Law Enforcement Brutality vs. The Law

Amid the outbreak of the COVID-19, many countries around the world implemented various drastic measures to curb the spread of the virus. South Africa, with the highest number of reported cases in Africa, was forced to effect such measures, inclusive of a national lockdown, in order to save lives, albeit economic repercussion of these measures. Since the official commencement of the nation-wide lockdown on Thursday, 26 March 2020, there has been several arrests made, for those breaking lockdown regulations. What has raised concerns, however, is the manner in which perpetrators have been treated by the Police and SANDF members, as deployed by the President of the Republic of South Africa. There have been several reports, video clips, etc. trending on the media showing the brutality to which the members of the public have been subjected to. This is in direct contrast of what the President ordered the members of law enforcement to do, as he had publicly pleaded with the Police and the members of the SANDF that this is not the time of using force and of being cruel. The mandate was made clear that theirs is to ‘preserve lives’; maintain compliance and ensure protection of the community members. The behavior displayed by the law enforcement members militates against the utterances of the President; various international, regional and national legal instruments and most particularly, in the South African context, the spirit of Ubuntu.

The national lockdown has greatly impacted upon peoples’ lives, movement and people have been ordered to stay at home unless attending to one of the exclusions such as going to seek medical help; to buy essentials, etc. Thus, although loitering and wondering on the streets is prohibited, people are still permitted to go out for specific reasons. This then places a duty on the law enforcement members to establish, from the concerned persons, the reason for being outside/on the street. If the reason provided is unjustifiable, the most extreme step would be to arrest that person. The least and more purpose-driven step would be to order the person to go home or, insofar as it is practically possible, accompany the person to his home and warn him, accordingly. To use force, brutality and subject perpetrators to degrading and inhumane treatment by kicking them; shooting them with rubber bullets, etc. is extreme and may have dire legal ramifications for both the concerned member/s of the law enforcement and the State (relevant Minister). Such conduct is against the Constitution of the Republic of South Africa, 1996; various legislations and the common law. Persons who are subjected to such cruelty and brutality may sue the State for damages – the nature and extent of which will be dependent upon the prevailing peculiar circumstances of each specific case. In as much as people are encouraged to remain indoors during this period, the State is still susceptible to being sued where the circumstances dictate so. In fact, robust litigation against the State may be one of the ‘vehicles’ to use in order to discourage the brutality used against members of the public.

In recent years, we have seen that whenever the Police use force and violence, the end tends to be sour. Few years ago, when Mr. Bheki Cele was the Commissioner of Police, he introduced the “shoot to kill” approach, as a mechanism to deter crime. Instead, violence erupted as people adopted the same “shoot to kill” approach against the Police. The killings of Police continued for an extended period until 2018/2019. A fortunate serendipity is that the same government official, Minister Bheki Cele, is in charge of the Police. As he has seen the regrettable ramifications of the violent approach, he should and, hopefully will, prioritise non-force/minimal force approach and put certain measures/checks in place to ensure compliance by the members of the SAPS. Another example would be that of the Marikana incident whereby the Police violence led to massive issues – with several mine workers losing their lives. Such incidents should serve as a reminder and a lesson for the government and law enforcement members that violence causes more harm than good. Consistent cruelty towards the members of the public may well invite a rebellion and the whole purpose of the lockdown will be undermined and defeated.

In certain communities around the country, there has been a total disregard of the lockdown regulations as people continue with their daily businesses as usual. This then requires the Police and soldiers to intervene, in order to ensure compliance. In cases where non-violent approach does not bear the desired response, our law is flexible, to a certain degree, as it allows a minimal and reasonable force. In general, as a country, we are not known for abiding by the law (as evident in the global crime statistics), and, as such, it can be expected that there will be some people who will disobey the regulations put in place. Law enforcement members, who are also the subjects of the law, need to act accordingly, failing which there may be a serious uprising which is the last thing we need at this point.


Litigation Attorney

View Profile

Deliberate or reckless transmission of COVID-19 may have severe legal ramifications

The abrupt outbreak and negative impact of the COVID-19 disease has taken the whole world by surprise, prompting several role players and government leaders to implement drastic measures to curb the spread of this fatal disease. With so many restrictions affecting the movement and interaction of people, it will not be surprising that, for many people, engaging in any legal battle is the last thing in their minds. It will then not be surprising to see some “interesting” COVID-19 cases flocking in at a later stage, as people may well have grounds (at least in theory) for suing and, some for laying criminal charges against individuals who deliberately or recklessly infect them with the virus.

On Wednesday, 24 March 2020, it was reported that a salon owner from KwaZulu-Natal, Ladysmith, breached the rules of home-quarantine and went on with his business as usual at his salon and thus exposing his employees and customers at risk of contracting the virus. It was also reported that criminal charges (for attempted murder) were laid against him, but postponed due to the national lockdown of 21 days. In this example, any customer who visited this relevant salon and thereafter got sick and tested positive for COVID-19 may potentially have a delictual claim against him. The potential claimant will have to prove that the salon owner’s wrongful conduct which was either intentional or negligent (fault) has caused harm. Although all these elements will need to be proven, the most likely challenge in succeeding with such a claim will be to prove the element of causation i.e. that the owner caused you to be infected with the virus. This is due to the fact that transmission of the coronavirus is very easy and, unlike most viruses, does not need the exchange of bodily fluids, blood contacts, etc. Albeit this being a probable challenge in such claims, the surrounding circumstances will dictate the outcome of each particular case. If for example, a potential claimant had recently tested for a COVID-19 and his results were negative, subsequently goes to this salon and thereafter falls sick and tests positive for the coronavirus and he proves that he has not been exposed to any of the high risk areas/individuals (abroad and locally). If all factors are considered holistically and, on the balance of preponderance, show that he probably contracted the virus at the said salon, the owner may actually be liable. The success or failure of the claim will, like in any other claim, be determined by the relevant prevailing circumstances.

Not many people will be inclined to litigate on such matters, particularly in the South African context, due to various reasons – one being the narrow prospects of success or the potential defendant not having a financial muscle to compensate the claimant. With that said, some who are/will be infected may lose a lot of things as a consequence of being infected, for example: medical bills; losing out on business (especially if self-employed); long lasting effects on health which may require future medical intervention; loss of amenities of life, etc. This may prompt people to claim from the potential perpetrators. Also, what may motivate potential litigants is that most people who are likely to breach the government’s quarantine regulations are the rich/affording people – because home-quarantine is more suited for the rich. Claimants are ordinarily inclined to sue affording people because they are able to either make settlement payments or pay damages as ordered by the court. Thus, one cannot completely shut the possibility of COVID-19 claims being instituted.

Whilst criminal charges are the most likely COVID-19 legal cases for the individuals who disobey the State’s regulations, there exists a possibility of civil claims against those who intentionally or negligently place the lives of others at risk. It then becomes pivotal that each victim of the coronavirus takes full responsibility and ensure that they, by all means possible, avoid infecting others and they must strictly follow the rules as imposed by the government.


Litigation Attorney

View Profile

COVID-19 Block exemption for the retail property sector

The Government has already taken swift action against the Coronavirus pandemic through regulations gazetted by the Minister of the Department of Trade and Industry (“the DTI”). On 24 March 2020, the Minister published further regulations in terms of section 10(10)[1] of the Competition Act, 89 of 1998 (“the Competition Act”).

These regulations extend an exemption to the retail property sector and aim to enable the retail property sector to minimise the negative impact on the ability of designated retail tenants, including small, independent retailers, to manage their finances during the national disaster and be in a position to continue normal operations beyond the national disaster.

The regulations further exempt agreements or practices between retail tenants  and/or retail property landlords  from scrutiny under sections 4 (agreements between competitors)  and 5 (agreements between suppliers, firms and customers) of the Competition Act for the sole purpose of responding to the COVID-19 pandemic national disaster and which exclude communication and agreements in respect of prices.

The exemption extends to all South African retail tenants in the designated retail lines, including small, independent retailers, unless otherwise authorised by the Minister or the Competition Commission. The designated trading lines for the purpose of the identification of designated retail tenants are to be found in the regulations which can be accessed through the link below.

The respective gazetted regulations can be accessed here:

We invite you to contact our Competition Law Team ( if you have any questions in relation to the COVID-19 regulations under the Competition Act, or any related matter.


Jac Marais | Partner

Misha van Niekerk | Senior Associate

Kameel Pancham | Candidate Attorney

[1] Section 10(10) The Minister may, after consultation with the Competition Commission, and in order to give effect to the purposes of this Act as set out in section 2, issue regulations in terms of section 78 exempting a category of agreements or practices from the application of this Chapter.


Commercial Attorney

View Profile


Senior Associate
Commercial Attorney

View Profile

Competing with COVID-19

The devastating impact of COVID-19 is being felt across the globe. The pandemic will highlight the inequality amongst the different classes of South Africans. How will the South African Government deal with and protect the various classes of South Africans from the socio-economic complications that the Coronavirus arrives with? Does Competition Policy have a role to play?

The Government should be applauded for taking swift interventionist action against the pandemic; in particular we shall be focussing on the action taken by the Department of Trade and Industry (“the DTI”), which is home to the competition authorities being the Competition Commission (“the Commission”), the Competition Tribunal (“the Tribunal”), and the Competition Appeal Court (“the CAC”). The actions taken by the DTI are aimed at alleviating the socio-economic harms presented by the Coronavirus.

In mid-March 2020 the Minister gazetted various regulations in terms of the Competition Act, 89 of 1998 (“the Competition Act”) to minimise the impact of the COVID-19. The Competition Act echoes the objectives of the Constitution in that it similarly has as one of its purposes “to promote employment and advance the social and economic welfare of South Africans”.[1]

The first mechanism of the Competition Act invoked by the Minister is section 10(10) read with section 78(1) of the Competition Act. Section 10(10) reads as follows:

The Minister may, after consultation with the Competition Commission, and in order to give effect to the purposes of this Act as set out in section 2, issue regulations in terms of section 78 exempting a category of agreements or practices from the application of this Chapter.

In essence the Minister has granted an exemption in terms of the Competition Act, that is to say that certain agreements and behaviours which may otherwise be unlawful will be exempt from scrutiny from the Competition Act and the competition authorities.

The exemption and regulations have the purpose of exempting a category of agreements or practices in the healthcare sector from the application of sections 4 and 5 of the Competition Act, solely with the aim of:

  1. Promoting concerted conduct to prevent an escalation of the national disaster and to alleviate, contain and minimise the effects of the national disaster; and
  2. Promoting access to healthcare, preventing exploitation of patients, enabling the sharing of healthcare facilities, management of capacity and reduction of prices.

This exemption enables the private healthcare system to cooperate with the public healthcare system to ensure that there is adequate capacity and stocks at healthcare facilities throughout the country in order to respond to COVID-19. This will assist in ensuring that the private and public healthcare system can provide the necessary care to all classes of South Africans without fear of contravening the Competition Act.

Finally, the Minister of the DTI further gazetted regulations in terms of section 8(3)(f) of the Competition Act, this section reads as follows:

Any person determining whether a price is an excessive price must determine if that price is higher than a competitive price and whether such difference is unreasonable, determined by taking into account all relevant factors, which may include any regulations made by the Minister, in terms of section 78 regarding the calculation and determination of an excessive price.”

