as R126 608.50, which represented only

the debt due for the two years preceding the date of the respondent’s application for issue of the certificate. The

respondent paid that amount, leaving the historical debt of R106 219.75 still outstanding, due and payable if it had not

become prescribed. According to the Municipality, this historical debt was a charge on the land (a hypothec ) in its favour

and was due to it for rates, taxes and services, in terms of section 118(3) of the Act.

The respondent subsequently sold the property to Ms Lynette Prinsloo who, before taking transfer, applied to the

Municipality for the supply of municipal services such as electricity, waste removal and water to the property. A municipal

official refused to open an account in her name until the historical debt was paid. Prinsloo then instructed her attorney

not to proceed with the transfer until the issue of the historical debt had been resolved. The respondent then approached

the Gauteng Division of the High Court, Pretoria, seeking, among others, an order declaring that he was not liable for the

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historical debt owed to the appellant by previous owners.

The court below relied on an exception created by the common law and held that the security that the Municipality held

over the property in terms of section 118(3) of the Act the Municipality’s had been extinguished by the sale in the

execution and subsequent transfer of the property. The court below distinguished the present matter from this court’s

decision in City of Tshwane Metropolitan Municipality v Mathabathe & another 2013 (4) SA 319 (SCA) on the basis

that in that case the property was sold, not at a sale in execution, but by public auction on behalf of the mortgagor.

Writing for the majority, Baartman AJA ((Mpati P, Bosielo and Saldulker JJA concurring) (the majority) upheld the

appeal. The majority found that the distinction drawn by the court below between the present matter and Mathabathe

was not justified, and that the court below’s further reliance on the exception created by the common law in relation to

sales in execution of hypothecated immovable property was also misplaced, as section 118(3) of the Act created a

statutory hypothec, and not a hypothec created by agreement in terms of the common law. The court accordingly

disagreed with the respondent’s submission that section 118(3) of the Act should be interpreted in accordance with the

common law relating to the effect of a sale in execution on the rights of bondholders, and held that it is clear that it was

not intended that there be a distinction drawn between property sold at a sale in execution or in a private sale when

considering the question whether the hypothec created by section 118(3) survives transfer. The majority further stated

that there was nothing preventing the appellant from perfecting its security over the property, should it wish to do so, to

ensure payment of the historical debt. Perfecting its security would involve obtaining a court order, selling the property in

execution and applying the proceeds to pay off the outstanding historical debt.

On the question whether Ms Prinsloo could be held liable for the historical debt, it was held that this issue was the SCA,

but made the observation that before the Municipality can look to an owner for payment, it has to comply with its own by-

law: it has to show that (1) there is no occupier on the property concerned and (2) the person who had entered into the

contract to receive the services cannot be traced or has absconded, is unable to pay, or does not exist. The majority

therefore concluded that the court below should not have granted the orders which it did and the respondent ’s

application should have been dismissed.

Writing a dissenting judgment, Zondi JA held that section 118(3) must be interpreted in a sensible manner that is

harmonious with the common law and does not undermine the purpose for which it was enacted, which is to provide a

mechanism for municipalities to collect historical debts, and that there is no indication that the subsection was enacted

with the intention to alter the common law. Accordingly, he held, the security created by the subsection does not survive

a sale in execution, rather it is the proceeds of sale that secures the payment of outstanding municipal debts, and the

municipality must be paid in full before any mortgagee is paid its debts, provided that they have not become prescribed,

He further held that if it had been intended that the security created by s 118(3) should continue to exist even beyond its

sale in execution, the legislature would have used precise and definite language to give effect to that intention, and the

fact that no such language occurs in section 118(3) is a strong argument in favour of the view that the common law

rights of the owners – to obtain a clean title – who obtains transfer of the burdened property through a sale in execution

were not taken away. In my view this is a sensible meaning of section 118(3). He concluded that he would have

dismissed the appeal.

Source: Media Summary Supreme Court of Appeal http://www.saflii.org/za/cases/ZASCA/2016/1.html

RECENT HIGH COURT JUDGMENTS

‘BINDING’ CONTRACT PROVES DECISIVE FOR CLIFF

Gauteng High Court (Johannesburg) Judge Caroline Nicholls ruled that it was ‘disingenuous’ of M-Net to refute the

existence of a 2016 Idols contract with Gareth Cliff. The judgment restores the contract between Cliff and M-Net but – as

Nicholls pointed out – MNet was still entitled to terminate the contract on a week’s notice with no reasons given. She

also did not grant an order Cliff had asked for – to interdict the start of auditions, which got under way. Nicholls

emphasised that, at this stage, the case was not about freedom of speech, hate speech or racism. ‘At present the crux

of the dispute is the contractual relationship between the parties,’ she said. Nicholls said that Cl iff only needed to show

the court that he had ‘a prima facie right, albeit open to some doubt’. Referring to correspondence between them,

Nicholls said even if there had not been an oral agreement, there was a ‘tacit’ agreement that Cliff would be an Idols

judge. It was ‘highly improbable’ that Cliff’s image would appear on M-Net’s adverts for 2016 if the company were ‘of the

view that no binding agreement had been reached,’ she said. ‘The conduct of both parties was clear and unequivocal’.

