April 2019

Editor's Note - April 2019 Editor's Note April 2019

In April we traditionally publish the first of three "top student" sections. The Class of 2009 is in the limelight and readers will find interesting the diverse routes taken.

The medico-legal risks of amending clinical records Medical Law April 2019

A health care practitioner's clinical records are not only important to ensure good clinical practice but they are invaluable when it comes to medico-legal matters.

Robust crypto asset regulations in the pipeline Financial Law April 2019

South African Regulators have issued a consultation paper that proposes firm regulations for crypto assets to mitigate the risks associated with crypto trading.

Which credit agreements with juristic persons are governed by the National Credit Act? Financial Law April 2019

A credit agreement governed by the National Credit Act (NCA) triggers various compliance requirements for the credit provider covering at least credit marketing, prescribed disclosure, credit assessments, documentation, amendments, communication, payment allocation, statements, pre-payments, pricing, collections and reporting. Any non-compliance may have severe consequences, including a huge administrative fine and/or suspension or cancellation of registration as a credit provider [s150]. It is therefore crucial to determine whether a credit agreement is governed by the NCA or not.

The Financial Intelligence Centre Amendment Act – The dawn of a new era Financial Law April 2019

The Financial Intelligence Centre Amendment Act was gazetted on 2 May 2017. As per the Financial Intelligence Centre, the key objective of the Act is to improve the protection of the integrity of South Africa's financial system and strengthen its ability to prevent and punish financial crimes such as money laundering, illicit capital flows, tax evasion, corruption, bribery and financing of terrorism. Accountable Institutions must implement The Amendment Act by April.

The Marriages Act v The Civil Unions Act Civil Law April 2019

Heterosexual couples intending to get married in South Africa today can choose to marry either in terms of the Marriages Act or the Civil Unions Act. This begs the question: why do we have two pieces of legislation to regulate a single act of union and what are the implications of choosing one over the other?

Not always a need to have a separate hearing on sanction Employment Law April 2019

The Labour Appeal Court has, thankfully, recently dispelled what I have always considered to be an urban myth relating to disciplinary hearings and the issue of sanction; namely that you cannot deal with issues such as the mitigation and aggravation of sanction at the same time that you deal with the facts which establish whether the employee is guilty of the misconduct or not.

Removal of directors: does it constitute dismissal under the Labour Relations Act? Employment Law April 2019

The Companies Act (71 of 2008) regulates the removal of directors. A director of a company may be removed as a director in terms of s71 (removal of directors) and s137(5) (effect on shareholders and directors).

The deeming provision put to the test Employment Law April 2019

Last year saw the landmark Constitutional Court case in which the interpretation of s198A(3)(b) of the Labour Relations Act (66 of 1995) (LRA) was debated. In the case of Chep South Africa (Pty) Ltd v CCMA and others JR136/16, this interpretation was again questioned.

Distillate fuel refund system reform: long journey ahead Mining Law April 2019

The distillate fuel refund system came into existence as an attempt by the state to support primary production in the primary industries (mainly agriculture, mining, forestry and fishing), and refunds a portion of the distillate fuel used in primary activities. The system is based on the principle of self assessment and, therefore, places the duty on the taxpayer to provide proof of entitlement.

Tackling the Big Fish Company Law April 2019

On 5 March, in Big Catch Fishing Tackle Proprietary Limited and Others v Justin Miles Kemp and Others (17281/18) [2019] ZAWCHC 20, De Waal AJ dismissed an application instituted for interim relief with costs against the second to fifth applicants, on the basis that the applicants had not made out a case that they would suffer irreparable harm if the interdict was not granted.

Unbundling is but one of the many quandaries facing Eskom Energy Law April 2019

President Cyril Ramaphosa, during his State of the Nation address, pronounced that debt-laden power utility Eskom would be unbundled and split into three separate entities viz generation, transmission and distribution.

Determining the validity of a sworn affidavit for B-BBEE empowerment compliance B-BBEEE April 2019

On 3 September 2018, the Broad-Based Black Economic Empowerment Commission issued a Practice Guide, which clarified the Broad-Based Black Economic Empowerment (B-BBEE) requirements for Exempted Micro Enterprises (EMEs) and Qualifying Small Enterprises (QSEs).

Strict liability: Dog owners (and insurers) beware! Insurance Law April 2019

The prevalence of crime in South Africa prompts many homeowners to keep guard dogs in the hope of safeguarding their property and deterring burglars. However, dog owners and their insurers, where applicable, should be wary of attracting liability under the actio de pauperie (the actio) for harm caused by domesticated animals. Under this actio, a victim of a dog bite can claim damages, relating both to property and person, without having to prove fault on the dog owner's part.

The doctrine of vetustas Property Law April 2019

In a landmark judgment in the matter of Community of Grootkraal v Botha NO and Others (1219/2017) [2018] ZASCA 158 (28 November 2018), the Supreme Court of Appeal (SCA) upheld an appeal by the Community of Grootkraal that it has a legal right to use and occupy land owned by somebody else, "which land has since time immemorial been used by Community of Grootkraal for religious and other purposes".