The purposes of these regulations are to:

  1. Promote concerted conduct to prevent the escalation of the national disaster and to alleviate, contain and minimise the effects of the national disaster; and
  2. Protect consumers and customers from unconscionable, unfair, unreasonable, unjust or improper commercial practices during the national disaster.

In effect, the regulations prohibit firms from charging excessive prices to consumers.

Further, in terms of section 8(3)(f) of the Competition Act, during any period of the national disaster, a material price increase of a good or service as contemplated which does (i) not correspond to or is not equivalent to the increase in the cost of providing that good or service; or (ii) increases the net margin or mark-up on that good or service above the average mark-up for that good or service in the three month period prior to 01 March 2020, is a relevant factor for determining whether the price is excessive or unfair and indicates that the price is excessive or unfair. The goods and services protected by this regulation can be found annexed to the regulations which are accessible through the links below.

The Commission succinctly described the purpose of the regulations and its significance to the South African public:

The regulations aim to strengthen the ability of the Commission to respond to incidences of exploitative pricing. These regulations empower the Commission to prosecute cases where prices have increased materially without any cost justifications for the increase. 

The Minister of the DTI, the Commission and the National Consumer Commission have agreed that in the event of any unusual increases of prices by suppliers, the retailers will bring these to the attention of the regulators. Further, consumers were also encouraged to bring any concerns to the attention of regulators through the details available on their websites, or through the toll-free no. 0800 014 880.”

One would expect the Courts to view exploitation at this time in a very serious light.

It is furthermore likely that there will be ongoing regulatory developments as the situation progresses, including by extending exemptions to more industries.

Industry players should adopt a pro-active approach in respect of entering into arrangements that would, but for the regulations, be unlawful. We strongly advocate engaging with the Competition Authorities before doing so. We are in a position to facilitate these discussions.

The respective gazetted regulations can be accessed here:


We invite you to contact our Competition Law Team ( if you have any questions in relation to the COVID-19 regulations under the Competition Act, or any related matter.

Article by:

Jac Marais | Partner

Misha van Niekerk | Senior Associate

Mia de Jager | Associate

Kameel Pancham | Candidate Attorney

[1] Section 2(c) of the Competition Act.


Commercial Attorney

View Profile


Senior Associate
Commercial Attorney

View Profile


Litigation Attorney

View Profile

COVID-19 | Force Majeure or Breach of Contract?

On the 5th of March 2020, the National Institute for Communicable Diseases confirmed that South Africa’s first suspected case of COVID-19 had tested positive. The impact of this highly contagious virus has forced the world to find a new normal as we navigate our lives around containing its spread as much as possible. How does this affect existing agreements and performance under these agreements?

In the context of South African common law any occurrence beyond the control of parties, to an agreement, which makes the performance of contractual obligations impossible after the conclusion of a contract (that does not have a so-called force majeure clause) is dealt with in accordance with  the principle of supervening impossibility.  As a general rule, if a situation arises, without any act or fault of either of the parties to the agreement, which renders the performance of a contractual obligation by one of the parties impossible, the party is excused from the failure to perform. However, a party seeking to rely on this principle must show that the performance is objectively impossible and not just difficult, burdensome or economically onerous.

Due to the limiting nature of the common law position, many agreements today include a “force majeure” clause which is  included in an effort to protect against the potential risk of an occurrence, through no fault or act of either of the parties, which may render the performance of contractual obligations impossible. This type of clause usually sets out the following:

  • what would constitute a force majeure by providing a list of such events;
  • a catch all phrase on what would constitute a force majeure (discussed below);
  • a requirement that a party seeking to rely on the force majeure clause must provide the other party to the agreement with a notice before invoking the force majeure clause for purposes of not fulfilling their contractual obligations; and
  • a period after which the agreement may be terminated by either of the parties without liability to the other for any loss suffered if the force majeure continues beyond that period.

If an agreement includes such a force majeure clause, the parties will have to rely on the specific provisions of the agreement and, if an agreement does not include such a clause, the parties will have to rely on the common law principle of supervening impossibility.

Due to the recent outbreak and spread of COVID-19 world-wide and the precautions put in place by relevant stakeholders in an effort to minimize the spread of the virus, parties to agreements in South Africa are finding themselves in a position where the performance of their contractual obligations are now either arguably impossible or onerous to fulfil.

Whether you are a party that is seeking to rely on the force majeure clause or the party that anticipates that a force majeure clause will be relied upon, your first starting point is to carefully review the provisions of your agreement. A party seeking to rely on a force majeure clause that is included in an agreement, must first examine whether the clause caters for the occurrence of a circumstance such as the results flowing from the spread of COVID-19. This is important as many force majeure provisions are either drafted narrowly or widely. An example of a narrowly drafted force majeure clause is when the provision specifically lists the events which may occur, such as an act of God, a strike, fire or war like operation without making provision for any other event outside of the listed events, which a party may rely on to invoke this clause. Whilst a widely drafted force majeure clause will normally include, in addition to a list of force majeure events, what is known as “a catch all phrase” such as “any event arising beyond the control of the parties, rendering the performance impossible”. Therefore, a party seeking to rely on a force majeure clause due to COVID-19 must ensure that the provisions of the agreement governing the relationship between the parties are wide enough to include this pandemic.

The impossibility of performance must be objectively impossible and not merely cause an inconvenience in the performance of a party’s obligations. An example of an occurrence which may render an obligation in a contract impossible, is one where the law changes and the performance becomes illegal. For example, the impact of sudden import restrictions which may make the importing of goods illegal and thus rendering the supply of goods by a party impossible. Therefore, even if an agreement caters for an occurrence such as COVID-19, a party must prove that the result flowing from the existence of the pandemic renders the performance of their obligations impossible, in order to be excused of any liability arising from non-performance. It is the result of the pandemic that may render the performance impossible and not just the mere occurrence of the pandemic.

Parties must also be mindful of those agreements they have entered into which are subject to the fulfilment of suspensive conditions (terms in an agreement that must be met after the signing of the agreement in order for the whole agreement to come into effect).  Some of these suspensive conditions include a “material or adverse change” clause. The purpose of a material or adverse change clause is to provide parties with the option to terminate their agreement if there arises a material or adverse change, through no fault or act of their own, during the period provided for the fulfilment of the suspensive conditions.  However, if what constitutes a material or adverse change is not clearly defined in the agreement, the interpretation of a material or adverse change may have limited application depending on the provisions of each agreement. We recommend that any party with such a clause incorporated in their agreement, who is either seeking to rely on the clause to terminate an agreement or is on the receiving end of such a clause, to seek legal advice before taking further steps.

It is worth noting that the principles discussed above are not only applicable to commercial contracts involving multi-national corporations but are also applicable to contracts involving small medium enterprises, especially considering that the current restrictions issued by the South African government have had an impact on all businesses across the country. For example, the prohibition of gatherings of more than 100 people has resulted in the cancellation or postponement of wedding venue bookings, concerts and conferences, etc. Therefore, it is important that parties revisit the terms and conditions of their agreements in this regard, and seek legal advice in order to ascertain, the relief available in such circumstances, if any.

In the event that South Africa experiences a total shutdown, retailers and wholesalers may wish to ascertain whether the terms and conditions of their lease agreements provide for a review of the terms, a rent reduction or the termination of the lease agreements due to the impact of the virus. Unless an agreement specifically caters for a review of the terms of a lease agreement, reduction in rent amount payable or the termination of the lease agreement in the circumstances of a pandemic, there is no automatic right to review the terms, reduce the rent amount payable or terminate the lease agreement. Therefore, it is important that contract parties first establish their legal position before taking any steps in respect of their agreements.

The law of contract allows parties the freedom to agree and bind themselves to any form of arrangement provided that such arrangement is legal and are at liberty to re-negotiate the provisions of their agreement. COVID-19 is currently affecting every aspect of the global economy and has placed countries in difficult positions. South African President, Cyril Ramaphosa, made it clear that all citizens must work together, in solidarity and in partnership. Therefore, despite the agreed upon provisions of an agreement which may strictly dictate the contractual relationship amongst parties to an agreement, parties are at liberty and may consider re-negotiating in good faith the existing provisions in light of the effects of the pandemic in an effort to mitigate each parties respective loss.


Kelly Mzobe | Candidate Attorney

Sibusile Khusi | Associate

André Visser | Partner  


Commercial Attorney

View Profile



View Profile

POPI Act is good business practice

Recently, the Information Regulator approached South Africa’s President to issue a commencement date of 1 April 2020 for the remaining provisions of the POPI Act.

The government faces growing pressure to take action with the increase in data leaks. Even President Cyril Ramaphosa himself fell victim this year as his private email server was breached.

If a country’s leader can fall victim to cybercrime, just image how vulnerable an organisation or average citizen may be.

To avoid chaos and ensure compliance, companies should start, if not already, implementing good data management practices and processes is a practical and much-needed requirement today. It is good business sense to know what data you have, why you have it, and what you do with it, allowing for valuable insights and gaining consumer trust in turn.


It is uncertain whether POPI will come into effect 1 April, especially when one considers that the government is dealing with various challenges, such as South African Airways (SAA) and Eskom. Implementing POPI now could have significant repercussions for the economy, as it is a costly undertaking.

But on the other hand, no company can afford to ignore data protection and privacy in today’s digitally-driven world, especially when one factors in that the average cost of a data breach is $3.9 million, according to IBM.

Get cracking

When POPI does come into effect, businesses will have a one-year phase-in period to align their processes with the Act’s requirements.

Business budgets are typically under constraints, so having to implement entirely new proper data protection processes to align and comply with POPI will take a substantial amount of time, as seen anecdotally when the General Data Protection Regulation (GDPR) came into effect in the European Union, with experts in the sector having to work endlessly to try and get processes sorted.

Larger organisations will have to appoint teams to work on implementing and aligning data processes for at least a year if they have not already begun the journey, so just imagine the impact on smaller companies.

Talk of POPI is by no means a scaremongering tactic; the reality is there is still a lot of work to be done by organisations.

Compliance is key

Businesses should start their road to compliance by identifying what personal information they collect, from who and where it is stored, while continuously reviewing communication tools used and considering data subject rights.

Companies should also implement compliance training for employees and review their contracts and make necessary amendments to include POPI compliance clauses.

Remember, compliance over complacency. Organisations should consider engaging with a professional on the matter and consult with legal experts to ensure they are sufficiently covered for when POPI comes into force.

Security Safeguards

However, as the world generates and consumes more and more data, companies have become prime targets for online perpetrators resulting in damages if robust IT systems are not in place.

Dealing with the importance of suitable safeguards is emphasised through the inclusion of “Security Safeguards”, one of the eight vital conditions prescribed by the POPI Act for the responsible processing of personal information. The requirements are set out in sections 19 through to 22 of the Act.

Section 19 requires the organization to ensure suitable measures are in place to:

  1. Identify all reasonably foreseeable internal and external risks to personal information held by the entity;
  2. Establish and maintain appropriate safeguards against the risks identified above;
  3. Regularly review these measures to ensure that they are implemented effectively; and
  4. Ensure that these safeguards are consistently reviewed and updated where necessary to keep up to date with the ever-evolving risks associated with the storage and processing of personal information.

