September 2020


Editor’s note Editor's Note September 2020

A country made up of a disparate people, Heritage Day is a day to celebrate both individual cultural heritage and the wider diversity of all those living in a nation that was intended to belong to all its people.

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New obstacles raised against effective healthcare in SA Medical Law September 2020

Recent legal actions against practising medical professionals may deter new entrants and cause experienced practitioners to retire, which hasdire consequences for effective healthcare delivery in SA.

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Rapid growth of illicit tobacco trade amidst the COVID-19 pandemic COVID-19 The Law September 2020

On 23 March, President Cyril Ramaphosa announced a nation-wide lockdown in South Africa. Starting on 26 March, the lockdown was due to last 21 days (ending on 16 April) and aimed to address, prevent and combat the spread of the coronavirus. The government immediately invoked the Disaster Management Act (57 of 2002) and passed regulations (as amended by Gazette 43168 of 26 March 2020, and subsequently by Gazette 43199 of 2 April, Gazette 43232 of 16 April and Gazette 43240 of 20 April) to deal with the pandemic.

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Aligning legislation and criminal sanctions with the norms of society COVID-19 The Law September 2020

It is essential for the stability of our society, and respect for the rule of the law, that parliament pass laws and promulgate legislation which willbear scrutiny when evaluated against the norms of our society, the expectations of the everyday life of South Africans, and the values enshrined in our Constitution.

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Dismissing the aggrieved... Employment Law September 2020

In practice, it is not uncommon for grievance procedures to be invoked as a reaction to disciplinary proceedings. This occurs when an employee facing disciplinary charges or potential charges lodges a grievance with the employer relating to the same subject matter. An employee who lodges a grievance and subsequently finds themselves dismissed will no doubt have the suspicion that the reason for their dismissal was the fact that they had lodged a grievance, rather than for an act of misconduct. Yet, many would agree that dismissing an employee merely for the act of raising a grievance, either in terms of statute, an employment agreement or a workplace policy, would be contrary to the very purpose of the grievance process and basic principles relating to fair employment practices.

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The legal impact of the #BLM movement on employers Employment Law September 2020

Following the death of George Floyd in the USA, there has been increased global attention on the #BlackLivesMatter (BLM) Movement. Recently, we witnessed various sporting codes encouraging those involved to take the knee before the commencement of an event, in solidarity with the BLM Movement.

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The importance of having a justifiable reason for employing on a fixed term contract Employment Law September 2020

Background to National Union of Public Service and Allied Workers v Mfingwana and others [2020] 6 BLLR 600 (LC) (20 February 2020).

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Guidance on Responsible Leadership by directors during COVID-19 COVID-19 Company Law September 2020

In the July 2020 issue of without prejudice, we published an article titled "Decisions by companies during COVID-19 Lockdown: Oppressive or prejudicial?". That article served to highlight the potential liability which may befall directors as a result of decisions made by them as a consequence of the COVID-19 pandemic and the ensuing lockdown in South Africa.

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Guidance from King IV COVID-19 Company Law September 2020

It is now more than five months since government announced a National State of Disaster in response to the COVID-19 pandemic and shortly thereafter, a nationwide lockdown of all "non-essential" industries. This has caused a massive disruption to our economy. It has wreaked havoc on business owners and employees. The fallout, and the challenges that come with it, will endure for some time. The disruption can, however, present new opportunities and prove a catalyst for change.

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THIS MAY BE THE SECOND LAST ISSUE OF without prejudice Advertising September 2020

without prejudice is 19 years old. Prior to lockdown, the hard copy of the magazine looked very different from the way it did in October 2001. Currently, as readers know, it is only published in digital format.

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Fraud in a contract unravels all Contract Law September 2020

The recent Supreme Court of Appeal (SCA) judgment of Namasthethu Electrical (Pty) LTD v City of Cape Town and Another (Case no 201/19) (2020) ZASCA (29 June 2020) demonstrates that an adjudication clause in a contract cannot be used to save a contract entered into as a result of fraudulent misrepresentation.

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Commercial disputes and COVID-19 – a business perspective COVID-19 Contract Law September 2020

As business unusual continues around the world, the interpretation of commercial contracts has become even more complex. Nobody anticipated the impact that the pandemic would have on businesses and the economy through government enforced lockdowns.

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Can COVID–19 be classified as Force Majeure in South Africa? COVID-19 Contract Law September 2020

The 23rd of March will forever be etched in the minds of South Africans. The President of the Republic of South Africa, Cyril Ramaphosa, declared a 21-day national lockdown effective from midnight on Thursday, 26 March 2020 to Thursday, 16 April 2020 to curb the spread of the coronavirus. The question is, to what extent can COVID–19 be declared force majeure in a South African legal context? Force majeure – Irresistible force, unforeseen and external.

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Nigeria’s new Federal Competition and Consumer Protection Commission flexes its muscles COVID-19 Competition Law September 2020

The Nigerian Federal Competition and Consumer Protection Commission is only 18 months' old, but has already been praised for its proactive enforcement of consumer protection and competition laws, particularly during the COVID-19 crisis.

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Till murder us do part with reward Divorce law September 2020

A spouse in divorce proceedings can obtain a forfeiture order of matrimonial property benefits, but a murdered spouse cannot.

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