Bulletin 6 of 2013Bulletin 5 of 2016 Period: 29 January

IMPORTANT NEWS

LAND HOLDINGS BILL TO BE PRESENTED TO CABINET

The Regulation of Land Holdings Bill, which restricts foreign ownership of land, will be presented to Cabinet for approval

in the first semester of the year.

This emerged during Thursday’s State of the Nation Address (SONA), an annual address were the President addresses

the nation and provides an assessment of the country’s domestic and foreign situation. The Bill, which was first

announced by President Zuma in his 2015 SONA, places a ceiling on land ownership at a maximum of 12000 hectares

and would prohibit foreign nationals from owning land. However, they would be eligible for long term leases.

This practice of limiting land ownership by foreign nationals and juristic persons, government has maintained, is an

established practice internationally, in counties like Australia, Thailand, Cambodia, the Philippines, Kenya, Ghana and

certain South American countries. The proposed policy states that foreign nationals and juristic persons are understood

as non-citizens as well as juristic persons whose dominant shareholder or controller is a foreign controlled enterprise,

entity or interest, hence not all immigrants to South Africa will be excluded from land ownership. This category of foreign

nationals that are non-citizens will not be able to own land in freehold from the time of the policy is passed into law. They

will be allowed long term lease of 30 to 50 years.

According to the policy, it is recognised that this cannot apply retrospectively without constitutional infringements. As

such those who have already acquired freehold would not have their tenure changed by the passing of the proposed

law. But in such instances the Right of First Refusal will apply in favour of another South African citizen in freehold or the

State if the land is deemed strategic.

The policy seeks to address problems such as the need to secure the limited land for food security and address the land

injustice of more than 300 years of colonialism and apartheid. Meanwhile, government continues to push ahead with

steadfast commitment toward the complete transformation of the land reform in the country. As part of efforts toward

healing the psychological wounds of forced removal and dispossession of land, the government re-opened the land

claims process from July 2015 until 2019.

Source: SAnews.gov.za, 11 February 2016

NEW RETAIL, WHOLESALE DETERMINATION GAZETTED

A new determination on basic conditions of employment in the wholesale and retail sectors was gazetted and will be

binding from 1 March. Repealing a determination most recently amended last year, the new conditions of employment

apply to all employers and employees ‘mainly or wholly associated’ for the purpose of procuring products from ‘any

supplier or manufacturer’ with the aim of selling them to others. They also pertain to incidental and supportive activities

undertaken by employers in the wholesale and retail sectors, including merchandising, warehousing and distribution

operations – as well as ‘any other activity conducted by an employer whose core business falls within the wholesale or

retail sector on or at the premises where that business is conducted’, reports Pam Saxby for Legalbrief Policy Watch.

In addition to prescribing minimum hourly and weekly wages per category of employee and how they should be paid, the

new determination addresses a comprehensive range of issues including and affecting: job descriptions; hours of work;

overtime; night work; the compressed working week; meal intervals; rest periods; commission work; annual, sick, family

responsibility and maternity leave; termination of employment; overalls and protective clothing; and attendance registers.

Regarding the use of temporary employment services, among other things the new sectoral determination provides that

a service provider and its client will be held jointly and severally liable if the service does not comply with its

requirements as these apply to any employee placed with that client.

Source: Legalbrief Today, www.legalbrief.co.za

Bulletin 6 of 2013 Period: 1 February 2013 to 8 February 2013 Bulletin 5 of 2016 Period: 29 January 2016 – 5 February 2016

http://www.legalbrief.co.za/

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PASSPORTS TO REPLACE UNABRIDGED BIRTH CERTIFICATES

Less than a year after the Department of Home Affairs introduced new visa regulations requiring all minors travelling to

and from SA to carry unabridged birth certificates, the system is to be replaced by an updated passport for minors

featuring the printed details of both parents. A Saturday Star report says this was revealed by Mkuseli Apleni, DG of the

Department of Home Affairs, after a meeting between his department, the Department of Tourism and the tourism

sector. Apleni announced that – in the next three months to a year – his department would print parents’ details in their

children’s passports so that they did not have to carry birth certificates. A spokesperson added: ‘In future, what we’re

working on is when parents apply for passports for their children, they don’t have to produce the unabridged birth

certificates but instead they produce their children’s passports, which will have their details.’


MORE FINANCIAL SOUNDNESS REGULATIONS MOOTED

Comment is sought on a second round of draft regulations prescribing criteria in terms of which the financial soundness

of a pension fund should be determined. It is not clear whether they complement or replace proposals released last

September. Underpinned by the ‘treating customers fairly’ approach to financial services regulation and supervision,

according to an explanatory memorandum on the proposed new regulations, a risk premium approach without funded

solvency contingency reserves does not adequately protect members – which is why a bond based approach is mooted

for valuation purposes.


CHANGES PROPOSED TO AUDITORS’ CODE OF CONDUCT

Draft amendments to the code of professional conduct for registered auditors released on Friday for comment seek to:

further promote the ‘appropriate use’ of a conceptual framework underpinning the code, with the aim of improving the

level of compliance with its fundamental principles; and to make it more understandable and user friendly in the hope of

‘facilitating its adoption, effective implementation, consistent application, and enforcement’. With that in mind, comment

is sought on two documents: proposed revisions to safeguards in the code; and proposals for improving its structure.