The onus falls on the organisation responsible for maintaining the integrity and confidentiality of this information by preventing loss, damage, and unauthorized access to such data.

Ensuring systems are safe and data is managed and protected accordingly is one of the biggest undertakings and most expensive since this relies on an organisation’s IT system. Typically, this is where companies’ biggest risks are.


The costs of a breach can quickly add up, from having to deploy additional resources to implementing new systems, but one of the biggest losses that takes place when an attacker strikes is the immeasurable damage to a company’s reputation.

Since today’s consumers have more options than ever before, brand trust has emerged as an important competitive differentiator. And when breaches occur, consumers quickly lose confidence in a brand, resulting in a lack of trust.

With governments tightening regulations to improve data privacy processes and today’s empowered consumers, there is no room for error.

From diminished goodwill to severe reputation losses and increased customer turnover, a data breach is detrimental to any organisation.

Don’t get left behind

It is no secret that data breaches are on the rise, yet companies are still not prepared or well-equipped for breaches, despite them becoming a common occurrence. As such, they will continue to expose themselves to potential data breaches, loss of intellectual property (IP), and regulatory scrutiny.

One thing is certain, the clock is ticking. Companies need to start working on aligning their systems and relooking at their data policies now to ease future operations by implementing robust IT systems and processes to protect confidential data, which takes a substantial amount of time and a lot of focus.



View Profile

Constitutional Damages gains traction as public service delivery dwindles


The discussions surrounding the phenomenon of constitutional damages has been gaining momentum in the past few years. Interestingly, this remedy is not a very new one in our law. In fact, it has been around since the dawn of our constitutional democracy. The rising momentum around this topic may be attributed to many factors, such as the ever-evolving litigation strategies, laws/precedents regularly set; and the State’s failure to render at least one satisfactory service to the public. Unsurprisingly, the latter is the most pertinent, as one can only claim for such damages where the State has breached a constitutional right. Few examples of where constitutional damages claim have been raised include:

  • Fose v Minister of Safety and Security: where the police had allegedly assaulted a claimant and thus subjected him to degrading, inhumane and cruel treatment.
  • High mast matter, Pretoria: where the municipality had failed to repair a malfunctional high mast light in Soshanguve and it fell on the children resulting to death of five (high mast matter, Pretoria).
  • Kate matter: where the MEC of Welfare in the Eastern Cape unreasonably delayed consideration of a social grant application.
  • Life Esidimeni Arbitration: Health Department terminating its contract with Life Esidimeni Care Centre where after over 1 000 mental healthcare patients were transferred to various unsuitable organisations – this resulted to the death of 144 patients.
  • Komape matter: and, where a young boy from Limpopo drowned in a pool of feces in the school’s pit-toilet.

From these examples, it is obvious that where the State fails to fulfill its constitutional obligations, it must be armed to defend claims for constitutional damages.

Brief discussion of judicial precedent:

Earlier on in our constitutional democracy, a claim for constitutional damages was made in the Fose matter, which may be worth mentioning that the interim Constitution of 1993 was in force at the time when this matter was heard.

In this matter, the claimant alleged that the Police had assaulted him and therefore subjected him to a degrading, inhumane, and undignified treatment.

The Constitutional Court declined to grant constitutional damages as it felt that punitive damages were unjustified. It further held that, if the claimant is successful in proving his case, the constitutional damages will be substantially high and this will, at the end, be at the expense of the taxpayers.

However, the court did caution that where appropriate, a remedy of constitutional damages will be awarded. In the Kate case, there had been delays in the processing of an application for a disability grant and the court granted constitutional damages against the Department of Welfare, Eastern Cape. In the Mahambehlala v MEC for Welfare, Eastern Cape matter, there had been a similar issue with the department unreasonably delaying (for over three months) the social grant application of an unemployed woman. The court ruled in her favour.

There are many similar cases of this nature, including that of Mbanga, where the courts awarded the constitutional damages. The other undoubtedly prominent matter around this subject is the Life Esidimeni Arbitration. Notwithstanding that this was heard through an arbitration and, thus, the findings are not judicially binding, the arbitrator, former Deputy Chief Justice, made substantial constitutional damages’ awards to the affected families.

In the Komape matter, the SCA, just like the high court, rejected the claim for constitutional damages. The court held that, as was explicated in the Fose matter, it would be unjustifiable to grant constitutional damages while the “… public purse could be better utilised…” and that there is no reason why the Komape family should be given an additional award – in addition to the common law remedies.

From the cases above, it is obvious that the applicability of the constitutional damages will always depend on the peculiar circumstances of the case and what is appropriate as a remedy to give effect to the claimant’s rights in each case.

Did Tshwane Metropolitan Municipality sense the danger from afar?

In a widely reported incident of November 2017, five children died instantly while playing under the malfunctional high mast light when it fell over them in Soshanguve, Pretoria. Months prior to the infamous incident, the community had been pleading with the authorities to resolve the issue of the light as it had been poorly maintained and, thus, poised a risk to the community members. The municipality covered the funeral expenses and had undertaken to pay for families’ counseling needs – which never materialised.

Triggered by the Municipality’s incalcitrant attitude, the Baloyi family instituted a claim wherein, amongst other, heads of damages, claimed constitutional damages.

The matter was quickly settled amicably between the parties, late in 2019. This was undoubtedly a great victory for the family but a missed opportunity for the judicial precedent, as it would have been interesting to see how the court(s) would deal with the constitutional damages claim. In this sense, the City of Tshwane might have sensed danger from afar and accelerated settlement.

Filled with remorse over the incident, the offers in respect of the 3 (three) claimants were consolidated and therefore did not specify the amount tendered for each head of damage. Therefore, one would not know whether the offer was made for constitutional damages and, if it was, how much was tendered in respect thereof. It may have been a missed opportunity for the development of the law, it is, however, a great victory for the family who finally saw justice prevailing.


With the standard of service delivery by the State expeditiously deteriorating, it will be a surprise if a growth in matters concerning constitutional damages are claimed.

The State is delaying processes (Kate, Mahambehlala, etc.), failing to properly maintain the infrastructure (Baloyi), failing to properly build proper infrastructure (Komape), and making irrational decisions (Life Esidimeni). Therefore, there is a good chance of seeing interesting developments in this regard. Also, while our courts are being justifiably cautious in awarding constitutional damages (Komape and Fose) in that substantial awards will not deter inferior service and it will be at the expense of taxpayers, they should not turn a blind eye on the possibility that until they take such measures, the public service delivery may not improve. Simply put, the State will not fear doing wrong if there are no dire consequences. What will most likely happen is that various State organs will be consistently involved in lengthy and costly litigation and, in turn, will hurt the public purse – maybe even worse. Prime example would be the MEC of Welfare, Eastern Cape, which has been litigating over similar matters on several occasions and is likely to continue because the awards made are not severe enough. Whilst it is more of the Executive’s duty to improve the public service delivery – all three arms of government have a duty to hold one another accountable in one way or the other, even if it means taking potentially drastic measures.




View Profile

The Future of Work and Skills for the Changing Nature of Work | A look at the Legal Profession

“It is not necessary to change. Survival is not mandatory.”

The legal profession is very open-minded about new things, as long as they’re exactly like the old ones. It is infamous for its staunch adherence to tradition, under the guise of “certainty” and (mostly) at the expense of innovation.

Traditionally, the nature of work, including in the legal profession, has been structured around the 40-hour work week in a brick-and-mortar setting. This approach was desirable as it allowed the best way for people to gather in one place in order to connect and collaborate towards a common purpose. However, in view of the constant improvements to the ways in which we connect, it is imperative that legal practitioners continue to think and rethink about how we approach the concept of work and the concomitant skills required for the continued advancement of the profession.

For example, from a leadership perspective, the old guard will certainly have to forgo its “command and control” style, and opt, instead, for a more collaborative and shared accountability approach.  The modern legal practitioner is no longer motivated by the tired and out-dated orthodoxies of the carrot-and-stick “aggressor” style of leadership, but is instead more receptive to benevolence and compassion.

In the same vein, the legal profession in the automation era demands increased flexible human capital. It is no longer sufficient (and has not been for a long time) to simply “know” the law in order to practice the law (successfully). Instead the future practitioner  is required to augment his or her existing legal knowledge with various other skills, including an extensive understanding of the impact of technology and how to effectively maximise its application to the legal industry, as well as how to optimise technology to better analyse data or implement  pattern-recognition algorithms to enable the practitioner to better service clients.

That being said, the artificially intelligent advancements and technological developments are resulting in a much more legally savvy client, with very different expectations of how legal services should be delivered and how justice should be administered.

In fact, many jurisdictions around the world are seeing a proliferation in so called “Alternative Legal Service Providers” (ALSPs), which are organisations that perform many of the tasks traditionally undertaken by law firms, by leveraging technology and streamlining processes in ways that are new to the legal industry, and often at more cost effective rates.

Accordingly, increased advancements in technology is necessarily resulting in wider, more efficient and cost-effective access to justice, which should be a welcomed development.

Percy Shelley’s “Ozymandias”

I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them, on the sand,
Half sunk, a shattered visage lies, whose frown,
And wrinkled lip, and sneer of cold command,
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The hand that mocked them and the heart that fed:
And on the pedestal these words appear:
‘My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!’
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare
The lone and level sands stretch far away.


The legal profession and individual practitioners should be intentional about thinking and adapting to these changes, failing which it risks sharing a fate with Shelley’s ‘Ozymandias’.



View Profile

Don’t just ‘Shake On It’

It is not uncommon for the contracting parties to a written agreement to verbally agree on additional terms or terms which are intended to vary the content of the written agreement. This is often done with honest intentions, as having to conclude additional or varying terms in writing to the existing agreement may be perceived as an unnecessary hindrance to efficiently doing business. Parties eager to “get things done” will often simply “shake on it”, relying on the belief that that the other party will honour its verbal undertaking.

Such verbal varying of written contractual terms generally work out well for the contracting parties, until they don’t! In this regard, our law restricts the nature and extent of the evidence that may be brought when a dispute arises regarding the content and meaning of a written agreement. The applicable principle is known as the Parol Evidence Rule.

In terms of the Parol Evidence Rule, where the parties have reduced their agreement to writing, the written agreement becomes the exclusive memorial of the transaction and no evidence may be led to prove its terms other than the document itself, nor may the contents of the document be contradicted, altered, added to or varied by verbal/oral evidence. So-called ‘non-variation’ and ‘whole agreement’ clauses in written agreements are also expressions of the Parol Evidence Rule.

In an attempt to circumvent the Parol Evidence Rule, parties in legal proceedings have been known to advance argument that the agreement between the parties concerned had been ‘partly in writing’ and ‘partly oral’ and by doing so they attempt to  rely on evidence which would otherwise be inadmissible.  This was the case in a recent matter of Mike Ness Agencies CC v Lourensford Fruit Company (Pty) Ltd (922/2018) [2019] ZASCA 159 (judgment handed down on 28 November 2019), in which the Supreme Court of Appeal (“SCA”) was called upon to consider the trite Parol Evidence Rule.

