Contents

ARCHITECTURAL PROFESSION .............. 2 ADMINISTRATIVE LAW.............................. 2 ARBITRATION ............................................ 2 BEE ............................................................. 2 BUILDING LAW ........................................... 2 CIVIL PROCEDURE ................................... 3 COMPETITION ........................................... 4 CONSTRUCTION LAW ............................... 4 CONSUMER LAW ....................................... 6 CONTRACT ................................................ 7 CORPORATE LAW ................................... 10 CRIMINAL LAW AND PROCEDURE ........ 10 EMPLOYMENT ......................................... 11 ENERGY EFFICIENCY ............................. 13 GUARANTEES .......................................... 14 HEALTH AND SAFETY ............................. 14 HOUSING .................................................. 15 INFRASTRUCTURE DEVELOPMENT ..... 15 LIENS ........................................................ 16 PERSONAL INJURY ................................. 16 PROFESSIONAL INDEMNITY .................. 16 ROADS AND ROAD TRANSPORTATION 16 SPATIAL PLANNING ................................ 17 TAXATION ................................................ 17 TRADE AND INDUSTRY .......................... 18

CONSTRUCTION LAW ALERT | JUNE 2015

Highlights Judgments

Beekmans N.O and Others v Mobile Telephone Networks (Pty) Ltd and Another (13543/14) [2015] ZAWCHC 79 (3 June 2015) (see Building Law)

Golden Falls Trading 116 (Pty) Ltd v Minister of Energy National Government an Others (27743/2015) [2015] ZAGPPHC 365 (5 June 2015) (see Competition)

Granbuild (Pty) Ltd v Minister of Transport and Public Works, Western Cape and Another (5021/2015) [2015] ZAWCHC 83 (5 June 2015) (see Guarantees)

Miles Plant Hire v Commissioner SARS (20430/2014) [2015] ZASCA 98 (1 June 2015) (see Civil Procedure)

Trencon Construction (Pty) Ltd v South African Airways (Pty) Ltd and another [2015] JOL 33366 (GJ) (see Contract)

Viva Engineering Project CC and Others v Minister of Water Affairs and Others (64340/13) [2015] ZAGPPHC 372 (5 June 2015) (see Administrative Law)

New Publications

Employment Tax Incentive Act 26 of 2013; Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999 & regulations. – 2nd ed. - JutaLaw, 2015 (Juta’s Pocket Statutes). (see Employment LaW)

Gibson, Clive and Flood, Patrick. Everyone's guide to labour law. – Zebra Pres, 2015. (see Employment Law)

Maxwell, Catherine J. [et.al]. Contract law in South Africa. - 4th ed. – Wolters Kluwer, Law & Business, 2015. (see Contract)

Events Calendar

Date Event Location More info

12-13 Aug

Cape Construction Expo Cape Town Click here

20 Aug JBCC 6.1 Principal Building Agreement & JBCC 6.1 N/S Subcontract Agreement

Port Elizabeth Click here.

9 Sept JBCC 6.1 Principal Building Agreement & JBCC 6.1 N/S Subcontract Agreement

Johannesburg Click here.

10-11 Sept

Society of Construction Law for Africa. Annual Conference 2015

Cape Town Click here

12-15 Oct

Fidic Africa Contract Users’ Conference 2015

Livingstone, Zambia

Click here.

14 Oct Principal Building Agreement & JBCC 6.1 N/S Subcontract Agreement

Cape Town Click here.

29 Oct JBCC 6.1 Principal Building Agreement & JBCC 6.1 N/S Subcontract Agreement

Midrand Click here.

See www.lexinfo.co.za for more events information.

Abbreviations Key: BN : Board Notice GenN: General Notice GG : Government Gazette GN : Government Notice LAN : Local Authority Notice MN : Municipal Notice PG : Provincial Notice

Construction Law Alert – June 2015

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ARCHITECTURAL PROFESSION

Government Gazette South African Council for the Architectural Profession. Framework for the Professional Fees Guideline. Correction notice to BN121 published in GG 38863 on 12Jun2015. BN129 GG 38894 p105 26Jun2015 http://www.gov.za/sites/www.gov.za/files/38894_bn129.pdf (Accessed on 1 July 2015)

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ADMINISTRATIVE LAW

Case

Viva Engineering Project CC and Others v Minister of Water Affairs and Others (64340/13) [2015] ZAGPPHC 372 (5 June 2015) Extract from judgment: “The applicants raised eleven grounds for leave to appeal and argued that an unsuccessful bidder has locus standi simply by virtue of its having submitted a bid… Second applicant did not have a standing because the alleged joint-venture never existed…A non-existent entity does not have any standing, let alone constitutional rights…That there is no reasonable prospect that another court would find that a duly disqualified bidder in a phased evaluation bidding process has locus standi to challenge any decision in any subsequent phase… The application for leave to appeal is dismissed with costs.” http://www.saflii.org/za/cases/ZAGPPHC/2015/372.html (Accessed on 1 July 2015)

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ARBITRATION

Case Eskom Holdings Soc Limited v Khum MK Investments & Bie Joint Venture (Pty) Ltd and Others (18627/2014) [2015] ZAGPJHC 98 (4 June 2015) Arbitration – arbitration award – review based on gross irregularity, misconduct, bias, alleged incompetence on part of Arbitrator – sec 33(1) of Arbitration Act 42 of 1965 – and remittal to new arbitration tribunal in terms of sec 33(4) of Act – estoppel – employer estopped from denying tender contract with company – formally joint venture – tender contract – procurement policy and procedure – illegality of contract – estoppel by conduct – requirements for representation acts and correspondence – contracting party – alteration of legal status by joint venture partnership tenderer into incorporated company. http://www.saflii.org/za/cases/ZAGPJHC/2015/98.pdf (Accessed on 1 July 2015)

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BEE

Media Comment Matthee, Jannie. B-BBEE ratings interesting info. 2015 Jun 10 Kwazulu-Natal Master Builders Association Extract from article: “Did you know that Companies with a turnover of less than R5 million per annum can be classified as Exempt Micro Enterprises? This means that they automatically qualify for a Level 4 status in terms of the Broad - Based Black Economic Empowerment Scorecard which provides for procurement recognition of 100%. Furthermore, Companies can achieve a B-BBEE rating even if their business is not black owned.” http://www.masterbuilders.co.za/news/2015/June/b_bbee_ratings_interesting_info.htm (Accessed on 1 July 2015)

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BUILDING LAW

Case Beekmans N.O and Others v Mobile Telephone Networks (Pty) Ltd and Another (13543/14) [2015] ZAWCHC 79 (3 June 2015) Extract from judgment: “Case raises questions regarding the interpretation and application of the National Building Regulations and Building Standards Act 103 of 1997 and the regulations promulgated thereunder in relation to so-

Construction Law Alert – June 2015

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called ‘temporary buildings’… The regulations must as far as reasonably possible be interpreted in a manner consistent with the Act. Any regulation that could not reconciled with the Act would be ultra vires but no attack on the validity of the regulations has been made in the present case… Section 4(1) requires prior approval of the local authority where a building is to be erected ‘in respect of which plans and specifications are to be drawn and submitted… The period prescribed by s 7(1) of the Promotion of Administrative Justice Act 3 of 2000 is extended in terms of s 9(2), with the result that any delay which there may have been in the launching of the application is condoned… The first respondent is to pay the applicants’ costs in respect of the application for Part B relief, such costs to include those attendant on the employment of two counsel.” http://www.saflii.org/za/cases/ZAWCHC/2015/79.pdf (Accessed on 1 July 2015)

Media Comments Barbeau, Noelene. Neighbours face off over renovations. 2015 Jun 18 Daily News Extract from article: “Two medical professionals are embroiled in a legal battle over an extension to a unit in an uMhlanga estate that is said to infringe on the already exhausted floor area ratio allowed in the complex. Dr Sivalingam Moodley, an obstetrician gynaecologist, and his wife, Dhaneswari, are trying to stop their neighbour, clinical technologist Vishal Maharaj, from going ahead with alterations to his unit.” http://www.iol.co.za/news/crime-courts/neighbours-face-off-over-renovations-1.1873224#.VYlLpLbg4YF (Accessed on 1 July 2015)

