IMPORTANT NEWS

SIGNING OF MINIMUM WAGE AGREEMENT A START

Deputy President Cyril Ramaphosa has signed a national minimum wage agreement of R20 an hour. The agreement will

come into effect as of 1 May 2018, says a Mail & Guardian Online report. Ramaphosa made the announcement at

Parliament, where he said that all stakeholders had signed the agreement except Cosatu, because the labour federation

will need to report to its central executive committee (CEC) before they sign. ‘Cosatu was not present to sign the

agreement as they asked to get time to complete an internal process of consultation,’ he said. ‘The Cosatu President

told me now that it needs to report to a CEC meeting in two weeks time.’ The minimum wage will amount to R3 500

per month for a 30 hour week or R3 900 for a 35 hour week. The Deputy President acknowledged that R3 500 per

month is not a living wage, but he said it would be the start of the process to pursue a living wage. Ramaphosa said that

the agreement could uplift 6.6m people.

Mitigating measures are planned to assist businesses that cannot afford the minimum wage, says Ramaphosa. Such

businesses could apply for an exemption for up to 12 months. The aim would be to avoid job losses and plant closures,

Ramaphosa said, according to a Business Day report. ‘Any fragile sectors that are having difficulty in complying with the

national minimum wage will be considered for assistance within the available means, including through incentives,’ he

said. An employment tax incentive, expanded support for small and medium enterprises, as well as sectoral-specific tax

incentives were envisaged, the Deputy President said.

Source: Legalbrief, 09 February 2017

DEADLINE FOR UNQUALIFIED MUNICIPAL FINANCE OFFICERS

Financial and supply chain management officials employed by municipalities and their entities have 18 months to attain

minimum competency levels prescribed in the 2007 local government regulations, notes Pam Saxby for Legalbrief Policy

Watch. Announcing this in the Government Gazette, a National Treasury temporary exemption notice warns that any

new appointee failing to meet the requirements concerned within that timeframe will automatically have his/her contract

terminated – but apparently only if it includes a clause providing for that eventuality, and stipulating the relevant

minimum competency levels in the related performance agreement.

While the notice alludes to ‘corrective action’, it is not clear what will be done if any longer-serving official misses the

deadline. ‘Applicable’ labour legislation, policies and procedures will need to be observed, it confirms. Monthly reporting

requirements include details of: the employment contracts of ‘officials appointed by virtue of this notice’; and registration

with accredited training providers. The preamble to a similar temporary exemption notice issued in 2014 (and imposing

far less exacting conditions) stated that it would apply ‘to the extent that the regulations prevent a municipality or

municipal entity from … (continuing to employ) … a financial … or supply chain management official who has not

attained the required qualifications and competency levels’.

Source: Legalbrief, 07 February 2017

RAF BILL TABLED IN PARLIAMENT

The overarching purpose of the 2017 Road Accident Fund (RAF) Amendment Bill tabled in Parliament is to ‘create a

scheme that facilitates effective financial management and enables the timely, efficient and cost-effective delivery of

compensation’. This is according to a memorandum on the Bill’s objects, which notes that ‘irrespective of the

establishment of the new no-faults scheme’ the RAF Act will remain in place ‘for several years’, reports Pam Saxby for

Legalbrief Policy Watch.

While a Parliamentary Monitoring Group report on a meeting of the National Assembly’s Transport Committee last year

noted that the long-awaited Road Accident Benefit Scheme Bill has been processed in the National Economic

Development and Labour Council, there have been no official statements to that effect.

Bulletin 6 of 2013 Period: 1 February 2013 to 8 February 2013 Bulletin 6 of 2017 Period: 27 January 2017 – 3 February 2017

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Against that background, among other things the RAF Amendment Bill seeks to: authorise the RAF to include a cost

contribution with an offer of compensation; provide for the payment of compensation for accommodation, treatment and

services for an initial period, on a no-fault basis; and make the payment of ‘specified funeral expenses’ mandatory,

‘limited to a maximum proven amount’ also on a no-fault basis. In addition, once in force, the Bill will authorise the

Minister to: prescribe a list of injuries automatically deemed serious, reducing assessment-related delays and costs; and

prescribe a new medical tariff sufficiently ‘adequate’ to ensure road accident victims access to private health care.

Source: Legalbrief, 08 February 2017

MINING CHARTER, MPRDA BILL FINALISED BY JUNE?

Mineral Resources Minister Mosebenzi Zwane expects the process of finalising the beleaguered Mineral and Petroleum

Resources Development Amendment Bill to have been concluded by mid-year now that provincial public hearings are

‘well under way’. Addressing delegates at this year’s mining indaba in Cape Town, the Minister also said that a revised

Mining Charter reflecting ‘the views of stakeholders’ will have been gazetted ‘by March’ 2017 – providing potential

investors with the level of policy ‘certainty’ they require, notes Pam Saxby for Legalbrief Policy Watch. After a long

standoff between the Chamber of Mines and the Department of Mineral Resources on the correct interpretation of

ownership targets proposed in last year’s draft charter, ‘consultations’ apparently began in earnest last month (Fin24).