The matter related to the drilling of a borehole on the property of the Respondent. The facts of the matter are briefly as follows: The parties had concluded a written agreement in terms of which the Appellant undertook to “guarantee water within 70 meters” and that “if no water was found at 70 meters [it] would drill from 70 meters to 100 meters free of charge”, and that according to its “No water. No pay policy” the Respondent would not be liable to pay unless water was found. The Appellant subsequently commenced drilling and at a little over 20 meters water was found (more water was found throughout the drilling and drilling was eventually stopped at a depth of 76 meters). The Respondent, however, refused to pay the Appellant alleging that the Appellant had verbally agreed to a yield of 10 000 liters per hour, failing which, the Appellant agreed it would not charge any fees.

The SCA confirmed in this matter that the considerable amount of evidence led by both parties regarding their negotiation and what their intentions had been, was inadmissible even as part of the context in which the agreement was concluded.

In relation to the allegation that the agreement was partially in writing and partially oral the court referred to the decision of the court in the matter of Affirmative Portfolios CC v Transnet Ltd t/a Metrorail 2009 (1) SA 196 (SCA) in which it was held that the Parol Evidence Rule “prevents the admission only of extrinsic evidence to contradict or vary the written portion, without precluding proof of the additional or supplemental oral agreement”.  This is often referred to as the Partial Integration Rule, which has the effect that extrinsic evidence regarding the oral part of an agreement is only admissible to the extent that it does not vary or contradict the written terms of the agreement. In other words, the written terms of the agreement will prevail where the alleged oral terms purport to vary or contradict such written terms.

The court in the Mike Ness Agencies CC v Lourensford Fruit Company (Pty) Ltd found in favour of the Appellant and quoted, with approval, the statement by the court in the matter of KPMG v Securefin 2009 (4) SA 399 (SCA) regarding the implications of the Parol Evidence Rule, namely that “interpretation is a matter of law and not of fact and, accordingly, interpretation is a matter for the court and not the witnesses”.

While the Parole Evidence Rule is a trite principle of our law, it is seldom enforced in practice. The court in the Mike Ness Agencies CC v Lourensford Fruit Company (Pty) Ltd matter has, however, re-affirmed its application.

Parties should therefore always record any variations or amendments to agreements in writing.



View Profile

Understanding Parental Leave in South Africa

For some time, section 27 of the Basic Conditions Employment Act (“BCEA”) entitled employees to a minimum of four days of family responsibility leave in certain circumstances, for example, when an employee’s child is born. In terms of the recent amendments to the BCEA, the provision entitling an employee to family responsibility leave on the birth of an employee’s child has been repealed (leaving the remainder of section 27 intact).

The BCEA has been amended to introduce provisions relating to parental leave, adoption leave and commissioning parental leave, effective 1 January 2020.

What do the amendments provide?

Parental leave – also referred to as paternity leave

An employee, who is a parent of a child is entitled to 10 consecutive days of parental leave.  They are entitled to take this leave on the first occurring date between the date the child is born; the date an adoption order is granted; or the date that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order.

An employee who intends to take parental leave must submit at least one calendar month’s written notice to their employer of the date on which they intend to commence parental leave and when they plan to return to work, known as “parental leave notice”.

However, an employee is not required to submit the parental leave notice if the employee is unable to do so. It is arguable that if an employee’s child is born prematurely, more than a calendar month prior to the expected date of birth, the employee is not required to submit parental leave notice, but rather is entitled to it.

An employee is also not required to provide parental leave notice if it is not reasonably possible to do so.  It is arguable that this may occur if an employee is abroad with no means (such as no internet connection – heaven forbid) to submit the parental leave notice in time (i.e. at least one calendar month before the employee intends to commence parental leave).  The employee is, however, required to notify the employer in writing of the date that they intend to commence parental leave and return to work as soon as it is reasonably possible for them to do so.

Adoption leave

An employee who is an adoptive parent of a child below the age of two is entitled to 10 consecutive weeks of leave or the parental leave referred to above.

The employee may commence adoption leave on the first occurring date between the date the adoption order is granted or the date that a competent court places such a child in the care of an employee who is a prospective adoptive parent, pending the finalisation of an adoption order in respect of that child.

An employee who intends to take adoption leave must submit at least one calendar month’s written notice to his or her employer of the date on which they intend to commence adoption leave and return to work thereafter, known as “adoption leave notice”.

The employee is not required to submit adoption leave notice if they are unable to do so or if it is not reasonably possible to do so.  However, if it is not reasonably possible for the employee to do so, they are required to provide written notice to their employer of the date that they intend to commence adoption leave and return to work, as soon it is reasonably possible to do so.

If an adoption order is made in respect of two adoptive parents, or if a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, the employee may either take parental leave or adoption leave, provided that this election is exercised at the option of the two adoptive parents. In other words, an employee in these circumstances may opt for parental leave or adoption leave (not both).

Commissioning parental leave

An employee who enters into a surrogate motherhood agreement envisaged in terms of the Children’s Act is entitled to 10 consecutive weeks of leave or the parental leave referred to above.

In terms of the Children’s Act, a surrogate motherhood agreement is an arrangement whereby an adult female is artificially fertilised for the purpose of bearing a child for a parent (in this case the employee seeking to take commissioning parental leave) and hands over such a child to the parent upon the birth of a child with the intention that the child becomes the legitimate child of the parent. The parent whom the child is handed over to, is referred to as the commissioning parent.

The employee may commence commissioning parental leave on the date that the child is born.

An employee who intends to take commissioning parental leave must submit at least one calendar month’s written notification to his or her employer on the date which they intend to commence commissioning parental leave and when they plan to return to work after commissioning parental leave, known as “the commissioning parental leave notice”.

As with parental and adoption leave, the employee is not required to provide the commissioning parental leave notice to the employer if the employee is unable to do so, or if it is not reasonably possible to do so.

If it is not reasonably possible for the employee to do so, the employee is required to provide written notification to the employer of the date that they intend to commence commissioning parental leave and return to work after commissioning parental leave, as soon it is reasonably possible to do so.

If a surrogate motherhood agreement has two commissioning parents, the employee may either take parental leave or commissioning parental leave, provided that this election is exercised at the option of the two commissioning parents.

Is parental, adoptive, and commissioning parental leave paid or unpaid in terms of the BCEA amendments?

In terms of the BCEA amendments, these types of leave are unpaid. However, employers may opt to make all, or a portion of  such leave paid, as is often the case with maternity leave.

Qualifying employees in terms of the Unemployment Insurance Act (“UIA”) may nevertheless apply for payment benefits in terms of the UIA.  However, apart from claiming parental leave benefits, the provisions of the UIA have not yet been amended to process claims for adoption leave and commissioning parental leave.

It is unclear when the UIA will be amended to cater to such claims. Furthermore, although the UIA has been amended to allow employees to claim parental leave benefits, the amendments which deal with the percentage payable in respect of such claims are not yet in force. This may give rise to practical difficulties.

Practical tips

Employers are required to in terms of section 29 of the BCEA provide written particulars of employment, which includes the leave an employee is entitled to. The written particulars are usually contained in employment contracts and/or employment policies.

Section 29 of the BCEA also provides that if there is a change in an employee’s leave entitlement (as would be the case here – by virtue of the aforesaid amendments), employers are required to revise the written particulars and supply employees with a copy of the document reflecting the change.

Accordingly, and depending on the circumstances, it may be appropriate for employers to seek to amend employment contracts and/or update employment policies to reflect the leave entitlements considering the recent BCEA amendments.

Depending on the wording of employment contracts or circumstances it is possible that an employee may be entitled to paid family responsibility leave if an employee’s child is born, notwithstanding that the amendments to section 27 no longer entitle employees to such leave (as touched on above). It may, therefore, be worthwhile for employers to seek appropriate amendments to employment contracts in this regard.  It is important to bear in mind that any amendment to an employment contract requires the consent of the employee.

This article was prepared by Irshaad Savant, a Senior Associate, and Thandeka Mhlongo, Associate, both practicing at Adams & Adams employment law department.

For any queries, please contact one of our team members.

Please note that this article serves only as a guideline and that specialist legal advice should be sought where appropriate.


Senior Associate

View Profile



View Profile



View Profile

Technology and the Law | Instant Contracting

In the era of social media and instant messaging, the courts are constantly challenged to develop the common law to accommodate the ever-changing environment. Recently, the Supreme Court of Appeal (SCA) was asked to pronounce on whether a WhatsApp message, in which a man indicated he would pay each of his children R1 million if he won R20 million, gave rise to an enforceable contract.

It transpired that the appellant, Mr. Ntsieni Kgopana, actually won R20 814 582 in the National Lottery (Lotto). When questioned about his winnings by the respondent, who is the mother of one of the appellant’s seven children, the appellant denied that he had won the Lotto and sent her a WhatsApp message saying: “If I get 20m I can give all my children 1m and remain with 13m…”

When the respondent obtained proof that the appellant had, in fact, won the Lotto, she relied on the appellant’s WhatsApp message to claim payment of the R1 million for her minor child.

The High Court found that the WhatsApp message constituted a binding agreement and ordered the appellant to pay the amount owed to the mother of his child.

However, on the 2nd of December 2019, the SCA overturned the High Court’s decision and held that the WhatsApp message did not contain an offer that could, on acceptance thereof, be converted into an enforceable agreement. In interpreting the message, the SCA held that the context strongly suggested that the appellant never intended to agree to part with a portion of his winnings and that the message simply relayed what the appellant could do in the hypothetical future event of him receiving R20 million.

Even though the SCA found in the present case that the WhatsApp message was not a binding contract, it does not mean that a WhatsApp message can never give rise to binding legal obligations.

As a general rule, there are no prescribed formalities for the conclusion of a contract. All that is required is an offer and an acceptance, and consequently, consensus between the contracting parties. It is also important to note that acceptance of an offer need not be expressed in words, as it can also be established by conduct, from which the inference of acceptance can logically be drawn.

Individuals must, therefore, exercise caution when negotiating or making offers online and via instant messaging as those expressions could create legally binding agreements.



View Profile

Watch: Demi Pretorius on Morning Live

Soshanguve family set to receive substantial compensation from City of Tshwane

On 4 November 2017, Fanie Baloyi, 11 years old at the time, was killed along with four other children from the community when a high mast light ring and flood lights dislodged and fell on them.

Following Fanie’s tragic death, his mother and two sisters approached Adams & Adams Attorneys, to institute legal action against the Tshwane City Council.

A summons was subsequently issued against the City Council, out of the High Court of South Africa, Gauteng Division, Pretoria, for the emotional shock and trauma the family suffered following Fanie’s passing.

In court papers filed on behalf of Fanie’s family, it was alleged that the high mast light was damaged for several years, the City Council was well aware of the damage and despite City Council workers attending to work on it, it remained damaged.

The papers maintained that the City Council had failed to remove the high mast light, or cordon off the area so that it did not pose a danger to members of the community. This failure was a flagrant violation of the City Council’s Constitutional duty to maintain and foster a safe and healthy environment wherein South Africans should live.

The City Council, initially, blamed the damage to the high mast light on vandalism by unknown third parties and on the community’s failure to report the damage. Additionally, whilst acknowledging its Constitutional duty, the City Council alleged that this duty was limited in accordance with its available resources.

