IMPORTANT NEWS

NEW MINIMUM WAGE FOR DOMESTIC WORKERS

South Africa’s Domestic Worker Sector is to have a new upwardly adjusted minimum wage with effect from 1 December

2016. The latest relief ahead of the festive season will be applicable until 30 November 2017. The minimum wage

adjustment is in line with the Basic Conditions of Employment Act which is regulated through the Sectoral Determination.

Domestic Workers are by law classified as vulnerable, hence the Sectoral Determination governing minimum wage nd

conditions of employment.

The new sectoral determination of domestic workers prescribes that the minimum wages for domestic workers who work

more than 27 ordinary hours per week will earn as follows:

Area A (those in major metropolitan areas) will earn R12.42 (R11.44: 2015/2016) hourly rate, R559.09

(R514.82: 2015/2016 ) weekly rate and R2422.54 (R2230.70: 2015/2016) monthly rate.

Area B (those not mentioned in Area A) R11.31 (R10.23: 2015/2016) hourly rate, R508.93 (R460.15:

2015/2016) weekly rate and R2205.17 (R1993.82: 2015/2016) monthly rate.

In terms of Sectoral Determination Area A includes: Bergrivier Local Municipality, Breederivier Local Municipality,

Buffalo City Local Municipality, Cape Agulhas Local, Municipality, Cederberg Local Municipality, City of Cape Town, City

of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality,

Ekurhulen Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan

Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland

Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini

Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local,

Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg

Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local

Municipality, Msunduzi Local Municipality, Mtubatu Local Municipality, Nama Khoi Local Municipality, Nelson Mandela,

Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai

Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality,

Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local

Municipality, Swellendam Local Municipality, Theewaterskloof, Local Municipality, Umdoni Local Municipality,

uMhlathuze Local Municipality and Witzenberg Local Municipality.

Source: Legalbrief, 09 November 2016 & http://www.gov.za/speeches/labour-increase-domestic-workers-minimum-wage-december-7-

nov-2016-0000

NEW MINIMUM WAGE FOR CONTRACT CLEANING SECTOR

South Africa’s contract cleaning employees’ minimum wages have been adjusted upward with effect from 1 December

2016. In terms of the Sectoral Determination that prescribes minimum wages in the sector - workers in Area A:

Metropolitan Councils that include City of Cape Town, Ekurhuleni, City of Johannesburg, City of Tshwane and Nelson

Mandela Bay; and also Local Councils of Emfuleni, Merafong, Mogale City, Metsimaholo, Randfontein, Stellenbosch,

Westonaria – will earn a minimum of R19, 38 (R18, 01: 2015/2016) per hour.

In Area B – the rates applicable are those as prescribed by the Kwa-Zulu Natal Contract Cleaning Bargaining Council.

And in the Area C – which includes the rest of South Africa the minimum rate per hour will be R17,66 (2015/2016:

R16,41).

The increases cover the period 1 December 2016 to 30 November 2017.

Source: Legalbrief, 09 November 2016 & http://www.gov.za/speeches/labour-increase-domestic-workers-minimum-wage-december-7-

nov-2016-0000

Bulletin 6 of 2013 Period: 1 February 2013 to 8 February 2013 Bulletin 44 of 2016 Period: 28 October 2016 – 04 November 2016

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REVISED ICT B-BBEE CODES IN FORCE

Revised broad-based black economic empowerment (B-BBEE) codes of good practice for the ICT sector were gazetted

and are immediately effective, reports Pam Saxby for Legalbrief Policy Watch.

Released in draft form during February for comment, the revised codes are aligned to the requirements of the amended

Act and include compliance targets of: 80% of procurement spend from empowering suppliers, half of which should be at

least 51% black owned; and 3% of net profit after tax dedicated to sector-specific supplier development programmes (in

addition to 2% on more general supplier development).

In the absence of statements from Trade and Industry Minister Rob Davies, Telecommunications and Postal Services

Minister Siyabonga Cwele and the B-BBEE ICT Sector Council, it is not apparent to the untrained eye whether the

ownership and control elements in the revised codes reflect more ambitious transformation commitments and

compliance targets than those set out in the 2012 codes. Interestingly, however, the sector will work towards ensuring

that 100% of black people appointed to learnerships, apprenticeships, internships and graduate programmes are

‘absorbed’ either by the entities concerned or the broader economy.

Source: Legalbrief, 08 November 2016

B-BBEE DEAL REGISTRATION THRESHOLD MOOTED

Proposals for the threshold above which major broad-based black economic empowerment (B-BBEE) ownership

transactions should be registered with the B-BBEE Commission were gazetted for comment, along with related

timeframes and documentary requirements, reports Pam Saxby for Legalbrief Policy Watch.

Once in force, they will require all deals equal to or exceeding R100m in combined asset value or annual turnover – and

concluded on or after 24 October 2014 – to be registered. This is noting that the 2013 amendment Act became effective

on that date. In the case of transactions concluded on or after 24 October 2014 but before the threshold becomes law, it

is proposed that the companies concerned would have 30 days in which to register.

Interestingly, the draft regulation makes registration voluntary for deals equal to or exceeding the proposed threshold

and concluded before the Act’s promulgation. Interested and affected parties have 30 days to comment.

Source: Legalbrief, 09 November 2016

PREMIUM RATED SERVICE CODE GAZETTED

A code of conduct for the provision of subscription premium-rated short message, ‘phone and broadcast services was

gazetted and is immediately effective. Released in draft form last December for comment, the new code has implications

for advertising, promoting and delivering contact, dating, adult, chat room and children’s services – requiring agreements

concluded before its promulgation to be aligned with the provisions within six months, notes Pam Saxby for Legalbrief

Policy Watch.

Against that background, the code addresses: price disclosure and increases; network operator and administration fees;

incremental costs; billing frequency; bill payer authorisation; activation messages; service number re-use/masking;

protecting end-user information; location, age and gender restrictions; age verification; child protection obligations;

managing bad debt and fraud; and service provider interconnection/interoperability.

In terms of the new code of conduct, a premium rated service may not: incite violence; cause conflict; promote

dangerous, harmful or unhealthy activities; constitute hate speech; contain defamatory statements; and (except in the

case of adult services) use strong language. With that and other compliance-related issues in mind, the new code spells

out the necessary complaints procedure – providing for a name-and-shame penalty, as well as a fine not exceeding

R1.5m.

Source: Legalbrief, 07 November 2016

RECOMMENDED READING

The need to plead when guilt is a given - 'When it is time to come clean?', by Johann Scheepers, SA Labour Guide,

www.polity.org.za

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Not all arbitrations are created equal, by Mohsina Chenia and Craig Thomas, Cliffe Dekker Hofmeyr,

www.polity.org.za

RECENT CONSTITUTIONAL COURT JUDGMENTS TOP COURT RULING CONDEMNS WORKPLACE RACISM

SOUTH AFRICAN REVENUE SERVICE v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

AND OTHERS (CCT19/16) [2016] ZACC 38 (8 NOVEMBER 2016)

A former SARS employee‚ fired in 2007 by then SARS Commissioner Pravin Gordhan for using racist and derogatory

language‚ has had the reversal of his dismissal overturned by the Constitutional Court. In what media reports describe

as a 'scathing' judgment handed down by Chief Justice Mogoeng Mogoeng‚ Jacobus Kruger was labelled a racist for

using the k-word at work in August 2007.

The court described use of the k-word as egregious, derogatory and humiliating, according to a Fin24 report.

