Whether reinstatement awards prescribe, by Dante Nel and Andre van Heerden and Jacques van Wyk at Werksmans Attorneys,

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1 Bulletin 648 of of Period: 221 November February to 8 February 29 November IMPORTANT NEWS OFFICE CLOSED FOR THE HOLIDAYS Please note that the offices of Phatshoane Henney Attorneys will be closed from 13:00 on 24 December 2013 and will re-open at 08:00 on 2 January RECOMMENDED READING Whether collective agreements with majority trade unions bind minority trade unions, by Andre van Heerden and Jacques van Wyk at Werksmans Attorneys, Whether reinstatement awards prescribe, by Dante Nel and Andre van Heerden and Jacques van Wyk at Werksmans Attorneys, Protection of Personal Information Act signed into law, by Robby Coelho and Esti Louw at Webber Wentzel Attorneys, Director liability under the spotlight, by Natasha Pather at Webber Wentzel Attorneys, R awarded for a defamatory Facebook post, by Webber Wentzel Attorneys, Companies ordered to grant access to their securities registers, by Webber Wentzel Attorneys, Disclosure of director s personal financial interest, by Mzo Tshaka at Schoeman Tshaka Attorneys, Changes to the notarial authentication process, by Nicolene Schoeman Louw at Schoeman Tshaka Attorneys, Early festive cheer: domestic workers' minimun wage increased, by Lauren Salt at Cliffe Dekker Hofmeyr Inc The consequences of re-registration of deregistered companies: latest instalments in the on-going debate, by Justine Krige and Yaniv Kleitman at Cliffe Dekker Hofmeyr Inc, Determining a 'group of companies' for purposes of the corporate rules, by Andrew Lewis at Cliffe Dekker Hofmeyr Inc, Calling up bank guarantees in tranches, by Yaniv Kleitman at Cliffe Dekker Hofmeyr Inc, Exclusive jurisdiction causes not as 'exclusive' as one might think, by Justine Krige at Cliffe Dekker Hofmeyr Inc, SEMINARS 2ND ANNUAL INTELLECTUAL PROPERTY PROTECTION, DISTRIBUTION & COSTING MASTERCLASS 20th & 21st February 2014 at the Southern Sun Hotel, O R Tambo International Airport, Johannesburg, South Africa This Master class will give an opportunity to better discuss legal protection of designs or inventions with intellectual property rights lawyers and practitioners that deal with it daily, who will guide delegates in this regard. The speaker line up includes Dr. Marisella Ouma, who is the Executive Director of the Kenya Copyright Board, Marco van der Merwe,

2 2 Partner at Spoor & Fischer as well as representation from the African Regional Intellectual Property Organization (ARIPO), Mr. Christopher Kiigi the Director of Industrial property. Benefits of Attending: Understanding the available types of IP and how they add value to business Streamlining your organization s IP policy s according to IP act Increasing awareness to inventors so at to protect their life s work Understanding the role of IP in the developing African continent Networking with different industry leaders and make valuable contacts Understanding process of commercialising your IP Contact Pauline Morake at or paulinem@amc-intsa.com MICHALSON s PROTECTION OF PERSONAL INFORMATION SEMINAR The Protection of Personal Information Act (POPI) sets conditions for how you can process information. It will soon be signed by the President. You will only have one year from the commencement date to comply or face significant consequences. If your organisation processes personal information, then complying with POPI is your problem. Those in the Financial Services, Healthcare and Marketing sectors, in particular, will be affected by this Act. Why does it matter? What could happen to you if you don t comply? Suffer reputational damage Lose customers and fail to attract new ones Pay out millions in damages to a civil class action Be fined up to R10 million or face 10 years in jail This is serious, you need to take action now. You can also get business value out of complying with POPI there is a strong business case. Attend a seminar, webinar, workshop, or executive briefing presented by an expert with practical experience. Johannesburg: Cape Town: 11 March 2014 (9am 4pm) 18 March 2014 (9am 4pm) One delegate is R2964 (incl VAT). Two or more qualify for 10% discount. To register, visit CONVEYANCING SEMINAR: CONFERENCE RESOLUTIONS Resolutions taken at the Conference of Registrars have a vast impact on the day-to-day practice of conveyancing and notarial practices. The seminar will focus on the 2013 Resolutions (effective 2 January 2014), providing a full discussion on how each resolution will affect the day-to-day drafting of deeds and documents lodged at a deeds registry. Pretoria: 20 January 2014 Johannesburg: 21 January 2014 Durban: 22 January 2014 Bloemfontein: 23 January 2014 Cape Town: 24 January 2014 Port Elizabeth: 27 January 2014 East London: 28 January 2014 Nelspruit: 03 February 2014 Rustenburg: 04 February 2014 Practising attorneys: R 820 per person Candidate attorneys / support staff: R 700 per person Practising attorneys from firms located further than 150 km from the closest venue: R 480 per person Non-practising attorneys / Others: R per person To register, visit

