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

Is it Justice or an extension of Prescription Period : Masindi vs Road Accident Fund

In South Africa, generally, prescription is regulated by the Prescription Act 68 of 1969 and in delictual, contractual (or any other liability), the prescription period is three years. The Prescription Act also delineates when prescription commences and how can it be interrupted. Sometimes, particularly in medical malpractice matters, the lines may be blurred as to when prescription commences. In RAF matters, the Road Accident Fund Act regulates its own prescription periods and the pertinent provision in this regard is Section 23. In terms of the provision, the claim “shall prescribe upon the expiry of a period of three years from the date upon which the cause of action arose”. Section 23(3) provides that “[N]o claim which has been lodged in terms of section 17(4)(a) or 24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose.” The SCA, in the matter of Masindi vs RAF, and, subsequently, the Pretoria High Court, in the matter of Gabuza vs RAF, the courts were faced with an intricate situation where, plainly put, they had to decide whether to deprive claimants few days (from the prescribed three years) or grant an extra day, in favour of the claimants.

In Masindi, the claimant, and her minor child, had suffered injuries as a result of a motor vehicle collision which occurred on 17 June 2009 and she, subsequently, instituted an action against the RAF in June 2014. The last day to issue summons fell on a Monday, 16 June 2014 which is a public holiday and, thus, the court was closed. The main issue for determination was how the five-year prescription period was to be computed where the last day of the five-year period fell on the day when the court is closed, so the summons could not be issued and served. The high court had dismissed the Special Plea of prescription, as raised by the RAF. It held that a strict and literal application of Section 23 would lead to injustice and, that, would not have been the consequence purported by the legislature. The SCA upheld the high court’s decision and developed the law, in accordance with the dictation of the Constitution of the Republic of South Africa, 1996, Section 39.

Almost three months after the SCA’s decision in Masindi, the Pretoria High Court heard and delivered a judgement in an almost similar case, in the matter of Gabuza vs RAF. The difference between Masindi and Gabuza is that, with the latter case, the issue was about the alleged late lodging of the claim with the RAF and not with issuing and service. In Gabuza, the collision occurred on 22 March 2012 and was lodged on 23 March 2015. Thus, the last day for lodging would have been 21 March 2015, which fell on a Saturday. Even more interesting, Section 24 of the RAF Act stipulates two alternative methods of lodging i.e. via registered post and by hand. It was argued on behalf of the RAF that the claimant could still have lodged via registered post on a Saturday, 21 March 2015. The court, albeit accepting that the three-year period of lodging lapsed on 21 March 2019, it considered the practical reality that in South Africa, Post Offices close at 13h00 on Saturdays and the ensuing impossibility to lodge a claim for the remainder of the day that would equal the normal hours of an ordinary work-day. Against this background, the court adopted the Masindi case principle i.e. the next working day is the last day to lodge.

From the two abovementioned cases, it seems as though the courts are inclined to grant claimants a further day or days than depriving them a day or few days. In the matter of Masindi, had the court held that the last day for issuing and serving was Friday, 13 June 2014, the claimant would have been deprived of at least three days and, thus, her matter would have prescribed before a “complete lapse” of five years. A similar result would have ensued in Gabuza, had the high court held otherwise – though the claimant had some hours to lodge the claim on the exact last day.

It may, correctly so, be argued that the courts’ decisions disregard the purpose of the prescribed prescription periods. In the matter of RAF and Another vs Mdeyide, the Constitutional Court elaborated, in detail, the functions of statutory time limits (prescription periods) and held that, inter alia, the prescription periods bring about certainty and stability to social and legal affairs and helps maintain quality of adjudication. Further, the fact of the matter is, in these two cases, when the claimant issued and served (in Masindi) and lodged (in Gabuza), the statutory time periods had lapsed and yet, they had three and five years, respectively, to attend to the necessary, in order to comply with the statutory time limits. Furthermore, the approach adopted in these matters has the effect, particularly in South Africa where there are so many public holidays, of affording claimants almost a further week to lodge or issue and serve and, thus, there is a solid ground upon which the stance adopted by the courts in the these two matters may be opposed.

On the other hand, the courts raised pressing justifications for their respective decisions. In Masindi, the court took cognisance of the purpose of statutory time limits and balanced that with the constitutional right, access to courts, in terms of Section 34. It also highlighted the absurd ramification of deciding otherwise i.e. the potential claimant could not be able to claim from the Fund. It further explained that the RAF Act is a social legislation and, against this fact, adopted a purposive approach. In line with Section 39 of the Constitution, the SCA had regard to foreign law, English law. It proceeded to mention that the aim should be to protect the right afforded to the claimants in terms of Section 34 and that, failure to issue summons was a question of impossibility to perform and the impossibility was not of the claimant’s own doing nor created by her, but the law. To hold otherwise, so the court proceeded, would lead to injustice. Many would probably be more inclined to accept the courts’ decisions because, firstly, to deprive the claimants a day or few days would not be in accordance with the prescription provisions of the RAF Act and, the Constitution. Secondly, the claimant cannot be penalised for the court’s closure – that is not within his/her power. Thus, the courts’ decisions may be applauded for these reasons.

In light of these matters, it seems trite that, in such matters, justice would get preference over an interpretation that would lead to absurd result. In doing so, the courts are giving true effect to the spirit, purpose and objective of the Constitution. The courts’ decisions are even more plausible, specifically, in RAF matters, considering the nature of the claims – it sometimes takes a while before a potential claimant can get legal assistance. Interestingly, the court, in Masindi, emphasised that each matter will be decided on its own merits. This then permeates further matters of similar nature to be adjudicated upon in future. Of importance, however, from Masindi and Gabuza matters, the courts provided direction and certainty in matters where the last day for lodging or issuing and serving falls on dies non.


Mthokozisi Maphumulo | Associate


Litigation Attorney

View Profile

Rugby League star’s family to receive compensation following his wrongful death in hospital

The High Court in Pretoria has ruled that Gauteng’s current Health MEC, Dr Gwen Ramokgopa, must pay for all damages sustained as a result of a local rugby league player’s death at the Steve Biko Hospital.

On 18 September 2015, Zacharius Johannes De Lange had sustained a spinal cord injury whilst playing a rugby league game for the Silverbacks against the Predators. Medics, present at the time of the incident, transferred the injured De Lange to the Steve Biko Hospital by ambulance.

Following De Lange’s admission at the Steve Biko Hospital, he was diagnosed as an incomplete quadriplegic. Incomplete Quadriplegia occurs when there is damage to the cervical spinal cord. Medical personnel at Steve Biko scheduled De Lange for a cervical decompression on 20 September 2015, in an attempt to reduce the compression.

But De Lange developed significant respiratory dysfunction and eventually passed away on 21 September 2015, from cardiac arrest, despite attempts to resuscitate him.

The family believed that De Lange’s death was preventable and a summons was subsequently issued against the MEC for Health in the Gauteng Province, out of the High Court of South Africa, Gauteng Division, Pretoria.

In expert reports filed by Adams & Adams, it was alleged that the standard of medical care, treatment, management and monitoring of De Lange fell way below the skill, care and diligence one could have expected from medical personnel in a similar situation.

