IMPORTANT NEWS

UNEMPLOYMENT INSURANCE AMENDMENT ACT SIGNED INTO LAW

President Zuma has assented to the Unemployment Insurance Amendment Bill. The Unemployment Insurance

Amendment Act, published in Government Gazette 40557, introduces amendments to the Unemployment Insurance Act

of 2001.

The Act intends, inter alia, to:

Provide for the extension of the unemployment insurance benefit to learners who are undergoing learnership

training and civil servants;

Adjust the accrual rate of a contributor’s entitlement to unemployment insurance benefits;

Finance employment services;

Extend a contributor’s entitlement to benefits under certain circumstances;

Provide for the process of application for maternity benefits;

Repeal some enforcement provisions;

Empower the Unemployment Insurance Board to provide in its constitution for the functions of regional appeals

committees; and

Introduce amendments to schedule 2 of the act so as to provide for the adjustment of the income replacement

rate.

During deliberations in parliament, an amendment was introduced to section 17 dealing with the income replacement

rate (IRR). The minimum IRR will not be able to be reduced below 38%.

Source: http://www.sabinetlaw.co.za/

PRESIDENT ZUMA SIGNS CHILDREN'S AMENDMENT ACTS

President Zuma has assented to the Children’s Amendment Bill and Children’s Second Amendment Bill.

The Children’s Amendment Act intends, inter alia, declaring people convicted of certain offences prohibited from working

with children, to give child offenders an opportunity to argue why they should not be included in the register, to provide

for the review of a decision to remove a child without a court order and to provide for child offenders to have their details

removed from the register.

The Children’s Second Amendment Act aims to, inter alia, extend the definition of adoption social worker, to have

decisions to remove children without a court order to temporary safe care reviewed within a day and to empower a

provincial MEC of social development to transfer a child from one form of alternative care to another. Both acts will come

into effect on a date still to be determined.

Source: http://www.sabinetlaw.co.za/

PRESIDENT ZUMA ASSENTS TO TAXATION LAWS AMENDMENT ACT

The Taxation Laws Amendment Bill and Tax Administration Laws Amendment Bill have been signed into law. The Acts

were published in Government Gazette 40562 and 40563 respectively. The acts contain most of the proposals

announced in the 2016 Budget speech and the 2016 Budget Review.

Some of the proposals covered in the Taxation Laws Amendment Act include aligning tax charging provisions to enable

the finance minister to change the tax rates in all tax acts administered by SARS, introducing measures to prevent tax

avoidance through the use of trusts, refinement of the taxation of retirement savings, addressing the avoidance of rules

Bulletin 6 of 2013 Period: 1 February 2013 to 8 February 2013 Bulletin 5 of 2017 Period: 20 January 2017 – 27 January 2017

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dealing with employee share incentive schemes, tightening up anti-avoidance rules dealing with cross border hybrid debt

instruments rules and extending the renewable energy incentive to include supporting infrastructure used in producing

renewable energy.

The Tax Administration Laws Amendment Act focuses on enhancing the independence and efficacy of the Tax Ombud,

introducing a commercial member to assist presiding officer in tax court, clarification of pending audit or investigation for

purposes of the voluntary disclosure relief and imposition of understatement penalty in general anti-avoidance rule

matters.

The Rates and Monetary Amounts and Amendment of Revenue Laws Bill was also assented to by president Zuma. The

Rates and Monetary Amounts and Amendment of Revenue Laws Act, published in Gazette 40560, provides for the

Special Voluntary Disclosure Programme (SVDP) in respect of offshore assets and income. The Rates and Monetary

Amounts and Amendment of Revenue Laws (Administration) Bill was also signed. The Act was published in Gazette

40561. Both acts contain a revised SVDP which provides an opportunity to non-compliant tax-payers to voluntarily

disclose offshore assets and income prior to the new global standard for automatic exchange of information between tax

payers coming into force in 2017. The proposed SVDP kicked in on 1 October 2016 and will end on 30 June 2017. One

amount as opposed to two will be calculated to be included in a taxpayer’s taxable income.

The amount will equal 40% of the highest value of the aggregate of all assets situated outside South Africa between 1

March 2010 and 28 February 2015 derived from undeclared income. This amount will be taxable in South Africa.

Taxpayers who disposed of any foreign held assets prior to 1 March 2010 will also be able to apply for relief under the

SVDP.

Source: http://www.sabinetlaw.co.za/

ROAD ACCIDENT FUND INCREASES CLAIMS LIMIT

The Road Accident Fund has announced a consumer price index (CPI)-related adjustment to the statutory limit in

respect of claims for loss of income and support as a result of a motor vehicle accident.

