Bulletin` 43 of 2019 Period: 18 October 2019 – 25 October 2019
IMPORTANT NEWS
COMMENT IS SOUGHT ON TWO SETS OF PROPOSED AMENDMENTS TO THE MAGISTRATES’ COURTS RULES.
Summarised in notices posted on the Department of Justice & Constitutional Development website, the changes envisaged affect the form used for issuing a summons (in which an ‘automatic rent interdict’ is included); and Rule 54, among other things with the aim of aligning it with ‘Uniform Rule 14 of the High Court, albeit with appropriate adjustments’. Rule 54 deals with ‘actions by and against partners, a person carrying on business in a name or style other than his or her own name, an unincorporated company, syndicate or association’.
The deadlines for input have been set at 6 and 13 December respectively.
Source: Legalbrief Today, 22 October 2019
TIME UNTIL 15 NOVEMBER TO COMMENT ON LEGAL FEES PAPER
The deadline for comment on a legal fees and tariffs issue paper released by the SALRC in May has been extended. The move has been attributed to the ‘dearth of information’ received thus far on ‘attorney and client fees/bills of costs’ in ‘litigious and non-litigious matters’ across SA’s ‘various geographical areas’. Sub-sections 35(4) and (5) of the 2014 Legal Practice Act mandate the commission to ‘investigate and … report back to the Minister with recommendations on the circumstances giving rise to legal fees that are unattainable for most people’; legislative and other interventions that would ‘improve access to justice by members of the public’; and ‘the desirability of establishing a mechanism … responsible for determining fees and tariffs payable to legal practitioners’.
Source: Legalbrief Today, 22 October 2019
LPC TIGHTENS CONTINGENCY FEE RULES TO END RIP-OFFS
Lawyers ripping off their clients to the tune of millions in contingency fees will be up against the new rules promulgated by the Legal Practice Council (LPC). The Daily Dispatch notes lawyers have been exposed for taking the lion’s share of their clients’ damages and other payouts as fees, leaving disabled and vulnerable clients without the means of improving their plight, despite succeeding in multimillion-rand damages and other claims. Ambiguities in the Contingency Fees Act have created loopholes that lawyers have exploited, notes the report. One such lawyer, Zuko Nonxuba, claimed about R5.7m (62%) of a severely disabled man’s R9m combined damages and Road Accident Fund payout. After the Daily Dispatch exposed this, Nonxuba was finally forced to admit his contingency fee agreements were illicit and repaid his client another R3.6m. The recently-established LPC’s new rules leave very little wriggle room for lawyers to charge more than the Act intended. Legal cost consultant Mark Bowles, who has been an outspoken advocate against abuses, says it has taken more than a decade for the rules to be published. In that time, he said, there was ‘huge abuse’. The rules make it clear that the fee charged by a litigant’s legal team may never exceed 25% of the damages awarded to the client, no matter how many legal practitioners are involved. Until the rules made this aspect clear, attorneys would claim 25% of the award for themselves and then add the advocate’s fee, says the report. They would also charge the costs they incurred.
Source: Legalbrief Today, 21 October 2019
AMENDMENTS TO THE HIGH COURT AND MAGISTRATE COURT RULES
The amendments come into operation on 22 November 2019.
High Court rules amended and/or substituted:
• Rule 1 Definitions 2
• Rule 2 Sittings of court and recess periods • Rule 4 Service • Rule 19 Notice of Intention to Defend • Rule 23 Exceptions and applications to strike out • Rule 68 Tariff for sheriffs
Magistrates’ Court rules amended and/or substituted:
• Rule 1 Definitions • Rule 68 Oath of office of interpreter and intermediary • Part II Table C of Annexure 2 Sheriffs’ travelling allowance
Source: Government Gazette 42773, 18 October 2019
NEW FIREARMS AMNESTY IMMINENT?
A new firearms amnesty could be in place before the end of the year, according to the National Assembly’s Police Committee. The media statement announcing this also points to the possibility that people whose firearms licences have expired will be allowed to apply for their renewal during the six-month amnesty period envisaged.