‘Revelations of our shameful and atrocious past, made to the Truth and Reconciliation Commission, were so shocking as

to induce a strong sense of revulsion against racism in every sensible South African,’ Mogoeng wrote. ‘But to still have

some white South Africans address their African compatriots as monkeys, baboons or kaffirs and impugn their

intellectual and leadership capabilities as inherently inferior by reason only of skin colour, suggests the opposite. And

does in fact sound a very rude awakening call to all of us.’ He said the k-word was a ‘more assertive insinuation that

African people are inherently foolish and incapable of providing any leadership worthy of submitting to’. He added: ‘It

bears testimony to the fact that there are many bridges yet to be crossed in our journey from crude and legalised racism

to a new order where social cohesion, equality and the effortless observance of the right to dignity is a practical real ity.’

The court held that the use of that k-word amounts to hate speech and that courts are obliged to act fairly, but firmly

against those who use it, to contribute to the eradication of racism in line with the foundational values of our Constitution.

It ordered that Kruger's reinstatement be reviewed and set aside‚ but ordered SARS to pay Kruger six months

compensation because the organisation had mishandled the dismissal.

The Chief Justice also noted that institutions across the board were failing to uphold their constitutional obligations to

eradicate racism. ‘Are we perhaps too soft on racism and the use of the k-word in particular? My observation is that very

serious racial incidents hardly ever trigger a fittingly firm and sustained disapproving response,’ he said, according to a

report in The Mercury. He also chastised Kruger for claiming he was forced to admit his racism. ‘He was disbelieved by

the (CCMA) arbitrator. The arbitrator was dealing with someone who tried to conceal his racist remarks and lie about

them,’ said Mogoeng. He said the CCMA’s decision to reinstate Kruger was the equivalent of bringing in a ‘ticking time-

bomb’, where his African fellow employees knew he regarded them as ‘lazy, incapable of leading him and intellectually

inferior to him solely because of their race’. While he acknowledged the correct CCMA ruling that the dismissal was

unfair, Mogoeng said a reinstatement was the least rational remedy. The arbitrator should also have factored into her

decision that SARS, as an organ of state, was required to eradicate racism in the workplace and society.

Source: Legalbrief, 09 November 2016

FIVE-YEAR ENATIS DEAL EXTENSION UNLAWFUL

DEPARTMENT OF TRANSPORT AND OTHERS v TASIMA (PTY) LIMITED (CCT5/16) [2016] ZACC 39 (9

NOVEMBER 2016)

The Constitutional Court found that a five-year extension won by a private company, Tasima, to run the national traffic

information system in 2010 was unlawful, ordering the system be handed over to the Road Traffic Management

Corporation within 30 days, notes a BusinessLIVE report. The court concluded that the contract violated the

Constitution, the Public Finance Management Act, and Treasury regulations. The report notes the long-running dispute

over the Electronic National Traffic Information System (eNatis) had also sucked in former Transport Minister Sbu

Ndebele, who was recently recalled from Australia, where he was SA’s ambassador. Ndebele is accused of receiving

more than R10m in bribes from Tasima and is due to appear in the Commercial Crimes Court in December. The

department had approached the court after years of legal battles with Tasima. The source of tension was a five-year

contract extension granted to Tasima in 2010, which the department contends it had contested. Also at play were the

department’s repeated failures to pay Tasima, despite a court order to do so, as well as numerous interdicts won by the

company seeking to compel payment.

The Constitutional Court wrote four judgments. In the majority judgment written by Justice Sisi Khampepe‚ where four

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other judges concurred‚ she said the extension of the contract in 2010 stood to be set aside. The judgment also upheld

the principle that court orders stood until they were set aside. The court upheld contempt of court rulings brought against

departmental officials. 'The courts find that the department’s reactive challenge should succeed. Despite this, the High

Court orders and orders of contempt from the SCA should be upheld,' she said, according to a TimesLIVE report.

‘Nevertheless‚ in the period between the granting of the extension and its setting aside (May 2010 to August 2015)‚ the

applicants were constitutionally obliged to comply with the various court orders granted‚’ Khampepe noted. She said in

this case‚ not only was the extension of the contract between the department and Tasima unlawful‚ but it had now

expired. ‘It can only be in the best interests of the public that the hand-over of the services and the eNaTIS to the

corporation happens as expeditiously as possible.’

Source: Legalbrief, 10 November 2016

CONCOURT DRUG RULE A ‘SETBACK’

A Constitutional Court judgment that declares it illegal for police to randomly search people and properties for drugs

without a warrant is ‘concerning, disappointing and altering drug policing’, according to Khayelitsha CPF chairperson

Eric Kweleta. A Cape Times report notes before the judgment was delivered, police officers had the right to search for

drugs freely. Now they need to apply for a warrant before searches. Kweleta said the judgment ‘does not sit well with us

because it is not assisting in apprehending suspects’. He added it was ‘an administrative nightmare and a serious

setback’.

Source: Legalbrief, 07 November 2016

RECENT SUPREME COURT OF APPEAL JUDGMENTS GROUND-BREAKING RULING ON PENSIONS IN DIVORCE

NDABA v NDABA (600/2015) [2016] ZASCA 162 (4 NOVEMBER 2016)

In what a report in The Mercury calls a ground-breaking judgment for couples married in community of property but

divorced, the SCA has ruled that pensions fall into their joint estate and form part of half of the assets each party would

receive. Pretoria divorce lawyer Selwyn Shapiro said that prior to this judgment, there were conflicting judgments as to

whether or not a pension interest automatically fell into a joint estate if the parties were married in community of

property. ‘The SCA has now clarified this and found that if an order is granted that the joint estate be divided – the so-

called blanket division order – the pension interest of both parties automatically formed part of their joint estate,’ Shapiro

said. The judgment was sparked by the divorce in 2012 of a couple. The High Court ruled in favour of the man and found

that in the absence of a court order by the divorce court declaring the pension interests formed part of the joint estate, it

did not form part of the joint estate. The woman approached the SCA, where three judges agreed that their pensions

should be equally divided. The judges said sight must not be lost of the fact that the parties were married in community

of property. One consequence of such a marriage was that, subject to a few exceptions, the spouses became co-owners

of all interests acquired during marriage. The joint estate in this case must include the pension interests of both parties,

the judges said.

Source: Legalbrief, 08 November 2016

STATE GRANTED LEAVE TO APPEAL PISTORIUS SENTENCE

The state will have to argue in the SCA why it thinks convicted murderer Oscar Pistorius' six-year jail term is lenient,

notes a News24 report. ‘The application for leave to appeal is referred for oral argument in terms of s 17(2)(d) of the

Superior Courts Act 10 of 2013. The parties must be prepared, if called upon to do so, to address the court on the

merits,’ the SCA said in its order. The state has one month to file five additional copies of the application for leave to

appeal. It also has three months to file the record of the High Court proceedings. The report notes in July Pistorius was

sentenced to six years in prison by Judge Thokozile Masipa. In her sentencing, Masipa said while the crime committed

was serious, a long term of imprisonment would not serve justice in this case.

Source: Legalbrief, 07 November 2016

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OTHER JUDGMENTS HISTORICAL MUNICIPAL DEBT RULED UNCONSTITUTIONAL

Municipalities may not hold a property owner liable for a previous owner’s historical municipal debts, the Gauteng High

Court (Pretoria) ruled, notes Business Day. It says the judgment will give relief to home and business owners who have

been saddled with years of historical municipal debt, and who have been refused municipal services until the debt had

been settled. A seller may not transfer a property unless he has a municipal clearance certificate for the last two years of

bills. But older debts – those that arose before the two-year cut-off – became the liability of the new owner. Failure to

pay entitled a municipality to attach and sell the property to satisfy the debt. However, this section of the Local

Government: Municipal Systems Act was declared unconstitutional by the High Court. Judge Dawie Fourie said the

section unjustifiably limited the new owner’s property rights under the Constitution. ‘Why should a municipality be entitled

to visit the sins of a predecessor in title upon innocent third parties,’ he asked. The judgment was the result of five

different court cases. One of them concerned a business premises with a historical debt of more than R12m. In another,

the applicant had been without electricity since December 2013. The judge said new owners had no connection to the

historical debt. New owners ‘were in no position whatsoever’ to control the indebtedness of their predecessors in title –

but municipalities were.