The amount referred to under section 17(4)(c) of the Road Accident Fund Act 56 of 1996 has been adjusted to R254 450

with effect from 31 January 2017. The announcement was published in Government Gazette 40577.

According to the notice, the purpose of the adjustment is to “counter the effects” of CPI inflation. No claim for loss of

income and support can exceed the latest limit. Limits are adjusted on a quarterly basis in line with inflation.

Source: http://www.sabinetlaw.co.za/

CRIMINAL PROCEDURE AMENDMENT BILL TABLED

The 2017 Criminal Procedure Amendment Bill tabled yesterday in Parliament and referred to the National Assembly’s

Justice and Correctional Services Committee seeks to respond to a 2015 Constitutional Court judgment declaring

section 77(6)(a)(i) of the Act invalid – ‘to the extent that it provides for the compulsory imprisonment of an adult accused

person and the compulsory hospitalisation or imprisonment of children’ in situations where intellectual disability or mental

illness prevents them from understanding criminal proceedings. This is according to a memorandum on the Bill’s objects,

which notes that the proposed new piece of legislation provides the courts with ‘a wider range of options’ in respect of

orders to be issued in such circumstances, notes Pam Saxby for Legalbrief Policy Watch.

With that in mind, clause 1(b) proposes that – pending the decision of a judge in chambers as prescribed in the Mental

Health Care Act, and where a bed in the designated psychiatric hospital is not immediately available – a court may direct

that the accused be detained in the ‘correctional health facility of a prison’ as ‘an involuntary health care user’. In the

light of a case heard during 2014 in the Western Cape High Court – which entailed scrutinising provisions in section 9 of

the Act for the composition of panels appointed to conduct enquiries into the mental condition or capacity of accused

persons – the Bill also seeks to ensure that a psychiatrist conducts and reports on the enquiry required when the offence

did not involve ‘serious violence’.

Source: Legalbrief, 2 February 2017

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DRAFT ERGONOMICS REGULATIONS OUT FOR COMMENT

Once in force, draft ergonomics regulations gazetted on Friday under the Occupational Health and Safety Act will apply

to any employer or a self-employed person carrying out workplace activities likely to expose others to ‘physical or

cognitive ergonomic risk’. They also have implications for those responsible for designing, manufacturing, erecting,

installing and supplying any ‘machinery, equipment or articles for use at work’, notes Pam saxby for Legalbrief Policy

Watch.

While the term ‘ergonomics risk factors’ is defined in the proposed new regulations as ‘actions in the workplace,

workplace conditions, or a combination thereof, which may cause or aggravate a work-related musculoskeletal-disorder’,

they are silent on the meaning of ‘cognitive ergonomic risk’.

Among other things, it is mooted that a risk assessment should be conducted prior to the commencement of ‘any work

which may expose employees to ergonomics risk factors’ – and pre-placement training provided in accordance with

prescribed criteria. Employees exposed, or to likely to be exposed, to risk would be obliged to: comply with the ‘lawful

instructions’ received; report plant defects timeously; immediately report any symptoms of a disorder; and cooperate with

employers in determining the level of risk entailed and the remedial actions required. Other issues addressed include:

risk control; maintaining the measures entailed; the medical surveillance of employees exposed to high ergonomics risk

factors; and record keeping. Interested and affected parties have 90 days to comment.

Source: Legalbrief, 30 January 2017

RECOMMENDED READING

Managing ill health situations, by Barney Jordaan, LabourWise, www.polity.org.za, January 2017

Paternity leave a step closer to becoming law, by Alex Ferreira & Jan Norval, ENSafrica, www.polity.org.za, January

2017

The wait is over: This is what the Special Voluntary Disclosure Programme will offer, by Louis Botha, Cliffe Dekker

Hofmeyr, www.polity.org.za, January 2017

The Significant Value of Mitigating Circumstances in Misconduct Cases Involving Gross Dishonesty, by Magate

Phala, ,www.polity.org.za, January 2017

Does a change of the terms of a share constitute a new “date of issue” for purposes of section 8E of the Income

Tax Act?, by Carmen Gers & Chris de Bruyn, ENSafrica, www.polity.org.za, February 2017

OTHER JUDGMENTS

UNREGISTERED, INDEPENDENT PE SCHOOL FORCED TO CLOSE

The Eastern Cape High Court (Grahamstown) effectively shut down Port Elizabeth independent school EduPlanet

because it remains unregistered. A Daily Dispatch report says the provincial education department brought the urgent

High Court interdict to stop EduPlanet from operating the unregistered independent school as a vital first step in its battle

against unregistered schools. However, in the interest of what it described as the children’s constitutional right to an

education, the school asked the High Court to suspend the operation of any interdict against it for 12 months to give it an

opportunity to complete the registration process. But Judge Clive Plasket refused to do so, questioning whether he could

suspend an interdict in circumstances in which the conduct complained of amounted to an ongoing criminal offence. He

said the SA Schools Act was clear that an independent school must be registered with the provincial education

department. Plasket said the school believed it could operate with impunity despite not having filed an application for

registration and despite the property it operated from not being zoned for education purposes. He said the pupils had, in

effect, been enticed to register and their parents had been required to pay substantial amounts of money under false

pretences. Plasket ordered EduPlanet to pay the costs of the department’s application on a punitive scale to show the

court’s displeasure with its conduct.