MINE HEALTH, SAFETY CODE GUIDELINES GAZETTED

Informed by the requirements of the Mine Health and Safety Act and Employment Equity Act, the guidelines gazetted on

Friday seek to assist mine employers in developing mandatory codes of practice for: determining an employee’s fitness

to perform mine work; managing incapacity resulting from ill-health or injury; respecting an employee’s right to refuse

dangerous work and leave a dangerous workplace; and managing thermal stress. Failure to compile and implement a

code of practice in compliance with any one of these guidelines constitutes a breach of the Mine Health and Safety Act.


RECOMMENDED READING

Voetsoots and the Consumer Protection Act, by A Jansen van Rensburg of Schoeman Law,

http://www.polity.org.za/article/voetsoots-and-the-consumer-protection-act-2016-02-09

Retrenchment: is LIFO the only way to go? by M Chenia of Cliffe Dekker Hofmeyr,

http://www.polity.org.za/article/retrenchment-is-lifo-the-only-way-to-go-2016-02-09

The S118(3) Monster – I (Peter Livanos has some sound advice for sellers with outstanding municipal debts following

the recent judgment of City of Tshwane Municipality v PJ Mitchell), www.ghostdigest.co.za

The S118(3) Monster – II (Chantelle Gladwin discusses the implications (but not the correctness of) the Supreme Court

of Appeal decision in City of Tshwane Municipality v PJ Mitchell), www.ghostdigest.co.za

http://www.polity.org.za/article/voetsoots-and-the-consumer-protection-act-2016-02-09

http://www.polity.org.za/article/retrenchment-is-lifo-the-only-way-to-go-2016-02-09

http://www.ghostdigest.co.za/

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IMPORTANT SUPREME COURT OF APPEAL JUDGMENT

INCOME TAX ─ WHETHER PROCEEDS OF SALE OF SHARES REVENUE OR A RECEIPT OF A CAPITAL

NATURE

CSARS v CAPSTONE 556 (PTY) LTD (20844/2014) [2016] ZASCA 2 (9 FEBRUARY 2016)

The SCA dismissed the appeal of SARS and upheld the cross-appeal of Capstone 556 (Pty) Ltd (Capstone), against an

order of the Western Cape Division of the High Court, Cape Town. In the result, the SCA (i) confirmed that the profit of

almost R400 million made by Capstone from the sale of approximately 17 million shares in a company, JD Group Ltd

(JDG), was of a capital nature and not of a revenue nature, even though Capstone had paid for and obtained transfer of

the shares less than a year before; and (ii) held that the amount of R55 million in respect of a tax liability flowing from the

original acquisition transaction formed part of the base cost of the shares.

The issues before the SCA where (i) whether the profit from the sale of the shares was of a revenue or capital nature;

and (ii) whether a contingent liability incurred by Capstone as part of the share purchase transaction, which was later

converted into an unconditional liability to a third party, formed part of the base cost of the shares.

The shares that formed the subject of the dispute were acquired by Capstone as a result of a corporate restructuring of a

JSE-listed furniture business, Profurn Limited (Profurn), which was in severe financial difficulty. The turnaround strategy

that was adopted involved the merger of Profurn with another more financially sound furniture business, JD Group

Limited (JDG), in return for JDG shares. The shares would initially be issued to First Rand Bank Ltd (FirstRand), who

would then on-sell them in various quantities to, amongst others, Capstone. The shares were eventually paid for and

transferred by FirstRand to Capstone in December 2003, and were sold less than a year later, in April 2004, for a profit

of almost R400 million.

With regard to the first issue, SARS argued that this profit must be taxed as being of a revenue nature, while Capstone

argued that it was of a capital nature. The SCA reaffirmed that the applicable test for determining whether a profit must

be treated as revenue is whether it is a gain made by operation of a business in carrying out a scheme of profit-making.

If so, it is of a revenue nature. If not, it is of a capital nature. And where a profit is the result of the sale of an asset, the

intention with which the taxpayer had acquired and held the asset is of great importance and may be decisive. The court

held that this was the case here.

Although the shares in question were sold less than a year after Capstone acquired ownership over them, which would

ordinarily suggest a short-term transaction, the SCA held that in substance, risk and reward was acquired by Capstone

at a much earlier date, in June 2002. This is the date on which a binding memorandum of understanding was signed by

the various parties laying out the turnaround strategy, and fixing the price at which Capstone was to acquire the shares.

This is the relevant date to assess the intention with which the acquisition was made. And at that date, it was clear that

Capstone and its controllers expected the turnaround to take between three and five years, and they viewed the

enterprise as an investment to rescue the business of Profurn. Capstone’s controllers did contemplate the potential sale

of the shares at some point in the future, but this was merely one of many options, after a significant period, and not the

dominant purpose behind the acquisition. Accordingly, the nature of the profit fell to be treated as capital.