Source: Legalbrief, 08 November 2016

JUDGE SETS PRECEDENT IN FAMILY ADVOCATE CASE

Durban attorney Estelle de Wet has been lambasted by KZN High Court (Durban) Judge Themba Sishi for ‘completely

unacceptable, obstructive conduct’ in her handling of a matter before the Family Advocate’s Office involving a father’s

bid for access to his son. The Mercury reports the ruling – against which the attorney intends to appeal – sets a

precedent in SA, effectively barring attorneys from being present during family advocate interviews. In the case, the

father of a boy (2) sought an order barring De Wet from sitting in as an observer during a court-ordered interview with a

family advocate in his attempt to get more time with his son. He alleged in his application – which was argued before

Sishi earlier this year – that De Wet smirked at him and made him feel uncomfortable. He also alleged she was making

worse an acrimonious relationship with the child’s mother. De Wet denied this, saying she neither liked nor disliked him

and was just doing her job. In his judgment, Sishi noted that the Office of the Family Advocate was established by the

Mediation of Certain Divorce Matters Act and its procedures were fairly unregulated but always had to be in the best

interests of the child. De Wet insisted that her client had a right to representation, that she was not prepared to be in the

same room as the father and would not attend the inquiry unless her wishes were accommodated. Sishi said: ‘These

demands amounted to an obstruction of justice. This conduct not only undermines the integrity of the Office of the

Family Advocate but also undermines the integrity of the court.’

Source: Legalbrief, 07 November 2016

MUNICIPALITY ORDERED TO DEAL WITH ELECTRICITY THIEVES

Buffalo City Metro must act against Nkandla informal settlement dwellers, who have been stealing electricity from a

private farm in Breezydale Road for the past two years. A Daily Dispatch report says this was ordered by the Eastern

Cape High Court (East London) in a victory for farm owner Satish Naire, who has been battling to get the BCM to protect

him from the electricity thieves. Naire claimed the illegal connections caused frequent power cuts on his farm and posed

a danger to people and animals as the fencing was always live due to exposed wires coming into contact with it. Judge

Thembekile Malusi ordered the municipality to do all in its power to stop the residents from stealing electricity from Naire

and to make sure all exposed wires on the farm were removed. The municipality was also ordered to remove electricity

poles and install a new electricity line that would be located inside the farm far away from the reach of the squatter

camp. Malusi also ordered BCM to ensure uninterrupted power supply to the farm.

Source: Legalbrief, 10 November 2016

MAN WHO FLED XENOPHOBIA GETS R4M RAF PAYOUT

A former spaza shop owner who fled SA because of xenophobic violence will get almost R4m from the Road Accident

Fund (RAF) for a crash in 2011 in which he was injured, says a News24 report. After the accident, which occurred near

Rustenburg, Ethiopian Alemanyehu Worku Ali (26) was unable to carry his supplies and his spaza shop was stripped

bare by looters. According to a psychological report, Ali decided to flee to Canada ‘due to his injuries and the

xenophobic violence in SA'. He is currently working in Canada as a caretaker and cleaner. Adams & Adams and Moloto-

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Weiss represented Ali in his claim against the RAF in the Gauteng High Court (Pretoria) where Judge Vivian Tlhapi ruled

the RAF has to pay Ali R3 882 360. The psychologist who interviewed Ali said according to Ali three of his friends were

attacked by locals and only one survived. ‘They hate us,’ he said.

Source: Legalbrief, 10 November 2016

COURT RULES FOR STUDENT WHO LEAPT FROM FIRE

The Western Cape High Court has ruled in favour of Isak Potgieter, a student forced by a raging fire to leap from the

third floor of the Eendrag men’s hostel at the University of Stellebosch in August 2007. The case hinged on the

defendant’s obligation to ensure proper and reasonable measures and procedures were in place, and were

implemented, for the safety of students in its hostels, including in the case of fire, notes Legalbrief. The university had

failed in this regard and its conduct was found to be both negligent and wrongful. Noting the defendant’s counsel urged

her to exercise caution in making the required value judgment because of the potential consequences to other owners of

buildings such as Eendrag in its pre-August 2007 condition, Judge Judith Cloete said she had given this careful

consideration, but said the finding was based on the particular circumstances of this individual case. ‘All cases such as

these are fundamentally fact bound and a finding of wrongfulness will depend on each particular set of proven facts. To

my mind therefore a finding of wrongfulness in this matter will not have the automatic consequence of opening the

floodgates of potential liability for others.’ The university was found to be liable for such damages as might be agreed or

proven.

Source: Legalbrief, 08 November 2016

LAWYER ERRED IN DAMAGES CLAIM

Ravi Perumal’s damages lawsuit against the eThekwini Municipality has hit a stumbling block because the letter of

demand sent by his attorney was ‘too respectful’ and did not warn of an impending legal claim, notes a report in The

Mercury. Perumal was injured in an incident in May 2008 at the Snake Park in Durban. In June 2008, his attorney sent a

letter to the municipality about the incident, and the municipality responded the following month stating that it was not

liable for damages. Perumal then launched legal proceedings against the municipality. However the municipality argued

that the letter had not been in the form of a demand and had merely been a ‘request for assistance’ in light of an injury

that had been sustained. KZN High Court (Durban) Judge Mahendra Chetty, in a recent judgment, agreed with the city

and found the letter had not been in line with the legislative requirements. Chetty said that the letter could not be

construed as a notice to institute legal proceedings and was ‘silent’ on the issue. ‘There is nothing which forewarns the

defendant (the municipality) that should it not pay towards the plantiff’s medical expenses, legal proceedings will be

instituted against it.’

Source: Legalbrief, 09 November 2016

TRANSNET TO PAY DAMAGES TO VICTIM’S MOTHER

The mother of motorcyclist Gareth Brooker (19) – who died when he drove into a stationary train at night at a train

crossing in Louis Trichardt – is to receive R120 000 in damages from Transnet. The Mercury reports Leonie

Labuschagne initially claimed R300 000 in the Gauteng High Court (Pretoria) for the secondary trauma she had suffered

following the death of her son in July 2011. A Transnet investigation and subsequent report found that the crossing at a

busy road was irregular and there were not enough signs warning the public about the danger of trains ahead. The

board of inquiry at the time recommended that the road surface leading to the crossing had to be marked with warnings

and speed humps at least 30m before the actual stop. It was further recommended that the train could only stop in the

nearby station or outside the crossing with the road. More lighting had also been installed since the fatal accident.

Source: Legalbrief, 08 November 2016

SURGEON SUED FOR KNIFE BLADE LEFT IN THROAT

A former estate agent is suing a specialist surgeon for failing to detect a 9cm broken blade of a kitchen knife lodged in

her throat after she was attacked in her home, says a Pretoria News report. It was only after Dorina Ward (65), who lives

in the Western Cape, detected blood in her mouth that the broken blade was discovered. The broken blade was in her

neck for about two weeks before it was removed in an emergency operation. She is claiming the damages in the

Gauteng High Court (Pretoria) from the specialist, Dr Mabudi Costa Bope. However, he has denied negligence and said

he could not be held liable for her ordeal. He said she should have joined the MEC for Health in Gauteng as a party in

the action, as he had no obligation in this instance toward her. He was on call in the emergency unit at the time. He was

not present, but handled her case via the telephone. Ward’s expert said a surgeon with the defendant’s qualifications

should have known that a deep, penetrating wound in the neck was serious and must be examined. It is claimed the

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surgeon simply phoned the staff and when he heard Ward was stable, he discharged her telephonically. The matter was

postponed to a date yet to be determined, as some of the parties have to file their papers.

