June 2020


Editor’s note - June 2020 Editor's Note June 2020

Over a third of the articles in without prejudice this month are COVID-19 related. Since life is currently dictated by regulations surrounding the virus, this comes as no surprise. But what these articles do is to highlight how wide COVID-19's reach is – and the articles barely scratch the surface.

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COVID-19: Ensure opportunistic product offerings are legally compliant COVID-19 Medical Law June 2020

Demand for new products to combat COVID-19 infections presents an opportunity for businesses under strain, but they should be aware of advertising, medical and intellectual property restrictions.

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When did saving lives become a decision on who gets to live? COVID-19 Medical Law June 2020

"I had the worst day of my whole Nursing career today. We were literally discussing who gets to live and who dies – there are not enough ventilators in our hospital for all who need one. My heart is broken. How did we get here?"

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Genetic-link requirement for surrogacy Medical Law June 2020

Legalities pertaining to surrogacy in South Africa are prescribed by the Children's Act, (38 of 2005) Chapter 19.

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Being a ‘good enough’ parent COVID-19 Opinion June 2020

Coronavirus and the Lockdown have cast us into a 'new reality' that has in many ways merged our personal and professional lives. Shrouded in the unknown, we have been stretched in new ways and forced to take on novel roles.

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Academics and pandemics: A student’s perspective during the lockdown COVID-19 Opinion June 2020

For many people (including myself), the 1st of January 2020 felt like a day that couldn't come sooner. 2019 had been an especially difficult study year, with the leap from first to second year comparable to an Olympic long jump. However, what I didn't anticipate is that 2020 would spiral into disaster, almost from the get-go.

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Retrenching the efforts of SAA’s business rescue practitioners Company Law June 2020

On 9 March, the business rescue practitioners (BRPs) of South African Airways (SAA) issued notices in terms of s189 (3) of the Labour Relations Act (LRA) inviting employees to consult on retrenchment processes. With the consultation process period set to expire on 8 May, the National Union of Metalworkers of South Africa (NUMSA) and the SA Cabin Crew Association launched urgent proceedings out of the Labour Court against SAA and its BRPs, in terms of which the applicant unions sought an order declaring the BRPs' conduct in issuing the notices procedurally unfair. The court upheld the urgent application, and ordered the BRPs to withdraw the notices.

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Interests of justice and public interests came to the rescue of a chronically ill company Company Law June 2020

Ziegler South Africa (Pty) Ltd v South African Express Airways SOC Limited and Others [2020] ZAGP JHC 29 (6 February 2020) illustrates a dilemma of an air craft company opposing the application to commence supervision and place it (the company) under business rescue proceedings in terms of s131(4)(a) of the Companies Act (71 of 2008).

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A perspective on directors’ duties in the time of COVID-19 COVID-19 Company Law June 2020

The standard of directors' conduct is key to the success, or failure, of companies. The Companies Act of 2008 sets out the duties, standards of conduct and liabilities of directors. These duties include fiduciary duties, a duty to act in the best interests of the company and a duty of reasonable care. Directors may be held liable for any loss, damages or costs sustained by a company as a consequence of any breach by directors in the execution of these duties.

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Success fees to business rescue practitioners: important aspects to consider COVID-19 Company Law June 2020

Setting the scene

The COVID-19 pandemic has had a devastating global impact. Governments have had to take drastic steps to curb its spread; South Africa is no exception. On 25 March, the South African government took decisive action by declaring a nationwide lockdown in an effort to flatten the COVID-19 curve. This initial five week lockdown was set to end on 30 April and was a necessary step, given the critical and life-threatening nature of the pandemic. However, it is undeniable that the economic cost and impact of the extended lockdown will be far-reaching, and will undoubtedly result in challenging trading conditions in South Africa for the foreseeable future.

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‘Cometh the hour, cometh the man’ Management / Leadership June 2020

Over the past few months, the aphorism "cometh the hour, cometh the man" has frequently come to mind. Regrettably though, this thought has not echoed in a Winston Churchillian way but rather, owing to the global dearth of impressive leaders coming to the fore during this time of crisis, as a question. This lack of leadership is particularly confusing at a time when leadership has become a commoditised skill – something to be taught through on-line effective leadership articles, 8-step PowerPoint presentations outlining leadership essentials, TED talks, personal coaches, courses at colleges and so forth.

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The last word on whether a union may ignore its constitution Employment Law June 2020

On 26 March, the Constitutional Court found that a registered trade union may not exercise organisational rights in respect of members employed in industries that fall outside of the union's scope – as defined in its constitution. The case is National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others (CCT 172/19) [2020] ZACC 7 (26 March 2020).

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Arbitrary not equal to discriminatory Employment Law June 2020

In 2013, s6(1) of the Employment Equity Act was amended to include the phrase at the end of the list of the grounds on which an employer may not discriminate against an employee "or any other arbitrary ground".

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High stakes, low thresholds Employment Law June 2020

Employers are often cautious when seeking to discipline senior managerial employees who fail to meet the performance standards required of them. There are a number of reasons for this. The nature of a dismissal for poor performance often involves 'soft' issues and requires employers to demonstrate a deficiency in proper management, acumen or leadership. Such qualities are not easy to prove. Senior employees also often have the financial resources to engage attorneys to represent them during any disciplinary proceedings and this can lead to delays and disruptions in the process. Fallouts between senior managers are also often extremely disruptive to a business and can sometimes lead to factionalism within a senior management team.

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Post COVID-19 labour law considerations COVID-19 Employment June 2020

The recent lockdown, which has been extended in several countries around the world, has posed a number of challenges from a legal perspective. This has forced us to consider the impact on the employer-employee relationship. As organisations are forced to close down temporarily, barring certain exceptions for essential services, it is necessary to consider the variety of options available in order to keep organisations afloat.

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