As Legalbrief Today has regularly reported, a more thorough round of provincial hearings on what is now a ‘D’ version of

the Amendment Bill could create an opportunity for changes to be made to ‘free carried interest’ and state participation

provisions of particular concern to the petroleum industry. The constitutionality of a fast-tracked first round in 2014 was

one of several issues raised by President Jacob Zuma when he returned the Bill to Parliament in January 2015. Should

the provincial legislatures recommend substantive changes to the proposed new statute, they will need to be endorsed

by the National Assembly’s Mineral Resources Committee.

It remains to be seen whether this process will be affected by Rule 203 of the Joint Rules of Parliament, as a recent

Business Day article suggested – and whether the rule can (or even needs to be) circumvented. This is given the rather

different circumstances prompting its return to Parliament when compared with those associated with the Financial

Intelligence Centre Amendment Bill.

Source: Legalbrief, 07 February 2017

RECOMMENDED READING

More clarity on pro bono under Legal Practice Act, by Erica Emdon, De Rebus, January/February 2017

Time heals all wounds – the law of Prescription in medical negligence, by Lekwalo Jones Ditsela, De Rebus,

January/February 2017

Letting time fly … common law and the waiver of prescription, by Johan van der Merwe, De Rebus,

January/February 2017

Flying into new heights – damages claims arising from contraventions of the Competition Act, by Malcolm Ratz,

De Rebus, January/February 2017

Pension interest – is there a need to plead a claim?, by Clement Marumoagae, De Rebus, January/February 2017

Are business rescue practitioners adequately regulated?, by Rezen Papaya, De Rebus, January/February 2017

Navigating the Consumer Protection Act 68 of 2008, by Neels Coertse, De Rebus, January/February 2017

Does s 14 of the CPA create an unreasonable disadvantage to the owner?, by Cilna Steyn, De Rebus,

January/February 2017

Personal data on the Internet – can POPI protect you?, by Nthupang Magolego, De Rebus, January/February 2017

Deducting amounts from salaries and failing to pay – employers brought to book by the law, by Clement

Marumoagae, De Rebus, January/February 2017

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Does PAJA still form part of the legislative puzzle?, by Bayethe Maswazi, De Rebus, January/February 2017

Who is in charge? Power struggle between the developer and body corporate, by Marina Constas, De Rebus,

January/February 2017

Calculating legal costs: Changing the way we charge, by Gerhard Buchner, De Rebus, January/February 2017

Addendum to ‘Step-by-step guide to residential housing eviction proceedings in the Magistrate’s Court’, by

Lebogang Raborife-Nchabeleng, De Rebus, January/February 2017

Dog owners beware: Strict liability for dog attacks, by Kristen Wagner, De Rebus, January/February 2017

Rule 35(12) of the Uniform Rules: Be wary, by Mzuvukile Sirenya and Carl van Rooyen, De Rebus, January/February

2017

RECENT CONSTITUTIONAL COURT JUDGMENT

BUSINESS ZONE 1010 CC T/A EMMARENTIA CONVENIENCE CENTRE v ENGEN PETROLEUM LIMITED AND OTHERS (CCT09/16) [2017] ZACC 2 (9 FEBRUARY 2017)

Petroleum Products Act 120 of 1977 — interpretation of section 12B — single act constitutes a contractual practice

under section 12B — decision of Controller of Petroleum Products and Minister of Minerals and Energy reviewable in

terms of section 6 (2) (d) of Promotion of Administrative Justice Act 3 of 2000 — referral by the High Court confirmed.

Source: http://www.saflii.org/

RECENT OTHER JUDGMENTS RAND WATER PROCUREMENT PRACTICES UNDER HARSH LIGHT

The procurement practices of Rand Water have come under a harsh spotlight after the Gauteng High Court

(Johannesburg) interdicted a R168m tender for steel pipes, says an amaBhungane report. The judgment found Rand

Water brushed aside a lower bid that would have saved the parastatal millions of rands. The excuse used by Rand

Water was a policy called the ‘financial tolerance principle’ (FTP), which the utility claimed entitled it automatically to

disqualify bids of more than 25% below its own estimate of the contract price. Based on the FTP, it awarded the tender

to Africa Pipe Industries (API) – whose bid was R14m higher than that of a rival supplier that met the tender

specifications, Hall Longmore. The court found irregularities in Rand Water’s handling of the bids and in the utility’s bid

to block Hall Longmore’s efforts to challenge its disqualification. In her judgment, Judge Sharise Weiner found that Rand

Water’s own procurement policies, its tender documents and the relevant legislation did not provide for automatic

exclusion of a bidder that failed to meet the FTP. She also found that API’s bid – which was 25.24% lower than Rand

Water’s estimate – also fell foul of the FTP. If Hall Longmore was automatically excluded because its bid was too low,

API should have been excluded on the same basis. Despite the court ruling, amaBhungane has learned that the

parastatal – and ultimately consumers – will still pay the higher price for the work in question. Rand Water confirmed that

subsequent to the judgment it had accepted an agreement under which API and Hall Longmore would split the work.