With regards to the second issue, part of the acquisition price for the shares that Capstone agreed to pay to FirstRand

was an indemnity in respect of certain tax liabilities incurred by Profurn. Capstone subsequently wanted to finalise the

entire transaction and so wished to replace its contingent liability to FirstRand with a quantified and unconditional

liability. Accordingly, in the 2005 year of assessment, it was agreed between Capstone and another company involved

in the restructuring transaction, Daun et Cie, that Capstone would pay Daun et Cie R55 million if Daun et Cie took over

Capstone’s contingent liability to FirstRand. The SCA held that it was clear that the initial contingent liability was part of

the base cost. The SCA held that it was also clear that the obligation to pay R55 million was undertaken in substitution

of the contingent obligation to FirstRand, and accordingly that the liability to FirstRand was ‘converted’ into liability to

Daun et Cie. Overturning the ruling of the court a quo, the SCA held that there was no break in the chain of causation,

and the acquisition of the shares remained the causa causans of the indemnity settlement. It therefore formed part of

the base cost of the acquisition of the shares.

Accordingly, the SCA dismissed SARS’ appeal, and upheld Capstone’s cross-appeal.

Source: Media Summary Supreme Court of Appeal

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ALL SOUTH AFRICAN LAW REPORTS – VOL 1 JANUARY 2016

COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE v STEPNEY INVESTMENTS (PTY) LTD [2016] 1

ALL SA 1 (SCA)

Tax – Capital gains tax – Calculation of – Tax payable is determined by a calculation of the difference between the

proceeds of the sale and the base cost of the asset disposed of – Determination of base cost of shares in terms of

Income Tax Act 58 of 1962 – Where determination of base cost was based on defective valuation, taxpayer found to

have failed to prove market value and aggregate base costs of shares disposed of.

COUNCIL FOR MEDICAL SCHEMES AND ANOTHER v GENESIS MEDICAL SCHEME AND OTHERS [2016] 1 ALL

SA 15 (SCA)

Medical schemes – Prescribed minimum benefits – Rules of medical scheme registered under Medical Schemes Act

131 of 1998 – Medical Schemes Act requiring a medical scheme to pay in full the costs of treatment of prescribed

minimum benefits conditions at a scope and level as may be prescribed – Medical scheme may not by its rules avoid

obligation to pay full costs of treatment even where administered in a private institution.

NATIONAL TREASURY AND ANOTHER v KUBUKELI [2016] 1 ALL SA 30 (SCA)

Constitutional law – Investigation into irregularities in executive mayor’s office – Conducting of investigation and issuing

of report without participation of person mentioned in report – Whether conduct of investigation team was rationally

related to the purpose for which its power was given – Purpose for which the power was given was not to investigate the

conduct of any particular person and to make final findings in respect thereof, and the request that the respondent and

others attend interviews, did not constitute recognition of a right to be heard, but was intended to assist the National

Treasury to achieve its purpose.

PREMIER FOODS (PTY) LTD v MANOIM NO AND OTHERS [2016] 1 ALL SA 40 (SCA)

Competition law – Referral of complaint to Competition Tribunal by Competition Commission – Cartel activity – Leniency

to cartel member which had approached Commission in terms of latter’s corporate leniency policy – Entitlement of

Tribunal to make order declaring such member’s conduct to be a prohibited practice, and to issue a notice in terms of

section 65(6)(b) of the Competition Act 89 of 1998 – Where member was excluded from complaint referral by

Commission, Tribunal not having power to make declaration in question.

RANDBURG MANAGEMENT DISTRICT v WEST DUNES PROPERTIES 141 (PTY) LTD AND ANOTHER [2016] 1

ALL SA 59 (SCA)

Administrative law – Local government – City improvement district – Establishment in terms of Gauteng City

Improvement Districts Act 12 of 1997 – Municipal council may not delegate authority to approve a city improvement

district to mayoral committee in terms of section 59(2) of the Local Government: Municipal Systems Act 32 of 2000 read

with section 160(2)(c) of the Constitution of the Republic of South Africa, 1996 – Levies imposed by a city improvement

district not validly formed, not recoverable.

SOUTH AFRICAN DENTAL ASSOCIATION NPC v MINISTER OF HEALTH AND OTHERS [2016] 1 ALL SA 73 (SCA)

Medical Professions and practice – Establishment of new health profession in terms of the Health Professions Act 56 of

1974 – Recognition of dental assistants as professionals – Appeal against dismissal of review application – Review time-

barred in terms of section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 in respect of most of the

regulations – Challenge in respect of remaining regulations defining scope of the profession as contemplated in section

33 of the Health Professions Act rejected.

CITY OF CAPE TOWN v SOUTH AFRICAN NATIONAL ROADS AGENCY LTD AND OTHERS [2016] 1 ALL SA 99

(WCC)

Transport and roads – Declaration of toll roads – Levying of toll by the South African National Roads Agency – Section

27 of the South African National Roads Agency Limited and National Roads Act 7 of 1998 – Approval by Minister and

decision of SANRAL to declare the portions of roads as toll roads challenged on review – Court remitting to SANRAL the

proposals to declare the sections of the roads as toll roads for further consideration in accordance with the findings set

out in the judgment, subject to a direction that, should it be decided to proceed with the project, the process provided by

section 27(4) of the SANRAL Act to be undertaken afresh, ab initio, in proper compliance with the prescripts of the Act

and the requirements of just administrative action.

Transport and roads – Declaration of toll roads – Review application – Delay in launching review application – Sections

7(1) and 9 of the Promotion of Administrative Justice Act 3 of 2000 – Discretion of court – How discretion to be exercised

– Applicable principles.