Despite the MEC, Dr Ramokgopa, denying the alleged negligence, and appointing two counsel to defend the matter, Judge Rangata ruled this week that the MEC is liable to compensate De Lange’s wife and two children for 100% of the damages they sustained following De Lange’s passing.

A quantum trial date, to determine the damages due, will now need to be obtained.

Jean-Paul Rudd | Partner 



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

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

A ‘Triple Distilled’ Summary of recent Trade Mark SCA Cases

In the past twelve months, South Africa’s Supreme Court of Appeal has handed down four judgments concerning trade marks. Adams & Adams Partner and Chairman, Gérard du Plessis, provided insight into the repercussions of those outcomes for trade mark owners at this year’s Crammer™ event. Watch the video presentation, along with other interesting discussions below.

Crammer is an annual Adams & Adams event that has been running for a decade. Its aim is to digest legal developments and issues of the year into a morning’s session by providing short, sharp insights with practical tips, and is designed for busy inhouse legal practitioners, executives, C-suites, and managers.

This year the general theme is based around the concept of RE.VISION – a review and future looking event analysing trends such as blockchain, AI, disruption and the law. Tech guru, author and broadcaster, Simon Dingle, opened this year’s event with an enthralling look at the origins and dynamics of cryptocurrency, debunking myths surrounding Bitcoin and blockchains, and an outline of what the new era of money means for individuals and for business.

This was followed by an compelling panel discussion exploring current insights on the effect of technology and changing consumer dynamics in the provision of legal services – with interesting perspectives from industry, technology experts, and legal service providers.

“Recent SCA Trade Mark Rulings.”

The full breakaway presentation by Adams & Adams Partner and Chairman, Gérard du Plessis – South Africa’s Intellectual Property Litigation Attorney of the Year 2018. Gérard gives us his ‘Triple Distilled’ summary of recent judgments in trade mark matters before the Supreme Court of Appeal.

“We’re talking about money, baby!”

How has the decentralised-network nature of cryptocurrencies like Bitcoin changed the rules of economies and transactions.

Watch excerpts from the address by FinTech expert, SImon Dingle, at Crammer 2018, hosted in Sandton by Adams & Adams.

“Identifying the future lawyer.”

Excerpts from the discussion with Former Global Head of IP at The Coca-Cola Company, Danise van Vuuren, moderator and A&A Partner, Darren Olivier; Helen Burt (Former Head of Legal at Tyme and IP Counsel at Barclays Bank), Daren Mudaly (Chief Data Architect & Engineer and Co-Founder of Pepper Potts), and Andre Visser (Partner at A&A).

“Privacy Laws and Direct Marketing.”

The full breakaway presentation by Adams & Adams Partners, Jenny Pienaar and Dr. Danie Strachan. How are regulations such as GDPR (Europe) and South Africa’s iminent POPI Act changing the way direct marketers access and utlilise your data?

“Getting High on IP Rights.”

The full breakaway presentation by Adams & Adams Partner, Alicia Kabini and Senior Associate Kareema Shaik. The Constitutional Court recently ruled that the private cultivation and use of cannabis is permissible. If commercial production and retail becomes legal, what are the IP and trade mark considerations for marijuana products

“Rapid Prototyping, the IP Conundrum.”

The full breakaway presentation by Adams & Adams Partner, Werina Griffiths. Rapid prototyping and 3D printing are the Fourth Industrial Revolution’s answer to alternative manufacturing process. What legal challenges is additive manufacturing presenting for intellectual property laws? 

The Crammer event has grown into the most popular intellectual property event in South Africa offered by a law firm and now incorporates general legal topics. Breakout sessions included a variety of relevant and interesting topics such as blockchain, the legalisation of marijuana, corporate forensics, privacy laws, direct marketing, artificial intelligence, labour law and recent trade mark litigation matters at the SCA.

The 2018 edition of Crammer was closed out by a panel discussion led by A&A Associate, Nic Rosslee, exploring best practices for incentivising, nurturing, managing and commercialising innovation within businesses, and the risks of not doing so, from a legal perspective.

“Institutional Intrepreneurship?”

Excerpts from the panel discussion led by A&A Associate, Nicholas Rosslee. The panel included FORT’s Shukri Toefy, Uber Eats’ David Mitchell, Stuart van der Veen of Nedbank CIB, and A&A Partner, Jac Marais.

For Media Queries, or access to Presentations and Videos, contact Mark Beckman []

Botched medical procedure? Here’s what to do.

A number of publications have reported recently on the horrific story of Sandra Skinner – the Pretoria mom of three – who is claiming compensation for more than R1.8million from a doctor after her breast reduction surgeries went horribly wrong.

She alleges in court documents at the High Court in Pretoria that she was under the impression that Dr Charl Marais, a General Practitioner in Centurion, had enough specialist training to undertake plastic and reconstructive surgery on her breasts.

Skinner approached Adams & Adams Attorneys after it became apparent that the service rendered by the doctor was negligent, and the botched procedures would leave her horribly disfigured for life. Attorney, Jean-Paul Rudd, a Partner at Adams & Adams, says that a verbal agreement was reached with Marais that he would render a professional service and that he had extensive specialist training and experience to carry out the plastic surgery and reconstructive surgery.

“In regard to the terms and conditions as part of the quotation, the claimant admits that the risks were explained and that there could be post-operative complications which may require corrective surgery,” he adds. “But Marais would have been expected to deliver a professional service with the equivalent care and zeal that would be expected from a specialist in the same circumstances.”

Unfortunately such incidents, where it can be shown that medical professionals have neglected their legal obligation and are negligent, are becoming commonplace.

So what steps should you take if you, or a loved one, find yourself in a similar position?

Information to provide to your attorney:

  • You should be able to provide your full medical history pre- and post-operation.
  • You DO NOT need to have a Police case number.

What is the procedure in bringing your case to the attorney?

After consultation with the client, we source all the medical records. Upon receipt thereof, we brief an expert to indicate whether there was negligence involved on the side of the practitioner and/or hospital.

If so, counsel is brief to prepare a particulars of claim, and a summons is issued.  The matters are usually defended, and will proceed to trial, or alternatively, settled at the footsteps of the court. The whole process takes between 3 and 4 years.

What types of medical matters do our attorneys assist with?

Any form of medical negligence! However certain matters such as ‘complications resulting from a hysterectomy’ don’t generally proceed to a successful outcome.

For assistance or advice, contact Jean-Paul Rudd


Telephone. 012 432 6000



View Profile

What happens when negative information comes to light concerning successful job applicants?

In Eskom Holdings v Fipaza & others [2013] 34 ILJ 549 (LAC), in 2006 Ms Fipaza, an employee at Eskom agreed with it that she would go overseas to further her studies but failed to return by a certain agreed date. Eskom subsequently inter alia dismissed her for being absent without authority.

In 2008, Ms Fipaza successfully applied for a position at Eskom.  However, after realising that it dismissed her in 2006, Eskom withdrew its offer of employment, effectively dismissing Ms Fipaza.

