Incorrect Legal Standard Applied? Zuma and the Zondo Commission

THE SA ATTORNEYS’ JOURNAL

APRIL 2021

Incorrect legal standard applied? Zuma and the Zondo Commission

Should an unrepresented accused The rescission of divorce orders enter into plea and sentence for purposes of claiming agreements? spousal maintenance

A turning of the tide: Exploring the impact of pollution in the shipping industry

Lifestyle audits: Bringing legal and ethical Navigating the legal regulatory issues considerations under scrutiny with self-driving cars in South Africa Remove, withdraw or postpone? Keep your brand – appoint a registered The principle of double jeopardy in and credible auditor competition law

THE SA ATTORNEYS’ JOURNAL THE SA ATTORNEYS’ JOURNAL CONTENTS

April 2021 Issue 616 THE SA ATTORNEYS’ JOURNAL ISSN 0250-0329 APRIL2021

Incorrect legal standard applIed? 10 Zuma and the Zondo commIssIon

should an unrepresented accused The rescission of divorce orders enter into plea and sentence for purposes of claiming 12 agreements? spousal maintenance 16 A turning of the tide: Exploring the impact of pollution in the 14 shipping industry Regular columns

Editorial 3

lifestyle audits: Bringing legal and ethical Navigating the legal regulatory issues considerations under scrutiny 22 18 with self-driving cars in South Africa Letters to the Editor 4 Remove, withdraw or postpone? Keep your brand – appoint a registered The principle of double jeopardy in 5 and credible auditor competition law 24 Practice management Keep your brand – appoint a registered and credible auditor 5 10 Incorrect legal standard applied? Zuma and the Zondo Commission Practice notes n 28 January 2021, the Constitutional Court Mozambique, Cabo Delgado insurgency – what does handed down its judgment in the Judicial this mean for foreign investors and international OCommission of Inquiry into Allegations of lenders who have vested interests? 7 State Capture, Corruption and Fraud in the Public Section 40 of the Children’s Act: Parenthood by Sector including Organs of State, to compel former syringe or intention? 8 President Jacob Zuma to appear and give testimony before it. Legal practitioner, Andile Mcineka, warns that a constitutional crisis manifested itself The law reports 27 in the manner in which the court dealt with direct access. New legislation 31 Case notes Should an unrepresented accused 12 A purposive interpretative approach to the calculation enter into plea and sentence of mineral royalties 33 agreements?

ection 105A of the Criminal Procedure Act 51 Employment law update of 1977 permits an accused person who has Suspension without pay 35 Slegal representation to enter into a plea and Polygraph test and circumstantial evidence 36 sentence agreement. However, s 105A(1) prohibits an unrepresented accused from entering into a Recent articles and research 37 plea and sentence agreement with the prosecuting authority. Legal practitioner, Nomonde Msimanga, explores the constitutional impediments contained Opinion in s 105A with reference to self-representation of WhatsApp Saga – a reminder of the importance of an accused person. POPIA in South Africa 40

DE REBUS – April 2021 - 1 - EDITOR: FEATURES Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) A turning of the tide: Exploring the impact of 14 PRODUCTION EDITOR: pollution in the shipping industry Kathleen Kriel BTech (Journ) (TUT) hen the MV Wakashio hit a coral reef off the coast of sUB-EDITOR: sUB-EDITOR: Mauritius on 25 July 2020 resulting in almost 1 000 Kevin O’ Reilly Isabel Joubert Wtonnes of oil being discharged into the ocean, it high- MA (NMU) BIS Publishing (Hons) (UP) lighted the impact of maritime pollution on marine life and the News reporter: Editorial secretary: ecosystem. Legal practitioner, Sharon Phumzile Msiza, discuss- Kgomotso Ramotsho Shireen Mahomed Cert Journ (Boston) es the three main pollutants in the maritime/shipping industry, Cert Photography (Vega) namely, air pollution, ballast water and oil spills. Editorial Committee: The rescission of divorce orders for Giusi Harper (Chairperson), Peter Horn, 16 Maboku Mangena, Mohamed Randera purposes of claiming spousal maintenance Editorial Office: 304 Brooks Street, Menlo Park, he common law reciprocal duty of support between Pretoria. PO Box 36626, Menlo Park 0102. Docex 82, Pretoria. spouses ends on the termination of the marriage, either Tel (012) 366 8800 Fax (012) 362 0969. E-mail: [email protected] by divorce or by death. However, this duty of support T DE REBUS ONLINE: www.derebus.org.za can be extended post-divorce by a court in terms of s 7 of the Divorce Act 70 of 1979. Parties can waive their right to claim Contents: Acceptance of material for publication is not a guar- spousal maintenance on divorce, but cannot do so when the antee that it will in fact be included in a particular issue since this depends on the space available. Views and opinions of this journal marriage is concluded. Regional magistrate, James Dumisani are, unless otherwise stated, those of the authors. Editorial opin- Lekhuleni, writes that the problem, however, arises when a di- ion or comment is, unless otherwise stated, that of the editor and vorce order is granted in default of a party who seeks to claim publication thereof does not indicate the agreement of the Law Society, unless so stated. Contributions may be edited for clarity, spousal maintenance. space and/or language. The appearance of an advertisement in this publication does not necessarily indicate approval by the Law 18 Navigating the legal regulatory issues with Society for the product or service adver tised. self-driving cars in South Africa For fact checking, the De Rebus editorial staff use online products from: ccording to former Minister of Transport, Blade • LexisNexis online product: MyLexisNexis. Go to: www.lexisnexis.co.za; and Nzimande, even though there are no self-driving cars • Juta. Go to: www.jutalaw.co.za. A(SDC) currently on the roads of South Africa (SA), there are plans for their introduction. Candidate legal practitioner, Printer: Ince (Pty) Ltd, PO Box 38200, Booysens 2016. Charissa Chengalroyen, explains that the proposed introduc- Audio version: The audio version of this journal is available tion of SDCs viewed against the backdrop of SA’s high rate of free of charge to all blind and print-handicapped members of car accidents, will probably require legal regulation in various Tape Aids for the Blind. forms. Advertisements: Main magazine: Ince Custom Publishing Lifestyle audits: Bringing legal and ethical Contact: Dean Cumberlege • Tel (011) 305 7334 22 Cell: 082 805 1257 • E-mail: [email protected] considerations under scrutiny Classifieds supplement: Contact: Isabel Joubert Tel (012) 366 8800 • Fax (012) 362 0969 he reported request by the Gauteng Provincial Premier for PO Box 36626, Menlo Park 0102 • E-mail: [email protected] the State Security Agency to conduct lifestyle audits on Members of the Executive Council warrants some prob- Account inquiries: David Madonsela T Tel (012) 366 8800 E-mail: [email protected] ing as to its alignment with institutional legal mandates within the context of public administration governance. Directing the Circulation: De Rebus, the South African Attorneys’ Journal, is request to the particular institution, infers that it has a legal published monthly, 11 times a year, by the Law Society of South Africa, 304 Brooks Street, Menlo Park, Pretoria. De Rebus is circu- obligation that assigns it either a direct or shared accountabil- lated digitally to all practising legal practitioners and candidate ity role in the matter. Diplomat, Dr Lincoln Cave, writes that legal practitioners free of charge and is also available on general this request brings both legal and ethical considerations under subscription. scrutiny. New subscriptions and orders: David Madonsela Tel: (012) 366 8800 • E-mail: [email protected] Remove, withdraw or postpone? The 24 Subscriptions: principle of double jeopardy in competition Postage within South Africa: R 1 990 (including VAT). law Postage outside South Africa: R 2 100. egal practitioner, Tshepo Mashile, discusses the case of the Competition Commission of South Africa v Beefcor (Pty)

Ltd and Another [2020] 2 CPLR 507 (CAC), where the Com- De Rebus subscribes to the Code © Copyright 2021: L of Ethics and Conduct for South petition Appeal Court considered the question whether the Law Society of South Africa 021-21-NPO African Print and Online Media that Tel: (012) 366 8800 prescribes news that is truthful, accurate, fair and balanced. If we do withdrawal of a complaint by the Competition Tribunal initi- not live up to the Code, contact the Public Advocate at (011) 484 3612 ated in terms of s 49B(1) of the Competition Act 89 of 1998 or fax: (011) 484 3619. You can also contact our Case Officer on serves to put an end to the proceedings before the Competition Member of Member of [email protected] or The Audit Bureau of The Interactive lodge a complaint on the Press Circulations of Southern Africa Advertising Bureau Council website: Tribunal, on the basis that the complaint cannot be reinstated. www.presscouncil.org.za

DE REBUS – APRIL 2021 - 2 - EDITORIAL Court digitisation – the future is here

t the beginning of 2020, the spend hours searching for court files to Gauteng Division and Gaut- have matters set down, and in some in- eng Local Division of the stances where court files could not be High Court, Pretoria and Jo- obtained, had to search for files on five hannesburg implemented a separate days and once the search failed, Adigital/electronic case management and were only then entitled to apply for dupli- litigation system, named CaseLines. The cate files to be opened. aim of the case management system is to These challenges became a thing of the enable litigants to file and upload plead- past, as all parties including the judici- ings and other documents electronically ary have electronic access to the court and to present their case and argument file. A digital case management platform Mapula Sedutla – Editor during court proceedings. The implemen- in South Africa is much needed, and the tation of the system was apt and timely implementation of CaseLines has saved as the world was hit by a pandemic that legal practitioners time spent at court ers, the judiciary, Registrars and court insisted on limited human contact (see searching for files, obtaining court orders staff. The system is working well and at Mapula Sedutla ‘CaseLines: Electronic and filing documents. There are no longer this stage does not need any further im- case management system implemented’ any files that are misplaced, as all parties provements. 2020 (Jan/Feb) DR 3). are immediately notified of any additions, CaseLines is only one module of the I spoke to Executive Committee mem- alterations and if any court orders are up- soon to be implemented envisaged digi- ber of the Johannesburg Attorneys As- loaded. tal system, an end-to-end e-filing, digital sociation, attorney Yusuf Wadee, about With the pandemic, CaseLines has case management and evidence manage- how legal practitioners have been finding proved to be an extremely useful system. ment system has since been developed their feet using the electronic case man- It is an efficient system of filing docu- to replace the paper-based system. For agement system. ments and is an easy online tool to utilise. an overview of the system, refer to www. Mapula Sedutla (MS): Did CaseLines MS: What challenges have attorneys LSSA.org.za. help during the hard lockdown period? encountered while using the system? During 2019, the Office of the Chief Yusuf Wadee (YW): In terms of prepar- YW: Training was offered on CaseLines, Justice (OCJ) approached the Law Society ing for trials, our firm was able to prepare and the legal practitioners who had at- of South Africa (LSSA) to discuss a joint for High Court trials, Judicial Case Man- tended such training did not experience venture between the two organisations agement together with our opponents much difficulty. Attorneys’ associations that would assist in educating practi- and experts, by following the practice di- have received various feedback from tioners on the court e-filing (Court On- rective. All the documents were uploaded their members, who had had teething line) project. During a meeting between to CaseLines prior to the hard lockdown, problems (due to lack of training or mis- the LSSA and the OCJ, on 5 March 2021, and parties were in a position to continue understanding the CaseLines system), the OCJ explained that the launch of the having virtual pretrial conferences. The which included – Court Online platform is drawing near preparation for trial by both parties was • invitations to CaseLines by the Regis- and that legal practitioners are an inte- facilitated by CaseLines, and the ease by trar (this was resolved); gral part of the platform. For more infor- which it could be accessed online. • creation of new cases; mation on the Court Online project see: We managed to prepare summons dur- • network problems at court; www.judiciary.org.za. ing the hard lockdown, we were able to • invitation to the correct Registrars; The Uniform Rules of Court do not issue it on 5 May 2020 via CaseLines, and • invitation to the judges’ secretaries; make provision for Court Online. How- it was sent to the Sheriff for urgent ser- • legal practitioners not receiving notes ever, the Department of Justice and vice. Our opponents were invited to Case- by Registrars; and Constitutional Development had been Lines, and a notice of intention to defend • delays in obtaining court dates. developing rules, which the Rules Board was served electronically, and filed via These issues were then resolved by al- for Courts of Law has invited legal prac- CaseLines. lowing plaintiffs and applicants the pow- titioners to comment on. The links to the Working remotely during the hard lock- er to create their own case on the Case- proposed rules are as follows – down, CaseLines afforded legal practi- Lines platform. • e-Rules and certain amended rules for tioners direct access to court files and the MS: In your view, what improvements the High Court (www.justice.gov.za); information therein, without the need for can be made on the system? and having their physical files present. This YW: The implementation of CaseLines • e-Rules and certain amended rules for allowed legal practitioners to have virtual is all thanks to the vision of Judge Presi- the magistrates’ courts (www.justice. consultations with clients, witnesses, ex- dent Dunstan Mlambo. Judge President gov.za). perts and counsel. Mlambo has been at the forefront with Comments must be submitted on or MS: Was this a great move by the Gaut- the profession (attorneys’ associations before Friday, 14 May 2021 and may be eng Division to implement a digital case and advocate groups) in resolving any delivered to the Secretariat of the Rules management system, considering the problems that legal practitioners faced. Board in any of the following ways – direction the world is going digitally? He ensured that all legal practitioners’ • by hand delivery to the offices of the YW: The advent of CaseLines had problems were resolved either via Case- Secretariat, 2nd Floor, East Tower, Cen- changed the face of litigation in 2020. Pri- Lines or practice directives. This added tre Walk, 266 Pretorius Street, Pretoria; or to CaseLines, legal practitioners had to to the efficiency of the courts and case • by e-mail to Ms C Kemp at ChKemp@ ensure that files were in the correct office flow management. This became invalu- justice.gov.za; or before hearings. Legal practitioners are able during the pandemic and the courts • by post to PO Box 13106, The Tram- always faced with the possibility of court in Gauteng, were efficient under these shed 0126. files not being before the judge, or in the difficult circumstances. In my view, this Inquiries may also be directed to Ms incorrect court. Legal practitioners would protected the safety of legal practition- Kemp at (012) 326 8014. q DE REBUS – APRIL 2021 - 3 - LETTERS TO THE EDITOR PO Box 36626, Menlo Park 0102 Docex 82, Pretoria E-mail: [email protected] Fax (012) 362 0969 Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Suggestion: Classifieds reality of unemployment and lack of job clearly outlined. However, often, the limi- opportunities swiftly extinguished my tations to our freedom of expression are The De Rebus Classifieds section does excitement and I started experiencing not derived from the letter and spirit of not offer the support needed in encour- frustrations. My frustration was not so the Constitution but from fear of some aging the setting up of legal practices by much about the lack of opportunities, form of retribution from individuals in the new entrants into the practice world. but it emanated from the lack of access positions of control, who oppose the mar- Considering the restrictions or obstacles to opportunities that already exist. Natu- ket place of ideas because they are unwill- encountered around financing a practice rally I wanted to voice these unfortunate ing to listen to new ideas, especially those (ie, raising funds or sourcing different circumstances and preach to the world that seek to persuade them. It is in my skills) De Rebus should have a column about my newly acquired wisdoms that view unreasonable to exclude a capable or platform in the journal where people came with my struggles. As a graduate in candidate for a job position just because who wish to set up practices can meet his 20s with a smart phone, I had all the they dare to disagree. How many other or network. tools necessary to voice my battles on so- issues remain unchallenged elephants in This would be a great contribution cial media. Little did I know that there are the room? from your part towards the development certain things one cannot say as a legal In order to address issues that contin- of the legal profession. professional. ue to haunt the legal profession, opinions When I voiced my concerns about the and debates must be encouraged. The Thami Wellington Nene unfairness of the requirement for candi- courage to voice one’s opinions, especial- BProc LLB LLM (UP) is a legal date legal practitioners to own a motor ly those that are constructive, ought to be practitioner at Senyema vehicle and hold a driver’s licence in or- rewarded rather than reprimanded. Social Gwangwa Inc in Pretoria. der to secure articles of clerkship, I was media platforms present a good opportu- given counsel by senior lawyers that it nity for legal practitioners to discuss, de- • Thank you for the suggestion, which was unwise of me to publish such con- bate and come up with good innovative is a great idea. De Rebus will start a tent on social media because prospective ideas that benefit the betterment of the ‘Practice Set-up’ column that will allow employers would never consider my job legal profession. legal practitioners to network. To be applications. After receiving this advice, I included in the new column send your desisted from posting this on social me- Siyakha Plaatyi information to [email protected] dia as it served as a deterrent and limited LLB (UFH) is a candidate legal Editor. my freedom of expression. We all pursue practitioner at NT Mdlalose Inc in a career because we want to succeed in it Johannesburg. Legal practitioner’s freedom and appreciate the necessity to make sac- of expression during the rifices in order to achieve our goals, but is • See Mapula Sedutla ‘Driver’s licence it fair to be silenced because of fear of be- and own vehicle no longer an employ- times of social media ing unpopular with potential employers? ment requirement’ 2021 (Jan/Feb) DR I completed my LLB half a decade ago Our right to freedom of expression 3. and was very excited to begin the jour- is enshrined in s 16 of the Constitution ney of becoming a legal practitioner. The and the limitations to such freedom are q

DE REBUS – APRIL 2021 - 4 - PRACTICE MANAGEMENT – LEGAL PRACTICE Keep your brand – appoint a registered By Simthandile Kholelwa and credible auditor Myemane

ule 54.20 of the Rules as per ss 95(1), 95(3) and ing and ethics standards that are internationally comparable. 109(2) of the Legal Practice Act 28 of 2014 (the When appointing an auditor for purposes of fulfilling the re- Rules) requires each legal practice to appoint an au- quirements of r 54.20 it is important to seek the services of ditor to discharge the duties assigned to the auditor a credible auditor registered with IRBA. There are two types in terms of the Rules. The Rules further require that of auditors registered with IRBA, namely assurance providers Rthe auditor produces a report to be submitted to the Council and non-assurance providers. Auditors that provide assurance at specified intervals. services reflect an assurance status of ‘Assurance’ and can be confirmed on IRBA’s website www.irba.co.za or directly with Who is the accountant? the IRBA. The LPC accepts reports issued by an auditor with an AccountingTools defines an ‘accountant’ as a ‘person who re- ‘Assurance’ status. cords business transactions on behalf of an organisation, reports on company performance to management, and issues Code of Professional Conduct for financial statements’ (www.accountingtools.com, accessed 12-2-2021). This person is generally employed by the legal Registered Auditors practice or the service is outsourced to an entity that provides The IRBA, as already indicated in the foregoing paragraphs, the service. Effectively, this person is accountable to the legal develops, and maintains auditing and ethics standards for reg- practitioner. istered auditors. The IRBA developed a Code of Professional Both the accountant and the auditor fall within the account- Conduct for Registered Auditors (the Code), which a registered ancy profession, but their roles may differ. There is often con- auditor is expected to always observe. fusion out there among some of the newer legal practitioners One of the major expectations of a registered auditor is that who cannot differentiate between an accountant who prepares they remain independent in the performance of their duties. the books and an auditor who examines the books, and the The Code identifies independence at two levels: appointment of the auditor. This article will clarify this confu- • ‘Independence of mind’ – ‘the state of mind that permits sion, but mostly seeks to communicate the importance of ap- the expression of a conclusion without being affected by in- pointing a registered and credible auditor. fluences that compromise professional judgment, thereby An auditor allowing an individual to act with integrity, and exercise objectivity and professional scepticism’. AccountingTools defines an ‘auditor’ as an ‘individual who • ‘Independence in appearance’ – ‘the avoidance of facts and examines the accuracy of recorded business transactions. Au- circumstances that are so significant that a reasonable and ditors are needed in order to verify that processes are func- informed third party would be likely to conclude’, weighing tioning as planned, and that the financial statements produced all the specific facts and circumstances, that a firm’s, or a by an organisation fairly reflect its operational and financial member of the audit or assurance team’s integrity, objectiv- results’ (www.accountingtools.com, accessed 12-2-2021). The ity or professional scepticism has been compromised. auditor, while appointed by the legal practice, is not account- In terms of the Code, there are fundamental principles, able to the legal practitioner but to the authority that relies on which all registered auditors will have to comply with: the report produced by the auditor, the Legal Practice Council (LPC) in the case of a legal practice. From the foregoing definitions, it becomes apparent that the Fundamental Meaning accountant records the business transactions, and the auditor principle examines the recorded business transactions, meaning they Integrity To be straightforward and honest in all have different roles. With this understanding, the two func- professional and business relationships. tions should not be performed by the same person or by persons from the same entity, unless the entity can prove that a Objectivity To not allow bias, conflict of interest or Chinese Wall (‘a virtual barrier intended to block the exchange undue influence of others to override of information between departments if it might result in busi- professional or business judgments. ness activities that are ethically or legally questionable’ (www. Professional To maintain professional knowledge and investopedia.com, accessed 12-2-2021)) has been built. It is competence skill at the level required to ensure that often not easy to prove Chinese Walls convincingly. and due care a client receives competent professional services based on current developments Regulatory regime for auditors in practice, legislation and techniques Auditors in South Africa (SA) are registered with and regulat- and Acts diligently and in accordance ed by the Independent Regulatory Board for Auditors (IRBA), with applicable technical and profes- which is a statutory body for accountants and auditors in sional standards. SA. The IRBA, among others, develops and maintains audit-

DE REBUS – APRIL 2021 - 5 - PRACTICE MANAGEMENT – LEGAL PRACTICE

Fundamental Meaning principle Confidentiality To respect the confidentiality of information acquired as a result of professional and business relationships and, therefore, does not disclose any such information to third parties without proper and specific authority, unless there is a legal or professional right or duty to disclose, nor use the information for the personal advantage of the registered auditor or third parties. Professional To comply with relevant laws and behaviour regulations and avoid any action that discredits the profession.