She said that, like M-Net, Cliff depended on his brand – ‘built up over many years’. ‘Being axed for being labelled a racist

does untold reputational and financial harm to him,’ she said. On the other hand, the Idols brand would not suffer in the

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same way. ‘It cannot be ignored that Cliff’s value as an Idols judge has been his tendency to shock and provoke, an

image that M-Net has apparently supported, or certainly overlooked, until now’.

Source: Legalbrief 01.02.16

PRECEDENT-SETTING RULING ON SPOUSAL VISAS

In a precedent-setting judgment on the new immigration regulations, the Western Cape High Court has ruled that

Zimbabwean Lea Stewart (40), whose husband and four sons live in Cape Town, does not have to return to Zimbabwe

to apply and wait for a spousal visa from SA. Instead it was ordered that she be granted one in SA. Immigration lawyer

Craig Smith said it effectively meant foreigners married to or in a permanent relationship with a South African citizen or

permanent resident holder, could apply to change the conditions of their visa to a spousal one without having to return to

their home country. They also do not have to wait in their home country for the outcome of their applications. The court

also directed the DG of Home Affairs to issue Stewart a visitor’s visa and allow her to apply for permanent residence

within three months. Home Affairs was ordered to pay the family’s costs.

Source: Legalbrief 01.02.16

ESKOM ORDERED TO RESTORE ELECTRICITY SUPPLY

The Gauteng High Court (Pretoria) has granted an order forcing Eskom to restore the electricity supply to five

municipalities in the Northern Cape. The urgent application was brought by the civil rights organisation AfriForum and

the civil rights watchdog AfriBusiness. Arguments by the parties will be heard by the court. Eskom announced that it was

cutting off electricity supply during peak periods to the five Northern Cape municipalities‚ which include the towns of

Hopetown‚ Barkly West and Stydenburg‚ because they owed it just over R133m in arrears. Afribusiness warned Eskom

earlier this month that it would be unlawful and unreasonable of the national electricity provider to deprive consumers of

electricity because of municipalities owing it money. ‘No consumer can be held accountable for the poor management of

municipal finances‚ or Eskom’s recovery of outstanding debt at municipalities. Eskom is damaging its own image even

further with this bullying tactic and AfriForum will not allow government to shift its debt onto consumers‚’ said Marcus

Pawson‚ AfriForum’s head of local government affairs.

Source: Legalbrief 01.02.16

SAPS EMPLOYMENT EQUITY PLAN RULED UNLAWFUL

The Johannesburg Labour Court has ruled the SAPS employment equity plan is unlawful. The court ruled that the plan

amounted to a quota system and therefore contravened the Employment Equity Act. It also violated the equality clause

in section 9(2) of the Constitution. The case was brought by trade union Solidarity. Its deputy general secretary Johan

Kruger said the ruling provided 'the necessary legal basis for all future unfair discrimination cases'. He said it also

highlighted that it was 'the duty of employers to align their employment equity plans with the relevant legislation'. Kruger

noted the union had been conducting unfair discrimination court cases on behalf of 12 of its members against the SAPS

since 2005. It had always argued the SAPS employment equity plan was inconsistent with the provisions of the

Employment Equity Act as it was based only on the national race demographics. Police spokesperson Brigadier

Hangwani Mulaudzi said the SAPS was studying the judgment.