Source:Legalbrief, 2 February 2017

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COUPLE ORDERED TO REPAY R43M

Entrepreneur and pastor Lonwabo Mahlati is R43m down on his fortune after the Eastern Cape High Court (East

London) granted summary judgment against him. Judge John Smith said there seemed little doubt that Mahlati and his

wife had misappropriated the money from the business’ liquidation account. A Daily Dispatch report says the family

business New Creation Construction was placed under provisional liquidation in April. The joint liquidators claim the

R43m – which was due to the close corporation in liquidation – was instead diverted by Mahlati to another bank account

created by him with the business’ name. Two different amounts – R39m and R4m – ended up in his Absa bank account

with the name New Creation Construction, instead of the actual close corporation account. Smith said it had been

alleged by the joint liquidators that Mahlati and his wife received the money by diverting payments made to the close

corporation in liquidation into the Absa account controlled by Mahlati. He granted the joint liquidators summary judgment

against the couple in the amount of R43m with interest.

Source:Legalbrief, 30 January 2017

BUSINESSWOMAN GETS RESTAURANT BACK AFTER COURT ACTION

A Limpopo businesswoman has won a court battle against the provincial Transport Department after it shut down her

restaurant on the premises of the Polokwane International Airport almost two years ago. A TimesLIVE report says Ipfi

Maumela’s woes began when the restaurant was raided by police and officials from the department amid allegations that

she was operating without a liquor licence‚ owed R1.9m in rent and hired undocumented foreign nationals. Maumela

said the department would have to pay her for the earnings lost during the time when the business was not operating.

She said monies owed to her still had to be calculated based on bank statements reflecting how much profit she was

making. She said winning the case also proved that the department had been misled by Gateway Airports Authority

Limited, a parastatal tasked with running the Polokwane International Airport. Maumela said none of the allegations

against her had been found to be true including that she was operating a business on a national key point without

permission.

Source:Legalbrief, 2 February 2017

DOCTOR KILLED BOY (2) WITH INCORRECT DOSAGE

An anaesthetist who caused the death of a small boy by administering an incorrect drugs dosage has been sentenced to

four years imprisonment, suspended for five years. A Beeld report says Dr Deon Kotzé will also have to serve 18 months

of community service in a provincial hospital in Sasolburg and undergo a formal refresher course in paediatric life

support at an academic institution. He admitted in the Vereeniging Regional Court that he administered the incorrect

dosage to Juandré Bennett (2) in the Vereeniging MediClinic in 2012. Magistrate Retha Willemse said the sentence

should enable Kotzé to ‘regain his self-respect’ and to pass on his knowledge by training young doctors as part of his

sentence. The boy's parents are proceeding with civil action against Kotzé.

Source:Legalbrief, 27 January 2017

NURSE GUILTY OF ASSAULTING FRAIL CARE PATIENT (84)

A nurse who kicked, slapped and elbowed an elderly woman (84) at the luxury Lily Kirchmann home for the frail in East

London has been found guilty on five counts of assault. A News24 report notes that Hope Shepherd's daughter Bernice

Robertson had hidden a camera in her mother's room because she suspected that she was being abused. In the

recordings, Ncediswa Mkenkcele can be seen using her fists and elbows on the woman and slapping her. At one stage,

Mkenkcele also kicks the elderly woman in the stomach. The assaults, on 3 and 23 February 2015, were captured on a

secret camera in a television set at the home. The video material also shows Mkenkcele beating Shepherd against the

head with a deodorant spray can and spraying the deodorant into her face and into her windpipe. Magistrate Ignatius

Kitching, of the East London Magistrate's Court, found Mkenkcele guilty after studying the videos. Robertson believes

her mother died as a result of the abuse. Mkenkcele will be sentenced on 30 March. She is out on bail.