All of the five fundamental principles and the independence of the auditor are crucial in determining the credibility of the auditor. If one considers the meaning given to ‘objectivity’ as a fundamental principle, one should be cognisant that lack of objectivity can be ‘actual’ or ‘perceived’ and both should be avoided. The impact of the Code on legal practices The LPC places reliance on the reports of the auditors. As part of the criteria that the LPC uses to issue Fidelity Fund Cer- tificates (FFC) to legal practitioners, is the presence of an approved audit report. More often than not, audit reports that are unqualified by the auditors, clean audit reports, are approved by the LPC. The impact that the Code has on the legal practitioner is that should the registered auditor be found not to have been independent or not to have complied with any of the fundamental principles, the auditor may be investigated. If on investigation the auditor is found guilty of misconduct, the report issued by that auditor to the Council may be nullified. The Council may, on nullification of the report, appoint its own inspector to conduct an inspection at the legal practice. It should also be noted that the LPC may refuse to accept an audit report issued by an auditor that the LPC does not ap- prove of. Non-approval of an auditor by the LPC may be subject to various reasons, including the history of the reports issued by that auditor. The Legal Practitioners’ Fidelity Fund (the Fund) on the other hand, has developed a Legal Practitioner’s Risk Management Framework by which the Fund monitors information coming through in respect of the legal practitioners and legal practices. This information is gathered to identify potential exposure of the Fund to increased theft claims. Information coming through in respect of audit reports of the legal practices submitted to the LPC forms part of the Fund’s analysis. There- fore, should the Fund receive information related to nullified audit reports of a legal practice, the Board of the Fund may, through its vested powers and functions in terms of s 63(1)(e) of the Legal Practice Act, authorise an inspection of the legal practice affected. Readers are encouraged to read this article together with Simthandile Kholelwa Myemane ‘The increased importance of maintaining proper and accurate trust accounting records’ 2020 (July) DR 6. Who should appoint a registered auditor? The legal practitioner/s of a legal practice should appoint a registered auditor after performing due diligence on the sought auditor. The legal practice, on appointment of a registered auditor, should inform the LPC of the appointed auditor. We have noted instances where legal practitioners get advice from their bookkeepers or accountants who write up the books of the legal practice on the auditor to appoint. Should the le-

DE REBUS – APRIL 2021 - 6 - PRACTICE NOTE – Mining and minerals law

gal practice appoint an auditor recommended by a bookkeeper had started calling the legal practitioners with complaints and or accountant, the legal practice inevitably allows a situation others lodged formal complaints with the LPC against the legal where objectivity of the auditor may be impaired or perceived practice. The LPC launched an investigation into the trust ac- to be impaired. counts of the legal practice, and the investigation revealed that There is also a risk that the legal practice opens itself to the the previous accountant and the auditor were related, which possibility of theft being concealed. If the bookkeeper or ac- relationship is perceived to have compromised the independ- countant and auditor have some relations with one another, ence and objectivity of the auditor. In the absence of the cli- the auditor may conceal the wrong doings of the bookkeeper ents’ funds in the trust bank account of the legal practice, the or accountant. When this happens, the legal practitioner/s may LPC advised the complainants to lodge claims with the Fund. be unaware of any wrong doings of the bookkeeper or account- The Fund admitted and paid the claims and recovered the ant and the wrong doings may take long to be uncovered, land- funds from the legal practitioners of the legal practice. From ing the legal practice in trouble with the regulator, the Fund, the foregoing scenario, it is clear that the legal practitioners and possibly other legal authorities. did not misappropriate the trust funds themselves but were While legal practitioners should appoint the auditors with- misled into believing that everything was above board. Their out the influence of bookkeepers or accountants in the employ failure to do a proper due diligence on the auditor, while rely- of the legal practice, legal practitioners themselves should not ing on the report of the auditor, cost them their reputation have any prior existing relations with the auditor appointed. with the public, the LPC and the Fund. This too subjects the auditor to perceived lack of objectivity and independence. Conclusion • Scenario In conclusion, legal practitioners should realise that the ap- A new legal practice appoints SKM Accountants and Auditors pointment of a credible auditor is critical to the survival or col- Inc as their auditor of record. The director at the auditing firm lapse of the legal practice. A proper understanding of the role is the customary wife to the accountant of the legal practice, and expectations on the auditor and a proper due diligence on not using the husband’s surname, and this information was the auditor are crucial for a legal practice. Not every auditor never disclosed to the legal practice. In pursuit of bringing out there has the best interest of the legal practice, third par- business to the wife’s company, the accountant recommended ties relying on the report of the auditor and the public at heart. to the legal practitioners of the legal practice the appointment These interests should always be in balance. of the audit firm. The legal practitioners, having failed to do a proper due diligence on the auditing firm, went with the rec- ommendation of the accountant and appointed the auditing Simthandile Kholelwa Myemane BCom Dip Advanced firm. Business Management (UJ) Cert Forensic and Investiga- For five years in a row the legal practice received unquali- tive Auditing (Unisa) Certified Control Self Assessor (In- fied audit reports, resulting in the legal practitioners receiv- stitute of Internal Auditors) Cert in Management and In- ing their FFCs. The professional relationship of the accountant vestigation of Cyber and Electronic Crimes Cert in Fraud and the legal practitioners soured over time to a point that Risk Management Cert in Law for Commercial Forensic the accountant was dismissed and replaced with another ac- Practitioners Cert in Investigation of Financial Crimes countant. The new accountant on assuming the duties at the Cert in Investigation and Detection of Money Laundering legal practice, noticed some creative accounting in the trust ac- Cert in Economic Crime Schemes (Enterprises University counting records that persisted over the past three years. The of Pretoria) is the Practitioner Support Manager at the Le- accountant brought her discovery to the attention of the legal gal Practitioners’ Fidelity Fund in Centurion. q practitioners. By this time, some clients of the legal practice

Mozambique, Cabo Delgado insurgency – what does this mean for foreign investors and By Rachel international lenders who Jiyana have vested interests?

ozambique with its huge Mozambique and particularly, the Cabo ple have been forced to flee from their mineral deposits has been Delgado Province, has experienced on- homes. While there are discussions be- the center of attention, es- going insurgency, which is said to be a tween the Government of Mozambique pecially for foreign inves- conflict between the Islamist militants and the European Union on strengthen- tors who have an interest who have been attempting to form an ing the country’s security, the natural Min investing in the African continent for Islamic state in the Province and the Mo- gas projects have been affected by what the exploration and exploitation of natu- zambican security forces. It is unfortu- is viewed as terrorism or war and civil ral gas. The largest private multinational nate that the civilians have been caught disturbance. investors, as well as commercial banks in the cross fire and have been the main One may ask, where do the political have funded the biggest natural gas pro- targets of attacks by Islamist militants. unrests and disturbances of the natural jects situated in Mozambique. However, This conflict has claimed well over gas projects leave investors and lenders in the past three years and four months, 2 000 lives and more than 500 000 peo- who have vested interests?

DE REBUS – APRIL 2021 - 7 - PRACTICE NOTE – PERSONS AND FAMILY LAW

Before investors and lenders make a gate, among other risks, political risks. the debt in terms of the loan agreements, financial decision on funding such pro- In this instance (the Cabo Delgado insur- basically ‘bringing the house down’. For jects, extensive due diligence must be gency), sponsors have tried to strength- example, if the political risk event has conducted. Project risk analysis is the en security but this is not the only meas- occurred but the lender’s debt is still most crucial exercise done by lenders ure that gives lenders comfort. being serviced by the borrower; and the and investors when considering whether Some of the other comforts that are loan provisions have not been breached to provide financing, especially for pro- offered to lenders and investors as a by the borrower; or the project is still op- jects of this nature (oil and gas related). means of mitigating political risk expo- erating (even if it is not at full capacity), The financing process involves signifi- sure is political risk insurance (PRI) and it will be difficult for lenders to justify cant levels of scrutiny by the lenders commercial risk covers, which are nor- a claim. However, it is not as easy as it and investors into the project risks and mally provided by export credit agen- may sound. Over and above the steps impact on cash flows (as well as pro- cies (ECAs). Most jurisdictions have a that need to be followed in terms of the jected returns). Typically, and depend- government sponsored ECAs to support underlying agreements and depending ing on the jurisdiction where the project or back the export of capital goods and on the type of risk that is covered, cer- is situated, a due diligence in country services. The commercial banks ordi- tain risks do not trigger immediate pay- risk will also be considered and this in- narily structure cost-effective financing ment under the Policy. There are waiting cludes the credit rating of the country, packaging against ECA covers. The in- periods that allow the ECAs to fully as- its stability and certainty of the local surgency can be viewed as a politically sess the claim and cause of loss, and also laws and policies and the political risk related issue (civil disturbance or ter- obtain internal board approvals before exposure, which relates to the political rorism), which consequently may sus- paying out a claim. Such waiting periods and economic environment within which pend the operation of the project. The differ and may range between 90 to 120 the project is situated and operated (ie, suspension of the project due to a po- days or more depending on the payment expropriation, war and civil disturbance, litical event is one of the triggers under processes governing each ECA, the size terrorism and sabotage). It is crucial for the ECA or PRI policy of insurance (the of the claim and other factors (see www. lenders and investors to understand the Policy), which is classified as a ‘cause of ecic.co.za, accessed 13-3-2021). As such, legislative framework of the country loss event’ and allows the lenders or the lenders will not be able to claim as and that is hosting the project, importantly, insured to claim under the Policy. The when they please. It is important for the whether the local laws recognise and premium towards this PRI cover is often lender to fully appreciate the processes protect foreign investors from political financed by the sponsors/borrowers for of the ECA and the perils covered by that risks. the benefit of the lenders. Although the Policy from the onset. Of course, in mitigating these risks lenders may have this PRI cover as an and in order to make the project more added cushion to their security package, Rachel Jiyana LLB (University of attractive for investors and lenders to often sponsors/borrowers will negotiate Zululand) LLM (Project Finance: Oil fund, the project sponsors (being the triggers under the loan agreements and and Gas) (University of Reading, UK) developers and equity injectors of the policy document to allow the salvaging is Managing Director at Rachel Jiya- project) would have to demonstrate the of the project before lenders can call a na Inc in Johannesburg. measures put in place in order to miti- claim under the policy and/or accelerate q

Section 40 of the Children’s Act: Parenthood

By by syringe or intention? Louise Scrazzolo

couple in a permanent life manent life partner as a result of such cally acquired parenthood, regardless of partnership have launched artificial fertilisation must for all purpos- a sperm donor agreement. an application challenging es be regarded to be the child of those the constitutionality of s 40 spouses or permanent life partners’. Parenthood by clinic of the Children’s Act 38 of One could speculate on which section If the couple used a clinic for artificial 2005,A as a result of their gamete donor of the Act the gamete donor is relying to fertilisation, they would probably be able seeking parental rights. claim parental rights. It would seem that to prove that the conception was, as a re- Section 40, which governs children he would need to apply under s 23 for sult of, artificial fertilisation. However, if conceived through artificial fertilisation, care and contact and s 24 for guardian- they had not used a clinic and there is no does not automatically confer parental ship. These two sections allow non-par- proof of artificial fertilisation, the gamete rights on a permanent life partner to the ents to apply for parental rights. He could donor could commit perjury and be suc- mother. not apply under s 21, due to the fact that cessful in a s 21 application. The couple seeks to change a section artificial fertilisation was used. Such legal disputes are probably more of the Act to the following in order to in- If conception had been achieved with- likely when a clinic has not been used. It clude permanent life partners – out the use of a syringe he could apply is highly probable that a lay person would ‘any child born of that spouse or per- under s 21 for recognition of automati- be unaware that a sperm donor can apply

DE REBUS – APRIL 2021 - 8 - for equal parental rights under ss 21, 23, the oft-used ‘commissioning parent’ (RF tween parent and child but the precon- and 24. Storrow ‘Parenthood by pure intention: ception intention to have a child, accom- However, one does not want to force Assisted reproduction and the functional panied by the undertaking of whatever would-be parents to spend money unnec- approach to parentage’ (2002) 53 Hast- action is necessary to bring a child into essarily, or to conceive in a clinical set- ings Law Journal 597). the world’. ting, which may also limit their chance of falling pregnant. Many may not be happy Parenthood by intention Known donors, the ‘limited to use a syringe or clinical introduction Currently, within the context of artifi- parent’ and grey areas of gametes for various reasons. They may cial fertilisation, regardless of whether a also not be happy with having to use fro- One aspect that will need to be addressed married couple uses their own gametes zen or ‘washed’ gametes (www.vitalab. in future, is the role of the ‘limited parent’ or a third party’s, they are automatically com, accessed 12-3-2021). Many would (Susan B Boyd ‘Gendering legal parent- granted parental rights, based on their be unnecessarily financially burdened by hood: Bio-genetic ties, intentionality and preconception intention to parent. using a clinic or may be forced to forego responsibility’ (2007) 25 Windsor Year- The Act’s definition of ‘parent’ cur- parenthood altogether. Restrictions on book of Access to Justice 63). Just as adop- rently excludes ‘any person who is bio- the mode of conception exacerbate so- tive parents may enter into an agreement logically related to a child by reason only cial inequalities and may have negative with a biological parent, some intended of being a gamete donor for purposes of effects on the child. For example, take a parents may wish for the gamete provider artificial fertilisation’. heterosexual couple who wish to conceive to have a role in the child’s life. This sentence confirms that the inten- with their own gametes, using a syringe Regardless of whether all these chang- tion to parent is the factor that assigns at home, for reasons such as an HIV posi- es are made to the Act, a sperm donor legal parenthood, rather than the biologi- tive partner. Legally the biological father could still apply as an interested party cal connection. would not automatically acquire parental through ss 23 and 24, which are prob- It would make sense that the same rights. The same would apply should two lematic because of their open ended treatment be extended to any other per- people who are not romantically involved and vague nature. But these suggested son that articulated their intention to par- decide to have a child together, using a amendments mean a gamete donor, that ent/not parent prior to attempted con- syringe. This is because ss 20, 21, and 40 is not an intended parent, could no longer ception. The same should apply where are mutually exclusive. automatically acquire parental rights and no syringe is used. To do so otherwise responsibilities. would be unfair discrimination based on Preconception parental Ultimately, there are always factors the mode of conception, birth or social that will supersede even the best written contract origin. This notion has previously been laws, namely – The order sought will still fall short of confirmed in J and Another v Director- • an incorrect interpretation of the law creating a constitutional s 40. I would General, Department of Home Affairs and by both layman, legal practitioners, and propose in place the following: Others 2003 (5) BCLR 463 (CC). judges, both intentionally or not; 40. Rights of child conceived with a Based on the Children’s Act exclud- • corrupt legal practitioners and court preconception parental contract: ing gamete donors from the definition staff; or (1) Subject to s 296, the intended par- of ‘parent’, it would seem apparent that • perjury committed by parties. ents who are party to a preconception pa- it did not intend for s 21 to be applied In practice, the judiciary exhibits a rental contract automatically acquire full to sperm donors, although not explicitly strong bias in favour of awarding sperm parental rights and responsibilities. stated in s 21. donors’ parental rights. The right to (2) Subject to s 296, no right, responsi- Intention is a good signal of legal par- know one’s biological origins cannot be bility, duty or obligation arises between enthood, as it is a marker of responsibil- expected to be realised if the law does a child born of a woman with a precon- ity for the child that exists even prior to not provide certainty to those who use ception parental contract and any person conception. known donors that their choice of fam- whose gamete has, or gametes have been Storrow (op cit) cites two thought-lead- ily structure will be respected and not used or the blood relations of that per- ers on intention, namely Marjorie Maguire undermined. son, unless that person was an intended Shultz and Professor John Lawrence Hill. parent. Shultz speaks of ‘the legitimacy of indi- This is similar to Quebec’s legislated vidual efforts to project intentions … into ‘parental project’ synonymous with the the future’ and ‘procreation and sexual- term ‘collaborative reproduction’ but interpersonal intimacy are no longer tied encompasses instances where no third- together’. Louise Scrazzolo BTech Marketing party gametes were used. I prefer the Prof Hill clarifies ‘[w]hat is essential to (Unisa) is situated in Durban. term ‘intended parent’ as opposed to parenthood is not the biological tie be- q

DE REBUS – APRIL 2021 - 9 - By Andile Mcineka

Picture source: Gallo Images/Getty

Incorrect legal standard applied? Zuma and the Zondo Commission

ertain values in the Constitu- dice. Ironically, it is that constitutional common to all judicial officers. If they tion were designated as the mandate that has left the courts with deviate, the independence of the judici- foundation of our democracy. the short end of the stick. This is mainly ary would be undermined, and in turn, Such values must then be ob- due to the role of the courts, which at the Constitution itself’. served scrupulously because times entails thwarting or declaring un- Undoubtedly, the establishment of the Cif these values are not observed and their constitutional legislative and executive CC was of great significance for SA, con- precepts not carried out conscientiously, decisions. As such, the judiciary is de- sidering the history of the country. What this would be a recipe for a constitu- nounced for supposedly fashioning their this court has done was to extend its ju- tional crisis of great magnitude in South judgments with the objective of advanc- risdiction to decide also on non-constitu- Africa (SA). This brings the spotlight on ing or colluding with other entrenched tional matters that raise arguable points the principle of judicial independence, interests. As a result, SA is witnessing a of the law of general application. It did which is fundamental to our democracy resurgence of the legal and political con- not come as a surprise in Economic Free- and features quite prominently in many stitutionalism controversy. dom Fighters and Others (Democratic Al- international legal instruments. It is also That the courts became embroiled in liance as Intervening Party) v Speaker of protected and guaranteed by the Consti- such situations should not be surprising. the National Assembly and Another 2018 tution, which is why at the adoption of Judicial involvement was a mere confir- (3) BCLR 259 (CC), wherein the president the Constitution, following the thorny mation of the natural order of things; failed to implement the Public Protec- issues emanating from Apartheid, the people fall back on the judiciary when tor’s report dated 19 March 2014 and the Constitution conceived of a way to give disputes are not resolved, just as they court found that his conduct and that of a voice to the poor and marginalised, rely on the electoral system to get rid parliament were unconstitutional, the a beacon of hope, which seeks to heal of politicians. The court in President of court found that the National Assem- the divisions of the Apartheid past and the Republic of South Africa and Others v bly failed to put in place mechanisms seeks to establish a society that is based South African Rugby Football Union and and processes to hold the president ac- on democratic values, social justice and Others 1999 (4) SA 147 (CC) at para 104 countable for failing to implement the human rights. held as follows: Public Protector’s remedial action, and The Constitutional Court (CC) has ‘The nature of the judicial function in- issued an order compelling the National over the years, since the attainment of volves the performance of difficult and Assembly to convene a committee to in- the democratic dispensation, placed the at times unpleasant tasks. Judicial offic- vestigate whether former President Ja- independence and impartiality of the ju- ers are nonetheless required to “admin- cob Zuma was guilty of any impeachable diciary at the centre of the South African ister justice to all persons alike without conduct under s 89 of the Constitution. constitutional system. This independ- fear, favour or prejudice, in accordance The Black Sash Trust v Minister of So- ence of the judiciary is such that the with the Constitution and the law”. To cial Development and Others (Freedom judiciary should enforce the law impar- this end they must resist all manner of under Law NPC as Intervening Party and tially and that it should function inde- pressure, regardless of where it comes Corruption Watch (NPC) RF and Another pendently without fear, favour or preju- from. This is the constitutional duty as amici curiae) 2017 (5) BCLR 543 (CC),

DE REBUS – APRIL 2021 - 10 - FEATURE – CONSTITUTIONAL LAW put a nail in the coffin in suggesting that CC makes a final determination of the is- ness, when summonsed, to appear and there are untenable situations that the sues because if it were to approach the give evidence before it? It is a question courts find themselves in having to in- High Court, the appeal process, which that the High Court and SCA could an- trude into the domain of Parliament. In may ensue would defeat the objective swer, barring the existence of any excep- this case the court was called on to in- of compelling former President Zuma tional circumstances. So, on what basis tervene when the Department of Social to testify before the Commission. The does the court assume jurisdiction? The Development failed to terminate a con- Commission argued that the normal court’s granting of direct access was no tract with Cash Paymaster Services (Pty) procedures are not appropriate in view more than what was once described by Ltd, risking millions of South Africans of the impending termination of its ex- Mogoeng CJ as a ‘textbook case of judi- who were in receipt of child support istence. Quite interestingly, the bedrock cial overreach – a constitutionally imper- grants, care dependency grants, fos- of the Commission’s argument was that missible intrusion by the judiciary into ter child grants, disability grants, older anything other than direct access to the the exclusive domain of Parliament. The person grants, war veteran grants and CC would result in its tenure coming to extraordinary nature and gravity of this grants-in-aid, in terms of s 4 of the So- an end without hearing former President assertion demands that substance be cial Assistance Act 13 of 2004. Indeed, Zuma’s testimony. provided to undergird it, particularly be- the court itself conceded that this order It is discernible that the Commission cause the matter is polycentric in nature pushes at the limits of its exercise of a was the architect of its own misfortune. and somewhat controversial’. just and equitable remedial power. However, the court held that the Com- The situation in which the Commis- On 28 January 2021, the CC handed mission’s maladroit conduct described, sion found itself would not have arisen down its judgment in the Judicial Com- was not considerate of the interests of if it had timeously invoked its powers of mission of Inquiry into Allegations of justice issue. It held that this factor must compulsion of former President Zuma. It State Capture, Corruption and Fraud in be weighed against other factors, includ- is not true that it was only during former the Public Sector including Organs of ing those that are in favour of granting President Zuma’s walk-out in Novem- State (the Commission) to compel the direct access. These include enabling ber 2020 that the Commission realised former President Zuma to appear, and the Commission to conduct a proper in- that intervention by a court was neces- give testimony, before it in the case of vestigation of matters it is tasked to de- sary. The red lights started flashing in the Secretary of the Judicial Commission termine; the fact that the matter is not July 2019 when former President Zuma of Inquiry into Allegations of State Cap- opposed and that it bears reasonable unilaterally decided to withdraw from ture, Corruption and Fraud in the Public prospects of success. It went further further attendance. Later in September Sector including Organs of State v Zuma to state that, the public, whose interest 2020, having berated the Chairperson (CC) (unreported case no CCT 295/20, would be frustrated if direct access was for not consulting his legal practitioners, 28-1-2021) (Jafta J (Khampepe J, Mad- refused. he made it plain that he will not partici- langa J, Majiedt J, Mathopo AJ, Mhlantla The court’s reasoning on the direct ac- pate in the hearings unless the Chairper- J, Theron J, Tshiqi J and Victor AJ con- cess point seems to be that – son recused himself. This was a build-up curring)). It held that former President • the Commission must conduct a prop- to what happened in November 2020. Zuma was compelled to comply with the er investigation; Indeed, the allegations investigated by summons issued by the Commission and • it has not been able to do so because the Commission are extremely serious. appear before it on a date it will deter- of its own conduct; If established, they would constitute a mine; that he will not have the right to • in order to rectify that, the court has huge threat to our nascent and fledgling remain silent and, therefore, not answer to grant direct access; and democracy. However, the court’s grant- questions; and that he will still retain • therefore, direct access is granted. ing of direct access has seen it shoot it- his privilege against self-incrimination, It is important to note that the CC self in the foot, sadly. In granting direct but that such privilege would not be a rarely grants direct access applications. access in this particular case, it has in blanket privilege and would have to be Where it does so, guided by the inter- actual fact thwarted its own rules with invoked against every question an an- ests of justice standard, exceptional the objective of advancing or colluding swer to which might incriminate him, if circumstances must exist that justify a with other entrenched interests which he could show it. departure from its regular procedure. are somehow politicised. The constitutional crisis manifests However, in this case, it provided none. As stated earlier, like all discretions, itself in the manner in which the court Although the court stresses the preju- the power must be exercised judicially. dealt with direct access. In determining dice that would be suffered by ‘the pub- In granting this undeserving direct ac- whether direct access should be granted, lic interest’ were direct access to be de- cess to the Commission whereas this the CC exercises a discretionary power. nied, this was not a principled ground on matter could have been disposed of by Like all discretions, the power must be which to assume jurisdiction. the High Court or the SCA, rewarding it exercised judicially. What this means Dan Mafora in ‘An omnipresent juris- for its self-created misfortune, the court is that the court must not misdirect it- diction’ (https://danmafora.substack.com, has actually misdirected itself in relation self in relation to the relevant facts and accessed 4-3-2021) argues that, direct ac- to the relevant facts and the applicable the applicable law. Should an incorrect cess serves as a way of by-passing the law by virtue of an incorrect legal stand- legal standard be applied, it cannot be normal judicial process, skipping the ard being applied. Accordingly, it cannot said that the discretion was properly High Court and Supreme Court of Ap- be said that the discretion was properly exercised. Section 167(6) of the Consti- peal (SCA) and making the court sit as exercised, resulting in a constitutional tution empowers litigants to bring cases a court of first and last instance. That is crisis of great magnitude for our demo- directly to the CC if it is in the interests fine, in constitutional matters, where the cratic dispensation. This then in turn of justice to do so and leave is granted. court already has jurisdiction. But what jeopardises the institutional security of The Commission’s mainstay for seek- about when jurisdiction still has to be the judiciary. ing direct access was based on urgency. determined? In this judgment, the court The Commission’s lifespan is to come does not even bother with this analysis. to an end on 31 March 2021 and it ar- It departs, essentially, from the assump- Andile Mcineka LLB (UKZN) is a le- gued that very little time remains for it tion that it already has jurisdiction. gal practitioner at Mhlanga Incorpo- to complete hearings and compile a re- The question at the heart of this mat- rated in Durban. port. It concluded by submitting that in ter is simply a statutory one: Does the q these circumstances, it is urgent that the Commissions Act 8 of 1947 oblige a wit-