Source: Legalbrief 27.01.16

HIGH COURT CLEARS ATTORNEY OF MISCONDUCT

Thirteen years after an attorney was reported for alleged misconduct, his conviction has been set aside by the Western

Cape High Court. The Law Society found Russel Cloete, chief legal adviser of Legal Aid SA in the Western Cape High

Court and formerly in private practice, guilty on two charges of misconduct in 2014. A client complained in 2003 that

Cloete failed to submit a claim on his behalf against the Road Accident Fund despite an instruction to do so. The client

says he tried to follow up with Cloete several times, but the claim prescribed. The Cape Law Society’s decision was

taken on review to the High Court. Judges André le Grange and Nape Dolamo overturned the Law Society’s decision,

saying there was no evidence of an agreement between Cloete and the client. The responsibility was on the Law Society

to prove this aspect and Cloete’s defence could not be dismissed as unlikely

Source: Legalbrief 25.01.16

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SECTION OF ACT ON DETENTIONS RULED UNCONSTITUTIONAL

Lawyers for Human Rights has welcomed a judgment handed down in the Gauteng High Court (Pretoria) that failing to

bring immigration detainees before a court within 48 hours is a violation of the Constitution. LHR also welcomed the

finding that extensions of immigration warrants beyond 30 days require the presence of the detainee in court before a

magistrate, which, it says, has not been the practice of the Department of Home Affairs. LHR says it brought a

constitutional challenge against the manner in which suspected undocumented foreigners are detained under section 34

of the Immigration Act. The application was first filed in June 2014 after the introduction of the new immigration

regulations and sought to ensure court oversight of immigration detention as provided for under various sections of the

Constitution. The court ruled that section 34 of the Immigration Act is unconstitutional due to the failure to provide court

oversight of detentions under the Act and ordered that any person held for immigration purposes should be brought

before a magistrate within 48 hours for the magistrate to decide whether to extend the detention. Failure to do so would

result in the detainee’s release. ‘As a finding of unconstitutionality, the order must now be confirmed by the

Constitutional Court before it has effect,’ said Wayne Ncube, of LHR's Strategic Litigation Programme.

Source: Legalbrief 05.02.16

OWNER LOSES GATED ESTATE BATTLE AGAINST RULES

Niemesh Singh has lost his legal battle to overthrow what he says are ‘draconian’ rules – involving speed limits and fines

and access for domestic workers and contractors – at the Mount Edgecombe housing estate where he lives and owns

several properties. KZN High Court (Durban) Acting Judge Ian Topping ruled that Singh had ‘contractually bound himself

to live within a controlled environment’ and the specific rules he complained about were lawful. However, he ruled that

the management association had no right to suspend Singh’s computerised access card to the estate because of unpaid

speeding fines which – in terms of the rules – had to be paid before they could be appealed against. This, he said,

amounted to ‘self-help’ and could only be done with a court order. The judge said because both parties had been both

unsuccessful and successful in the applications it was appropriate for each party to pay their own costs.

Source: Legalbrief 05.02.16

SOUTH AFRICAN LAW REPORTS – JANUARY 2016

COMAIR LTD v MINISTER OF PUBLIC ENTERPRISES AND OTHERS 2016 (1) SA 1 (GP)

Aviation - National airline—State funding—Loan guarantee—Legality—Compliance with statutory framework—Impact of

likely inability of national airline to repay loan—Strategic role of national airline—Non-financial considerations relevant—

Guarantee lawful—Public Finance Management Act 1 of 1999, s 70. State - Finance—Loan guarantee—Issuing of loan

guarantee constituting executive action subject to principle of legality—Not for court to secondguess financial wisdom of

guarantee—Public Finance Management Act 1 of 1999, s 70.

MAYO NO AND OTHERS v DE MONTLEHU 2016 (1) SA 36 (SCA)

Company - Winding-up—Claim against company in liquidation—Proof—Late proof—Statutory framework—Time period

stipulated in s 44(1) of Insolvency Act 24 of 1936 not affected by s 366(2) of Companies Act 61 of 1973—Three-month

period for lodging of claims applying to both sequestrations and liquidations. Statute - Interpretation—‘Mutatis

mutandis’—Meaning ‘subject to necessary alterations’—Necessary changes must be required, not merely permitted.

YB v SB AND OTHERS NNO 2016 (1) SA 47 (WCC)

Marriage - Divorce—Proprietary rights—Accrual system—Assets held in trust—Transactions reflecting trust as acquiring

assets simulated—Assets part of husband’s estate—Whether assets could be taken into account in calculating

accrual—Matrimonial Property Act 88 of 1984, ss 3 and 4.

KS v MS 2016 (1) SA 64 (KZD)

Marriage - Divorce—Proprietary rights—Accrual system—Proof of accrual—When determined—Litis contestatio, not

date of divorce—Matrimonial Property Act 88 of 1984, s 3(1).

TM v ZJ 2016 (1) SA 71 (KZD)

Marriage - Divorce—Maintenance—Spouse—Maintenance pendente lite—Marriage under Islamic law—No bar to

obtaining relief in terms of rule—Uniform Rules of Court, rule 43.

