The role, relevance and effect of the strike in the 4IR Age of Auto and Robots: A South African Perspective

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

The role, relevance and effect of the strike in the 4IR Age of Auto and Robots: A South African Perspective

Authors: Nozipho Gwala & Lux Kwena Kubjana

ISSN: 1996-2185
Affiliations: LLB student, University of South Africa; Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 482 – 494
https://doi.org/10.47348/SAMLJ/v36/i3a7

 Abstract

A strike has always been an integral part of effective collective bargaining, and the only weapon in the hands of employees against an employer. Not only is a strike believed to be to collective bargaining what an engine is to a vehicle, but it is also something without which, collective bargaining would become collective begging. These observations highlight a premium put on a strike and clarify its critical role and relevance in the realisation of effective collective bargaining. This article explores the role, relevance, and effect of the strike in the Fourth Industrial Revolution (‘4IR’) context. The article understands the link between labour intensity, as the employees’ potential source of strength, and effective collective bargaining. And then, it poses the question: Is this the beginning of the end of the strike, or an opportunity for the reinvention of collective bargaining? While the article appreciates innovation and the changing employment landscape brought about by the 4IR, it questions how these changes would affect the role, relevance, and effect of the strike when full automation is rolled out. The purpose of the article is to explore alternatives to fill the vacuum likely to be left by the erosion of the strike, owing to automation.

Putting the unconstitutionality of deemed discharge behind us? A review of recent developments on deemed dismissals

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

Putting the unconstitutionality of deemed discharge behind us? A review of recent developments on deemed dismissals

Author: Vuyo Ntsangane Peach

ISSN: 1996-2185
Affiliations: Associate Professor, University of South Africa
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 495 – 515
https://doi.org/10.47348/SAMLJ/v36/i3a8

 Abstract

Deemed dismissal or discharge, alternatively called termination of employment by operation of law (ex lege) is one of the most disputable issues in constitutional labour law. A termination of employment by operation of law arises when an employee absents himself or herself from his or her official duty for a period exceeding 30 days. Significantly, procedural safeguards against unfair dismissal are attenuated because the affected employee is given a semblance of a hearing. Moreover, the employee is asked to show cause why he or she should not be discharged. Since the authorities are clear that where dismissal is precipitated by the operation of law and there is no right to a hearing, deemed discharge unarguably represents far-reaching encroachment on the constitutional guarantee to fair labour practices and the statutory right not to be unfairly treated. An employee who is deemed dismissed has a restricted access to the purpose-built labour dispute resolution forums established by the Labour Relations Act 66 of 1995. Although the uncertainties concerning the unconstitutionality of the deeming dismissal provisions were cast aside in Phethini v Minister of Education (2006) 27 ILJ 477 (SCA), the jurisdictional complexities displayed in recent cases such as Western Cape v Weder and MEC for Dept of Health [2014] 4 BLLR 393 (LC), Ramonetha v Department of Roads and Transport, Limpopo [2018] 1 BLLR 16 (LAC), Minister of Defence and Military Veterans v Mamasedi 2018 (2) SA 305 (SCA), Maswanganyi v Minister of Defence and Military Veterans (2020) 41 ILJ 1287 (CC) and Masinga v Chief of the SANDF [2022] ZASCA 1 (5 January 2022) compel a rethink of the constitutionality of the deemed discharge provisions.

A comparative critical analysis of the effectiveness of Remuneration Committees in the determination of executive remuneration in South Africa

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

A comparative critical analysis of the effectiveness of Remuneration Committees in the determination of executive remuneration in South Africa

Authors: Ophellia Kimbini, Rehana Cassim & Michele Havenga

ISSN: 1996-2185
Affiliations: LLD candidate, Department of Mercantile Law, University of South Africa; Professor, Department of Mercantile Law, University of South Africa; Professor Emeritus, University of South Africa
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 516 – 543
https://doi.org/10.47348/SAMLJ/v36/i3a9

 Abstract

Over the years, executive remuneration has been significantly increasing, and several jurisdictions have established specific corporate governance measures to manage this remuneration. Establishing effective remuneration committees is one of the measures that could be used to curtail the spiralling of executive remuneration. This article examines the role of remuneration committees, their effectiveness in setting executive remuneration, and how they are regulated in South Africa. The article aims to determine whether and how to enhance the use of these committees by South African companies. It examines how these committees are regulated by the Companies Act 71 of 2008, the JSE Limited Listings Requirements, and the King IVTM Report on Governance for South Africa, 2016. It also compares how the United Kingdom, Australia, and the United States of America regulate the use of remuneration committees in their corporate governance regimes.

Franchise termination with particular reference to the petroleum sector: Goodbye and good luck, but who owns the goodwill?

by | Apr 19, 2025 | SAMLJ, SAMLJ V36 I3

Franchise termination with particular reference to the petroleum sector: Goodbye and good luck, but who owns the goodwill?

