Bulletin 6 of 2013 Period: 1 February 2013 to 8 February 2013 Bulletin` 3 9 of 2018 Period: 28 September 2018 – 05 October 2018 IMPORTANT NEWS LOWER COURTS SHOULD BE FIRST OPTION, BANKS TOLD The Legal Resources Centre (LRC) has welcomed a High Court decision that Magistrate's Courts should be the first port of call for financial institutions seeking judgment against their clients, where matters fall within the lower courts' monetary jurisdiction. According to a GroundUp report, the LRC argued that 'measures must be taken to reduce the economic, social and geographical barriers that prevent a respondent's access to court' as required under the Constitution. 'This judgment is far reaching and incredibly important in affirming the right to access to justice,' said the LRC in response to a decision by a full bench of the Gauteng High Court (Pretoria) on whether the High Court should entertain cases that should be heard by the lower courts just because both courts have jurisdiction under the law. The Judge President had also asked the court to consider whether there was 'an obligation on financial institutions to consider the cost implication and access to justice of financially distressed people' in deciding which court to use. The court ruled that if banks brought their cases to the High Courts when the lower courts had proper jurisdiction, the High Courts could kick the cases down to the lower court. The case arose when 13 matters; reduced to eight after several defendants settled their arrears or the cases were withdrawn, came before the Gauteng High Court (Pretoria). The applicants were banks which wanted default judgments against debtors and orders declaring that their homes could be sold in execution (on auction). In each case, the application was brought in the High Court, despite the fact that it fell within the monetary jurisdiction of the Magistrate's Court. The arrear amounts owing by the eight defendants varied from R7 700 to R20 000. The total loan amounts being claimed by the banks varied from R95 000 to R255 000. Source: Legalbrief Today, 04 October 2018 INSURANCE POLICY HOLDER PROTECTION RULES IN FORCE Short and long-term insurance policy holder protection rules released in draft form during March for comment are now in force. Their purpose is to assist licensed insurers subject to the 2017 Insurance Act in their efforts to interpret the rules in the context of the 1998 Long and Short-term Insurance Acts – responding to the need for consistency across the insurance regulatory framework. According to a statement issued in March, this is expected to ‘ensure a smooth transition from regulated insurers under the current … framework to licensed insurers under the … (new) Act’ when their registrations are converted. It is not clear from the accompanying Government Gazette notice whether amendments to regulations under the Long-term Insurance Act and now in force are related to the new rules. Source: Legalbrief Today, 01 October 2018 MORE TIME TO COMMENT ON COMPANIES BILL Stakeholders now have until 14 December to comment on a draft Companies Amendment Bill aimed at addressing loopholes identified during seven years of implementing the Act and aligning it with ‘modern international corporate trends’. The proposed new statute deals with a raft of issues ranging from special resolution requirements and ‘the irregular creation, allotment or issue of shares’ to the composition of a social and ethics committee and business rescue. Source: Legalbrief Today, 05 October 2018 AMENDMENTS PLACE FOCUS ON DIRECTORS' PAY Trade & Industry Minister Rob Davies has gazetted the Companies Amendment Bill, which proposes a number of changes, including steps that companies must take in the development of often contentious remuneration policies, says a Business Day report. It notes these are usually a bone of contention between shareholders demanding accountability and transparency and managements eager to hold on to highly mobile executive talent. The Bill has proposed that directors of a public company should prepare a directors’ remuneration report for presentation to shareholders at the 2 entity’s annual general meeting for each financial year. According to the proposed changes, the report should entail a background statement, an overview of the main provisions of the company’s policy on remuneration and an implementation report with details of remuneration and benefits awarded to individual directors. ‘The directors’ remuneration report must be approved by the board and signed on behalf of the board by a director of the company,’ the Bill says. Shareholder activist Theo Botha said that provisions required the board to take ownership and accountability for the policy. Source: Legalbrief Today, 02 October 2018 NEW CHARTER 'A BALANCE', BUT BEE CONCERNS REMAIN The Minerals Council of SA broadly supports the intentions and content of the new Mining Charter, but there are a few sticking points over which the council wants to engage the Minister, Fin24 says. The council issued its responses to the policy, gazetted by Minerals Resources Minister Gwede Mantashe earlier. The council said the charter reflected substantial engagement between key stakeholders, something which was missing in the previous version of the charter, gazetted by former Minister Mosebenzi Zwane. 