VENMOP 275 (PTY) LTD AND ANOTHER v CLEVERLAD PROJECTS (PTY) LTD AND ANOTHER 2016 (1) SA 78

(GJ)

Practice - Applications and motions—Affidavits—Length of—Caution as to—Practice to include statement by deponent

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that he made legal submissions based on legal advice, followed by such submissions—Criticism of practice. Review -

Procedure—Record on review—Applicant’s duty to select relevant material from record, to serve as evidence—

Consideration of—Uniform Rules of Court, rule 53(3). Evidence - Admissibility—Statement that is part of negotiations for

settlement of dispute. Arbitration - Procedure—Times fixed under Act—Extension of, if ‘good cause’ shown—Nature of

‘good cause’—Arbitration Act 42 of 1965, s 38. Arbitration - Award—Setting-aside of—Right to apply for—Doctrine of

peremption can be applied to right—Arbitration Act 42 of 1965, s 33(1). Discovery and inspection - Failure to discover

documents—Application to court to order their production—Whether court has discretion to not order production of

relevant documents—Uniform Rules of Court, rule 35(7).

ASMAL v ESSA 2016 (1) SA 95 (SCA)

Credit agreement - Consumer credit agreement—Whether agreement subject to NCA—Loan covered by blank cheque

and profit share to be determined by borrower—Profit share not fee, charge or interest—Loan agreements not ‘credit

agreements’ covered by NCA—National Credit Act 34 of 2005, s 8(3) and s 8(4).

MINISTER OF DEFENCE AND MILITARY VETERANS v THOMAS 2016 (1) SA 103 (CC)

Labour law - Compensation for occupational injuries and diseases—Preclusion of delictual claim against employer—

State as employer—Not regarded as single entity—Court allowing provincial employee to claim compensation from

province and delictual damages from national government—Compensation for Occupational Injuries and Diseases Act

130 of 1993, s 35(1). State - Ambit of concept—State as employer—State not regarded as single employer for all

employees working in three different spheres of government. Constitutional law - Co-operative government—Autonomy

of spheres of government—State not regarded as single employer for all employees working in three different spheres of

government. Delict - Exclusion of liability—Statutory barring of claim by employee against employer for occupational

injury—Meaning of ‘employer’—State not regarded as single employer for all employees working in three different

spheres of government.

MINNAAR v VAN ROOYEN NO 2016 (1) SA 117 (SCA)

Company - Directors and officers—Liability for debts of company—Court cannot make prescribed finding of recklessness

or intent to defraud without hearing evidence—Grant by default of order under s 424(1) of Companies Act 61 of 1973 not

permitted.

SNYDERS NO v LOUISTEF (PTY) LTD AND OTHERS 2016 (1) SA 123 (GP)

Minerals and petroleum - Petroleum—Fuelling station—Site licence—Purported sale—Licence not merx or res vendita—

Sale accordingly null and void—Petroleum Products Act 120 of 1977, s 2.

MY VOTE COUNTS NPC v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS 2016 (1) SA 132 (CC)

Constitutional law - Human rights—Right of access to information—Details of private funding of political parties—

Assertion that Parliament had failed to fulfil its constitutional obligation to enact legislation giving access to these

details—Applicant seeking order that Parliament do so—True nature of applicant’s case an attack on validity of PAIA—

Failure, contrary to principle of subsidiarity, to attack PAIA’s validity—Constitution, 1996, s 32; Promotion of Access to

Information Act 2 of 2000.

PANAMO PROPERTIES 103 (PTY) LTD v LAND AND AGRICULTURAL DEVELOPMENT BANK OF SOUTH AFRICA

2016 (1) SA 202 (SCA)

Mortgage - Mortgage bond—Validity—May secure debt arising from enrichment claim.

ENGELA v ROAD ACCIDENT FUND 2016 (1) SA 214 (GJ)

Delict - Specific forms—Loss of support—Dependant’s action—Extension—Permanent heterosexual relationships—

Extension applying also where divorced parties reconciled and lived together as family again, but deceased made no

promise to remarry nor expressly agreed to support illegitimate child

ZIETSMAN AND ANOTHER v DIRECTORATE OF MARKET ABUSE AND ANOTHER 2016 (1) SA 218 (GP)

Stock exchanges - Market abuse—Insider trading and disclosure of inside information—Nature of inside information—

Specific and precise—Finality not required—Belief that information not inside information constituting defence only if

reasonably held—Price sensitivity of information—Penalty in line with potential or expected profits in order—Securities

Services Act 36 of 2004, s 73; Financial Markets Act 19 of 2012, s 78.