3 3 GENERAL PROPRIETARY CONSEQUENCES OF A MARRIAGE IS DETERMINED BY THE LEX DOMICILLII MATRIMONII AT THE TIME OF THE MARRIAGE. Lenferna v Lenferna (120/13) [2013] ZASCA 204 In this case the Supreme Court of Appeal handed down judgment in an appeal from the South Gauteng High Court, Johannesburg. The appellant and respondent were married in Mauritius in 1983 and a month later they moved to South Africa and continued to live here until their divorce in November In July 2006 the respondent, the wife sued the appellant, the husband for divorce in the South Gauteng High Court, Johannesburg, contending that the marriage relationship between her and the respondent had irretrievably broken down. When the wife sued the husband for a divorce, the question of the legal regime governing the proprietary rights of their marriage in the absence of an antenuptial contract arose, in particular whether this was in terms of Mauritian or South African law. The wife alleged that at the time of her marriage to the husband, he was domiciled in Mauritius and that the proprietary consequences of the marriage were therefore governed by the law of Mauritius, alternatively, that the parties were married to each other in Mauritius according to the laws of South Africa and that the proprietary consequences of the marriage were accordingly governed by the law of South Africa. The dispute centred around two properties of which the respondent claimed a 50 percent share, arguing that in terms of Mauritian law, the separation of goods legal regime entitled the wife to such due to her contribution to the maintenance and/or increased value of the appellant s estate during the marriage. In the alternative the wife claimed that South African law governed the marriage, which was thus in community of property and thereby entitled her to a share of the properties. It was common cause that the legal regime governing the proprietary consequences of the marriage was determined with reference to the lex domicilii matrimonii, being the husband s domicile at the time of the marriage. The husband pleaded that at the time of their marriage they had agreed that their matrimonial regime would be governed in terms of the provisions of Mauritian law and in particular in terms of the provisions of the regime legal de separation de biens, separation of goods. According to the husband at the time of the marriage, theh had made a declaration to that effect, which was recorded by a marriage officer. In terms of the said regime each party retained its separate estate during the marriage and on dissolution thereof, neither party had a claim against the estate of the other party. Ultimately the husband denied that the wife was entitled to any part of his estate. The Court a quo concluded that at the time of the marriage it had been the parties intention that any property acquired after the marriage would be common property. The Judge held further that the husband s domicile at the time of the marriage had been South Africa and thus that the wife was entitled to a share in the properties. In any event, both the equities and Mauritian law would have sanctioned such an outcome. The appellant appealed that finding with leave of the Supreme Court of Appeal. At common law, the proprietary rights of spouses were governed, in the absence of express agreement, by the law of the husband s domicile at the time of the marriage (lex domicilii matrimonii or the law of the matrimonial domicile). The rationale for this rule, according to the Roman Dutch and Civilian authorities, was that the parties were assumed in the absence of any indication to the contrary, to have intended to establish their matrimonial home in the country where the husband was domiciled at the time of the marriage and to have submitted themselves to the matrimonial regime in that country. The Supreme Court of Appeal assessed the evidence and determined that at the time of his marriage, the appellant had in fact been domiciled in Mauritius and accordingly that Mauritian law governed the proprietary regime of the marriage. In analysing Mauritian law, the Court held that the separation of goods regime provided that each party to a marriage retained its separate estate during the marriage and that on dissolution thereof neither party has a claim against the estate of the other unless they have funded the acquisition of particular assets in the other party s estate, to which they would then be entitled a share. However in this case there was insufficient evidence to show that the respondent contributed to the acquisition of either of the properties of which she sought a share, she had not made out a claim to either of them. Accordingly the appeal was upheld with costs, and the respondent s claim for 50 percent of the value for the properties concerned was dismissed.