Source:Legalbrief, 03 February 2017

BOBROFFS ABUSED KNOWLEDGE OF COURT PROCEDURES

Personal injury lawyers Ronald and Darren Bobroff abused their knowledge of court procedures to effectively prevent

the court from examining their misconduct. This is one of the key reasons a full Bench at the Gauteng High Court

(Pretoria) decided the father and son duo, both directors of Ronald Bobroff and Partners (RBP), should be struck off the

roll of attorneys in December last year, according to a Tony Beamish report on the Moneyweb site. The reasons for the

decision were released this week. The judges were scathing, saying: ‘Endorsing this type of behaviour by officers of the

court would bring the legal profession into disrepute.’ The Bobroffs fled SA in March last year for Sydney when the

Hawks requested that the pair hand themselves over to be arrested and bailed. They face charges of theft, fraud,

forgery, kidnapping, money laundering and exchange control contraventions. The NPA is in the process of preparing an

extradition application. The striking off, and this week’s judgment, follow a five-year legal battle by Matthew and Jennifer

Graham to bring the Bobroffs to book. Matthew was the victim of a 2006 road accident and his wife Jennifer had retained

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RBP to handle his claim against the Road Accident Fund. Following their settlement, they sued RBP for overcharging

them – a case they won.

Judge Nicolene Janse van Nieuwenhuizen wrote the judgment with which Judge Natu Ranchod concurred, notes the

Moneyweb report. Their damning finding that the Bobroffs used their knowledge of legal processes to delay the case

was highlighted with the duo’s application a day prior to the 6 December hearing where they were struck from the roll.

On this day, the Bobroffs launched an application for a postponement, saying – among other things – that they were

never formally informed that the Law Society of the Northern Provinces (LSNP) had applied for their names to be struck

from the roll, and that the Deputy Judge President of Pretoria, Aubrey Ledwaba’s enrolment of the matter for hearing,

was not ‘competent’. They also applied for a postponement so that RBP’s financial position could be scrutinised by a

forensic accountant. The judges conclude their judgment by stating: ‘It is manifestly in the interest of the public to have

attorneys, who abuse their position by misappropriating large sums of money due to their clients, struck from the roll of

attorneys.’ Lutendo Sigogo, president of the LSNP, welcomed the judgment and said that it was important that the

matter had finally been concluded.

Source:Legalbrief, 09 February 2017

ATTORNEY’S ASSETS FROZEN

The Eastern Cape High Court (Grahamstown) has provisionally frozen Komani attorney Mzwandile Bobotyana’s assets.

A Daily Dispatch report says Bobotyana (51) is facing criminal charges for allegedly defrauding businessman Afzal

Mohammad out of R2.1m in an illicit house sale. His assets have, in the meantime, been surrendered and placed under

the control of a curator. Assets listed include property in NU3 Mdantsane, Ukhozi Crescent in East London and three

vehicles, as well as shares or equity in four other luxury vehicles. The trial is reportedly set to proceed on 30 March.

Source:Legalbrief, 09 February 2017

UNIVERSITY LOSES BID TO EVADE FIRE DISABILITY CLAIM

Stellenbosch University has remained tight-lipped over whether it will seek another legal challenge, says a Cape Times

report. This after the Western Cape High Court dismissed its appeal against a ruling which found it liable for damages

after law student Izak Potgieter was disabled during a fire at the Eendrag residence in 2007. Potgieter was forced to

jump out of the third-floor window of his residence. His case was that the university was aware of the risk that a fire in a

non-compartmentalised roof posed to residents in such hostels. His lawyers claimed it had taken inadequate steps to

mitigate the risk after a similar fire at a women’s residence in 1983. The court ruled the steps taken by the university

were not reasonable and fell far short of the reasonableness standard. This was both in relation to the installation of fire

safety measures at Eendrag and in the implementation of its own risk management policy, to which it merely paid ‘lip

service’.