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HANNA v BASSON AND OTHERS [2016] 1 ALL SA 201 (GJ)

Contract – Claim for specific performance – Payment in lieu of performance – In accordance with the maxim lex non

cogit ad impossibilia, specific performance will never be ordered if compliance with the order would be impossible –

Plaintiff was held to be entitled to payment of a sum of money in lieu of performance in forma specifica in an amount that

constituted the difference between the objective market value of one-third of the membership interest in the third

respondent, less the original contract price – after deducting the instalments that were paid by him.

LIFMAN AND OTHERS v COMMISSIONER FOR THE SOUTH AFRICAN REVENUE SERVICE AND OTHERS [2016]

1 ALL SA 225 (WCC)

Tax – Tax liability – Default judgment against taxpayers – Challenge to – Section 172 of the Tax Administration Act 28 of

2011 – Application for urgent interim interdict – Requirements – A prima facie right, the balance of convenience, any

irreparable harm and that there was no alternative remedy, other than the interdict.

TLOUAMMA AND OTHERS v MBETE, SPEAKER OF THE NATIONAL ASSEMBLY OF THE PARLIAMENT OF THE

REPUBLIC OF SOUTH AFRICA AND ANOTHER [2016] 1 ALL SA 235 (WCC)

Constitutional law – National Assembly – Speaker – Application for removal from office – Court held that being a fit and

proper person is not a constitutional condition precedent to becoming, or holding office as, Speaker – Absent such

prerequisite in law, the question of the Speaker’s fitness and propriety did not present a dispute capable of resolution

through the application of the law.

Constitutional law – National Assembly – Speaker – Discretion of – Decision made by the Speaker with respect to the

tabling of the vote of no confidence – Court was not mandated to prescribe to the National Assembly how to conduct its

voting procedures – Where the court to interfere in that decision it would be tantamount to an intrusion on the doctrine of

separation of powers.

ZF v S [2016] 1 ALL SA 296 (KZP)

Criminal law – Rape – Appeal against conviction and sentence – Use of an intermediary whilst the complainant gave

evidence – Section 170A of the Criminal Procedure Act 51 of 1977 – Whether the use of the intermediary amounted to

an irregularity and resulted in the evidence of the complainant being inadmissible and if it did, whether the balance of the

evidence could sustain any of the convictions – Court found no reason why the use of an intermediary in the present

matter resulted in the evidence given by the complainant being rendered inadmissible.

Source: www.Legalbrief.co.za

BUTTERWORTS CONSTITUTIONAL LAW REPORTS – JANUARY 2016

DE LANGE v PRESIDING BISHOP OF THE METHODIST CHURCH OF SOUTHERN AFRICA FOR THE TIME BEING

AND ANOTHER 2016 (1) BCLR 1 (CC)

Arbitration – arbitration agreement – binding effect of arbitration agreement and power of court in relation thereto –

section 3 of the Arbitration Act 42 of 1965 – court’s power to set aside arbitration agreement on good cause shown –

section 3(2) – arbitration arising from church disciplinary proceedings – Methodist minister announcing intention to enter

into same-sex marriage – Church disciplinary tribunals discontinuing minister’s ministry – continuing dispute then

referred to arbitration as prescribed by church’s laws – minister subsequently seeking setting aside of arbitration

agreement – no good cause shown to set aside arbitration agreement – dispute situated in a religious community and

raising issues of the interpretation of religious doctrine – doctrine of entanglement requiring that courts should not

become involved in religious doctrinal issues, and should be reluctant to interfere with religious doctrinal disputes –

arbitration the most appropriate avenue for resolution of the dispute.

Arbitration – arbitration agreement – binding effect of arbitration agreement and power of court in relation thereto –

section 3 of the Arbitration Act 42 of 1965 – court’s power to set aside arbitration agreement on good cause shown –

section 3(2) – court’s discretion to set aside an existing arbitration agreement must be exercised only where a

persuasive case has been made out – assessment of whether good cause exists includes an enquiry into whether the

arbitration agreement, if implemented, would unjustifiably diminish or limit protections afforded by the Constitution – in

the absence of an infringement of constitutional norms, courts will hesitate to set aside an arbitration agreement that is

untainted by misconduct or irregularity unless a truly compelling reason exists.

Church – disciplinary proceedings – Methodist minister announcing intention to enter into same-sex marriage – Church

disciplinary tribunals discontinuing minister’s ministry – continuing dispute then referred to arbitration as prescribed by

church’s laws – minister subsequently seeking setting aside of arbitration agreement – no good cause shown to set

aside arbitration agreement – dispute situated in a religious community and raising issues of the interpretation of


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religious doctrine – doctrine of entanglement requiring that courts should not become involved in religious doctrinal

issues, and should be reluctant to interfere with religious doctrinal disputes – arbitration the most appropriate avenue for

resolution of the dispute.

MIGHTY SOLUTIONS CC T/A ORLANDO SERVICE STATION v ENGEN PETROLEUM LTD AND ANOTHER 2016

(1) BCLR 28 (CC)

Common law – development of – application and development of the common law in accordance with the spirit, purport

and objects of the fundamental rights provisions – section 39(2) of the Constitution – circumstances in which a court

permitted or obliged to develop the common law – process to be followed.

Landlord and tenant – lease – termination of – eviction – commercial eviction – lessee has no right in law to question the

right of a lessor to occupy a property – such common law rule not offending the spirit, purport and objects of the Bill of

Rights, or the values of the RSA’s constitutional democracy – common law position in this regard not calling for

development.