The employee unsuccessfully challenged the fairness of her dismissal in the CCMA and later took the award on review to the Labour Court where she succeeded.  Eskom appealed to the Labour Appeal Court (LAC).  Eskom took issue with the employee’s non-disclosure, that the employee failed to disclose that it dismissed her in 2006, notwithstanding that the employee answered all questions openly and honestly and that the reason why she left Eskom in 2006 was not canvassed during the recruitment process. The LAC held that on the facts of the case, the employee had no duty in contract or in law to disclose to Eskom that it dismissed her in 2006.  The LAC took into account that the employee acted openly and honestly throughout the recruitment process and that the information was not within the employee’s exclusive knowledge. This does not necessarily imply that a job applicant has a duty to disclose all information within his or her exclusive knowledge to a prospective employer during a recruitment process.  The information must be material and its non-disclosure must have induced the employer to employ the job applicant (see par 5 & 6 of ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA) and par 50 of Eskom Holdings v Fipaza). In the circumstances, the LAC dismissed the appeal.

In Blue Ribbon Bakeries (Premier Foods) v CCMA & others (21 September 2018 – unreported decision), in 2008 Premier dismissed Mr Harrington for misconduct. In 2016, he applied at Premier for a vacant sales representative position.  In his CV he misrepresented that the reason for his departure from Premier in 2008 as ‘accepting a better offer’ and persisted with this lie through the recruitment process. Premier appointed him to the position and shortly thereafter became aware of his misrepresentation, subjected him to disciplinary proceedings and dismissed him.

Mr Harrington subsequently challenged the fairness of his dismissal at the CCMA. The CCMA found that his dismissal was substantively unfair and ordered his reinstatement.  Mr Harrington contended that he obtained the position based on merit and not on the contents of his CV. In relying on Eskom Holdings v Fipaza, the commissioner held that Mr Harrington owed no duty to disclose to the interview panel that he was dismissed for misconduct in 2008.

In the Labour Court Premier argued inter alia that the commissioner misconstrued the nature of the enquiry as he enquired into the fairness of Mr Harrington’s dismissal for not disclosing the reasons for his dismissal in 2008 when in fact Premier dismissed him for deliberate misrepresentation during the recruitment process.

The Labour Court found that Mr Harrington’s dismissal was substantively fair. It held that Mr Harrington induced Premier to employ him through his dishonesty and that Premier’s failure to do background checks before appointing him did not ‘diminish his obligation to be honest and tell the applicant the true reason for leaving Premier… in 2008’.  Accordingly, the facts in Premier are distinguishable from the facts in Eskom Holdings v Fipaza.

In Nogcantsi v Mnquma Local Municipality & others (2017) 38 ILJ 595 (LAC), Mnguma Local Municipality hired an employee.  The contract of employment stipulated that Mr Nogcantsi’s employment was subject to the employer conducting a screening process and that if it ‘revealed outcomes become negative your employment will be automatically terminated’.  Shortly after the employee’s appointment, the employer received ‘negative’ information from the employee’s erstwhile employer, the SAPS, which revealed that several criminal cases were pending against the employee, which included charges of attempted murder and that it dismissed the employee.  Accordingly, the municipality informed the employee that his employment automatically terminated in light of this information and in terms of his employment contract.

The employee challenged the fairness of his dismissal in the CCMA and the matter ultimately ended up at the LAC.  The employee argued that the automatic termination clause was contrary to section 5 of the LRA and consequently invalid. The LAC held that this case was distinguishable from other cases which otherwise would have found the dismissal to be unfair.  The LAC held that it was not an act by the employer which brought about the termination of employment but the objective negative information from the SAPS which caused the contract to automatically terminate.  Accordingly, it was held that the employee was not dismissed but that his contract automatically terminated.


  • It is advisable for interview panels to keep records of questions posed and answers given during the recruitment process of successful candidates.
  • If an individual applies for employment at a company in which the employee was employed, it is advisable for the employer to check its records why the employee previously left its employ.
  • Employers ought to carefully word any automatic termination provisions in employment contracts, given that the LAC in Nogcantsi took into account that the information obtained was objectively This implies that subjective criterion in automatic termination provisions may well be susceptible to challenge.[1]



[1] The recent 2015 amendments to the LRA permit fixed term contracts to terminate upon the occurrence of a specified event. This section does not apply to all employees (see 198B(2)). It will be interesting to see how this section is interpreted by our courts over time.


Senior Associate
Commercial Attorney

View Profile

It may be time to review your policy on Accrued Annual Leave Payments

There are three possible instruments that regulate the payment of accrued annual leave upon an employee’s termination of employment.  The first is the Basic Conditions of Employment Act (BCEA)[1], second, an employment contract and the third, a leave policy.

The BCEA does not stipulate the minimum amount of statutory accrued annual leave that ought to be payable to an employee upon the termination of employment.  The Labour Court however, in Ludick v Rural Maintenance (Pty) Ltd [2014] 2 BLLR 178 (LC) held that the payment of untaken statutory leave is limited to the current and immediately previous leave cycles.[2]

That being said, the employee in Bester v Selfmed Medical Scheme (C171/2015) [2018] ZALCCT 25 (31 July 2018) (unreported decision), successfully claimed inter alia 213.5 days of accrued annual leave from Selfmed, following the termination of her employment, totalling an amount in excess of R1.4 million.  Mrs Bester argued that her annual leave of 213.5 days accrued in terms of a policy that the Trustees of Bestmed adopted in 2005 and which was never rescinded. Even though Bestmed was of the view that Mrs Bester should not be paid the above amount of accrued annual leave, it was unable to gainsay Mrs Bester’s evidence that the policy applied. Accordingly, the Labour Court ordered Bestmed to pay Mrs Bester inter alia 213.5 days of accrued unpaid leave, totalling an amount in excess of R1.4million (less an amount of R281 422.08, which equated to 45 days of accrued leave that Bestmed paid to Mrs Bester upon the termination of her employment).


  1. It is advisable for employers to assess their leave policies against applicable employment contracts.
  2. Generally, it is not advisable for employers to regulate the payment of accrued leave in employment contracts because the employee’s consent is required before amending the contract.
  3. If the BCEA regulates the minimum amount of annual leave payable upon the employee’s termination of employment, as held in Ludick, employers may not pay employees less than the minimum statutory accrued annual leave entitlement, even if this is agreed between the parties.
  4. If an employer wishes to curtail the payment of possible excessive accrued leave, it is important to ascertain whether the payment for the accrued leave is due in terms of an employment contract or a policy.
  5. If it is due in terms of an employment contract, as mentioned above, the employee’s consent is required before amending the contract.
  6. If the leave is due in accordance with a policy, an employer should assess whether grounds exist to reduce the number of accrued days payable in terms of the policy, to safeguard against potential unfair labour practice disputes.



[1] Although it does not necessarily apply to all employees – see section 19 read with section 40 of the BCEA.

[2] A ‘leave cycle’ in terms of the BCEA, means 12 months employment with the same employer immediately following an employee’s commencement of employment or the completion of that employee’s prior leave cycle.


Senior Associate
Commercial Attorney

View Profile


The Commercial Court has recently been revived in the Gauteng Division of the High Court of South Africa. This Court was originally established in terms of the Supreme Court Act 59 of 1959 (Practice Note No. 1 of 1996: Commercial Court Practice Direction), but was never fully operational. However, the Judge President of the Gauteng Divisions of the High Court of South Africa, Justice Dunstan Mlambo recently published the directives of the Commercial Court, effective from 3 October 2018.

