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.

Abstract

This article provides an overview of some of the key regulatory developments in South Africa regarding the use of cryptocurrencies. Developments have to date been limited to government-issued notices warning the public of the risks associated with the use of cryptocurrencies, the legal status of cryptocurrencies within the wider paradigm of money, and a recent notice by the South African Revenue Services (‘SARS’) regarding the taxation of cryptocurrencies. A recent consultation paper published by the South African Reserve Bank (‘SARB’) proposed a three-phase regulatory approach to cryptocurrencies, starting with the licensing and registration of all cryptocurrency service providers. Albeit an incremental step in the right direction, this article argues that the regulatory developments have thus far been segmented and do not address the issues emerging from the use of cryptocurrency such as consumer protection, and reparation for loss and fraud. This article argues that although cryptocurrencies are not a widespread medium of exchange, their use in South Africa is gaining traction and calls for some level of regulatory oversight.

Abstract

This article considers the factors to be taken into account by arbitrators in determining whether or not they have jurisdiction to consider disputes referred to the Commission for Conciliation, Mediation and Arbitration as cases of unfair labour practices relating to the provision of benefits. While the Labour Appeal Court’s decision in Apollo Tyres South Africa (Pty) Ltd v CCMA sought to resolve the controversy surrounding benefits disputes, it is opined that the court erred in merging the enquiry into establishing whether the subject matter of the dispute constitutes a ‘benefit’ with the enquiry into fairness of the employer’s conduct. This article delineates these two enquiries, and provides a clear indication of the factors that must be considered by arbitrators in establishing whether the matter at issue constitutes a ‘benefits’ dispute as envisaged by section 186(2)(a) of the Labour Relations Act 66 of 1995. The article further seeks to provide a definition of ‘benefits’. In order to address these objectives, three fundamental principles which have dominated the inquiry by the judiciary in its attempt to resolve the uncertainties surrounding this area of the law, are discussed. These are: whether ‘benefits’ fall within the statutory definition of ‘remuneration’; whether a wide interpretation of the term ‘benefits’ will erode the divide between disputes of right and disputes of interest; and an evaluation of what constitutes a pre-existing benefit.

Abstract

The ‘freelancer migraine’ demonstrates that the long-standing and deeply embedded distinction between employment and independent contracting (self-employment) is challenged by the reality of the contemporary work environment which does not readily conform to such binary categories. The inescapable inference from the freelancer jurisprudence is that a significant number of the self-employed are in a position of economic dependence analogous to subordinate employees in that many, if not all, lack distinguishing features of entrepreneurship: ownership, autonomy, or control overproduction. Somewhere in between genuinely subordinate workers and genuinely independent entrepreneurs, a third category is emerging — that of workers who are legally independent (ie, self-employed) but economically dependent. The freelancer decisions provocatively raise fundamental questions about the opacities of form engendered by the fragile boundary between genuine entrepreneurial self-employment, dependent self-employment, and disguised employment. Rather than ushering in the fabled entrepreneurial independence, for many of the recruits into the ranks of freelancers, self-employment often heralds a descent into a state of precarity.

Abstract

The common-law actio pro socio has become part of the South African law of partnership as the action by which partners’ mutual rights and duties can be enforced. Although it is generally accepted that the actio pro socio can be instituted on the dissolution of the partnership, whether it can also be brought while the partnership still exists is less clear. In an attempt to bring greater clarity on the issue, this contribution defines the position of actio pro socio in South African law, and then takes the reader on a brief chronological journey through the South African case law which has crafted the country’s approach to this remedy. It emerges that the courts’ distinguish between bringing the actio pro socio while the partnership still exists and after its dissolution, and that it is indeed possible to institute the action during the existence of the partnership without automatically signalling its dissolution. This is also confirmed by Roman and Roman-Dutch law. Those instrumental in shaping the country’s law of partnership are therefore urged not to lose sight of the Roman and Roman-Dutch origins of this arm of the law in developing a generally empowering partnership law for South Africa.