DE REBUS – APRIL 2021 - 11 - Picture source: Gallo Images/Getty

Should an unrepresented accused enter into plea and sentence agreements?

plea of guilty, coupled with a sentence In November 2001, in Hansards on Ses- agreement. Section 105A(1) prohibits an sion III of the First Parliament, the then unrepresented accused from entering Minister of Justice and Constitutional into a plea and sentence agreement with Development, provided reasons that ad- the prosecuting authority. In this article dressed the exclusion of unrepresented I will explore the constitutional impedi- accused from plea and sentence agreements contained in s 105A of the Crimi- ments. Among those reasons was that nal Procedure Act mainly with reference the exclusion saved the unrepresented to self-represented accused. accused from the imbalance in the nego- tiating process between the accused and The introduction of the prosecutor (A Botman ‘An evaluation s 105A in our criminal of the benefit of plea and sentence agree- system ments to an unrepresented accused’ (LLM thesis, University of Western Cape, By The South African Law Reform Com- 2016) at 40), and that the exclusion was Nomonde mission Act 19 of 1973 established a used to protect the integrity of plea and Msimanga report on the Simplification of Criminal sentence agreements and to avoid un- Procedure: Sentence Agreements in 2002, necessary litigation (Botman (op cit) at which recommended the introduction 40). To a certain extent, this was a cor- of s 106A on plea discussions and plea rect analysis. An unrepresented accused plea is a statement by an agreements. The report did not require faces more danger if legally unrepresent- accused person tendered in an accused to be legally represented. In ed, but without testing the law first and court in response to a charge subs 1 of the first draft, the prosecutor setting necessary guidelines it was sim- instituted by the prosecut- and the accused or their legal represent- ply premature to perceive the outcome. ing authority. Section 105A ative were allowed to hold discussions ofA the Criminal Procedure Act 51 of 1977 with a view of reaching an agreement Essential features of relating to plea and sentence agreements in respect of plea proceedings and the s 105A of the Criminal was first statutorily introduced in South disposal of the case. The Commission Africa (SA) in 2001 – the procedure was clearly was of the opinion that the un- Procedure Act informal prior to 2001. Section 105A represented accused should be given the Firstly, any plea entered into by an ac- permits an accused person who has le- opportunity to participate in plea agree- cused should be tendered freely and gal representation to enter into a plea – a ments and negotiations with the state. voluntarily (see s 105A(6)(a)(ii)). In Brady

DE REBUS – APRIL 2021 - 12 - FEATURE – CRIMINAL LAW AND PROCEDURE v US 397 US 742 (1970), it was held on The constitutionality of self-represen- proceedings. To determine competency, p 397 that ‘the plea is more than an ad- tation of an accused person was first in- the judge often weighs factors, such as mission of past conduct; it is the defend- troduced in the United States in the case the – ant’s [accused’s] consent that judgment of Faretta v California 422 US 806 (1975), • defendant’s age; of conviction may be entered without a whereby it was stated that a defendant in • defendant’s level of education; and trial – a waiver of his right to trial before a state criminal trial has an independent • seriousness of the crime with which a jury or a judge. Waivers of constitution- constitutional right of self-representa- the defendant is charged. al rights not only must be voluntary, but tion and that they may proceed to de- Judicial approval of a s 105A agree- must be knowing, intelligent acts done fend themselves without counsel when ment is extensive enough for an un- with sufficient awareness of the relevant they voluntarily and intelligently elect represented accused to participate in circumstances and likely consequences.’ to do so. In this case, the courts erred s 105A proceedings – taking into account The following are the general features in forcing an accused against his will to s 105A(6)(a) and (b) (the judicial inquiry). that make up s 105A: accept a state-appointed public defender Once the contents of the agreement have • Section 105A(1) of the Criminal Proce- and in denying his request to conduct been disclosed, the court must question dure Act encapsulates the functions his own defence. the accused to ascertain whether they of a prosecutor during s 105A pro- Similarly, in the case of S v Wildridge confirm the terms of the agreement, as ceedings, providing that a prosecutor 2019 (1) SACR 474 (ECG), the appellant well as the admissions made by them authorised in writing by the National was convicted of negligent driving. He in the agreement (s 105A(6)(a)(i)). An Director of Public Prosecutions, and was sentenced to a fine of R 2 000 or inquiry by the court into whether an ac- an accused who is legally represented six months’ imprisonment suspended cused person understands the contents may before the accused pleads to the for four years. He appealed against his of the agreement can aid an unrepresent- charge brought against them, negoti- conviction on the basis that the trial had ed accused in several ways. Firstly, it can ate and enter into an agreement with been unfair by representing himself. A iron out any misinformation the accused the prosecuting authority. feature that rendered the trial unfair was might have been fed and secondly, it can • Section 105A(2) states that an accused the hostility and impatience displayed clearly outline the charges against the must be informed of their rights dur- by the magistrate towards the appel- accused present in a way that they can ing the proceedings and further lists lant. When the appellant in the case was comprehend with sufficient clarity. other formalities to be adhered to. cross-examined by the prosecutor, the The court must also question the ac- • Section 105A(3) prohibits judicial par- magistrate allowed the prosecutor to cused to ascertain whether the agree- ticipation during s 105A negotiations. interrupt the appellant repeatedly so ment was entered into freely and vol- • Section 105A(4) and (5) prescribes that he was prevented from replying to untarily, in sound and sober senses and compliance with subs (1)(b)(i) and (iii), questions properly and fully. Essentially, without having been unduly influenced which states that a ‘prosecutor may what rendered the trial unfair was the (s 105A (6)(a)(ii)). In S v Taylor 2006 (1) enter into an agreement ... after con- magistrate’s unwillingness to assist the SACR 51 (C) at para 19 Yekiso J noted sultation with the person charged with appellant. Plasket J in Wildridge at para that the court, ‘could go further to con- the investigation of the case’ and ‘after 6 with reference to Rex v Hepworth 1928 firm with the accused that the latter’s affording the complainant or [their] AD 265 at 277, held that ‘a presiding of- signature on the agreement and that representative ... the opportunity to ficer is not a mere umpire. He or she is of his legal representative … and also make representations to the prosecu- “an administrator of justice” whose duty confirm with the accused the sentence tor’. is not only “to direct and control pro- proposed and any condition attached • Section 105A(6) stipulates an inquiry ceedings according to recognised rules thereto’. the court needs to conduct before re- of procedure but to see that justice is The aforementioned considerations cording a s 105A plea of not guilty. done”’. should be revisited as constitutional pro- • Section 105A(7) to (9) relates to the So, is self-representation in s 105A visions reign over the system of crimi- adjudication and consideration of the proceedings with the aid of a presiding nal procedure. These provisions are the sentence agreement by the court. officer even possible? There are dangers most important sources of criminal pro- • Section 105A(10) contemplates the to it. Procedural rights of the accused cedure rules and thus have to be obeyed nullity of the s 105A agreement and are typically better protected when the (Geldenhuys, Joubert, Swanepoel, Ter- the commencement of a trial de novo. prosecution has a legally educated coun- blanche and Van der Merwe 11ed Crimi- terpart (M Kerscher ‘Plea bargaining in nal Procedure Handbook (Cape Town: Constitutional South Africa and Germany’ (LLM thesis, Juta 2014) at 25). considerations – the right Stellenbosch University, 2013) at 114). to self-representation This eliminates the danger of procedural Conclusion abuse towards an uninformed accused In any system of law, it is imperative to Essentially plea and sentence agree- who knows nothing of the process and apply constitutional values and princi- ments are used to avoid lengthy criminal as a result the abuse is diminished. How- ples. This adherence will ensure more trials and uncertain outcomes. However, ever, the provision seems quite indeci- South Africans benefit lawfully from the procedure can deeply affect constitu- sive since the unrepresented accused is s 105A proceedings and that it is not tionally guaranteed rights of an unrepre- able to plead guilty in terms of s 112 of only left for the selected few. sented accused. the Criminal Procedure Act and can also The right to be sentenced without the assistance of a representative (S v Wessels (FB) (un- Nomonde Msimanga LLB (NWU) is a self-representation reported case no 62/2019, 23-5-2019) legal practitioner at Saleem Ebrahim According to s 105A only a legally rep- ((Moeng AJ) Loubser J concurring)). Attorneys Inc in Johannesburg. resented accused person may enter into To aid this the court can make a simi- q a plea and sentence agreement. The sec- lar inquiry to that used in Faretta v Cali- tion explicitly excludes accused persons fornia – a judge must allow self-repre- who may willingly choose to represent sentation if a defendant is competent to themselves. understand and participate in the court

DE REBUS – APRIL 2021 - 13 - By Sharon Phumzile Msiza Picture source: Gallo Images/Getty

A turning of the tide: Exploring the impact of pollution in the shipping industry

ver the past few years, global application of international conventions nating from ships and should have major warming has become an in- developed and published by the Interna- health and environmental benefits for the creasingly debated topic and tional Maritime Organisation (IMO), and world, particularly for populations living pollution has contributed the compliance by member states there- close to ports and coasts’. quite substantially to that with. According to Air Pollution and Climate Oglobal problem. It is almost easy to un- In this article, I will discuss three pol- Secretariat (‘Air pollution from ships’ derstand how a burning bush emitting lutants in the maritime/shipping indus- www.airclim.org, accessed 4-3-2021), ap- carbon dioxide causes pollution, which try, namely, air pollution, ballast water proximately 50 000 people in Europe are contributes to global warming and ex- and oil spills. killed every year from smokestack emis- actly how the earth suffers from that, but sions from international shipping and how does shipping and trade contribute Air pollution that amounts to an annual cost to soci- to pollution, and exactly how does the Air pollution in the industry is mostly ety of more than €58 billion; while other marine environment suffer from that pol- caused by ships that are powered by die- people do not die, they end up suffering lution? sel engines burning high sulphur content from lung diseases and respiratory prob- Surely sailing from one country to an- fuel oil, which emits sulphur oxide. This lems, which affects their quality of life. other by ship barely causes any threat is arguably dangerous to the environment This may be one of the reasons why the to the marine environment – right? Well, especially when it comes to ships that are IMO believes that the introduction of the wrong. There are quite a number of activi- involved in long distance voyages and above regulation will have major health ties within the maritime industry, which are required to be at sea for more than benefits. Although, at the time of writing cause pollution and sometimes members a week. The International Convention for this article, there has not been a similar of society are not well informed on how the Prevention of Pollution from Ships study conducted in South Africa, one can these activities contribute to pollution. (MARPOL) is an international instrument assume that the danger of the loss of hu- As a result of my recently developed in- used to regulate the spread of pollution man life and health complications also terest in the marine environment, I have from ships. Annexure VI of MARPOL stip- exists in our country. decided to discuss and write more about ulates that the sulphur content of any fuel Therefore, it is important that local au- the maritime environment and those pol- oil used on board ships must not exceed thorities, as well as ship owners actively lutants threatening marine life and eco- 0,5% (mass by mass) as from 1 January participate in conversations about the systems. However, all those pollutants 2020, with an exception for ships already likelihood of adopting more cost effec- threatening the maritime industry are using ‘equivalent’ compliance mecha- tive and efficient methods of eradicating heavily regulated, and in order to ensure nisms. The IMO believes that the promul- air pollution in the shipping industry in that these incidents are prevented, the gation of this regulation will ‘significantly addition to the reduction of sulphur ox- maritime community relies heavily on the reduce the amount of sulphur oxide ema- ides.

DE REBUS – APRIL 2021 - 14 - FEATURE – MARITIME LAW

Ballast water www.theguardian.com, accessed 4-3- the Gulf of Mexico in April 2010’s Deep- 2021) reported that MV Wakashio struck water Horizon incident, it ended up pay- Ballast water is used to provide stability a coral reef on 25 July 2020 and started ing $18.7bn in fines in 2015, while the to a ship during a voyage when the ship spilling oil on 6 August 2020, which cost of the accident in penalties, clean- is not carrying enough heavy cargo. This subsequently resulted in the Mauritian up and others exceeded $60bn’ (‘Firm water is considered problematic for the government declaring a ‘state of envi- must be held accountable for Mauritius preservation of the environment and ma- ronmental emergency’. The process of oil spill’ www.iol.co.za, accessed 4-3- rine life because it impacts the transfer cleaning up the oil spill in this case was 2021). This goes to show that while pen- of water between different ecosystems, intensive and subsequently resulted in alties are imposed, at times the people which is likely to introduce invasive spe- the French government providing assis- responsible end up paying far less than cies produced largely due to expanded tance by sending a military aircraft and what it actually cost to remedy the dam- trade and traffic volume. The species a naval boat to assist. France’s Minister age done by the pollution. contained in ballast water are considered of Overseas Territories, Sébastien Le- alien species when they present danger to cornu, said he was of the opinion that Prevention the ecosystem where they are discharged. the MV Wakashio oil spill clean-up op- The prevention of pollution aspect re- Many alien species are unable to adapt to eration would last for approximately ten quires compliance, while the response a new environment and may pose a threat months, continuing well into 2021. aspect requires efficiency. When a ship is to native plants and animals as they These kinds of operations are costly involved in an incident which results in might carry diseases and parasites. and have long lasting ramifications to pollution, the responsible person has to The International Chamber of Shipping both the economy and the environment take the necessary measures to mitigate (‘Shipping and World Trade: The World’s because the longer it takes to clean-up the impact of the pollution. However, in Major Shipping Flags’ www.ics-shipping. the pollution, the more marine life is terms of South African law, should the org, accessed 4-3-2021) states that the exposed to life-threatening substances responsible person not be in a position international shipping industry is respon- and the more funds are required. This to do that, the local authorities are re- sible for the carriage of approximately explains why a United Nations Recovery quired to act swiftly in response thereto. 90% of world’s trade and that shipping is Fund to the sum of US$ 2,5 million was Rule 85(3) of the National Ports Act 12 the life blood of the global economy. With launched in support of the clean-up op- of 2005 provides that: ‘If the person or seaborne trade expanding, this means eration in Mauritius. persons responsible for the pollution or more ships will be transporting cargo, The IMO has published the Interna- damage to the environment fail to take and thus in need of ballast water. This tional Convention on Oil Pollution Pre- the necessary measures to prevent, miti- presents a growing concern on a number paredness, Response and Co-operation gate, combat and clean-up the pollution of invasive species that will be discharged (OPRC), which establishes measures for or damage to the environment, includ- into the ecosystem with the expansion of dealing with marine oil pollution. Al- ing its associated impacts, the Authority seaborne trade. Presently, the emerging though Article 1 of the OPRC mandates may take the necessary measures. The concern is not only how to prevent the all member States to ‘undertake, individ- person or persons who caused the pol- discharge of alien species, but also how ually or jointly, ... all appropriate mea- lution or damage to the environment will to effectively deal with existing invasions sures in accordance with the provisions be liable for the costs associated with that are dangerous. of this Convention and the Annex there- the pollution, damage or degradation to Therefore, to regulate this environmen- to to prepare for and respond to an oil the environment, its associated impacts tal concern, the IMO has published the pollution incident’, there are a number and any mitigating measures.’ International Convention for the Control of causes of marine oil spills including, and Management of Ships’ Ballast Water among others, collisions, groundings, Conclusion and Sediments. The Convention aims to sinking and machinery failure, which In conclusion, it is extremely concerning prevent the spread of these harmful spe- may not necessarily be easily foresee- that the shipping industry is considered cies from one region to another, by estab- able, but with proper compliance to one of the world’s polluting industries lishing standards and procedures for the other conventions and regulations that reported to contribute between 2 to 3% management and control of ships’ ballast regulate safe navigation of the ship and of the world’s total greenhouse gas emis- water and sediments. As an intermedi- other precautionary measures necessar- sions such as carbon dioxide, which con- ate solution, ships are encouraged to ex- ily for safety in the marine industry, may tributes to global warming and extreme change ballast water mid-ocean. easily be preventable. weather effects (Kate Whiting ‘An expert However, there are other methods that Although the impact of pollution can explains: how the shipping industry can ship owners can adopt in managing ships’ be mitigated in some cases, at times it is go carbon-free’ www.weforum.org, ac- ballast water to prevent the spread of in- difficult to completely remove the dam- cessed 4-3-2021). However, the policy vasive species. Among those, the use of age done and unfortunately that might development adopted by the IMO and chemicals, which target alien species in result in some marine species such as the maritime community prove to be ballast tanks before they are discharged animals and plants suffering and or ul- necessary tools to control and prevent to the ocean, is considered as an effective timately dying. Therefore, in order to en- the spread of pollution in the maritime method. sure that full compliance is adhered to, industry, and while more permanent so- governments normally impose penalties lutions are being discovered, ship own- Oil spills for pollution caused by the operation ers are encouraged to comply with all As mentioned above, most ships are of a ship and one of the first factors to the laws, which are promulgated to re- powered by fuel, which may potentially consider is the overall seriousness of the duce the spread of pollution within the result in oil spills. The maritime com- pollution. For example, in the case of an shipping industry. munity experienced a major oil spill in oil spill, the authorities would consider – 2020 in Mauritius when a tanker (MV • how much oil was spilt; Wakashio) ran aground and resulted in • how long the spill lasted; almost 1 000 tonnes of oil being dis- • how it affected the environment; and Sharon Phumzile Msiza LLB (cum charged into the ocean causing a major • whether or not it will continue to do laude) (Wits) LLM (Shipping Law) environmental and economic disaster. so. (UCT) is a legal practitioner in Jo- The Guardian (‘Mauritius declares en- In a case settled in 2015, Victor Kgo- hannesburg. q vironmental emergency after oil spill’ moeswana notes that ‘BP spilled oil in

DE REBUS – APRIL 2021 - 15 - By James Dumisani Lekhuleni

Picture source: Gallo Images/Getty The rescission of divorce orders for purposes of claiming spousal maintenance

he reciprocal duty of support the view that the effect of setting aside ders, which were granted in the absence between spouses is one of the a divorce order would in the eyes of the of the applicant. More importantly, this invariable consequences of law, automatically result in the parties article examines how the court battled marriage in South African law. returning to the state of matrimony and to balance the applicant’s right to rescis- This legal duty operates auto- changing their status. sion of the whole divorce order vis-à-vis Tmatically by operation of law as soon as The problem, however, arises where a her right to claim spousal maintenance the marriage is concluded and it cannot divorce order was granted in default of a on divorce against the general approach be excluded by the parties. The common party who seeks to claim spousal main- adopted by the courts not to unscram- law reciprocal duty of support between tenance. What compounds the problem bled a divorce order. This article also spouses comes to an end on the termi- even further is that s 7 of the Divorce Act examines the divergent views expressed nation of the marriage, either by death provides that a claim for spousal main- by the Western Cape Division of the High or by divorce (see Schutte v Schutte 1986 tenance can only be granted on divorce. Court in Cape Town (WCC) and the Gaut- (1) SA 872 (A)). The duty of support be- This suggest that where a divorce order eng Local Division of the High Court in tween spouses can be extended by court was granted in default, an applicant who Johannesburg on whether or not a claim in terms of s 7 of the Divorce Act 70 of wants to claim spousal maintenance has for maintenance pendente lite in terms 1979 post-divorce at the dissolution of to seek a rescission of the whole divorce of r 43 of the Uniform Rules of Court the marriage (see Zwiegelaar v Zwiege- order in order to claim spousal mainte- can survive a decree of divorce. It is ar- laar 2001 (1) SA 1208 (SCA)). Parties nance as envisaged in s 7 of the Divorce gued that the approach of the WCC to can waive their right to claim spousal Act. This creates a problem in that the the effect that pending the finalisation maintenance on divorce, but cannot do automatic consequences attendant to of a divorce action an order in terms of so when the marriage is concluded (see a marriage in community of property r 43 survives a decree of divorce to the ST v CT 2018 (5) SA 479 (SCA)). An ex- would operate with immediate effect not extent that the issues regulated thereby spouse cannot lay a claim for spousal by choice but by the operation of law remains unresolved is more expedient maintenance against a former spouse if if the rescission of the divorce order is and preferable. It will be argued that this an order for spousal maintenance was granted. authoritative pronouncement should ap- not made in terms of s 7 when their mar- The High Court in Togo v Molabe ply to claims for spousal maintenance in riage was dissolved. In recent times, our and Another (GP) (unreported case no cases where the divorce was granted in courts have adopted the approach that 29059/14, 26-7-2016) (Wentzel AJ) was default and the issues regulated by the in applications for the rescission of di- faced with a similar situation. This ar- divorce order remain unresolved. vorce orders granted in default, the di- ticle examines the manner in which the vorce order should not be rescinded as court was constrained in dealing with Summary of the facts that may have far reaching consequences an application for the rescission of a di- In Togo, the applicant and the respond- to the parties. The courts have expressed vorce order, as well as the ancillary or- ent were married in community of prop-

