What are the duties (if any) of retirement funds boards which are requested by employers to withhold members’ retirement benefits?

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

What are the duties (if any) of retirement funds boards which are requested by employers to withhold members’ retirement benefits?

Author: Clement Marumoagae

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg; Visiting Associate Professor, National University of Lesotho
Source: South African Law Journal, Volume 138 Issue 4, p. 818-843
https://doi.org/10.47348/SALJ/v138/i4a7

Abstract

This article evaluates an extraordinary remedy created by the legislature in s 37D(1)(b)(ii) of the Pension Funds Act 24 of 1956. This provision enables employers, who are able to satisfy retirement funds boards that they have suffered economic harm at the hands of their employees’ who are members of such retirement funds, to be compensated from liable members’ retirement benefits. It is demonstrated in this article that, by and large, the practical application of this section has been driven by the courts and the adjudicator, both of whom have interpreted this provision to include aspects that are not explicitly included in it, such as the retirement fund’s power to withhold benefits at the request of employers. It further demonstrates that there are several critical duties that are not explicitly described in any of the provisions of the Pension Funds Act which courts (and other tribunals) have held must be observed by boards when considering withholding members’ retirement benefits. In this article, these duties are critically evaluated with a view to recommending necessary amendments to s 37D(1)(b)(ii) of the Pension Funds Act.

The oath in labour arbitrations: Critiquing an arbitrator’s prerogative to swear in witnesses

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

The oath in labour arbitrations: Critiquing an arbitrator’s prerogative to swear in witnesses

Author: Dennis Matlou

ISSN: 1996-2177
Affiliations: Advocate, Limpopo Bar
Source: South African Law Journal, Volume 138 Issue 4, p. 844-880
https://doi.org/10.47348/SALJ/v138/i4a8

Abstract

Can the oath, affirmation, or admonishment really be selectively administered on some witnesses but not on others? Sworn testimony is one of the most important features of the law of evidence. It is central not only to the continental system of law but also the common-law system on which our South African law of evidence is based. Witnesses testifying in formal court proceedings are required by statute law to swear an oath or make an affirmation or be admonished as to the truth of their testimony. But why is the same requirement not obligatory in statutory labour tribunals, where presiding officers have the prerogative to decide if they require witnesses to be sworn in prior to testifying? In this article, I criticise this prerogative for being ill-conceived, and advocate for its amendment.

The legal status of human biological material used for research

The legal status of human biological material used for research

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

The legal status of human biological material used for research

Authors: Donrich W Thaldar & Bonginkosi Shozi

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Postdoctoral Scholar, University of California San Diego; Honorary Research Fellow, University of KwaZulu-Natal
Source: South African Law Journal, Volume 138 Issue 4, p. 881-907
https://doi.org/10.47348/SALJ/v138/i4a9

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Thaldar, DW & Shozi, B
The legal status of human biological material used for research
South African Law Journal, Volume 138 Issue 4, p. 881-907
https://doi.org/10.47348/SALJ/v138/i4a9

Abstract

Whether human biological material (‘HBM’) in the research context is susceptible of ownership is contested, yet under-investigated. This situation leads to legal uncertainty for local scientists and their international collaborators. This article presents a comprehensive analysis of the topic — investigating both common law and statutory law — and concludes that HBM in the research context is indeed susceptible of ownership. First, since the common law is dynamic, it should recognise the reality that HBM has become useful in the research context and should therefore treat HBM in this context as susceptible of being owned. This aligns with the general trend in comparative foreign case law. Secondly, since relevant statutes consistently use the legal-technical term ‘donation’ to denote a situation where HBM is provided by a research participant to a research institution for the purposes of research, the transfer of ownership in the donated HBM from the research participant to the research institution is a statutory requirement. This necessarily implies that HBM in the research context is indeed susceptible of ownership and, moreover, that HBM in the research context is owned by research institutions and not research participants.

Book Review: Richard Devlin & Sheila Wildeman (eds) Disciplining Judges: Contemporary Challenges and Controversies (2021)

by | Dec 7, 2021 | SALJ, SALJ V138 I4 2021

Book Review: Richard Devlin & Sheila Wildeman (eds) Disciplining Judges: Contemporary Challenges and Controversies (2021)

Author: Cora Hoexter

ISSN: 1996-2177
Affiliations: University of the Witwatersrand
Source: South African Law Journal, Volume 138 Issue 4, p. 908-912
https://doi.org/10.47348/SALJ/v138/i4a10

Abstract

None

Regulating against False Corporate Accounting: Does the Companies Act 71 of 2008 Have Sufficient Teeth?

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

Regulating against False Corporate Accounting: Does the Companies Act 71 of 2008 Have Sufficient Teeth?