Source: Legalbrief, 31 October 2016

DOG OWNER CLAIMS TEASING LED TO ATTACK

The father of Eli Barnard – whose face was mauled by a bull terrier which tried to grab a chicken thigh out of his mouth –

is claiming R322 000 in damages from the dog’s owner. A Weekend Argus report says Eli is now six, but he was four

when he was bitten. Marius Barnard told the Gauteng High Court (Pretoria) that Martinus Ras knew his dog was vicious.

Ras had a duty to ensure the dog could not escape from his backyard, where it was usually kept. Ras countered that the

child had teased the dog by waving the chicken thigh in front of it. When the dog wanted to grab it, the child had placed

the meat into his own mouth. ‘It was an error of judgment on the part of the dog,’ Ras told Judge Johan Louw. According

to Ras, his dog was not vicious at all, but was well-behaved and friendly. The court reserved judgment.

Source: Legalbrief, 07 November 2016

MEDICAL STUDENT WHO DOCTORED RESULTS CLEARED IN COURT

A KZN University student who allegedly faked his matric results to get into medical school may continue his studies after

charges against him were withdrawn in the Durban Magistrate’s Court, says a Sunday Tribune report. Rivaaz

Manisunker (24) was cleared after the whistle-blowers did not want to testify because they claimed they were being

intimidated. Magistrate Mondli Nhlangulela took the decision to drop the case, despite Manisunker’s affidavits that he

had doctored his results to secure a highly-contested place at the medical school. The university was not a complainant

in the matter. Manisunker obtained 34% for maths in Grade 12 and his overall average was below the 90% aggregate

required for Indian students. In his doctored certificate, his marks were adjusted to meet the requirements. Manisunker

admitted to doctoring his results and pleaded for leniency in his application. ‘I am not a rapist or a murderer. I did nothing

wrong. I am remorseful for my actions and I did what I did for the betterment of society. I am passionate about medicine

and I am an intelligent pupil who excelled in my grade 11 year. Due to some tragic circumstances, I was unable to

perform well in my matric year,’ Manisunker said outside court. He attended school for only 33 days in his matric year

due to an illness, but said he had still managed to pass the year. He claimed a number of factors had influenced his poor

results including deaths in his family and his parents divorce.

Source: Legalbrief, 07 November 2016 FRAUD VICTIM SEEKS FULL ACCOUNT RECORDS

George businesswoman Monica Kruger – who lost R1.8m in an online banking fraud coupled with an illegal SIM swop –

is fighting back against her bank and mobile service provider, demanding full disclosure of her account records. A

Weekend Argus reports Kruger has launched a novel forensic attack on Absa and Vodacom, demanding key evidence

on her accounts, including who at the bank had access to her profile and login prior to the fraud taking place. Instead of

making allegations of liability for any wrongdoing or negligence on the part of the bank or mobile service provider, she

has asked the Gauteng High Court (Johannesburg) to order Absa and Vodacom to give her critical data that they have

so far refused to give her. She says she is entitled to the information, and that it will help her determine who is liable for

her loss. She has also asked the court to order Absa and Vodacom to preserve all evidence relating to her case in terms

of generally accepted forensic practice, and the provisions of the Electronic Communications and Transactions Act.

Fraudsters stole almost R2m from Kruger after performing a SIM swop on her number with Vodacom and transferring

money from her Absa account, according to Rapport. Kruger says in her court papers she was alerted to a request for a

SIM swop in June and immediately warned Vodacom that it was a fraudulent transaction that should be stopped. A week

later, the SIM swop was performed without her permission and the money was stolen. Both Vodacom and Absa,

presumably aware that a precedent could be set, refuse to accept responsibility, arguing that Kruger must have been

negligent. Justin Steyn, an attorney acting on behalf of several fraud victims, says banks and cell phone service

providers won’t be able to withhold this information in future if the court finds in Kruger’s favour.

Source: Legalbrief, 07 November 2016

SON WINS BATTLE FOR R3M LIFE POLICY

Jhrajhrshlall ‘Roy’ Ramnarain has won a protracted legal battle against Momentum Life over a R3m life policy taken out

by his mother, says a report in The Mercury. Ramnarain claimed his mother had agreed that he should be the sole

beneficiary of the policy, but the insurance company alleged that her signature had been forged. When Chandermani

Behari died in November 2009, Momentum refused to pay out on the policy. Ramnarain sued and the matter was argued

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before Gauteng High Court (Pretoria) Judge Ronel Tolmay. In her recent judgment, she noted that the case centred on

the evidence of three expert handwriting analysts – two for the company and one for Ramnarain. ‘It seemed Behari’s

signature varied a lot and one cannot find the disputed signature is a forgery,’ the judge said.

Source: Legalbrief, 07 November 2016

MEN JAILED FOR PLANNING TO POACH RHINO

Planning rhino poaching could bring a jail sentence of between eight and 10 years. The Mercury reports this message

was loud and clear from the Gauteng High Court (Pretoria), which turned down the appeal of three men who planned to

poach rhino in the Kruger National Park. Armando Mkhabela, David Mabaso and Jacob Ntuli received effective jail

sentences ranging from eight to 10 years. The trio were earlier convicted of contravening the contentious Riotous

Assemblies Act as they conspired to illegally hunt rhinos. They were also convicted on a charge of conspiring to commit

the crime of rhino hunting. As they were caught red-handed in a police trap, they pleaded guilty and made confessions.

In appealing against their sentences, they told the High Court that the magistrate over-emphasised the interests of

society, while placing little value on their personal circumstances. Acting Judge CM Sardiwalla commented that the fact

that the crime was carefully planned was an aggravating factor. ‘They had a chance to change their minds and withdraw

from the conspiracy. This court takes note of the alarming proportions which rhino poaching has reached,’ the judge

said.

Source: Legalbrief, 10 November 2016

SOCIETY ERRED IN BACKING DODGY ATTORNEY – JUDGE

An application to be enrolled as an attorney of the High Court by an armed robber – and endorsed by the Cape Law

Society – fell foul of Judge Clive Plasket in the Eastern Cape High Court (Grahamstown), who found Ntsikeleo

Mdyogolo’s three different accounts of the incident ‘at odds with the ethical probity expected of an attorney’, amounting

‘to a cynical attempt to mislead both the Law Society and the court’, reports Legalbrief. Mdyogolo, who also has

convictions for shoplifting and drunken driving, provided unlikely versions of the armed robbery at a Fort Beaufort petrol

station, during which he was armed with a semi-automatic rifle. Among his claims was that during the 1990s he was a

member of the Azanian Peoples’ Liberation Army (Apla), which was the military wing of the Pan Africanist Congress

(PAC). One of Apla’s methods of fundraising for the PAC, he stated, was by committing robberies – that ‘robbery in the

name of “repossession” became one of the prominent methods used (repossession of the wealth of the African people

back to its rightful owners)’ and that the aim was to ‘facilitate a way forward towards achieving its aims and objectives in

a “Struggle for Liberation”.’ However, this explanation, given in 2015, is at odds with what he said in his Truth and

Reconciliation application for amnesty – that the police got him drunk and used him in a planned operation to discredit

the PAC.