Source:Legalbrief, 27 January 2017

APPEAL COURT CONFIRMS MINISTER FLOUTED THE LAW

The Minister of Labour flouted the law when she dismissed John Crouse as Registrar of Labour Relations, the Labour

Appeals Court has found. Die Burger reports that the court confirmed the Labour Court’s judgment of 2015 that her

action was unlawful. Minister Mildred Oliphant fired Crouse after he failed to inform her about steps he had taken against

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Cosatu-affiliated trade union Ceppwawu to have it placed under administration when it failed to submit financial reports

for a third year. When Crouse was fired, the steps against the union were abandoned. A full Bench of the Appeals Court

held that Oliphant did not have ‘legally acceptable grounds’ to demand accountability from Crouse or to interfere with his

work. He was also dismissed unfairly without a hearing. Her appeal was dismissed with costs.

Source:Legalbrief, 30 January 2017

COURT SETS ASIDE DISMISSAL OF EDITOR

The Johannesburg Labour Court has set aside the dismissal of The Citizen’s editor, Steve Motale, who was fired last

year, notes a Mail & Guardian Online report. While Motale will be reinstated, the court did not order for his suspension to

be lifted and he is still liable to face disciplinary charges. Motale was suspended in November, pending the outcome of

an internal disciplinary process, The Citizen’s publisher Eureka Zandberg said at the time. He was accused of failing to

follow agreed-upon editorial procedures and not upholding his editorial duties, which had led to an irretrievable

breakdown in the relationship of trust and confidence between the editor and the publisher of the newspaper. Motale

approached the Labour Court on the basis that his dismissal was a violation of ‘editorial independence’ and did not

conform to the disciplinary code of The Citizen. After the ruling he said: ‘I have always maintained I was innocent and

this was a glaring interference with editorial by management. They wanted to dictate which stories I could run.’ In a

statement, The Citizen lawyers noted the court had not ordered Motale's suspension be uplifted. 'The net result is that

the editor will now face disciplinary charges in terms of The Citizen’s disciplinary code.

Source:Legalbrief, 20 January 2017

INDUSTRIAL LAW REPORTS – JANUARY 2017 REINSTATEMENT

In SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others (at 97) the employer

conceded that the SARS Commissioner had not been allowed to substitute the disciplinary chairperson’s sanction and it

did not challenge the CCMA commissioner’s finding that the dismissal of the employee had been unfair, but it argued

that the CCMA commissioner’s order of reinstatement was unreasonable because the employee, who had called his

superior a ‘kaffir’, was guilty of racism and because his continued employment would be intolerable. The Constitutional

Court agreed with SARS. It found that the CCMA commissioner had failed to consider the provisions of s 193(2) of the

LRA 1995 and key factors relevant to a decision whether to reinstate. Having noted that the use of the word ‘kaffir’ is ‘the

worst of all racial vitriols a white person can ever direct at an African in this country’, the court found that it was not

necessary for SARS to explain how that extremely abusive language could break the trust relationship and render the

employment relationship intolerable — where such injurious disregard for human dignity and racial hatred is spewed by

an employee against his colleagues in a workplace, that ordinarily renders the relationship between the employee and

the employer intolerable. The court found further that, as an organ of state, SARS played a special role in the fight

against and the eradication of racism in the workplace and in society. The court was therefore satisfied that no

reasonable arbitrator could have ordered reinstatement, and ordered instead that the employee be awarded

compensation equivalent to six months’ salary for his unfair dismissal.

DISMISSAL — INSUBORDINATION

Where two employees, both shop stewards, had locked the gates to the employer’s premises and refused to comply with

a reasonable instruction to open the gates, the Labour Appeal Court confirmed that this amounted to gross

insubordination as the employees had deliberately and maliciously defied a lawful and reasonable instruction. Their

dismissal was upheld (SA Municipal Workers Union & others v eThekwini Municipality & others at 158). Similarly, where

an employee who lost his position as full-time health and safety shop steward refused to return to his work position

despite repeated instructions from the employer to do so, the Labour Court found that the employee’s deliberate

continued refusal to comply with the instructions amounted to gross insubordination. His dismissal was upheld (Glencore

Operations SA (Pty) Ltd (Lion Ferrochrome) v National Union of Mineworkers on behalf of Maripane & others at

181).

DISMISSAL — UNPROTECTED STRIKE

In National Union of Mineworkers & others v Power Construction (Pty) Ltd (at 227) the Labour Court found that

employees who refused to work, first, because of ‘inclement weather’, and later, because they were not paid for the time

not worked were on an unprotected strike and that their dismissal was both substantively and procedurally fair. The court

referred to a statement made by the union representative that the employees were not striking as they were ‘not

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damaging people’s property, ... holding sticks and stuff like that’. The court commented that the statement was indicat ive

of how the union approached the matter — because the strike was not violent, it deemed dismissal to be too harsh a

sanction. The court noted that it was shocking that a trade union organiser with years of experience equated a strike to

wilful damage to property.