Author: Etienne A Olivier

ISSN: 1996-2185
Affiliations: Lecturer in Law, Rhodes University
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 1 – 24
https://doi.org/10.47348/SAMLJ/v33/i1a1

Abstract

This article questions whether the enforcement mechanisms in the Companies Act 71 of 2008 (the Act) are adequate deterrents to financial reporting misconduct and whether they provide suitable sanctions to punish wrongdoers. The South African regulatory approach to company directors and financial reporting compliance places great emphasis on stakeholder protection and board accountability. By criminalising the publication of false financial statements, providing civil remedies to prejudiced stakeholders and robust protection for whistleblowers, empowering regulatory agencies to investigate allegations of accounting fraud and penalise transgressors, and by creating a broad net of liability for corporate decision-makers who allow or cause the publication of false financial reporting, the Act takes a firm stance that accounting fraud must be discouraged. The Act’s enforcement mechanisms in respect of financial reporting are commendable, but detection and enforcement will likely remain challenging unless a concerted effort is made to educate the public about financial reporting misconduct and its dangers, sufficient funding is provided to the regulatory agencies, consistent use is made of the available criminal, civil, and administrative remedies, and Parliament reconsiders the appropriateness of the maximum penalties for accounting fraud.

COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

COVID-19 and Employment Law in South Africa: Comparative Perspectives on Selected Themes

Authors: Lonias Ndlovu & Clarence Itumeleng Tshoose

ISSN: 1996-2185
Affiliations: Associate Professor & Dean: School of Law, University of Venda; Professor of Labour & Social Security Law, School of Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 25 – 55
https://doi.org/10.47348/SAMLJ/v33/i1a2

Abstract

Public health emergencies such as the novel coronavirus (COVID-19), which was elevated to a global pandemic, usually have severe implications for people in various spheres of life. For example, people’s employment and social welfare are affected. In this paper, the authors explore the possible implications of COVID-19 on the rights of employers and employees in South Africa. The issues that need to be considered include leave when employees elect to stay at home as a precautionary measure against contracting the coronavirus at work, the enforcement of employment contracts, employment security, workplace discipline, working hours, absenteeism, and the employer’s duty to provide the employees with a safe working environment. Using a doctrinal legal research method, the article provides an analysis of the applicable laws and cases from South Africa and related jurisdictions. The comparative content, analysis of legislation, case law, and sector-specific guidelines show that COVID-19 has and will continue to have a significant impact on the employment laws as reflected in different jurisdictions. Although employment law is generally jurisdiction-specific, there are many commonalities in the laws of different countries, both on the African continent and globally. It is also important to note that the existing employment laws need to be adjusted in order to accommodate the effects of the pandemic. For example, South Africa can draw valuable lessons from other jurisdictions on how to deal with employment matters during a pandemic, and therefore COVID-19 presents the country with an opportunity to develop both its employment laws and the common law.

I ‘Notice’ You ‘Noticing’ Me: A Critical Analysis of the Section 129 Notice of the National Credit Act, and Recomendations for the Implementation of a ‘Specialised’ Foreclosure Notice

by | Nov 30, 2021 | SAMLJ, SAMLJ V33 I1

I ‘Notice’ You ‘Noticing’ Me: A Critical Analysis of the Section 129 Notice of the National Credit Act, and Recomendations for the Implementation of a ‘Specialised’ Foreclosure Notice

Author: Ciresh Singh

ISSN: 1996-2185
Affiliations: Attorney of the High Court
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 56 – 88
https://doi.org/10.47348/SAMLJ/v33/i1a3

Abstract

Section 129 of the National Credit Act provides that a creditor may not commence any legal proceedings to enforce a credit agreement before first issuing a section 129(1)(a) notice to the debtor. Thus, in a foreclosure context, should a mortgagee wish to enforce a mortgage agreement, he must first comply with section 129(1) and deliver a section 129 notice to the mortgagor. Should this not be done, any ensuing foreclosure proceedings could potentially be excipiable. Accordingly, section 129 has been described as the gateway to litigation and compliance with this section is paramount for debt enforcement. Unfortunately, section 129 has been the subject of much criticism and uncertainty due to its ambiguous wording and the resulting interpretation. Much of the uncertainty relates to the way in which the notice must be delivered and the contents of the notice. With specific regard to foreclosure proceedings, section 129 fails to alert the debtor about his rights and remedies and fails to notify the debtor of the full consequences of foreclosure. Consequently, the section has been amended several times. Unfortunately, the amendments have not resolved all the loopholes in section 129, and some of these amendments have created more uncertainty and ambiguity. Case law has, however, provided some direction as to the interpretation of section 129. Despite the amendments and case law developments, uncertainty still exists, and clarity is urgently required in relation to the interpretation and application of section 129 during foreclosure proceedings. It is accordingly suggested that certainty can only be achieved by implementing a specialised ‘foreclosure notice’.