CITY OF CAPE TOWN v SOUTH AFRICAN NATIONAL ROADS AGENCY LTD AND OTHERS 2016 (1) BCLR 49

(WCC)

Review – delay – delay in launching review application – sections 7(1) and 9 of the Promotion of Administrative Justice

Act 3 of 2000 – discretion of court – how discretion to be exercised – applicable principles.

Road – toll road – levying of toll by the South African National Roads Agency – declaration of a portion of a national road

to be a toll road – section 27 of the South African National Roads Agency Limited and National Roads Act 7 of 1998 –

approval by Minister for the declaration of a toll road – section 27(4) of Act 7 of 1998 – proposed N1-N2 Winelands Toll

Highway – approval by Minister and decision of SANRAL to declare the portions of roads as toll roads challenged on

review – provisions of Act 7 of 1998 ignored or misapplied in material respects – approval by Minister and decision of

SANRAL set aside – Court remitting to SANRAL the proposals to declare the sections of the roads as toll roads for

further consideration in accordance with the findings set out in the judgment, subject to a direction that, should it be

decided to proceed with the project, the process provided by section 27(4) of the SANRAL Act to be undertaken afresh,

ab initio, in proper compliance with the prescripts of the Act and the requirements of just administrative action.

Separation of powers – doctrine of – balance of power implied in the principle of separation of powers – need for each

arm of government to respect the powers of the others and not to overreach its own – constraints on judicial review of

decisions that resort exclusively within the functional domain of the executive – discussed in context of review of

approval by Minister and decision of SANRAL to declare the portions of roads as toll roads.

Source: www.legalbrief.co.za

INDUSTRIAL LAW JOURNALS – JANUARY 2016

TRANSFER OF BUSINESS AS GOING CONCERN

In Atlas Packaging (Pty) Ltd v Palierakis: In re Palierakis v Atlas Carton & Litho CC (in liquidation) & others (at 109)

the Labour Appeal Court confirmed that, in the case of the transfer of an insolvent business, s 197A(1)(b) of the LRA

1995 only applies if there has been a genuine scheme of arrangement or compromise to avoid the winding-up of the

business.

In Maluti-A-Phofung Local Municipality v Rural Maintenance (Pty) Ltd & another (at 128) the Labour Appeal Court

found that, where a transfer takes place as a result of official conduct that may be ultra vires, the consequences of the

transfer remain until the impugned conduct is properly set aside. It also found that, on an examination of the totality of

the business operated by the transferor, no transfer as a going concern had occurred because the transferee could not

operate the same business without significant additional investment.

SEXUAL HARASSMENT

The Labour Appeal Court has found that an older, male employee’s inappropriate sexual advance to a younger, female

contractor outside the workplace constituted sexual harassment. Underlying this unwelcome advance lay a power

differential that favoured the employee due to both his age and gender, and the mere fact that his conduct was not

physical, that it occurred during a single incident, that it was not persisted in, and that it took place outside the workplace

did not negate the fact that it constituted sexual harassment. The Constitution afforded the female contractor, and other

women, the protection to engage constructively and on an equal basis in the workplace without interference upon their

dignity and integrity (Campbell Scientific Africa (Pty) Ltd v Simmers & others at 116).


7

In Dheaneshwer and Tri Media (at 272) a CCMA commissioner found that, where a newly employed young woman had

been sent sexually suggestive and inappropriate text messages by a senior manager, this has rendered her continued

employment intolerable. She had been constructively dismissed and was entitled to compensation.

COLLECTIVE AGREEMENTS

The Labour Court was of the view that a bargaining council collective agreement governed by ss 31 and 32 of the LRA

1995 is an agreement of a special type, and it cannot ‘morph’ into a s 23 collective agreement when it is found to be

non-compliant with the bargaining council’s constitution (City of Cape Town v Independent Municipal & Allied Trade

Union & others at 147).

STRIKES, LOCK-OUTS AND PICKETS

The Labour Court was satisfied in National Union of Metalworkers of SA on behalf of Members v Videx Wire

Products (Pty) Ltd & others (at 171) that the union’s demand relating to productivity bargaining amounted to a demand

for higher wages; that such a demand could only be negotiated at national level under the auspices of the bargaining

council; and that consequently the union and its members could not strike over the demand.

In SA Commercial Catering & Allied Workers Union v Sun International (at 215) the Labour Court considered the

exception to the prohibition on the use of replacement labour by an employer which initiates a lock-out. In contrast to an

earlier decision of the Labour Court, the court interpreted the words ‘in response to a strike’ in s 76(1)(b) of the LRA

1995 to mean that an employer’s statutory right to hire replacement labour is restricted to the period during which a

protected strike pertains and does not continue after the strike has ceased.

In Verulam Sawmills (Pty) Ltd v Association of Mineworkers & Construction Union & others (at 246) the Labour

Court had to determine costs after an interdict had been granted compelling the union and its members to comply with a

picketing rules agreement and interdicting the union’s members from engaging in unlawful and violent conduct during

the course of a protected strike. The court found that the union was obliged to take all reasonable steps to prevent

violent conduct and ensure compliance with the picketing rules agreement. As it had failed to do so, the court granted a

punitive costs order against the union.