What the court observed and the Law Society apparently missed was that the robbery he had claimed was in the cause

of the armed struggle in fact took place two months after the new democratic order was born on 27 April 1994 when the

armed struggle was in fact over. The court found the applicant showed a lack of honesty, integrity and trustworthiness,

‘all of which are essential qualities for any member of the attorneys’ profession’. On the Law Society, Plaskett said: 'With

the greatest of respect to the Cape Law Society, those who considered the application could not have applied their

minds properly. The most perfunctory reading of the founding affidavit would have raised a red flag: the date 27 April

1994 is an iconic date, and is perhaps the most important date in the history of South Africa – the day the new,

democratic SA was born; as the date of the robbery was nearly two months later, it should have been apparent that the

explanation that the applicant committed the offence in the course of the armed struggle was unlikely to be true. At the

very least, this issue required thorough investigation before a decision could be taken on it.' He ordered his judgment be

sent to the society

Source: Legalbrief, 07 November 2016

PENNY SPARROW'S BID TO APPEAL BOTCHED

Real estate agent Penny Sparrow has unsuccessfully attempted to apply for leave to appeal an Equality Court judgment

on her racist Facebook rant, says a News24 report. The Scottburgh Equality Court set aside her application – which it

deemed irregular in terms of the court's rules – and ordered her to pay the ANC’s legal costs. The argument was that

she had not stipulated an address for documents to be served and lodged her application in the Magistrate’s Court, not

High Court, said the ANC’s lawyer. He added that the notice of appeal was also delivered outside of the stipulated time

period and failed to set out the relevant order and grounds.

Source: Legalbrief, 07 November 2016

9

TENDER FRAUD WHISTLE-BLOWER GETS JOB BACK

The former chief financial officer of the Department of Defence and Military Veterans, fired after blowing the whistle on

tender fraud in the department, has been cleared by the Johannesburg Labour Court, according to a TimesLIVE report.

The court declared Rabelani Tshimomola's dismissal unfair and unprocedural and ordered his reinstatement. However,

the department plans to challenge the judgment. In his affidavit, Tshimomola also alleged that after blowing the whistle

he was threatened and had to hire bodyguards. Mbulelo Musi, a spokesperson for the department, said: ‘Immediately

upon learning of the default judgment the department filed papers to have the decision rescinded.’ The judge said that

Tshimomola's disclosure should have been protected under the Protected Disclosures Act.

Source: Legalbrief, 07 November 2016

EMPLOYEE DISMISSAL UPHELD

An Eskom employee has been shown the door by the courts after she applied to review the company’s decision to fire

her over incorrect sick leave and travel claims, says a Daily Dispatch report. The Labour Court in Cape Town found that

SD Kama’s dismissal was substantively fair, just as the CCMA had found. Kama was sacked from her customer relations

post in 2014 for failing to capture 17 days of sick leave and one day of annual leave on Eskom’s leave application

system. Eskom says Kama also fiddled with the travel system in order to score R3 000 more than she was entitled to.

Kama said in defence the errors on her trip sheets were genuine and due to a lack of training. The CCMA did not make

light of Kama’s mistakes‚ finding her dismissal substantively fair and ruling that the relationship of trust between her and

Eskom had broken down. Applying to take the CCMA’s finding on review in the Labour Court, Judge Hilary Rabkin-

Naicker dismissed Kama’s application with costs.

Source: Legalbrief, 01 November 2016

SOUTH AFRICAN LAW REPORTS – NOVEMBER 2016 COCHRANE STEEL PRODUCTS (PTY) LTD v M-SYSTEMS GROUP (PTY) LTD AND ANOTHER 2016 (6) SA 1

(SCA)

Intellectual property - Trademark—Use by competitor of claimant’s commonlaw trademark as keyword in Google

AdWords advertising—Whether conduct amounting to passing off or unlawful competition—No likelihood of confusion—

Conduct not amounting to passing off or unlawful competition.

Competition - Unlawful competition—Passing off—Whether conduct amounting to passing off—Use by competitor of

claimant’s common-law trademark as keyword in Google AdWords advertising—No likelihood of confusion—Use not

amounting to passing off.

Competition - Unlawful competition—Use by competitor of claimant’s common-law trademark as keyword in Google

AdWords advertising—Whether conduct amounting to wrongful interference—Whether use fair and honest— Whether

likelihood of confusion or deception—No likelihood of confusion or deception in circumstances where advertiser, without

more, using other trader’s trade name only as keyword—Use not amounting to unlawful competition.

NATIONWIDE AIRLINES (PTY) LTD (IN LIQUIDATION) v SOUTH AFRICAN AIRWAYS (PTY) LTD 2016 (6) SA 19 (GJ)

Competition- Promotion of competition—Prohibited practices—Abuse of dominance—Quantification of damages— Lost

profits—Linear-interpolation method—Three-step procedure involving counterfactuals used to determine lost profits—

Appropriate contingency deduction—Competition Act 89 of 1998, s 8(d)(i).

Damages- Anticompetitive conduct—Quantification—How competitor performed versus how it would have performed but

for abuse—Linear interpolation—Contingency deduction—Competition Act 89 of 1998, s 8(d)(i).

Aviation- National airline—Anticompetitive practice—Exclusion of competitor—Commission agreements between South

African Airways and travel agents—Quantification of competitor’s damages—How competitor performed versus how it

would have performed but for abuse by SAA—Linear interpolation used to estimate lost passengers and hence lost

profits—R105 million awarded.

10

KYTHERA COURT v LE RENDEZ-VOUS CAFE CC AND ANOTHER 2016 (6) SA 63 (GJ)

Company - Business rescue—Moratorium on legal proceedings against company—Scope—Ejectment proceedings

against company under business rescue—Where lease agreement lawfully cancelled and company failing to vacate

premises—Company in unlawful possession—Moratorium not encompassing ejection proceedings in such

circumstances—Companies Act 71 of 2008, s 133(1).

SOLIDARITY AND OTHERS v SOUTH AFRICAN BROADCASTING CORPORATION 2016 (6) SA 73 (LC)

Labour law - Dismissal—Summary dismissal—Dismissal in breach of contractual right to disciplinary procedure and right

to freedom of expression—Dismissal void ab initio—Reinstatement ordered.

Costs - Costs de bonis propriis—When to be awarded—Against public official—Applicant dismissed without regard to

pending applications and expense—Court directing responsible officials to show cause why they should not be held

personally liable for applicant’s costs on attorney and client scale.

BLUE CHIP 2 (PTY) LTD T/A BLUE CHIP 49 v RYNEVELDT AND OTHERS (NATIONAL CREDIT REGULATOR AS

AMICUS CURIAE) 2016 (6) SA 102 (SCA)

Magistrates’ court - Civil proceedings—Jurisdiction—Whether cause of action arising wholly within jurisdiction of court—

Where delivery of notice, preceding debt enforcement, in terms of s 129(1)(a) of the NCA occurring outside of district of

magistrates’ court—Delivery of notice constituting essential element of cause of action—Matter not arising wholly within

jurisdiction of court—Magistrates’ Courts Act 32 of 1944, s 28(1)(d); National Credit Act 34 of 2005, s 129(1)(a).

Credit agreement - Consumer credit agreement—Debt enforcement—Preliminary procedures—Notice of default—

Delivery—Constituting essential element of cause of action—Where delivery taking place outside area of jurisdiction of

magistrates’ court, cause of action not wholly arising within jurisdiction of court—Court lacking jurisdiction—National

Credit Act 34 of 2005, s 129(1)(a); Magistrates’ Courts Act 32 of 1944, s 28(1)(d).

SHERIFF, PIKETBERG AND ANOTHER v LOURENS 2016 (6) SA 110 (WCC)

Consumer protection - Auctions—Sale in execution—Whether Sheriff of High Court must before sale enter into written

agreement with ‘owner or rightful holder (who has the right to sell)’ of goods to be sold—Consumer Protection Act 68 of

2008, s 45(1); Consumer Protection Regulations, reg 22(2).

Execution - Sale in execution—Immovable property—Duties of sheriff—No general duty to establish and disclose

whether value-added tax payable by purchaser.