In a recent turn of events, however, the City Council has offered to pay the family R700,000.00 in damages. The offer has been accepted by the family. Read the IOL Report online here.

For details regarding this, or similar personal injury queries, contact the Personal Injury team at Adams & Adams.



View Profile

Annual events, annual accidents? What victims need to know

With our South African diversity, it is not surprising that we have several major annual events, where people gather and celebrate, in the same spirit. Events such as Reed Dance, Macufe Festival, and AfrikaBurn, in addition to the various events hosted by religious groups, over Easter and December, for example, draw in large crowds. While jubilation and contentment are always ostensible, one harsh reality that cannot be ignored is the many lives that are lost in the process, while others severely injured in car accidents en route.

Often, the victims are unaware of what legal remedies are in place and those who do not know where to go or if their claims are valid.

Usually, when such accidents occur, the government would intervene, providing medical assistance or funeral costs. Occasionally, the government even promises to assist with counselling. However, this seldom materialises.

Given the limited knowledge and unfortunate position the families find themselves in, they appreciate such assistance and believe that is the end of the road. However, legally, there are further remedies in place which they should not hesitate to seek. Firstly, the institution from which the victim can claim is determined by the circumstances surrounding the incident and, importantly, how exactly the incident occurred. Typically, a claim will be against either the Road Accident Fund (RAF), relevant Municipality, transportation company, or insurer, and so on. Sometimes, the relevant Member of the Executive Council (MEC) of Health, or even a natural person may be drawn in. This is not, however, a closed list, as the prevailing circumstances will determine who to claim from. It must be noted, the law in South Africa stipulates a “once and for all” rule, which means you can only lay a one for one incident. For example, you may not claim from the RAF and receive compensation and then move on and place a claim against the transportation company, etc.

One can claim for a number of reasons and factors which are considered accordingly. These include instances where a victim passes away as a result of the incident, their family may claim for loss of support; funeral expenses; medical expenses, where applicable; emotional shock and trauma, and so on.

In the case of the victim surviving, there are also a number of claims one may consider, including, claiming for past and future medical expenses; loss of earnings/earning capacity; general damages; emotional shock and trauma; constitutional damages, and so forth.

The amount of compensation a victim is entitled to is influenced by several factors, including, inter alia, one’s level of education; age; academic performance and/or achievements; career path; pre-existing conditions; disability pay-outs, where relevant; severity of the injuries sustained; ,effect on their physical appearance, and more.

At times, you find victims involved in the same incident wondering why their compensation, with regards to its nature and the amount, differ, and some even suspect foul play by their legal representatives. In very rare circumstances will the compensation be the same because each claim is determined on its own merits. The difference is rooted deep in the underlying purpose of the compensation, which is to try as far as possible to restore the victim to his/her original position. The purpose of compensation is, contrary to general perception, not to enrich the victim/victim’s family.

The events’ importance and value need not be gainsaid. As such, they, together with the stakeholders, need to be protected. They are important for the economy, tourism industry, cultural, and religious reasons. The fear, however, of such major accidents serves as a “pushing  factor”, to the detriment of the economy, tourism and so on.

For example, following one of the major Reed Dance car accident in 2013, most parents decided against sending their girls to the event due to fear. These events are indispensable and the government; organisers; relevant organisations need to intensify their efforts in minimising such accidents. Where, however, the unfortunate transpires, victims need to be wary of the legal remedies available. Even if they get medical, funeral and counselling assistance, it does not end there, they are entitled to claim for compensation, the nature and amount of which will depend on the prevailing circumstances of each case.

by Mtho Maphumulo | Associate


Litigation Attorney

View Profile



View Profile

Road accident claims | A big win for cohabiting partners

It is trite law that upon the death of the breadwinner, the spouse can claim for loss of support from the Road Accident Fund (RAF). However, trite has never defined what the legal position is when it comes to cohabiting partners. As such, the Jacobs case is ground-breaking. Setting a new precedent, the case will help potential claimants going-forward. Needless to say, the circumstances surrounding each individual case will ultimately determine the outcome.

Case summary:

In the matter of Jacobs, the deceased, a married man, was involved in a motor vehicle accident (MVA) on 12 August 2015, succumbing to his injuries on 14 September 2015.

Having been romantically involved for some time, the deceased had proposed to the claimant, and had been date set to solemnise their union. However, this was subject to the finalisation of the deceased’s divorce from his wife.

While married, the deceased had moved into the claimant’s house, living together with the claimant’s minor children.

Unemployed and solely dependent on the deceased for the entire duration of their relationship, the claimant and her children received on-going financial support from the deceased.

In coming to a conclusion, the court considered the couple’s plans and intent to wed, as well as the pertinent fact that the deceased supported the claimant and her children, willingly while alive. Therefore, the claimant was eligible to claim for loss of support.

In arriving at its conclusion, the court considered various factors, such as the equality clause of the Constitution of the Republic of South Africa, and particularly the fact that the Constitution expressly prohibits discrimination on the basis of marital status. The court also took cognisance of the tacit agreement between the deceased and the claimant that created a legal obligation on the deceased to maintain the claimant. The court further highlighted that for six years, the deceased had been the sole breadwinner, financially supporting the claimant and her minor children, therefore fulfilling this obligation. Furthermore, the parties had committed to wed once the deceased’s existing marriage was officially dissolved.

As expected, a court debate delved into the boni mores discussion. One would argue that it is against public policy for court to allow someone, who had been cohabiting with a married man, to claim for loss of support. The court, however, concentrated on its inextricable and inherent constitutional duty, such as developing the common law in a manner that promotes the spirit, purport and objects of the Bill of Rights, as enshrined in the Constitution.

The court opportunely reflected on the Constitutional Court’s case of Du Plessis v De Klerk where Kentridge AJ highlighted the point that “Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country.” Kentridge AJ warned Judges to avoid perpetuating certain public rules whose social foundation has long melted.

Judgement pro’s and con’s

From the onset, it is important to reflect on the significance of marriage. It is common knowledge that the coming into existence of marriage brings about socially accepted legal duties/obligations and corresponding rights. Additionally, marriage legitimises certain forms of conduct which would otherwise be generally be frowned upon if manifested by unmarried couples. It also establishes critical  legal certainty. Therefore, there is significant room at which to argue that the Jacobs case would surely fly on the face of the institution of marriage.

Furthermore, a valid argument one may present is that it perpetuates cohabitation, which is still frowned upon by many in society and, even more so in the African communities. It also places many people, more so African women, in a perilous situation. For example, you find that most married African men in South Africa move to the urban areas where there are job opportunities. Once settled in a city, many cohabit with other women. As a result, women cohabiting will be able to claim from the RAF if men are found to be financially supporting them.  Although the widow can obviously still claim, there is an added burden on the RAF – especially considering the RAF’s financial predicaments of late.

On the other side of the coin, this judgement is indeed a momentous win for some. The reality is, for many in It today’s society, getting married poses a challenge as a result of financial constraints – the unemployment statistics speak for themselves. Therefore, for many, the win means they are not able to cohabit, and should the breadwinner die, they can claim for loss of support.

The case will help future potential claimants who find themselves in the same predicament as did Ms Jacobs.

The case will help future potential claimants who find themselves in the same predicament as did Ms Jacobs.

In addition, in reality many cohabit and therefore, to deprive them of an opportunity where they can claim for loss of support, based on their marital status, would be unfair and contrary to the values of the Constitution.

Furthermore, this judgement will bring about certainty as to the legal position for cohabiting partners.

As indicated above, the circumstances of each case will determine whether the claimant is entitled to compensation or not and, at this juncture, it is worth noting the sentiments shared by Mokgoro J and O’Reagan J in the matter of Volks NO v Robinson, where the court  noted various reasons why some partners decide to cohabit. It held that some may be living together and have no intention of permanence at all; some may be living together because there are legal or religious impediments to their marriage; others as a means to circumvent legal consequences that are inherent to marriage; and some cohabit with the intention of permanently being together with the view of getting married.


Legal practitioners will need to seriously and thoroughly consider and investigate the circumstances of a potential claimant before deciding whether to pursue a claim or not. Undoubtedly, the Jacobs case will be of a stern persuasive value to other courts, however, they – the courts – will not be oblivious to the peculiar circumstances of Jacobs case. Therefore, the enormous risk that legal practitioners run if they do not do their homework thoroughly, is a Locus Standi Special Plea – which means that the payment by the RAF cannot be made until the Locus Standi has been established (simply because lack of Locus Standi, strictly speaking, does not invalidate the claim). Jacobs case has indeed opened a wide room for similar cases and it will certainly be interesting to see how and what other courts rule in cases of this nature.

by Mtho Maphumulo | Associate


Litigation Attorney

View Profile



View Profile

The new Memorandum of Agreement between Competition Commission and ICASA explained

On 29 August 2019, at the 13th Annual Competition Law, Economics and Policy Conference a signing ceremony was held a new MoA between the Commission and the Independent Communications Authority of South Africa (“ICASA”).

The Competition Act 89 of 1998, as amended, provides that where a sector regulator is empowered with jurisdiction in relation to prohibited practices and merger control, concurrent jurisdiction is established. The Commission can conclude a MoA with the sector regulatory authority in order to facilitate cooperation between the sector regulator and competition authorities where competition matters overlap with sector-specific regulatory responsibilities.

ICASA, the sector regulator for communications, is responsible for regulating and developing the telecommunications, broadcasting and postal industries in the public interest. It also issues licences to telecommunications and broadcasting service providers, hears and decides on disputes and complaints brought against licensees, and controls and manages the effective use of radio frequency spectrum. In carrying out its mandate, ICASA is required to promote competition in the ICT sector.

The new MoA replaces the MoA previously concluded between the two regulators in 2002 which was criticised for its failure to create a coherent regulatory framework in relation to merger appraisals, market inquiries and the regulators’ respective roles. Some of the issues which arose as a result of the lack of certainty as to concurrent jurisdiction include:

  • Confusion in relation to the deliberation of competition concerns in mergers and acquisitions:

In Telkom SA Soc Limited v Mncube NO and Others,[1] ICASA approved an application for the transfer of a spectrum license (a critical constraint in the telecommunications sector) from Neotel to Vodacom and deferred the consideration of competition concerns to the Commission. The court found that ICASA had a statutory obligation to promote competition and its failure to take the competition concerns into consideration was materially influenced by an error of law.

  • Forum shopping:

In Competition Commission of South Africa v Telkom SA LTD and Others,[2] Telkom sought an order confirming that ICASA had exclusive jurisdiction in relation to allegations of anti-competitive conduct levelled against it. The court found that the Commission and ICASA share jurisdiction and that the competition authorities not only have the required jurisdiction but are also the appropriate authorities to deal with the complaint.

  • Duplication of market review efforts:

ICASA undertook an inquiry into mobile broadband services to determine whether there any segments of the value chain which are susceptible to regulation while the Data Market Inquiry was well underway.


The new MoA aims to:

  • Facilitate effective coordination for market definition for electronic communications, broadcasting and postal services;
  • Define collaborative roles for each institution in areas of co-jurisdiction; and
  • Facilitate information sharing and research between the regulators on matters of mutual interest.