FOUR ARROWS INVESTMENTS 68 (PTY) LTD v ABIGAIL CONSTRUCTION CC AND ANOTHER 2016 (1) SA 257

(SCA)

Land - Agricultural land—Portion—Option to purchase—Prohibited without written ministerial consent—Subdivision of

Agricultural Land Act 70 of 1970, s 3(e)(i).

RUITERS v MINISTER OF HUMAN SETTLEMENTS AND ANOTHER 2016 (1) SA 239 (WCC)

Housing - Consumer protection—Unregistered builder—Owner builder—Exemption from registration and enrolment—

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Grounds for refusal—Not valid ground for refusal that building works already commenced with at time of application for

exemption—Owner builder prima facie satisfying requirements for granting of exemption—Housing Consumers

Protection Measures Act 95 of 1998, ss 10, 10A, 14 and 29.

GAP MERCHANT RECYCLING CC v GOAL REACH TRADING 55 CC 2016 (1) SA 261 (WCC)

Company - Winding-up—Application—Debt that is basis of application bona fide disputed on reasonable grounds—Rule

that winding-up precluded in these circumstances—Nature and scope of rule—Meaning of ‘bona fide’ anda ‘disputed on

reasonable grounds’. Counterclaim that is bona fide and on reasonable grounds—Whether court has discretion to

dismiss liquidation application.

GRAHAM AND ANOTHER v LAW SOCIETY, NORTHERN PROVINCES AND OTHERS 2016 (1) SA 279 (GP)

Attorney - Law Society—Disciplinary enquiry—Investigation of complaint—Delay in completion—Law Society applying

for expanded orders to overcome obstacles—Client seeking more extensive relief than Law Society in counter-

application—Attorney’s attempt to have counter-application set aside as irregular step simply delaying tactic to frustrate

and avoid scrutiny—Punitive costs order justified.

ELLIS AND ANOTHER v CILLIERS NO AND OTHERS 2016 (1) SA 293 (WCC)

Land - Sale—Contract—Terms—Warranties—Voetstoots clause—Latent defect—Defect—What constitutes—

Undisclosed alterations to house, complicating purchasers’ intended renovation thereof, constituting latent defect.

Sale - Warranties—Voetstoots clause—Non-latent defects—Unusual or abnormal qualities of res vendita—Purchaser

may avoid consequences of voetstoots clause as result of seller’s non-disclosure thereof

MINISTER OF MINERAL RESOURCES AND OTHERS v MAWETSE (SA) MINING CORPORATION (PTY) LTD 2016

(1) SA 306 (SCA)

Minerals and petroleum - Mining and prospecting rights—Prospecting rights—Expiry—Duration of right to be calculated

from date applicant informed of granting thereof—Mineral and Petroleum Resources Development Act 28 of 2002, s

56(a). Granting—Minister may lawfully require applicant for prospecting rights to be BEE-compliant—Mineral and

Petroleum Resources Development Act 28 of 2002, s 17(4) read with s 2(d). Not contractual in nature—Amounting to

unilateral administrative act by Minister or delegate under their statutory powers under Mineral and Petroleum

Resources Development Act 28 of 2002.

Source:: https://jutalaw.co.za

SOUTH AFRICAN CRIMINAL LAW REPORTS – JANUARY 2016

S v MACHABA AND ANOTHER 2016 (1) SACR 1 (SCA)

Evidence - Admissibility—Record of bail proceedings—Admission of exculpatory nature made by accused during

application for bail—Record handed up in subsequent trial in terms of s 60(11B)(c) of CPA—Court had to assess whole

statement, including exculpatory part—No reason why court should have regard only to incriminating part—Criminal

Procedure Act 51 of 1977, s 60(11B)(c).

S v ASELE 2016 (1) SACR 13 (NCK)

Plea - Plea of guilty—Written statement in terms of s 112(2) of CPA—Concession by state that statement correct—Effect

of—Accused conceding he had dolus eventualis but claiming he lacked intention to kill—Court inferring dolus directus,

despite state’s concession accused had only dolus eventualis—Court not bound by statement—Inference that accused

had dolus directus only reasonable inference to be drawn in circumstances.

S v RC 2016 (1) SACR 34 (KZP)

Sexual offences - Sexual grooming—What constitutes—Section strikes at two forms of adult misconduct—Difference

between conduct with intention to ‘encourage or persuade’ child to perform sexual act and intention to ‘diminish or

reduce any resistance or unwillingness’ on part of child to engage in sexual act—While it might be an answer to first form

to deny that one would have proceeded, it would not be to second form—Manipulation of child’s sexual psyche by adult

for own amusement harmful conduct which may have far-reaching consequences for child, even if adult had no intention

of ultimately performing any overt sexual act—Criminal Law (Sexual Offences and Related Matters) Amendment Act 32

of 2007, s 18(2)(b).