The purpose of the Commercial Court is to promote the efficient conduct of litigation in the High Court and will assist litigants with the faster resolution of commercial matters. The Commercial Court will deal with a variety of matters that have their foundation in a commercial transaction or commercial relationship, and includes disputes arising from the following non-exhaustive list:

  • the export or import of goods;
  • the carriage of goods by land, sea, air or pipeline;
  • the exploitation of oil and gas reserves or other natural resources that do not involve Administrative Law;
  • insurance and reinsurance;
  • banking and financial services;
  • the operation of markets and exchanges;
  • the purchase and sale of commodities;
  • medical scheme matters;
  • commercial matters arising out of business rescue and insolvency cases;
  • all commercial matters affecting companies arising out of the Companies Act 71 of 2008 and its interpretation;
  • arbitration;
  • delictual cases that take place in a commercial context for, e.g. unlawful competition cases;
  • generally, appropriate contractual matters; and
  • intellectual property cases.

Litigants may transfer a trial action or an application in a commercial matter to the Commercial Court by delivering a letter to the Judge President or Deputy Judge President, setting out reasons why the case is a commercial case, or should be considered as such, which would warrant a transfer under the Commercial Court Directive.

The Commercial Court Directive is specifically designed to ensure that matters are trial ready by the inclusion of various case management conferences, the resolution of interlocutory matters and by introducing timetables by which the litigants will be bound.

For more information on the Commercial Court, or should you require assistance with a commercial matter, please contact the Adams & Adams Commercial Litigation Team at


Mia de Jager | Candidate Attorney


Commercial Attorney

View Profile


It sounds obvious enough, but the first thing that a potential RAF claimant must prove is that he / she was involved in a motor vehicle collision (failing which he / she cannot successfully claim from the RAF). Section 3 of the Act that guides the Fund expressly and unequivocally states that the objective of the Fund is to compensate victims of motor vehicle collisions. So what do the courts regard as fitting the description: “motor vehicle”?

Section 1 of the Act is the point of departure and it defines a motor vehicle as “… any vehicle designed or adapted for propulsion or haulage on a road by means of fuel, gas or electricity, including a trailer, an agricultural or any other implement designed or adapted to be drawn by such motor vehicle.” As broad as this definition is, courts are, from time to time, called upon to adjudicate on whether a vehicle qualifies as a motor vehicle for the purposes of the Act. This can, to a certain degree, be attributed to ever-introduced inventions, developments and technical advancements etc, most of which the legislature could not have foreseen during the implementation of the Act.

The courts have previously been called on to decide whether shuttles; Golf Cars; Caterpillar 769 trucks; mobile Hobart ground power unist; flatbed transporters; folks lifts; and Hamm 18 pneumatic tyre rollers (PTRs) are motor vehicles. In determining whether or not a ‘vehicle’ qualifies as a motor vehicle, courts seem to be more inclined to adopt a broad interpretation of the definition and generally commence by construing a “motor vehicle” definition, then defining the key words of the definition, and thereafter considering and applying tests that have been developed over the years.

In Berry, D C and Another vs SPE Security Patrol Experts and RAF, the court held that a Golf Cart is a motor vehicle. In RAF vs Mbendera and Others, the SCA held that a Caterpillar 769 is also a motor vehicle as defined by the Act.

The issue In Vogel vs RAF, was whether the Hobart ground power unit, which supplies electricity to jumbo jet aircraft, was a motor vehicle. The High Court found that it did qualify. But on appeal by the RAF, the SCA overturned the High Court’s decision.

In Chauke vs Santam, the Plaintiff was injured by a forklift while walking and he instituted action against Santam in the Magistrate Court. The Defendant successfully raised a Special Plea that the forklift is not a motor vehicle in terms of the Motor Vehicles Accidents Act. The Plaintiff subsequently appealed unsuccessfully to the Witwatersrand Local Division of the Supreme Court and later, to the SCA. In RAF vs Van Den Berg, the issue was whether a PTR qualified as a motor vehicle and the SCA held that it did.

The determination of whether something qualifies as a “motor vehicle” in terms of the Act is then largely based on the court’s interpretation of “motor vehicle” definition – key words of the definition, interpreted against the vehicle’s features, what the vehicle is able to do and an expert witness’s description of the vehicle. Courts have developed tests, whereby they look at the features of the motor vehicle in question, its intended use, where it is intended to be used, etc. Further, courts have developed approaches to apply in such cases and an objective approach i.e. a reasonable man approach and “common sense approach” are ostensibly preferred by courts. The court would, therefore, ask whether a reasonable man would see or think that a vehicle in question is a motor vehicle. In addition to this, courts ordinarily call an expert (someone who has a superior knowledge of the motor vehicle concerned) to provide necessary evidence about the vehicle. For example, in Santam, Mr Bhayla, who was a foreman at Santam was called to provide a thorough description of the forklift, how it operated and provided court with several photographs of the concerned forklift.

In Berry, Mr Johnson, who was a director at E-Z-Go (from where the Plaintiffs had hired a Golf Car) was called to give evidence about the Golf Cars. The courts consider the presence or lack thereof, of features, like petrol driven engine, steering wheel, headlights, rear lights, pedals, forward and reverse gears, side and rear mirrors, safety belts, whether a vehicle is inherently unsafe or could be unsafe, speed limit, gearbox, direction indicators, type and make of tyres, hooter, the size of the vehicle, etc. The presence of most of these features would ordinarily suggest that a vehicle concerned is a motor vehicle.

In addition to features, courts consider the purpose of the motor vehicle, where it is intended to be used and whether it would be expected to be seen on public roads. For example, in Berry’s case, the court considered that a Golf Car is ordinarily used at airports, holiday resorts, hospitals, residential estates, and is used for moving people on road surfaces. In Mbendera, the court considered that a truck was intended to be used in the mining and construction industry, to travel on roads and haul loads. In Santam, in concluding that a forklift is not a motor vehicle, the court considered that a forklift is used for lifting, conveying and depositing heavy loads, it is not used on public roads and it lacks various common motor vehicle features. And in Van Den Berg, the court in concluding that a PTR qualifies as a motor vehicle, it considered the presence of various features; it being designed for propulsion by means of fuel; intended to be used in construction of roads, etc.

From the case law jurisprudence, it is clear that each vehicle needs to be considered on its own i.e. features, purpose, place/area where the vehicle is intended to be used, etc.

Considering that the features, purpose and intended use play a pivotal role in the determination of whether a vehicle is a motor vehicle or not, it may well be that a certain model of a vehicle is disqualified but another model of that same vehicle (e.g. forklift) is qualified – depending on the presence or lack thereof, of certain features, safety for use on public roads, etc.

It would certainly be interesting to see more cases of this nature, particularly in light of the developments and inventions of vehicles for use in various industries.


Litigation Attorney

View Profile


The State Liability Amendment Bill, as published in Government Gazette No. 41658 of 25 May 2018, in its preamble, aims to amend the State Liability Act, Act 20 of 1957, seeking to “provide for structured settlements for the satisfaction of claims against the State as a result of wrongful medical treatment of persons by servants of the State”.