Source: Legalbrief Today, 24 October 2019
PARLIAMENT TO CONSIDER ALL EXPROPRIATION REPORTS
Parliament’s ad hoc committee tasked with looking into the controversial issue of land expropriation will consider various reports on the matter, including one by former President Kgalema Motlanthe, which suggested amending the Constitution was not necessary. But this is unlikely to sway the outcome of the process as MPs mainly from the ANC and EFF are set on amending the Constitution to make it clear how land can be expropriated without compensation, notes a Business Day report. It says their determination flies in the face of concerns the amendment will rattle investors, threaten food security and hurt economic activity and job creation. With Parliament rushing to conclude the matter by March 2020, Motlanthe’s report was largely ignored by previous committees that dealt with the proposed amendment to the Constitution. In 2018, Motlanthe proposed that, instead of amending the Constitution, the government use expropriation powers currently available more boldly. Motlanthe’s panel also found that a lack of leadership and policy direction, corruption and inadequate budgets were to blame for SA’s failed land reform. The budget for land reform is less than 0.4% of the national budget. Of this, less than 0.1% is set aside for land redistribution. In a media briefing yesterday, House chair Cedric Frolick gave the assurance the committee will consider all official reports on the matter. And according to a Polity report, he said the Bill could be ready for gazetting before the end of the year. ‘We anticipate the draft Bill will be ready by mid December ... so that the public have the rest of January to comment on the draft Bill,’ Frolick said.
Source: Legalbrief Today, 24 October 2019
APPLICATION TO HEAR CHILDREN AN 'ABUSE OF PROCESS’
Western Cape High Court Judge Lee Bozalek has dismissed, with costs, an application to have children's voices heard in court proceedings in a unique case brought before him last week, says a News24 report. The broad strokes of the case involve a dispute between the parents of the children – aged eight and 11 – after the father won custody following fears that they were not being adequately cared for by their mother. After their father was granted a relocation application to Alaska on the back of winning custody, the mother was granted leave to appeal. By that point he had already left the country with them. In April, she won an application, which is at the heart of the current dispute, to have the children returned to SA by June. That order was granted by Judge Judith Cloete, who, according to Bozalek, was ‘in no way required to rule on the best dispensation for the children in the medium or long term’. In keeping with the question of whether the children's father was in contempt of a court order – a point raised by Advocate Brian Pincus arguing on his behalf – Bozalek added the children's interest were best served by their father's compliance with the court order. ‘I recognise that, even at this late stage, requiring the children to be returned to SA will cause them hardship and is against their present wishes. Nonetheless, such a course is, in my view, by far the lesser of two evils.’ He ended by slamming the application to hear the children's voices as ‘an abuse of process’ that ‘smacks of being a late afterthought … and is essentially a self-serving, if not disingenuous argument’. Costs were awarded on an attorney and client scale.
Source: Legalbrief Today, 23.October 2019
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LAWYER CHALLENGES TRAFFIC DEMERIT SYSTEM
Justice Project SA’s Howard Dembovsky believes that ‘guilty until proven innocent’ is the problem with the traffic demerit system. On top of this, he believes the system will be an administrative nightmare and is based on flawed laws and aimed at filling government coffers. The Herald reports Dembovsky has taken the matter against the government to the Gauteng High Court (Pretoria), claiming that the Administrative Adjudication of Road Traffic Offences (Aarto) Act is constitutionally flawed. ‘This is because it is built on a presumption of guilt, rather than of innocence, as enshrined in the Constitution. There is no onus on the state to prove its allegations. It is up to you to prove your innocence,’ he said. ‘If my constitutional litigation succeeds and small fortunes have been spent on equipping local and provincial authorities to implement the Aarto Act, will that not constitute wasteful expenditure on a huge scale?’ His legal challenge, launched in April 2018, will be heard in early 2020. The Road Traffic Infringement Agency has indicated that it will oppose the application, and has appointed lawyers to do so.
Source: Legalbrief Today, 24 October 2019
INTIMIDATION ACT LIMITS FREE EXPRESSION – RULING
In a unanimous judgment, the Constitutional Court has ruled that sections of the Intimidation Act are unconstitutional, finding that one limits the right to freedom of expression and the other creates a reverse onus, notes Legalbrief. The sections at issue were sections 1(1)(b) and 1(2). Section 1(1)b of the Act criminalises any speech or conduct which creates a subjective fear in any person, regardless of whether the conduct or speech in question is intended to create fear. Section 1(2) provides that a person charged under section 1 has to prove a lawful reason exists for their conduct. ‘The respondent failed to place any evidence before this court which showed why such an infringement is reasonable or justifiable,’ the judgment said. ‘In terms of Section 1(2) this court confirms the declaration of constitutional invalidity made by the SCA; however, the court finds that this section creates a reverse onus and not a mere evidentiary burden on the accused.’