Berg, Emmett. Builder of collapsed balcony sued. 2015 Jun 19 Reuters Extract from article: “The company that built a Berkeley apartment building where six people were killed after a balcony collapsed this week was accused two years ago of building faulty balconies in another project, court documents show. California-based Segue Construction paid $3.4 million to settle litigation over alleged defects in a condominium development in Millbrae, California, after a homeowners association sued, the homeowners' lawyer said.” http://www.iol.co.za/news/world/builder-of-collapsed-balcony-sued-1.1873534#.VZKBqKTg4YE (Accessed on 1 July 2015)

Broughton, Tania. Court orders 9-storey block be torn down. 2015 Jun 30 The Mercury Extract from article: “In a bold, precedent-setting ruling which will affect the future conduct of developers in the city, a Durban High Court judge has ordered that most of an almost-completed R60 million nine-storey luxury block of flats on Durban’s Berea be torn down. The order affects five storeys and the boundary-to-boundary footprint of the building, making demolition of the entire structure almost inevitable, as is a massive damages claim against the city by the developers.” http://www.iol.co.za/news/crime-courts/court-orders-9-storey-block-be-torn-down-1.1878141#.VZK6bKTg4YF (Accessed on 1 July 2015) See also:

Barbeau, Noelene. Monstrosity must be demolished. – In: 2015 Jun 30 Daily News at http://www.iol.co.za/dailynews/news/monstrosity-must-be-demolished-1.1878301#.VZKDCKTg4YE (Accessed on 1 July 2015)

Provincial Gazettes

Constitution of the Republic of South Africa, 1996 (Western Cape) Swartland Municipality: By-law relating to the Submission of Building Plans. LAN 56819 PG 7394 p18 22May2015 Local Government: Municipal Systems Act 32 of 2000 (Limpopo) Makhado Local Municipality:

Building Regulations By-law. o LAN99 PG 2527 p6 17Jun2015

http://www.gpwonline.co.za/Gazettes/Gazettes/2527_17-6_LimpSeparate.pdf (Accessed on 1 July 2015)

o GenN92 PG 2520 p5 12Jun2015 http://www.gpwonline.co.za/Gazettes/Gazettes/2520_12-6_LimpSeparate.pdf (Accessed on 1 July 2015)

Local Government: Municipal Systems Act 32 of 2000 (Limpopo) Thulamela Municipality:

Land Use Management and Building Regulation By-Law. LAN57 PG 2517 p3 08Jun2015 http://www.gpwonline.co.za/Gazettes/Gazettes/2517_8-6_LimpSeparate.pdf (Accessed on 1 July 2015)

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CIVIL PROCEDURE

Case

Construction Law Alert – June 2015

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Miles Plant Hire v Commissioner SARS (20430/2014) [2015] ZASCA 98 (1 June 2015) Lapsed appeal (against final order of winding-up) – application for condonation - cumulative effect of flagrant breaches of the rules of the SCA without any acceptable explanation, respondent’s interest in the finality of the judgment and the evident prejudice to respondent and body of creditors such that condonation should be refused irrespective of the prospects of success on appeal – condonation refused. Judgment: http://www.saflii.org/za/cases/ZASCA/2015/98.pdf (Accessed on 1 July 2015) Media Summary: http://www.saflii.org/za/cases/ZASCA/2015/98media.pdf (Accessed on 1 July 2015)

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COMPETITION

Case Golden Falls Trading 116 (Pty) Ltd v Minister of Energy National Government and Others (27743/2015) [2015] ZAGPPHC 365 (5 June 2015) Extract from judgment: “The applicant's interim relief sought was to halt further construction of a filling station by the fourth respondent, and the "selling" of petroleum products from such premises by the fifth respondent… The fifth respondent applied for a retail licence to retail petroleum products from the aforesaid site. The licences were granted and the applicant and others lodged an appeal against the grant of these licences… The applicant conveniently refrained to take the court into its confidence in this regard to disclose when it became aware for the first time thereof… Limited aspects are dispositive of the aspect of the alleged urgency and the degree thereof…Reasons for order granted.” http://www.saflii.org/za/cases/ZAGPPHC/2015/365.pdf (Accessed on 1 July 2015)

Competition Tribunal Decisions

Competition Commission vs Pele Kaofela CC Case no.: CO142Nov14. Reasons issued on 05 June 2015. Consent agreement – construction industry – civil engineering. Extract from reasons: “The complaint concerned alleged contraventions of section 4(1)(b) of the Act as regards price fixing, market allocation and collusive tendering…Pele Kaofela admits that it entered into the agreement with its competitors, in contravention of section 4(1)(b)(iii) of the Act…Agreement is entered into full and final settlement of the specific conduct of this consent agreement and, upon confirmation as an order by the Tribunal, concludes all proceedings between the Commission and Pele Kaofela in respect of this conduct only.” http://www.comptrib.co.za/assets/Uploads/CO142Nov14-020131.pdf (Accessed on 1 July 2015)

Journal Article Burger-Smidt, Ahmore and Goolabjith, Kriska-Leila. Putting the “people” into the deal. 2015 May 15(4) Without Prejudice p29 Extract from article: “The Competition Commissioner, Tembinkosi Bonakele, believes one important reason why so many mergers and acquisitions fail is because the merging parties have not put enough thought into the "people" aspect of the deal. Bonakele was recorded as stating that "a reluctance to look at this aspect of deals was evident in the merger applications that came before the Competition Commission". In his opinion, merging companies are now explicit about the impact of a merger on employment – but not as forthcoming as they should be. When Bonakele attended the Global Competition Review conference in Cape Town in February he indicated that "the competition authorities want merging parties to quantify the effect on employment and establish if there is any alternative".”

Media Comment Cokayne, Roy. Inquiry into building firms on hold. 2015 Jun 01 The Star: Business Report p17 Extract from article: “The planned inquiry by the Construction Industry Development Board (CIDB) into contraventions of its code of conduct by 15 companies for collusion and bid-rigging has been thrown into limbo by legal challenges from six of the companies. This has resulted in the CIDB reaching agreement with these companies to suspend the inquiry until applications to review and set aside the CIDB's regulations have been heard.” http://www.iol.co.za/business/news/inquiry-into-building-firms-on-hold-1.1865660#.VZLpEaTg4YE (Accessed on 1 July 2015)

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CONSTRUCTION LAW

Law Firm Publications

Construction Law Alert – June 2015

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Cope, Michael [et.al] (McKays Solicitors Pty Ltd, Australia). Subcontractors now responsible for defective work. 2015 Jun 1 Lexology http://www.lexology.com/library/detail.aspx?g=3269e539-6da0-4b7e-87b6-75f60092e39b (Accessed on 1 July 2015)

De Vries, Sonia and McCallum, Terrick (DLA Cliffe Dekker Hofmeyr, South Africa). Amendments to the Regulations of the Construction Industry Development Board Act. 2015 Jun 18 Lexology http://www.lexology.com/library/detail.aspx?g=aa1747f7-d9d5-4c43-ada0-368a3b18f4a5 (Accessed on 1 July 2015)

Duffy, Stephanie and Mewing, Andrew (McInnes Wilson Lawyers, Australia). Shifting focus: subcontractors’ responsibility for defective work. 2015 Jun 18 Lexology http://www.lexology.com/library/detail.aspx?g=ab3ae100-4632-4ba9-9086-7dedf0017251 (Accessed on 1 July 2015)

Lew, Mei Ling [et.al] (Mayer Brown LLP, Hong Kong). Consultation on Hong Kong construction industry's proposed security of payment legislation: what employers need to know. 2015 Jun 5 Lexology http://www.lexology.com/library/detail.aspx?g=7dcabd51-07ab-477c-b3db-8d0ebc07a4be (Accessed on 1 July 2015)

Oats, Simon (Eversheds LLP, UK). First Supreme Court decision on construction adjudication. 2015 Jun 18 Lexology http://www.lexology.com/library/detail.aspx?g=ba235b15-61cc-4819-b6eb-7a58e9974916 (Accessed on 1 July 2015)

Picas, Christopher (Fasken Martineau DuMoulin LLP, RSA). Draft regulations in terms of the construction Industry Development Board Act of 2000 published. 2015 Jun 22 Lexology http://www.lexology.com/library/detail.aspx?g=73016c0b-e415-480a-a692-07b4de66ec14 (Accessed on 1 July 2015)