The introduction is sought to reduce the impact of lump sum payments and aimed to ease the financial strain on the budget of provincial departments of health, in an ever-increasing climate of medical malpractice litigation in South Africa, to allow for an increase in financial resources available for provincial hospitals to provide health care services. The Bill aims to inter alia, recoup unused portions of a lump sum paid to an injured for future medical expenses and future loss of earnings that were not previously retrievable if they had died prematurely, in contrast to what had been postulated at time of settlement or adjudication, and to combat, although unlikely it would appear, what Minister of Health Aaron Motsoaledi deems to be “rampant fraud” in some provinces. [1]

The Bill specifically seeks to inter alia, introduce Section 2A to the State Liability Act, in terms of which compensation in respect of claims against the State, exceeding R1 million, are to be paid to the injured in terms of a structured settlement and periodic payments, in relation to claims for future care, future medical treatment and future loss of earnings, which further will cease once the injured has passed away. Payments are to be made, at the very least, at yearly intervals. More importantly, and possibly restrictively so, a court may in lieu of payment of the anticipated amount, order the State to provide such treatment to the injured party at a public health establishment which complies with the standards set by the Office of Health Standards Compliance, or conversely order, that a reduced amount may be awarded to be tendered for private care, akin to the compensation that would have been paid for the future medical treatment of the injured party, at a public health establishment. Minister Motsoaledi indicates that the Bill directs claimants for treatment to public healthcare facilities, in preparation of the National Health Insurance legislation to be implemented[2].

The proposed legislation to be introduced, raises certain points of contention:

  1. It derogates from the well established “once and for all” rule, that ensures finality and certainty in the resolution of delictual claims.
  2. Structured payments, as evidenced by the proposed Bill, call for proper administration facilities to be in place, to regulate and process claims and payments so awarded. The administrative burden to enforce payments continues to reside with the injured, who is forced to go through lengthy processes to ensure and enforce due payments not honoured by the state, as is currently already being experienced, which further serves to deprive the injured from immediate compensation which ought to maintain and care for his or her day to day care and well-being.
  3. The legislation is devoid of provisions catering for the furnishing of security to the courts or undertaking to be liable to pay the full capital amount, or remedies available to the injured in the alternative, in the absence of periodic payments being honoured in the long term. [3]
  4. In considering the Law Reform Commission Report, issue paper 33, [4] published for commentary, prior to the publishing of the proposed Bill, it is noted that: A) The countries used as a comparative study, such as Canada, the UK, Ireland and Australia, who employed a system of periodic or structured payments, are first world countries, whose financial resources and socio-economic circumstances differ greatly from that of a developing country like South Africa.[5] and B) Structured settlements or periodic payments, for some of these countries, are further discretionary by the courts and not legislatively made compulsory. As such the basis of their introduction in our jurisdiction carries a different weight of consideration if not equally applied.[6]
  5. Litigation and payments of compensation for medical malpractice should not be paid from operational budgets of state health establishments, further straining resources for adequate and proper medical care but rather should be separately budgeted for.
  6. A reconsideration and proper implementation of introducing compulsory professional indemnity insurance of medical practitioners should be considered, to ease the financial burden of the state, to be viewed in context of the National Health Act to be similarly implemented.
  7. The amendment of the Act serves to circumvent litigation in ensuring greater risks to recoup legal costs, brought on by periodic payments, once the litigation has finalised, in instances where lump sum payments would normally have covered within reason, the attorney and client costs not capable of being recouped on a party and party scale. An indigent injured is accordingly prejudiced, by his or her financial means, to pursue litigation as a result.
  8. In advocating for treatment at a state facility, the injured is forced to seek care from the very person or provider that caused the harm, without a guarantee that health standards are enforced and maintained.
  9. The injured is still liable at private healthcare services, for the portion of accounts that exceed public sector rates,[7] placing the financial burden on the injured and thereby limiting and negating the compensation which is received, which is to be sourced for payments of additional obligations imposed, rather than for the injured’s day to day care.

The Bill is anticipated to be passed on a date still to be determined by the President by proclamation in the Government Gazette. It is doubtful at this stage if the Bill will be able to withstand constitutional scrutiny, which will no doubt require a careful consideration of not only state interest, but also the patient’s rights.

It is inherent for the patient, to have a right of recourse, to be placed in a position he or she would have been had it not been for the negligent act, which caused or contributed to his or her damage, without being burdened, restrictively, and to be forced to absorb undue hardships that would not have ensued were it not for the negligent act to start with.

Ever increasing social awareness, and the constitutional dispensation, warrant an equitable approach that serves to address and find systemic solutions that aim to improve the health care system as a whole without detracting from the health care providers ability to perform its functions and duties effectively and efficiently whilst most importantly still safeguarding the patient’s interests, rights and well-being.

 by Richard Wiers | Senior Associate

[1] Article, “Staggered medical negligence bill “unfair, Business Day, dated 5 June 2018

[2] Article, “Staggered medical negligence bill “unfair, Business Day, dated 5 June 2018

[3] South African Law Reform Commission, Issue Paper 33, as published 17 July 2017 at page 44;

[4] South African Law Reform Commission, Issue Paper 33, as published 17 July 2017;

[5]  South African Law Reform Commission, Issue Paper 33, as published 17 July 2017 at page 40 – 45;

[6] South African Law Reform Commission, Issue Paper 33, as published 17 July 2017 at page 45;

[7] Article, “Staggered medical negligence bill “unfair, Business Day, dated 5 June 2018


Senior Associate

View Profile


The public hearings on the Competition Amendment Bill (“the Amendment Bill”) have been tabled by Parliament’s Portfolio Committee of Economic Development for 28 & 29 August 2018.

The Competition Amendment Bill, if approved, will amend the Competition Act 89 of 1998 (“the Act). The main objective of the amendments is to address two persistent structural constraints on the South African economy, namely, the high levels of economic concentration in the economy and the skewed ownership profile of the economy. The Amendment Bill aims to address these structural constrains through seven key focus areas.

To read comments on the Amendment Bill, download our latest White Paper below.


Commercial Attorney

View Profile


Senior Associate
Commerical Attorney

View Profile


Planning your ‘happily-ever-after’ is no easy feat. Between finding a venue, coming up with a world war-thwarting seating plan and orchestrating photography and flowers, couples find themselves managing a lot during the engagement period. Understandably then, the conclusion of the marriage agreement between two persons hardly receives the due consideration and attention it requires. For most brides and grooms, discussions and negotiations regarding the finances, assets and adverse future scenarios is a serious mood killer. In the sort of environment we encounter today, an antenuptial agreement is no longer a nice-to-have. It’s an absolute necessity.

Generally referred to as a ‘prenup’, the marriage arrangement is correctly called an antenuptial agreement (or ‘ANC’) in South African Law. Let’s face it, ‘antenuptials’ generally have a bad rap in society. The most common argument put forward against having an ANC is that it means that the parties must consider the possibility of the marriage breaking down. And that creates suspicion and doubt. We find that when the couple ignores the ambient noise and negativity from friends and family and approach the negotiations with an objective and business-minded attitude, they quickly realise that the agreement also addresses economic risk and other factors.

An antenuptial agreement can be especially important if either of the parties are involved in high risk business endeavours, have inherited or accrued large amounts of monies, have children from a previous relationship, or property registered in their names, and they wish to avoid the consequences of being married ‘in community of property’.

