Latest Issue - December 2020


Editor’s note Editor's Note

December arrived stealthily for almost everyone I speak to. One minute, it was the start of a new decade – we had high hopes of better things to come after the recession in 2019; then it was the 'impossible to believe' lockdown of the world and now everyone has learnt that the future is shrouded in mystery, and that it is not necessarily going to be better than the past on which some may wish to hastily slam the door. And so we remain in an uncertain world.

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SCA decision affirms important principles related to separate legal personality and directors’ fiduciary duties Company Law

Earlier this year, in the case Hlumisa Investment Holdings (RF) Ltd and Another v Kirkinis and Others 2020 (5) SA 419 (SCA), the Supreme Court of Appeal (SCA) delivered a judgment interpreting certain key provisions of the Companies Act and the liability of directors.

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Business rescue is in the interest of all stakeholders in a company Company Law

An effective South African economy is dependent on the continued use of business enterprises. The failure of a company affects not only its shareholders and creditors, but also its employees, customers, suppliers and the community. An entire community can be affected by serious socio-economic problems when a large company in their area collapses. It is, therefore, important that some effort be made to rescue a company that is suffering a temporary setback, but has the potential to survive if it is given some breathing space to overcome its financial distresses. South Africa was one of the first countries to introduce a formal corporate rescue procedure.

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Regulating artificial intelligence from a data protection perspective – lessons from the EU Technology

Earlier this year, the European Parliament published a study on the relationship between the General Data Protection Regulation (GDPR) and artificial intelligence (AI) (cited as 'PE 641.530 – June 2020') (the Study). Although the Study highlights that currently there are several uncertainties in the application of data protection principles to AI technology, it demonstrates the European legislature's intention to regulate the ongoing developments in the AI space, from a data protection perspective.

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All aboard: SARS has (almost) steadied the VDP ship Tax Law

During 2020, SARS embarked on an extensive overhaul of the Voluntary Disclosure Programme (VDP) process with stakeholders, including tax practitioners and taxpayers.

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Competition Law in times of COVID–19 Competition Law

In the wake of the declaration of the COVID-19 pandemic as a national disaster, several unprecedented measures were taken by the South African government to limit and mitigate its impact. Of particular interest in our field are the regulations and block exemptions published by the Minister of Trade, Industry and Competition – and their potential future impact on competition law and market behaviour.

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Section 172 – Constitution: 1; Arbitration: 0 Constitutional Law

An arbitrator derives their powers from the agreement between the parties. If the arbitrator's power to act is subsequently disputed, the arbitrator may, if the arbitration agreement so allows (as the AFSA agreement does), determine its own jurisdiction. It is self-evident that such jurisdiction should allow the arbitrator to apply the law to its fullest extent, including the remedies available.

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Has the employer’s right to dismiss for being under the influence of cannabis at work gone up in smoke? Employment Law

South Africa's health and safety legislation places extremely onerous responsibilities on employers regarding the health and safety of their own employees, and other persons who may be affected by the activities being conducted at the workplace.

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Arbitrary is still not equal to discrimination as confirmed by the Labour Appeal Court Employment Law

On 1 June 2020, we published an article in without prejudice relating to the case of Naidoo & others v Parliament of the Republic of SA (see summary: https://www.withoutprejudice.co.za/free/article/6961/view.) In that case, the Labour Appeal Court (LAC) dealt with the construction to be placed on the phrase "any other arbitrary ground" as set out in s6(1) of the Employment Equity Act (55 of 1998) (EEA), and held that the expression was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s6(1) of the EEA.

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Not so fast – Suspending disorderly pickets in the Labour Court Employment Law

In the recent judgment of Clover SA (Pty) Ltd v General Industries Workers Union of South Africa & Others (unreported case, J1142/20, 30 October 2020) the Labour Court was called upon to suspend the rules which regulated a picket in which the Union and its members had participated, in support of a protected strike regarding wage demands.

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Labour consultants disguised as officials of an employer’s organisation Employment Law

PEASA v CCMA (J1619/19) (LC) (7 October 2020)
Introduction: This case is about representation at CCMA processes, specifically the representation of an employer by an official of an employer's organisation (who was also an employee of a labour consultant). It concerns the interpretation of rule 25 of the CCMA rules.

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Forfeiture of severance pay – “you snooze, you lose” Employment Law

The Labour Relations Act (66 of 1995), as amended (the LRA) envisages a meaningful, joint consensus-seeking process whenever an employer considers dismissals based on operational requirements. One of the issues that the parties must attempt to reach consensus on is the possibility of alternatives to retrenchment.

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The business rescuer who needs no rescuing Women in business

A Senior Associate at Cliffe Dekker Hofmeyr, Kylene Weyers believes that women should be proud of the unique attributes and strengths that they bring to the table, especially if they want to pursue a career in law. She says this as an attorney who specialises in business rescue and insolvency, which she describes as "a very male dominated industry".

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Pro bono: The importance of non-billable time Probono

As we await our final board exam, apprehension fills the halls. Candidate attorneys share war stories of their experience of articles and we engage enthusiastically about our time in the pro bono team at Webber Wentzel.

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A trade mark for four seasons Intellectual Property

The US election – was there ever any doubt that there'd be an IP angle! An incident that generated considerable interest/mirth (take your pick) revolved around a Team Trump press conference that featured a confused-looking Rudy Giuliani (yes I know, but even more so than usual) and some even more confused-looking lesser mortals. The press conference took place in surrounds that were, what can one say... far from salubrious.

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