Source: Legalbrief Today, 23 October 2019
SCHOOL USING CONCOURT JUDGMENT TO BACK APPEAL BID
The governing body of Grey College in Bloemfontein is heading back to the SCA – this time armed with a recent judgment by the Constitutional Court regarding the powers of governing bodies. According to a Volksblad report, the school is petitioning the SCA for leave to appeal after the Free State High Court refused it leave to appeal a judgment placing the provincial department in charge of the school’s finances. The Department of Education had acted on a complaint that the school had used R1.5m of school fees to fund a futile legal bid to strip headmaster Deon Scheepers of some of his powers. Judges Henriëtte Murray and Sharon Chesiwe held that school fees may be used only for educational purposes. However, in its petition, the governing body cites the case of Moodley v Kenmont School and Others in which the Constitutional Court recently held it is part of a governing body’s duties to get involved in litigation and use school fees for this purpose, notes the report. Based on this development, the governing body argues, the SCA should grant it leave to appeal. The department and MEC have indicated they will oppose the application.
Source: Legalbrief Today, 23 October 2019
CONCERN OVER SECURITY COMPANIES COLLECTING PERSONAL DATA
Security companies should implement zero visibility technology and policies so only senior personnel can gain access to captured personal particulars. This suggestion follows alarms being raised by the Justice Project SA (JPSA) over the sharing of personal information at private estates or gated communities, notes a Weekend Argus report. Lee Marcus, from Robyn Hey Attorneys, suggested that only in emergencies or justifiable legal circumstances should personal info be accessed. ‘Visitors should be assured that their details will be deleted after a reasonably short period. The property owners will want this period to be longer, to help them trace and deal with offenders, damage and crime, for example. Individuals will inevitably prefer their details deleted without any delay. These are competing interests – both entirely valid – so a balance will have to be struck,’ said Marcus.
JPSA chairperson Howard Dembovsky said their concern began when a vehicle registration was cloned several times after the owner willingly shared details with guards at a private estate. ‘This is more common than we think it is. The Protection of Information Act is very specific. You have to destroy the information when it is no longer required, (but) there is no one to make sure that information is destroyed.’ Marcus said the root cause of the concern was not the fact that personal information was requested from visitors. ‘The problem is not knowing what might be done with that information. Is it secure? How is it stored, and for how long? Will it be shared? Can it be hacked and misused? It is in the answers to these questions that one is more likely to find unlawful behaviour that exposes people to risk.’ 4
Source: Legalbrief Today, 21 October 2019
EMPLOYMENT EQUITY AMENDMENTS THIS YEAR – MINISTER
The Department of Employment & Labour is aiming to table amendments to the Employment Equity Act before the end of the year. A Cape Times report notes this was revealed by Employment & Labour Minister Thulas Nxesi in his written response to the DA, which inquired about the punitive measures the government intended taking against employers who did not meet employment equity targets. ‘It is important to highlight that in order to expedite the pace of transformation and address non-compliance with the requirements of the Employment Equity Act, there are proposed amendments in the Bill, which include progressive measures that will be undertaken by the government to address non-compliance. The Amendment Bill will be tabled in Parliament for deliberation probably before the end of this year,’ Nxesi said. He said the Amendment Bill would empower him to regulate sector specific numerical employment equity targets, which should accelerate transformation in various economic sectors. ‘The current self-regulated employment equity targets did not yield positive results over the 21 years of the Employment Equity Act.’ The Amendment Bill provides for the issuing of an employment equity certificate of compliance, as a prerequisite for accessing state contracts and to do business with the state. Once passed into law, employers who were compliant with law would receive an equity certificate of compliance as a precondition to access state contracts worth R1.2bn.