DE REBUS – APRIL 2021 - 16 - FEATURE – PERSONS AND FAMILY LAW erty. The respondent acting in person the marriage between the parties had ir- sider an application for the separation of issued divorce summons against the ap- retrievably broken down and that both issues in terms of r 33(4) of the Uniform plicant in the High Court. The applicant parties wished to remain divorced. Rules of Court in which the applicant also acting in person defended the mat- More importantly, the court in Togo sought an order to have the question of ter and sought to file a notice to defend stated that the impugned divorce order the decree of divorce separated from the by e-mailing same to the respondent and granted had severely curtailed the appli- remaining issues in the divorce action. e-mailing same to the registrar of the cant’s rights to spousal maintenance and The court had to consider among oth- court. For some unknown reasons, the division of the joint estate to which she ers, whether or not the maintenance or- applicant’s notice of her intention to de- was entitled by virtue of their marriage der granted in terms of r 43 lapses if the fend did not find its way into the court in community of property. The court decree of divorce was granted pursuant file. The respondent ignored the notice stressed the fact that if spousal mainte- to the successful application for separa- to defend forwarded to him by e-mail nance is not claimed at the time of the tion. After reviewing a number of cases, and proceeded to have the matter en- divorce, it is forever forfeited and can- the court found that pending the finali- rolled for hearing on an unopposed ba- not be claimed at a later stage, even in sation of the divorce action, an extant or- sis. The presiding judge dealing with the changed circumstances. To this end, the der in terms of r 43 survives a decree of matter finalised the matter on the basis court warned the applicant that should divorce to the extent that the issues reg- that it was an undefended divorce. The the court adopt the approach, which was ulated thereby remain unresolved. How- court granted the orders sought by the applied in M v M, this may have the re- ever, in NK v KM 2019 (3) SA 571 (GJ), the respondent in the summons. sult that she would continue to forfeit court was faced with a similar applica- The order granted by the court made her entitlement to spousal maintenance tion and it rejected the approach in O v provision for the maintenance of the mi- as this must be claimed at the time of the O. The court found that once a decree of nor children. The order was silent on the divorce. The applicant consented to such divorce is granted the provisions of r 43 payment of spousal maintenance and of relief and the court eventually rescinded of the Uniform Rules of Court will find the division of the joint estate. Instead, the ancillary orders and left the decree no application. It is my view that the ap- the court simply ordered that each party of divorce intact. proach in O v O is more expedient and would retain their own assets. The ap- preferable. Where the issues between plicant brought an application for the Discussion the parties remain unresolved, an exist- rescission of the order and averred that The rescission of divorce orders can ing order of maintenance should remain the order for the maintenance of the mi- be tricky and problematic. What is very intact. nor children granted by the divorce court clear from this case is that spousal main- was hopelessly insufficient. The appli- tenance cannot be granted post-divorce. Conclusion cant further averred that the respondent In an application for rescission of a di- From the discussion above, I submit that proceeded to obtain a decree of divorce vorce order which is silent on spousal where a final divorce order is granted in and other ancillary relief concerning maintenance an applicant forfeits her default and an application for the rescis- maintenance and the division of the par- right to claim spousal maintenance if the sion of the divorce order is sought, it ties’ assets on an unopposed basis full final order of divorce is not rescinded. cannot be said that the matter has been knowing that the applicant intended to As a result, I submit that in an applica- finalised. Though the parties may no oppose the action and had e-mailed a tion for the rescission of a divorce order longer be married it cannot be said that notice of intention to oppose to the re- an applicant who qualifies for spousal the matrimonial action between them spondent and filed same at the court. maintenance has a choice to, either: has been finalised. The status of the par- The respondent opposed the applica- • forfeit the right to claim spousal main- ties to the action remains that of spous- tion and averred that as service of the tenance and claim only the rescission es (see Carstens v Carstens (ECP) (unre- notice of intention to oppose via e-mail of the ancillary orders and not the reported case no 2267/2012, 20-12-2012) was not proper service in terms of the scission of the decree of divorce; or (Roberson J)). I submit that the right to Uniform Rules of Court, he was entitled • claim for the rescission of the divorce claim spousal maintenance should invar- to ignore it. He did not believe that he order if one wants to claim spousal iably survive the granting of a divorce or- had any duty to draw this fact to the at- maintenance. der in circumstances where the issues re- tention of the court. At the time the ap- The question is, will the court grant lating to the divorce remain unresolved plication for rescission was brought, the the order sought in the above second particularly where the order was granted plaintiff had remarried. This wife was point if the applicant insists on it and in default. In those instances, the right to not joined to the current proceedings. in circumstances where the respondent claim spousal maintenance should sur- In considering the application, the remarried and the new wife is joined to vive a decree of divorce. This will protect court was alive to the fact that the rescis- the proceedings? In Togo, the problem both parties in that the court would still sion of the divorce order would have far that the court faced was simplified when be entitled to consider a claim for spous- reaching consequences in that it would the applicant waived her right to claim al maintenance post-divorce without un- affect the status of the parties, which spousal maintenance. I submit that if scrambling the divorce order. I further was not desirable. The court also noted the applicant wanted to claim spousal submit that in Togo, the court should that this would also have disastrous con- maintenance against the respondent, she have also considered the possibility of sequences for the respondent who had could have insisted on her prayer for the developing the common law in terms of since remarried. The court noted that a rescission of the whole divorce order so the Constitution to recognise a claim for party may not have two valid civil mar- that when the divorce order was grant- spousal maintenance post-divorce. riages and the inevitable result would be ed for the second time she could claim to void the respondent’s marriage to his spousal maintenance. I further submit new wife. The court quoted with approv- that the court would have been bound to al the decision in M v M (GP) (unreported rescind the decree of divorce if the ap- case no 52110/2007, 27-5-2011) (Mngqi- plicant showed good cause. James Dumisani Lekhuleni BProc bisa-Thusi J) in which the court left the The following two cases are relevant to LLB (UL) LLM LLM (UP) LLD (UWC) is status of the parties unchanged and only the present discussion. In O v O (WCC) a regional magistrate in Cape Town. rescinded the proprietary consequences (unreported case no 6912/13, 21-11- q of the decree of divorce accepting that 2019) (Loots AJ), the court had to con-

DE REBUS – APRIL 2021 - 17 - Picture source: Gallo Images/Getty source: Picture

Navigating the legal regulatory issues with self-driving cars in South Africa

hat is now proved was velopment of SDC technology. This can once only imagined’ be seen from the collective efforts of (William Blake The companies like Tesla, Uber, Google and Marriage of Heaven Waymo creating modern SDCs (Christina and Hell (United King- Mercer and Tom Macaulay ‘Companies ‘Wdom: Oxford University Press 1975) at working on driverless cars’ (www.techad- 18). This sentiment can be interpreted visor.co.uk, accessed 17-6-2020)). as encompassing the depth of human According to former Minister of Trans- innovation and ingenuity, an apt exam- port, Blade Nzimande, even though there ple of which can be found in the idea are no SDCs currently on the roads of of automated travel. The testing and South Africa (SA), there are plans for development of self-driving cars (SDCs) their introduction (‘South Africa has persisted from the 1920s to 1980s, espe- plans for self-driving cars – but the law cially in the United States (US) and faded needs to change first’ (https://busi- By out hereafter (Erik Lee Stayton Driverless nesstech.co.za/, accessed 13-4-2020)). Charissa dreams: Technological narratives and the The proposed introduction of SDCs, Chengalroyen shape of the automated car (unpublished viewed against the backdrop of SA’s Master’s thesis, Massachusetts Institute high rates of car accidents, will probably of Technology, 2015) at 11–22). require legal regulation in various forms With the arrival of the Fourth Indus- (Road Traffic Management Corporation’s trial Revolution, there has been a resur- Annual Report of 2016-2017 (www.rtmc. gence in the experimentation and de- co.za, accessed 27-1-2020)).

DE REBUS – APRIL 2021 - 18 - FEATURE – MOTOR LAW

In what follows, I will briefly explain • identify themselves to the appropriate mechanical, animal or human power or where SDC technology currently is. authorities; by gravity or momentum shall be deemed Thereafter, I will outline some of the le- • describe the vehicle components be- to be driven by the person in control of gal regulatory issues that we will have to ing made; and the vehicle’. What is contentious here is think about going forward, if SDCs drive • submit proof of insurance. whether the person in the vehicle can be their way into SA. Section 19 of Tennessee Bill and Michi- deemed to be in control of an SDC and if gan Senate Bill – Safe Autonomous Vehi- so, under what circumstances. What are SDCs? cle Act (SAVE) project states: According to HB Klopper the physical SDCs are vehicles, which can or should • SDCs made by different manufactur- operation of a car itself is not enough to be capable of navigating their way on ers must operate as an on-demand constitute the act of driving and must roads by use of GPS technology and vari- fleet available to the public. be paired with the requisite intention to ous sensors with minimal to no interven- • If the SDC is in self-drive mode and a drive (HB Klopper ‘Accidental starting of tion by the driver or passenger (Richard rule of the road is infringed liability a motor vehicle and section 20(1) of the LoRicco ‘Autonomous Vehicles: Why we will accrue to the manufacturer. Road Accident Fund Act of 1996 – Oli- need them, but are unprepared for their These types of regulations will have phant v Road Accident Fund’ (2009) 72 arrival’ (2018) 36 Quinnipiac LR 297 at to be promulgated by government. In SA THRHR 514 at 517-518). Meeting these 299-303). there are two existing pieces of legisla- requirements would prove problematic SDCs can fall into any of the 0 – 5 SAE tion, which are applicable to motor ve- in regard to SAE 5 vehicles as the lack of levels (SAE International ‘SAE Interna- hicle accidents, and by extension could normal mechanical components in such tional Releases Updated Visual Chart for be applicable to SDC accidents. That is vehicles would suggest that the former its “Levels of Driving Automation” Stand- why it is prudent to analyse the Road requirement cannot be met and that ard for Self-Driving Vehicles’ (www.sae. Accident Fund Act 56 of 1996 (RAF Act) such a vehicle cannot be driven despite org, accessed 15-4-2020)). and the Consumer Protection Act 68 of the intention to do so. • Level 0: Encompasses normal motor 2008 (CPA) and potential issues or areas • Negligent or wrongful act by the vehicles. of uncertainty that may arise from their driver: The way in which SDCs func- • Levels 1 – 4: These SDCs are partly au- application. tion obfuscates the question: Who is tomated meaning that at some point the driver at any given time? If the during the operation of the vehicle a Road Accident Fund accident occurred through no fault human passenger or driver needs to The main elements of s 17(1)(b) of the on the part of the human ‘driver’, un- intervene. This also requires the indi- RAF Act raise a series of questions in ap- der which Act, or rules can a plaintiff vidual to remain alert or aware of their plication to SDCs: make a valid claim in order to be com- surrounding environment. • Motor vehicle: Section 1 of the RAF pensated? • Level 5: Describes those SDCs that Act defines what a ‘motor vehicle’ If an SDC accident were to occur, the require no intervention from a hu- is. The essential components of the passenger’s or driver’s negligence can be man passenger or driver, and most definition are ‘any vehicle’; ‘designed examined under the common law rules. likely do not possess steering wheels or adapted’; ‘for propulsion or haul- Alternatively, it can be argued that the or brakes, like the Google car (Andrew age’; ‘by means of fuel, gas or electric- failure of the passenger or driver to take J Hawkins ‘Exclusive look at Cruise’s ity’; ‘on a road’. In order to establish control of the vehicle and prevent an ac- first driverless car without a steering whether an SDC is a motor vehicle for cident would amount to another wrong- wheel or pedals’ (www.theverge.com, purposes of the RAF Act an in-depth ful or unlawful act as contemplated by accessed 10-9-2020)). assessment of the manner in which an the RAF Act (see General Accident Insur- SDC operates is required. ance Co South Africa Ltd v Xhego and The overarching issue As a starting point an overall subjec- Others 1992 (1) SA 580 (A)). The overarching issue surrounding the tive and objective test can be utilised to • Harm: The only harm covered by the use of SDCs is the difficulty and uncer- determine what qualifies as a motor ve- RAF Act is bodily injuries. That means tainty in establishing where liability lies hicle. The subjective test requires one to that compensation for damage sus- or with whom if an SDC accident occurs. examine ‘the purpose for which the vehi- tained to property, such as the other This is partly due to the fact that SA does cle was conceived and constructed’ and vehicle in an accident must be claimed not have a clear or situation-specific set the objective test is one where a ‘reason- under alternative Acts or common-law of rules to deal with the unique or novel able person would perceive that the driv- rules. challenges presented by the introduction ing of the vehicle ... would be extraor- Sections 19 and 21 of the RAF Act, af- of SDC’s. dinarily difficult and hazardous unless ter the 2005 amendment, prohibited the special precautions or adaptation were claiming for emotional shock under the Regulations effected’ (Road Accident Fund v Mbend- RAF Act. However, the victim is still al- Since SDCs are fairly new and are not era and Others [2004] 4 All SA 25 (SCA) lowed to claim for emotional shock un- found operating commonly on public at para 10, Chauke v Santam Ltd 1997 (1) der the common law. roads, there is an element of risk at- SA 178 (A) at 183). tached to the operation of these vehicles. From a subjective perspective, the Consumer Protection Act In order to minimise this risk, it is rec- manufacturers of SDCs were construct- • Scope of the Act: According to s 1 ommendable that legislation is enacted ed for the purpose of daily use on pub- of the CPA, the purpose is to protect which regulates the licensing, testing, lic roads, which may indicate that it is consumers. It must be determined and operation of SDCs. Examples of such a motor vehicle. However, the multiple whether consumers are only those legislation can be found in the US, such car accidents involving SDCs in the US, individuals who have purchased a ve- as the HR 3388, 115th Congress, Self- might be indicatory of SDCs not being a hicle, or will it include passengers or Drive Act, of 2017-2018, Tennessee Sen- motor vehicle if contemplated under the individuals borrowing the vehicle. In ate Bill 151 and the Michigan Senate Bill RAF Act. essence one would have to establish 996, Bill Analysis. • Driving: Section 20(1) of the RAF Act who is part of the consumer-supplier Section 7 of Self-Drive Act requires defines ‘driving’ as follows: relationship. manufacturers of SDCs to – ‘For the purposes of this Act a motor • Product failure and defects: Section • be certified; vehicle which is being propelled by any 61 says that the ‘producer or import-

DE REBUS – APRIL 2021 - 19 - FEATURE – MOTOR LAW

er, distributor or retailer of any goods accidents, and therefore, by extension cles’ (2013) 2 Journal of Law, Technology is liable for any harm’ which results in there is a high possibility that these and Policy 247 at 265-266). whole or part due to a ‘defect’, ‘fail- rules would be applicable in an SDC ac- ure’, ‘hazard’ and/or ‘unsafe’ quality cident. What needs to be determined is Conclusion in the goods. when would these rules come into play. It might be that the above rules and Suppose that while in an SDC, ap- The most logical explanation being that provisions are inadequate and thus we proaching an oncoming car under nor- after all legislative remedies are exhaust- might have to rethink our legal regula- mal road conditions, the sensor does ed it would be most appropriate to turn tion of these cars if they are to be intro- not detect the car, meaning the SDC is to the common law (Melanie Murcott and duced on the public roads of SA. Hence delayed in registering an impending col- Werner van der Westhuizen ‘The ebb and the potential benefits to be gained from lision with the other car and does not flow of the application of the principle of SDCs and potentially the Fourth Indus- allow the passenger or driver to retake subsidiarity – critical reflections on Mo- trial Revolution will be negated without control of the SDC. For our purposes one tau and My Vote Counts’ (2015) 7 Consti- the requisite clarity on the above issues. can assume that the passenger or driver tutional Court Review 43 at 46 – 48). is not at fault, which leaves the liability If one wants to hold a manufacturer Charissa Chengalroyen BCom (Law) of the manufacturer to be examined un- liable based on delictual common law LLB LLM (Wits) is a candidate legal der s 61 of the CPA. Here the SDC did not fault, the plaintiff must prove all five practitioner at Lawtons Africa in Jo- function in the manner intended and the elements against the manufacturer. This hannesburg. issues with the sensor rendered the SDC would be difficult as there would be a q less safe than a person would reasonably need for an expert in SDCs and the plain- expect under the circumstances, which tiff would need to possess an in-depth points to a defect or failure in the SDC. knowledge of the manufacturing pro- The CPA imposes modified strict liabil- cess and supply chain. The former and Fact corner ity, meaning that the plaintiff does not the latter would not be readily available need to prove negligence on the part of to a plaintiff and if it were, it would be • According to Forbes.com, Waymo the manufacturer in order for the latter highly expensive to procure. This would (Google’s self-driving car division) to be held liable. place the manufacturer at an undue ad- is the front-runner in the self- vantage and leave consumers vulnerable driving race. It has been ferrying Delictual common law (Carla Kriek The scope of liability for paid passengers around Phoenix The elements of conduct, wrongfulness, product defects under the South African in its minivans for the past year. fault, causation and harm must be con- Consumer Protection Act 68 of 2008 and And often with no human ‘safety firmed in the positive before the driver, common law – a comparative analysis driver’ standing by to grab the passenger or manufacturer can be held (unpublished LLD thesis, Stellenbosch liable. University, 2017) at 75; Jeffery K Gurney wheel if something goes wrong Delictual common law is applicable in ‘Sue my car not me: Products liability (www.forbes.com). cases concerning normal motor vehicle and accidents involving self-driving vehi-

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DE REBUS – APRIL 2021 - 20 - Administration of Deceased Estates

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By Lincoln Cave Lifestyle audits: Bringing legal and ethical considerations under scrutiny

he reported request by the therefore, be aligned to the exercise of compliance with applicable laws and Gauteng Provincial Premier, ethical and effective leadership directed regulations and internal policies’ (IFAC David Makhura, for the State towards the sustainment of – ‘Governance in the Public Sector: A Gov- Security Agency (SSA) to con- • an ethical culture; erning Body Perspective’ Study 13, Au- duct lifestyle audits on Mem- • good performance; gust (2001) (www.ifac.org, accessed 7-8- Tbers of the Executive Council (MECs) • effective control; and 2020)). warrants some probing as to its align- • legitimacy (www.iodsa.co.za, accessed In considering the above, the question ment with institutional legal mandates 12-8-2020). still remains whether the premier’s re- within the context of public administra- The relevance in referencing corporate quest was appropriately directed? tion governance (Pearl Magubane ‘State governance in particular is juxtaposed Security Agency to conduct lifestyle au- against the background of how the re- The legal context dits on Makhura, MECs’ (www.sabc.com, quest came about. Briefly, the much-pub- The generally acceptable view holds that accessed 12-8-2020)). Directing the re- licised allegations of tender corruption the conducting of lifestyle audits is not quest to the particular institution, infers in the securing of health-related goods only part of a proactive anti-corruption that it has a legal obligation that assigns and services involving senior public of- strategy, it also forms part of governance it either a direct or shared accountability ficials was accompanied by calls for ac- best practice. A read of the National Stra- role in the matter. Additionally, the re- tion to address the seemingly growing tegic Intelligence Amendment Act 67 of quest brings both legal and ethical con- number of cases thereof. Notwithstand- 2002 informs that the SSA’s mandate siderations under scrutiny. ing the foregoing, the request also illu- includes, among others, a counter-intel- minates the ethics element insofar as it ligence responsibility. Derived from this The issue pertains to balancing the legal standards responsibility is the SSA’s explicit task to The importance and placement of the with the aspect of personal judgment conduct security vetting in all organs of mandate in the governance context is on the matter (Nomfundo Jele ‘Can eth- state on individuals that are new appoin- deliberated in that it is theoretically be- ics be taught?’ 2014 (April) DR 8). In this tees, or those considered to be employed ing conjoined to the understanding of instance, the assertion is made that the (or retained) in sensitive or high-risk job jurisdictional integrity. The latter term is request from the Premier could be con- functions. This is to provide the neces- formulated as: ‘[T]he political and legal sidered as part of the possible accept- sary assurance that any such individual competence of a unit of government to ance of non-binding forms of coopera- does not pose a security risk to the state. operate within a spatial and functional tion in government entities when dealing The concept of security vetting is formu- realm’ (Chris Skelcher ‘Jurisdictional with governance issues. However, such a lated as ‘the prescribed investigation fol- integrity, polycentrism, and the design development would seek ‘to supplement lowed in determining a person’s security of democratic governance’ (2005) 18(1) traditional forms of regulation in areas in competence’ (Carmen Charmaine Lucas Governance – an International Journal which command and control processes Vetting investigations for organs of state of Policy Administration and Institutions have not been effective’ (David M Trubek in a constitutional democracy – the South 89). Based on the description of the and Louise G Trubek ‘New Governance African context (LLM thesis, University of word, it can thus be assumed that the & Legal Regulation: Complementarity, Pretoria, 2018) (https://repository.up.ac. Premier’s request presupposes that the Rivalry, and Transformation’ (2007) 13 za, accessed 16-8-2020)). SSA has the legal mandate to provide Columbian Journal of European Law A lifestyle audit, in turn, is described assistance. If by deductive reasoning it 539). Hence also, the applicability of the as: can be concluded that directing the re- International Federation of Accountants’ ‘[A]n audit carried out with specific quest to the appropriate entity suffices, (IFAC) fundamental principles on pub- attention on income received by indi- it would also imply that the request falls lic administration governance directing, viduals, and these reports are an amal- within the confines of good governance among others, for the – gamation of reports from a variety of or corporate governance practices. The ‘controls established by the top man- databases that aim to give a snapshot governance foreseen outcomes (as de- agement of the [respective organs of of certain related aspects of the life of rived from the concept description by state] to support it in achieving the en- an employee’ (E Munjeyi and S Mujuru the Institute of Directors South Africa’s tity’s objectives, the effectiveness and ‘Is it worth investing in “Lifestyle Audit” King IV Report on Corporate Govern- efficiency of operations, the reliability in Zimbabwe?’ (2018) 7(8) International ance for Southern Africa: 2016) would, of internal and external reporting, and Journal of Innovative Research in Sci-