Tobin, Paul (Sparke Helmore Lawyers, Australia). Interface risks – what they are and why you should care. 2015 Jun 18 Lexology Extract from abstract: “Failing to manage interface risks is a common and significant cause of delay, expense and lost profits in construction projects, yet surprisingly contracting parties frequently fail to manage them appropriately. This article describes interface risks that arise in many construction projects and proposes some possible approaches to management.[1] Parties should choose an approach that most effectively meets the unique needs of their particular project, which may be one proposed below or their own solution.” http://www.lexology.com/library/detail.aspx?g=837641c3-d4f3-43de-b0a0-ba4cc890a20f (Accessed on 1 July 2015)

Media Comments Cokayne, Roy. Cheer for security of payment regulation: construction sector hopeful. 2015 Jun 09 The Star: Business Report p16 Extract from article: “Proposed new measures to facilitate the prompt payment of suppliers and contractors in the construction sector have been welcomed by the construction industry. The measures published by Public Works Minister Thulas Nxesi in the Government Gazette recently for comment will introduce automatic interest charges on delayed payments and the right of parties to refer payment disputes for adjudication.” See also:

Franksen, Liesl. Prompt payment regulation a lifeline for the building industry. – In: 2015 Jun 10 Infrastructurene.ws at http://www.infrastructurene.ws/2015/06/10/prompt-payment-regulation-a-lifeline-for-the-building-industry/ (Accessed on 1 July 2015)

New regulations will change construction industry. 2015 Jun 04 BizCommunity.com Extract from article: “The Construction Industry Development Board Prompt Payment Regulations and Adjudication Standard appeared on Friday, 29 May 2015 in the Government Gazette Notice 482 of 2015 and are open for public comment for the next 60 days. These new proposed regulations, governing payments and dispute management under construction works contracts, are expected to profoundly change the way the South African construction industry operates.” http://www.bizcommunity.com/Article/196/360/129419.html (Accessed on 1 July 2015)

Peters, Fifi. Proposals open door for prompt payment in construction. 2015 Jun 08 Business Day p2 Extract from article: “Companies and public bodies that delay payments to contractors for construction projects stand to be heavily penalised should the industry adopt new regulations to ensure the frequency of cash flow. Under the proposed guidelines, which have been opened for public comment for 60 days, contractors will be able to charge interest on outstanding payments and even suspend projects until payment is received. Interest has been set at the prime lending rate plus 6%.”

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http://www.bdlive.co.za/business/2015/06/08/proposals-open-door-for-prompt-payment-in-construction (Accessed on 1 July 2015)

Parliamentary Committee Meetings

Cuba/SA relations and implications of Cuba/USA developments; Pan African Parliament Construction Project. Committee: International Relations. Chairperson: Mr M Masango (ANC). Date of Meeting: 17 Jun 2015. Extract from summary: “DIRCO also briefed the Committee on the host country agreement between SA and the African Union (AU) on SA hosting the seat of the Pan African Parliament (PAP). Members were updated on the PAP headquarters construction project. The host country agreement was still valid and had not lapsed or expired. In the agreement SA had committed itself to providing a dedicated, equipped and furnished permanent structure at its own expense to house the PAP complex. The agreement had been signed in 2004 but challenges surfaced in 2008 and 2009 regarding the land that had been identified for the complex. Environmental concerns had been raised about the land and matters were still not concluded. Gallagher Estate had hosted the PAP since 2004. There was no other option but to extend the lease agreement for a further five years from 1 March 2015 to 28 February 2020. The monthly rental was roughly R2.8m (including offices and parking) which was actually a 15% reduction from the previous rental of approximately R3.5m per month. DIRCO provided financial support for the services as agreed in the host agreement. Some insight was provided on the long term plan for securing permanent accommodation. Given the present fiscal constraints, DIRCO was engaging National Treasury for an alternative funding mechanism for the project. DIRCO was also considering a Public Private Partnership (PPP) as private sector funding could assist in the construction, maintenance and operations of the facility. Previous concerns by Members that the host country agreement had expired were laid to rest by DIRCO.”

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CONSUMER LAW

Cases Chevron SA (Pty) Limited v Wilson t/a Wilson's Transport and Others (CCT 88/14) [2015] ZACC 15 (5 June 2015) National Credit Act 34 of 2005 — constitutional validity of section 89(5)(b) — section is procedurally unfair — National Credit Amendment Act 19 of 2014 — section 27(a) and (b) Unlawful credit agreements — refund of money paid under credit agreement if credit provider unregistered — substantive and procedural fairness of mandatory refund Constitutional challenge — section 25(1) of the Constitution — arbitrary deprivation of property — procedural arbitrariness — lack of judicial discretion — less restrictive means Unjustified enrichment — condictio ob turpem vel iniustam causam — creditor free from turpitude — par delictum rule Judgment: http://www.saflii.org/za/cases/ZACC/2015/15.pdf (Accessed on 1 July 2015) Media summary: http://www.saflii.org/za/cases/ZACC/2015/15media.pdf (Accessed on 1 July 2015)

Hardenberg and Another v Nedbank Ltd 2015 (3) SA 470 (WCC) Extract from judgment: “The defendants applied to a debt counsellor in terms of s86(1) of the National Credit Act 34 2005 to be declared over-indebted…The defendants alleged, in their affidavits opposing summary judgment, that they were not in arrears to the plaintiff when they applied to the debt counsellor for debt review or when the debt counsellor issued the prescribed notice to the credit providers… Proper interpretation of s 86(10)… A debt review cannot be terminated in respect of the particular credit agreement if the consumer was not in default at the time he sought debt review… The plaintiff can’t be criticised for having decided to terminate the debt review in May 2012, given the lengthy delay in the finalisation of the debt review process…The appeal is dismissed with costs. Hardenberg and Another v Nedbank Limited (A315/2013) [2015] ZAWCHC 11; 2015 (3) SA 470 (WCC) (12 February 2015) is available at http://saflii.org/za/cases/ZAWCHC/2015/11.pdf (Accessed on 1 July 2015)

Jili v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 586 (SCA) National Credit Act 34 of 2005 – interpretation of s 88(3) thereof – an original credit agreement is enforceable against a defaulting credit consumer without further notice if the relevant debt re-arrangement order is breached – summary judgment – court to exercise its discretion to refuse it only where there exists a reasonable possibility that an injustice may be caused – no basis to interfere with order of the high court granting summary judgment against the appellant defaulting on her rescheduled repayments on an instalment sale agreement – appeal dismissed. Jili v Firstrand Bank Ltd t/a Wesbank (763/2013) [2014] ZASCA 183; 2015 (3) SA 586 (SCA) (26 November 2014) is available at: Judgment: http://saflii.org/za/cases/ZASCA/2014/183.pdf (Accessed on 1 July 2015) Media summary: http://saflii.org/za/cases/ZASCA/2014/183media.pdf (Accessed on 1 July 2015)

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) Arguable point of law - general public importance - ought to be considered - National Credit Act 34 of 2005 - obligation to register as credit provider - excluded credit agreements - in duplum rule - development of common law - public policy.

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Paulsen and Another v Slip Knot Investments 777 (Pty) Limited (CCT 61/14) [2015] ZACC 5; 2015 (3) SA 479 (CC) (24 March 2015) is available at Judgment: http://saflii.org/za/cases/ZACC/2015/5.pdf (Accessed on 1 July 2015) Media summary: http://saflii.org/za/cases/ZACC/2015/5media.pdf (Accessed on 1 July 2015)

Government Gazettes

National Credit Act 34 of 2005 Draft regulations on review of limitations of fees and interest rates. Comments invited within 30 days of publication. GenN655 GG 38911 p6 25Jun2015 http://www.gov.za/sites/www.gov.za/files/38911_gen655.pdf (Accessed on 1 July 2015)

Statistics South Africa. Consumer Price Index: May 2015 = 4.6 GenN643 GG 38894 p100 26Jun2015 http://www.gov.za/sites/www.gov.za/files/38894_gen643.pdf (Accessed on 1 July 2015)

Journal Article Kelly-Louw, Michelle. The overcomplicated interpretation of the word 'may' in sections 129 and 123 of the National Credit Act. 2015 132(2) South African Law Journal p245

Provincial Gazettes Department of Economic Development, Environmental Affairs and Tourism (Eastern Cape) Draft White Paper on Consumer Protection in the Eastern Cape. Invitation to comment within 1 month from date of publication. GenN35 PG 3399 p6 29May2015 KwaZulu-Natal Consumer Protection Act 4 of 2013 (KwaZulu-Natal) KwaZulu-Natal Consumer Protection Regulations, 2014. ProvN28 PG 1369 p6 29May2015