Source:Legalbrief, 06 February 2017

RULING GOES AGAINST RESETTLED DISTRICT SIX FAMILY

The Western Cape High Court has ordered that occupants of a District Six property be given until the end of next month

to leave, says a Cape Argus report. Rural Development and Land Reform Minister Gugile Nkwinti had alleged Shahieda

Boyes, her husband and her parents had been illegally occupying the house in Reform Street since April 2014. They had

been informed by a trustee of the District Six Beneficiary and Development Trust they would be allocated an apartment

in District Six following their land claim application. After being handed the keys by a trustee, they moved to District Six

toward the end of April 2014 and the next month they were informed by officials of the Lands Claim Commission that

their occupancy was unlawful. Nkwinti, in court papers, stated that a detailed paper trail exists for each successful claim

and an allocation of a property did not exist for the apartment. Nkwinti added the trustee had not been authorised to

hand over keys without first adhering to the department’s signed documentation and handing-over procedure. Judge WH

van Staden ruled that both families should vacate their home by 31 March and, failing that, they will be evicted.

Source:Legalbrief, 07 February 2017

COURT CLEARS WAY FOR MINE TO MOVE GRAVES

The Gauteng High Court (Pretoria) has cleared the way for Ivanplats‚ an Ivanhoe Mines subsidiary‚ to proceed with a

graves relocation programme at its Platreef mine development site near Mokopane in Limpopo. A TimesLIVE report

says Ivanplats challenged an interim order that was issued by the court following an ex parte hearing on 28 November

last year, which the company says was conducted without its knowledge. After hearing arguments yesterday‚ Judge

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John Murphy ordered that the interim interdict be set aside‚ saying he would give written reasons for his judgment in due

course. Appearing for the company‚ Advocate Alfred Cockrell SC argued that Ivanplats had obtained all necessary

permits and authorisations for the grave relocation process and conducted extensive consultation with community

residents and relatives of the deceased individuals. In an affidavit‚ Ivanplats’ MD Dr Patricia Makhesha said the

company was in a unique position to develop what would become a large and highly profitable platinum mine which was

co-owned by the local‚ historically-disadvantaged community and international investors. Makhesha said the court action

was an ill-conceived attempt by a few individuals to stop the construction of a mine that would provide much needed

direct and indirect jobs‚ access to education and skills training for young people in Mokopane.

Source:Legalbrief, 03 February 2017

SUPERMARKET GETS INTERDICT AGAINST ANGRY LOCALS

Unhappiness by members of the community living in East Lynne over Shoprite’s failure to employ local residents has led

to several altercations between members of the public and management, forcing Shoprite Checkers group to knock on

the court’s door for protection, says a Pretoria News report. Gauteng High Court (Pretoria) Judge John Murphy issued

an urgent order interdicting a group of people calling itself the Siyazailwela Group, from harming or threatening any of

the store’s employees. They may also not prevent the employees or customers from entering the store, or incite any of

its members to participate in violent protests. The store is located in the East Park Shopping Centre in Baviaanspoort

Road.

Source:Legalbrief, 03 February 2017

HOUSEKEEPERS WIN DAMAGES OVER STRIP SEARCH

A luxury Sunshine Coast game reserve has been ordered to pay 11 housekeepers token damages of R45 000 each

after they were subjected to a strip search when money went missing from a tourist chalet in 2015, says a Daily Dispatch

report. Grahamstown Regional Court Magistrate Arno Strydom also ordered Kariega Game Reserve to offer ‘specialist

trauma counselling’ to the women and get expert training for security staff involved in searches. The women were

collectively suing Kariega for more than R4m, claiming they had been sexually assaulted and violated by the reserve

catering manager after R200 and an undisclosed amount of euros went missing from two locked lodges when visitors

were out on a day drive. Strydom’s scathing judgment also ordered Kariega to ‘present sensitisation training’ to all

employees on the relevant provisions of the Constitution and human rights when it came to searches in the workplace.

His judgment questioned why 11 women had been subjected to a strip when only two had keys to access the room. The

11 women were sitting in a laundry after the theft and Strydom asked whether this was enough to create reasonable

suspicion.

Source:Legalbrief, 07 February 2017

FOUR WIN SETTLEMENT FOR WRONGFUL ARREST

Four men wrongfully arrested in Beacon Bay and detained at the East London police station in December 2015 for five

days without being charged have won a R0.5m settlement against the Minister of Police. A Daily Dispatch report says

the men had initially each demanded R550 000, citing pain and suffering as a result of the arrests. However, the Eastern

Cape High Court (East London) ruled that the department pay them each R120 000. The four were arrested by Warrant

Officer Eugene Chipps on the basis of information he received through a WhatsApp chat group stating that there had

been a break-in at a house in the area. In his judgment, Judge John Smith said: ‘It is a matter of public record that

burglaries in the area are rampant and that police investigations seldom result in the arrests of suspects. One can

therefore understand Chipps’ excitement and the over-exuberant manner in which he pursued investigations into what

he considered to have been a "hot lead".’ Smith described the grounds on which Chipps effected the arrest as ‘flimsy’

and falling ‘far short of the required standard’.