DISCIPLINARY PENALTY — INTERFERENCE WITH PENALTY HANDED DOWN BY CHAIRPERSON

The Labour Court has found, in Minister of Justice & Constitutional Development v General Public Service

Sectoral Bargaining Council & others (at 213), that the Public Service Act (Proc 103 of 1994) and the public service

disciplinary code give the chairperson of a disciplinary hearing the power to make a final decision on the sanction to

impose on an employee. The employer, therefore, has no power to interfere in the sanction imposed by the chairperson.

In this matter the employee and the employer’s representative entered into a plea agreement which the disciplinary

chairperson gave effect to. Thereafter the employer changed the sanction of suspension for three months without pay to

dismissal. The court found that there was no reason to interfere with the bargaining council arbitrator’s finding that the

substitution of the sanction was unlawful and invalid.

In Central University of Technology v Kholoane & others (at 167), the bargaining council arbitrator found that the

university could change the sanction imposed by the disciplinary chairperson, but that the alteration of the sanction from

a final written warning to dismissal was unfair. The Labour Court agreed with the arbitrator. It found that, where the

employer has a discretion to change the sanction imposed by a disciplinary chairperson, this discretion is not unfettered

— it is a tool to correct a sanction where the sanction imposed by the disciplinary chairperson is wholly or shockingly

inappropriate. In this matter, where the sanction imposed by the disciplinary chairperson was listed as an alternative to

dismissal, it could not be viewed as inappropriate.

In Opperman v Commission for Conciliation, Mediation & Arbitration & others (at 242), where the sanction of a

final written warning imposed by the disciplinary chairperson was changed on appeal to dismissal, the Labour Court

confirmed that an appeal chairperson can only increase the sanction where he or she is empowered to do so in terms of

the disciplinary code. The court found further that even if he or she has such power, the appeal chairperson must adhere

to the audi alteram partem principle and give the employee the opportunity to make submissions why a harsher penalty

should not be imposed.

In Moshoeshoe and Neotel (Pty) Ltd (at 252) the employer had also changed the penalty of a final written warning

imposed by the disciplinary chairperson to dismissal. The CCMA commissioner found that the chairperson had final

decision-making authority in terms of the disciplinary code, and the employer was not entitled to substitute the sanction.

The commissioner, however, rejected the employee’s application for a declaratory order that the employer’s conduct was

invalid and unlawful. He found that, as the LRA 1995 did not contemplate invalid or unlawful dismissals, the CCMA had

no power to grant such an order or to grant reinstatement.

SHOP STEWARDS — STATUS

In SA Municipal Workers Union & others v eThekwini Municipality & others (at 158) the Labour Appeal Court

observed that shop stewards are not empowered to dominate and bully management. Being affiliated to organised

labour does not detract from the fact that they remain subordinate to their employer; are bound by the same rules and

conditions of employment as other employees, and are obliged to obey and comply with all lawful and reasonable

instructions given by the employer.

PRESCRIPTION

In Food & Allied Workers Union on behalf of Gaoshubelwe & others v Pieman’s Pantry (Pty) Ltd (at 132) the

Labour Appeal Court confirmed that the Prescription Act 68 of 1969 applies to all litigation under the LRA 1995.

LABOUR COURT — JURISDICTION

The Labour Court has confirmed, in Farre v Minister of Defence & others (at 174), that where the real dispute between

a public service employer and employee, as set out in the employee’s pleadings, relates to the interpretation and

application of a collective agreement, the court does not have jurisdiction in terms of s 158(1)(h) of the LRA 1995 to

review the decision of the employer. The dispute must be arbitrated.

SETTLEMENT AGREEMENT

The Labour Court has found that, when an arbitrator is approached to make a settlement agreement an award in terms

of s 142A of the LRA 1995, he or she must determine whether the terms of the agreement are competent and proper to

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be made an arbitration award. Furthermore, the arbitrator may not exceed his or her power in terms of the LRA by

making an agreement which exceeds the legal limitations imposed by the LRA an arbitration award. In this matter the

settlement agreement provided that the municipality would pay an amount equivalent to five years’ salary to an

employee who had voluntarily resigned after ten months’ employment. The court found that the terms of the agreement

were ‘absurd’ and that s 194 of the LRA limited the amount of compensation that the arbitrator was competent to award.

It set aside the award making the settlement agreement an arbitration award (Lekwa Local Municipality v SA Local

Government Bargaining Council & others at 190).