REGISTAR OF LABOUR RELATIONS — REVOCATION OF DESIGNATION

Following the revocation of his designation as Registrar of Labour Relations by the Minister of Labour, Mr Crouse

approached the Labour Court to review and set aside her decision. It found, inter alia, that the minister’s decision

constituted administrative action and was subject to review under the Promotion of Administrative Justice Act 3 of 2000;

alternatively, that the minister’s decision was subject to review on the principles of legality. It found further that the

minister had ignored materially relevant facts and as a consequence her decision was unreasonable, alternatively

irrational; and procedurally unfair. The impugned decision was set aside and Mr Crouse was reinstated in his position as

Registrar of Labour Relations (Public Servants Association of SA & another v Minister of Labour & another at 185).

BARGAINING COUNCIL — RECOVERY OF COSTS OF ARBITRATION

The Labour Court has found that, when the SALGBC seeks to recover costs of arbitration proceedings between two

litigating parties to the council, it can only do so if a costs award has been made in its favour by an arbitrator. It is not

appropriate for the SALGBC to rely on s 33A of the LRA 1995 to enforce costs awards — it must rely on the execution

provisions of its main agreement, alternatively s 143 of the LRA to do so (SA Local Government Bargaining Council v

Ally NO & another at 223).

RESIDUAL UNFAIR LABOUR PRACTICE — PROMOTION

In KwaZulu-Natal Department of Transport v Hoosen & others (at 156) the Labour Court found that, where a public

service employee is permitted to remain in an upgraded post with a higher salary and rank designation when returning

from deployment to another unit, this constitutes a promotion. In this matter the promotion of an employee who did not

meet the minimum qualifications for the post was unfair as it impeded the career prospects of his colleagues who were

wrongly blocked from ascending to that post.

UNFAIR DISCRIMINATION — ARBITRARY GROUND

The employer offered a provident fund, which included savings, retirement, funeral and disability schemes, to all

employees who had completed five years’ service. Certain employees who had less than five years’ service contended

that this conduct was arbitrary and constituted unfair discrimination in terms of s 6 of the Employment Equity Act 55 of

1998. A CCMA commissioner agreed with the employees, finding that there was no objective basis for the cut-off period

of five years. The differentiation was arbitrary and lacking in logic and constituted unfair discrimination (Ndlela & others

and Philani Mega Spar at 277).

8

DISMISSAL — COMMENTS ON SOCIAL MEDIA

An employee was dismissed for making offensive comments on Facebook regarding her pending retrenchment. A

bargaining council arbitrator found that, in circumstances where the employee was emotional distressed, unprepared

and overwhelmed by the announcement of her potential retrenchment and where she regretted making the comment

and removed the post the next day, the making of the post on Facebook did not constitute serious misconduct justifying

dismissal (Robertson and Value Logistics at 285).

PROTECTED DISCLOSURE

In Nxumalo v Minister of Correctional Services & others (at 177) the Labour Court refused to grant an urgent

interdict to stop disciplinary proceedings against the employee on the grounds that he had made a protected disclosure.

The court was satisfied that the transcript relied on by the employee did not contain information that disclosed or tended

to disclose forms of criminal or other misconduct, and was therefore not the subject of protection under the Protected

Disclosures Act 26 of 2000.

REINSTATEMENT

Where a bargaining council arbitrator had refused to award reinstatement for the substantively unfair dismissal of two

employees merely because of the unexplained lengthy delay in finalising the matter, the Labour Court on review

confirmed that a lengthy period of delay is not a bar to reinstatement but may affect its practicability. It was satisfied that

in this matter there was no evidence of the impracticability of reinstatement and that the arbitrator ought to have ordered

the employer to reinstate the employees (Zuma & another v Public Health & Social Development Sectoral

Bargaining Council & others at 257).

PRACTICE AND PROCEDURE

The Labour Court found, in Chauke v Safety & Security Sectoral Bargaining Council & others (at 139), that it is not

permissible to raise an exception in motion proceedings before the court.

In Makuse v Commission for Conciliation, Mediation & Arbitration & others (at 163) the Labour Court confirmed

that, where there has been a flagrant failure to comply with prescribed time-limits and the applicant for condonation has

given no compelling explanation for the egregious delay, condonation may be refused without considering the prospects

of success.

Source: https://jutalaw.co.za/newsletter/industrial-law-journal-preview/

PROCLAMATIONS AND NOTICES

DEPARTMENT OF

AGRICULTURE,

FORESTRY AND

FISHERIES

Invitation to submit applications for DAFF quota import

permits for frozen meat of the species Gallus

domesticus, cut in pieces with bone in, and imported

from or originating in the United States of America

published

GG 39643 (02.02.16)

MAGISTRATES' COURTS

ACT 32 OF 1944

Variation of notice in respect of certain regional divisions

published in GN 3 in GG 39603 of 18 January 2016

published with effect from 25 January 2016

GG 39653 (03.02.16)

MEDICINES AND RELATED

SUBSTANCES CONTROL

ACT 101 OF 1965

Regulations relating to the Transparent Pricing System

for Medicines and Scheduled Substances: Dispensing

fee for pharmacists published under GN R1102 in GG

28214 of 11 November 2005 amended

GG 39658 (05.02.16)

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 39657 (05.02.16)

PETROLEUM PRODUCTS

ACT 120 OF 1977

Regulations in respect of the single maximum national

retail price for illuminating paraffin published with effect

from 3 February 2016

GG 39645 (02.02.16)