Author: Tanya Woker

ISSN: 1996-2185
Affiliations: Professor of Law (Retired), and Senior Research Associate, University of KwaZulu-Natal (Durban)
Source: South African Mercantile Law Journal, Volume 36 Issue 3, 2024, p. 544 – 571
https://doi.org/10.47348/SAMLJ/v36/i3a10

 Abstract

This article focuses on the controversial issue of franchise agreement termination with particular reference to the petroleum sector. Although franchisees are said to ‘own’ their own businesses, it is never intended that they will have access to the franchisor’s trademarks and other intellectual property on a permanent basis. The franchise relationship will eventually terminate. The question then arises: who owns the goodwill of the particular franchise outlet operated by the franchisee – franchisee or franchisor? The issue of goodwill has arisen in a number of petroleum sector related cases recently, including the Constitutional Court, and although the courts have referred to goodwill, the question has not been definitively addressed. This article seeks to show why the issue of goodwill is a complicated issue in the context of franchise termination, how goodwill is traditionally dealt with in franchise agreements and to make some suggestions going forward. This topic is complex especially since it is not always easy to distinguish national or international goodwill from local goodwill. The two are deeply entwined. So, there is a need for further and more detailed research. This article is intended to start the debate.

An exploratory analysis of the financial incentives for small businesses amid erratic electricity supply in South Africa

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

An exploratory analysis of the financial incentives for small businesses amid erratic electricity supply in South Africa

Authors: Kolawole Olusola Odeku & Mudzielwana Takalani

ISSN: 1996-2185
Affiliations: Professor, Department of Public and Environmental Law, University of Limpopo; Senior Tutor, Department of Public and Environmental Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 135 – 162
https://doi.org/10.47348/SAMLJ/v36/i2a1

 Abstract

South Africa is experiencing erratic electricity supply daily dubbed ‘load shedding’. The impact and effect of electricity outages are being felt in all sectors of the economy and society at large, small businesses are no exception. Small businesses play a vital role in the economy and can be said to be the lifeblood of the economy by tackling social, and socio-economic challenges such as unemployment, inequality, and poverty. Nowadays, unreliable electricity supply and high tariffs are impeding entrepreneurial activities, particularly small businesses. The government has announced that load shedding would continue at least, for the next two years. To alleviate electricity poverty and ameliorate the impact and effect of the electricity crisis on small businesses, various financial incentive interventions become imperatives. To this end, through government institutions in collaboration with the financial sector particularly the banking industry, financial incentives are being deployed and used to alleviate financial burdens threatening the existence and survival of many small businesses. Against this backdrop, this article looks at the selected but germane financial incentive interventions that, even, amid the erratic electricity supply, will allow small businesses to continue to operate, thrive, grow, and prosper.

Exploring financial literacy-related consumer protection in the general code of conduct for authorised financial services providers and the representatives

by | Mar 9, 2025 | SAMLJ, SAMLJ V36 I2

Exploring financial literacy-related consumer protection in the general code of conduct for authorised financial services providers and the representatives

Author: Henk Kloppers

ISSN: 1996-2185
Affiliations: Professor, Faculty of Law, North-West University
Source: South African Mercantile Law Journal, Volume 36 Issue 2, 2024, p. 163 – 186
https://doi.org/10.47348/SAMLJ/v36/i2a2

 Abstract

South Africa has low levels of financial literacy and clients often, to their own detriment, take up specialised and complex financial products without a proper understanding of the product due to a lack of financial knowledge. This situation places the client at a clear disadvantage and the clients are unable to make informed decisions and because the advice tendered by the financial advisor did not enable the client to make an informed decision based on the client’s factually established or reasonably assumed level of knowledge. The Financial Advisory and Intermediary Services Act along with the General Code of Conduct for Authorised FSPs and their Representatives (the GCC) is aimed at protecting consumers in the financial services industry. The GCC, as one of the primary legal instruments for consumer protection in the financial services industry, specifically requires an advisor to provide advice based on the client’s factually established or reasonably assumed level of knowledge. Clients who are not satisfied with the advice provided by an advisor may approach the Ombud for Financial Services Providers (the FAIS Ombud) when this duty imposed by the GCC is not adhered to. Molate v Discovery Life Ltd (04862/15–16/GP2) serves as an example of the application by the FAIS Ombud of this specific duty. This contribution will briefly reflect on financial literacy and then explore financial literacy-related consumer protection in the GCC. Thereafter the contribution considers how this protection has been enforced by the FAIS Ombud by examining Molate v Discovery Life Ltd where the issue of the client’s level of knowledge of long-term insurance products was specifically placed under the microscope. The contribution concludes with recommendations to guide financial advisors providing advice in the context of the client’s factually or reasonably assumed level of knowledge.