PALALA RESOURCES (PTY) LTD v MINISTER OF MINERAL RESOURCES AND ENERGY AND OTHERS 2016 (6)

SA 121 (SCA)

Mining and minerals - Mining and prospecting rights—Lapsing of upon deregistration of rights-holder company—

Subsequent reinstatement of company’s registration retrospectively reviving lapsed prospecting right—Mineral and

Petroleum Resources Development Act 28 of 2002, s 56(c); Companies Act 61 of 1973, s 73(6A).

Company - Register of companies—Reinstatement—Effect on prospecting rights which lapsed as result of

deregistration—Reinstatement retrospectively reviving lapsed prospecting right—Mineral and Petroleum Resources

Development Act 28 of 2002, s 56(c); Companies Act 61 of 1973, s 73(6A).

EX PARTE FULS AND THREE SIMILAR MATTERS 2016 (6) SA 128 (GP)

Insolvency - Voluntary surrender—Disclosure—Application including debt arising from ‘credit agreements’ as intended in

the National Credit Act—NCA’s debt review procedures may be more advantageous to creditors than voluntary

surrender—Incumbent on applicant for voluntary surrender to disclose whether NCA remedies used, and if so also

disclose report of debt counsellor involved—Insolvency Act 24 of 1936, s 3(1); National Credit Act 34 of 2005, ss 86–88.

KLAASE AND ANOTHER v VAN DER MERWE NO AND OTHERS 2016 (6) SA 131 (CC)

Land - Land reform—Statutory protection of tenure—Protected occupation of land—Wife residing on farm with occupier

husband—Legal basis for—Whether husband’s right to family life, or that wife was occupier—Extension of Security of

Tenure Act 62 of 1997, ss 1 and 6(2)(d).

11

OFF-BEAT HOLIDAY CLUB AND ANOTHER v SANBONANI HOLIDAY SPA SHAREBLOCK LTD AND OTHERS 2016 (6) SA 181 (SCA)

Company - Shares and shareholders—Minority shareholder—Personal action—Prescription—Minority shareholder’s

right of action against company—Constituting ‘debt’ and prescribing after three years—Companies Act 61 of 1973, s

252; Prescription Act 68 of 1969, s 10(1).

Company - Shares and shareholders—Minority shareholder—Derivative action—Prescription—Minority shareholder’s

entitlement to enforce company’s rights against delinquent directors and officers—No ‘debt’ capable of prescription

existing until curator appointed to pursue company’ claims against delinquent officers or directors— Companies Act 61

of 1973, s 266; Prescription Act, s 13(1)(e).

RAMUHOVHI AND ANOTHER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 2016 (6) SA

210 (LT)

Constitutional law - Legislation—Validity—Recognition of Customary Marriages Act 120 of 1998, s 7(1)—Having effect

that polygamous customary marriages entered into prior to commencement of Act, as well as their proprietary

consequences, still regulated by customary law—Venda customary law providing that wives in polygamous customary

marriages having no rights in or control over marital property—Provision unjustifiably discriminating against women in

polygamous customary marriages on basis of gender, race and ethnic or social origin—Provision unconstitutional—

Interim relief to be granted pending enactment of legislation by Parliament governing matrimonial property regimes in

respect of old polygamous customary marriages—In interim, wives in msuch marriages to have joint and equal rights of

management of and control over marital property.

GRIESSEL AND ANOTHER v LIZEMORE AND OTHERS 2016 (6) SA 236 (GJ)

Company - Business rescue—Aims—Companies Act 71 of 2008, s 128(1)(b).

Company - Business rescue—Resolution—Requirement that board act in good faith in adopting resolution— Companies

Act 71 of 2008, ss 129(1) and 130(5)(a)(ii).

Company - Business rescue—Practitioner—Time periods for filing and publishing notice of appointment— Commission

has no power to extend—Companies Act 71 of 2008, s 129(4).

Company - Business rescue—Practitioner—When liable for costs—Companies Act 71 of 2008, s 140.

Company - Business rescue—Moratorium on legal proceedings against company—Not barring shareholders instituting

proceedings against third parties to recover company’s property—Companies Act 71 of 2008, s 133.

POTGIETER v OLIVIER AND ANOTHER 2016 (6) SA 272 (GP)

Credit agreement - Consumer credit agreement—Credit provider—Whether obligation to register—Once-off credit

agreement—Registration not required—Authority to this effect doubted—National Credit Act 34 of 2005, s 40(1) (b).

TSHWANE CITY v AFRIFORUM AND ANOTHER 2016 (6) SA 279 (CC)

Appeal - Appealablity—Interim interdict—Interdict ordering local authority, pending review of its decision to change street

names, to stop changing street signs and restore those already changed—Application for leave to appeal directly to

Constitutional Court—Common-law requirements for appealability of interim orders subsumed under constitutional

‘interest of justice’ standard—Leave to appeal against interim interdict must be granted if in interests of justice—

Constitution, s 167(6)(b).

Constitutional law - Human rights—Right to freedom of religion, belief and opinion and rights relating to cultural, religious

and linguistic communities—Whether Constitution recognising interests or rights based on a sense of belonging to place

one lives, rooted in a particular history—Constitution, s 31(1).

Constitutional law - Separation of powers—Interim interdict ordering local authority, pending review of its decision to

change street names, to stop changing street signs and restore those already changed—Interdict offending against

principle of separation of powers—In interests of justice to grant leave to appeal directly to Constitutional Court -

Whether appeal should be upheld—Balance of convenience favouring organ of state where interdict intruding on

separation of powers.

12

Constitutional practice - Appeals to Constitutional Court—In what cases—Interim interdict—Common-law requirements

for appealability of interim orders subsumed under constitutional ‘interests of justice’ standard— Leave to appeal must

be granted if in interest of justice regardless of common-law impediments—General requirement that applicant must

show irreparable harm not applying where in interests of justice to grant leave to appeal—Constitution, s 167(6)(b).

Interdict - Interim interdict—Irreparable harm—What constitutes—Not irreparable if harm complained of could be

reversed by final order.

Interdict - Interim interdict—Balance of convenience—Competing rights or interests—Whether right or interest based on

sense of belonging to place one lives, rooted in particular history, deserving of legal protection—Balance of convenience

favouring organ of state where interdict would intrude on separation of powers—Constitution, s 31(1).

Source: www.Legalbrief.co.za

SOUTH AFRICAN CRIMINAL LAW REPORTS – OCTOBER 2016

S v MOTHWA 2016 (2) SACR 489 (SCA)

Theft - Proof of—Doctrine of recent possession—When to be applied—Not limited to specific period but dependent on

circumstances and particularly nature of property—Money and motor vehicles easily circulated.

DEMOCRATIC ALLIANCE v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 2016 (2) SACR

494 (WCC)

Constitutional practice - Courts—Jurisdiction—Power of President in terms of s 12(6)(a) of National Prosecuting

Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions and to institute enquiry into her

alleged misconduct to determine her fitness to hold office—Constitution not conferring on President obligation to

suspend or enquire into fitness to hold office—High Court having necessary jurisdiction to determine whether President

had exercised his powers in terms of s 12(6)(a) rationally and lawfully—Constitution, s 167(4)(c) not applicable.

Constitutional practice - Application for review and setting-aside of decision of President not to invoke power in terms of

s 12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions

and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Defence of lis alibi

pendens—Proceedings in another court in which same relief sought but by different applicant—Another case in different

court where relief sought by another striking name of DNDPP off roll of advocates for same alleged misconduct—

Cardinal requirement of plea of lis alibi pendens that litigation be between same parties, not present—Plea of lis alibi

pendens dismissed.

Prosecution—Deputy National Director of Public Prosecutions—Alleged misconduct—Power of President in terms of s

12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions

and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Principle of legality requiring

President to act personally, in good faith and without misconstruing nature of his power— Decision to be rationally

related to purpose for which power given—Both process by which decision made and decision itself having to be

rational.