9

Regulations in respect of the maximum retail price of

Liquefied Petroleum Gas supplied to residential

customers published with effect from 3 February 2016

Amendment of regulations in respect of petroleum products published with effect from 3 February 2016

GG 39645 (02.02.16)

GG 39645 (02.02.16)

SMALL CLAIMS COURTS

ACT 61 OF 1984

Establishment of small claims courts for the areas of

Steynsburg and Fochville published

Establishment of small claims courts for the areas of

Parys and Vredefort and withdrawal of GN 1068 in GG

11904 of 2 June 1989 published

GG 39660 (05.02.16)

GG 39660 (05.02.16)

BANKS ACT 94 OF 1990

Authorisation for ICICI Bank Limited to conduct the

business of a bank by means of a branch in the Republic

of South Africa published with effect from 29 September

2015

Withdrawal of consent for the Royal Bank of Scotland

PLC to maintain a representative office within the

Republic of South Africa published with effect from 31

July 2015

Withdrawal of consent for UBS AG to maintain a

representative office within the Republic of South Africa

published with effect from 29 January 2016

Consent for CaixaBank, S.A. to establish a

representative office in the Republic of South Africa but

not to conduct the business of a bank published with

effect from 15 December 2015

GG 39657 (05.02.16)

GG 39657 (05.02.16)

GG 39657 (05.02.16)

GG 39657 (05.02.16)

MINE HEALTH AND

SAFETY ACT 29 OF 1996

Guideline for the compilation of a Mandatory Code of

Practice for an Occupational Health Programme

(Occupational Hygiene and Medical Surveillance) on

Thermal Stress published with effect from 1 July 2016


Practice on the Minimum Standards of Fitness to

Perform Work on a Mine published with effect from 30

June 2016


Practice on the Right to Refuse Dangerous Work and

Leave a Dangerous Working Place published with effect

from 1 July 2016

Guideline for the compilation of a Mandatory Code of Practice for the Management of Medical Incapacity due to Ill-Health and Injury published with effect from 31 May 2016

GG 39656 (05.02.16)

GG 39656 (05.02.16)

GG 39656 (05.02.16)

GG 39656 (05.02.16)

BASIC CONDITIONS OF

EMPLOYMENT ACT 75 OF

1997

Sectoral Determination 13: Farm Worker Sector, South

Africa amended with effect from 1 March 2016

Sectoral determination 12: Forestry Worker Sector,

South Africa amended with effect from 1 March 2016

GG 39648 (03.02.16)

GG 39648 (03.02.16)

10

NATIONAL WATER ACT 36

OF 1998

Proposed construction of the Cwabeni Off-Channel

Storage Dam and the environmental impact assessment

relating thereto published for comment

Proposal for the establishment of the Berg-Olifants

Catchment Management Agency published for comment

GG 39649 (03.02.16)

GG 39657 (05.02.16)

ARCHITECTURAL

PROFESSION ACT 44 OF

2000

South African Council for the Architectural Profession

(SACAP): Interim Rule on the Identification of Work for

the Architectural Profession published

GG 39651 (03.02.16)

NATIONAL

ENVIRONMENTAL

MANAGEMENT:

PROTECTED AREAS ACT

57 OF 2003

Draft notices declaring the following Marine Protected

Areas under s. 22A of the Act published for comment:

• Port Elizabeth Corals

• Benguela Bank

• iSimangaliso

• Agulhas Front

• Browns Bank Corals

• Childs Bank

• Browns Bank Complex

• Agulhas Bank Complex

• Aliwal Shoal

• uThukela Banks

• Amathole Offshore

• Agulhas Muds

• Browns Bank Corals

• Addo Elephant

• Southwest Indian Seamount

• Robben Island

• Southeast Atlantic Seamount

• Namaqua Fossil Forest

• Namaqua National Park

• Protea Banks

• Orange Shelf Edge

• Benguela Muds

• Cape Canyon

Draft Namaqua Fossil Forest Marine Protected Area

Regulations published for comment

Draft Protea Banks Marine Protected Area Regulations

published for comment

Draft Port Elizabeth Corals Marine Protected Area


Draft Agulhas Bank Complex Marine Protected Area


Draft uThukela Banks Marine Protected Area


Draft Orange Shelf Edge Marine Protected Area


Draft Benguela Bank Marine Protected Area Regulations


Draft Aliwal Shoal Marine Protected Area Regulations


GG 39646 (03.02.16)

11

Draft Agulhas Muds Marine Protected Area Regulations


Draft Amathole Offshore Marine Protected Area


Draft Addo Elephant Marine Protected Area Regulations


Draft Browns Bank Corals Marine Protected Area


Draft iSimangaliso Marine Protected Area Regulations


Draft Robben Island Marine Protected Area Regulations


Draft Southwest Indian Seamount Marine Protected Area


Draft Southeast Atlantic Seamount Marine Protected

Area Regulations published for comment

Draft Namaqua National Park Marine Protected Area


Draft Benguela Muds Marine Protected Area Regulations


Draft Browns Bank Complex Marine Protected Area


Draft Agulhas Front Marine Protected Area Regulations


Draft Cape Canyon Marine Protected Area Regulations


AUDITING PROFESSION

ACT 26 OF 2005

Independent Regulatory Board for Auditors (IRBA):