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CONTRACT

Cases Trencon Construction (Pty) Ltd v South African Airways (Pty) Ltd and another [2015] JOL 33366 (GJ) Extract from judgment: “The applicant seeks payment from the first respondent… It was also conceded by the Applicant that the Second Respondent, as principal agent, had not issued a certificate of final completion. The respondents contended that there were defects in the works and these had to be remedied before a certificate of final completion could be issued… the applicant is entitled to the relief which it seeks particularly in view of the fact that a certificate of final completion is deemed to have been issued… The first respondent is ordered to pay the applicant’s costs.” http://www.saflii.org/za/cases/ZAGPJHC/2014/384.pdf (Accessed on 1 July 2015)

Venalex (Pty) Ltd v Vigraha Property CC and others [2015] 2 All SA 645 (KZD) Extract from judgment: “Enforceability of a written agreement in terms of which the applicant contends it purchased immovable property from the first respondent. The applicant seeks orders declaring the agreement binding, directing the first respondent to do all things necessary on its part to bring about transfer of the property to the applicant, and for costs… Accordingly, the orders sought by the applicant must follow either because the main issue in this case has been decided in its favour, or because, in any event, an addendum to the original agreement brought about the applicant’s substitution as purchaser under the agreement…The case is dismissed with costs.” Venalex (Pty) Limited v Vigraha Property CC and Others (5452/2014) [2015] ZAKZDHC 20 (10 March 2015) is available at http://www.saflii.org/za/cases/ZAKZDHC/2015/20.pdf (Accessed on 1 July 2015)

Journal Articles Bhana, Deeksha. The development of a basic approach for the constitutionalisation of our common law of contract. 2015 26(1) Stellenbosch Law Review p3 Extract from abstract: “In this article, I set out a "basic approach" for the constitutionalisation of our contract law (including the attending common-law methodology) in terms of the foundational constitutional values of freedom, dignity and equality. I then consider the application of this approach more carefully in relation to the narrower situation

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where one or more distinct substantive rights also find application in a particular case. In this respect, it must be appreciated that substantive rights are more concrete (at least, in their impact) than the values which underpin them.” Dorning, Jason. Yes, I have read the terms and conditions. 2015 15(3) April Without Prejudice p27 Extract from abstract: “The purpose of this article is to summarise the common, interesting and mostly unconsidered characteristics of the terms and conditions of not only iTunes but also the terms and conditions of other social “can’t live without” sites such as Facebook, Twitter and Dropbox.” Hoexter, Cora. The enforcement of an official promise: form, substance and the Constitutional Court. 2015 132(2) South African Law Journal p207 Extract from abstract: “'How important is the legal label one attaches to a set of facts upon which a party relies for a remedy under the law?' Froneman J asked in KwaZulu-Natal Joint Liaison Committee v MEC, Department of Education, KwaZulu-Natal & others 2013 (4) SA 262 (CC)… The case is remarkable primarily because the majority was prepared to enforce an official promise on public-law principles even though the claim was apparently framed in contract.” Koep, Charlotte and Naude, Tjakie. Factors relevant to the assessment of the unfairness or unreasonableness of contract terms: some guidance from the German law on standard contract terms. 2015 26(1) Stellenbosch Law Review p85 Extract from abstract: “Section 52(2) of the Consumer Protection Act, 68 of 2008 ("CPA") lists factors that courts "must" consider when applying section 48, the prohibition of unfair contract terms. Section 52(2) could be improved, inter alia as it does not contain sufficient guidance about the substantive fairness of contract terms. Several other factors, not currently listed in section 52(2), have crystallised in German case law and academic commentaries on § 307(1) of the German Civil Code, which essentially provides that "provisions in standard business terms are ineffective if contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user." Picas, Christopher. State Bank of India case. 2015 15(3) April Without Prejudice p26 State Bank of India and Another v Denel SOC Limited and Others (947/13) [2014] ZASCA 212; [2015] 2 All SA 152 (SCA) (3 December 2014) is discussed. Extract from abstract: “Demand guarantees provide parties with simple and immediately enforceable security for the fulfilment of a counter party's contractual obligations. Traditionally, there have been very limited grounds upon which a party may challenge a demand made against this form of security. However, the Supreme Court of Appeal has recently cast doubt over the robust nature of demand guarantees.” Price, Alistair. The contract/delict interface in the Constitutional Court. 2014 25(3) Stellenbosch Law Review p501 Extract from abstract: “This note analyses the judgment of the Constitutional Court in Loureiro v Imvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC), which held a private security company liable concurrently in contract and delict after one of the guards in its employ mistakenly allowed armed robbers, masquerading as police officers, into the applicants' residence where they committed theft and assault.” Watson, Charlie. How important is that signature? 2015 May 15(4) Without Prejudice p80 Extract from article: “Aside from various types of legal documents where signature of the parties is required by law (such as an agreement to dispose of a real right in land as contemplated in the Alienation of Land Act, 1981) there is a misconception in commerce that an ordinary agreement that is documented in writing must always be signed by the contracting parties to create binding obligations.”

Law Firm Publications Albertini, Anthony and Chaplin, Rachel (Clyde & Co LLP, UK). Expiry of contractual limitation periods is not really the end… 2015 Jun 18 Lexology http://www.lexology.com/library/detail.aspx?g=180ce3b6-2f64-4a44-b819-aeb943a9842a (Accessed on 1 July 2015)

Hale, Bruce (Bradbury Legal, Australia). Time is money – the importance of drafting and contract administration. 2015 Jun 3 Lexology http://www.lexology.com/library/detail.aspx?g=5b7942d3-65ff-48c7-a7c3-f1f53389883a (Accessed on 1 July 2015)

Construction Law Alert – June 2015

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DeVries, Matthew J. (Burr & Forman LLP, USA). The real lemon in the bunch: understanding pay-if-paid clauses. 2015 Jun 12 Lexology Extract from abstract: “As you may be aware, one of the greatest risks on a construction project involves the payment process. Just like my kids expect to be paid for the lemonade they sell, contractors and subcontractors expect to be paid on a timely basis once the work has been performed. Contractors have a means of shifting the risk of non-payment by the owner to its subcontractor by including a certain payment provisions in the subcontract agreement.” http://www.lexology.com/library/detail.aspx?g=5079f7e5-1163-4977-8a2c-65438a35f7c9 (Accessed on 1 July 2015)

Kiburtz, Jeffrey A. (Pillsbury Winthrop Shaw Pittman LLP, USA). Indemnity & insurance provisions in construction contracts. 2015 Jun 15 Lexology http://www.lexology.com/library/detail.aspx?g=543b04c9-1dcb-4956-8636-25ac15e262e1 (Accessed on 1 July 2015)

Lalla, Nikita (ENSafrica, UK). UK decision – important lessons for employers. 2015 Jun 8 Lexology Extract from abstract: “The recent UK Court of Appeal decision in the case of MT Holgaard A/S v E.ON Climate and Renewables (2015) EWCA Civ 407 Illustrates the ultimate catastrophe if there isn’t sufficient interface between the legal and technical teams. The case involved the interpretation of a contract for the construction of the foundations for an offshore wind farm known as Robin Rigg on Solway Firth in Scotland. An offshore wind farm is basically a cluster of turbines standing on monopiles that are driven into the seabed.” http://www.lexology.com/library/detail.aspx?g=a0757aad-b371-4f0f-929d-831921724918 (Accessed on 1 July 2015)

Massell, Jonathan (Nexsen Pruet, USA). Let freedom of contract ring- NC Supreme Court upholds enforceability of long-term express warranties. 2015 Jun 17 Lexology http://www.lexology.com/library/detail.aspx?g=8f57738c-ec4c-42cd-880a-c0c401ae2a58 (Accessed on 1 July 2015)

Noble, Rebecca (Clyde & Co LLP, UK). No contract? The Defective Premises Act 1972 may assist! 2015 Jun 18 Lexology Extract from abstract: “The Court recently gave judgment in the case of Rendelsham Estates Plc & Others v Barr Ltd [2014] EWHC 3968 (TCC). This case highlights that the Defective Premises Act 1972 (“the DPA”) may sometimes assist a property owner to make recoveries against a building contractor where a claim under a contractual relationship is not possible.” http://www.lexology.com/library/detail.aspx?g=0fe38a73-ee38-4a9d-bdbb-b0eacec25229 (Accessed on 1 July 2015)