DE REBUS – APRIL 2021 - 22 - FEATURE – ADMINISTRATIVE LAW ence, Engineering and Technology (www. as the role of the Office of the Public Pro- applicable. The Public Service Regula- ijirset.com, accessed 15-8-2020)). tector more clearly defined, infers that tions, 2001 under s B.1(f) asserts the Theoretically, it can be deduced that there is an absence of a coordinated and same obligation under ‘Conditions for the two concepts, security vetting and standardised process to conduct lifestyle appointment’. It similarly instructs lifestyle audit, do not carry the same audits on the Executive. To elucidate: that an executive authority ‘shall re- meaning and purpose. Based on these • Scholarly research on lifestyle audits, quire an employee to be subjected to differences, it can also be surmised that coupled with the 2019 State of the security clearance only where the du- from a practical stance, the vetting pro- Nation Address by President Cyril ties attached to the post are such as cess includes the acquiring of lifestyle- Ramaphosa on the subject, supports to make security clearance necessary’. related information as part of the formal this analysis (Cyril Ramaphosa ‘Presi- Both tasks denote a mandatory must action steps. Additionally, both practi- dent Cyril Ramaphosa: State of the be done. Following on from the Stand- tioners and scholars consent to the fact Nation Address 2019’ (www.gov.za, acing Committee briefing, the SSA cau- that lifestyle audits can be conducted cessed 17-8-2020)). tioned that the situation left the state by any employer where there is suspi- • The Western Cape Provincial govern- vulnerable to crime, corruption, fraud cion of fraud. This can further be con- ment concluded its own lifestyle audit and mismanagement of state funds. trasted with the mandate of the South in 2020 with focus covering the period • While annual financial disclosures are African Revenue Service (Sars), which of 1 June 2017 to 31 May 2019 (West- already a mandatory requirement for conducts lifestyle audits to ensure com- ern Cape Provincial government ‘Pre- all public officials such declaration can pliance with liabilities under applicable mier Alan Winde on lifestyle audits of be defined as an event rather than a tax Acts. Case law, with reference to Western Cape cabinet members’ (www. process. However, it is the view that Commissioner for the South African Rev- gov.za, accessed 31-8-2020)). The rel- this compliance exercise can form the enue Services v Brown (ECP) (unreported evance of this matter to the request premise on which lifestyle audits can case no 561/2016, 5-5-2016) (Smith J), by Premier Makhura can also be ex- be constructed and managed. underscores this view. Flowing from trapolated to a 2018 complaint by the • Based purely on the appraisal of ap- its defined mandate, the opinion holds opposition Democratic Alliance in the plicable legislation, the placement of that Sars is thus able to detect possible Gauteng provincial government (Pen- the SSA as directly involved with the incidents of under-reporting of income well Dlamini ‘Gauteng will do lifestyle task seems to potentially pose both an or where there is not full disclosure of audits on the executive … sometime’ ethical and legal concern. This reason- assets that can constitute potential tax (www.timeslive.co.za, accessed 27-2- ing can be framed in relation to the re- evasion. Whether it has a clearly defined 2021)). The premise of the complaint quest being contrary to conformance mandate to conduct lifestyle audits on was the delay in conducting lifestyle as a good governance principle. In this the Executive in the manner intended audits on the provincial MECs. The instance it denotes how ‘the organisa- by the request from Premier Makhura is response at the time was that the Pre- tion uses its governance arrangements not expressed. Also, the judgment from mier sought to secure the assistance of to ensure it meets the requirements of Commissioner, South African Revenue the relevant institutions to give effect the law, regulations, published stan- Service v Public Protector and Others to the task. This also raises the ques- dards and community expectations of 2020 (4) SA 133 (GP), adds to the reason- tion as to how a comparable entity of probity, accountability and openness’ ing. In this instance, a ruling was made the state concluded a related exercise. (National Institute for Governance, on matters of taxpayer confidentiality • At a practical level, the realisation of Canberra ‘Better Practice Public Sec- and, to a degree, proposing other means the request could also be aligned to tor Governance’ (www.anao.gov.au, ac- of acquiring lifestyle information than perceived resource challenges. Of par- cessed 26-2-2021)). being reliant on Sars. This case has been ticular importance is the SSA’s pres- taken under review. Although there can entation to the Standing Committee Conclusion be no dispute that from a practical point, on Public Accounts in 2019. As part The articulation of, and adherence to, de- both Sars and the SSA are suitable to the of its submission, the SSA highlighted fined mandates should not only continue task (ie, they have institutional exper- that it had a huge vetting backlog with to promote good governance practices tise), their legal mandates do not assign insufficient personnel and funding to but should also emphasise compliance any direct obligation. Still, at present, carry out the background checks. This with the associated ethical standards. the most appropriate entity considered, briefing related to a 2012 government Furthermore, the unfolding COVID-19 is the Office of the Public Protector. This decision to have all public officials in- related events of alleged corruption can be derived from the mandatory tasks volved in supply chain management are regarded as further motivation to assigned to the Public Protector under s 3 vetted. This vetting commenced in address identified legal constraints in of the Executive Members’ Ethics Act 82 2014. With a reliance on other gov- order to promote constitutionally en- of 1998. More so, s 4 of this legislation ernment agencies for information, shrined good governance practices in permits the incumbent to investigate the total applications for vetting in public administration. any complaint, for example, against any the supply chain management sector MEC of a provincial government, lodged saw only 48% of the vetting applica- by either the president or any premier. tions completed. The SSA also raised Furthermore, ss 110 to 114 of the Con- the concern that some government de- stitution assigns the Public Protector the partments and state entities refused to Dr Lincoln Cave DTech in Public responsibility of investigating cases such have their employees vetted (Standing Management (TUT) Master’s in Se- as the alleged procurement corruption. Committee on Public Accounts ‘State curity Studies (UP) Dip Corporate Case law pertaining to Minister of Home Security Agency on vetting of officials: Forensic Investigator (Damelin) is Affairs and Another v Public Protector of Research Unit on Audit outcomes, a diplomat and writes as a Certified the Republic of South Africa [2018] 2 All with Minister’ 15 October 2019). It is Ethics Officer. Dr Cave is also an SA 311 (SCA) applies in this instance. my opinion that any such refusal is Associate Member of the Institute of contrary to the SSA’s legal obligation Commercial Forensic Practitioners Findings under s 2A of the National Strategic and a Supporter of the Ethics Insti- Based on the legal texts consulted, the Intelligence Act 39 of 1994. The latter tute of South Africa. presence of suitability for the task being directs that the SSA ‘shall be respon- q vested in different state entities, as well sible’ for vetting in those cases it is

DE REBUS – APRIL 2021 - 23 - Picture source: Gallo Images/Getty

Remove, withdraw or postpone? The principle of double jeopardy in competition law

n the case of Competition Commis- The case was set down to be heard by sion of South Africa v Beefcor (Pty) the Tribunal for three days, commencing Ltd and Another [2020] 2 CPLR 507 Monday 2 July 2018. On 26 June 2018 (CAC), the Competition Appeal the Competition Commission (the Com- Court of South Africa (CAC) con- mission) informed the respondents, of sidered the question whether the its desire to engage in settlement ne- Iwithdrawal of a complaint by the Com- gotiations. That same day the Commis- petition Tribunal (the Tribunal) initiated sion advised the respondents that the in terms of s 49B(1) of the Competition Commission had taken the decision to Act 89 of 1998 (the Act) serves to put an ‘withdraw the matter in order to give the end to the proceedings before the Tribu- negotiations a fair chance’ and served nal, on the basis that the complaint can- them with the notice of withdrawal not be reinstated. (Competition Commission v Beefcor (Pty) The complaint in question was initiat- Ltd and Another [2019] 2 CPLR 574 (CT)). By ed against the respondents, Beefcor (Pty) Immediately thereafter, CFP advised the Tshepo Ltd (Beefcor) and Cape Fruit Processors Commission to ‘hold off’ from serving Mashile (Pty) Ltd (CFP). The respondents were al- the withdrawal notice as the discussions leged to have entered into a contract not between them had not progressed to to compete in the market for the process- the point where a settlement had been ing of wet peels and citrus pulp used in reached. Thereafter and within minutes, the production of livestock feed. It was the Commission accordingly filed its no- contended that such conduct amounted tice of withdrawal. Beefcor accepted the to a division of markets or an allocation Commission’s withdrawal. It, however, of customers in contravention of s 4(1) expressed no intention of entering into (b)(ii) of the Act. The respondents denied settlement negotiations with the Com- contravening the Act and they both sepa- mission save in so far as it related to rately opposed the referral. costs. At 7:19 pm, the Commission fur-

DE REBUS – APRIL 2021 - 24 - FEATURE – COMPETITION LAW ther expressed the view that it was enti- relevant provisions to avoid a firm being the nolle prosequi, which may be issued tled to take the decision to withdraw the “tried” twice for the same or substan- in a criminal proceeding so as to allow case on the basis that it could be rein- tially the same conduct. Put differently, for private prosecution. stated at a later stage if settlement ne- the aim of the legislature in introducing The investigation process under the gotiations did not bear fruit. It explained s 67(2) was to avoid “double jeopardy”’. Commission is unilateral. It requires that it had opted for withdrawal rather In a defining case in relation to the neither the Tribunal’s involvement nor than postponement as it believed that constitutional values underlying the any judicial oversight. In Loungefoam this would provide a better platform for protection against double jeopardy, the (Pty) Ltd and Others v Competition Com- the settlement negotiations. Supreme Court of the United States in mission South Africa and Others, Feltex CFP, on the other hand, advised the Green v United States 355 US 184 (1957) Holdings (Pty) Ltd v Competition Commis- Commission that if it wanted more time famously said the following: ‘The State sion South Africa and Others (CAC) (un- to engage in settlement discussions, it with all its resources and power should reported case no 102/CAC/Jun10, 6-5- should have applied for a postponement not be allowed to make repeated at- 2011) (Wallis J (Davis JP and Ndita AJA of the matter in terms of r 50(2) of the tempts to convict an individual for an al- concurring)) the Commission’s powers Rules for the Conduct of Proceedings in leged offense, thereby subjecting him to of investigation were aptly described as the Competition Tribunal rather than embarrassment, expense and ordeal and ‘inextricably linked to the Act’s referral withdraw it. It advised the Commission compelling him to live in a continuing system in respect of complaints of anti- that it did not find the settlement terms state of anxiety and insecurity, as well competitive conduct’ and the court ex- proposed by the Commission acceptable as enhancing the possibility that even plicitly compared an investigation by the and invited the Commission to recall its though innocent he may be found guilty’. Commission to a criminal investigation. withdrawal of the matter in order for the In South African law as per s 35(3)(m) Part B of the Act provides the Commis- hearing to proceed on the Monday. The of the Constitution, it is specifically en- sion with a number of powers that are Commission refused this invitation and acted to allow the state to bring another couched in the language of criminal pro- remained adamant that the Commission prosecution on the same charge after an cedure. In fact, the wording of s 47(2) of could reinstate a withdrawn referral. accused has pleaded would be uncon- the Act is almost identical to the word- The parties’ legal practitioners re- stitutional. The inquiry in this case is ing of s 22(b) of the Criminal Procedure quested urgent clarity from the Tribunal whether the same constitutional protec- Act 51 of 1977 (CPA). Accordingly, it is on the situation. Faced with these cir- tions are deserved in relation to the pro- clear that the Commission’s investiga- cumstances, on Friday 29 June 2018, the cedures under the scheme, which are sui tive powers, especially the power to Tribunal’s Head of Case Management – generis in nature. enter and search premises without a • notified the parties that in view of the It is widely accepted that certain pro- warrant, bear a strong resemblance to Commission’s notice of withdrawal cesses under the scheme resemble crimi- criminal procedures. the matter had been removed from the nal procedures. The CAC aptly expressed The referral of the complaint to the roll; the position in Competition Commission Tribunal triggers the exercise of the Tri- • noted that the Commission had not v Pioneer Foods (Pty) Ltd [2010] 2 CPLR bunal’s adjudicative powers. The rules tendered costs and directed the par- 195 (CAC) at para 11. A comparative ex- allow the Commission to engage the ties’ attention to r 50(3); and amination of the process of withdrawal jurisdiction of the Tribunal by referral • stated that if the Commission in fu- in criminal procedure and under the of the complaint and to disengage such ture wished to reinstate the matter, scheme, with a view to understanding referral from such jurisdiction by means it should file an application for rein- whether similar constitutional protec- of withdrawal. This is the Commission’s statement. tions, which are accorded to an accused prerogative and is a power, which is The contemplated settlement nego- as part of the right to a fair trial were in- analogous to the powers of the Director tiations never took place. Instead, some tended by the legislature to apply to the of Public Prosecutions (DPP), which may two months later, the Commission re- withdrawal under the scheme as part of under s 6 of the CPA withdraw a criminal ferred a fresh complaint to the Tribunal, the right to fair administrative process matter. Central to the inquiry as to the under a different case number but deal- should be undertaken. meaning of s 67(2) is whether the con- ing with the same conduct complained Section 49B of the Act provides for the sequences of a withdrawal under s 67(2) of in the withdrawn referral. In these initiation of a complaint by the Commis- should, on the basis of the respondents’ new proceedings, the respondents raised sion and the submission of a complaint right to fair administrative process, be the point that s 67(2) of the Act preclud- by any person. The Commission may, at commensurate with the operation of ed the Commission from doing so. The any time ‘after initiating a complaint’, withdrawal in the criminal sphere. Tribunal then issued a directive that the refer it to the Tribunal. In terms of the On the Commission’s interpretation, Commission should bring an application form prescribed (Form CC 1) a concise the scope for the abuse of power is man- for reinstatement. statement of the conduct, as well as the ifest. Such an interpretation allows the The Commission sought to comply dates on which the conduct occurred Commission unilaterally to ‘postpone’ with the directive and brought the re- are required. A complaint is, therefore, cases, which it has referred to the Tri- instatement application, which was dis- defined by the facts relied on. This has bunal at a time of its choosing and for missed by the Tribunal. The Commission similarities to the drawing of a charge a period of its choosing, irrespective of appealed to the CAC against such a re- against an accused person. On initiat- the prejudice which may be occasioned fusal. Central to the inquiry is the meaning or receiving a complaint, the Com- to the respondent. The Commission ar- ing of the word ‘completed’ in s 67(2) of missioner must direct an inspector to gued, however, that on its interpreta- the Act. investigate the complaint as quickly as tion of s 67(2), a respondent would not In SAPPI Fine Paper (Pty) Ltd v Com- practicable. If the investigation reveals be without a remedy in that the courts petition Commission of South Africa and that no prohibited practice or abuse has could be approached for relief under the Another [2003] 2 CPLR 272 (CAC) the occurred, the Commission may not refer doctrine of abuse of power. It seems that CAC identified the mischief to be ad- the complaint to the Tribunal. It may this would be of little comfort to a re- dressed by s 67(2) as double jeopardy. then issue a notice of non-referral if the spondent who contends that he is being An analogy was thus drawn between the complaint was submitted to it by a third subjected to harassment and abuse by statutory scheme created by the Act and party, in which case the third party may repeated prosecutions. After all, were it the criminal procedure. The court held refer the complaint to the Tribunal. This accepted that the Commission is allowed as follows: ‘The legislature enacted the notice of non-referral has similarities to the facility of withdrawal with impunity,

DE REBUS – APRIL 2021 - 25 - FEATURE – COMPETITION LAW a respondent would be hard pressed that it should satisfy the Tribunal that explain the source of its power to rein- to prevent its use by the Commission. there is a case for postponement. A re- state withdrawn proceedings. One would The broad nature of the powers, which spondent in the proceedings is similarly have expected such a procedure to have the Commission already has militates placed. If the postponement is justified, been expressly regulated if it was envis- against the construction contended for it will be granted; if it is not justified, it aged. Section 67(2) must be interpreted by it. Such powers have now also been will be refused, and this is as it should broadly and as a constitutional protec- considerably extended by the decision in be, because the Tribunal is entitled to tion, which is analogous to that created Competition Commission of South Africa regulate its own processes. It is not only under s 106(4) of the CPA. The word v Pickfords Removals SA (Pty) Limited unnecessary, but amounts to irrational ‘completed’ in its ordinary and natural 2020 (10) BCLR 1204 (CC). differentiation, that one party (a pow- meaning can be applied to proceedings The concept of seeking a postpone- erful state organ) should have the uni- which have come to an end in one way ment from an adjudicative body is well- lateral alternative of a withdrawal and or another – whether following a trial on known. If one of the parties, in com- reinstatement while the other party (a the merits, a consent order or an aban- plaint proceedings before the Tribunal, private entity) does not. donment of the proceedings by way of requires further time, it can apply to the The double jeopardy protection in withdrawal. Tribunal for an extension of time or, in s 67(2) would be of limited value to a the case of proceeding set down for a respondent if it allowed for repeated specified date, a postponement. Appli- harassment in the context of all that cations for postponements are common the process entails. A further considera- in the Tribunal’s proceedings. Familiar tion militating against the Commission’s Tshepo Mashile LLB (University of considerations apply. If the Commission interpretation is that the notion of ‘re- Limpopo) is a legal practitioner at for any reason considers that it should instating’ a withdrawn complaint refer- Mkhonto and Ngwenya Inc in Preto- not be required to proceed with a case ral finds no mention in the Act or the ria. on a specified date, it is right and proper Tribunal’s rules. The Tribunal did not q

DE REBUS – APRIL 2021 - 26 - LAW REPORTS THE LAW REPORTS February [2021] 1 All South African Law Reports (pp 311 – 622); February 2021 (2) Butterworths Constitutional Law Reports (pp 101 – 216)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African By Criminal Law Reports. Readers should note that some reported judgments Merilyn may have been overruled or overturned on appeal or have an appeal pending Rowena against them: Readers should not rely on a judgment discussed here without Kader checking on that possibility – Editor.

Abbreviations the Southern African Development Com- in large quantities for ultimate sale to munity (SADC), which sought to restrict the consumer market. Most were sold CC: Constitutional Court the jurisdiction and reach of the SADC directly to major supermarket chains, ECG: Eastern Cape Division, Grahams- Tribunal, a body that the SADC had cre- while smaller outlets were generally ser- town ated. The intention behind those deci- viced by wholesalers who bought from ECL: East London Circuit Local Division sions was to render the SADC Tribunal Astral. One such wholesaler was a trust GP: Gauteng Division, Pretoria unable to pronounce on a pending case (Nambitha) in which the defendants were KZD: KwaZulu-Natal Local Division, Dur- before the SADC Tribunal brought by the trustees. Nambitha was a competitor of ban plaintiffs and the Tributing Companies another wholesaler (Dawoods). In 2011, LC: Labour Court against Lesotho, as well as three other Nambitha found itself out-traded by Da- SCA: Supreme Court of Appeal cases then pending before the SADC Tri- woods and its business of selling Astral WCC: Western Cape Division, Cape Town bunal. products collapsed, leaving an unpaid The defendants raised 14 exceptions balance owing to Astral. Civil procedure to the particulars of the claim. The court In its claim against Astral, Nambitha Exceptions to claim for ‘moral dam- did not deal with all of them individu- averred that the debt arose from its pur- ages’: In Trustees for the Time Being of ally because there were certain issues of chase of the product from Astral. Nambi- the Burmilla Trust and Another v Presi- principle on which some of the excep- tha contended that it was entitled to low- dent of the Republic of South Africa and tions had to be upheld and because the er prices for the product in question, and Another [2021] 1 All SA 578 (GP) the exceptions in some respects overlapped. that a debatement of Astral’s account of plaintiffs’ claim was for constitutional A question in this case was whether the its claim against Nambitha would reveal damages, said to arise from the drastic law should recognise liability under the a lesser debt. In a claim-in-reconvention, curtailment of jurisdiction and capacity South African Constitution to pay mon- Nambitha contended that throughout (shuttering) of an international tribunal, etary compensation to a non-South Afri- 2011 it was entitled to lower prices than before which the plaintiffs and others can national for acts committed by South those which were actually charged, and had a case pending against the Kingdom Africa (SA) in breach of our Constitution that it should be compensated for loss of of Lesotho. Of the three claims set out and in violation of international law, out- profits, as well as the collapse of its busi- in the amended particulars of the claim, side our borders, which caused the eco- ness as it was out-traded by Dawoods the first was for loss of profits – a claim nomic loss, which was suffered outside because Astral afforded Dawoods better said to have been ceded to the first plain- our borders. The court, as per Tuchten J, prices. Nambitha argued that it was enti- tiff (Burmilla). The second claim was said held that morality, the convictions of the tled to the same prices. to have been suffered personally by the South African community and policy do The first issue in Astral Operations Ltd second plaintiff (Mr van Zyl) as ‘moral not require that SA should be held liable t/a Early Bird Farm was the proper inter- damages’ for humiliation and indignity to compensate a non-national where the pretation of the terms of the contract be- caused by harassment and intimidation. South African government breached in- tween the parties with specific reference The third was for the wasted costs international law in circumstances such as to Astral’s allegation that it charged its curred in cases in other fora, all of which the present. The plaintiffs’ particulars of ‘usual prices’ to Nambitha at the time of were from the plaintiffs’ perspective the claim, therefore, did not establish le- dispatch of the goods. The second issue ultimately unsuccessful, in an effort to gal causation, on the plaintiffs’ claim for was whether the prices charged by Astral prevent or reverse the shuttering or to monetary compensation. The exceptions for the goods sold were the usual prices have their claims against Lesotho heard to the claim for moral damages were up- in the sense contended for by Nambitha in another forum. held. The court also upheld three other (ie, not favouring any other wholesale Mr van Zyl was a South African who exceptions but dismissed the remainder. customer). That led to the question of controlled various Lesotho companies. The plaintiffs were granted leave to whether Astral breached the contract The plaintiffs’ cause of action was that amend their particulars of the claim. in supplying other wholesalers at lower the South African government violated prices than those allowed to Nambitha. the plaintiffs’ rights through its conduct Corporate and commercial Regarding the first issue, it had to be in relation to the Southern African De- Contract – claim for payment: In As- determined whether ‘the usual price’ re- velopment Community Tribunal (the tral Operations Ltd t/a Early Bird Farm ferred to in the contract between Astral SADC Tribunal). In brief, the government v O’Farrell NO [2021] 1 All SA 350 (KZD) and Nambitha meant the best wholesale was a party to a series of decisions of the plaintiff (Astral) produced chicken price not undermined by the grant to