4 4 WHETHER AN EMPLOYEE S RELIANCE ON A CALLING FROM ANCESTORS WAS A JUSTIFIABLE REASON FOR DISOBEYING AN EMPLOYER S INSTRUCTION TO REPORT FOR DUTY Kievits Kroon Country Estate v Mmoledi (875/12) [2013] ZASCA 189 In this case the Supreme Court of Appeal held that an employee, who was dismissed for staying away from work because of a fearful apprehension of suffering serious misfortune if she did not attend a traditional healer s course, had a justifiable reason for staying away. Consequently her dismissal was therefore held to have been substantively unfair. The employee, Ms Johanna Mmoledi, joined Kievits Kroon Country Estates (Pty) Ltd in 2005 and she was employed in a senior position as a chef. The company offered catering and conference facilities to its guests. She told her employer that she had been seeing visions of her ancestors and asked her employer for five-weeks of unpaid leave to attend a training course by her traditional healer. Her employer said that she could be accommodated for a week, but no longer the reason being that the appellant was very busy, short of staff and would not be able to provide a proper service to its guests without her. She handed in a note from her traditional healer confirming that she was under her treatment, but in that regard it was held that her reliance on the letter from her traditional healer was misplaced because it was not a letter by a medical practitioner, which would provide proof of illness as required by the Basic Conditions of Employment Act 75 of She nonetheless stayed away from work and was charged with misconduct for disobeying an instruction to report for duty and being absent from work without permission. She was subsequently dismissed following a disciplinary inquiry. The chairman of the disciplinary tribunal also rejected her submission that the period of absence be construed as sick leave. She referred the dispute to the Commission for Conciliation, Mediation and Arbitration, which found that her absence from duty was caused by circumstances beyond her control and that she was justified from staying away from work because her absence from duty was necessitated by circumstances beyond her control. The CCMA accordingly held her dismissal substantially unfair and ordered her reinstatement, but without retrospective payment. Both the Labour Court and the Labour Appeal Court upheld that decision. The employer however appealed to the Supreme Court of Appeal. The employer s case was that Ms Mmoledi wilfully absented herself from work after the employer had refused to grant her leave for an extended period to attend a training course unrelated to her work. Ms Mmoledi s case was that she had no option but to stay away from work because she had to attend a course to be trained as a traditional healer in response to a calling from her ancestors. Ms Mmoledi testified that she believed that she was sick because she saw visions of her ancestors. She was therefore required to complete certain tasks with a traditional healer so that she could also become a traditional healer. She testified that had she not attended the course, her health would have been in danger and she may have collapsed. The employer s legal representatives argued before the Supreme Court of Appeal that they dealt with her request in a manner, which they would have dealt with any similar request for unpaid leave and that the employee s employment contract made no provision for unpaid leave and that her request to stay away was unreasonable given the operational requirements of the business. Furthermore they bent over backwards to accommodate her by agreeing to allow her a week s leave, but could not accommodate her any further. It was also argued that it could not rely on the note from her traditional healer as proof of an illness. The Supreme Court of Appeal rejected the employer s argument. It held that her belief that she was ill stemmed from deeply held cultural convictions, which were shared by many South Africans. Furthermore her unchallenged evidence before the CCMA was that she believed that she would suffer serious misfortune if she did not stay away from work to attend the traditional healer s course. So in the absence of any evidence that she had invoked this belief for an ulterior purpose the CCMA was correct to accept her evidence. The Supreme Court of Appeal therefore confirmed the decision of the CCMA that her dismissal was substantively unfair. The Company was ordered to pay Ms Mmoledi s costs of the appeal. ACTS PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 Date of commencement: to be proclaimed Amends s. 6 of the Public Protector Act 23 of 1994, amends ss. 1, 10, 11, 14, 15, 21, 22, 25, 26, 29, 49, 51, 52, 54, 56, 57 & 73, the heading of Part 5 in Chapter 2, and ss. 32, 83, 84 & 85 by substituting the words 'human rights GG ( )