Peckett, Victoria and Wilkinson, Ruth (CMS Cameron McKenna, UK). Good faith and mutual trust and co-operation in construction contracts. 2015 Jun 16 Lexology http://www.lexology.com/library/detail.aspx?g=a782a7c6-2826-4536-8c1b-d83a60f580dd (Accessed on 1 July 2015)

Richey, Aurther S. and Sigman, Adam J. (Sirote & Permutt PC, USA). Recent United States district court ruling highlights the importance of defining terms when drafting construction and real estate agreements. 2015 Jun 9 Lexology http://www.lexology.com/library/detail.aspx?g=4de1175e-ea90-476a-ae67-09f2d9fc2b0e (Accessed on 1 July 2015)

New Publication

Maxwell, Catherine J. [et.al]. Contract law in South Africa. - 4th ed. – Wolters Kluwer, Law & Business, 2015. ISBN: 9789041160652 Partial contents: General principles of the law of contract - Formation - Requirements for substantive validity - Privity of contract - The end of a contract – Remedies - Specific contracts - Agency - Bailment - Aleatory agreements - Sale of goods - Letting and hiring of work and building contracts - Lease - Compromise - Suretyship - Pledge - Loan - Contracts with the state - Partnership - Quasi-contracts. Price: $130.00 excluding VAT, excluding delivery. Order from books@lexinfo.co.za.

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Construction Law Alert – June 2015

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CORPORATE LAW

Cases Boost Sports Africa (Pty) Ltd v The South Africa Breweries (Pty) Ltd (20156/2014) [2015] ZASCA 93 (1 June 2015) Whether absent a provision similar to the repealed s 13 of the Companies Act 61 of 1973 an incola company can be compelled to furnish security for costs. Judgment: http://www.saflii.org/za/cases/ZASCA/2015/93.html (Accessed on 1 July 2015)

Grancy Property Ltd v Manala and Others 2015 (3) SA 313 (SCA) Company law - Section 163 of the Companies Act 71 of 2008 - exercise of court’s discretion to grant relief from oppressive or prejudicial or abusive conduct - court enjoying wide latitude in the exercise of its discretion under s 163. Grancy Property Ltd v Manala and Others (665/12) [2013] ZASCA 57; [2013] 3 All SA 111 (SCA); 2015 (3) SA 313 (SCA) (10 May 2013) is available at Judgment: http://saflii.org/za/cases/ZASCA/2013/57.pdf (Accessed on 1 July 2015) Media summary: http://saflii.org/za/cases/ZASCA/2013/57media.pdf (Accessed on 1 July 2015)

Journal Articles

Bouwman, Natasha. The rise in shareholder activism. 2015 May 15(4) Without Prejudice p11 Extract from article: “Corporate collapses and the financial crises increased the focus on corporate governance, resulted in reviewed corporate governance practices (such as King III and the Code for Responsible Investing in South Africa (CRISA) and led to an increase in shareholder activism.” Kleitman, Yaniv. Clarity on company de-/re-registrations. 2015 May 15(4) Without Prejudice p6 Extract from article: “The Supreme Court of Appeal has now had what should be the final word on this topic: when the Companies and Intellectual Property Commission (CIPC) reinstates a deregistered company under s82(4) of the Companies Act (71 of 2008) there is full retrospective reinstatement of the company and, if a third party feels prejudiced with that result, he can apply to court for a just and equitable order under s83(4). The case in question is Newlands Surgical Clinic v Peninsula Eye Clinic (086/2014) [2015] ZASCA 25 (20 March).

Nielsen, John and Jago, Darryl. Restoration of companies. 2015 May 15(4) Without Prejudice p8 Extract from article: “Section 82 of the Companies Act (71 of 2008) (the New Act) replaced s73 of the Old Companies Act (61 of 1973).” Zambane, Thokozile and Thys, Katrijn. Could negative control trigger financial assistance? 2015 May 15(4) Without Prejudice p14 Extract from article: “Sections 44 and 45 of the Companies Act, 2008 provide that a company may not give any financial assistance (which includes lending money, providing guarantees or securing any debt or obligation) to a "related or inter-related" company. The exception is if it is pursuant to an employee share scheme or approved by a special resolution adopted by the shareholders of the company within the previous two years. This article focuses on the requisite shareholder approval and what types of inter-company relationships (related or inter-related) and shareholding would trigger s44 and s45.”

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CRIMINAL LAW AND PROCEDURE

Media Comments Dolley, Caryn. Bullets will rain, gangsters warn. 2015 Jun 20 Weekend Argus Extract from article: “The City of Cape Town has admitted that construction companies contracted to it have been employing Manenberg gangsters. Extreme gang violence in the area has threatened the completion of building projects there, with complaints revealing the stronghold gangs have on building. A file of documents in the possession of the City of Cape Town, shown to Weekend Argus, details how gangsters allegedly threatened the lives of builders and security staff, shot at them and assaulted them.” http://www.iol.co.za/news/crime-courts/bullets-will-rain-gangsters-warn-1.1874042#.VZKBr6Tg4YE (Accessed on 1 July 2015) See also:

Dolley, Caryn. ‘Gangsters may have been hired’. – In: 2015 Jun 14 Sunday Argus at http://www.iol.co.za/news/south-africa/western-cape/gangsters-may-have-been-hired-1.1871412#.VZKCPaTg4YE (Accessed on 1 July 2015)

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Montsho, Molaole. Five due in court for stealing tools. 2015 Jun 24 ANA Extract from article: “Five men who were arrested for allegedly stealing construction tools with an estimated value of R60 000 will appear in the Vryburg Magistrate’s Court on Wednesday, North West police said. Major Pelonomi Makau said the men, aged between 20 and 23, were arrested on Monday after a burglary at a construction company.” http://www.iol.co.za/news/crime-courts/five-due-in-court-for-stealing-tools-1.1875656#.VZJ6JKTg4YE (Accessed on 1 July 2015)

The urban environment and security. 2015 Jun 29 BizCommunity.com Extract from article: “"To reduce the risk of becoming a crime statistic, South Africans are increasingly being confronted with pressure to implement progressively more advanced technical solutions. Many people have come to believe that purchasing a solution will prevent crime. However, technology is only one of the components of successful crime prevention." This is according to Rob Anderson, executive director on the Board of EES Africa (Pty) Ltd, an ISO 9001:2008 certified company providing management, engineering and auditing services throughout Africa.” http://www.bizcommunity.com/Article/196/661/130635.html (Accessed on 1 July 2015)

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EMPLOYMENT

Government Gazettes Employment Equity Act 55 of 1998

Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value. GN448 GG 38837 p6 01Jun2015 http://www.gov.za/sites/www.gov.za/files/38837_gon448.pdf (Accessed on 1 July 2015)

Revised Draft Code of Good Practice on the Employment of Persons with Disabilities. Invitation to comment within 30 days from date of publication. GenN581 GG 38872 p6 12Jun2015 http://www.gov.za/sites/www.gov.za/files/38872_gen581.pdf (Accessed on 1 July 2015)

Labour Relations Act 66 of 1995

Bargaining Council for Civil Engineering Industry: Extension of Dispute Resolution Collective Agreement to non-parties. With effect from 15 June 2015. RGN455 GG 38852 p6 05Jun2015 http://www.gov.za/sites/www.gov.za/files/38852_rg10442_gon455.pdf (Accessed on 1 July 2015)

Bargaining Council for the Building Industry (Cape of Good Hope): Extension of main collective agreement to non-parties. With effect from 29 June 2015. RGN535 GG 38895 p7 26Jun2015 http://www.gov.za/sites/www.gov.za/files/38895_rg10452_gon535.pdf (Accessed on 1 July 2015)

Internet Article Quest Staffing Solutions. Considering mental illness in the workplace 2015 Jun 23 Legal Briefs http://www.polity.org.za/article/considering-mental-illness-in-the-workplace-2015-06-23 (Accessed on 1 July 2015)