DE REBUS – APRIL 2021 - 27 - any other wholesale customer of rebates 1995 (the LRA), the High Court and LC on jurisdiction thus had to be upheld. or discounts or advertising allowances enjoyed concurrent jurisdiction over an The CC remitted the matter to the High more advantageous than those afforded alleged unlawful termination of a fixed- Court for hearing de novo. to Nambitha. Reliance was placed on an term contract of employment. Section enforceable trade usage or trade prac- 157(2) of the LRA provides that ‘[t]he La- Criminal law and tice, or the importation of a tacit term bour Court has concurrent jurisdiction into the agreement. The difficulty was with the High Court in respect of any procedure that what Nambitha contended for was alleged or threatened violation of any Admissibility of evidence found as re- not clear or certain, and contradicted fundamental right entrenched in Chap- sult of unlawful search: In Ndlovu and the express terms of the contract. That ter 2 of the Constitution … and arising Others v S [2021] 1 All SA 538 (ECG) conclusion answered the first question from (a) employment and from labour the appellants were charged in the High against Nambitha and rendered the sec- relations; (b) any dispute over the con- Court with various charges arising from ond issue irrelevant. It also addressed stitutionality of any executive or admin- ten incidents of rhino poaching that oc- the third issue, in that it could not be istrative act or conduct, or any threat- curred over a period of three years at found that Astral breached the contract ened executive or administrative act or various farms and nature reserves. They by charging Dawoods more favourable conduct, by the state in its capacity as were convicted on almost all the charges prices than Nambitha. an employer; and (c) the application of and were sentenced to lengthy periods A fourth issue raised by Nambitha’s any law for the administration of which of imprisonment, resulting in an effec- was that it had been induced to buy the the Minister [of Labour] is responsible’. tive sentence of 25 years’ imprisonment. goods, which it would not otherwise The court affirmed that s 157(1) does They unsuccessfully applied for leave have purchased, through false represen- not afford the LC general jurisdiction to appeal against their convictions and tations by Astral. The evidence, however, in employment matters. Section 157(1) the sentences imposed but were granted revealed no misrepresentations. There provides that ‘[s]ubject to the Constitu- leave on petition on two limited and nar- was no inducement to buy the goods un- tion and section 173, and except where rowly defined grounds. derlying Astral’s claim. [the LRA] provides otherwise, the La- The questions on appeal were whether – Judgment was granted in Astral’s fa- bour Court has exclusive jurisdiction • the trial court, acting in terms of vour, and Nambitha’s counter-claim was in respect of all matters that elsewhere s 35(5) of the Constitution, correctly dismissed. in terms of [the LRA] or in terms of any allowed physical evidence found as other law are to be determined by the La- a result of the unlawful search of a Courts – jurisdiction bour Court’. By virtue of s 157(2) of the premises to become part of the evi- High Court’s concurrent jurisdiction LRA, the High Court and the LC share dential material placed before it by the with Labour Court: The applicant in Ba- concurrent jurisdiction in respect of state; and loyi v Public Protector and Others 2021 employment-related disputes over which • or not the cumulative effect of the (2) BCLR 101 (CC) was a former Chief the LC does not have exclusive jurisdic- sentences imposed by the trial court Executive Officer of the Public Protec- tion. This means that the High Court’s rendered the sentences shockingly tor (PP), employed as such on a five-year jurisdiction is not ousted by s 157(1) disproportionate. contract that provided for a six-month simply because a dispute falls within the Regarding the first question, it was probation period, which could not be ex- overall sphere of employment relations. common cause that the police had en- tended for more than 12 months. At the The LC’s exclusive jurisdiction extends tered and searched a chalet in which the end of the probation period, the employ- to disputes for which the LRA creates appellants were present without a search er would be entitled to either terminate specific rights and remedies, including, warrant. The trial court found that the the applicant’s appointment or confirm for example, unfair dismissal disputes. admissibility of evidence that has been it. Several months after the applicant’s The court, as per Theron J (Mogo- obtained in a manner that violates rights probation period ended, she was in- eng CJ, Jafta, Khampepe, Madlanga, Ma- guaranteed in s 35(5) of the Constitu- formed that the employer was unable jiedt, Mhlantla, Tshiqi JJ, Mathopo and tion unlawful. Section 35(5) envisages to confirm her permanent employment. Victor AJJ concurring) held that the a two-step process. First, the evidence The applicant launched an urgent appli- termination of a contract of employment sought to be excluded must have been cation in the High Court contending that has the potential to found both a claim obtained in a manner that infringed on the termination of her employment was for relief for infringement of the LRA and a right guaranteed by the Bill of Rights. unlawful and that the PP had not com- also a contractual claim for enforcement If it is found that the impugned evidence plied with her constitutional obligations of a right that does not emanate from was so obtained, the second step is to in terms of s 181(2) of the Constitution. the LRA. The litigant must decide which determine whether the admission of the The High Court dismissed the applica- cause of action to pursue. The applicant evidence will render the trial unfair. The tion on the basis that it lacked jurisdic- had advanced a claim for contractual section does not provide for the auto- tion to deal with it. The applicant then breach and had expressly disavowed re- matic exclusion of evidence that was ob- appealed directly to the CC. She sought liance on the provisions of the LRA. tained in violation of a protected right. a review of the decision to terminate her While the applicant might also have a The court, as per Van Zyl DJP (Griffiths employment and an order for her rein- claim for unfair dismissal in terms of and Roberson JJ concurring), held that statement. She also sought a declaratory the LRA, nothing in the LRA required her the appellants were not in any way com- order that the PP violated her constitu- to advance that claim in the LC. As for pelled to participate in the discovery of tional obligations under s 181(2) of the the public law basis for the review re- the articles in the chalet. Further, the Constitution. The applicant challenged lief and the declaratory relief based on breach of the appellant’s right to privacy the High Court’s ruling that it lacked ju- s 182(1) of the Constitution, neither of did not operate to undermine the reli- risdiction to deal with the matter. those claims fell within the exclusive ju- ability of the evidence. The articles were The CC granted leave for a direct ap- risdiction of the LC, in terms of s 157(1) relevant real evidence that existed inde- peal in relation to the jurisdictional chal- of the LRA. The High Court had erred in pendently of any of the actions of the lenge. However, it refused leave to ap- dismissing the applicant’s application on police officials and would have been repeal in relation to the merits, that is, the the basis that it was ‘essentially a labour vealed independently of the appellant’s review relief and the declaratory relief. dispute’ and that the High Court’s juris- right to privacy. Accordingly, the admis- The central issue was thus whether, in diction was not engaged. The applicant’s sion of the evidence did not render the terms of the Labour Relations Act 66 of appeal against the High Court’s finding trial unfair. The determination of wheth-

DE REBUS – APRIL 2021 - 28 - LAW REPORTS er the admission of the evidence would abilities. In the final analysis the court child in the first two years of his life. She be detrimental to the administration of must determine whether the state has was recognised as a parent in terms of justice required a value judgment. The satisfied the requirement of proof be- both the Children’s Act and the Intestate court was satisfied that the trial court yond a reasonable doubt. Succession Act. correctly found that the evidence ought In this case, there were serious eviden- The primary caregiver and dominant to be admitted, as its exclusion would tiary deficiencies due to the manner in parental figure in the child’s life was the cause harm to the administration of jus- which the case was handled and inves- third respondent. The court described tice. tigated by the police. There were also the pivotal role she played in the child’s It was also not found that the sentenc- material discrepancies in the evidence of life and concluded that she was a parent es imposed were too harsh. Mr Pakisi, who was a single witness with for the purpose of inheriting as contem- The appeal was dismissed. no corroboration to his evidence. The plated in s 1(1)(d) of the Intestate Suc- inference drawn by the trial court that cession Act. the deceased had been thrown from the The second and third respondents Evidence – creditability and reliability van was not supported by the facts. Even were to inherit in equal shares from the of witnesses: The present appeal dealt though the appellants’ version regarding estate of the child. with the death of a 15-year-old boy (the how the deceased vanished from their deceased). The state and the defence vehicle was unsatisfactory, the state did presented mutually destructive versions Insurance law not prove its case beyond a reasonable of the circumstances surrounding the Interpretation of indemnity clauses: doubt. Consequently, the appeal was up- boy’s death. In March 2020, the COVID-19 pandemic held and the appellants were acquitted. The main witness for the state, Mr was declared a national disaster in South In a minority judgment it was stated Pakisi, testified that the appellants in Africa. Regulations were then issued in that the murder charge should be re- Doorewaard and Another v S [2021] 1 All an attempt to curb the spread of the vi- placed with one of culpable homicide SA 311 (SCA) assaulted, mishandled, and rus including a national lockdown and a in that the appellants had negligently threw the deceased out of a moving van, prohibition on the sale of alcohol. caused the death of the deceased by not and assaulted, kidnapped and intimi- The applicants in Grassy Knoll Trad- providing any medical assistance after dated him. He had been walking towards ing 78 CC t/a Fat Cactus and Another he was injured. a sunflower field when he heard a gun- v Guardrisk Insurance Company Lim- shot. He then saw the second appellant Family law and persons – ited [2021] 1 All SA 503 (WCC) operated holding a firearm and running towards restaurants in Cape Town. The impact a quad bike, which he drove towards the succession of the pandemic led to a decline in their first appellant, who was in a van with Right to inherit from child’s estate: In business, exacerbated by the alcohol ban. an unknown white man. Mr Pakisi testi- Wilsnach NO v TM and Others [2021] 1 In order to reduce overall losses, the ap- fied that he heard the deceased crying in All SA 600 (GP) the first and second re- plicants closed their restaurants. In June the back of the van, before the second spondents were respectively the parents 2020, the applicants submitted claims to appellant threw him out of the moving of a child born in 2013 and diagnosed the respondent (Guardrisk) under a busi- van. After the appellants picked up the with cerebral palsy. The child died in ness interruption section of their insur- deceased again, they drove into the field, 2018. The second respondent and the ance policy, for losses, which they suf- and on re-emerging, they confronted child lived with the third respondent (the fered. The ‘disease clause’ on which they Mr Pakisi about what he had seen. He second respondent’s mother) who pro- relied, insured them against loss result- alleged that he was kidnapped, threat- vided them with a home and took care of ing from interruption of, or interference ened and assaulted by the appellants. He their basic needs. with their business due to ‘notifiable stated that he subsequently attempted On the child’s death, all three respond- disease occurring within a radius of 50 to lay charges against the appellants but ents laid claim to his estate. The first and km of the premises’. The claims were re- was met by a lack of cooperation by the second respondents based their claim on jected on the ground that the applicants police. their status as parents, and the third re- had not provided evidence that their loss The appellants denied all the charges spondent on her having been awarded was a consequence of a confirmed case against them. They alleged that on that parental rights and responsibilities by of COVID-19 within the specified radius day they had noticed two boys stealing the court. of their premises. Guardrisk maintained sunflower heads from their employer’s Kollapen J held that it had to be deter- that the business interruption suffered farm. They had traced one of the boys, mined whether each of the respondents by the applicants was not caused by which was the deceased. The appellants qualified as a parent for the purpose of the occurrence of COVID-19 within a alleged that the boy had agreed to take inheriting as contemplated in s 1(1)(d) of 50 km radius of their premises, but by them to the other boy, and had sat in the the Intestate Succession Act 81 of 1987. the global COVID-19 pandemic and the back of their van, but had jumped out of The first respondent had nothing to do government’s response to it, which in the moving van during the drive, injuring with his child since birth, largely because Guardrisk’s submission were not perils himself. of the child’s condition. He, therefore, covered by the policy. The appellants were convicted in the at no time fulfilled his parental obliga- The applicants sought a declaratory High Court on charges of murder, kid- tions in terms of the Children’s Act 38 order that Guardrisk was obliged to in- napping, intimidation, theft, and the of 2005. To then regard him as a parent demnify them under their insurance pointing of a firearm. They obtained in terms of the Intestate Succession Act policy. leave to appeal against their convictions. would offend against the constitutional It was held by Norton AJ that insur- The state bears the onus to prove the scheme on which that Act was founded. ance contracts must be interpreted in guilt of an accused beyond a reasonable The court ruled that the first respond- accordance with the usual rules of in- doubt. Where there are two mutually ent did not meet the factual or legal re- terpretation, having regard to their lan- destructive versions, as in this case, the quirements of parenthood and was not guage, context and purpose, and prefer- court must consider the credibility and entitled to inherit from the estate of the ring a commercially sensible meaning reliability of the witnesses. Evidence that child. over one that is insensible or at odds is reliable should be weighed against the While the second respondent’s perfor- with the purpose of the contract. A com- evidence that is found to be false and, in mance of her duties as mother was open mercially sensible meaning, in respect of the process, measured against the prob- to some question, she did care for the an insurance contract, is a meaning that

DE REBUS – APRIL 2021 - 29 - LAW REPORTS both the prospective insured and the Legal practice – where he had commissioned one of the insurer must have regarded as meeting affidavits relied on in support of the ap- their aims in concluding the policy. unprofessional conduct plication, he being at all material times The first aspect addressed by the Ethical duties of legal representatives: under an ethical duty to maintain his in- court was the required causal relation- In Mzayiya v Road Accident Fund [2021] dependence in relation to his client and ship between the notifiable disease peril 1 All SA 517 (ECL) an application for de- the litigation. and the business interruption in the poli- fault judgment was made by the plaintiff The court, as per Kroon J, held that cy. The general approach, unless a differ- in a motor vehicle accident case. In his the claim was a bogus one based on the ent intention appears from the insurance particulars of the claim, the plaintiff al- incorrect premise that the accident oc- contract, is that the insured peril must leged that an unidentified motor vehicle curred on 20 March 2019 and that future be the factual cause and the legal cause had collided with him on 20 March 2019. medical expenses and loss of earnings of the loss or occurrence, which is cov- Compensation was sought from the de- should be calculated from that errone- ered by the contract. When there are two fendant. ous date onwards. How the incorrect or more possible causes of the loss or In an affidavit deposed to on 18 Au- date came to be used in the papers was occurrence, which is covered by the con- gust 2020, the plaintiff’s legal practitio- a matter of concern as the accident re- tract, a court must determine which is ner (Mr Klaas) admitted that the allega- ports clearly showed the correct date. the proximate cause. The disease clause tion that the accident occurred on 20 Moreover, a draft order presented to in this case was found to provide cover March 2019 was false, and it was stated court reflected the correct date, suggest- where the insured peril was the factual that the accident in fact occurred on 15 ing an attempt to obtain relief by way and legal cause of the insured’s business February 2007, more than 12 years ear- of a draft order containing facts mate- interruption, and the proximate cause if lier. rially different to what was contained there were other competing causes. In Mzayiya several issues were of con- in the particulars of claim and affidavit On a proper interpretation of the dis- cern to the court. No explanation was deposed to in support of the default ap- ease clause, the court concluded that the given for the misrepresentation and no plication, and without the knowledge of clause provided cover for business inter- amendment was sought to correct the the defendant. ruption caused by the COVID-19 pan- date. Another troubling aspect raised by The issues raised led the court to ex- demic and the government’s response to the court was the possibility that some- plain the ethical standards required of it, provided that there had been an oc- one other than the plaintiff might have legal practitioners. A legal practitioner currence of COVID-19 within the speci- signed the affidavits. The affidavit in has a pre-eminent duty to the court not fied radius of the insured’s premises. support of the claim was commissioned to embark on a litigation plan that will The applicants were granted the declara- by the same advocate who appeared in mislead the court. tory relief sought regarding Guardrisk’s court for the plaintiff. The court ques- As the particulars of claim on which liable to indemnify them for losses re- tioned the propriety of the advocate’s the application for default judgment sulting from the business interruption. subsequently appearing in a matter was sought referred to a non-existent

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DE REBUS – APRIL 2021 - 30 - NEW LEGISLATION accident, the relief sought could not be accident and was required to give a full non-disclosure of limitations of a se- granted. In any event, given the manner explanation as to the matters raised in curity system; in which the plaintiff’s legal representa- the court’s judgment. • constitutional right to adequate medi- tives approached the court, the matter cal treatment of prisoners; could not be entertained, and was ac- Other cases • conventions, treaties and judicial cog- cordingly struck from the roll. The court Apart from the cases and material dealt nisance of existence of treaties and its questioned whether the legal representa- with above, the material under review contents; tives who were responsible for lodging also contained cases dealing with – • interrogation and compulsion to an- and prosecuting the claim and seeking • administration of estates, heirs and swer notwithstanding possibility of default judgment might have been guilty legatees unworthy of inheriting by tes- self-incrimination; and of unprofessional conduct. As a result of tament or intestacy; • unlawful and irrational lawfulness of the questions about their bona fides, the • administrative law not applying to dis- shortening of notice period for termi- matter was referred to the appropriate putes where cause of action and rem- nation of contract/tender of Road Ac- bodies for further investigation. Should edy covered by the Labour Relations cident Fund panel attorneys. the plaintiff wish to proceed with the Act; claim he was required, within 21 days, • appropriate test, which must be used Merilyn Rowena Kader LLB (Unisa) to bring a substantive application for when determining the guilt of the ac- is a Legal Editor at LexisNexis in leave to amend his particulars of the cused person; Durban. claim to reflect the correct date of the • banker and client relationship and q New legislation

Legislation published from By 1 – 28 February 2021 Philip Stoop

Bills Defence Act 42 of 2002 and justice service points. GN R73 Notice of the authorisation of the ex- GG44133/3-2-2021. Division of Revenue Bill B3 of 2021. tended deployment of 2 122 members Appropriation Bill B4 of 2021. • Social development of the Defence Force to assist with the Special Appropriation Bill B5 of 2021. Directions regarding measures to ad- enforcement of lockdown regulations. dress, prevent and combat the spread of GN78 GG44138/10-2-2021. COVID-19: Social grants and adoptions. Promulgation of Acts Disaster Management Act 57 of 2002 GN111 GG44174/22-2-2021. Public Investment Corporation Amend- (COVID-19) • Transport ment Act 14 of 2019. Commencement: • Education Directions regarding measures to ad- To be proclaimed. GN44 GG44160/15-2- Directions regarding measures to address, prevent and combat spread of 2021 (also available in Afrikaans). dress, prevent and combat spread of COVID-19 at sea ports during adjusted COVID-19: Re-opening of schools in alert level 3. GN79 GG44140/10-2-2021. 2021. GenN42 GG44154/12-2-2021. Selected list of delegated Disaster Management Act 57 of 2002 legislation • General regulations (Floods) Basic Conditions of Employment Act 75 Extension of a National State of Disas- Classification of a national disaster: of 1977 ter under the COVID-19 lockdown to Strong winds and floods due to tropical Earnings threshold for the exclusion 15 March 2021. GN R86 GG44150/11-2- storm Eloise and summer seasonal rains. from certain sections of the Act: R 211 2021. GN90 GG44156/12-2-2021 and GN117 596.30. GN77 GG44137/8-2-2021. Amendment of the regulations is- GG44184/24-2-2021. Broad-Based Black Economic Empower- sued in terms of s 27(2): Alert level 3 International Trade Administration Act ment Act 53 of 2003 during the COVID-19 lockdown. GN 71 of 2002 Exemption of the Department of Min- R92 GG44158/13-2-2021 and GN R93 Regulations governing the Automo- eral Resources and Energy for its Risk GG44159/13-2-2021. tive Production and Development Pro- Mitigation Independent Power Produc- Determination of alert level: Level 1. GN gramme Post 2020 (APDP Phase II) er Procurement Programme. GN R91 R151 GG44201/28-2-2021. effective from 1 July 2021. GN R80 GG44157/12-2-2021. Amendment of the regulations issued GG44144/11-2-2021. Exemption of the Tourism Equity Fund. in terms of s 27(2): Alert level 1 dur- Long-Term Insurance Act 52 of 1998 GN R102 GG44172/19-2-2021. ing the COVID-19 lockdown. GN R152 Penalty for failure to furnish the Finan- Cross-Border Road Transport Act 4 of GG44201/28-2-2021. cial Sector Conduct Authority with re- 1998 • Justice turns: R 6 950. GN119 GG44186/26-2- Amended regulations: Revised fee adjust- Directions regarding measures to ad- 2021. ments, 2021. GenN R79 GG44197/26-2- dress, prevent and combat spread of National Education Policy Act 27 of 2021. COVID-19 in all courts, court precincts 1996