Source: Legalbrief Today, 21 October 2019
AA SLAMS ‘STEALTH TAX’ ON EVERY AARTO FINE
The government is adding ‘stealth tax’ to the Administrative Adjudication of Road Traffic Offences (Aarto) Act, with the introduction of an Infringement Penalty Levy, provided for in the recently-published draft regulations for the Act. ‘With regard to the Infringement Penalty Levy, the regulations directly imply the imposition of a tax,’ the Automobile Association (AA) said. ‘In this case, it refers to a fee payable for every infringement notice issued to motorists. On our interpretation of the draft regulation, this means an additional R100 is added to each fine issued, regardless of the value of the fine or its associated demerit points.’ According to a TimesLIVE report, the association said assuming 20m infringement notices were issued annually this would amount to a R2bn windfall for the Road Traffic Infringement Agency, with a single line of legislation. ‘It’s an unacceptable fee and, in the case of minor infringements, may nearly double the fine payable,’ the AA said. Apart from this fee, the association said it was unconscionable that private motorists must pay up to R240 simply to inquire as to the status of their demerit points, and noted with concern that the inquiry fees for companies run into thousands of rands. It said upon further review of the draft regulations, it remained convinced they were geared more towards revenue collection than dealing with road deaths or creating a safer driving environment. It said another area of concern was that a number of provisions remained unclear and created a level of bureaucracy that would ultimately cripple the system.
Source: Legalbrief Today, 22 October 2019
RECOMMENDED READING
The last days of tax-free foreign earnings , by Aneria Bouwer and Sduduzo Mhlongo at Bowmans , www.polity.org.za, October 2019
You snooze you lose, and with trademarks, you don’t use you lose…. by Refiloe Nene, KISCH IP, www.polity.org.za, October 2019
RECENT CONSTITUTIONAL COURT JUDGMENTS
MOYO AND ANOTHER v MINISTER OF POLICE AND OTHERS; SONTI AND ANOTHER v MINISTER OF POLICE AND OTHERS (CCT174/18; CCT178/18) [2019] ZACC 40 (22 OCTOBER 2019)
Intimidation Act 72 of 1982 — constitutionality of section 1(1)(b) and section 1(2) — provisions are unconstitutional
ASCENDIS ANIMAL HEALTH (PTY) LIMITED v MERCK SHARPE DOHME CORPORATION AND OTHERS (CCT 212/18) [2019] ZACC 41 (24 OCTOBER 2019)
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Patents Act 57 of 1978 — section 61 — causes of action — res judicata — issue estoppel — bifurcated proceedings — amendment of pleas
Source: www.saflii.org.za
INDUSTRIAL LAW JOURNAL – NOVEMBER 2019
JURISDICTION — HIGH COURT, LABOUR COURT AND CCMA
The Supreme Court of Appeal has confirmed the parameters of the Labour Court’s exclusive jurisdiction in terms of s 77(1) of the Basic Conditions of Employment Act 75 of 1997, holding that the provisions of s 77(1) do no more than confer a residual exclusive jurisdiction on the Labour Court to deal with those matters that the BCEA requires to be dealt with by that court. Generally, in instances where the dispute relates to, is linked to, or is connected with an employment contract, s 77(3) of the BCEA, which confers concurrent jurisdiction on the civil courts and the labour courts, applies (Lewarne v Fochem International (Pty) Ltd at 2473).
In National Union of Metalworkers of SA & others v Natal Stainless Steel (Pty) Ltd (at 2598) the Labour Court found that it had no jurisdiction to adjudicate an unfair dismissal dispute that had been abandoned and had not been referred to it, which the applicant union sought to resurrect by coupling it to a selective re-employment dispute.
Casual workers employed on an ad hoc basis by the employer referred a dispute to the CCMA in terms of s 198A of the LRA 1995 alleging unfair treatment and seeking the same working hours and pay as permanent employees. The CCMA commissioner found that s 198A afforded recourse to persons employed by a temporary employment service and not an employer, and that casual workers working on an ad hoc basis were not covered by s 198A. The CCMA accordingly did not have jurisdiction to determine their dispute (African Meat Industry & Allied Trade Union on behalf of Madikane & others and Illovo Sugar SA (Pty) Ltd at 2633).
The employee referred a dispute in terms of s 10 of the Employment Equity Act 55 of 1998 concerning alleged unfair discrimination to the CCMA. The commissioner found that the real nature of the dispute was alleged victimisation, and that the CCMA did not have jurisdiction to arbitrate the dispute (Dlamini and eThekwini Health at 2639).