Journal Articles Botha, Monray Marsellus. Revisiting an old friend: what constitutes "a matter of mutual interest" in relation to a strike? A tale of two recent cases: Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members (2014) 35 ILJ 983 (LAC); and Vanachem Vanadium Products (Pty) Ltd v National Union of Metal Workers of SA Case No J 658/14. 2015 36(1) Obiter p194 Chongole, Lina Sebastiäo. Red-tape requirements. 2015 May 15(4) Without Prejudice p28 Extract from article: “In Mozambique, the growing influx of foreigners to meet the demand for skilled labour resulting from the expansion of various projects, means that there is a need to understand and master the legal framework for the employment of foreign labour.” Maqutu, Lindiwe. Collective misconduct in the workplace: is "team misconduct" "collective guilt" in disguise? 2014 25(3) Stellenbosch Law Review p566

Construction Law Alert – June 2015

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Naidoo, Moksha. Male surrogate parent successfully claims maternity leave. 2015 Jun De Rebus p42 Case discussed: MIA v State Information Technology Agency (Pty) Ltd (LC) (unreported case no D312/2012, 26-3-2015). Extract from article: “Having entered into a same sex civil union with his spouse in terms of the Civil Union Act 17 of 2006, the applicant, his spouse and a surrogate mother concluded a surrogacy agreement as contemplated in the Children’s Act 38 of 2005. In terms of the aforementioned agreement, that was made an order of court, the commissioning parents would be the parents to the child born to the surrogate mother and would assume their responsibilities at the time of birth.” http://www.saflii.org/za/journals/DEREBUS/2015/118.rtf (Accessed on 1 July 2015) Venter, Deidre and Schoeman, Belinda. Employers beware – a withdrawn dispute may not be the end! 2015 May 15(4) Without Prejudice p26 Wagener, Stephen. The abandonment-mismanagement rule: vicarious liability for an employee's simultaneous commission and omission: Minister of Defence v Von Beneke 2013 (2) SA 361 (SCA). 2015 132(2) South African Law Journal p270

Law Firm Publications Israelstam, Ivan (Labour Law Management Consulting). The arbitrator’s decision is not always final. 2015 Jun 1 Legal Briefs http://www.polity.org.za/article/the-arbitrators-decision-is-not-always-final-2015-06-01 (Accessed on 1 July 2015)

Jordaan, Barney (Labourwise). Can you enforce a contractual provision that employees submit to physical searches, alcohol/drug testing or polygraph testing? 2015 Jun 1 Legal Briefs http://www.polity.org.za/article/can-you-enforce-a-contractual-provision-that-employees-submit-to-physical-searches-alcoholdrug-testing-or-polygraph-testing-2015-06-01 (Accessed on 1 July 2015)

Letlonkane, Katlego and Moosa, Inez (Cliffe Dekker Hofmeyr). Businesses should anticipate the Employment Services Act in July. 2015 Jun 16 Legal Briefs http://www.polity.org.za/article/businesses-should-anticipate-the-employment-services-act-in-july-2015-06-16 (Accessed on 1 July 2015)

Motsiri, Naledi (Werksmans Attorneys). Sir, your maternity leave has been granted... 2015 Jun 3 Legal Briefs http://www.polity.org.za/article/sir-your-maternity-leave-has-been-granted-2015-06-03 (Accessed on 1 July 2015) Pienaar, Hugo and Salt, Lauren (Cliffe Dekker Hofmeyr). Transportation of night workers: is it the employer's obligation? 2015 Jun 24 Legal Briefs http://www.polity.org.za/article/transportation-of-night-workers-is-it-the-employers-obligation-2015-06-24 (Accessed on 1 July 2015)

Tshetlo, Sihle (Cliffe Dekker Hofmeyr). New Code of Good Practice issued on equal pay for work of equal value. 2015 Jun 4 Legal Briefs http://www.polity.org.za/article/new-code-of-good-practice-issued-on-equal-pay-for-work-for-equal-value-2015-06-04 (Accessed on 1 July 2015)

Media Comments Petersen, Carlo. 170 labourers pay price for wildcat strike. 2015 Jun 10 Cape Times Extract from article: “A total of 170 labourers have been sacked in an ongoing labour dispute between the National Union of Mineworkers (NUM) and a construction company. The decision by Good Hope Construction (GHC) comes after the workers – all represented by NUM – embarked on an illegal strike which allegedly resulted in damage to property and loss of income that GHC said amounted to approximately R15 million.” http://www.iol.co.za/news/crime-courts/170-labourers-pay-price-for-wildcat-strike-1.1869788#.VZKCUKTg4YE (Accessed on 1 July 2015)

Petersen, Carlo. Work goes on after violence. 2015 Jun 29 Cape Times Extract from article: “Refurbishment work on council-owned flats in Manenberg is set to continue this week after construction was halted due to ongoing gang violence. Good Hope Construction (GHC) – which took over the project from Filcon Projects in June last year – initially stopped working in January. The City’s Community Residential Unit Refurbishment project has faced many complications, including alleged corruption related to gang activities, financial issues and gang violence.”

Construction Law Alert – June 2015

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http://www.iol.co.za/capetimes/work-goes-on-after-violence-1.1877475#.VZJ57KTg4YE (Accessed on 1 July 2015)

Media Release Department of Labour. Civil Engineering Bargaining Council agreement extended. 2015 Jun 09 SabinetLaw Extract from release: “The Dispute Resolution Collective Agreement drawn up in the Bargaining Council for the Civil Engineering Industry will become binding on non-parties to the agreement. The labour department published the extension of the agreement in Government Gazette 38852. The extension will apply from 15 June 2015 until 31 March 2020.” http://www.sabinetlaw.co.za/labour/articles/civil-engineering-bargaining-council-agreement-extended (Accessed on 1 July 2015)

New Publications

Gibson, Clive and Flood, Patrick. Everyone's guide to labour law. – Zebra Press, 2015. ISBN: 9781770228207 Extract from publishers’ summary: “Framework for governance - The one guide no employer or employee can do without! South African labour legislation prescribes to employers and employees what they are able to do, when they are allowed to do it, and how. It is, in reality, a potential minefield. But help is now at hand with Everyone’s Guide to Labour Law, which aims to assist employers and employees in respect of their rights, duties and obligations in most labour-related matters. It deals simply with the relevant legislation and the most common pitfalls, as well as the processes and procedures that must be followed. This comprehensive, current and informative book makes complex Acts accessible and easy to understand, while practical examples provide clarity and better understanding.” Price: R230.00 including VAT, excluding delivery. Order from books@lexinfo.co.za.

Employment Tax Incentive Act 26 of 2013; Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999 & regulations. – 2nd ed. - JutaLaw, 2015 (Juta’s Pocket Statutes). ISBN: 9781485108528 Partial contents: Employment Tax Incentive Act 26 of 2013 - Skills Development Act 97 of 1998 - Pendlex: Act 37 of 2008; Act 26 of 2011 - Related substantive provisions: Act 26 of 2011 – Regulations - Regulations regarding the Establishment of Sector Education and Training Authorities (GN R1082 of 1999) - Notice of Establishment of Sector Education and Training Authorities (GN 266 of 2000) - List and Scope of Coverage of Sector Education and Training Authorities (SETAs) - Regulations with regard to Private Employment Agencies - Learnership Regulations, 2007 - Amendment of Constitution of Sector Education and Training Authority (SETA) Regulations - Amalgamation of Sector Education and Training Authorities - Establishment of Sector Education and Training Authorities (SETAs) (GN R316 of 2005; R656 of 2005) - Service Level Agreement Regulations, 2005 - Establishment of Sector Education and Training Authorities (SETAs): extension of existing period - Coming into operation of the Quality Council for Trades and Occupations - Establishment of Sector Education and Training Authorities (SETAs) (GN R1055 of 2010) - Amalgamation of Sector Education and Training Authorities (SETAs): SETAs 4, 10 and 15 - Establishment of Sector Education and Training Authority (SETA): SETA 21; SETA 4 and the transfer of SIC Codes - Standard Constitution of SETA regulations - Sector Education and Training Authorities (SETAs) grant regulations - Trade test regulations - Skills Development Levies Act 9 of 1999 - Pendlex: Act 18 of 2009; Act 28 of 2011- Regulations regarding levies and related issues. Price: R110.00 including VAT, excluding delivery. Order from books@lexinfo.co.za.

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ENERGY EFFICIENCY

Law Firm Publication Powell, Bryan E. (Lane Powell PC). Energy efficient buildings: it’s the law (and a good idea too).