S v MAGWAZA 2016 (1) SACR 53 (SCA)

Evidence - Confession—Admissibility of—Confession made to police officer—Explanation of accused’s rights—

Constitutional right not to be regarded as satisfied simply by some incantation which detainee might not understand—

Purpose of informing accused of rights was in order to allow him or her to decide whether to exercise them—Could not

9

do that if accused did not understand what rights were—Failure to properly inform detainee of constitutional rights

rendered them illusory. Not warned of consequence of not remaining silent or of entitlement to services of legal

representative at state expense—Deficiencies occasioned by inadequate warning by arresting officer not cured by

detailed warning given to accused by police captain before he took confession.

MINISTER OF SAFETY AND SECURITY v MORUDU AND OTHERS 2016 (1) SACR 68 (SCA)

Police - Liability of minister for delictual acts of police officer—Liability of state for criminal acts committed by police

officer on duty—Policeman, member of fingerprint unit, using unmarked police vehicle to drive to home of deceased,

whom he believed was his wife’s lover, and shooting him using his personal firearm—Radical deviation from his tasks—

Significant that policeman’s duties in fingerprint unit, not division of police to which public would intuitively turn for

protection—Insufficiently close link between policeman’s actions for own interests and his duties as policeman, for

employer to be vicariously liable.

S v DAMANI 2016 (1) SACR 80 (KZP)

Trial - Language—Use of indigenous languages—Although use of indigenous languages in court should be promoted,

until issue of language policy in lower-court proceedings officially resolved by competent authority, not salutary for

magistrate at own discretion to conduct proceedings in indigenous language.

S v FONGOQA AND OTHERS 2016 (1) SACR 88 (WCC)

Verdict - Accused entitled to verdict in respect of each count to which he pleads—Accused charged with two counts of

rape, although committed multiple rapes—Magistrate convicting accused of only one count without indicating which

count—Accused entitled to verdict on other count and in terms of s 106(4) of CPA entitled to be acquitted on that count.

NTSOKO v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2016 (1) SACR 103 (GP)

Prevention of crime - Forfeiture order—Reviewability of decision—Owner of property sought to be declared forfeit facing

criminal charges and claiming that being compelled to do so in order to protect property infringed right to fair trial

because it required him to forgo right to silence—Decision by NDPP to proceed in terms of ch 6 rather than less onerous

(to accused) method of forfeiture under ch 5 not reviewable in terms of PAJA but subject to legality review—Where

danger of loss or devaluation of proceeds of crime, this had to outweigh person’s right to silence.

Source: https://jutalaw.co.za

BILLS

INSURANCE BILL, 2016 B1-2016

NATIONAL PUBLIC

HEALTH INSTITUTE OF

SOUTH AFRICA BILL, 2015

AND THE NATIONAL

HEALTH LABORATORY

SERVICE AMENDMENT

BILL, 2015

Extension of comment period GG 39622 (26.01.16)

NORTH WEST YOUTH

ENTREPRENEURSHIP

SERVICES FUND BILL,

2015

Notice of publication for comment GG 39636 (29.01.16)

PROCLAMATIONS AND NOTICES

STATISTICS SOUTH

AFRICA

Consumer Price Index, Rate (Base Dec 2012 = 100): December 2015: 5,2 published

GG 39636 (29.01.16)

MAGISTRATES' COURTS

ACT 32 OF 1944

Description of service areas in respect of sheriffs affected by the rationalisation of magisterial districts published

GG 39619 (25.01.16)

10

JUSTICES OF THE PEACE

AND COMMISSIONERS OF

OATHS ACT 16 OF 1963

Designation of Commissioners of Oaths amended GG 39641 (29.01.16)

SUBDIVISION OF

AGRICULTURAL LAND ACT

70 OF 1970

Exclusion of land in the district of Mossel Bay from the application of the Act published

GG 39636 (29.01.16)

DENTAL TECHNICIANS

ACT 19 OF 1979

Notice relating to the supervision of registered dental laboratories published with effect from 1 January 2016

GG 39632 (29.01.16)

AGRICULTURAL PESTS

ACT 36 OF 1983

Control Measures amended with effect from 1 April 2016 Regulations amended with effect from 1 April 2016

GG 39627 (29.01.16)

GG 39627 (29.01.16)