In Thaver and Pick ’n Pay Retailers (Pty) Ltd (at 2655) the CCMA commissioner noted that rule 4 of the CCMA Rules permitted only a party or a person entitled in terms of the LRA 1995 or the CCMA Rules to represent that party to sign the referral form. The commissioner found that the employee’s attorney was not a party and, in the absence of legal representation being considered and granted, he lacked capacity to sign the referral. The referral to arbitration was therefore fatally defective and the CCMA lacked jurisdiction to entertain the dispute.
DISCIPLINARY CODE AND PROCEDURE — COMPETENT VERDICTS
In EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (at 2477) the Labour Appeal Court confirmed that there is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge-sheet, subject to the general principle that the employee should not be prejudiced. Prejudice normally will only arise where the employee has been denied knowledge of the case he has to meet. Prejudice is absent if the record shows that, had the employee been alerted to the possibility of a competent verdict on a disciplinary charge, he would not have conducted his defence any differently or would not have had any other defence.
DISCIPLINARY CODE AND PROCEDURE — PUBLIC SERVICE — REVIEW OF DECISION OF CHAIRPERSON
In both Democratic Nursing Organisation of SA on behalf of Ramaroane v Member of the Executive Council for Health, Gauteng Province & others (at 2533) and Statistics SA v Molebatsi & others (at 2603) the Labour Court considered the court’s review jurisdiction and powers under s 158(1)(h) of the LRA 1995. In DENOSA the court confirmed that it would only entertain a review in terms of s 158(1)(h) where no other remedy was available. It found that the provisions of s 158(1)(h) were not an open invitation to parties to review each and every act performed by the state as employer — if the cause of action met the definitional requirements of an unfair labour practice or an unfair dismissal, the dictates of constitutional and judicial policy mandated that the dispute had to be processed by the system established by the LRA for their resolution, and not by way of review under the provisions of s 158(1)(h). In Stats SA the court expressed its concern with the growing practice of public service employers which are dissatisfied with the decisions of their own disciplinary chairpersons of automatically approaching the court to review those decisions. It found that this constituted a misuse of the court process as a ‘back-up plan’ and that employers should rather ensure that the chairpersons presiding over 6
hearings have the necessary competence to discharge their duties properly.
DISCIPLINARY CODE AND PROCEDURE — INTERVENTION IN UNCOMPLETED DISCIPLINARY PROCEEDINGS
In Mkasi v Department of Health: KwaZulu-Natal & another (at 2576) the Labour Court granted an interdict preventing the employer from continuing with a disciplinary enquiry pending an application to review certain preliminary rulings made by the disciplinary chairperson. The court was satisfied that if the review court found in the employee’s favour, that had the potential to put a permanent end to the disciplinary hearing.
DISMISSAL — BREAKDOWN OF TRUST RELATIONSHIP
The Labour Appeal Court has found that, where it was established that the employee had wrongfully distributed valuable intellectual property belonging to a client of his employer, the employer had justifiable lost trust in the continuation of the employment relationship, and dismissal was therefore appropriate in the circumstances (EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others at 2477).
In Khambule & another v Impala Platinum Ltd & others (at 2505) the Labour Appeal Court found that an employer cannot allege a breakdown in the employment relationship where there is insufficient proximity between the employee and supervisor involved nor can it allege a breakdown at the stage that guilt is established if the relationship was not broken at the time of commission of the misconduct.
DISMISSAL — PROBATIONARY EMPLOYEE
The Labour Appeal Court has found that, where a probationary employee’s performance was unsatisfactory and her performance reviews and evaluation carried on beyond the end of the probationary period, the reasonable inference was that the parties intended to extend the probationary period until the process was completed. Thus, the CCMA commissioner’s finding that the fact that her employment had continued after the end of the probationary period indicated that she was a permanent employee and that her performance was satisfactory was irrational and had to be set aside (Ubuntu Education Fund v Paulsen NO & others at 2524).
DISMISSAL — INCAPACITY — IMPRISONMENT
In Molehe v Public Health & Social Development Sectoral Bargaining Council & others (at 2584) the Labour Court confirmed that there is no inflexible rule of law that incapacity which is outside the control of an employee cannot be a cause for his or her dismissal. In this matter the court found on the facts that, where the employee had been convicted and imprisoned for bribery and corruption and had been unable to render services to his employer, his dismissal was fair and justifiable.
REINSTATEMENT — NOT REASONABLY PRACTICABLE
The Labour Court has found that, despite the fact that the employee’s dismissal was substantively unfair, reinstatement was not the appropriate remedy where his dismissal was unfair in terms of s 186(1)(b) of the LRA 1995 and the fixed-term contract on which he relied had expired some years before the dispute was arbitrated (University of South Africa v Stapelberg NO & others at 2610).