Construction Law Alert – June 2015

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2015 Jun 8 Lexology Extract from abstract: “Energy efficiency and sustainable building development and management are no longer viewed as a novel but impractical concept, or something only environmentalists long for. Improving existing buildings and constructing new structures that achieve high levels of energy performance is now a way of life. End users of nearly every type of building product now demand energy efficiency, conservation and sustainable building management practices for leased or newly-acquired space.” http://www.lexology.com/library/detail.aspx?g=1cfe51e5-8d74-476e-a998-5861b077255f (Accessed on 1 July 2015)

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GUARANTEES

Cases

Granbuild (Pty) Ltd v Minister of Transport and Public Works, Western Cape and Another (5021/2015) [2015] ZAWCHC 83 (5 June 2015) Extract from judgment: “The applicant seeks an interdict to prevent the second respondent from making payment to the first respondent in terms of a construction guarantee…Notice that applicant was in default of its obligation to proceed…Application response did not satisfy the Department and cancelled building contract…Applicant disputed the validity of the cancellation…Guarantee is a conditional guarantee…Question of locus standi…Rejected applicants’ first ground for an interdict, which is the only ground to which the pending application for leave to appeal might have been relevant… The second respondent is interdicted and restrained from making payment to the first respondent pursuant to the first respondent’s demand to the second respondent for payment of the amount of the guarantee issued by the second respondent to the first respondent… The parties shall bear their own costs of the application.” http://www.saflii.org/za/cases/ZAWCHC/2015/83.pdf (Accessed on 1 July 2015)

Group Five Construction (Pty) Limited and others v Member of the Executive Council for Public Transport, Roads and Works, Gauteng and others (Lombard Insurance Company Limited as third party) [2015] 2 All SA 716 (GJ) Construction guarantee - must be clear and unequivocal letter of demand – particulars of claim do not set out cancellation of construction contract - tacit acceptance of repudiation cannot constitute a written notice of cancellation. Fraud or absence of honesty renders guarantee unenforceable – where grounds for demand made/calling up of guarantee in conflict with several documents explaining that construction contract was not cancelled for reasons set out in detail and merely ‘expired’ it is then not honest to claim , in the letter of demand, that the construction contract had been ‘cancelled due to default – absent cancellation the grounds for demand were fraudulently expressed – guarantee there found to be extinguished. Group Five Construction (Pty) Limited and others v Member of the Executive Council for Public Transport Roads And Works Gauteng and Others (2009/31971) [2015] ZAGPJHC 55 (13 February 2015) is available at http://www.saflii.org/za/cases/ZAGPJHC/2015/55.pdf (Accessed on 1 July 2015)

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HEALTH AND SAFETY

Government Gazettes

Occupational Health and Safety Act 85 of 1993

Driven Machinery Regulations, 2015. RGN540 GG 38905 p3 24Jun2015 http://www.gov.za/sites/www.gov.za/files/38905_rg10454_gon540.pdf (Accessed on 1 July 2015)

RGN527 GG 38887 p6 19Jun2015 http://www.gpwonline.co.za/Gazettes/Gazettes/38887_19-6_Labour.pdf (Accessed on 1 July 2015)

Incorporation of Health and Safety Standard in terms of section 44(1): Driven Machinery Regulations 18(11). RGN539 GG 38904 p3 24Jun2015 http://www.gov.za/sites/www.gov.za/files/38904_rg10453_gon539.pdf (Accessed on 1 July 2015)

Incorporation of safety standards. RGN542 GG 38905 p27 24Jun2015 http://www.gov.za/sites/www.gov.za/files/38905_rg10454_gon542.pdf (Accessed on 1 July 2015)

Incorporational Safety Standards RGN528 GG 38887 p31 19Jun2015 http://www.gpwonline.co.za/Gazettes/Gazettes/38887_19-6_Labour.pdf (Accessed on 1 July 2015)

Journal Article Collier, Kate and Dawood, Ganeefah. Of mines and machines. 2015 May 15(4) Without Prejudice p31

Construction Law Alert – June 2015

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The amendments to Chapter 8 of the Regulations to the Mine Health and Safety Act which deals with Machinery and Equipment are discussed. The new regulations specifically deals with the safe use of Trackless Mobile Machinery.

Media Releases

Department of Labour. Code for trainers of lifting machine operators drawn up. 2015 Jun 25 SabinetLaw Extract from release: “The National Code of Practice for the training providers of lifting machine operators has been published. The code contains a list of lifting machines for which operators require a certificate of training issued by an accredited training provider. The code was published in terms of the Occupational Health and Safety Act of 1993. The requirement is outlined in regulation 18(11) of the Driven Machinery Regulations.” http://www.sabinetlaw.co.za/labour/articles/code-trainers-lifting-machine-operators-drawn (Accessed on 1 July 2015)

Department of Labour. New driven machinery regulations imminent. 2015 Jun 22 SabinetLaw Extract from release: “Rules governing how circular saws are to be used in the workplace have been drawn up. Published in Government Gazette 38887, the Driven Machinery Regulations will kick in on 30 September 2015. Falling under the Occupational Health and Safety Act, the regulations apply to the “design, manufacture, operation, repair, modification, maintenance, inspection, testing and commissioning of driven machinery”.” http://www.sabinetlaw.co.za/labour/articles/new-driven-machinery-regulations-imminent (Accessed on 1 July 2015)

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HOUSING

Government Gazette

Housing Consumers Protection Measures Act 95 of 1998 National Home Builders Registration Council (“NHBRC”): Notice to repeal the Home Building Manual Part 1, 2 and 3 of February 1999 and substitute it with the Home Building Manual 2015. BN127 GG 38894 p103 26Jun2015 http://www.gov.za/sites/www.gov.za/files/38894_bn127.pdf (Accessed on 1 July 2015)

Journal Article Cameron, Jess [et.al]. Prevaricate and lose. 2015 15(3) April Without Prejudice p106 Extract from abstract: “Property developers should not be lulled into a false sense of security when subcontracting with construction companies that are registered as home builders in terms of the Housing Consumers Protection Measures Act (95 of 1998). In light of the Constitutional Court's recent finding in the case of Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC), both property developers and the construction companies with whom they subcontract, have to be duly registered as home builders in terms of the Act, prior to the commencement of construction.”

Media Comments

Mungadze, Samuel. R20m payout despite doubts over NHBRC probe. 2015 Jun 01 BDlive Extract from article: “A multimillion-rand settlement has been made with the former chairwoman of the National Home Builders Registration Council (NHBRC) even though an investigation botched by the Special Investigating Unit (SIU) may still be reinstated. It is understood that Moira Granny Seape was offered R20m by Human Settlements Minister Lindiwe Sisulu. But the department has been unable to explain how the payback was calculated. Board members are appointed for a three-year term at the council and receive up to R500,000 a year, which means her term would have earned her R1.5m.” http://www.bdlive.co.za/national/2015/06/01/r20m-payout-despite-doubts-over-nhbrc-probe (Accessed on 1 July 2015)

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INFRASTRUCTURE DEVELOPMENT

Journal Article Glazewski, Jan and Plit, Lisa. Towards the application of the precautionary principle in South African law. 2015 26(1) Stellenbosch Law Review p190

Construction Law Alert – June 2015

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Extract from abstract: “The precautionary principle has gained general acceptance in international, regional and a number of domestic jurisdictions. In South Africa the principle has found a tentative foothold in legislation and case law but generally has had limited practical application. Much needed economic development in the country has seen, amongst other things the enactment of the Infrastructure Development Act 23 of 2014 to promote large infrastructural developments.”