Source:Legalbrief, 03 February 2017

BUTTERWORTHS ARBITRATION LAW REPORTS – JANUARY 2017

ALMAZON v SASBO: THE FINANCE UNION [2017] 1 BALR 1 (CCMA)

Dismissal – Constructive – Employee claiming that she resigned when superior threatened to assault her after history of

sexual harassment, but failing to prove either threat or incidents of sexual harassment – Constructive dismissal not

proved.

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FEDERAL COUNCIL OF RETAIL & ALLIED WORKERS v TAU MILL MEULE (EDMS) BPK [2017] 1 BALR 18

(CCMA)

Organisational rights – Union enjoying majority in employer’s head office but having as members only 16% of employer’s

total workforce not sufficiently representative to qualify for organisational rights.

Workplace – What constitutes – Workplace consisting of all places from which employer conducts operations, unless

independent of each other.

HLONGWANE AND OTHERS v BONGINKOSI CHRISTIAN ACADEMY [2017] 1 BALR 24 (CCMA)

Dismissal – Misconduct – Refusal to sign contract of employment – Employees dismissed for refusing to sign “month to

month” contracts while trying to negotiate terms and conditions of employment – Dismissals unfair.

MAGAKWE v ESTATE AGENCY AFFAIRS BOARD [2017] 1 BALR 38 (CCMA)

Fixed-term contracts – Equal treatment in terms of section 198B of LRA – Employee on fixed-term contract not entitled

to benefits granted permanent employees because “comparators” more qualified and experienced.

MALEBYE v PHAHAMA SYSTEMS DEVELOPMENT (PTY) LTD [2017] 1 BALR 43 (CCMA)

Employee – Who is – Applicant submitting falsified offer of employment to sustain claim that she was employee –

Employment relationship not proved.

Practice and proceedings – Postponement – Principles restated – Employee claiming postponement after realising that

her representative, a labour consultant, could not appear – Application dismissed.

MORILLY v CAPACITY OUTSOURCING (PTY) LTD AND OPPLE LIGHTING SA (PTY) LTD [2017] 1 BALR 60

(CCMA)

Dismissal: Procedural fairness – Poor work performance – TES employee dismissed after client complained of

employees’ poor work performance – Dismissal procedurally unfair because TES played no part in counselling.

NATIONAL EDUCATION, HEALTH AND ALLIED WORKERS’ UNION OBO MEMBERS v BEYOND ZERO [2017] 1

BALR 66 (CCMA)

Unfair labour practices – Benefits – Employees complaining of quality of cellphones issued to them for work purposes –

Unfair labour practice not proved.

Unfair labour practices – Benefits – What constitute – Cellphones issued to employees for work purposes a benefit

because employees permitted to make private calls.

NATIONAL EDUCATION, HEALTH AND ALLIED WORKERS’ UNION OBO NQUMA v DEPARTMENT OF JUSTICE

AND CONSTITUTIONAL DEVELOPMENT [2017] 1 BALR 76 (CCMA)

Discrimination – Equal pay for equal work – Drivers paid at different rates according to driver’s licence code, although

performing same work – Pay difference not amounting to unfair discrimination because justified by higher qualification.

NATIONAL UNION OF MINEWORKERS OBO MEMBERS v EXXARO-FERRO ALLOYS (PTY) LTD [2017] 1 BALR 81

(CCMA)

Organisational rights – Union claiming rights from employer not falling within union’s registered scope – Rights justifiably

denied.

NOMBEWU v DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM [2017] 1 BALR 85 (CCMA)

Discrimination – Arbitrary ground – Applicant denied appointment on ground of criminal record – Unfair discrimination

proved.

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ROETS v GOVERNING BODY OF SOUTPANSBERG PRIMARY SCHOOL [2017] 1 BALR 91 (CCMA)

Dismissal – Proof of – Fixed-term contract – Employer declining to renew employee’s fixed term contract because

employee did not possess requirements for post – Dismissal not proved.

SHEMBE v VOSLOORUS OLD AGE CENTRE [2017] 1 BALR 104 (CCMA)

Discrimination – Political opinion – Applicant asked politically loaded question during interview to test leadership skills –

Discrimination not proved.

Source: www.Legalbrief.co.za

BUTTERWORTHS LABOUR LAW REPORTS –JANUARY 2017

GBENGA-OLUWATOYE v RECKITT BENCKISER SOUTH AFRICA (PTY) LTD AND ANOTHER [2017] 1 BLLR 1

(CC)

Settlement agreements – Public policy – Employer and employee concluding severance agreement in which employee

waived right to pursue unfair dismissal claim – Agreement not contrary to public policy as concluded between equal

parties and need for upholding such agreements compelling.