The revised MoA introduces co-operation principles which  the Commission’s primary authority in respect of the review of mergers as well as the detection and investigation of prohibited practices. The MoA further establishes ICASA’s primary authority to set conditions within the sector as required, and to promote competition in terms of its governing legislation (e.g. the ICASA Act,2000, the Electronic Communication Act, 2005 and the Postal Services Act, 1998).  It further expressly provides for the jurisdiction of the Competition Tribunal in respect complaints where the Commission is the recipient authority and designates officials within the respective authorities as contact persons for purposes of the agreement.

The MoA may go some way towards leveraging the complementary functions between the two authorities (i.e. the specialist knowledge of the sector regulator on the one hand and the competition expertise of the competition authority on the other) and ensuring optimal regulatory outcomes.

We invite you to contact our Competition Law and Telecommunications Team if you have any questions in relation to the MoU or any related matter.


Jac Marais | Partner

Nalo Gungubele | Associate

Mia de Jager | Associate

[1]              Telkom SA Soc Limited v Mncube NO and Others Mobile Telephone Networks (Pty) Ltd v Pillay NO and Others; Cell C

(Pty) Limited v The Chairperson of ICASA and Others; Dimension Data Middle East & Africa (Pty) Ltd t.a Internet Solutions v ICASA and Others (55311/2015; 77029/2015; 82287/2015) [2016] ZAGPPHC 93 

[2]              Competition Commission of South Africa v Telkom SA LTD and Others (623/2009) [2009] ZASCA 155


Commercial Attorney

View Profile



View Profile


Litigation Attorney

View Profile

The Grocery Retail Sector Market Inquiry preliminary report on Exclusive Lease Agreements

On 30 October 2015 the Competition Commission established the Grocery Retail Sector Market Inquiry (the “Inquiry”) with the purpose to assess amongst others, the impact of long-term lease agreements entered between property developers and national supermarket chains. 4 years on, the Inquiry has published preliminary findings and recommendations.

The Inquiry found that the existing features in the grocery retail sector distort competition between national supermarket chains, wholesalers and independent retailers. In particular, the significant buying power that national supermarket chains have over property developers and suppliers places them in strong positions to influence the terms of agreements, such as demanding exclusive leases, low rentals, and rebates which only they qualify for. Furthermore, it was established by the Inquiry that the level of concentration in the formal retail sector that national supermarket chains have is reinforced by the high levels of barriers to entry that appear to exist in the value chain, such as the access to property for business purposes. According to the Inquiry it is common cause that entry into this sector requires access to property in order to operate a successful and profitable business, and that the current structure of the broader retail market involving all its stakeholders is not competitive, dynamic and fair.

In response to its findings, the Inquiry formulated several prohibitions and recommendations that according to the Inquiry, would facilitate the entry and expansion of specialist and emerging retail chains in shopping malls nationwide. The remedial action set out by the Inquiry would be reflected in a voluntary industry code of conduct that would apply to the national supermarket chains, their subsidiaries and successors in title immediately and in future. Although the dominant supermarket chains; Shoprite, Pick n Pay, Woolworths and Spar, were specifically named, the application of the remedial action should be understood to apply generally. You can read our summary of the Inquiry recommendations and their effects here.

There exist several concerns with the approach which the Inquiry has opted for and the direction which the recommendations appear to be geared towards, least of which is the significance of the complexities in analysing exclusive lease agreements and the blanket approach the Inquiry seems to have adopted. The above slant is challenging particularly because exclusivity clauses fall within the ambit of Section 5 and 8 of the Competition Act, 89 of 1998 (“the Act”), which provide that an agreement will only be prohibited if its net effect is anticompetitive. Thus, exclusivity clauses will only be problematic from a competition law perspective if any anti-competitive effects are not outweighed by pro-competitive gains.

We had hoped that during the preparation of the final report, the consultations that were scheduled to take place in the preliminary stages would be accommodating enough to consider all perspectives before the report is finalised. This hope has since become a reality. On Friday, 5 July, the Inquiry rolled back on their hard-line position to force the dominant supermarket chains to cease entering into exclusive lease agreements, on the foot of submissions received following the release of the preliminary report. The extent of the representations given was substantial enough to cause the Inquiry to also extend the deadline for the final report to November this year.

Now that we have an indication of the receptive nature of the Inquiry, it would be reasonable to expect a final report that is considered and sensible. To the extent that the report is concluded in a less favourable manner, we remain hopeful that an ombudsperson as well as a new regulatory framework will foster an environment where legitimate concerns are considered and addressed with the level of fairness we have come to expect from our competition authorities. For everything in between, we invite you to contact us for any competition law related matters in general or for advice on the specific impact that the Grocery Retail Market Inquiry could have on your business.


Njabulo Mazibuko | Candidate Attorney


Commercial Attorney

View Profile


Senior Associate
Commercial Attorney

View Profile


Commercial Attorney

View Profile

Assigning High Demand Spectrum in the ICT Sector – A possible hybrid method

The telecommunications sector is the backbone of the of the digital economy. Access to spectrum is essential for speedy, reliable and affordable access to world class networks and communications which form the basis for online activities and more broadly, participation in the Fourth Industrial Revolution. The recent withdrawal of the Electronic Communications Amendment Bill (“EC Amendment Bill) has added to policy uncertainty in relation to the assignment of spectrum.

Last year the Department of Telecommunications and Postal Services (now the Department of Communications) issued a Draft Policy Direction to Independent Communications Authority of South Africa (“ICASA”) on the licensing of unassigned high demand spectrum (“HDS”) for public comment which gave some insight into how spectrum might be assigned.   In terms of the Draft Policy Direction, the assignment of spectrum to licensees would have been subject to conditions related to the controversial Wireless Open Access Network (“the WOAN”), a policy proposal in terms of which spectrum would be assigned to a wholesale network operator and made available to operators on the basis of open access principles. Following the withdrawal of the EC Amendment Bill, the WOAN as well as other policy interventions that were introduced in the Bill, are unlikely to materialise in the near future.

In his 2019 budget speech, Minister of Finance Tito Mboweni indicated that the Minister of Communications, Ms Stella Ndabeni-Abrahams, would be issuing another policy direction which is likely to propose new conditions for the issuing of spectrum licenses. At this stage, the method of assignment (i.e. market-based or administrative) is yet to be confirmed. The various policy decisions available to ICASA in relation to the assignment of HDS are unpacked below.

Why We Should Care About How Spectrum Is Assigned?

Spectrum is an essential, finite, sovereign resource which makes wireless communication possible.

Spectrum, in different radio frequency bands have different quality propagation characteristics which determine the level of investment required to achieve certain levels of coverage. The quality and cost of data network services are a function of, amongst other factors, how much spectrum an operator has. Making more spectrum available to operators is expected to result in cheaper data and lower network roll out costs, which may encourage price competition in the retail market.

Operators are clamouring over the release of HDS because of its propensity to deliver next-generation mobile broadband services (5G) as well as enable technologies which are dependent on high-speed internet (e.g. AI, Internet of Things (“IoT”)). The amount of harmonised frequency bands is limited, and the “scarcity” is aggravated by delays in the assignment of existing HDS and increasing growth in data traffic.

The availability of spectrum does not only promise significant commercial gains but can also aid in the realisation of social goods, such as increased access to ICT infrastructure to underserved areas, e-commerce, lower the cost of online activity, promote the digitisation of local content as well as the development of digital skills necessary to bridge the digital divide and ensure inclusive participation in the Fourth Industrial Revolution.

An Auction Is Not The Only Way To Assign Spectrum

Since the President’s announcement that the licensing of spectrum should be expedited, many have waited in anticipation of an auction of the unassigned HDS. An auction, however, is not the only way for spectrum to be assigned. Other methods include Comparative Evaluations, also known as a Beauty Contest, Lotteries, First-Come-First-Serve (“FCFS”) as well as Secondary Assignment Methods. In terms of the Electronic Communications Act 36 of 2005 (“the ECA”), ICASA has a dual mandate to ensure both economic (e.g. competition, innovation, investment) and developmental outcomes (e.g. affordability, availability and accessibility to electronic communications). Spectrum is a public resource and the public interest needs to be at the forefront of any spectrum management strategies. The method which ICASA uses in issuing spectrum licenses could impact how effectively it is able to realise both economic and social objectives and address the issues in a sector characterised by few competitors, high barriers to entry, and a lack of countervailing buyer power.

  1. Auctions

Auctions are the most popular/dominant method for the assignment of spectrum given the associated potential for revenue generation for the fiscus and efficiencies. An Auction will provide ICASA with an opportunity to determine how much operators value spectrum. An underlying assumption of an auction is that the operator who places the highest value on spectrum is most likely to create the highest social as well as economic value with the scarce resource to ensure a return on investment. This assumption has been questioned in light of recent studies by the European Commission which have shown that operators paying high auction prices have not necessarily translated into higher investment or superior network availability.

In 2016, ICASA issued and Invitation to Apply (” ITA”) in terms which it intended to conduct an auction of HDS. The Minister of the then Department of Telecommunications and Postal Services challenged ICASA’s decision to issue the ITA for its failure to follow process and make the necessary policy considerations, and successfully interdicted the proposed auction pending the finalisation of the review. The dispute has since been settled between the Minister and ICASA in an effort to heed the President’s call to expedite the licensing of HDS.

Some clues could be drawn from the 2016 ITA on how ICASA could go about auctioning spectrum. ICASA could adopt a three-stage process. The first stage would be the qualification stage, where the applications are assessed against certain criteria (e.g. technical or financial capability). The auction would occur in the second stage where applicants submit bids for the radio frequency bands that they want. At this stage, a widely adopted form of auction is the Simultaneous Multiple Rounds Auction (“SMRA”). In terms of this process, bids are placed on a variety of frequency bands (simultaneously) and the different categories or lots of spectrum remain for sale until bidding activity comes to end. Once bidding activity comes to an end, the bid enters the third and final stage where the winning bidder is issued with a license subject to a license fee and licensing conditions. The conditions could relate to, among others, technical restrictions of use, obligations to meet certain coverage targets as well as providing open access to mobile virtual network operators with a specified ownership level for Historically Disadvantaged Individuals.

Other forms of auction include Spectrum Reserve Auctions and Combinatorial Clock Auctions (“CCA”). In a spectrum reserve auction, a reserve or minimum opening bid price is set for participation in the auction. The 2016 ITA set a reserve price of R3 billion per lot of spectrum which was argued to be prohibitive by some operators. Many countries, such as Canada and some European regulators, are adopting the CCA due to its ability to encourage truthful bidding and maximize value. The auction is conducted in two rounds known as the clock phase and final bid round. In the clock phase, bids are made on various generic lots of spectrum with individual price clocks that increase continually depending on the level of interest for each lot until bidding activity comes to an end. In the supplementary round, bidders are allowed to make sealed bids of their best and final offers. In the clock phase bidders are believed to reveal their preferences through their bids and cannot make bids inconsistent with their initial offering in the supplementary round. In the final round, the winning bidders are determined based on the highest value combination of bids. The final price that the winning bidders pay is based on the value of the other bids submitted and / or a set reserve price to ensure that the spectrum is not undervalued and is set at a competitive price.