Notice of proposed amendments to the Code of

Professional Conduct for Registered Auditors published

for comment

GG 39657 (05.02.16)

NATIONAL CREDIT ACT 34

OF 2005

Amendments to the Regulations for matters relating to

the functions of the Tribunal and Rules for the conduct of

matters before the National Consumer Tribunal, 2007

published

Draft determination of the threshold for credit provider

registration, 2015 published for comment

GG 39663 (04.02.16)

GG 39663 (04.02.16)

ELECTRONIC

COMMUNICATIONS ACT 36

OF 2005

Digital Migration Regulations, 2012: Declaration of the

commencement of the dual illumination period published

GG 39642 (01.02.16)

NATIONAL

ENVIRONMENTAL

Date of commencement of ss. 65, 66, 95, 96 and 98: 5

February 2016

GG 39657 (05.02.16)

12

MANAGEMENT:

INTEGRATED COASTAL

MANAGEMENT ACT 24 OF

2008

Repeals the Sea-shore Act 21 of 1935 (to the extent that

it has not been assigned to provinces) and the Dumping

at Sea Control Act 73 of 1980

TAX ADMINISTRATION

ACT 28 OF 2011

Public notice listing arrangements for purposes of ss. 35 (2) and 36 (4) of the Act published and all previous notices issued under ss. 35 (2) and 36 (4) of the Act replaced

GG 39650 (03.02.16)

PROVINCIAL LEGISLATION

Eastern Cape

SEA-SHORE ACT 21 OF

1935

Proposed lease of three sites situated below the high-water mark of the Gonubie River, Gonubie, Eastern Cape for the construction of a slipway and two floating jetties published for comment

PG 3583 (01.02.16)

NATIONAL

ENVIRONMENTAL

MANAGEMENT:

INTEGRATED COASTAL

MANAGEMENT ACT 24 OF

2008

Notice of intention to adopt: The coastal setback lines and the Nahoon Estuarine Management Plan published for comment

PG 3584 (01.02.16)

Free State

FREE STATE

TRADITIONAL

LEADERSHIP AND

GOVERNANCE ACT 8 OF

2005

Recognition of Reconstituted Traditional Councils and

Proclamation of Names of Selected and Elected

Members of Traditional Councils Regulations, 2016

published

PG 142 (01.02.16)

LOCAL GOVERNMENT:

MUNICIPAL SYSTEMS ACT

32 OF 2000

Nala Local Municipality and Tswelopele Local

Municipality: By-law on Municipal Land Use Planning

published with effect from a date that the Spatial

Planning and Land Use Management Act 16 of 2013[1]

comes into operation in the municipal area of the

Municipality

PG 140 (29.01.16)

Kwazulu Natal

LOCAL GOVERNMENT:

MUNICIPAL PROPERTY

RATES ACT 6 OF 2004

The Big 5 False Bay Local Municipality: Resolution

levying property rates for the financial year 1 July 2015

to 30 June 2016 published with effect from 1 July 2015

PG 1598 (04.02.16)

KWAZULU-NATAL

TRADITIONAL

LEADERSHIP AND

GOVERNANCE ACT 5 OF

2005

Recognition of various amaKhosi and iBambabukhosi published with effect from various dates

PG 1599 (05.02.16)

Limpopo

NATIONAL ROAD TRAFFIC

ACT 93 OF 1996

Registration of Seshego Vehicle Testing Station as

Grade 'B' Vehicle Testing Station (Roadworthy Centre)

published

PG 2668 (05.02.16)

13

North West

CONSTITUTION OF THE

REPUBLIC OF SOUTH

AFRICA, 1996 AND LOCAL

GOVERNMENT:

MUNICIPAL SYSTEMS ACT

32 OF 2000

Madibeng Local Municipality: Water and Sanitation By-

law 1 of 2015 published

PG 7602 (02.02.16)

DRAFT NORTH WEST

BIODIVERSITY ACT, 2015

TOGETHER WITH THE

MEMORANDUM ON THE

OBJECTS OF THE BILL

Published for comment and previous Bill as published

under PN 18 in PG 7603 of 3 February 2016 withdrawn

PG 7606 (05.02.16)

BOPHUTHATSWANA

NATURE CONSERVATION

ACT 3 OF 1973; CAPE

NATURE AND

ENVIRONMENTAL

CONSERVATION

ORDINANCE 19 OF 1974

AND NATURE

CONSERVATION

ORDINANCE 12 OF 1983

North West Hunting Regulations, 2016 published with

effect from a date to be determined by the MEC and

previous Regulations as published under PN 19 in PG

7603 of 3 February 2016 withdrawn

PG 7607 (05.02.16)

SEMINARS

Contact the Knowledge Centre for more information

NAME OF SEMINAR DATES PRESENTER

CONSUMER PROTECTION

ACT WORKSHOP

Johannesburg: 22 February 2016

Durban: 26 February 2016

Bloemfontein: 01 March 2016

Pretoria: 04 March 2016

Port Elizabeth: 08 March 2016

East London: 11 March 2016

Cape Town: 14 March 2016

Trudie Broekman

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

5 DAY DIVORCE

MEDIATION WORKSHOP

Durban: 14 – 18 March 2016

Mahomed Essack and Sue Pillay

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

14

Documents

Bulletin 6 of 2013Bulletin 5 of 2016 Period: 29 January