5 5 COMMISSION ON GENDER EQUALITY AMENDMENT ACT 17 OF 2013 ELECTORAL AMENDMENT ACT 18 OF 2013 commission' wherever they occur, with the words information regulator', inserts Chapter 1A (ss. 77A-K), substitutes s. 78 & the long title and repeals s. 88 of the Promotion of Access to Information Act 2 of 2000; amends s. 1 and repeals ss. 45, 50 & 51 of the Electronic Communications and Transactions Act 25 of 2002 and amends ss. 1, 55, 68 & 136 of the National Credit Act 34 of 2005 Date of commencement: 26 November 2013 Amends ss. 1, 3, 9 & 11, substitutes the Preamble, the short title & the long title of the Commission on Gender Equality Act 39 of 1996 and amends the citation of laws referring to the Act Date of commencement: 26 November 2013 Amends ss. 1, 6, 7, 8, 24B, 57 & 58, substitutes s. 33, inserts s. 33A and repeals s. 34 of the Electoral Act 73 of 1998 GG ( ) GG ( ) PROCLAMATIONS AND NOTICES ACCOUNTING STANDARDS BOARD Notice of Exposure Draft 119: Proposed Amendments to Directive 6 on Transitional Provisions for Revenue Collected by the South African Revenue Service (SARS) published for comment JUSTICES OF THE PEACE AND COMMISSIONERS OF OATHS ACT 16 OF 1963 Designation of Commissioners of Oaths amended GG ( ) CUSTOMS AND EXCISE ACT 91 OF 1964 Schedule 1 amended Schedule 1 amended Schedule 1 amended with effect from 14 February 2014 Schedule 1 amended with effect from 1 January 2014 Schedule 2 amended with effect from 14 February 2014 Schedule 3 amended with effect from 1 January 2014 Schedule 4 amended with effect from 1 January 2014 Schedule 5 amended with effect from 1 January 2014 GG ( ) MEDICINES AND RELATED SUBSTANCES ACT 101 OF 1965 Medicine declared undesirable in terms of s. 23 GG ( ) SMALL CLAIMS COURTS ACT 61 OF 1984 Establishment of small claims court for the area of Melmoth published PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT 34 OF 1995 Notice requesting public comment on draft regulations relating to community rehabilitation Draft Regulations relating to Community Rehabilitation, GG ( ) GG ( )

6 published for comment NATIONAL EDUCATION POLICY ACT 27 OF 1996 Proposed Amended National Policy for Determining School Calendars for Public Schools in South Africa published for comment GG ( ) MARKETING OF AGRICULTURAL PRODUCTS ACT 47 OF 1996 National Agricultural Marketing Council (NAMC): Request for the continuation of the statutory levy on lucerne seed and lucerne hay published for comment SOUTH AFRICAN SCHOOLS ACT 84 OF 1996 Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure published GG ( ) NATIONAL ROAD TRAFFIC ACT 93 OF 1996 Proposed amendment of the National Road Traffic Regulations, 2000 published for comment GG ( ) LONG-TERM INSURANCE ACT 52 OF 1998 Amendment of BN 133 in GG of 17 August 2012: Returns to Registrar published GG ( ) SHORT-TERM INSURANCE ACT 53 OF 1998 Amendment of BN 134 in GG of 17 August 2012: Returns to Registrar published GG ( ) COMPETITION ACT 89 OF 1998 Competition Commission: Terms of reference for market inquiry into the private healthcare sector published Notification to approve transactions published Memorandum of understanding between the Competition Commission and the Mpumalanga Gambling Board published NATIONAL ENVIRONMENTAL MANAGEMENT ACT 107 OF 1998 Environmental Impact Assessment Regulations Listing Notice 1 of 2010 amended Environmental Impact Assessment Regulations Listing Notice 2 of 2010 amended National standards for the extraction, flaring or recovery of landfill gas published National standards for the scrapping or recovery of motor vehicles published GG ( ) GG ( ) GG ( ) GG ( ) PUBLIC FINANCE MANAGEMENT ACT 1 OF 1999 Exemption of the Special Defence Account from s. 55 (1) (b) of the Act read with GN 516 in GG of 9 May 2008 for the financial years of 2013/2014, 2014/2015 and 2015/2016 in terms of s. 92 INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA ACT 13 OF 2000 Proposed Amendment to Universal Service and Access Licence Obligations published for comment GG ( )

