Yearly Archives: 2014

Know your obligations in terms of the Financial Intelligence Centre Act

Riane Barnard and Trisa Naidu review the obligations of accountable institutions in terms of the FICA legislation:

Financial crimes such as money laundering activities, tax evasion and the financing of terrorist and related activities pose a large burden on private individuals, businesses and financial institutions. The need for an effective policy and compliance framework is therefore crucial. Fortunately, the law initially established the Financial Action Task Force (“FATF”), who together with the international environment eventually put pressure on the development of the Financial Intelligence Centre Act 38 of 2001 (“the FICA”)... Read More

Employment Law: Are recovering losses and issuing warnings in disciplinary proceedings “double jeopardy”?

In taking disciplinary action against an employee, various factors need to be considered in order to ascertain the appropriateness of the sanction to impose against the employee for their actions. The general principle is that corrective discipline should be applied where it is possible to correct the employee’s behaviour. An employee can generally be rehabilitated where remorse is shown, the actions of the employee were not intentional or malicious, and where the trust relationship has not completely broken down. The issuing of warnings in these instances would serve to prevent any future transgressions by the employee... Read More

Trust Assets: Do they form part of the joint estate?

Trisa Naidu examines the law established in WT & others v KT, the recent judgment handed down by the Supreme Court of Appeal regarded the issue of whether assets of a discretionary family trust form part of the joint estate of parties married in community of property.

The brief  facts:

WT [plaintiff], who was married in community of property to KT [defendant], instituted divorce proceedings in the Gauteng Local Division in January 2010.

KT did not oppose the divorce proceedings neither the ancillary relief sought by her husband... Read More

Fracking in the Karoo: It all now hinges on the environmental assessment and the law.

The first “green” light has been given to shale gas fracking in the Karoo basin. The South African government promulgated the relevant regulations authorising exploration and the process has begun.

However, it is a condition that exploration and production activities related to petroleum are subject to the requirements of the National Environmental Management Act and any relevant specific environmental management legislation.

Before exploration and production activities related to petroleum may commence, the holders must be  in possession of an Environmental Authorisation issued in terms of the Environmental Impact Assessment Regulations, 2014... Read More

Section 37C of the Pension Funds Act: a deviation from the freedom of testation

Busisiwe Bam takes a look at section 37C pf the Pension Funds Act and how it in fact restricts the wishes expressed in a will.

Section 37C makes provision for the disposition of pension benefits upon the death of a member. In terms of this section any benefit payable by a fund upon the death of a member shall not form part of the assets of the deceased estate of such member but shall be dealt with by the board of trustees of that particular fund in the manner prescribed in terms of said fund... Read More

Employment Law: Resignation with immediate effect and the legal consequences

Labournet’s Adri Louw advises on the legal consequences of the termination of a contract of employment “with immediate effect”.

A contract of service for an indefinite period can be terminated by one party giving notice of intention to terminate the contract to the other. Notice in this instance need not be provided for in the contract itself as it is an inherent feature of an indefinite contract, and if there is no agreed notice period, the notice must be reasonable, provided that it is not less than the minimum notice prescribed in section 37 of the BCEA... Read More

CBD property developments: be prepared before you develop

Louw Malherbe considers the pitfalls of central city property development, where developers are often confronted with the unknown and have to deal with title conditions which are not always disclosed in conventional searches.

A developer wanting to develop a building project in a CBD must first and foremost instruct its legal representatives to do an in-depth investigation into servitudes, conditions and/or endorsements registered against the titles of the properties on which the development will take place. In general, and after careful investigation and perusal of present and historic title deeds, a legal representative may feel at ease to submit a positive report to the client if no restrictions are found against such Development Land that will stand in the way of  the Development... Read More

Employment Law: Maternity leave and same-sex relationships

Adri Louw from Labournet examines an interesting development which has come about with the judgement handed down by the Labour Court in March this year in the case of MIA v State Information Technology Agency (Pty) Ltd. The case addressed for the first time in South Africa the question of the application of maternity leave provisions as per the BCEA in respect of same-sex partnerships.

The applicant had entered into a civil union with his spouse in terms of the Civil Union Act... Read More

Repudiation of a contract: the role of reasonable perception

Repudiation is contractual conduct which is similar to and to a degree extends over the traditional contractual conduct which amounts to breach of contract.

 Repudiation has been expressed to be a party’s demonstration, by words or conduct, and without lawful excuse, of an unequivocal intention no longer to be bound by the contract or by any obligation forming part of it, which if accepted by the innocent party, entitles the innocent party to cancel the agreement.

 In the early half of the century, following a line of cases, it was held in SCHLINKMANN v VAN DER WALT 1947 2 SA 900 (E) when defining the conduct of repudiation the Court held that repudiation “in the main is a question of intention of the party alleged to have repudiated” and quoting the English case of Freeth v Burr held that the “true question is whether the acts or conduct of the party evince an intention no longer to be bound by the contract”... Read More

Employment Law: Is there a duty on an employee to disclose pregnancy?

Labournet’s Adri Louw examines the legal position of a female employee who falls pregnant during her tenure, or is engaged by the company in the early stages of her pregnancy, without the company being aware of the fact that the employee is expecting.

Such situations often give rise to conflict in the employment relationship as the employer may feel that they have been deceived or mislead by the employee’s failure to disclose her condition to the company immediately. This reaction is understandable as the company invariably has to consider the employee’s right to maternity leave, and the unavoidable suspension of services rendered for the requisite minimum 4 month period... Read More

Shipping Law: Ship ownership and registration in South Africa

An overview of the process of ship registration and the effect thereof on ship ownership in South Africa. Steyn Botha assesses the progessive provisions of the Ship Registration Act  by comparing them to the repealed sections of the Merchant Shipping Act and the certainty it creates in law. The benefits which the registration process offers to owners by being able to pass deeds of mortgage over their registered vessels are considered. Read the overview here... Read More

Strauss Daly hosts LEGUS with their 20th anniversary in Cape Town 2015

LEGUS International Network of Law Firms will be embarking on their 20th anniversary  in 2015 by presenting various informative meetings and enlightening education programs in Louisiana and in South Africa.

The South African events will be  hosted by Strauss Daly, whose privilege it will be to bring the international delegates to Cape Town and showcase what the Western Cape and South Africa have to offer.

The event allows lawyers from all over the world to assemble and cultivate valuable and respected professional relationships to better serve their clients as the need for worldwide expertise expands... Read More

Employment Law: Does annual leave accrue while you are on maternity leave?

Labournet’s Bongani Khanyile takes a look at what happens to annual leave when an employee is on maternity leave.

Does the maternity leave interrupt the accrual of annual leave entitlement of the employee? Given the number of queries they are inundated with on a daily basis, this topic is far from being trite.

Perhaps the best starting point for this discourse is to revert to the Basic Conditions of Employment Act and the provision regarding annual leave therein in order to solve this apparent legal penumbra... Read More

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