KAWALYA-KAGWA v DEVELOPMENT BANK OF SOUTHERN AFRICA [2017] 1 BLLR 33 (LC)

Contract of employment – Suspensive condition – Employee’s fixed-term contract of employment subject to condition

that he obtain work permit – Condition satisfied by presentation of copy of permit, even though employer had doubts

about its authenticity.

Practice and procedure – Urgent relief – Ground for entitlement – Employee proving prima facie right to monetary relief

pending CCMA proceedings, but failing to prove that denial thereof would lead to irreversible harm – Urgent order

denied.

MJRM TRANSPORT SERVICES CC v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION AND

OTHERS [2017] 1 BLLR 40 (LC)

Practice and procedure – Labour Court Practice Manual – Clause 11.2.3 – Manual intended to be applied flexibly –

Applicant filing record of review out of time and application deemed withdrawn – Nothing precluding applicant from

seeking condonation for late filing of record.

Practice and procedure – Reviews – Applicant filing record of review out of time and application deemed withdrawn –

Nothing precluding applicant from seeking condonation for late filing of record.

NATIONAL UNION OF MINEWORKERS v EZULWINI MINING CO (PTY) LTD AND OTHERS [2017] 1 BLLR 47 (LC)

Dismissal – Operational requirements – Mining sector – Union seeking to interdict employer from retrenching members

until Minister completed investigation under Mineral and Petroleum Resources Development Act, 2002 – Interdict

refused because LRA and MPRDA envisage separate processes and union not challenging fairness of pre-retrenchment

procedure.

SHOZI AND OTHERS v PETCON INVESTMENTS CC T/A PETCON OUTSOURCING SOLUTIONS AND ANOTHER

[2017] 1 BLLR 54 (LC)

Dispute resolution – “Once and for all” rule – While switching from claim under LRA to breach of contract claim generally

not to be countenanced, exception allowed where employees initially engaged in industrial action over unilateral

reduction of wages, and were subsequently dismissed.

Practice and procedure – Switching forums – Employees dismissed after initially engaging in strike over unilateral

reduction of wages, then referring breach of contract claim under BCA – General rule against switching forums not

applicable because dismissal prevented employees from pursuing industrial action.

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SOLIDARITY AND OTHERS v SOUTH AFRICAN BROADCASTING CORPORATION [2017] 1 BLLR 60 (LC)

Contract of employment – Breach – Employer dismissing employees without hearing guaranteed by disciplinary code

incorporated in contract of employment – Dismissal unlawful and void.

Costs – Personal liability for – Managers who opposed urgent application to declare dismissals unlawful directed to

explain why they should not be held personally liable for costs because decisions to dismiss reckless and ill-considered.

Dismissal – Misconduct – Failure to comply with company policy – SABC journalists dismissed for questioning public

broadcaster’s policy of not broadcasting images of violent protests – Dismissals unlawful because employees’ freedom

of expression infringed.

Dismissal – Unlawful – Employer dismissing employees without hearing guaranteed by disciplinary code incorporated in

contracts of employment – Dismissals in breach of contract and void ab initio.

Labour Court – Jurisdiction – Court having jurisdiction to entertain disputes concerning alleged breaches of employment

contracts where contracts confer right to fair hearing.

SOUTH AFRICAN COMMERCIAL, CATERING AND ALLIED WORKERS UNION AND OTHERS v SOUTHERN SUN

HOTEL INTERESTS (PTY) LTD [2017] 1 BLLR 90 (LC)

Dismissals – Operational requirements – Section 189A retrenchments –Retrenched employees seeking consolidation of

section 189A(13) claim relating to alleged procedural fairness with section 191(5)(b)(ii) claim relating to alleged

substantive unfairness of retrenchment – Consolidation refused because section 189A requires procedural and

substantive challenges to be dealt with by different processes.

SOUTH AFRICAN MUNICIPAL WORKERS UNION OBO MLALANDLE v SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL AND OTHERS [2017] 1 BLLR 99 (LC)

Practice and procedure – Labour Court Practice Manual – Clause 11.2.3 – Applicant filing record outside time limit

prescribed by manual and failing to seek extension from other party or Judge President, and not filing application for

condonation – Application struck from roll.

Practice and procedure – Reviews – Applicant filing record outside time limit prescribed by manual and failing to seek

extension from other party or Judge President, and not filing application for condonation – Application struck from roll.

SOUTH AFRICAN REVENUE SERVICE v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

AND OTHERS [2017] 1 BLLR 8 (CC)

Disciplinary procedure – Managerial interference with sanction – Disciplinary tribunal imposing lenient sanction on

unrepentant racist, and management dismissing employee without hearing – Dismissal procedurally unfair.

Dismissal – Misconduct – Racist language – Employee twice referring to superior as “kaffir” – Dismissal appropriate.