RESIDUAL UNFAIR LABOUR PRACTICE — BENEFITS

In Mputle and Neotel (Pty) Ltd (at 263) a CCMA commissioner found that the employee had failed to prove that the

employer exercised its discretion unfairly in relation to her rating for the purposes of a performance bonus and salary

increase. He found, however, that the employer had not adhered to its own policy on performance management, and

awarded the employee limited compensation for the procedural unfairness.

PRACTICE AND PROCEDURE

In Commercial Stevedoring Agricultural & Allied Workers Union on behalf of Dube & others v Robertson Abattoir (at

121) the Labour Appeal Court set aside a Labour Court order granting the respondent employer absolution from the

instance where it found that the applicant union had provided sufficient evidence which raised a credible possibility of an

automatically unfair dismissal and the court was therefore obliged to consider all the evidence in order to determine

whether the dismissal took place and for what reason.

Where an employee had litigated unsuccessfully against his former employer in four separate courts and failed to satisfy

five separate costs orders against him, the Labour Court declined to invoke the provisions of the Vexatious Proceedings

Act 3 of 1956 and declare the employee a vexatious litigant. It did, however, order that the employee could not pursue

further litigation against his former employer until the costs orders were satisfied and without putting up security for

further costs (Maseko v Commission for Conciliation, Mediation & Arbitration & others at 203).

QUOTE OF THE MONTH:

Mogoeng CJ in SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others (2017) 38

ILJ 97 (CC) on the use of the word ‘kaffir’ in the workplace:

‘The use of this term captures the heartland of racism, its contemptuous disregard and calcu lated dignity-nullifying effect

on others. It bears repetition that [the employee’s] utterances constitute a racial minefield in the workplace ever-ready to

explode at the slightest provocation. Conduct of this kind needs to be visited with a fair and just but very firm response

by this and other courts as custodians of our constitutional democracy, if we ever hope to arrest or eliminate racism.

Mollycoddling cannot cut it.’

Source: www.Legalbrief.co.za

BUTTERWORTHS CONSTITUTIONAL LAW REPORTS –JANUARY 2017

DEPARTMENT OF TRANSPORT AND OTHERS v TASIMA (PTY) LTD 2017 (1) BCLR 1 (CC)

Administrative law – decision of functionary – collateral challenge to validity of decision – whether available to organ of

State – an organ of State, like any other party, must challenge an administrative decision in order to escape its effects –

it may do so reactively, provided its reasons for doing so are sound, and there is no unwarranted delay.

RURAL MAINTENANCE (PTY) LTD AND ANOTHER v MALUTI-A-PHOFUNG LOCAL MUNICIPALITY 2017 (1)

BCLR 64 (CC)

Labour law – employment contract – transfer of contract of employment – transfer of business as going concern –

section 197 of the Labour Relations Act 66 of 1995 – definition of business – section 197(1)(a) – business including the

whole or a part of any business, trade, undertaking or service – notion of transfer of a service as distinct from transfer of

a business – comparable foreign democratic jurisdictions having developed two different tests for transfers, one for

transfer of a business or undertaking and another for service provision changes – contention that such development

necessitating the reformulation or development of RSA law on the issue – Constitutional Court rejecting argument – no

reason for RSA law to follow suit.

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Labour law – employment contract – transfer of contract of employment – transfer of business as going concern –

section 197 of the Labour Relations Act 66 of 1995 – outsourcing transaction – municipality concluding outsourcing

agreement in respect of supply of electricity – contractor taking over certain employees and assets of municipality –

contractor incurring considerable expense in expanding the operation and increasing its workforce – municipality

thereafter seeking to resile from the contract on the basis that it was void ab initio by reason of a lack of authority –

contractor handing back to the municipality the infrastructure it had received from it and requiring municipality to take

transfer of the contractor’s workforce that had been involved in performing its obligations under the outsourcing

agreement, on the basis that section 197 engaged by the circumstances that had arisen – Labour Appeal Court holding

that contractor failed to discharge onus to show that the transfer of a business as a going concern had occurred –

Constitutional Court refusing leave to appeal.

WICKHAM v MAGISTRATE, STELLENBOSCH AND OTHERS 2017 (1) BCLR 121 (CC)

Criminal procedure – plea – plea and sentence agreements – section 105A of the Criminal Procedure Act 51 of 1977 –

victim participation in plea and sentence agreement – Victims’ Charter adopted in terms of section 234 of the

Constitution – right to offer information during the criminal investigation and the trial, right to participate (if necessary and

where possible) in criminal justice proceedings by attending the trial and sentencing proceedings, and, where

appropriate, making a statement to the court or giving evidence during the sentencing proceedings to bring the impact of

the crime to the court’s attention – victim’s right to participation in relation to a plea and sentencing agreement conferred

by the Victims’ Charter must be read with section 105A of the Criminal Procedure Act which deals expressly with the

rights of the victim to participate in the process – provisions of section 105A(7)(b)(i)(bb) making it clear that the exercise

of the victim’s right to place evidence before the court (either through a statement or by oral evidence) remains wholly

within the court’s discretion.

