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.

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’.