A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

Authors: Delani Milton Mahhumane and Rehana Cassim

ISSN: 1996-2185
Affiliations: Former Postgraduate Assistant, Department of Mercantile Law, University of South Africa; Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 153 – 175
https://doi.org/10.47348/SAMLJ/v33/i2a1

Abstract

The Companies Amendment Bill, 2018 proposes certain changes to the social and ethics committee established in terms of s 72(4) of the Companies Act 71 of 2008 and reg 43 of the Companies Regulations, 2011. These new provisions are critically discussed in this article. Although some of these provisions are commendable, others give rise to certain concerns examined here: the lack of clarity in the functions of the social and ethics committee, the proposed amendments regarding its appointment and composition, and the ambiguity in the exemptions from the requirement to appoint this committee. This article also suggests further amendments to the current legislative provisions regarding this committee.

Investigating the Need to Introduce Compulsory Interest Arbitration as a Method to Prevent Lengthy Strikes in South Africa

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

Investigating the Need to Introduce Compulsory Interest Arbitration as a Method to Prevent Lengthy Strikes in South Africa

Author: Mlungisi Tenza

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Law, University of KwaZulu-Natal
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 176 – 199
https://doi.org/10.47348/SAMLJ/v33/i2a2

Abstract

The issue of lengthy strikes in South Africa has been a cause for concern since it destabilises the economy and can result in a loss of employment if it is not managed properly. A strike that takes too long to be resolved causes anger towards strikers, so creating a fertile environment for the eruption of violence between striking and non-striking workers. Damage to property and harm to civilians has been reported where striking workers have become violent during a strike. It appears that the existing remedies fail to curb long strikes and resultant violence, as unions and members continue with their action despite the granting of an order of interdict to stop the conduct. To solve the problem of long and consequently violent strikes, the article advocates the introduction of a compulsory interest arbitration in the labour relations law of South Africa. A compulsory interest arbitration will force the parties into arbitration once it is established that the strike has continued for an unreasonably long period without a solution. The use of compulsory interest arbitration will not be unique to South Africa, as other countries such as Canada and Australia use it in their labour relations systems – which helps them deal with long and possibly harmful or violent strikes. The article argues that lessons can be learned from these countries on how South Africa can deal with its own protracted strikes. The article further proposes that the LRA be amended to include a provision that will enable the Minister to intervene where the parties fail to reach agreement on disputed issues, and where it is in the public interest to do so. Introducing a compulsory interest arbitration in the labour relations system could limit the right to strike. However, the article argues that such a limitation may be justified in terms of s 36 of the Constitution.

The Job Security of Employees of Financially Distressed Companies

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

The Job Security of Employees of Financially Distressed Companies

Authors: Mieka E. Loubser and Christoph Garbers

ISSN: 1996-2185
Affiliations: BAccLLB candidate, Faculty of Law, Stellenbosch University; Associate Professor, Faculty of Law, Stellenbosch University
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 200 – 237
https://doi.org/10.47348/SAMLJ/v33/i2a3

Abstract

This contribution considers the legislative regulation of the job security (which boils down to preservation of employment) of employees in case of financial distress of a company. It juxtaposes the legislative regulation of four interrelated processes a company may engage in where it finds itself in financial distress, namely a voluntary internal restructuring (especially retrenchment), the transfer of the business or part of the business, business rescue and winding up. The legislative endeavour to preserve the job security of employees in all these processes is described and analysed. The discussion shows that room exists for companies to circumvent this protection and, to the extent that the protection does apply, that it remains difficult for employees to ultimately challenge the substance of decisions negatively affecting their job security. The main protection for employees in all these processes is procedural in nature and to be found in their rights to be informed of and consulted prior to decisions negatively affecting them. In this regard, business rescue is the most employee-friendly process. Participation in this process by employees, however, requires a fine balance as it may be self-defeating and lead to winding up and the permanent loss of jobs.

Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

Incompatibility as a Ground for Dismissal in Contemporary South African Law of Unfair Dismissal: A Review of Zeda Car Leasing and Other Recent Cases

Authors: Chuks Okpaluba and Tumo Charles Maloka

ISSN: 1996-2185
Affiliations: Research Fellow, Centre for Human Rights, University of the Free State; Associate Professor, Department of Mercantile and Labour Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 238 – 259
https://doi.org/10.47348/SAMLJ/v33/i2a4

Abstract

Although incompatibility is not listed along with incapacity, misconduct, or operational requirements in s 188(1)(a) of the Labour Relations Act 66 of 1995 as a ground for dismissal, in practice, it has been likened to all these statutorily laid down grounds to justify dismissal and abundant case law abound to bear witness to this assertion. A cursory reading of the cases of Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] ZALAC 4; Mgijima v MEC, Department of Education, Gauteng [2014] ZALCJHB 414; Edcon Ltd v Padayachee [2018] ZALCJHB 307 and Watson v South African Rugby Union (SARU) [2017] ZALCJHB 264 where incompatibility was approached respectively, from the prism of operational requirements; incapacity and misconduct; coupled with some recent cases discussed herein, clearly indicate that incompatibility has not only covered the field, it has also acquired a pride of place in contemporary South African law of unfair dismissal. Given these circumstances, the authors recommend the insertion into s 188(1)(a)(i) by way of an amendment such that the subsection will include a fair reason ‘related to the employee’s conduct, incapacity or ‘‘incompatibility’’ ’. This will definitely clear any lingering doubts surrounding the role of incompatibility and empower the arbitrator and the Labour Court to adjudicate with a level of clarity in the law of unfair dismissal.

The Regulation of False Advertising in South Africa: An Analysis of the Consumer Protection Act 68 of 2008 and Self-Regulation

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

The Regulation of False Advertising in South Africa: An Analysis of the Consumer Protection Act 68 of 2008 and Self-Regulation

Authors: Yeukai Mupangavanhu and Dominique Kerchhoff

ISSN: 1996-2185
Affiliations: Associate Professor, University of Western Cape; Former student, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 260 – 288
https://doi.org/10.47348/SAMLJ/v33/i2a5

Abstract

The Consumer Protection Act 68 of 2008 (CPA) regulates the provision of goods and services, the conclusion of consumer contracts as well as the promotion and marketing of goods and services. It also protects consumers from unscrupulous advertisers who use false and misleading advertisements to induce consumers to enter into contracts which they would otherwise not have concluded. This article seeks to critically analyse the legislative provisions relating to false, misleading, and deceptive advertising, and the seemingly accessible and efficient legal redress mechanism created under the CPA. Self-regulation by bodies such as the Advertising Regulatory Board, which is responsible for the regulation of the advertising industry in South Africa, is also discussed in detail. The article concludes that the co-existence of the CPA and self-regulation is pertinent to ensure that consumers are adequately protected from unscrupulous advertisements. This is because self-regulation provides an additional layer of protection to consumers. It is also argued that the forums created under the CPA should be given powers to declare certain promotional activities and advertisements unfair, unjust or unreasonable.

The Impact of Cryptocurrencies on the General Powers and Duties of South African Insolvency Practitioners

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

The Impact of Cryptocurrencies on the General Powers and Duties of South African Insolvency Practitioners

Authors: Sidasha Singh and Juanitta Calitz

ISSN: 1996-2185
Affiliations: Senior Associate, Cliffe Dekker Hofmeyr; Associate Professor, Department of Mercantile Law, University of Johannesburg
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 289 – 318
https://doi.org/10.47348/SAMLJ/v33/i2a6

Abstract

Within the context of the fourth industrial revolution, cryptocurrencies pose several challenges in the framework of corporate insolvency law. In South African law, no statutory framework vis-à-vis cryptocurrencies, such as Bitcoin, currently exists. This has however not prevented entities from engaging in the cryptocurrency market. The specific dilemma is that insolvency practitioners do not have legislative guidelines to assist them in dealing with the subject of cryptocurrencies. Consequently, international judicial developments must be consulted and analysed with the aim to close the gap between the legislature and Industry 4.0. This article unpacks the South African legal position on cryptocurrencies within the context of the statutory powers and duties of insolvency practitioners. It engages in an analysis of selected international courts cases that have dealt with the concept of cryptocurrencies within the context of insolvent estates and continues to make recommendations for the development of an efficient and effective regulatory model.