Although popular, auctions do present challenges such as:

  • “The Winners Curse”: Operators could overvalue spectrum and bid more than is necessary to win a specific lot of spectrum. A counter argument to this would be that this loss is calculated beforehand and accounted for accordingly.
  • The potential for collusive bidding: Auctions are also conducive for collusive bidding between the bidders in order to manipulate auction outcomes and what would have been the bidding prices, in the absence of collusion, resulting in a loss of revenue.
  • Compromised policy objectives: Auctions are often criticised for placing revenue generation over the realization of policy objectives. ICASA could provide for this by making the assignment of spectrum subject to policy related conditions (e.g. the level of HDI ownership and or universal service obligations).
  • Low bidder participation: Auctions often attract incumbent operators with deeper pockets submitting bids. This could pose a threat to ICASA’s intention to increase market participation in the sector and entrench the current market structure.

These unintended consequences can, however, be curbed through activity rules to manage the behaviour of bidders throughout the auction, placing caps on spectrum ownership and setting aside spectrum to facilitate the entrants of new players.

  1. Comparative Evaluation – “The Beauty Contest”

As an alternative to an auction, ICASA could also allocate spectrum licenses by way of comparative analysis or so-called beauty contests. Applications would be considered against weighted criteria which could include socio-economic imperatives. Licenses would then be allocated to applicants based on their ability to meet the criteria. In the past, Sweden’s telecommunications authority allocated 3G spectrum licenses by way of a two-stage beauty contest. The first stage served to ensure that the applicants were technically and financially competent to fulfil the obligations set out in their applications and roll-out their network. The comparative evaluation of the submissions would happen in the second stage and the license awarded based on the applicant’s suitability considering the pre-weighted criteria.

The disadvantages associated with beauty contests include:

  • A long and drawn-out and costly process of assignment.
  • The decision process is not the most transparent given the complexity of the criteria being assessed and depends highly on the good judgment of the regulator. This is particularly problematic given that operators may have asymmetric information over the regulator as to what the most efficient use of spectrum would be.
  • The regulator is vulnerable to lobbying and being accused of corruption or favouritism.
  • The absence of a price discovery mechanism, as in the case of an auction, may lead to spectrum being undervalued.
    1. Lottery

Anotssignment method for spectrum licenses is a lottery, whereby spectrum licences are issued through random selection. Even though this method offers a relatively speedy and inexpensive process for the assignment of licenses, it could lead to spectrum being allocated to operators who do not have the competencies to ensure optimal use of the resource and roll out their networks. In 1982, the United States issued spectrum by way of a lottery in an effort to expedite access to spectrum and lower the costs for entry into the market. This method of assignment was quickly abandoned as the lottery attracted speculative bidders who had no intention to provide services and who went on to sell their rights in secondary auctions at exorbitant prices. Its worthy to note that the ECA does not permit the transfer, cession and assignment of spectrum licenses without regulatory oversight.

  1. First Come, First Served

This method of assignment is best suited for circumstances where there is an abundance of spectrum and often results in incumbents acquiring spectrum. In this case, the regulator can accept applications for a predetermined number of assignments. Where the demand exceeds the amount of assignments available it is likely to use other methods (auction or beauty contest) to ensure a more efficient outcome.  However, should the assignments available be sufficient to meet the level of demand or applications submitted the regulator will proceed to issue licenses.

Secondary Assignment Mechanism: Spectrum Trading and Sharing

The withdrawal of the EC Amendment Bill also saw the withdrawal of provisions relating to spectrum trading and sharing. Spectrum trading refers to the trade of spectrum licenses along with the attached rights (e.g. the bands available for use, the geographical area, the use to which it can be put) and obligations. Spectrum sharing enables multiple entities to make use of a radio frequency band in a specific geographic area simultaneously. Introducing secondary markets is particularly useful in assisting new and smaller players to gain access to a scarce resource and enter the market without incurring the costs of setting up their own networks and thus lowering the barriers to entry. Oversight by the regulator is however required to ensure that these transactions to not distort competition in the sector.

Could a hybrid process be the answer?

Given various economic and developmental interests that ICASA and the Minister need to balance, it may be necessary to adopt a hybrid method of assignment. For instance, where the objective is to facilitate the entry of a new market participant, a market-based approach or auction could pose a significant barrier to entry and entrench the already existing market structures.

Conversely, a method which is heavily reliant on a subjective assessment (e.g. beauty contests) may result in an allocation of spectrum to operators who are technically inefficient and unable to extract the optimal economic value from the assignment. Ultimately whatever method is used to assign spectrum licenses, socio-economic imperatives should be prioritised without stifling innovation and investment in the sector to ensure that South Africa can fully capitalise on the opportunities presented by spectrum availability.


Nalo Gungubele | Associate, Adams & Adams

Jac Marais | Partner, Adams & Adams



Commercial Attorney

View Profile



View Profile

Listen | The Intellectual Property information gap, the risks and opportunities for value creation, and how to get there.

There appears to be a yawning gap between good governance and the role of intellectual property disclosure and value creation. The global and local trend is toward better and increased governance, reporting, transparency and disclosure. There’s increasing spend on governance, but there is very little attention paid by boards to the intangibles on and off the balance sheet, and to the relationship between intangibles and intellectual property.

Power FM’s Iman Rapetti spoke to Darren Olivier and Adv. Annemarie van de Merwe about the recent examples of IP mismanagement, ignorance and under-reporting. How should boards dela with the opportunities, risks and governance of intellectual property?

The challenge for board members is multi-faceted. The role of the auditor and accountant in valuing and recording intangible assets on the balance sheet is far from clear. This is both an international and national debate and concern that internally generated intellectual property is not disclosed in annual accounts, leading to sometimes significant under and over valuations of business entities. This presents both risks and opportunities for businesses. With the increasing rise of the value of intangibles over tangibles in corporate value over time, the dearth of information relating to a businesses intellectual property is a real concern.

There is a desperate need for the education, accurate disclosure and scrutiny of intellectual property at a board level. So where should the education process begin? There needs to be a step-by-step approach to IP, education, identification, disclosure and governance, with a focus on self-audits, the need for IP advisors, a management plan, and an IP narrative. The message is clear: Boards have a duty to recognise the role of IP in governance and value creation.

For assistance in identifying and developing good intellectual property management plans, contact our team of IP strategists and governance experts.

Darren Olivier []

Danie Strachan []


Trade Mark Attorney

View Profile


Commercial Attorney

View Profile

Listen | The Application to set aside the resolution to liquidate Bosasa

On 14 February 2019 a resolution was taken by the board of directors to voluntarily liquidate the African Global Group of companies, better known as Bosasa. Since then liquidators were appointed by the master of the High Court and have commenced with the liquidation process. Yesterday the holding company of Bosasa brought an application to the High Court Johannesburg to set aside the resolution.

Apparently, it was argued in the papers filed by the holding company that the person who signed the resolution was not aware of the import of the document which he so signed and that it was never the intention to liquidate the company.

Allegations were apparently made that the companies in the group are, in fact, trading as solvent entities.

It was further alleged that because of the above facts, the entire process that has occurred since the master appointed liquidators is, as a result, a nullity.

Amongst others the liquidators filed opposing papers to the application to set aside, raising points in limine as well as on the merits of the application.

In limine the liquidators argued that:

  1. in terms of section 354 of the Companies act, the only persons who may bring such an application to set aside are the liquidators, a member ( shareholder) or a creditor and that the present applicant does not fall within one of those categories of persons;
  2. the application is not urgent as the resolution is more than three weeks old and, therefore, the application to set aside should have been brought far sooner; and
  3. parties with a material interest such as the employees and SARS, who were supposed to have been joined, were not joined by the applicants to the application.

On the merits of the liquidators raised various arguments indicating that the person who signed the 14 February resolution had taken further steps after that date 14th which steps all indicate that he knew full well what the import of the document was that he was signing.

The matter is being argued in the High Court today (13 Mar 2019) and we will report on the judgement as soon as it becomes available.



View Profile

ANC’s proposed changes to the Road Accident Fund will prejudice 20 million children

The African National Congress (“ANC”), the dominant political party in South Africa, is pushing hard to prejudice approximately 20 million children, with a proposal to change the Road Accident Fund (“RAF”), prior to the upcoming elections.

The Road Accident Benefit Scheme Bill (“the Bill”) was recently revived in Parliament, after lapsing at the end of last year, due to a failure to reach a quorum in the House, following a unanimous “walk out” by opposition parties.

Opposition parties have regularly voiced their objections to certain provisions in the Bill, which among other things, sets the stage for an unaffordable ‘dual system’ of compensation. All liabilities in respect of vested rights under SA’s pre-Constitution legislation and accrued in terms of the 1996 Road Accident Fund Act must be met before the existing dispensation is terminated.

The Bill provides for a no-fault benefit scheme and a new Administrator, replacing the current RAF. The Bill intends moving away from an insurance – based system, which has been in operation in South Africa for many years, to a system of defined and structured benefits. An insurance – based system endeavors to place the victim of a motor vehicle collision in the same position he/she was before the accident.

The ANC is attempting to hoodwink the public into believing the Bill is in their best interest, by proclaiming far and wide that the Bill will root out unscrupulous lawyers and doctors, who have been benefiting from the RAF at the expense of accident victims. The Bill is, however, designed to serve no other interest than that of government. The Bill will result in victims facing huge bills, whilst receiving little or no compensation.

Of great significance is that children, who are permanently injured in motor vehicle collisions, will only have limited claims for loss of income against the Administrator. The claims will be calculated based on the average national income, completely disregarding the child’s academic potential. To add insult to injury, the Bill also takes away a victim’s right to sue the common law wrongdoer. By way of analogy, a child intending to study medicine, but who is permanently injured in his/her final year of schooling, will receive compensation based on the average national income, as opposed to what he/she could have earned out of a career in medicine. The same holds true for students who have not entered the labor market.

According to Mr. GA Whittaker, a highly acclaimed actuary, there are currently approximately 20,826,633 children under the age of 18 years in South Africa.

According to figures supplied to the Road and Safety Organization, namely Stay Alert Stay Alive, which figures they believe to be relatively accurate, 810,000 people are injured in traffic collision each year in South Africa, made up as follows:

  • 742,500 requiring treatment at the scene or in a casualty department;
  • 67,500 requiring admission to hospital for a day or longer.

Section 12(1)(c) of the Constitution ensures the right to be free from all kinds of violence from either public or private sources. When a child is injured in a motor vehicle collision, this right is severely compromised. In addition thereto, the Bill limits a number of other constitutional rights, including:

  • The right to social assistance;
  • The right to dignity;
  • The right to equality.

Unfortunately, the RAF’s administration or the lack thereof, is in dire straits. This has resulted in a large percentage of the fuel levy being expended on administrative costs, resulting in it not reaching the victims of motor vehicle collisions, which it is actually intended for.

If the Bill is approved, children permanently injured will only be entitled to limited compensation, severely prejudicing their constitutional rights.


Commentary by Jean-Paul Rudd | Partner



View Profile

Suspending your employee. The Long and the short of it

The Constitutional Court in Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7, recently held that ‘there is no requirement’ for an employer to afford an employee an opportunity to make representations why the employee should not be suspended (in the case of precautionary suspensions), prior to suspending the employee.