Source: www.Legalbrief.co.za

BILL

DRAFT TRADITIONAL

COURTS BILL, 2016

Published for comment

PROCLAMATIONS AND NOTICES

MERCHANT SHIPPING ACT

57 OF 1951

Merchant Shipping (Radio Installations) Amendment

Regulations, 2016 published

GG 40568 (23.01.17)

INCOME TAX ACT 58 OF

1962

Agreement between the Government of the Republic of

South Africa and the Government of the Republic of

Singapore for the avoidance of double taxation and the

prevention of fiscal evasion with respect to taxes on

income published with effect from 16 December 2016

Agreement between the Government of the Republic of

South Africa and the Government of the Republic of

Zimbabwe for the avoidance of double taxation and the

prevention of fiscal evasion with respect to taxes on

income published with effect from 1 December 2016

GG 40577 (27.01.17)

GG 40577 (27.01.17)

CUSTOMS AND EXCISE

ACT 91 OF 1964

Schedule 1 amended with effect from 1 February 2017

Schedule 1 amended

Schedule 3 amended

Schedule 3 amended with effect from 1 February 2017

Schedule 4 amended with effect from 1 February 2017

GG 40582 (27.01.17)

GG 40582 (27.01.17)

GG 40578 (27.01.17)

GG 40582 (27.01.17)

GG 40582 (27.01.17)

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Schedule 6 amended with effect from 1 February 2017

Schedule 8 amended with effect from 1 February 2017

Rules published in GN R1874 in GG 16860 of 8

December 1995 amended with effect from 1 February

2017

GG 40582 (27.01.17)

GG 40582 (27.01.17)

GG 40582 (27.01.17)

MEDICINES AND RELATED

SUBSTANCES ACT 101 OF

1965

Regulations relating to a transparent pricing system for

medicines and scheduled substances: Amendment

regulations regarding dispensing fee for pharmacists

published

Draft General Medicine Regulations published for

comment

GG 40577 (27.01.17)

GG 40577 (27.01.17)

HEALTH PROFESSIONS

ACT 56 OF 1974

Regulations Relating to the Qualifications for Registration

of Basic Ambulance Assistants, Ambulance Emergency

Assistants, Operational Emergency Care Orderlies and

Paramedics, 2016 published

GG 40577 (27.01.17)

CRIMINAL PROCEDURE

ACT 51 OF 1977

Designation of correctional facilities in terms of s. 159B

(2) published

GG 40578 (27.01.17)

BANKS ACT 94 OF 1990 Withdrawal of consent for Banif-Banco Internacional do

Funchal, S.A. to maintain a representative office of a

foreign institution in the Republic of South Africa

published with effect from 12 December 2016

Withdrawal of consent for Banco Nacional de

Desenvolvimento Econômico E Social to maintain a

representative office of a foreign institution in the

Republic of South Africa published with effect from 30

November 2016

GG 40577 (27.01.17)

GG 40577 (27.01.17)

OCCUPATIONAL HEALTH

AND SAFETY ACT 85 OF

1993

Draft Ergonomics Regulations published for comment GG 40578 (27.01.17)

LABOUR RELATIONS ACT

66 OF 1995

Motor Industry Bargaining Council (MIBCO): Application

for the renewal of period of operation and extension to

non-parties of Main Agreement published for comment

GG 40578 (27.01.17)

MARKETING OF

AGRICULTURAL

PRODUCTS ACT 47 OF

1996

National Agricultural Marketing Council (NAMC):

Invitation to register as a directly affected group in terms

of the Act published

Application for the establishment of a breeding and

technology levy on soybeans published for comment by

directly affected groups in the oilseeds industry

GG 40577 (27.01.17)

GG 40577 (27.01.17)

ROAD ACCIDENT FUND

ACT 56 OF 1996

Adjustment of statutory limit in respect of claims for loss

of income and loss of support published with effect from

31 January 2017

GG 40577 (27.01.17)

REMUNERATION OF

PUBLIC OFFICE BEARERS

Determination of salaries and allowances of the Deputy

President, Ministers and Deputy Ministers published with

GG 40569 (24.01.17)

