November 2020


Editor’s Note Editor's Note November 2020

Apart from the medical consequences of COVID-19, one of the most devastating aspects of the resulting various levels of lockdown has been the economic impact on people.

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No, Banksy, copyright isn’t for losers Intellectual Property - Law November 2020

To describe the recent Banksy trade mark judgment as an unusual one would be an understatement. But I suppose you'd expect nothing less from a case dealing with one of the world's most interesting living artists.

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COVID and the rise of the give-me-space trade mark Intellectual Property - Law November 2020

This article deals with fluid trade marks. If you're now thinking, "Give it a rest... I just can't keep up with this trade mark nonsense anymore", relax - the term simply refers to the by-now quite popular practice of brand owners using variations of well-known brand names or logos.

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Fiduciary-related court case summaries by FISA Law of Succession November 2020

Court rules life partners are spouses for intestate succession.

Bwanya v Master of the High Court, Cape Town and Others [2020] ZAWCHC 111. The applicant (B) and R met in February 2014 and started living together in R's house in June 2014. The undisputed evidence before the court was that R treated B as his wife. To friends, with whom they mixed socially, their relationship at all times appeared to be that of a loving couple.

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Introduction - Employment Law Feature November 2020 Employment Law - Feature November 2020

There have been many comments made that this is an exciting time in which to be involved in Employment Law. COVID-19 brought in its wake considerable change and challenges previously not considered.


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RUMOUR HAS IT: WORKPLACE GOSSIP, DISCRIMINATION AND SEXIST STEREOTYPING Employment Law - Feature November 2020

Office gossip is a common occurrence. Employers may prefer to ignore rumours or pass them off as mere lowly tales, for fear that recognising their existence would be improper in a professional environment. This approach is not without its flaws, particularly where these rumours amount to discrimination and victims are left without relief.

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RESIGNING AFTER DISCIPLINARY ACTION BUT BEFORE SANCTION – WHAT IS THE LEGAL EFFECT? Employment Law - Feature November 2020

In a recent judgment, Mthobisi Mthimkhulu v Standard Bank of South Africa (J928/20) (18 September 2020), the Labour Court considered whether an employee, who has been found guilty of serious misconduct, can avoid the ultimate sanction of dismissal by resigning before the employer imposes the sanction.

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A COLLISION COURSE OR A PARALLEL SPHERE: DISSECTION THE INTERSECTION BETWEEN LABOUR, COMPETITION AND BUSINESS RESCUE Employment Law - Feature November 2020

In a well-considered piece, Professor Stefan van Eck analyses existing labour laws under the topic: "Constitutionalisation of South African Labour Law: An Experiment in the Making". Professor van Eck notes,"although this state of affairs [the rights of employees] may not necessarily be evident in practice, workers' human rights were for the first time entrenched in the South African Constitution 16 [at the time] years ago: a new set of labour laws that give effect to International Labour Organisation (ILO) principles were enacted between 1996 and 1998 and local labour law reforms during 2002 witnessed further strengthening of worker's rights in the statute books. In theory also, workers' rights have been promoted on a regional level in the Southern African Development Community's (SADC)...".

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KEY CHANGES TO THE ‘CONSOLIDATED DIRECTION ON OCCUPATIONAL HEALTH AND SAFETY MEASURES IN CERTAIN WORKPLACES’ Employment Law - Feature November 2020

On 1 October, the Minister of Employment and Labour published revised Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces for purposes of guiding employers in handling COVID-19 in the workplace.

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BLOWING THE WHISTLE…WITHOUT BLOWING YOUR REPUTATION Employment Law - Feature November 2020

As organisations face added financial pressures in the wake of the recent global economic downturn, stakeholders need to remain vigilant in their plight against fraud and corruption.

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SECTION 4 OF RICA: THE BIG BROTHER CONSTANT AND THE ADMISSIBILITY OF SECRET RECORDINGS Employment Law - Feature November 2020

COVID-19 has definitively altered the workplace and has accelerated a changing work order. Never before have employers had to manage their work- places as delicately as under the current circumstances, which have forced the world of work to become largely remote.

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RETRENCHMENTS, RESTRAINTS OF TRADE AND COVID-19: TERMINATION OF EMPLOY- MENT FOR “ANY REASON WHATSOEVER”? Employment Law - Feature November 2020

The negative economic impact caused by the COVID-19 pandemic has resulted in many employers embarking on retrenchment proceedings.

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WHAT WILL WE TAKE WITH US? Employment Law - Feature November 2020

An odd question I heard someone ask this week was "if your house was on fire, and all people and pets were safe, what one possession would you hope could be rescued?"

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CANNABIS IN THE WORKPLACE – MTHEMBU AN UNCERTAIN FIRST STEP Employment Law - Feature November 2020

On 18 September 2018, the Constitutional Court decriminalised private cultivation, possession and use of cannabis in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others as intervening parties, Doctors for Life International Inc as amicus curiae) and related matters 2018 (10) BCLR 1220 (CC). At the time that the judgment was handed down, it seemed unlikely that the workplace would fall within the scope of the judgment and unlikely that any reasonable employee would attempt to consume cannabis while at work. However, contrary to what the judgment contemplated, it happened that the issue of where the workplace falls within the legislation was discussed in a case involving an employee who consumed the drug outside working hours and thereafter reported for work. The Cannabis for Private Purposes Bill is currently going through the legislative process and it is, therefore, a good time to review Mthembu and Others v NCT Durban Wood Chips [2019] 4 BALR 369 (CCMA).

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REFERRING MORE THAN ONE DISPUTE FOR THE SAME SET OF FACTS Employment Law - Feature November 2020

This article discusses the case of Feni v Commission for Conciliation, Mediation and Arbitration and Others (JA30/2019) [2020] ZALAC 24; (2020) 41 ILJ 1899 (LAC).

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