'The Minerals Council considers this charter to represent a policy instrument that provides a clear and durable framework for securing a transformed industry with meaningful broad-based economic empowerment within which the critical goals of growth and competitiveness can realistically be achieved,' it said. However, there are a few drawbacks related to past BEE transactions, it said, including the limited applicability of the 'once empowered, always empowered' provision. The provision will not apply to past BEE transactions if there has been a change of ownership in mining rights or if the mining right needs to be renewed. The council also highlighted positives in the charter, including the removal of the requirement on existing rights to top up black ownership from 26% to 30%. Government has also removed the requirement of a dividend equal to 1% of Ebitda (earnings before interest taxation, depreciation and amortisation). Minerals Council president Mxolisi Mgojo commented that the charter showed that Mantashe struck a 'reasonable balance', where all stakeholders are not 'totally happy'. Source: Legalbrief Today, 04 October 2018 MORE FINANCIAL SECTOR ACT SECTIONS IN FORCE Amendments to a raft of statutes listed in Schedule 4 of the Financial Sector Regulation Act came into effect on 28 September. In addition, sections of the Act originally scheduled to come into force on 1 October will now only become operational on 1 April 2019. Source: Legalbrief Today, 03 October 2018 RIGHT TO DIE – CERTAINTY IN LAW REQUIRED The 2016 SCA judgment in Minister of Justice and Correctional Services and Others v Estate Late James Stransham- Ford and Others is ‘vague and unsatisfactory’ as it is ‘near impossible’ to know with certainty when a person who assists another to end his or her life could be prosecuted for murder or culpable homicide. ‘It is therefore imperative that courts either develop the common law to allow for assisted dying, or that Parliament passes legislation to do so,’ says constitutional law expert Professor Pierre de Vos, in an analysis on his Constitutionally Speaking blog. ‘The SCA judgment in Stransham-Ford sends mixed signals about what would happen in cases where patients obtain a prescription for lethal drugs that they use to terminate their own lives. This is commonly referred to as physician assisted suicide (PAS). The law is also not that clear in cases where the medical practitioner or other person administers a lethal drug to a patient at the request of the patient. This is referred to as voluntary euthanasia or physician administered euthanasia (PAE).’ De Vos points out the judgment suggested that a court faced with a case of PAS or PAE ‘would also have to pay particular heed to the requirements of section 39(2) of the Constitution, which requires that – in the development of the common law – the court must strive to give effect to the nature purport and objects of the Bill of Rights’. He argues the failure of our law to respect the rights of an adult person who wishes to end his or her life to obtain assistance to do so is in fact in conflict with the Bill of Rights. ‘Section 12(2)(b) of the Constitution guarantees for everyone the right to bodily and psychological integrity, including the right ‘to security and control over their body’. The law does not fully respect the psychological and bodily integrity of individuals who wish to end their lives and need assistance to do so.’ De Vos adds while the courts have a duty to develop the common law in accordance with constitutional values, ‘it would be better if the legislature passed comprehensive legislation to regulate the circumstances under which individuals could lawfully be assisted to end their lives’. Source: Legalbrief Today, 05 October 2018 3 RECOMMENDED READING Supreme Court ruling clarifies contentious National Credit Act issue , by Aidan Kenny from Werksman’s Attorneys, www.polity.org.za, October 2018 Dismissals for incompatibility are dangerous , by Ivan Israelstam from Labour Law Management Consulting, www.polity.org.za, October 2018 RECENT SUPREME COURT OF APPEAL JUDGMENTS MEC FOR HEALTH, WESTERN CAPE v Q (928/2017) [2018] ZASCA 132 (28 SEPTEMBER 2018) Delict – medical negligence – onus on plaintiff