Contrary to popular belief, an antenuptial agreement is not just for the rich and famous. It can, if properly formulated, serve to protect spouses from their partners’ existing debts, future debts or insolvency; stipulate how property should be distributed; preserve family inheritances; or ensure that a spouse does not structure his or her finances by means of a trust to the detriment of the other party. An antenuptial agreement is also not only relevant upon divorce but can also benefit a surviving spouse in the unfortunate event of his or her partner passing away.

It is important for individuals to be aware of the different marital regimes and to understand the implications thereof, well before getting married. Parties who don’t sign an ante-nuptial agreement are automatically married ‘in community of property’. This means that there is only one pot of gold, or perhaps one pot of coal. This marital regime does not offer a husband or wife any protection against monetary claims by third parties. And in the unfortunate event of one spouse being sequestrated, the couple will lose everything. Parties who intend to explore risky business ventures should be wary of getting married in community of property.

In certain circumstances, it is possible to change your marital regime by means of an application to court.

A marriage ‘out of community of property’ can either include or exclude the accrual system. The accrual system entitles a spouse to share in the accrual of the spouse whose estate has accrued more than his or her estate as at the date of divorce or death. The result, on a proper application of an accrual claim under normal circumstances (but not always), is that the parties share equally in the combined value of the assets and liabilities that they each acquired after the date of their marriage up to the date of divorce or death.

Regardless of whether the accrual system is included or excluded the parties are protected against third parties and retain financial independence. Couples can get quite creative with what they wish to be included as part of the terms of their union. A balance however, always needs to be achieved to ensure that the marriage does not kick off with bitterness. Fairness is a key ingredient in any agreement. Tailor-made provisions should be capable of being given effect from a practical perspective and it should be ensured that they don’t go against the moral convictions of society, in which event such a provision will not be enforceable.

An antenuptial agreement needn’t be a mood killer, but rather viewed as an asset that protects you and your loved ones in future. Seek guidance and assistance from an experienced family law attorney at least three months before the wedding bells start ringing.

by Shani van Niekerk | Associate



View Profile


Prominent international food and beverage franchises as well as fashion and apparel franchises maintain significance in the local market. However, due to economic challenges and a weak exchange rate, some foreign franchisors encounter difficulties with their local franchisees.

The health and education sectors have shown notable growth. Despite a tough economy, the franchising sector has maintained its steady growth and adaptability, managing to attract global franchise brands. This is the opinion of Danie Strachan and André Visser, Partners at Adams & Adams, in their latest assessment of the developments in the franchising market in South Africa, as part of the Thomson Reuters Practical Law Series.

Most foreign franchisors prefer to enter the South African market by way of master franchise agreements or, in some cases, area development franchises. Some franchisors also enter into joint ventures with local parties due to the imperatives of complying with black economic empowerment legislation. This is particularly relevant in the case of organisations that wish to do business with the South African Government. To download the South Africa Chapter on Franchising, CLICK HERE.

For additional information regarding the Franchising services offered by Adams & Adams CLICK HERE.


Reproduced with permission from Thomson Reuters Practical Law 2018 and the Associations of Corporate Counsel.



View Profile


Commercial Attorney

View Profile


In an important ruling on 28 June 2018, the High Court in Pretoria ruled on a case that centred on the question of whether members of the South African Police Service (SAPS) that are the subject of investigations by the Independent Police Investigative Directorate (IPID) should be allowed to investigate members of IPID. In handing down the court’s decision, Judge Neil Tuchten confirmed that such ‘revenge investigations’ by the SAPS are unlawful.

IPID brought the matter to Court when, after IPID initiated two criminal cases against the former National Police Commissioner, Lt Gen Khomotso Phahlane, a police squad from the North West Province was appointed to investigate the same IPID officers involved in the criminal investigations of Lt Gen Phahlane.

All the members of the North West squad are currently subject to IPID investigations. In terms of the Court Order, the North West squad, led by General Ntebo Mabula must be immediately removed from any investigation by the SAPS of any of the members of the IPID investigative team and the Executive Director of IPID, Mr Robert McBride.

Investigations into the North West SAPS members are ongoing and, in light of the judgment, IPID can continue with its investigations without interference by SAPS members who are subject to IPID’s investigations.

The case highlighted the fact that there is legal provision that regulates, in the context of conflicts of interest, the conduct of IPID members toward SAPS members but there is no equivalent provision regulating the conduct of SAPS members toward IPID members. In light of this, the Court laid down a general principle that no member of the SAPS may be involved in any investigation in which the member has a personal, financial or any other interest. The order will remain in effect until such time as a standing order or a regulation is implemented to deal with conflicts of interest between SAPS and IPID.

Jac Marais, Partner at Adams & Adams, and attorney for IPID, confirmed that the judgement further strengthens IPID’s independence in the wake of the Constitutional Court judgment in 2016, that that struck down the Minister of Police’s power to suspend the Executive Director of IPID. “The judgement goes some way to restore the confidence which the public should have that IPID will be able, without undue interference, to investigate complaints against the police fearlessly and without favour or bias. Without enjoying the confidence of the public, IPID will not be able to function efficiently as the public might be disinclined or reluctant to report their cases to it.”

The Court also ordered the SAPS to pay the costs of the litigation and held that the SAPS adopted positions in relation to the application that were unreasonable and unjustified.


Commercial Attorney

View Profile


In South African law, a claim for loss of support may be lodged against the Road Accident Fund when a breadwinner of a family, an innocent victim of a motor vehicle accident, passes away. 

The following is an historical overview of remarriage contingencies in South Africa.

When determining the amount to be paid to the spouse of the deceased breadwinner, the probable remarriage of the surviving spouse plays an influential role in the ultimate calculation.

In the past, apart from the number of children and attitude of the spouse to the idea of remarriage, the courts would consider appearance and personality as essential factors when determining possibility of remarriage.

In Legal Insurance Company Ltd v Botes 1963 (1) SA 608 AD , the court a quo took the following into consideration:

“… adjustments must be made according to the appearance, personality, nature and attitude to remarriage of the person concerned, and indeed other factors such as the number and ages of the widow’s children.”

This attitude was re-iterated in the matter of Snyders v Groenewald 1966 (3) SA ED 785, where the court found the following:

“In determining the percentage deduction to be made, the Court has regard to such matters as the age, health, appearance and nature of the widow, as well as such other factors as the age and number and financial dependence of her children.”

Given that this attitude was held prior to our Constitutional dispensation, this view was challenged in the matter of Members of the Executive Counsel Responsible for the Department of Road and Public Works, North West Province v Oosthuizen (A671/07) [2009] ZAGPPHC 16 (2 April 2009) where it was stated that reliance on appearance is offensive and should not be part of our law.  It was further argued that remarriage contingencies should be struck down as unconstitutional as it offends the equality provisions of the Constitution.

After considering the facts of that particular case, the Court ultimately pointed out that no reference had been made to the respondent’s appearance and found that remarriage contingencies are not unconstitutional.

