Abstract

The franchisor and franchisee generally use a franchise agreement to regulate their relationship. Franchise agreements set out the rights and obligations of the franchisor and franchisee. The franchise relationship is, therefore, governed through negotiated contract terms. The terms or clauses contained in franchise agreements may differ depending on the franchise network and the field of commerce within which they operate, but franchise agreements have certain core elements in common and usually contain generic terms or clauses. However, the franchise agreement itself can lead to conflict between the parties, such as that arising from poorly drafted clauses relating to territorial rights, renewal, payment, termination, restraint of trade or confidentiality. The franchise agreement itself is, therefore, limited in its ability to resolve the tensions and smooth the relationship between the parties, and is generally the cause of the tensions. The CPA and the Regulations require franchisors to include certain minimum information in the franchise agreements. This begs the question whether the CPA and the Regulations have made inroads into alleviating the tensions and areas of conflict resulting from the typical clauses contained in franchise agreements.

Abstract

In this contribution, I examine the scope of the employer’s role and liability in cases of sexual harassment. This is done in the context of the Liberty case, using this LAC judgment to flag fundamental lessons for other employers. These are lessons that employers must heed or, as recent events show, suffer substantial damage to their brand and business. First, I state the facts of the case and the legal issues that were dealt with by the LAC. Second, I briefly set out the statement of the case. Third, I examine the issue of credibility of the complainant in proving sexual harassment. Fourth, I analyse the legal approach to a complainant who does not report the alleged sexual harassment immediately, and whether any adverse inferences on the credibility of her version can be drawn from this delay. Fifth, I consider the LAC’s approach to determining the scope of the employer’s liability in terms of section 60 of the Employment Equity Act 55 of 1998. Lastly, I consider the general approach adopted by the LAC in its judgment.

Abstract

This article considers and critiques the right to maternity cash benefits offered by the UIA through a comparative analysis of the minimum international standards of the International Labour Organisation (ILO) and the regional standards set by the Southern African Development Community (the SADC). Drawing on this comparative analysis, the article identifies the strengths and shortcomings of the statutory mechanisms providing for maternity cash benefits for employees in South Africa.

Abstract

The article examines measures to identify and curb illicit international funds transfers in Africa. It considers formal means of payment and funds transfer (open account trading, documentary letters of credit, documentary bank collections, payment intermediaries and other (formal) funds transfer services), but also takes account of informal or emerging options of payment such as mobile-phone-based systems (eg, M-Pesa) and hawala. The article sheds light on important concepts such as ‘know-your-customer’ (KYC), ‘risk-based approach’, and the role of so-called ‘financial crime indicators’ in combatting illicit financial flows. Special emphasis is placed on Africa and Africa-specific issues. A mature and effective legislative and regulatory framework, and due diligence in the scrutiny of parties and transactions involving funds transfers, both locally and internationally, will be necessary to prevent or reduce the illicit flow of financial means and financial crime.

Abstract

This paper examines the duties of the sheriffs when executing writs of execution that could potentially indicate debtors’ insolvency. It demonstrates that the law is not clear regarding the sheriff’s duty to search for disposable property and the duty of care in relation to the manner in which the nulla bona returns should be prepared. While section 8(b) of the Insolvency Act clearly requires the debtor to indicate disposable property upon being requested to do so, nonetheless, the lengths to which the sheriff should go in order to satisfy him/herself that there is insufficient disposable property to satisfy the judgment debt if no disposable property has been indicated are not clear. This paper advances the argument that there is a need to provide legislative clarity on the duties of sheriffs when executing writs of execution that have the potential of leading to the debtor’s insolvency.

Abstract

Private security providers occupy a unique position in South African society with various formalities and requirements regulating the normal operation of the sector. These include, in addition to the Constitution of the Republic of South Africa, 1996, the Private Security Industry Regulation Act (the Act), the Code of Conduct issued under the Act, and the Private Security Industry Regulatory Authority. But private security providers also offer their services on a contractual basis which raises the question whether, and if so to what extent, private security providers may exclude or limit their liability in the provision of security services contractually.

The article examines whether exemption clauses in private security contracts counter or compliment the aims the Act sets out to achieve. It further considers whether exemption clauses in security contracts can survive the scrutiny of public policy. In considering the relevant provisions in the context of legislative requirements, public policy, and adherence to the objectives of the Act, a clear model emerges as to the type of contractual provisions that would contribute to validity in the exclusion, limitation, and allocation of liability in private security contracts.