Dismissal – Misconduct – Racist language – Employee twice referring to superior as “kaffir” – Term so egregiously

offensive and insulting that employee not entitled to reinstatement, even though employer dismissed employee without

hearing required by binding collective agreement.

Dismissal – Remedies – Compensation – Employer dismissing employee for using racist abuse after disciplinary tribunal

imposed lesser sanction – Employee entitled to compensation for procedural unfairness.

Dismissal – Remedies – Reinstatement – Arbitrator reinstating employee who twice referred to superior as “kaffir” –

Reinstatement inappropriate because continuation of employment relationship intolerable.

Practice and procedure – Peremption – Employer informing dismissed employee of decision not to appeal against

judgment confirming reinstatement, then changing mind and appealing – Although appeal perempted, matter heard in

interests of justice because of public importance of issue.

Source: www.Legalbrief.co.za

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BILL

TRADITIONAL COURTS

BILL, 2017

B1-2017

CRIMINAL PROCEDURE

AMENDMENT BILL, 2017

B2-2017

PROCLAMATIONS AND NOTICES

STATISTICS SOUTH

AFRICA

Consumer Price Index, Rate (Base Dec 2012 = 100):

December 2016: 6,8 published

GG 40593 (03.02.17)

PENSION FUNDS ACT 24

OF 1956

Notice of publication for comment of second draft of

proposed amendments to the Pension Funds

Regulations published

GG 40593 (03.02.17)

CUSTOMS AND EXCISE

ACT 91 OF 1964

Rules published in GN R1874 in GG 16860 of 8

December 1995 (DAR/166) amended with effect from 1

February 2017

GG 40594 (03.02.17)

PETROLEUM PRODUCTS

ACT 120 OF 1977

Amendment of regulations in respect of petroleum

products published with effect from 1 February 2017

Regulations in respect of the maximum retail price of

Liquefied Petroleum Gas supplied to residential

customers published with effect from 1 February 2017

Regulations in respect of the single maximum national

retail price for illuminating paraffin published with effect

from 1 February 2017

GG 40589 (31.01.17)

GG 40589 (31.01.17)

GG 40589 (31.01.17)

SMALL CLAIMS COURTS

ACT 61 OF 1984

Establishment of a small claims court for the area of

Delareyville published

GG 40593 (03.02.17)

OCCUPATIONAL HEALTH

AND SAFETY ACT 85 OF

1993

Lift, Escalator and Passenger Conveyor Regulations,

2010: Incorporation of Code of Practice for Existing

Goods Hoists Installations published

GG 40594 (03.02.17)

SPECIAL INVESTIGATING

UNITS AND SPECIAL

TRIBUNALS ACT 74 OF

1996

Referral of matters to existing special investigating unit in

respect of the affairs of the following bodies published:

Mopani District Municipality

KwaZulu-Natal Provincial Department of

Agriculture and Rural Development and Mjindi

Farming (Pty) Ltd

Harry Gwala District Municipality

GG 40594 (03.02.17)

GG 40594 (03.02.17)

GG 40594 (03.02.17)

COMPETITION ACT 89 OF

1998

South African Petroleum Industry Association (SAPIA):

Grant of conditional exemption extended to 31 December

2017

GG 40593 (03.02.17)

10

NATIONAL

ENVIRONMENTAL

MANAGEMENT ACT 107

OF 1998

Notice of adoption and publication of Mapungubwe

Cultural Landscape World Heritage Site Environmental

Management Framework published

GG 40593 (03.02.17)

POSTAL SERVICES ACT

124 OF 1998

Independent Communications Authority of South Africa

(ICASA):

Fees and charges for postal services published with

effect from 1 April 2017

Notice of intention to review exclusivity period of South

African Post Office SOC Ltd in terms of s. 16 (8) of the

Act published for comment

GG 40584 (30.01.17)

GG 40586 (31.01.17)

PROMOTION OF ACCESS

TO INFORMATION ACT 2

OF 2000

Description submitted in terms of s. 15 (1) by the

KwaZulu-Natal Provincial Government: Department of

Community Safety and Liaison published

GG 40593 (03.02.17)

INDEPENDENT

COMMUNICATIONS

AUTHORITY OF SOUTH

AFRICA ACT 13 OF 2000

Independent Communications Authority of South Africa

(ICASA): Notice of public hearings in respect of the

notice of intention to conduct an inquiry into number

portability regulations published for comment in GN 965

in GG 40232 of 26 August 2016 published

GG 40596 (03.02.17)

LANDSCAPE

ARCHITECTURAL

PROFESSION ACT 45 OF

2000

South African Council for the Landscape Architectural

Profession (SACLAP): Draft Rates Table for 2017/2018

published for comment

GG 40593 (03.02.17)

