Latest Issue - May 2020


Editor’s note - May 2020 Editor's Note

The end of March saw much of the world in some form of lockdown. In South Africa, while the strict health measures currently appear to be paying off; those in medicine to whom I speak say considerable planning is being done for an anticipated peak in the next two to three months.

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Avoiding potential retrenchments flowing from COVID-19 COVID-19 Employment

The nationwide lockdown imposed across South Africa, due to the COVID-19 pandemic, has led many employers to consider the financial sustainability of their business. Employers who are not able to operate during this time are particularly affected.

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Are employers obliged to save jobs? COVID-19 Employment

At the time of writing, the extended period of lock- down has just commenced. The COVID-19 pandemic has already had a drastic impact on the operations of businesses and, in most cases, will lead to varying degrees of financial pain for both employers and employees. We are also told that, notwithstanding the extended lockdown of 35 days, the peak of the pandemic will only be reached by September 2020. Combating the virus will clearly require a change to the 'business as usual' approach, reimagining, for the foreseeable future, the way we work and go about our daily lives.

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Incapacitated by the lockdown – exploring the possibility of temporary legal incapacity COVID-19 Employment

The National Lockdown imposed by government in terms of the Disaster Management Act has prompted considerable debate about its effects on the treatment and payment of employees during this period. The Regulations and Directives issued in terms of the Act have been silent on the issue, while statements by the Department of Employment & Labour, in particular, have served only to confuse things further.

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A good time to reassess third party outsourcing relationships through a section 197 lens Employment Law

We are all aware that the purpose of s197 of the Labour Relations Act (LRA) is twofold, namely facilitating business transactions and protecting security of employment (NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC)). It is also generally easy to assess whether s197 applies when selling a business or part thereof. The elements required to be present to trigger its application are usually clear, easily identifiable and invariably not in dispute. The case law is well developed and there is a rich source of practical real life scenarios.

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Procedural fairness in retrenchments – a Constitutional Court judgment Employment Law

The Constitutional Court delivered judgment in the case of Association of Mineworkers and Construction and Others v Royal Bafokeng Platinum Limited and Others (CCT181/18) [2020] ZACC 1; (2020) 41 ILJ 555 (CC) (23 January 2020). In this matter, the constitutionality of an extension of a collective agreement in the context of a s189A retrenchment was decided upon.

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Can conduct outside of working hours lead to a dismissal? Employment Law

Edcon Limited v Cantamessa and others (JR30/17) [2019] ZALCJHB 273; (2020) 41 ILJ 195(LC).

Miss Cantamessa was employed by Edcon as a specialist buyer. This employment status was reflecting on her Facebook account. On 16 December 2015, while on leave, she uploaded a racist comment and was later dismissed from her employment.

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The CFA Franc – an economic reform dilemma Financial Law

Over the past few years, the CFA Franc which, until recently, was used in 14 West and Central African countries, has been the subject of many passionate debates. It has been applauded by some people as being a stabilising force, and criticised by others as a tool of neo-colonialism that has left countries without control of their own currency.

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COVID-19 and the right to freedom of movement COVID-19 Constitutional law

With apologies to Simon & Garfunkel:

Hello darkness, my old friend I've come to talk with you again Because a virus softly creeping Left its seeds while I was sleeping And the virus that was planted in my vein Still remains Within the sound of silence.

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14 years of litigation and counting Litigation

A recent judgment by the Constitutional Court of South Africa dismissed the appeal by the MEC for the Department of Health, Western Cape Provincial Department, confirming the determination of the CCMA as to the Respondents' entitlement to a Scarce Skills Allowance, payment of the capital sums due to them and the interest thereon.

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Limitations on the right to freedom of testation Law of Succession

Freedom of testation is a basic right in terms of the South African law of succession and enables a testator (or testatrix) to bequeath assets in a will as they please. The freedom is not completely unrestricted. Limitations are based on social and economic considerations and are found in statutory and common law principles. An example of a common law limitation is that a testator may not incorporate a provision in a will that is contrary to public policy. This article – the first in a two part series – analyses the limitations with regard to discrimination. These limitations are viewed in terms of both legislation and case law.

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Climate change: challenging the expert and dispute resolver Environmental Law

In 1996, the honourable Dullah Omar, erstwhile Minister of Justice in South Africa, said the following at the inauguration of the Arbitration Foundation of Southern Africa (AFSA):

"Any objective assessment of our complex industrialized and commercial society indicates that even where an effective, efficient and professional judicial system is in place, there is yet a need at every level of society for alternative dispute resolution mechanisms.

Business has the right to know that there are legitimate mechanisms in place through which disputes may be resolved effectively, efficiently, speedily and in the most economical way possible. AFSA will fill this void and I wish it every success."

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National News - May 2020 National News

Fasken

Promotions: Senior Associates: Mmaphuti Morolong, Chris Chetty, Kathryn Mitchell, Roy Hsiao, Daphney Willem, Daniel Hart, Thandiwe Nhlapho and Shadi Kekana. Associate: Muhammed Moti, Abigail Butcher, Keagile Mathobela and Onalerona Phiri.

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TOP STUDENT 2019 FINAL YEAR - Introduction TOP STUDENT 2019 FINAL YEAR

To the top students of 2019 – congratulations and best wishes for happy and successful futures. Your determination to succeed during your LLBs will stand you in good stead in this time of considerable un- certainty, when not only today is a challenge for many, but so too is the unmapped future.

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How law firms manage employee stress during COVID-19 TOP STUDENT 2019 FINAL YEAR

With around a third of the world reportedly under some form of government-imposed lockdown due to COVID-19, anyone who can work remotely has swapped the daily commute and city views to a home-based office space, often already occupied by children and pets. Conference call participants have become used to seeing Spiderman building Lego on the floor, or a disinterested cat sauntering across a keyboard. But the stress of being isolated is also beginning to take its toll. Humans, by their nature, are social beings. Isolation is difficult under normal circumstances, but even more so when we are counting the daily human and economic cost of this pandemic.

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