SMALL CLAIMS COURTS

ACT 61 OF 1984

Establishment of small claims courts for the areas of Umvoti and New Hanover and withdrawal of GN 1286 of 15 June 1990 published Establishment of small claims courts for the areas of Britstown and Mpofu published

GG 39641 (29.01.16)

GG 39641 (29.01.16)

SHERIFFS ACT 90 OF 1986 Appointment of sheriffs published with effect from 1 March 2016

GG 39633 (29.01.16)

AGRICULTURAL PRODUCT

STANDARDS ACT 119 OF

1990

Regulations relating to the grading, packing and marking of maize products intended for sale in the Republic of South Africa published with effect from 12 months from the date of publication and GN R1739 in GG 15120 of 17 September 1993 and GN R31 in GG 30681 of 25 January 2008 repealed Regulations relating to the grading, packing and marking of bread wheat intended for sale in the Republic of South Africa published and GN R1186 in GG 33860 of 17 December 2010 repealed Regulations regarding control of the export of tree nuts published

GG 39627 (29.01.16)

GG 39627 (29.01.16)

GG 39627 (29.01.16)

LABOUR RELATIONS ACT

66 OF 1995

List of bargaining councils accredited by the CCMA for the period 1 December 2015 to 31 January 2017 published Motor Industry Bargaining Council (MIBCO): Renewal of period of operation of the administrative collective agreement published with effect from 1 February 2016 to 31 May 2016

GG 39618 (25.01.16)

GG 39627 (29.01.16)

SOUTH AFRICAN POLICE

SERVICE ACT 68 OF 1995

Amendment of terms of reference of the Board of inquiry into the National Commissioner of the South African Police Service: General MV Phiyega published in GenN 981 in GG 39279 of 9 October 2015 published

GG 39638 (29.01.16)

NATIONAL EDUCATION

POLICY ACT 27 OF 1996

Proposed 2018 school calendar for public schools published for comment

GG 39634 (29.01.16)

MARKETING OF

AGRICULTURAL

PRODUCTS ACT 47 OF

1996

Amendment of statutory measures for sorghum, winter cereal, maize and oilseeds published Invitation to register as a directly affected group in terms of the Act published

GG 39627 (29.01.16)

GG 39636 (29.01.16)

11

ROAD ACCIDENT FUND

ACT 56 OF 1996

Adjustment of statutory limit in respect of claims for loss of income and loss of support published with effect from 31 January 2016

GG 39636 (29.01.16)

BASIC CONDITIONS OF

EMPLOYMENT ACT 75 OF

1997

Notice of investigation into Taxi Sector to investigate conditions of employment and minimum wages published for comment Notice of investigation into Hospitality Sector to investigate conditions of employment and minimum wages published for comment

GG 39621 (26.01.16)

GG 39621 (26.01.16)

NATIONAL WATER ACT 36

OF 1998

Proposal for the establishment of the Orange Catchment Management Agency published for comment Proposal for the establishment of the Mzimvubu-Tsitsikamma Catchment Management Agency published for comment Establishment of the Vaal River Catchment Management Agency published

GG 39636 (29.01.16)

GG 39636 (29.01.16)

GG 39636 (29.01.16)

COMPETITION ACT 89 OF

1998

Competition Commission: CBE exemption rejection notice published

GG 39630 (29.01.16)

POSTAL SERVICES ACT

124 OF 1998

Fees and charges for postal services published with effect from 1 April 2016

GG 39637 (29.01.16)

MEDICAL SCHEMES ACT

131 OF 1998

Adjustment to fees payable to brokers published with effect from 1 January 2016

GG 39617 (25.01.16)

LANDSCAPE

ARCHITECTURAL

PROFESSION ACT 45 OF

2000

Proposed Rates Table for 2016/2017 published for comment

GG 39636 (29.01.16)

NATIONAL

ENVIRONMENTAL

MANAGEMENT:

BIODIVERSITY ACT 10 OF

2004

Notice of bioprospecting permit applications submitted by the University of Pretoria published for comment

GG 39620 (25.01.16)

CONSUMER PROTECTION

ACT 68 OF 2008

National Consumer Commission: Draft Industry Code for the Franchise Industry of South Africa published for comment

GG 39631 (29.01.16)

USE OF OFFICIAL

LANGUAGES ACT 12 OF

2012

South African Qualifications Authority (SAQA): Draft Official Language Policy published for comment

GG 39629 (29.01.16)

FINANCIAL MARKETS ACT

19 OF 2012

Notice of publication for comment of proposed amendments to the JSE Listing Requirements published

GG 39623 (27.01.16)