This archaic view of determining re-marriage contingencies was again challenged / re-visited in the case of Esterhuizen v Road Accident Fund (Unreported judgment of Tolmay J, North Gauteng Division, case no 26180/2014 on 6 December 2014) where Judge Tolmay found past judgments to be outdated and extremely offensive to women.  The court stated:

“…To take appearance and nature in consideration is not in accordance with the constitutional values of dignity and equality enshrined in our Constitution…”

In light of this approach, the court found that the following observations should be considered when determining the appropriate remarriage contingency, if any, to be applied:

  1. Widows are entitled to compensation for loss of maintenance as a result of the death of a husband, but such claim should not place the widow in a financially better position had it not been for the accident;
  2. Second marriages do not always last and may not result in financial support;
  3. Dependants (that is, children) and the age of the widow should be relied on when determining the appropriate remarriage contingency.

The most recent case law to address the issue of remarriage contingencies directly is the case of De Bruyn v Road Accident Fund L Brink de Bruyn // Road Accident Fund (Gauteng Division, Pretoria, Case no 14606/2016) where the history of such contingencies (citing various case law) was outlined, and Koch’s Quantum Yearbook was discussed.  The court found Koch’s statistics relating to “remarriage deductions” to be outdated and inaccurate.

The court referred to an article titled “Re-partnering as a Contingency Deduction in Claims for Loss of Support Comparing South Africa and Australian Law” (PER/PELJ 2007 10 (3)), where the conclusion was:

“Re-partnering is merely another of the many vicissitudes of life, namely that the claimant may enter an economically beneficial or detrimental relationship after the trial.  It is therefore to be given no more weight than any of the other vicissitudes that go to make up the general discount.  The ‘standard’ adjustment should not be increased to reintroduce the ‘remarriage’ discount by the back door.

The court agreed with this approach and held that unless special circumstances ensue, no higher than normal contingency ought to be deducted.

It is clear that while the principle of a re-marriage contingency continues to have relevance and applicability, one must be cautious in how it is applied.  If there is evidence to justify its application, then the courts should apply same with due regard to the facts of each matter.  Where there is no evidence, simply to include such a contingency on the broad assertion that the possibility of re-partnering must always exist, would offend the principles of fairness and justice.

Kerry Lynne Wiers | Senior Associate

This article also appeared in Without Prejudice | May 2018


Senior Associate

View Profile


Recently, the Supreme Court of Appeal (“SCA”) upheld a ruling handed down by the High Court in Pretoria 2 years ago, setting aside an exorbitant rates regime implemented by the City of Tshwane Metropolitan Municipality.

The unlawful property rates regime arose following the amalgamation of the former Kungwini Municipality into the City of Tshwane.  When compiling its supplementary valuation roll in 2012, the City of Tshwane incorporated properties which previously fell within the Kungwini Municipality into its jurisdiction, but re-categorised as “vacant” properties which had previously been categorised and rated as “residential”.  This was done without the prescribed notice, depriving the affected property owners of the right to object to the re-categorisation. The impact of this is that the thousands of property owners in question were no longer invoiced at the considerably lower residential tariff, and were instead rated at the vacant land tariff (some 4.5 times higher than the residential rate).  To make matters worse, the increase date was applied retrospectively to July 2011, being the date upon which the properties in question were incorporated into the City of Tshwane.

The net impact was that owners who received monthly invoices in the amount of R843.43 in August 2012, received rates invoices in the amount of R75 939.64 the very next month.  Other owners went from paying a monthly amount of R491.16 to R4 009.33, representing an alarming increase of 716%, even without factoring in the backdating.

Lombardy Development (Pty) Ltd, the developer of Lombardy Estate & Health Spa in Pretoria East, together with other property owners in the area launched a review application to set aside the City of Tshwane’s decision to re-categorise the affected properties.

The review was based primarily upon the City’s failure to have complied with its mandatory notice obligations in terms of the Municipal Property Rates Act, which required the owners of the affected properties to be given individual notification of the fact that their properties were to be re-categorised in terms of the supplementary valuation roll.  In consequence of this failure, the Pretoria High Court set aside the 2012 supplementary valuation roll insofar as it re-categorised the properties in question from “residential” to “vacant”.  The Court also set aside the City of Tshwane’s 2013 general valuation roll and all subsequent valuation rolls to the extent that they adopted and perpetuated the unlawful re-categorisation originally introduced by the 2012 supplementary valuation roll.

The City appealed the High Court’s decision to the SCA, despite conceding that it had failed to give proper notification of the re-categorization of the affected properties.  In its judgment last week, the SCA confirmed the High Court’s declaration of invalidity of both the 2012 and 2013 rolls insofar as the re-categorisation of the affected properties is concerned, and specifically recorded that its judgment applies to all affected property owners and is ‘conclusive against all persons whether parties or strangers to the litigation’. The City will accordingly be required to make significant adjustments to the rates accounts of all affected property owners.

Andrew Molver of Adams & Adams, who represented Lombardy and the other respondents in the appeal, regards the outcome as “a significant victory not only for Lombardy, who led the fight against the City, but for the thousands of individual property owners who stand to benefit from the broad application of the order handed down by the SCA”.


Litigation Attorney

View Profile


In many instances, the litigation process of bringing a matter to its finality has become a tedious and lengthy one, lasting for anything from three to four years, if not longer.

And the cost implications of such a prolonged process has become exorbitant not only for the unsuccessful party who will ultimately pay the party and party costs (in personal injury claims usually being the Defendant) but also for the successful party, in respect of the attorney and client costs, which are deducted from the settlement amount (usually to the Plaintiff).

Rule 34 of the High Court Rules which deals with offers of settlement states the following:

(1) In any action in which a sum of money is claimed, either alone or with any other relief, the defendant may at any time unconditionally or without prejudice make a written offer to settle the plaintiff’s claim. Such offer shall be signed either by the defendant himself or by his attorney if the latter has been authorised thereto in writing.

(10) No offer or tender in terms of this rule made without prejudice shall be disclosed to the court at any time before judgment has been given. No reference to such offer or tender shall appear on any file in the office of the registrar containing the papers in the said case.

(11) The fact that an offer or tender referred to in this rule has been made may be brought to the notice of the court after judgment has been given as being relevant to the question of costs.

Rule 34 of the High Rules of Court as it currently stands is specifically designed as a tool that the Defendant may use to place the Plaintiff at risk for paying costs. If the Defendant makes an offer and a lower amount is awarded at trial, the Defendant may then seek a cost order against the Plaintiff.

Although no express mention is made of the Plaintiff being able to make a without prejudice offer, it also does not expressly or by necessary implication mention that if a Plaintiff makes a tender, that same cannot be relied upon when considering the issue of costs.

In the United Kingdom and Australia, it has become common practice for a Plaintiff to make an offer to the Defendant, thereby putting the Defendant at risk of paying “indemnity costs”. In personal injury litigation in South Africa it has become more common that, once the Plaintiff is in possession of all its medico-legal reports and once the claim has been completely quantified, the Plaintiff then addresses a “without prejudice” settlement proposal to the Defendant, in an attempt to reach an early settlement of the matter which results in costs being minimised.

A Calderbank offer is an offer to settle a dispute, putting the other side on notice that, if the dispute goes before any court and the outcome is less favourable to the other side compared to the Calderbank Offer being made, then the side making the offer is entitled to more of their costs being recovered.
This is because, if the other side had accepted the offer, then they would have been better off and neither side would have had to spend money taking the matter to court.