Prosecution - Deputy National Director of Public Prosecutions—Alleged misconduct—Power of President in terms of s

12(6)(a) of National Prosecuting Authority Act 32 of 1998 to suspend Deputy National Director of Public Prosecutions

and to institute enquiry into her alleged misconduct to determine her fitness to hold office—Whether decision of

President not to suspend Deputy National Director and to institute enquiry into her fitness to hold office rational and

lawful—No real basis laid for drastic measure of suspension and institution of enquiry—And no basis laid for real

apprehension of harm if Deputy National Director were to remain in office pending application for removal of her name

from roll of advocates—Decision of President to await outcome of application to strike Deputy National Director off roll of

advocates rational and lawful—Application for review and setting-aside of such decision dismissed.

S v GAMA 2016 (2) SACR 530 (GJ)

Evidence - Witness—Cross-examination—Of state witness—On statement made to police—Magistrate not permitting

cross-examination on unsigned statement of complainant in police docket in situation where complainant had made two

statements, but only signed one—Irregularity committed vitiated entire proceedings.

13

MR v MINISTER OF SAFETY AND SECURITY 2016 (2) SACR 540 (CC)

Child - Arrest—Special requirements applicable to child—Provisions of s 28(2) of Constitution requiring that best

interests of child be accorded paramount importance—There had to be no other, less invasive means of securing

attendance of child at court.

S v KUYLER 2016 (2) SACR 563 (FB)

Evidence - Witnesses—Accomplice—Discharge from prosecution of witness in terms of s 204(2) of Criminal Procedure

Act 51 of 1977—Enquiry into whether discharge to be given—Such sui generis and separate from main trial on merits To

be held at earliest after judgment on merits in main trial—Court to establish on balance of probabilities whether witness

answered all questions frankly and honestly—Test subjective— Witness to be allowed to advance reasons and present

evidence to justify his discharge—State also having interest to advance reasons and adduce evidence—Decision of

court and complete order to be recorded on record of proceedings.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v AIRPORT CLINIC, JOHANNESBURG INTERNATIONAL

(PTY) LTD AND ANOTHER 2016 (2) SACR 576 (GJ)

Prevention of crime - Forfeiture order—Application for in terms of s 48 of Prevention of Organised Crime Act 121 of

1998—Property sought to be forfeited—Respondents receiving foreign currency legitimately for services rendered and

goods sold, but committing offence under Exchange Control Regulations in not selling foreign currency received within

30 days—Foreign currency not 'proceeds of unlawful activities'— Order refused.

Words and phrases - 'Connection'—Meaning of in definition of 'proceeds of unlawful activities' in s 1 of Prevention of

Organised Crime Act 121 of 1998—Some form of consequential relation between return and unlawful activity required.

S v FENI 2016 (2) SACR 581 (ECB)

Trial - Record—Language—Use of indigenous languages—Government programme for elevating use of indigenous

languages not sufficiently advanced that it should be used where exigencies of matter did not demand such use— Delay

of two and a half years in preparing record because of translation difficulties leading to compromise of accused’s

fundamental rights.

MCBRIDE v MINISTER OF POLICE AND OTHERS (HELEN SUZMAN FOUNDATION AS AMICUS CURIAE) 2016 (2)

SACR 585 (CC)

Constitutional practice - Courts—Constitutional Court—Confirmation proceedings—Court having duty to satisfy itself that

High Court’s declaration of invalidity of various impugned sections of statute properly made— Constitution, s 172(2)(a).

Police - Independent Police Investigative Directorate (IPID)—Independence of—Provisions of s 6 of Independent Police

Investigative Directorate Act 1 of 2011 giving Minister enormous powers and control over executive director of

Directorate—Such provision antithetical to entrenched independence of IPID envisaged by Constitution and might lead

to IPID becoming politicised and being manipulated—Subjecting executive director to laws of public service, as s 6(3) of

IPID Act did, subversive of IPID’s institutional and functional independence—Invoking provisions of s 16A(1) of Public

Service Act, Proclamation 103 of 1994, to suspend executive director and institute disciplinary proceedings against him

inconsistent with s 206(6) of Constitution and invalid and set aside.

Police - Independent Police Investigative Directorate—Independence of—Section 6(3)(a) and 6(6) of Independent Police

Investigative Directorate Act 1 of 2011 declared inconsistent with Constitution and invalid—Just and equitable remedy—

Court declaring suspension and institution of disciplinary proceedings by Minister against executive director invalid—

Court suspending declaration of invalidity for 30 days to enable National Assembly and Minister to exercise their

disciplinary powers in terms of ss 17DA(3)–17DA(7) of South African Police Service Act 68 of 1995—Such order

enabling Minister to restart disciplinary process on proper basis and also protecting presumption of innocence in favour

of executive director—Constitution, 1996, s 172.

Source: www.Legalbrief.co.za

14

BILLS

NATIONAL VELD AND

FOREST FIRE

AMENDMENT BILL, 2016

B22-2016

DRAFT SOCIAL

ASSISTANCE

AMENDMENT BILL, 2016

Published for comment GG 40391 (01.11.16)

DRAFT IMPLEMENTATION

OF THE ROME STATUTE

OF THE INTERNATIONAL

CRIMINAL COURT ACT

REPEAL BILL, 2016

Notice of intention to introduce and explanatory summary

published for comment

GG 40403 (03.11.16)

PROCLAMATIONS AND NOTICES

INDEPENDENT

REGULATORY BOARD

FOR AUDITORS (IRBA)

Notice of publication for comment of Mandatory Audit

Firm Rotation consultation paper published

GG 40392 (01.11.16)

CUSTOMS AND EXCISE

ACT 91 OF 1964

Schedule 1 amendment published in GN R1284 in GG

40356 of 21 October 2016 corrected with effect from 10

October 2016

Schedule 1 amendment published in GN R1283 in GG

40356 of 21 October 2016 corrected with

effect from 10 October 2016

GG 40401 (04.11.16)

GG 40401 (04.11.16)

PHARMACY ACT 53 OF

1974

South African Pharmacy Council: 2017 Fees payable to

the Council published

GG 40405 (04.11.16)

PETROLEUM PRODUCTS

ACT 120 OF 1977

Regulations in respect of the single maximum national

retail price for illuminating paraffin published with effect

from 2 November 2016

Regulations in respect of the maximum retail price of

Liquefied Petroleum Gas supplied to residential

customers published with effect from 2 November 2016

Amendment of regulations in respect of petroleum

products published with effect from 2 November 2016

GG 40388 (01.11.16)

GG 40388 (01.11.16)

GG 40388 (01.11.16)

BANKS ACT 94 OF 1990 Designation of Ithala SOC Limited, a wholly owned

subsidiary of Ithala Development Finance Corporation

Limited, as an institution of which the activities do not fall

within the meaning of 'the business of a bank' for the

period 1 July 2016 to 30 September 2017 published and

GenN 956 in GG 39252 of 2 October 2015 substituted

GG 40402 (04.11.16)

AGRICULTURAL PRODUCT

STANDARDS ACT 119 OF

1990

Notice of publication for comment of proposed

amendments to the regulations relating to the grading,

packing and marking of bananas intended for sale in the

Republic of South Africa published

GG 40402 (04.11.16)

SOUTH AFRICAN POLICE

SERVICE ACT 68 OF 1995

South African Police Service Discipline Regulations,

2016 published and South African Police Service

GG 40389 (01.11.16)

15

Discipline Regulations, 2006 repealed

NATIONAL HERITAGE

RESOURCES ACT 25 OF

1999

Declaration of the Samora Machel Memorial and Crash

Site as a National Heritage Site published in GN 1219 in

GG 40334 of 7 October 2016 corrected

GG 40386 (31.10.16)