SETTLEMENT AGREEMENT — VALIDITY
The Labour Appeal Court has found that, where both the employer and the minority union representatives held the mistaken view that the threshold agreement between the employer and the majority unions precluded the conclusion of a collective agreement conferring organisational rights on the minority union, that error had influenced the conclusion of a settlement agreement. The court accordingly upheld the Labour Court’s finding that the settlement agreement had been concluded on the basis of a common mistake and had to be set aside (Murray & Roberts (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others at 2510).
STRIKE — INTERDICT AGAINST STRIKE ACTION
In Imperial Cargo (Pty) Ltd v Democratised Transport Logistics & Allied Workers Union & others (at 2499) the Labour Appeal Court found that an employer is entitled to an order prohibiting a strike over impermissible demands even where permissible demands are also in place. It found further that a demand to rearrange weekend timetables at the employer transport and logistics company did not merely concern a change of a work practice, but was a substantive demand affecting costs — a demand which had to be bargained at bargaining council level and not plant level. 7
RESIGNATION — EFFECTIVE DATE
The Labour Court has confirmed that resignation is the unilateral termination of an employment contract by an employee and that an employer is not entitled to discipline an employee once the resignation has taken effect. However, an employee who resigns with immediate effect in circumstances where he is contractually obliged to serve a period of notice commits a breach of his employment contract, and in response the employer can elect to hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice, or else accept the employee’s repudiation, cancel the contract and claim damages. What an employer cannot do is refuse to accept the employee’s resignation (Naidoo & another v Standard Bank of SA Ltd & another at 2589).
EVIDENCE — HEARSAY EVIDENCE
The Labour Appeal Court has reiterated that the safeguards and precautions that have been developed in the criminal courts regarding the admission of hearsay evidence in order to ensure a fair trial apply, appropriately adapted, to arbitration proceedings. The court pointed out that it is not unreasonable to expect commissioners to be familiar with hearsay evidence, to be able to recognise it, and to apply the provisions of s 3 of the Law of Evidence Amendment Act 45 of 1988. The provisions of s 138 of the LRA 1995, which give commissioners a discretion to conduct arbitrations in a manner they consider appropriate, do not imply that they can arbitrarily receive or exclude hearsay, or any other evidence (Exxaro Coal (Pty) Ltd & another v Chipana & others at 2485).
The Labour Court considered the admissibility and weight to be attached to the transcript of internal disciplinary hearings at subsequent CCMA and bargaining council arbitrations. The court noted that, where the hearsay evidence has been properly tested at the disciplinary enquiry by way of cross-examination, the transcript should be afforded greater intrinsic weight than ‘simple hearsay’ because it then constitutes a comprehensive and reliable record of a prior quasi-judicial encounter between the parties. The court went on to confirm that hearsay such as a transcript of a properly run internal hearing might carry enough weight to require an accused employee to rebut allegations contained in the hearsay as long as certain guidelines have been met (Department of Home Affairs v General Public Service Sectoral Bargaining Council & others at 2544).
REPRESENTATION
In Dlamini and eThekwini Health (at 2639) the union objected to the human resources manager representing the employer as the manager had represented the employer in an earlier arbitration hearing and thus had more knowledge of the facts than the union representative. The CCMA commissioner found that the HR manager was entitled to represent the employer in terms of rule 25 of the CCMA Rules and that there was no legal requirement that representatives had to have the same degree of knowledge of a matter.
In National Education Health & Allied Workers Union on behalf of Naidoo and Durban Chamber of Commerce (at 2646) the CCMA commissioner refused the employee’s application to be represented by an attorney. The commissioner found that the unavailability of or lack of interest on the part of the union official representing the employee did not justify legal representation, especially where the matter was not complex and the employer’s representative was not legally trained.
In Coetzee and Autohaus Centurion (at 2658) the MIBCO arbitrator confirmed that prior to the promulgation of the Legal Practice Act 28 of 2014, an arbitrator had a discretion to determine whether or not to grant legal representation at the council. However, s 25 of the Legal Practice Act granted a right of appearance to any legal practitioner, ‘subject to any other law’. The LRA 1995 had not been amended to address this right and the rules promulgated by the council were subordinate to Acts of parliament, and hence the arbitrator concluded that he lacked the discretion to restrict the employee’s right to legal representation, regardless of the nature of the dispute to be arbitrated. He agreed with the employee that he was consequently entitled to legal representation as a matter of law.