PROVINCIAL LEGISLATION

Eastern Cape

Road Traffic Act (Eastern

Cape) 3 of 1999

Amendment to the Determination of Fees, 2011 as published under PN 3 in PG 2504 of 14 January 2011 published with effect from 1 April 2016

PG 3581 (22.01.16)

12

Disaster Management Act

57 of 2002

Chris Hani District Municipality: Declaration of state of local disaster published

PG 3582 (22.01.16)

Gauteng

Constitution of the Republic

of South Africa, 1996 and

Spatial Planning and Land

Use Management Act 16 of

2013

Lesedi Local Municipality (GT423): Spatial Planning

and Land Use Management By-law, 2015 published

PG 22 (27.01.16)

Local Government:

Municipal Systems Act 32 of

2000 and Spatial Planning

and Land Use Management

Act 16 of 2013

City of Johannesburg Metropolitan Municipality (JHB):

Notice of intention to review the draft Spatial

Development Framework (SDF) published for comment

PG 27 (27.01.16)

Constitution of the Republic

of South Africa, 1996,

Rationalisation of Local

Government Affairs Act 10

of 1998, and Spatial

Planning and Land Use

Management Act 16 of 2013

City of Johannesburg Metropolitan Municipality (JHB):

Notice on draft Municipal Planning By-law published for

comment

PG 30 (29.01.16)

Kwazulu Natal

Constitution of the Republic

of South Africa, 1996 and

Local Government:

Municipal Systems Act 32 of

2000

KwaDukuza Local Municipality: Amendment to the

Electricity Supply By-laws as published under MN 9 in

PG 6381 of 17 March 2005 published

PG 1593 (28.01.16)

Local Government:

Municipal Structures Act 117

of 1998

Transitional measures to facilitate integrated development planning, approval of budgets, the preparation of financial statements, the levying of rates and acting appointments in municipalities affected by the re-determination of boundaries published

PG 1594 (28.01.16))

KwaZulu-Natal Road Traffic

Act 7 of 1997

Amendment to the Road Traffic Regulations as published under PN 204 in PG 523 of 25 November 2010 published with effect from 1 April 2016

PG 1595 (29.01.16)

Mpumalanga

Mpumalanga Adjustments

Appropriation Act 3 of 2015

Date of commencement: 27 January 2016 PG 2639 (27.01.16)

Northern Cape

Local Government:

Municipal Systems Act 32 of

2000 and Spatial Planning

and Land Use Management

Act 16 of 2013

Dikgatlong Local Municipality: Notice of adoption of the

Land Use Management By-law published

PG 1982 (25.01.16)

Disaster Management Act

57 of 2002

Declaration of a Provincial State of Drought Disaster:

District Municipalities: Frances Baard; John Taolo

Gaetsewe; Pixley Ka Seme; Namakwa; and ZF

Mcgawu published

PG 1983 (29.01.16)

13

North West

Naledi Local Municipality

(GT423)

Spatial Planning and Land Use Management By-law,

2015 published with effect from 1 January 2015 and

previous by-laws repealed

PG 7599 (26.01.16)

Constitution of the Republic

of South Africa, 1996, Local

Government: Municipal

Systems Act 32 of 2000 and

Spatial Planning and Land

Use Management Act 16 of

2013

Rustenburg Local Municipality: Spatial Planning and

Land Use Management By-law, 2015 published

PG 7600 (29.01.16)

Western Cape

Constitution of the Republic

of South Africa, 1996:

Witzenberg Local

Municipality

By-law on Liquor Trading Days and Hours published and LAN 56738 in PG 7252 of 11 April 2014 repealed

PG 7555 of 22

January 2016

SEMINARS

Contact the Knowledge Centre for more information

NAME OF SEMINAR DATES PRESENTER

5 DAY MEDIATION

WORKSHOP

Cape Town: 11 – 15 April 2016

Durban: 18 – 22 April 2016

Johannesburg: 09 – 13 May 2016

Siham Boda and Grant Gunston

Kresen Moodley and Sue Pillay

Ahmed Cachalia and Charles Mendelow

5 DAY DIVORCE

MEDIATION WORKSHOP

Durban: 14 – 18 March 2016

Mahomed Essack and Sue Pillay

2016 SEMINARS

EVICTION & RENTAL

CLAIMS

Stellenbosch- 4 March 2016

Cape Town - 7 March 2016

Durban - 14 March 2016

Pretoria - 15 March 2016

Johannesburg - 22 March 2016

George - 5 July 2016

East London - 8 July 2016

Bloemfontein - 11 July 2016

Christo Smith