DISASTER MANAGEMENT

ACT 57 OF 2002

Classification of a local disaster in the O.R. Tambo

District Municipality in terms of s. 23 of the Act published

GG 40593 (03.02.17)

LOCAL GOVERNMENT:

MUNICIPAL FINANCE

MANAGEMENT ACT 56 OF

2003

Municipal Regulations on Minimum Competency Levels,

2007: Exemption of municipalities and municipal entities

from Regulations 15 and 18 published

GG 40593 (03.02.17)

NATIONAL

ENVIRONMENTAL

MANAGEMENT:

PROTECTED AREAS ACT

57 OF 2003

Proposed Cultural Heritage Survey Guidelines and

Assessment Tools for Protected Areas in South Africa

published for comment

GG 40593 (03.02.17)

FINANCIAL MARKETS ACT

19 OF 2012

Notice of publication of Exchange Rules of 4 Africa

Exchange (Proprietary) Limited published

Notice of approval of amendments to the JSE Derivatives

Rules and Directives published

GG 40593 (03.02.17)

GG 40593 (03.02.17)

PROVINCIAL LEGISLATION

Free State

Local Government:

Municipal Systems Act 32 of

2000

Phumelela Local Municipality: By-law on Municipal Land

Use Planning published with effect from the date that the

Spatial Planning and Land Use Management Act 16 of

PG 106 (03.02.17)

11

20133 comes into operation in the municipal area of the

Municipality

Gauteng

City of Johannesburg Tariffs of Charges for the financial year 1 July 2016 to 30

June 2017 as published under published LAN 1954 in PG

377 of 18 November 2016 amended

PG 14 (30.01.17)

Kwazulu-Natal

KwaZulu-Natal Road Traffic

Act 7 of 1997

Amendment to the Road Traffic Regulations as published

under PN 204 in PG 523 of 25 November 2010 published

with effect from 1 April 2017

PG 1785 (02.02.17)

Spatial Planning and Land

Use Management Act 16 of

2013

uMngeni Local Municipality: Notice of Draft Spatial

Development Framework published for comment

PG 1785 (02.02.17)

Local Government:

Municipal Structures Act 117

of 1998

uMgungundlovu District Municipality: Notice to designate

seven additional Executive Committee Members, Whip

and Chairperson of the Municipal Public Accounts

Committee (MPAC Chairperson) as full-time councillors

published

PG 1786 (02.02.17)

Mpumalanga

Division of Revenue Act 3 of

2016

Amendment of notice of allocations to municipalities for

the 2016/2017 financial year as published under PN 39 in

PG 2690 of 13 May 2016 published

PG 2778 (03.02.17)

Northern Cape

Spatial Planning and Land

Use Management Act 16 of

2013

Dawid Kruiper Local Municipality: Notice of intention to

compile an all-inclusive Spatial Development Framework

(SDF) and Land Use Management System (Zoning

Scheme, Land Development Procedures and Regulations

- LUMS) published

PG 2070 (30.01.17)

North-West

Local Government:

Municipal Systems Act 32 of

2000

City of Matlosana Local Municipality: Notice of intention to

amend the draft By-Law: Rules of Order published for

comment

PG 7728 (31.01.17)

Western Cape

Western Cape Provincial

Road Traffic Administration

Act 6 of 2012

Registration and Licence Fees for Motor Vehicles

Regulations, 2017 published and PN 152 in PG 7390 of

15 May 2015 repealed with effect from 1 April 2017

PG 7720 (23.01.17)

Sea-Shore Act 21 of 1935 Swellendam: Proposal to enter into leases with applicants

for the construction/legalisation of various structures

below the high-water mark of the Breede River published

for comment

PG 7721 (27.01.17)

12

SEMINARS

For more information contact the Knowledge Centre or visit www.lssalead.org.za

NAME OF SEMINAR DATES PRESENTER

CONSUMER PROTECTION

ACT

Pretoria 28 February 2017

Johannesburg 20 February 2017

Cape Town 22 February 2017

Durban 02 March 2017

Bloemfontein 09 March 2017

East London 13 March 2017

Port Elizabeth 17 March 2017

Trudie Broekmann

PENSION LAW Bloemfontein 31 March 2017

Durban 06 April 2017

East London 07 April 2017

Pretoria 10 April 2017

Johannesburg 11 April 2017

Cape Town 20 April 2017

Port Elizabeth 21 April 2017

To be confirmed

EVICTIONS & RENTAL Durban 23 March 2017

Cape Town 28 March 2017

Port Elizabeth 04 April 2017

Bloemfontein 11 April 2017

East London 25 April 2017

To be confirmed

DIGITAL FORENSICS Cape Town 08 May 2017

Durban 09 May 2017

Pretoria 15 May 2017

Johannesburg 16 May 2017

To be confirmed