INDEPENDENT

COMMUNICATIONS

AUTHORITY OF SOUTH

AFRICA ACT 13 OF 2000

Independent Communications Authority of South Africa

(ICASA): ICASA code of conduct for premium rated

services regulations published

GG 40402 (04.11.16)

MEAT SAFETY ACT 40 OF

2000

Draft Game Meat Regulations, 2016 published for

comment

GG 40402 (04.11.16)

LANDSCAPE

ARCHITECTURAL

PROFESSION ACT 45 OF

2000

South African Council for the Landscape Architectural

Profession (SACLAP): Notice of implementation from 4

November 2016 of Revised Registration Policy and

Rules relating to:

• Registration of Landscape Architectural

Professions (Addendum);

• Registration of Landscape Management

Professions (Addendum);

• Weighted Core Competency Table for the

Landscape Architectural Profession; and

• Weighted Core Competency Table for the

Landscape Management Profession

published

GG 40402 (04.11.16)

DISASTER MANAGEMENT

ACT 57 OF 2002

Guideline on Conducting a Comprehensive Risk

Assessment, Part 1: Hazard Analysis, Identification and

Prioritisation published

Establishment of the Intergovernmental Committee on

Disaster Management published

GG 40393 (02.11.16)

GG 40393 (02.11.16)

NATIONAL

ENVIRONMENTAL

MANAGEMENT:

PROTECTED AREAS ACT

57 OF 2003

Proposed norms and standards for the inclusion of

private nature reserves in the register of protected areas

of South Africa published for comment

GG 40402 (04.11.16)

NATIONAL HEALTH ACT 61

OF 2003

Procedural Regulations Pertaining to the Functioning of

the Office of Health Standards Compliance and Handling

of Complaints by the Ombud published and GN 1275 in

GG 40350 of 13 October 2016 replaced

GG 40396 (02.11.16)

NATIONAL

ENVIRONMENTAL

MANAGEMENT:

BIODIVERSITY ACT 10 OF

2004

Draft distribution maps for certain indigenous species

published for comment

GG 40398 (03.11.16)

PROTECTION OF

CONSTITUTIONAL

DEMOCRACY AGAINST

TERRORIST AND

Entities identified by the United Nations Security Council

published

GG 40390 (01.11.16)

16

RELATED

ACTIVITIES ACT 33 OF

2004

NATIONAL

ENVIRONMENTAL

MANAGEMENT: AIR

QUALITY ACT 39 OF 2004

Notice of intention to declare certain printing industry

activities as controlled emitters and to establish emission

standards published for comment

GG 40402 (04.11.16)

ELECTRICITY

REGULATION ACT 4 OF

2006

Electricity Regulations on New Generation Capacity

amended

GG 40401 (04.11.16)

NATIONAL

QUALIFICATIONS

FRAMEWORK ACT 67 OF

2008

Qualification documents for proposed occupational

qualifications for registration on the qualifications sub-

framework for trades and occupations published for

comment

GG 40395 (02.11.16)

PROVINCIAL LEGISLATION

Free State

Free State Gambling and

Liquor Act 6 of 2010

Draft Free State Liquor Amendment Regulations, 2016

published for comment

PG 86 (04.11.16)

Gauteng

Gauteng Provincial

Languages Act 3 of 2016

Date of commencement: to be proclaimed PG 355 (03.11.16)

Kwazulu-Natal

Local Government:

Municipal Structures Act 117

of 1998

KwaDukuza Local Municipality: Notice to designate seven

Executive Committee members, Chief Whip and

Chairperson, in addition to the Speaker, Mayor and

Deputy-Mayor of the Municipal Public Accounts

Committee as full-time councillors published

Dr Nkosazana Dlamini Zuma Local Municipality: Notice to

designate two Executive Committee members, in addition

to the Speaker, Mayor and Deputy-Mayor as full-time

councillors published

Ray Nkonyeni Local Municipality: Notice to designate

eight additional Executive Committee members, single

Whip and Chairperson of the Municipal Public Accounts

Committee (MPAC) as full-time councillors Published

Alfred Duma Local Municipality: Notice to designate Whip

and Chairperson, in addition to the Speaker, Mayor and

Deputy-Mayor of the Municipal Public Accounts

Committee as full-time councillors published

City of uMhlathuze Municipality: Notice to designate eight

additional Executive Committee members, Whip and the

Chairperson of the Municipal Public Accounts Committee

(MPAC) as full-time councillors published

Harry Gwala District Municipality: Notice to designate two

additional Executive Committee members, in addition to

PG 1749 (31.10.16)

PG 1749 (31.10.16)

PG 1749 (31.10.16)

PG 1749 (31.10.16)

PG 1749 (31.10.16)

PG 1749 (31.10.16)

17

the Speaker, the Mayor and the Deputy-Mayor as full-

time councillors published

Limpopo

National Road Traffic Act 93

of 1996

Registration and licensing fees for [2016/2017] published

with effect from 1 April 2017

PG 2763 (03.11.16)

Constitution of the Republic

of South Africa, 1996 and

Local Government:

Municipal Systems

Act 32 of 2000: Polokwane

Local Municipality

Credit Control and Debt Collection By-law published and

previous By-law repealed

Polokwane Local Municipality: Property Rates By-law

published and previous By-law repealed

Polokwane Local Municipality: Tariff By-law published

PG 2764 (04.11.16)

PG 2764 (04.11.16)

PG 2764 (04.11.16)

Local Government:

Municipal Structures Act 117

of 1998

Amendment notice to Names of traditional leaders to

serve in proceedings of district and local municipal

councils for a period of five years (2016-2021) as

published under PN 111 in PG 2752 of 26 September

2016 published

PG 2765 (04.11.16)

Mpumalanga

Local Government:

Municipal Structures Act 117

of 1998

Notice identifying traditional leaders who may participate

in the Municipal Councils proceedings published

PG 2748 (04.11.16)

North West

North West Province Party

Fund Act Repeal Act 5 of

2015

Date of commencement: 1 April 2016

Repeals: North West Province Political Party Fund Act 3

of 2010

PG 7703 (31.10.16)

Licensing tariffs increase 2016 published with effect from 1 December 20161 PG 7705 (01.11.16)

Local Government:

Municipal Structures Act 117

of 1998

Names of Senior Traditional Leaders who are to attend

and participate in the meetings of respective municipal

councils published

PG 7705 (01.11.16)

Western Cape

Constitution of the Republic

of South Africa, 1996

Cape Agulhas Local Municipality: Liquor Trading Hours

Amendment 2 By-law, 2016 published

PG 7696 (28.10.16)

City of Cape Town Cape Town Sub-council Amendment By-law, 2016

published

PG 7698 (04.11.16)

City of Cape Town Informal

Trading By-law

City of Cape Town (Table Bay District): Informal Trading

Plan for Halt Road Elsies River Corridor published

PG 7698 (04.11.16)

18

SEMINARS

For more information contact the Knowledge Centre or visit www.lssalead.org.za

NAME OF SEMINAR DATES PRESENTER

CASE MANAGEMENT -

THE FUTURE OF DISPUTE

RESOLUTION

Cape Town 17-18 November 2016 Ismail Hussain SC &

Ettienne Barnard

INTER-VIVOS TRUSTS East London: 21 November 2016

Midrand: 23 November 2016

Prof Willie M van der

Westhuizen

MEDIATION - THE WHAT,

HOW & WHEN

Bloemfontein 25 November 2016

Cape Town: 21 November 2016

Experienced lawyers

MEDICAL MALPRACTICE

LITIGATION 2016

Midrand: 18-19 November 2016 Dr Henry Lerm