7 7 & ELECTRONIC COMMUNICATIONS ACT 36 OF 2005 PROPERTY VALUERS PROFESSION ACT 47 OF 2000 Rules for the Property Valuers Profession, 2008, Fourth Amendment published with effect from 1 January 2014 FINANCIAL ADVISORY AND INTERMEDIARY SERVICES ACT 37 OF 2002 Exemption of Investec Investment Management Services and Investec Asset Management, 2013 published Exemption of ABSA Trust and ABSA Consultants and Actuaries, 2013 published GG ( ) GG ( ) NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT 39 OF 2004 National Framework for Air Quality Management in the Republic of South Africa, 2012 published and 2007 National Framework for Air Quality Management in the Republic of South Africa repealed Notice of intention to declare temporary asphalt plants as controlled emitters, which result in atmospheric emissions, which through ambient concentrations, bioaccumulation and deposition or in any other way present a threat to health or the environment and their associated emission standards published for comment GG ( ) NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE ACT 59 OF 2008 List of waste management activities that have, or are likely to have a detrimental effect on the environment published and GN 718 in GG of 3 July 2009 repealed National norms and standards for the storage of waste published GG ( ) GG ( ) FINANCIAL MARKETS ACT 19 OF 2012 Approval of proposed amendments to the JSE Listing Requirements published with effect from 2 January 2014 Notice of proposed amendments to the JSE listing requirements published for comment Notice of proposed amendments to the JSE Derivatives Rules published for comment GG ( ) GG ( ) GG ( ) DIVISION OF REVENUE ACT 2 OF 2013 Error in the Rural Households Infrastructure Grant allocations corrected GG ( ) PROVINCIAL LEGISLATION Eastern Cape Local Government: Municipal Systems Act 32 of 2000; Local Government: Municipal Finance Management Act 56 of 2003 and Local Government: Municipal Property Rates Act 6 of 2004 Koukamma Municipality: Property rates to be levied for financial year 1 July 2013 to 30 June 2014 published PG 3028 ( ) Local Government: Municipal Systems Act Ngqushwa Municipality: Tariff By-laws published PG 3082 ( )

8 8 32 of 2000 Free State Free State Gambling and Liquor Act 6 of 2010 Adjustment Appropriation Act 5 of 2013 Free State Liquor Amendment Regulations, 2013 published PG 71 ( ) Date of commencement: 29 November 2013 PG 72 ( ) KwaZulu-Natal National Environmental Management: Protected Areas Act 57 of 2003 KwaZulu-Natal Heritage Act 4 of 2008 Constitution of the Republic of South Africa, 1996 and Local Government: Municipal Systems Act 32 of 2000 Declaration of Empembeni Community Nature Reserve published Draft applications for alterations and additions to or demolition of protected buildings published for comment umlalazi Municipality: Proposed Municipal Standing Rules and Orders published for comment PG 1058 ( ) PG 1058 ( ) PG 1059 ( ) National Environmental Management: Protected Areas Act 57 of 2003 Intention to declare nature reserves: areas for incorporation into the Hluhluwe-iMfolozi Game Reserve published for comment PG 1060 ( ) Limpopo National Road Traffic Act 93 of 1996 Registration and Licensing Tariffs for 2014/2015 published with effect from 1 April 2014 PG 2284 ( ) Northern Cape Northern Cape Legislature Witness Act 3 of 2013 Northern Cape Repeal of Laws Act 4 of 2013 Wet op Plaaslike Regering: Munisipale Stelsels 32 van 2000 Date of commencement: 26 November 2013 Repeals: Northern Cape Powers and Privileges of the Provincial Legislature Act 6 of 1994 Date of commencement: 26 November 2013 Repeals: Northern Cape Payment of Members of the Provincial Legislature Act 5 of 1994 and [Northern Cape Group Life and] Disability Plan for Members of the Legislature Act 5 of 1995 Kareeberg Munisipaliteit: Wysiging van die Eiendombelasting verordening gepubliseer PG 1753 ( ) PG 1753 ( ) PK 1755 ( ) North West Local Government: Municipal Property Rates Act 6 of 2004 Ratlou Local Municipality: Property Rates By-law, 2009 as published under LAN 218 in PG 6656 of 6 July 2009 corrected Maquassi Hills Local Municipality: Property Rates Levy PG 7195 ( ) PG 7196 ( )

9 9 North West Development Agency Bill, 2013 Western Cape published with effect from 1 July 2013 for 2013/2014 financial year Together with the Memorandum on the Objects of the Bill published for comment PG 7198 ( ) Local Government: Municipal Systems Act 32 of 2000: George Municipality Western Cape Unauthorised Expenditure Act 10 of 2013 Public Amenities By-law amended PG 7200 ( ) Date of commencement: 29 November 2013 PG 7204 ( )