PRACTICE AND PROCEDURE
Where there had been a delay of over two years and three months in the prosecution of a review application by employees, the Labour Court found that the application had lapsed and been archived in compliance with clause 11.2.7 of the Labour Court Practice Manual. In circumstances where the employees had not applied for condonation, had not offered any explanation for the excessive delay and had not shown good cause, the application remained archived and the court granted the employer’s rule 11 application to dismiss the review application (Matsha & others v Public Health & Social Development Sectoral Bargaining Council & others at 2565).
In Mkasi v Department of Health: KwaZulu-Natal & another (at 2576) the Labour Court found that there was no law enabling a disciplinary chairperson to grant absolution in a disciplinary hearing. 8
In National Union of Metalworkers of SA & others v Natal Stainless Steel (Pty) Ltd (at 2598) the Labour Court confirmed that a pretrial minute cannot expand the ambit of the dispute referred for adjudication or change the nature of the dispute.
In Steyn and SA Police Service (at 2661) the SSSBC arbitrator had, in an unfair promotion dispute, to determine whether the employee was entitled to discovery of documents pertaining to a shortlisting process despite the fact that he had not been shortlisted. The arbitrator noted that he had to determine whether the documents sought were relevant, and found that the employee was not entitled to documents relating to a process of which he was not part. The SAPS was accordingly not obliged to discover documents relating to the shortlisting.
Source: https://new.juta.co.za/law/newsletters/industrial-law-journal-preview-2/
PROCLAMATIONS AND NOTICES
RULES BOARD FOR Rules regulating the conduct of proceedings of the GG 42773 (18.10.19) COURTS OF LAW ACT several provincial and local divisions of the High Court of 107 OF 1985 South Africa amended with effect from 22 November 2019
Rules Regulating the Conduct of the Proceedings of the Magistrates' Courts of South Africa amended with effect from 22 November 2019
DEPARTMENT OF Published GG 42778 (18.10.19) ENERGY INTEGRATED RESOURCE PLAN (IRP2019)
INTERNATIONAL TRADE Draft guidelines and conditions pertaining to imposition of GG 42775 (18.10.19) ADMINISTRATION an agricultural safeguard measure in terms of article 35 of COMMISSION OF the economic partnership agreement (EPA) between the SOUTH AFRICA European Union and its member states and the Southern African Development Community (SADC) EPA states published for comment
JUSTICES OF THE Designation of Commissioners of Oaths in terms of GG 42769 (16.10.19) PEACE AND section 6 of the Act published in GN 903 in GG 19033 of COMMISSIONERS OF 10 July 1998 amended OATHS ACT 16 OF 1963
CUSTOMS AND EXCISE Schedule 1 amended GG 42773 (18.10.19) ACT 91 OF 1964 Schedule 4 amended
AGRICULTURAL Notice of proposed amendments to the regulations GG 42775 (18.10.19) PRODUCT STANDARDS relating to the classification, packing and marking of fruit ACT 119 OF 1990 juice and drink intended for sale in the Republic of South Africa published for comment
Notice of amendment of the standards and requirements regarding control of the export of potatoes with effect from seven days after publication
Notice of amendment of the standards and requirements regarding control of the export of fresh vegetables with effect from seven days after publication
Prohibition regarding the removal of imported regulated 9
agricultural products intended for sale in the Republic of South Africa from the specified ports of entry or any other place as determined by the executive officer published in GN 1269 in GG 42739 of 4 October 2019 corrected
SPECIAL Referral of matters to existing special investigating unit in GG 42773 (18.10.19) INVESTIGATING UNITS respect of the affairs of the South African Health Products AND SPECIAL Regulatory Authority published TRIBUNALS ACT 74 OF 1996 Special Tribunal Rules published and all preceding rules GG 42783 (18.10.19) regulating the conduct of proceedings before the Special Tribunal repealed
