Latest Issue - Quarter 1 2021


It’s leave, Karen, not a savings plan Employment Law

Payment and accrual of annual leave is as hotly debated as the topic of vaccinations, save that there is actually a counter-argument to the annual leave issue. Whenever an employee's services are terminated, or an annual leave cycle ends, there will be at least two people arguing about whether the employee's old, untaken annual leave could accumulate and should be paid to the employee. The unheralded Botes' Law on Annual Leave Interpretation holds that if there are two people arguing on the interpretation of annual leave, there will be at least three interpretations of the law on that issue.

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When the Labour Court cannot reinstate Employment Law

Edebery v National Youth Development Agency (J1453/2020)[2021] ZALCJHB 1(7 January 2021)

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The GEPF fails its members Pension Law

The purpose of this article is to challenge the Government Employees Pension Fund (GEPF) to address one of the challenges those members who were employed as civil servants before the dawn of democracy face when exiting this fund.

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CHECKING (CHEQUE-ING) OUT – The closing chapter of the paper cheque book Financial Law

As of 1 January 2021, cheques are no longer an acceptable form of payment or bill of exchange in South Africa. The South African Reserve Bank announced that cheques will not be supported by the country's national payment system (consultation paper 'The phasing out of cheques in the national payment system', http://www.resbank.co.za/RegulationAndSupervision/NationalPaymentSystem(NPS)/Legal/Pages/Documents-for-Comment.aspx)

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Mandatory premarital medical examination of spouses to a Muslim marriage – a slippery slope Accounting

There can be no doubt that technological advances and continuous breakthroughs in medical science have improved and, to a certain degree, we as human beings have benefitted from such innovative and ground-breaking initiatives. However, with an increase in population size comes an increase in various medical challenges, for example, hereditary conditions or diseases, HIV-AIDS, Bird Flu and lately, the coronavirus (COVID-19) pandemic, and we now more than ever look to medical science for assistance.

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Tales from the US of A . . . International

Lawyer sanctioned who used haiku and Bugs Bunny in a filing

A federal appeals court has upheld sanctions imposed on a lawyer who filed "lengthy and superfluous filings" in a dispute with his brother, including a brief that was "littered with explanation points and rants". A haiku poem, included in a motion seeking reconsideration of a ruling, read: "All know: talk is cheap, liars can claim anything; no evidence?! Balk!" In complaining that a sanctions motion against him was short on specific allegations, he wrote "So, at the very most, there were just two and only two non-global allegations, yes, a mere two at most, and, to quote Bugs Bunny, as far as any specific allegations are concerned 'That's all folks!'" The court said that "he failed to coherently cite case law, though he cites Bugs Bunny. The brief is difficult to follow, and deciphering and reorganising his arguments wasted taxpayer resources".

Debra Cassens Weiss December 16

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The World in January/February International

In February, winter storms saw blackouts in Texas, Oklahoma and Mississippi, among other states. A third of oil production was halted. Drinking-water systems in Ohio were knocked offline. Road networks nationwide were paralysed, and vaccination efforts in 20 states were disrupted. It is said that much of the infrastructure was built decades ago, when it was anticipated that the environment around it would remain stable, and fluctuate predictably. Now, climate change is severely impacting the economy as it brings more frequent and intense storms, floods, heat waves and wildfires, affecting road networks, railways, drinking-water systems, power plants, electrical grids, industrial waste sites and homes. The domino effect of breakdowns is hard to predict. Officials with the Electric Reliability Council of Texas said that grid operators implemented blackouts to avoid a catastrophic failure that could have left Texans in the dark for months.

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Effective internal complaints management Insurance Law

In October 2014, the Financial Services Board (FSB), as it was known at the time, released a discussion document relating to Complaint Management. The purpose of the document was to create a more consistent and comprehensive regulatory framework to support complaint management, as the existing regulatory framework was inconsistent, especially in the Insurance sector.

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An artwork as intergenerational conversation Constitutional Court Art Collection / Cover

The title of Richard 'Specs' Ndimande's artwork, Inkunzi Yenkabi, translates to "a bull of a hitman (in Zulu, 'inkunzi' is a bull and 'yenkabi' a hitman). The work depicts a human-animal hybrid, representing Specs and his father in intergenerational conversation. They sit beside a hyena, sharing a viewpoint and are placed in a strange alliance. The artist is fascinated by the human-animal hybrid that, for him, represents the oppressed who are metaphorically treated like animals, and the oppressor, who is seen as a beast. It is not obvious who the exploiter is and who is really in power, a dichotomy that remains to be negotiated in post-apartheid South Africa. Yet, Animals in Specs' work are also potent markers of the qualities he values in others, particularly his father, whom he associates with the buffalo for its fierceness and resilience.

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Litigation finance enhances access to justice Litigation

While different countries across the continent have different legal takes on litigation financing, the scenario in South Africa is that although litigation financing is entirely unregulated at the moment, it enables one of the most important rights that our Constitution embodies: the right for anyone to access our court system, irrespective of their financial ability – or rather lack of it – to do so.

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MUHLBERG’S BRIEF - Oceans apart Intellectual Property - Law

You're a smoker. 'Pacific' is your brand. You see a pack of Atlantic. "Whoa, that's confusing," you wheeze under your stale breath. Or do you?

Intro

Is the cigarette trade mark 'Pacific' infringed by the cigarette trade mark 'Atlantic'? That's the great smoking issue that a South African court had to decide (Open Horizon Ltd v Carnilinx (Pty) Ltd, Gauteng High Court, (66901/2019) [2020] ZAGPPHC 674 (20 November 2020). The trade mark 'Pacific' is registered in South Africa in Class 34 for cigarettes, in the name of a company called Open Horizon. A former licensee and now competitor of this company, Carnilinx, uses (and sought to register) 'Atlantic' and marks such as Atlantic Breeze and Atlantic Blue. Open Horizon sued for trade mark infringement.

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From what constitutes a parent, to soundness of mind: three fiduciary-related court case summaries by FISA Law of Succession

Court case about "parent" in intestate succession. The following judgment is not yet available on SAFLII or another open source platform and, due to copyright concerns, we cannot yet supply a link to the judgment.

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Keeping taxpayer information secret Tax Law

The South African Revenue Service (SARS), like most tax authorities around the world, keeps taxpayer information secret. The Organisation for Economic Co-operation and Development (OECD) explains that, "Confidentiality of taxpayer information has always been a fundamental cornerstone of tax systems. In order to have confidence in their tax system and comply with their obligations under the law, taxpayers need to have confidence that the often sensitive financial information is not disclosed inappropriately, whether intentionally or by accident".

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SARS refunds – the game is afoot Tax Law

Getting a refund from SARS is not always as easy as it seems, and SARS' tendency to drag out the refund process unnecessarily continues for some taxpayers and VAT vendors. The elusive refund is now more important than ever, as many businesses are experiencing substantial cashflow issues due to the far-reaching implications of the COVID-19 pandemic.

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Comply, or face the music! The Law

Ndabeni v Municipal Manager: OR Tambo District Municipality and Another (1066/19) [2021] ZASCA 8 (21 January 2021) provided a (not so gentle) reminder of the importance of respecting the integrity of the judicial process.

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