10

ACT 20 OF 1998 effect from 1 April 2015 [sic] and Proc 9 in GG 39750 of

26 February 2016 repealed

Determination of salaries and allowances of members of

the National Assembly and permanent delegates to the

National Council of Provinces published with effect from

1 April 2016 and Proc 11 in GG 39750 of 26 February

2016 repealed

Determination of the upper limit of salaries and

allowances of premiers, members of the Executive

Councils and members of the Provincial Legislatures

published with effect from 1 April 2016 and Proc 10 in

GG 39750 of 26 February 2016 repealed

GG 40569 (24.01.17)

GG 40569 (24.01.17)

NATIONAL WATER ACT 36

OF 1998

Limiting the use of water in terms of para. 6 (1) (i) of

Schedule 3 to the Act for irrigation, domestic and

industrial purposes from the Tosca Molopo Groundwater

Aquifer published

GG 40577 (27.01.17)

NATIONAL

ENVIRONMENTAL

MANAGEMENT ACT 107

OF 1998

Department of Trade and Industry (DTI): Fourth Edition

Environmental Implementation Plan 2015-2020

published

GG 40577 (27.01.17)

PUBLIC FINANCE

MANAGEMENT ACT 1 OF

1999

Exemption of the Industrial Development Corporation of

South Africa Limited (IDC) from ss. 51 (1) (g) and 54 (2)

of the Act (i.e. domestic transactions below a rand value

of R250 million) for three years published

GG 40574 (26.01.17)

PROMOTION OF ACCESS

TO INFORMATION ACT 2

OF 2000

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

Department of the National School of

Government

Eastern Cape Provincial Government:

Cooperative Governance and Traditional Affairs

Department of Telecommunications and Postal

Services

Department of Science and Technology: Section 14

manual published

GG 40577 (27.01.17)

GG 40577 (27.01.17)

GG 40577 (27.01.17)

GG 40577 (27.01.17)

SOUTH AFRICAN

WEATHER SERVICE ACT 8

OF 2001

Proposed regulations regarding fees for the provision of

aviation meteorological services published for comment

GG 40572 (25.01.17)

ELECTRONIC

COMMUNICATIONS ACT 36

OF 2005

Independent Communications Authority of South Africa

(ICASA):

Applications for the transfer of licences from Huge

Telecom (Pty) Ltd to Huge Group Limited not Approved

Request for amendment of WBS universal service and

access licence obligations published for Comment

Request for amendment of public payphone universal

service obligations by Telkom SA SOC Limited published

for comment

GG 40571 (25.01.17)

GG 40575 (26.01.17)

GG 40575 (26.01.17)

11

Request for amendment of Sentech SOC Ltd universal

service and access licence obligations published for

comment

GG 40575 (26.01.17)

CRIMINAL PROCEDURE

AMENDMENT ACT 65 OF

2008

Date of commencement of s. 1 in respect of the

magisterial subdistricts of:

Ga Rankuwa: 31 January 2017

Sebokeng: 31 January 2017

Soweto: 31 January 2017

Date of commencement of s. 1 in respect of the

magisterial districts of Gordonia and Namaqualand: 24

February 2017

Inserts ss. 159A-D in the Criminal Procedure Act 51 of

1977

GG 40578 (27.01.17)

GG 40578 (27.01.17)

CIVIL AVIATION ACT 13 OF

2009

Notice of publication for comment of proposed

amendment to the Civil Aviation Regulations, 2011

published

GG 40581 (27.01.17)

PROVINCIAL LEGISLATION

Free State

Local Government:

Municipal Property Rates

Act 6 of 2004

Nala Local Municipality: Resolution levying property rates

for the financial year 1 July 2016 to 30 June 2017

published with effect from 1 July 2016

PG 104 (27.01.17)

Gauteng

Gautrain Management

Agency Amendment Bill,

2016

Together with the memorandum on the objects of the Bill

published for comment

PG 104 (25.01.17)

Limpopo

National Environmental

Managemement: Protected

Areas Act 57 of 2003

Declaration of Olifants West Nature Reserve published PG 2781 (27.01.17)

Mpumalanga

Mpumalanga Economic

Regulator Bill, 2017

Published for comment PG 2775 (27.01.17)

Spatial Land Use

Management Act 16 of 2013

Emalahleni Local Municipality: Notice of commencement

of the Emalahleni Municipal Planning Tribunal published

PG 2773 (27.01.17)

North-West

Constitution of the Republic

of South Africa, 1996 and

Local Government:

Municipal Systems Act 32 of

2000

Maquassi Hills Local Municipality: By-laws relating to the

Rules of order published

PG 7727 (24.01.17)

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

OPINION WRITING Port Elizabeth 22 May 2017

East London 23 May 2017

Durban 29 May 2017

Cape Town 30 May 2017

Johannesburg 05 June 2017

Pretoria 06 June 2017

Bloemfontein 09 June 2017

To be confirmed