An employee usually suspected of having committed serious acts of misconduct is placed on what is termed a ‘precautionary suspension’, either before, during and/or pending the finalisation of the investigation and/or resultant disciplinary hearing.  A punitive suspension on the other hand, is meted out to an employee as a sanction, usually following a disciplinary hearing.

The Long Story

On 19 February 2019 the Constitutional Court handed down judgment in an application seeking leave to appeal against a judgment of the Labour Court relating to two review applications, one concerning Mr Allan Long’s dismissal and the other his suspension prior to dismissal.

Mr Long was previously employed by South African Breweries (SAB) as, district manager for the Border District. His duties required him to maintain the legal compliance requirements pertaining to a fleet of vehicles. In May 2013, a trailer owned by SAB was involved in a fatal accident, and it was alleged that the was in a state of disrepair and unlicensed before the accident. The company suspended Mr Long to ensure that an investigation into allegations of misconduct against him was unhindered. SAB subsequently charged Mr Long, convened a disciplinary hearing against him and dismissed him.

Mr Long challenged his suspension as unfair labour practice in terms of the Labour Relations Act (“LRA”).  He also challenged the fairness of his dismissal.  The CCMA held that his suspension was unfair inter alia, because he was not afforded an opportunity to make representations to show why he should not be suspended.  The CCMA also found that his dismissal was procedurally fair but substantively unfair and ordered his reinstatement (it did not find him guilty of any acts of misconduct).

The company subsequently challenged the CCMA’s findings on review to the Labour Court. The Labour Court was of the view that:

(a) Mr Long’s suspension was not an unfair labour practice, and

(b) he was guilty of one of the charges, a ‘dereliction of duties and, as a result, the arbitrator’s award was unreasonable’.  The Labour Court, accordingly, reviewed and set aside the arbitration award in the dismissal dispute and substituted the CCMA’s finding in the unfair labour practice dispute.

Dissatisfied, Mr Long ultimately applied for leave to appeal against the Labour Court’s judgment to the Constitutional Court.  He argued inter alia that the Labour Court’s finding that employees are not entitled to a pre-suspension hearing does not pass constitutional muster. He also took issue with the length of the suspension (some 3 months) and with various aspects of the dismissal dispute.

The court highlighted the different implications between precautionary and punitive suspensions.  The court reasoned that because Mr Long’s suspension was ‘precautionary’ and not ‘punitive’, requirements relating to fair disciplinary action (such as the right to be heard prior imposing any disciplinary sanction in relation to allegations of misconduct) in terms of the LRA cannot find application.  Accordingly, the court held that there was no requirement to have afforded Mr Long an opportunity to make representations prior to his suspension.

In assessing the requirements of a fair suspension, the court held that the suspension ought to be for a fair reason and the question whether the employee is prejudiced as a result, must be asked.  The court held that the Labour Court’s finding, that it was for a fair reason (for an investigation to take place), cannot be faulted. The court also mentioned that a suspended employee on full pay, will generally ameliorate prejudice suffered by the employee. In relation to the dismissal dispute, the court was equally of the view that the challenge lacked merit.  In the circumstances, the court refused to grant leave to appeal.

The Short Story

What are possible implications of the judgment in respect of precautionary suspensions?

  1. The judgment is ground-breaking in the sense that it is no longer a procedural requirement, for purposes of the Labour Relations Act, for an employer to at least afford an employee to make representations why the employee should not be suspended prior to deciding whether to suspend the employee.
  2. An employee may however nonetheless challenge a suspension as an unfair labour practice if:
  • a disciplinary code and/or an employment contract and/or collective agreement requires an employer to afford the employee an opportunity to be heard (or make representations) prior to being suspending but denies the employee this opportunity;
  • it was not linked to protecting the integrity of the pending or ongoing investigation (into possible allegations of misconduct) and/or disciplinary hearing;
  • it is without pay or in the absence of a pending or ongoing-investigation;
  • it is for an unreasonably long period (although it remains to be seen whether our courts will accept that a suspension with pay will always remedy any prejudice an employee may suffer as a result).
  1. Public sector employees may argue that in terms of administrative law they are entitled to be heard or to make representations why they should not be suspended, prior to possibly being suspended.
  2. An Employer may nevertheless afford an employee an opportunity to be heard and/or make representations why the employee should not be suspended prior to deciding whether to suspend the employee.

In light of the Constitutional Court judgment, it is vital that employers review the applicable policies regulating suspensions.


Irshaad Savant | Senior Associate

Aslam Patel | Associate

Thandeka Mhlongo | Associate


Senior Associate

View Profile

Bosasa has announced their voluntary liquidation. What is the legal process?

On 19 February 2019, the African Global Group of companies (better known by its trading name, Bosasa) reported that it intends applying for its voluntary liquidation.

It reported that this decision was taken by the board of directors of Bosasa after being notified by its bankers that the groups’ bank accounts would be closed, with effect from the 1st of March 2019.

The following information will to help understand the steps that the board must take going forward, the estimated duration of the process and how this decision will affect Bosasa employees and suppliers.

What steps must the board of Bosasa take?

In terms of South African Company Law, a solvent company may be wound up voluntarily if the company has decided to do so. This decision is taken by the board of directors at a meeting called for this purpose. The board must pass a resolution providing for the voluntary winding up which resolution must be filed with the Companies office also known as CIPC.

Once the resolution is so lodged, CIPC will communicate with the Master of the High Court who will, in turn, appoint joint-liquidators to attend to the administration of the liquidation of the business of Bosasa.

The liquidators will then call for a meeting with the board in order to gain an understanding as to amongst others the reasons for the voluntary liquidation and the financial position of the company and will then prepare a report to creditors and employees dealing with the assets and liabilities of the company and ancillary matters.

The liquidators will then proceed with the administration process which includes collecting of debts due to the company, valuing and realizing assets of the company, receiving claims by creditors and employees of the company etc

Liquidators will also be responsible for the convening of creditors’ meetings at which the liquidators will seek directions from the body of creditors, ask creditors to vote on resolutions and to accept proof of claims by creditors and employees.

How long does the process take?

There is no prescribed period in the legislation. This entire process could be completed in as little as as three months. However, in a complex liquidation, it may become necessary for the liquidators to call for interrogations of directors and other parties who conducted business with the company, especially if the liquidators or creditors are of the view that certain transactions by directors need to be investigated and monies paid to others (in dubious circumstances) need to be recovered to be utilised to pay creditors. In such a case the liquidation may take some years to finalise.

What will happen to the employees and suppliers?

As far as employees are concerned, the effect of a voluntary liquidation is to suspend the contracts with employees. Employees are not obliged to continue rendering services but are also not entitled to remuneration.

It is improbable in our view that the liquidators will sell the business of the company as a going concern. However, if this should occur, then the labour legislation provides for the transfer of employees/ their service contracts to the purchaser of the company’s business. If this cannot be achieved, then employees are regarded as preferential creditors for up to 3 months’ worth of arrear wages, with the balance to be claimed as unsecured creditors.

The situation of suppliers is somewhat different. If the liquidators decide, in the case of an essential service provider, to ask the supplier to continue rendering its services to the company, then the supplier would be paid from the so-called administration expenses. The question whether a supplier will receive payment of its pre-liquidation claim will largely depend on whether it has security for its claim.

Creditors who would have security would for example be the banks who could hold either mortgages (over immovable property owned by the company) or cessions and pledges of book debts, as security for the banking facilities and loans made to the company.

It is unlikely that a supplier of, say for example, stationery to Bosasa would have any security which it could rely on for payment of its claim and such a supplier is then regarded as a concurrent creditor. Concurrent creditors only share in the reminder of the proceeds of the sale of assets of the company after preferent and secured creditors’ claims have been settled.


Leander Opperman  | Team Leader, Insolvency Law Group, Adams & Adams

Vuyokazi Ndamse | Senior Associate

Michael Bullock | Candidate Attorney


Corporate Attorney

View Profile


Senior Associate

View Profile

What the new Competition Amendment Act means for South Africa’s economy

President Cyril Ramaphosa has signed the Competition Amendment Bill (“the Amendment Act”) into law. It is a significant moment for competition law and enforcement in South Africa. The Amendment Act, while controversial on certain aspects, recognises that the economy must be open to greater ownership by a greater number of South Africans.

In a statement issued on Tuesday, the Presidency said that the amended legislation would address “concentration and economic exclusion as core challenges” to dynamic growth in the country.

The Amendment Act aims to address structural constraints in the economy through these seven key focus areas:


By strengthening the Competition Commission’s powers in relation to market inquiries and impact studies. As recently seen with the Health Market Enquiry, the purpose of a market enquiry is for the Competition Commission (“the Commission”) to investigate a particular market and to make recommendations to address structural concerns, high levels of economic concentration and economic transformation within a specific market or industry. Presently, the Commission has no explicit power to act on its recommendations.

The Amendment Act will empower the Commission to act to remedy, mitigate or prevent the adverse effect on competition by making recommendations to the Competition Tribunal (“the Tribunal”). The Commission is further mandated to publish a report to the Minister with recommendations, which may include, recommendations for new or amended policy, legislation or regulations; and recommendations to other regulatory authorities in respect of competition matters.


The Amendment Act will increase the role of public interest grounds in the consideration of mergers. Therefore, the promotion of a greater spread of ownership for historically disadvantaged persons and workers in the market, as well as their ability to enter into, participate and expand within a market will be central in merger analysis on public interest grounds. This will further lead to the promotion of competition and economic transformation through addressing the structural constraints, for example a greater spread of ownership, within a market.


A reverse onus on dominant firms to show that the price of its goods and services is reasonable, the list of prohibited conduct has been expanded and previous ‘yellow card’ offences will now result in an administrative penalty.


The Minister will be empowered to participate in merger proceedings and applications for exemptions, specifically in relation to public interest grounds. In terms of the Amendment Act, the Minister has the right of appeal against a merger decision of competition authorities if it has substantial public interest implications for a particular industrial sector.


The President may constitute a National Security Committee which will be responsible for considering whether the implementation of a merger involving a foreign acquiring firm may have an adverse effect on the national security interests of South Africa.


The Amendment Act further clarifies provisions of the Act relating to prohibited practices, restricted horizontal and vertical practices, abuse of dominance and price discrimination through the addition of various definitions. The definitions added in the Amendment Act include margin squeeze, average avoidable and voidable cost, predatory prices etc. These additions will assist firms, as well as the competition authorities with the interpretation and assessment of various prohibited practices. Of further relevance is the substitution of ‘consumer’ to customers which allows for greater protection since all customers involved in commercial transactions would now be protected from excessive prices, as opposed to consumers only.


The increase in penalties for contraventions of the Act from 10% to 25% of a firm’s annual turnover if conduct constitutes a repeat offence. The Group/ Controlling firm may be held liable jointly & severally for an administrative penalty.

For more information on the Amendment Act, please contact the Adams & Adams Competition Team at


Mia de Jager | Candidate Attorney – Adams & Adams


Commercial Attorney

View Profile


Senior Associate
Commercial Attorney

View Profile