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LIENS

Law Firm Publication Newboult, Suzannah (DLA Piper LLP, Qatar). Letters of the law: 'L' is for lien. 2015 Jun 12 Lexology Extract from abstract: “Contractors, subcontractors, suppliers and consultants cite “not getting paid” as one of the biggest challenges to operating in the construction industry in Qatar. Understandably, companies are starting to look for opportunities to secure payment. Effective, practical methods are proving difficult. Liens are not without their difficulties but are perhaps another method to throw into the mix.” http://www.lexology.com/library/detail.aspx?g=0c7ff1b1-c4f0-4548-9936-a86028899671 (Accessed on 1 July 2015)

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PERSONAL INJURY

Law Firm Publication Bracher, Patrick. Insurers contribute equally to $20 million Goldman HQ event. 2015 May11 Financial Institutions Legal Snapshot Extract from article: “A New York judge ordered insurers to contribute equally to damages claims by two parties who were injured at the construction site of the new Goldman Sachs’s headquarters. Settlement was $20 million of which the primary insurer paid $1 million. The remaining insurers had policies that provided essentially the same level of cover. They were therefore ordered to divide the balance of the loss equally between them.” http://www.financialinstitutionslegalsnapshot.com/2015/05/insurers-contribute-equally-to-20-million-goldman-hq-event/ (Accessed on 1 July 2015)

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PROFESSIONAL INDEMNITY

Law Firm Publication Fox, Belinda [et.al] (Bond Dickinson LLP, UK). Are you covered? Coverage issues for construction professionals part 2. 2015 Jun 12 Lexology http://www.lexology.com/library/detail.aspx?g=3bce321d-32bd-45d2-a23b-e208f44acb7d (Accessed on 1 July 2015)

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ROADS AND ROAD TRANSPORTATION

Media Comments Bloomberg. Sanral plans to sue construction firms. 2015 Jun 23 The Star: Business Report Extract from article: “SA National Roads Agency Limited (Sanral), the state-owned road agency, plans to file civil damages claims against the country’s biggest construction companies this month for colluding over contracts related to improving highways. Sanral is suing builders including Murray & Roberts (M&R) and Aveng following an investigation by the Competition Commission two years ago. The commission fined 15 construction firms a combined R1.46 billion for collusion over contracts including those to build stadiums for the 2010 soccer World Cup and other projects.” http://www.iol.co.za/business/companies/sanral-plans-to-sue-construction-firms-1.1874894#.VZJ6HKTg4YE (Accessed on 1 July 2015) See also:

Bloomberg. Sanral to sue big building companies. – In: 2015 Jun 23 Times Live at http://www.timeslive.co.za/thetimes/2015/06/23/Sanral-to-sue-big-building-companies (Accessed on 1 July 2015)

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Construction Law Alert – June 2015

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SPATIAL PLANNING

Media Comment Mayatula, Lekgolo and Magni, Peter. ‘Future’ of towns and cities depends on new Act. 2015 Jun 29 The Star: Business Report Extract from article: “Seismic activity is not limited to the San Andreas Fault. On July 1, 2015, in sunny South Africa, the Spatial Planning and Land Use Management Act (Spluma) comes into operation. As with many earthquakes the legislation, while long overdue, has arrived largely unannounced, but its ramifications will be seismic. Spluma defines where and how we live now, and how we might live in the future. It lays down the process by which businesses and homes are built, and what towns and cities will look like. It is fundamental in creating a desirable place to grow and be oneself. Its chief tools are land use management schemes, and the future defining spatial development framework.” http://www.iol.co.za/business/opinion/future-of-towns-and-cities-depends-on-new-act-1.1877444#.VZJ58qTg4YE (Accessed on 1 July 2015)

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TAXATION

Case Commissioner, South African Revenue Service v Tradex (Pty) Ltd and Others 2015 (3) SA 596 (WCC) Extract from judgment: “The applicant seeks confirmation of a provisional preservation order granted in terms of s163(4) of the Tax Administration Act 28 of 2011… The parties agreed on the extensions because the respondents were seeking to bring their tax affairs up to date and to pay the outstanding taxes owed by them… When it became apparent that SARS was dissatisfied with progress and intended to press for confirmation of the provisional order, the respondents filed answering affidavits… Not appropriate that a preservation order should (as here) contain, as a standard provision, a power on the part of the curator to realise assets in satisfaction of the taxpayer’s tax liability…The application is dismissed and the applicant shall pay the respondents’ costs. Commissioner for the South African Revenue Service v eTradex (Pty) Ltd and Others (12949/2013) [2014] ZAWCHC 142; 2015 (3) SA 596 (WCC) (9 September 2014) is available at http://saflii.org/za/cases/ZAWCHC/2014/142.pdf (Accessed on 1 July 2015)

Government Gazettes Income Tax Act 58 of 1962 and Tax Administration Act 28 of 2014 Income Tax 2015: Notice to furnish returns for the 2015 year of assessment. GN510 GG 38874 p6 12Jun2015 http://www.gov.za/sites/www.gov.za/files/38874_gon510.pdf (Accessed on 1 July 2015) Value-Added Tax Act 89 of 1991

Regulation issued in terms of section 74(1) read with section 23(3)(b)(ii). RGN447 GG 38836 p12 29May2015 http://www.gov.za/sites/www.gov.za/files/38836_rg10439_gon447.pdf (Accessed on 1 July 2015)

Regulation issued in terms of section 74(1) read with section 23(3)(d). RGN446 GG 38836 p6 29May2015 http://www.gov.za/sites/www.gov.za/files/38836_rg10439_gon446.pdf (Accessed on 1 July 2015)

Journal Articles

Azuka, Aniyie I. Balancing contending interests: A focus on tax harmonisation and associated policy issues. 2013 (17) Dec University of Botswana Law Journal p37 Partial contents: What is tax harmonisation? - Tax harmonisation: where is Nigeria? - Benefits of tax harmonisation – Cost of tax harmonisation. http://www.pulp.up.ac.za/pdf/2015_05/2015_05.pdf (Accessed on 1 July 2015) Chong, Joon and Van der Linde, Kathleen. Tax issues arising from the amalgamation or merger procedure in the Companies Act 71 of 2008. 2014 25(3) Stellenbosch Law Review p471

Dachs, Peter. What can SARS request from you, and when? Enforcement. 2015 (353) Tax Breaks Newsletter p1 Extract from abstract: “SARS often sends out requests for information in terms of Section 46 of the Tax Administration Act (TAA). The question arises, in what circumstances SARS is permitted to ask such questions, and what limits exist in respect of their powers?” De Wet, Charles. Tax and the digital economy: value-added tax.

Construction Law Alert – June 2015

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2015 (353) Tax Breaks Newsletter p4 Extract from abstract: “South Africa's playing fields are not level when it comes to local businesses competing with multinationals in the digital economy.”

Faber, Pieter. How to deal with 'invalid objections': objection and appeal. 2015 (353) Tax Breaks Newsletter p6 Extract from abstract: “Submitting an objection to a tax assessment issued by SARS can be a cumbersome process for many taxpayers, including small businesses - especially if they don't have the money to consult a tax practitioner. While the relevant tax matter may not be of a technical nature at all, the objection process itself may pose a number of challenges.” Jones, Steven. Investing: tax should not be the only consideration: income tax. 2015 (353) Tax Breaks Newsletter p3 Extract from abstract: “"I hate tax!" These were the words spoken by a director of one of the clients of the audit firm with whom I served articles. Whilst many would agree with this sentiment towards the taxman, this particular individual's zeal in devising schemes to pay as little tax as possible was legendary in our firm.” Mukwende, Tafadzwa Brian. New e-commerce VAT directives. 2015 Jun De Rebus p27 Partial contents: Transition of the Traditional Value-Added Tax System - Revenue rule - Economic presence test - Digital reforms - Supply of electronic services - VAT grouping - Online VAT compliance procedures - Aligning international tax protocols with the digital tax model - Global perspectives on the digital economy. http://www.saflii.org/za/journals/DEREBUS/2015/113.rtf (Accessed on 1 July 2015) Palmer, Graeme. The VAT vendor conundrum. 2015 15(3) April Without Prejudice p24 Extract from abstract: “The basic principle of Value Added Tax (VAT) is that a vendor must account to the South African Revenue Service (SARS) for output tax on taxable supplies made after deducting any input tax incurred by him. However, if a vendor collects the VAT and does not pay it over to SARS but uses it for another purpose, can he be charged with the common law crime of theft?”

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TRADE AND INDUSTRY

Media Release International Trade Administration Commission. ITAC calls for comment on anti-dumping duties. 2015 Jun 22 SabinetLaw Extract from release: “The International Trade Administration Commission (ITAC) of South Africa has announced in Government Gazette 38877 that a number of anti-dumping duties will expire in 2016. The duties apply to blankets, iron or steel bolts and nuts, polyethylene terephthalate and unframed glass mirrors. The ITAC invites manufacturers of the listed items to put forward reasons as to why the anti-dumping duties should not be discontinued. If sufficient input arguing against termination of the duties is received, a review will be instituted.” http://www.sabinetlaw.co.za/economic-affairs/articles/itac-calls-comment-anti-dumping-duties (Accessed on 1 July 2015)

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