BASIC CONDITIONS OF Notice amending Sectoral determination 9: Wholesale GG 42766 (14.10.19) EMPLOYMENT ACT 75 and Retail Sector South Africa, published in GN R1036 in OF 1997 GG 42615 of 2 August 2019, corrected
NATIONAL WATER ACT Determination of water resource classes and resource GG 42775 (18.10.19) 36 OF 1998 quality objectives for the Mokolo, Matlabas, Crocodile (West) and Marico catchments published
NATIONAL FORESTS Declaration of particular trees and particular groups of GG 42775 (18.10.19) ACT 84 OF 1998 trees to be declared 'Champion Trees' published
COMPETITION ACT 89 Competition Commission of South Africa: OF 1998 Notice of Draft Enforcement Guidelines published for GG 42775 (17.10.19) comment
Competition Tribunal: Notification of decision to approve merger published
Notification of closed conditional merger approvals 1 GG 42776 (17.10.19) October 2018 - 31 March 2019 published
Notification to approve transactions published
Notification to prohibit transaction published
NATIONAL NUCLEAR Categorisation of the Various Nuclear Installations in the GG 42773 (18.10.19) REGULATOR ACT 47 OF Republic published in GN 581 in GG 26327 of 7 May 1999 2004 substituted with effect from 1 April 2020
INTERNATIONAL TRADE International Trade Administration Commission of South GG 42782 (18.10.19) ADMINISTRATION ACT Africa: Proposed export duty on ferrous and non-ferrous 71 OF 2002 waste and scrap published for comment
NATIONAL Declaration of an area as part of the Addo Elephant GG 42775 (18.10.19) ENVIRONMENTAL National Park MANAGEMENT: PROTECTED AREAS ACT 57 OF 2003
NATIONAL Notice of Draft Biodiversity Management Plan for the GG 42775 (18.10.19) ENVIRONMENTAL African Penguin published for comment MANAGEMENT: BIODIVERSITY ACT 10 Notice of Draft Norms and Standards relating to the 10
OF 2004 Management of Seabirds in Captivity published for comment
INTERGOVERNMENTAL Transitional arrangements regarding the offering of GG 42774 (16.10.19) RELATIONS accredited nursing qualifications registered on the Higher FRAMEWORK ACT 13 Education Qualifications Sub-framework of the National OF 2005 Qualifications Framework by public nursing education institutions (commonly known as nursing colleges) published
NURSING ACT 33 OF Draft Regulations Relating to the Approval of and the GG 42770 (16.10.19) 2005 Minimum Requirements for the Education and Training of a Learner or Student Leading to Registration as a Nurse Specialist or Midwife Specialist, 2019 published for comment
COMPANIES ACT 71 OF Companies and Intellectual Property Commission (CIPC): GG 42775 (18.10.19) 2008 Notice of designation of a new electronic filing channel for company and close corporation forms published
CIVIL AVIATION ACT 13 Rules Regulating the Conduct of the Proceedings of the GG 42773 (18.10.19) OF 2009 Appeal Committee published
PROVINCIAL LEGISLATION
Eastern Cape
LOCAL GOVERNMENT: Consolidated Municipal Annual Performance Report in PG 4326 (14.10.19) MUNICIPAL SYSTEMS respect of 2017/18 financial year published ACT 32 OF 2000
Northern Cape
NORTHERN CAPE Regulations regarding the Chief Executive Officer GG 42775 (18.10.19) LIQUOR ACT 2 OF 2008 published and previous regulations revoked
North West
LOCAL GOVERNMENT: Tswaing and Lekwa-Teemane Local Municipalities: Notice PG 8065 (15.10.19) MUNICIPAL SYSTEMS of intention to review and amend the Land Use Scheme, ACT 32 OF 2000 AND 2011 and Land Use Scheme, 2010 respectively published SPATIAL PLANNING AND for comment LAND USE MANAGEMENT ACT 16 OF 2013
SPATIAL PLANNING AND Kagisano Molopo Local Municipality: Notice of adoption of PG 8065 (15.10.19) LAND USE the Land Use Scheme 2019 published MANAGEMENT ACT 16 OF 2013
Source: Juta's Weekly Statutes Bulletin 42 of 2019
11
SEMINARS
DATES PRESENTER
CRIMINAL LAW Durban 27 Novemner 2019 William Booth Midrand 28 November 2019 Cape Town 29 November 2019
DEBT COLLECTION Midrand: 30 October 2019 LSSA LEAD Cape Town: 01 November 2019
For more information, contact the Knowledge Centre or visit www.lssalead.org.za