DE REBUS – APRIL 2021 - 31 - NEW LEGISLATION

Amended 2021 public school calendar. provisions of the Act for a period of three GN95 GG44162/16-2-2021. years. GN110 GG44173/5-2-2021. National Environmental Management National revenue, expenditure and bor- Act 107 of 1998 rowings as at 31 January 2021. GenN78 Adoption of a Generic Environmental GG44195/26-2-2021. Management Programme for the Work- Short-Term Insurance Act 53 of 1998 ing for Ecosystems Programme. GN105 Penalty for failure to furnish the Financial GG44173/5-2-2021. Sector Conduct Authority with returns: Adoption of a Generic Environmen- R 6 950. GN118 GG44185/26-2-2021. tal Management Programme for the South African Geographical Names Working for Water Programme. GN106 Council Act 118 of 1998 GG44173/5-2-2021. Approval of certain official geographi- Adoption of a Generic Environmental cal names in the Eastern Cape. GN114 Management Programme for the Work- GG44181/23-2-2021. ing with Wetlands Programme. GN107 South African Schools Act 84 of 1996 Join the Law Society of GG44173/5-2-2021. Amendment of the regulations pertain- South Africa’s Legal Identification of procedures to be fol- ing to the National Curriculum Statement lowed when applying for or deciding on Grades R – 12. GN104 GG44173/5-2- Education and an environmental authorisation applica- 2021. Development tion for large scale wind and solar pho- Tax Administration Act 28 of 2011 Department for the tovoltaic facilities occurring in a renew- Extension of the deadline to file country- able energy development zone. GN142 by-country returns. GN100 GG44170/18- following webinars and GG44191/26-2-2021. 2-2021 and GN101 GG44171/19-2-2021 courses: Identification of procedures to be fol- (also available in Afrikaans). lowed when applying for or deciding on an environmental authorisation applica- Draft Bills tion for the development of electricity Draft Disaster Management Amendment Basic Drafting Skills for transmission and distribution infrastruc- Bill, 21 (Private Member’s Bill). GenN46 Contracts (webinar) ture occurring in a renewable energy de- GG44166/18-2-2021. 14 April 2021 – 15 April 2021 velopment zone. GN145 GG44191/26-2- 2021. Identification of geographical areas of Draft delegated legislation strategic importance for development of • Draft Gas Act rules in terms of the Gas Shares (webinar) large-scale wind and solar photovoltaic Act 48 of 2001 for comment. GN74 21 April 2021 energy facilities (renewable energy de- GG44134/3-2-2021. velopment zones). GN144 GG44191/26- • Draft proposal on the implementa- 2-2021. tion of s 74 of the Higher Education Practice Management Identification of geographical areas im- Act 101 of 1997 for comment. GN108 portant for the development of strategic GG44173/5-2-2021. Training (course) gas transmission pipeline infrastructure. • Integrated Crime and Violence Preven- 3 May 2021 – GN143 GG44191/26-2-2021. tion Strategy of the Civilian Secretariat 31 August 2021 National Environmental Management: for the Police Service for comment. Biodiversity Act 10 of 2004 GenN50 GG44173/5-2-2021. Commencement of the alien and inva- • Admission policy for ordinary public sive species lists, 2020 and alien and in- schools in terms of the National Edu- Accounts Management vasive species regulations, 2020. GN115 cation Policy Act 27 of 1996 for com- Course (Bookkeeping) GG44182/24-2-2021. ment. GenN38 GG44139/10-2-2021. (online and distance) National Health Act 61 of 2003 • Draft Critical Skills List (2020) in terms 17 May 2021 – 16 July 2021 Regulations relating to standards for of the Immigration Act 13 of 2002 for comment. GN96 GG44164/18-2-2021. emergency medical services. GN94 GG44161/16-2-2021. • Proposed amendments to the listing National Minimum Wage Act 9 of 2018 requirements of A2X in terms of the Divorce Mediation (course) Amendment of the minimum wages con- Financial Markets Act 19 of 2012 for 24 May 2021 – 28 May 2021 tained in sch 1 and 2 to the Act with effect comment. BN8 GG44191/26-2-2021. from 1 March 2021. GN76 GG44136/8-2- • Proposed levies on medical schemes 2021. in terms of the Council for Medical National Student Financial Aid Scheme Schemes Levies Act 58 of 2000 for com- Visit www.LSSALEAD.org.za Act 56 of 1999 ment. GenN57 GG44179/23-2-2021. Repeal of reg 1 of the regulations on addi- • Draft amendment of the customer care for more information. standards regulations applicable to tional functions assigned to the National postal services licensees in terms of Student Financial Aid Scheme (NSFAS). the Independent Communications Au- GN67 GG44128/1-2-2021. thority of South Africa Act 13 of 2000 Protection of Personal Information Act for comment. GN148 GG44196/26-2- 4 of 2013 2021. Commencement of regulations relating to the protection of personal information. GenN75 GG44191/26-2-2021. Philip Stoop BCom LLM (UP) LLD Public Finance Management Act 1 of (Unisa) is an associate professor in 1999 the department of mercantile law at Exemption of the Industrial Development Unisa. q Corporation of South Africa from certain

DE REBUS – APRIL 2021 - 32 - CASE NOTE – COMMERCIAL AND TAX LAW A purposive interpretative approach to the calculation

By of mineral royalties Samuel Mariens

Commissioner, South African Revenue Service v United Manganese of Kalahari (Pty) Ltd 2020 (4) SA 428 (SCA)

n United Manganese of Kalahari Conflicting interpretations aforementioned factors. The purposive (Pty) Ltd, the taxpayer, United Man- interpretative approach outlined by the ganese of Kalahari (Pty) Ltd (UMK), adopted by Sars and UMK SCA in Endumeni was approved by the conducted manganese mining op- The material part of s 6, which the SCA Constitutional Court in Airports Compa- erations and generated profit from was called on to interpret was the phrase ny South Africa v Big Five Duty Free (Pty) Ithe sale of manganese, as an unrefined ‘without regard to any expenditure in- Ltd and Others 2019 (2) BCLR 165 (CC). mineral resource, both locally and inter- curred in respect of transport, insurance nationally. In exchange for the right to and handling’ of the manganese ore af- Purpose of the Act mine and trade manganese, the Mineral ter it had reached the condition contem- The SCA noted that the background to and Petroleum Resources Royalty Act plated in sch 2. The appeal turned on the the Royalty Act recognised that South 28 of 2008 (Royalty Act) obliges UMK to proper meaning and effect of the afore- Africa (SA) is a country with vast mineral pay royalties to the South African Rev- mentioned phrase. Sars contended that wealth, which has historically been sub- enue Service (Sars). A mining company’s it was only when a mining company sold jected to exploitation by private enter- liability for royalties due is determined the manganese at a price, which specifi- prises. The SCA held that the purpose of by a formula set out in s 4(2) of the Roy- cally accounted for any TIH costs in ar- the Royalty Act was to ensure that min- alty Act. The formula is determined by a riving at the global price that the specific ing companies paid royalties to Sars – process of calculation, which takes into amounts representing TIH costs were to the amount of which was determined by account the gross sales of the mining be deducted in order to determine the the value of the minerals extracted – in company during the tax year. The mining gross sales of the mining company. UMK exchange for being granted the right to company’s gross sales are determined in contended that it was irrelevant wheth- exploit SA’s mineral resources. The SCA accordance with s 6 of the Royalty Act. er a mining company specifically made held that the purpose of s 6(3)(b) was to When UMK trades manganese to for- provision for TIH costs in the purchase ensure that a mining company’s liability eign buyers, the sales are carried out on price. UMK argued that if a mining com- for royalties due did not include the TIH either a ‘free on board’ (FOB) or ‘cost, in- pany was able to show that it actually costs incurred and recovered in the pur- surance, freight’ (CIF) basis. It is unnec- incurred TIH costs in any of the circum- chase price. essary to describe in technical detail the stances described in s 6(3)(b), a deduc- process of a sale on either a FOB or CIF tion of such expenditure had to be made Material known to the basis. It is only important to know that in order to determine the gross sales of when UMK sold manganese to foreign the mining company. legislature buyers, it incurred costs relating to the Considering the contracts of sale for the transport, insurance or handling of the The interpretative approach exportation of the manganese submitted manganese ore (TIH costs) and the TIH by UMK, the SCA observed that the con- costs were incurred after the manganese adopted by the SCA tracts entailed trading in a denominated had reached the condition specified in The SCA reiterated that the purposive in- foreign currency, namely the United sch 2 to the Royalty Act, which related terpretative approach is the correct ap- States Dollar. The SCA observed further to the grade of the ore and its required proach to statutory interpretation as de- that the purchase price of the manga- chemical components. In determining its cided in the landmark judgment of Natal nese was fixed in dollars per ton on ei- gross sales for royalty purposes, UMK Joint Municipal Pension Fund v Endumeni ther FOB or CIF terms. The SCA noted sought to deduct the TIH costs incurred Municipality [2012] 2 All SA 262 (SCA). that irrespective of whether the sale took from the income received or accrued to The purposive interpretative approach place on a FOB or CIF basis, UMK would it from trading manganese. In respect entails an objective, unitary exercise incur TIH costs. The SCA expressed the of the 2010 and 2011 tax years, UMK which considers the – view that the foreign buyer would not be furnished Sars with its royalty returns. • language of the provision with due re- concerned with the TIH costs incurred Sars challenged the correctness of UMK’s gard to the ordinary rules of grammar by UMK, but would rather be desirous of royalty returns. The Supreme Court of and syntax; fixing a global price for the sale of the Appeal (SCA) was approached with two • context of the relevant provision; mineral up to the point of delivery. The conflicting interpretations of s 6 and was • apparent purpose for which the legis- SCA held that the aforementioned infor- tasked with deciding the correct method lature introduced the provision; and mation must have been known by the of calculation for determining the gross • material known to the legislature at parties responsible for the legislation, sales of a mining company in a particular the time of enacting the provision. including the Department of Mineral tax year for the purposes of calculating In the event that more than one inter- Resources and Energy (the Department). the mining company’s liability for royal- pretation prevails, each interpretation The SCA referred to the annual South ties due. must be weighed in accordance with the African Mineral Industry reports and

DE REBUS – APRIL 2021 - 33 - CASE NOTE – COMMERCIAL AND TAX LAW

found that the Department was aware it stood in 2010). The SCA noted further Conclusion of all the mining activities and trading that the section was amended in 2019 The SCA’s application of the purposive patterns in the mining industry. There- to employ the phrase ‘after deducting interpretative approach illustrated that a fore, the SCA held that when interpreting any expenditure actually incurred’. Ef- consideration of the context of a statute s 6, it would be proper to bear in mind fectively, the SCA illustrated a pattern of is fundamental for its interpretation. The that the responsible parties had knowl- the legislature amending the language of background to which a particular statute edge of the ‘common, if not invariable, the section to reflect its intention, which is enacted provides the context for its in- trading patterns’. Consequently, the pointed to the deduction of TIH costs terpretation. In circumstances where the SCA accepted that the responsible par- in determining gross sales, irrespective creation of the statute was carried out by ties were aware that the sale of miner- of whether separate amounts reflecting a commission of inquiry or a specialised als would occur at fixed prices on either TIH costs were specifically stipulated in drafting committee, it is permissible to FOB or CIF terms (and that such prices the purchase price. In amplification of refer to their reports, which may assist would not specifically take into account the aforementioned, the SCA referred to in contextualising the statute. Interpreta- the TIH costs incurred by the seller). The the explanatory memorandum that ac- tional uncertainty may be clarified with SCA found that there was nothing to in- companied the Bill containing the latest due consideration to the legislative his- dicate that the responsible parties only amendment to s 6(3)(b). The extracts of tory of the enactment. Furthermore, the contemplated contracts of sale, which the explanatory memorandum showed general background to the statute (such specifically stipulated a breakdown of that the legislature intended to exclude as, the nature of the concerns to which the price by recording the cost of the the TIH costs from the calculation, be- the legislature sought to ameliorate, the mineral and amounts reflecting the TIH cause its inclusion would unintention- purpose for the statute, the nature of the costs separately. ally increase the amount of gross sales areas to which the statute deals with, et- and, consequently, increase the taxpay- cetera) may provide useful context. Be- History of s 6(3)(b) er’s liability for royalties due. All of the fore calling on the court to decide on the The SCA noted that the original form aforementioned clearly showed that the interpretation of a statutory provision, a of the section provided that gross sales legislature’s intention and policy ration- practitioner should ensure that the inter- were to be determined ‘without regard to ale coincided with UMK’s interpretation pretation argued on behalf of the client any amount received or accrued’ in rela- of s 6(3)(b). is founded in law, failing which the court tion to TIH. The SCA remarked that the Consequently, the SCA rejected the may exercise its discretion to mulct the original form of the section was confus- interpretation adopted by the Commis- client with an adverse costs order. ing as TIH costs are not receipts or accru- sioner for Sars and found in favour of als, which comprise a taxpayer’s gross in- UMK. As the Commissioner’s interpreta- come, but are rather expense items. The tion was devoid of any legal basis, the Samuel Mariens LLB (UWC) is a stu- SCA noted that the section was amended SCA mulcted the Commissioner with dent currently completing an LLM

in 2010 to175x120REPRO.pdf employ the phrase 1 2012/05/02‘without a10:52 costs AM order, which included costs in- (Tax Law) at the University of Cape regard to expenditure incurred’ (the SCA curred in the employment of two coun- Town. q was called on to interpret the section as sel.

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DE REBUS – APRIL 2021 - 34 - EMPLOYMENT LAW Employment law update

By pend an employee without pay pending and not a disciplinary sanction. While no Nadine disciplinary action. disciplinary action may have taken place Mather Regarding the procedure followed by had the employee submitted the eye test the Company, the Commissioner found report, the court found that this was ir- that while there was evidence that the relevant to the finding that the suspen- Suspension without pay employee was involved in alleged seri- sion without pay was unlawful. In American Products Services (Pty) Ltd v ous misconduct, which required investi- As regard to the failure by the Compa- Commission for Conciliation, Mediation gation, there was no evidence that justi- ny to provide the employee with an op- and Arbitration and Others [2021] 1 BLLR fied denying the employee access to the portunity to make representations prior 64 (LC), the employee was employed by workplace. Further, the employee had to the suspension, the court referred to American Products Services (the Com- not been provided with an opportunity the Constitutional Court (CC) judgment pany) as a truck driver and was involved to make representations before he was of Long v South African Breweries (Pty) in a motor vehicle accident that resulted suspended by the Company. Ltd and Others [2019] 6 BLLR 515 (CC) in in damage to the Company’s vehicle. The In the circumstances, the Commission- which it was held that where the suspen- next day, the Company suspended the er found that the employee’s suspension sion is precautionary and not punitive, employee pending an investigation into was both substantively and procedurally there is no requirement to afford the the accident. The suspension was with- unfair and ordered the Company to pay employee an opportunity to make repre- out pay and the employee was denied ac- the employee an amount equivalent to sentations. This said, the CC found that cess to the Company’s premises. six months’ remuneration as compensa- generally, where suspension is on full The Company thereafter instructed the tion. pay, ‘cognisable prejudice will be ame- employee to produce an eye test report Disgruntled by the outcome, the Com- liorated’. and informed the employee that a fail- pany took the Commissioner’s award on In the present case, however, the prej- ure to produce the report would result review. The Company alleged that the udice caused to the employee had been in his ‘instant dismissal’. The employee Commissioner failed to apply his mind exacerbated by the Company’s decision failed to produce the eye test report by to the facts and had committed a gross to suspend him without pay. The court the stipulated date and was dismissed irregularity in reaching the conclusion was of the view that given the punitive following a disciplinary hearing, which that the employee’s suspension was nature of the suspension, the employee he failed to attend. substantively and procedurally unfair. ought to have been provided with an op- Prior to his dismissal, the employee The question before the Labour Court portunity to make representations prior referred an unfair labour practice dis- (LC) was accordingly whether the Com- to any action being taken. This would pute concerning his suspension to the missioner, in making the award, came to not have been the case had the employee Commission for Conciliation, Mediation a decision that no reasonable decision- been suspended with pay. and Arbitration (CCMA). At the CCMA, maker could reach. The court accordingly found that the the Commissioner noted that there were The LC noted that s 186(2)(b) of the La- decision by the Commissioner was one two types of suspension. The first type bour Relations Act 66 of 1995 provides that a reasonable decision-maker could of suspension was a ‘holding operation’ for an unfair labour practice involving reach, and the Commissioner could not where the suspension is not designed to ‘the unfair suspension of an employee or be faulted for awarding the employee six impose discipline, but is rather for rea- any other unfair disciplinary action short months’ compensation. The review ap- sons of good administration. The second of dismissal’. It is now settled that this plication was dismissed with costs. type of suspension serves as a form of includes both suspension imposed as a disciplinary action. The Commissioner disciplinary sanction and ‘precautionary’ found that the first type of suspension suspension pending disciplinary action. applied to the employee because the The latter form of suspension must be Nadine Mather BA LLB (cum laude) Company suspended him pending an in- on full pay. The court held that the Com- (Rhodes) is a legal practitioner at Bowmans in Johannesburg. vestigation into the accident. The Com- missioner had correctly found that the q missioner held that it is unlawful to sus- suspension was a ‘holding operation’

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DE REBUS – APRIL 2021 - 35 - EMPLOYMENT LAW

In his award the arbitrator found that: ability of the polygraph test. To this end, • Since the employee in whose posses- the employer failed in its duty. Neither sion the product was found, did not the HR Manager, nor the Superinten- have access to the restricted area, he dent were experts in this field or even could only have obtained possession administrated the test. Thus, other than of the gold concentrate from someone submissions on the results of the poly- who had access to the restricted area. graph test, there was nothing further the • In the absence of leading any direct arbitrator could have considered on this evidence in support of the charge, point. the employee relied solely on circum- On the common cause facts, together stantial evidence in an attempt to dis- with the employer’s own version, in par- charge its onus. ticular that the security guards at the • Due to the fact that the employee was restricted area were not trustworthy By not the only person who had access and could have been complicit in the Moksha to the restricted area, there was more attempted theft; it was not unreason- Naidoo than one inference to be drawn from able for the arbitrator to find there were the circumstantial evidence. other reasonable inferences that could Polygraph test and • The employer failed to lead any expert be drawn, which did not implicate the evidence on the reliability and accu- employee in any way. circumstantial evidence racy of the polygraph test. Regarding the second and third ground Goldplat Recovery Pty Ltd v CCMA Following the above findings, the ar- on review, the employer argued that the and Others (LC) (unreported case no bitrator found the employee’s dismissal arbitrator ought to have drawn the infer- JR488/2019, 3-2-2021) (Tlhotlhalemaje J). substantively unfair and awarded him 12 ence that the employee was dishonest In September 2018 an employee of the months’ compensation. and unreliable following that his defence applicant was found with 1,5 kg of gold On review, the employer attacked the amounted to a bare denial, together with concentrate in his possession. The prod- award on numerous grounds, namely: the fact that he did not challenge the re- uct was kept in a restricted area, which • The employer argued that the arbitra- sults of the polygraph test. In rejecting the employee did not have access to. tor adopted the incorrect standard of this argument, the court held that absent Having been released on bail and at his proof when assessing the circumstan- any direct evidence of the employee’s internal inquiry, the employee said that tial evidence in that the question he involvement in the attempted theft, the a syndicate was operating out of the em- ought to have asked is whether the employee’s lack of knowledge of such ployer’s premises but refused to identify inference drawn by the employer was events could not strengthen the employ- those involved. The employee was subse- the most likely one and not whether it er’s suspicion that he was involved in the quently dismissed. was the only inference that could have incident. In light of this information and on the been drawn. In relation to the maximum compensa- employer’s request, employees who had • The arbitrator failed to take into action awarded to the employee, the court access to the restricted area underwent a count the fact that the employee was held: polygraph test. Of those who were poly- dishonest and hence an unsatisfactory ‘The approach in determining what graphed, only the third respondent em- witness. constitutes just and equitable compen- ployee failed the test. This employee was • The results of the polygraph test cor- sation was reiterated in ARB Electrical charged for ‘suspicion of theft of compa- roborated the employee’s dishonesty. Wholesalers (Pty) Ltd v Hibbert [[2015] ny goods’ and later dismissed, whereaf- • It was unreasonable for the arbitra- 11 BLLR 1081 (LAC)], and essentially, the ter he referred a dismissal dispute to the tor to award the employee maximum factors to be looked at include but are Commission for Conciliation, Mediation compensation. not limited to the nature and seriousness and Arbitration (CCMA). The court began by stating that the of the infringement, the circumstances At arbitration, the employer led the test on review is trite. An arbitrator’s in which it took place, the behaviour of evidence of its Human Resources (HR) error in law or fact, their flaws in their the employer and the extent of the com- Manager and Mine Superintendent. Their reasoning, their reliance on irrelevant plainant’s humiliation or distress. evidence before the arbitrator was: facts or failure to place weight on mate- In this case, in considering the amount • That the employee was a team leader rial facts, are on its own, not enough to of compensation, the Commissioner had and had access to the restricted area set aside an award. It is only when it can regard to the fact that the dismissal of by virtue of his responsibilities. be demonstrated that these irregularities [the employee] was “grossly unfair”, and • Although there were security guards ultimately led the arbitrator to embark further that he had long service. Further- in the restricted area, it was unclear on the incorrect inquiry or resulted in more, there cannot be anything unfair whether the guards searched employ- the arbitrator arriving at a finding, which when maximum compensation is award- ees each time they entered or exited falls outside the band of reasonableness, ed, in circumstances where an employer the area. Furthermore, it was possi- would the award be susceptible to being had hopelessly failed to discharge the ble that the security guards may have set aside. onus placed on it under sections 192(2) been a part of the suspected syndicate. Turning to the merits, the court found and 188(1)(a)(i) of the [Labour Relations • Both witnesses were not involved with that it was the results of the polygraph Act 66 of 1995], and where as the Com- administrating the polygraph test. test, which formed the basis of the em- missioner had found, that the dismissal • There were other employees who had ployer preferring charges against the was grossly unfair.’ access to the restricted area. employee, and subsequently dismissing The review application was dismissed • The employee who had been dismissed him. While administering a polygraph with costs. for possession of the gold concentrate test is in itself not unfair only where and the employee in casu, worked the there is reason to suspect wrongdoing, Moksha Naidoo BA (Wits) LLB (UKZN) same shift the day the former attempt- an employer cannot solely rely on the is a legal practitioner holding cham- ed to steal the gold concentrate. employee failing the test in order to es- bers at the Johannesburg Bar (Sand- The employee’s version was simply tablish dishonesty on their part. ton), as well as the KwaZulu-Natal Bar that he was not involved in the attempt- Additionally, the onus remains on the (Durban). ed theft of the gold concentrate. employer to prove the cogency and reli- q

DE REBUS – APRIL 2021 - 36 - RECENT ARTICLES AND RESEARCH Recent articles and research By Kathleen Kriel

Please note that the below abbrevia- Accessing articles from publishers tions are to be found in italics at the end of the title of articles and are For LexisNexis articles contact: [email protected] for the publi- there to give reference to the title of cation details. the journal the article is published For individual journal articles pricing and orders from Juta contact Philippa in. To access the article, please con- van Aardt at [email protected]. tact the publisher directly. Where articles are available on an open For journal articles not published by LexisNexis or Juta, contact the KwaZulu- access platform, articles will be hy- Natal Law Society Library through their helpdesk at [email protected] perlinked on the De Rebus website (their terms and conditions can be viewed at www.lawlibrary.co.za). at www.derebus.org.za

Abbreviation Title Publisher Volume/issue AYIHL African Yearbook on International Juta (2019) 1 Humanitarian Law BTCLQ Business Tax and Company Law SiberInk (2020) 11.4 Quarterly DJ De Jure University of Pretoria (2020) 53 EL Employment Law Journal LexisNexis (2020) 36.6 (2020) 37.1 ILJ Industrial Law Journal Juta (2020) 42 ITJ Insurance and Tax Journal LexisNexis (2020) 35.4 JCLA Journal of Comparative Law in Africa Juta (2020) 7.1 LitNet LitNet Akademies (Regte) Trust vir Afrikaanse Onderwys (2020) 18(1) PLD Property Law Digest LexisNexis (2020) 24.4 SAJCJ South African Journal of Criminal Juta (2020) 33.2 Justice SJ Speculum Juris University of Fort Hare (2020) 34.2

TPCP Tax Planning Corporate and Personal LexisNexis (2020) 34.6 (final issue) THRHR Tydskrif vir Hedendaagse Romeinse- LexisNexis (2020) 84.1 Hollandse Reg

Administrative law fathers may give notice of their child’s Bargaining Council v AXZA Industries birth – Centre for Child Law v Director- (Pty) Ltd 2020 (2) SA 215 (GJ)’ (2021) 84.1 Henrico, R ‘The functus officio doctrine General Department of Home Affairs THRHR 140. and invalid administrative action in 2020 (6) SA 199 (ECG) – by AE Boniface’ South African administrative law: A flex- (2021) 84.1 THRHR 131. Consumer law ible approach’ (2020) 34.2 SJ 115. Fokala, E ‘Calibrating children’s rights to Birkholtz, MA ‘Spousal contributions in Business rescue participate in a family setting 30 years debt review referrals to the magistrates’ after the adoption of the Convention on Chong, J ‘Sars – stand in line! How tax courts in terms of the National Credit the Rights of the Child and the African debts rank in business rescue’ (2020) Act 34 of 2005’ (2021) 84.1 THRHR 68. Children’s Charter’ (2020) 34.2 SJ 188. 11.4 BTCLQ 16. COVID-19 Children’s rights Company law Laubscher, R ‘The COVID-19 lockdown Boniface, AE ‘Without a registration of Swart, C ‘Caveat! Voluntary winding-up regulations and the courts’ irrational birth a name means nothing: Unmarried is not a get out of jail free card! Furniture rationality-test – De Beer v Minister of

DE REBUS – APRIL 2021 - 37 - Cooperative Governance and Traditional die moderne huwelik?’ (2021) 84.1 companies in Nigeria and South Africa’ Affairs (21542/2020) [2020] ZAGPPHC THRHR 1. (2020) 7.1 JCLA 30. 184 (2 June 2020) and Fair Trade Inde- pendent Tobacco Association v President Employment equity International Criminal of the RSA (21688/2020) [2020] ZAGP- Du Toit, D ‘Discrimination on an “arbi- Court PHC 246 (26 June 2020)’ (2021) 84.1 trary ground” and the right of access to Ankumah, EA and Goldston, J ‘Trans- THRHR 110. justice’ (2021) 42.1 ILJ 1. parent, structured, and qualified: Why Grogan, J ‘“Arbitrary grounds” – no pan- COVID-19: Force majeure process matters for electing the next ICC acea for all ills’ (2020) 36.6 EL. Prosecutor’ (2019) 1 AYIHL 129. Viljoen, SM ‘The impact of the COVID-19 Estate planning, wills and Jacobs, D ‘No such thing as a perfect regulations on rent obligations’ (2020) candidate: A comment on the process of 53 DJ 353. trusts choosing the next ICC Prosecutor’ (2019) COVID-19: Tax law Madzika, K ‘Dawn of a new era for per- 1 AYIHL 123. manent life partners: From Volks v Rob- Mushoriwa, L ‘Immunity before the In- Suliman, Y ‘Forced additional expendi- inson to Bwanya v Master of the High ternational Criminal Court: Has the Ap- ture – lockdown-related compliance is- Court’ (2020) 53 DJ 393. peals Chamber decision in the Jordan ap- sues’ (2020) 34.6 TPCP. Oosthuisen, W ‘The recognition of per- peal brought finality?’ (2020) 33.2 SAJCJ Criminal law, litigation and manent opposite-sex life partnerships 402. – Bwanya v Master of the High Court, Vigneswaran, K ‘The appointment pro- procedure Cape Town and Others [2020] ZAWCHC’ cess for the next ICC Prosecutor: Form Du Toit, P ‘Recent case: Criminal proce- (2020) 35.4 ITJ. and substance must be mutually rein- dure’ (2020) 33.2 SAJCJ 480. Stein, M ‘Practical planning points – lim- forcing’ (2019) 1 AYIHL 135. Freedman, W ‘Recent case: Sentencing’ ited interests in estate planning’ (2020) (2020) 33.2 SAJCJ 508. 34.6 TPCP. International criminal law Okpaluba, C ‘Damages for injuries aris- Surtees, P ‘Ex-husband a husband? Mujuzi, JD ‘Prosecuting and punish- ing from the infringement of the rights Named in a will’ (2020) 34.6 TPCP. ing persons for sending messages of of persons in police or prison custody: Van der Spuy, P ‘Relevant or irrelevant obscene, offensive, threatening or men- South Africa in comparative perspective – founder’s significance!’ (2020) 34.6 acing character under the Mauritian In- (Part 2)’ (2020) 34.2 SJ 201. TPCP. formation and Communication Technol- Robinson, M ‘The social justice implica- ogies Act’ (2020) 34.2 SJ 156. tions of criminalisation of HIV transmis- Evidence Namakula, CS ‘Language as a facilitator sion’ (2020) 33.2 SAJCJ 302. Meintjes-Van der Walt, L ‘Recent case: of the right to a fair trial in Kenya’ (2020) Sloth-Nielsen, J ‘Child justice: Changes Law of evidence’ (2020) 33.2 SAJCJ 493. 33.2 SAJCJ 382. to the minimum age of criminal capacity’ (2020) 33.2 SAJCJ 469. Expropriation of land International humanitarian Stevens, GP ‘Revisiting mental disability Botha, M ‘The expropriation debate: An law in the context of sexual offences – some update’ (2020) 24.4 PLD. Abelungu, JM ‘Les accords spéciaux thoughts’ (2021) 84.1 THRHR 84. dans les conflits armés en la République Van der Linde, DC ‘Some notes on non- Financial services industry Démocratique du Congo: Contribution à consensual or “revenge porn” under the Botha, M ‘Post graduate studies in finan- l’amélioration du droit international hu- Film and Publications Amendment Act’ cial planning: Example case study show- manitaire?’ (2019) 1 AYIHL 49. (2021) 84.1 THRHR 22. ing the analysis’ (2020) 35.4 ITJ. Bradley, MM ‘Revisiting the scope of Van der Linde, DC ‘The overlap between application of Additional Protocol II: Ex- the common law and Chapter 4 of the Hate speech ploring the inherent minimum threshold Prevention of Organised Crime Act: De Villiers, W ‘Proper prosecution and requirements’ (2019) 1 AYIHL 81. Is South Africa’s anti-gang legislation conviction or blunder? S v Catzavelos Kiboro, HM ‘By all means necessary: A enough?’ (2020) 33.2 SAJCJ 273. (Randburg Magistrate’s Court, convicted look at the reliance on United Nations Se- 5 December 2019, sentenced 28 Febru- curity Council resolutions as a basis for Customary law ary 2020)’ (2021) 84.1 THRHR 121. internment in non-international armed Chikaonda, GP ‘A critical analysis of conflicts’ (2019) 1 AYIHL 25. codification: Analysing the value of fam- International alternative Maseka, N and Abrahams, D ‘Peacekeep- ily preservation in African Law’ (2020) dispute resolution ers and sexual violence: The disjuncture 7.1 JCLA 63. Nagu, Y ‘Opinion: Will the African con- between domestication and implementa- Deceased estates tinental free trade area’s dispute settle- tion’ (2019) 1 AYIHL 1. ment protocol be adequate to ensure Botha, L ‘Redeemable preference shares International compliance?’ (2020) 7.1 JCLA 120. – value on the date of death?’ (2020) 34.6 jurisprudence TPCP. International business law Phooko, MR ‘Has the SADC Tribunal Delictual law Rudahindwa, JB ‘Legislative versus judi- been salvaged by the South African cial harmonisation of law: A comparative Constitutional Court and the Tanzanian Neethling, J ‘Vonnisbespreking: Delik- study of Ohada commercial law and the High Court?’ (2020) 34.2 SJ 174. tuele skadevergoedingsreg – die “once US uniform commercial code’ (2020) 7.1 and for all”-reël en die beginsel dat JCLA 1. International persons and skadevergoeding in geld uitgedruk moet word, onder die soeklig’ (2021) 18(1) Lit- International corporate family law Net. Mujuzi, JD ‘Contentious jurisdiction: Sonnekus, JC ‘Erkenning van deliktuele governance The Kenyan Kadhis’ courts and their ap- remedies: ’n Bevestiging van ’n besk- Oluwadayisi, AO ‘A comparative analy- plication of the Islamic law of custody ermingswaardige regsbelang of tog ’n sis of codes of corporate governance and maintenance of wives and children’ bedreiging vir ’n sosiale instelling soos and their impact on the boards of public (2020) 7.1 JCLA 93.

DE REBUS – APRIL 2021 - 38 - RECENT ARTICLES AND RESEARCH

Jurisprudence Muller, C ‘Members of retirement annu- third-party notice null and void’ (2020) ity funds and preservation funds emi- 34.6 TPCP. Fuo, O ‘Rethinking the regulation of grating from South Africa – proposed Jooste, R ‘Borrow then [on] lend, but do university students’ protests in light of changes by the 2020 Taxation Laws not lend then borrow!’ (2020) 34.6 TPCP. Mlungwana v The State 2018 ZACC 45’ Amendment Bill’ (2020) 35.4 ITJ. Meiring, G ‘The tax director – VI: Tax as (2020) 53 DJ 369. Nair, A ‘Decisions of specialist tribunals a priority in financial transformation’ Okpaluba, C and Abioye, F ‘Consulta- deemed orders of court: A reflection on (2020) 34.6 TPCP. tion as the hallmark of South Africa’s Mantsho v Managing Director of the Mu- Mitchell, K ‘Foreign employment – IV: participatory democracy: Lessons from nicipal Employee Pension Fund and Oth- Possible employees’ tax problems’ (2020) the courts’ (2020) 34.2 SJ 130. ers [2015] ZAGPPHC 408’ (2021) 42.1 ILJ 34.6 TPCP. Van Staden, M ‘Spontaneous order or 33. Mitchell, L ‘Incurred, paid or settled central planning? A brief overview of the – paid may not mean physically paid’ libertarian approach to law’ (2021) 84.1 Property law (2020) 34.6 TPCP. THRHR 53. De Dios, CR ‘Misrepresentation on zon- Palmer, G ‘Most favoured nation clauses Labour law ing in property transactions whose fault from 15% to 5% to 0%’ (2020) 34.6 TPCP. is it anyway?’ (2020) 24.4 PLD. Rossato, ES ‘Right to reasons – for an Bradstreet, RS ‘Sanctity of contract Van Staden Vorster & Nysschen Attor- understatement penalty imposed’ (2020) prevails over force majeure: The Brand neys ‘When to review?’ (2020) 24.4 PLD. 34.6 TPCP. Kitchen judgment’ (2021) 42.1 ILJ 26. Rudnicki, M ‘Tax due diligence: A pro- Grogan, J ‘Agency fees – “double taxa- Protection of personal posed framework’ (2020) 11.4 BTCLQ 7. tion” survives the test’ (2021) 37.1 EL. Seligson, M ‘The application of s 19 and Grogan, J ‘Pleading poverty – treasury information para 12A to the settlement of disputed trumps wage deal’ (2021) 37.1 EL. Botha, M ‘POPIA for property practition- debts: A “concession or compromise” of Grogan, J ‘Short of dismissal – the scope ers’ – contracts and marketing (part 2)’ another kind!’ (2020) 11.4 BTCLQ 1. of section 186(2)(b)’ (2021) 37.1 EL. (2020) 24.4 PLD. Silke, J ‘Playing for time – Tax Court Nxumalo, L and Nxumalo, C ‘The impact rules intentionally delayed’ (2020) 34.6 of the Fourth Industrial Revolution on Refugee law TPCP. workplace law and employment in South Mujuzi, JD ‘Exclusion from refugee sta- Thackwell, R ‘Watermeyer – XVI: Conclu- Africa’ (2021) 42.1 ILJ 16. tus of asylum seekers who have alleg- sion and summary’ (2020) 34.6 TPCP. edly committed war crimes in non-inter- Law of succession Van Zyl, SP and Carney, TR ‘Just how national armed conflicts outside South voluntary is “voluntary” for purpose of Van Vuren, L ‘Recent cases on the law Africa’ (2020) 33.2 SAJCJ 425. a voluntary disclosure application in of succession and trusts’ (2020) 35.4 ITJ. Spousal testimonial terms of section 226 of the Tax Adminis- Mining and mineral rights tration Act 28 of 2011? Purveyors South Africa Mine Services (Pty) Ltd v Commis- Mathiba, G and Lefenya, K ‘Rethinking privilege sioner: South African Revenue Service the regulation of mining activities in a Goosen, S and Whitear-Nel, N ‘Revising (61689/2019) [2020] ZAGPPHC 404 (25 declared protected environment: MEJ- spousal testimonial privilege and mari- Aug 2020)’ (2021) 84.1 THRHR 95. CON case analysis’ (2020) 34.2 SJ 146. tal communications privilege in South African Criminal procedure: Is abolition Unlawful arrest Pension fund law or extension the answer? (part 1)’ (2020) Okpaluba, C ‘Quantification of damages De la Harpe, L ‘FSCA Conduct Standard 33.2 SAJCJ 446. for unlawful arrest and detention: South 4 of 2020: Minimum skills and training Africa, Namibia and Eswatini/Swaziland requirements for board members of re- Tax law (1)’ (2020) 33.2 SAJCJ 320. tirement funds’ (2020) 35.4 ITJ. Burt, K ‘Decisions by committees’ (2020) Grogan, J ‘Pension woes – conundrum 34.6 TPCP. for unfairly dismissed employees’ (2020) Clegg, D ‘“Plant” includes a horse – but Kathleen Kriel BTech (Journ) is the 36.6 EL. not a young tree or a spy!’ (2020) 34.6 Production Editor at De Rebus. Marumoagae, MC ‘The need for legisla- TPCP. q tive intervention regarding living annui- Devnarain, J ‘Seventh day payment – ties purchased through retirement ben- employees’ tax obligations’ (2020) 34.6 efits when spouses are divorcing’ (2021) TPCP. 84.1 THRHR 37. Dumisa, N ‘Protecting the silver lining –

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DE REBUS – APRIL 2021 - 39 - OPINION – CONSUMER LAW

WhatsApp Saga – a reminder of the importance of

By Mohau POPIA in South Africa Romeo Tsusi

he recent announcement by ing and gathering of personal informa- ification and destruction of the gath- Facebook, which is the par- tion, responsible parties must adhere to ered information must be avoided at ent company of WhatsApp, POPIA in general and, in particular to the all costs. The responsible party must regarding the modification of eight conditions provided in its regula- put ‘security safeguards’ in order to their data collection structure tions, namely: achieve such. Tto its terms and conditions, was met with • The achievement of ‘accountability’ in- • ‘Data subject participation’ demands caution and cynicism the world over. volves the alignment of data collection that the data subject be involved in the The protection and privacy of personal procedures and measures to be solely collection, amendment or obliteration information has been a much-debated is- aimed in line with compliance. of the data. sue in the past decade. The alleged data • ‘Processing limitation’ is aimed at the POPIA is applicable in the workplace breaches at Cambridge Analytica and gathering of information for the pur- too, whereby the employees’ personal Yahoo! in the United States are quickly pose it was collected for, coupled with information must be collected in compli- brought to the fore by proponents of consent for such particular purpose. ance with the conditions set out above stricter data protection policies, in light • The data subject must know the exact for operational reasons. of the fact that in the case of Yahoo! a and explicit purpose why personal in- It is imperative that responsible par- class action had to be settled eventually. formation is required for the responsi- ties put measures in place to fully com- Subsequently, privacy policies of enti- ble party to comply with the condition ply with POPIA on or before 30 June ties that collect personal data (respon- of ‘purpose specification’. 2021, prior to the lapse of the 12-month sible parties) have undergone major • ‘Further processing limitation’ places grace period. The Act aims to eradicate revamps with governments putting in an obligation on the responsible par- the unlawful processing of personal in- place measures that encourage respon- ty to request further authorisation formation and it remains to be seen how sibility and transparency in the han- should the purpose for which the in- successful it will be. dling of personal information. The Gen- formation was collected for initially, In the meantime, companies must eral Data Protection Regulation (GDPR), substantially alters. Further authori- ensure that their terms and conditions, which came into effect in May 2018 in sation is, however, not necessary for particularly their privacy policies, com- Europe, is one such measure. ancillary purposes, which fall within ply with POPIA. South Africa enacted the Protection the ambit of the originally authorised of Personal Information Act 4 of 2013 purpose. Mohau Romeo Tsusi LLB (UWC) is a (POPIA), which provides in s 2, that it • The collected information is to be vali- Chief Executive Officer and legal prac- seeks to ‘give effect to the constitutional dated so that it is accurate, complete titioner at MRT Law in Cape Town. right to privacy, by safeguarding per- and not misleading. This is what is sonal information when processed by a provided for in compliance with the q responsible party, subject to justifiable condition of ‘information quality’. limitations’. POPIA came into effect on • ‘Openness’ requires that the data sub- 1 July 2020 with a grace period of 12 ject be awake to the fact that their in- months, although some of its sections formation is being collected and given had commenced in 2014. clear reasons why. To comply with POPIA in the process- • Unauthorised access, disclosure, mod-

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DE REBUS – APRIL 2021 - 40 - YOUR LEGACY CAN CHANGE LIVES... Many people would love to support a worthy cause, but may not have the disposable income to do so at this time in their lives.

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Rates for classified advertisements: Classified advertisements A special tariff rate applies to practising and professional notices attorneys and candidate attorneys. 2020 rates (including VAT): Index Page Size Special All other SA Closing date for online classified PDF adver- tariff advertisers tisements is the second last Wednesday of the Vacancies...... 1 1p R 11 219 R 16 104 month preceding the month of publication. 1/2 p R 5 612 R 8 048 For sale/wanted to purchase...... 1 1/4 p R 2 818 R 4 038 Advertisements and replies to code numbers To let/share...... 1 1/8 p R 1 407 R 2 018 should be addressed to: The Editor, De Rebus, PO Box 36626, Menlo Park 0102. Services offered...... 1 Small advertisements (including VAT): Tel: (012) 366 8800 • Fax: (012) 362 0969. Smalls...... 4 Attorneys Other 1–30 words R 567 R 827 Docex 82, Pretoria. every 10 words E-mail: [email protected] • Vist the De Rebus website to view thereafter R 190 R 286 Account inquiries: David Madonsela the legal careers CV portal. Service charge for code numbers is R 190. E-mail: [email protected] Vacancies To let/share

LAW CHAMBERS TO SHARE Norwood, Johannesburg

Kaplan Blumberg Attorneys Facilities include reception, Wi-Fi, messenger, – Port Elizabeth – boardroom, library, docex and secure on-site parking. Virtual office also available. seeks to appoint a SENIOR ATTORNEY at partnership level in its litigation department. Contact Margot Howells at Direct any inquiries to (011) 483 1527 or 081 064 4643. [email protected]

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1 Supplement to De Rebus, April 2021 LAND CLAIMS COURT Correspondent

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Rode Valuations ad 90x130mm De Rebus 2021-01-26.pdf 1 2021/01/26 11:25

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2 Supplement to De Rebus, April 2021 Pretoria Correspondent

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Supplement to De Rebus, April 2021 3 sMALLS De Rebus has launched a CV portal for prospective candidate Vacancies legal practitioners who are VACANCY CAPE TOWN: ASSOCIATE with two years’ experience; general litigation with a focus on family law. Preferably admitted seeking or ceding articles. conveyancer. Starting date April 2021. E-mail: mandy@simpsonat- torneys.co.za How it works? Bequesting Opportunities As a free service to candidate legal practitioners, De Rebus will place your CV on its website. Donkeys need your help. Please consider Eseltjiesrus Donkey Sanctuary in your bequest advice. E-mail: info@ donkeysanctuary.co.za for a bequest brochure. Call: 023 625 1593. Prospective employers will then be able to contact www.donkeysanctuary.co.za you directly. The service will be free of charge and be based on a first-come, first-served basis for a |period of two months, or until you have been Follow De Rebus on appointed to start your articles. What does De Rebus need from you? social media For those seeking or ceding their articles, we need an advert of a maximum of 30 words and a copy of your CV.

Please include the following in your advert – • name and surname; Like us on Facebook • telephone number; @DeRebusJournal • e-mail address; • age; • province where you are seeking articles; • when can you start your articles; and • additional information, for example, are you currently completing PLT or do you have a driver’s licence? Like us on LinkedIn • Please remember that this is a public portal, De Rebus therefore, DO NOT include your physical The SA Attorneys Journal address, your ID number or any certificates. An example of the advert that you should send: 25-year-old LLB graduate currently completing PLT seeks articles in Gauteng. Valid driver’s licence. Contact ABC at 000 000 0000 or e-mail: Follow us on Twitter [email protected] @DeRebusJournal Advertisements and CVs may Give your views on our social media be e-mailed to: pages and keep up to date with the [email protected] latest information. Disclaimer: • Please note that we will not write the advert on your behalf from the information on your CV. Would you like to write for De Rebus? • No liability for any mistakes in advertisements or CVs is accepted. De Rebus welcomes article contributions in all 11 official languages, especially from legal practitioners. • The candidate must inform De Rebus to remove their advert once they have found articles. Legal practitioners/advocates who wish to submit feature articles, • Should a candidate need to re-post their CV after practice notes, case notes, opinion pieces and letters can e-mail the two-month period, please e-mail: their contributions to [email protected]. [email protected] For more information, see the ‘Guidelines for articles in De Rebus’ on our website (www.derebus.org.za).

4 Supplement to De Rebus, April 2021