Most of these offers made by the Plaintiff often either go unnoticed or a significant period of time passes before any response is received from the Defendant, if at all. The case of Calderbank v Calderbank [1975] 3 ALL ER 333 (CA) being cited in the judgement of D and Another v MEC for Health and Social Development, Western Cape Provincial Government (2747/10) [2017] ZAWCHC 17; 2017(5) SA 134 (WCC) could bring about new developments in South African law where the Plaintiff’s offer of settlement amount was less than the amount granted by a judge once judgment is handed down.

The Calderbank case was an important English Court of Appeal decision – a divorce case where the husband (Defendant) was said to have caused an unreasonable delay in the legal proceedings and he was then ordered to pay his wife’s (Plaintiff) legal costs as a result thereof.

The Calderbank case was then challenged in the United Kingdom, but eventually became practice that “Calderbank Offers” can be made. The practice was subsequently written into the United Kingdom and Australia’s Rules of Court.

The highlighted principle of the Calderbank case is that the Plaintiff can place the Defendant on risk by making an offer of settlement.  If such an offer is ignored by the Defendant and the Plaintiff is awarded more when the matter proceeds to trial and judgment is handed down, the Plaintiff could disclose to the Judge that a “Calderbank offer” was made. If the offer met the requirements of a “Calderbank offer”, and if ordered by the Judge, the Defendant may be held liable to pay the Plaintiff’s attorney and own client costs over and above the party and party costs for which the Defendant will already be liable for.

In the Case of D and Another V MEC for Health and Social Development, Western Cape Provincial Government, Judge Trollip stated the following “I have thus come to the conclusion that in principle “Calderbank offers” are admissible in relation to costs and can be disclosed to the court for that purpose after judgment has been given.”

Judge Trollip went on further to mention that in considering whether a punitive cost order must be made against the Defendant the court must consider among other factors, whether the Defendant behaved unreasonably, and thus put the Plaintiff to unnecessary expense by not accepting the offer or making a reasonable counter-offer.

Although the Plaintiff in the case of D and Another V MEC for Health and Social Development, Western Cape Provincial Government was not successful in being granted a punitive cost order against the Defendant, it was a breakthrough of the “Calderbank offers “being fused into South African Law.  A defendant should therefore be more cautious when considering offers made by a Plaintiff, so as to ensure that the Defendant is not at risk of paying indemnity or attorney and own client costs (over and above the party and party costs), where the Defendant forces the Plaintiff into protracted or unnecessary litigation, and a judge ultimately awards the Plaintiff the same or more in compensation than what the Plaintiff previously offered to accept as a settlement.

Calderbank offers” will therefore be a useful tool that Plaintiffs can utilise in litigation to ensure that Defendants seriously consider offers made by Plaintiffs and will result in earlier settlements and costs limitations.

by Shaina Kim Steyn | Associate



View Profile



Send Email


The much-anticipated International Arbitration Bill, which was initially approved by Cabinet in April 2016, was again approved in March 2017 after errors in the bill were discovered and corrected. The Act came into operation as the International Arbitration Act 15 of 2017 on 20 December 2017 and incorporates the Model Law of the United Nations Commission on International Trade Law (UNCITRAL) as the cornerstone of the international arbitration regime in South Africa, providing much-needed reform in South Africa’s arbitration regulatory framework. Previously, the Arbitration Act, a 51-year-old statute, regulated both domestic and international arbitrations. For additional information on dispute resolution in South Africa, click here.

The Law Reviews has published the 10th edition of the Dispute Resolution Review, which is available in print, as an e-book and online here. The South Africa Chapter is authored by Adams & Adams Partners, Grégor Wolter, Jac Marais, Andrew Molver; and Senior Associate, Renée Nienaber.

The Dispute Resolution Review provides an indispensable overview of the civil court systems of 37 jurisdictions. It offers a guide to those who are faced with disputes that frequently cross international boundaries. As is often the way in law, difficult and complex problems can be solved in a number of ways, and this edition demonstrates that there are many different ways to organise and operate a legal system successfully. At the same time, common problems often submit to common solutions, and the curious practitioner is likely to discover that many of the solutions adopted abroad are not so different to those closer to home.

To read the full South Africa chapter, CLICK HERE.


Reproduced with permission from Law Business Research Ltd. Published March 2018.


Commercial Attorney

View Profile


Commercial Attorney

View Profile


Commercial Attorney

View Profile


Senior Associate
Commercial Attorney

View Profile


The personal injury team of Adams & Adams has found itself assessing the principle of remoteness of damages on a consistent basis in the last few months with its increasing personal injury and insurance-based actions.

The principle of remoteness of damages is often assessed at the pleadings stage as it is essential that the Plaintiff only includes damages that are casually linked to its action against a delictual wrongdoer. In this regard the test in our law has been held to be a flexible one based on the principles of fairness, reasonableness and justice as is evident from the cases of International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 701A-F; Smit v Abrahams 1994 (4) SA 1 (A) at 15E-G and OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 (3) SA 688 (SCA) at para 23.

In the case of S v Mokgethi 1990 (1) SA 32 (A) at 40I-41D (and supported in the case of Fourway Haulage v SA National Roads Agency (653/07) [2008] ZASCA 134) it was held that the flexible test should not be viewed as one that supersedes the principles of foreseeability, proximity or direct consequence, as has been used in the past, but rather that the aforesaid principles are not to be applied dogmatically and should be applied in a flexible manner so as to avoid a result which is so unfair or unjust that it is regarded as untenable.

If the direct consequence principle leads to a result which would be acceptable to most right-minded people, then that is accepted as not being too remote. In a matter involving a ten year old boy (“the minor”) we had to determine whether or not a claim for caregiving on behalf of his mother could be included in his claim for damages or whether it would be regarded as too remote. In this matter, the minor sustained severe injuries, inter alia, multiple broken bones in his left foot and ankle and crushed right foot resulting in 22 surgeries as a result of a non-compliant wall collapsing on his lower legs. As a result of the incident, his mother is no longer able to work and is required to avail herself to assist her minor son. If we apply the direct consequence principle, the cost of caregiving is a direct cause of the incident and the injuries sustained by the minor and are therefore not too remote to be included in the minor’s claim for damages against the delictual wrongdoer.  The same outcome would be established if we applied the proximity principle or the principles of reasonable, fairness and justice.

It is imperative to note that as a attractive as the concepts of fairness and justice may be in courts, law reform commissions and amongst legislators, it is of very little use (if at all) to legal practitioners and trial judges who are required to apply the law to concrete facts arising from real life activities (Perre v Apand (Pty) Ltd 1999 198 CLR 180 (HC of A) para 80) and it is therefore the reason that the flexible test to the principle of remoteness of damages is applied in our law.

by Jessica-Jade Faint | Candidate Attorney


Litigation Attorney

View Profile


The Massmart exclusive lease saga, which commenced with Massmart’s complaint to the Competition Commission (“the Commission”) in October 2014, has finally come to an end.

The Competition Tribunal (“the Tribunal”) yesterday upheld exceptions brought by Pick ‘n Pay, Shoprite Checkers and Spar (“the Excipients”) and dismissed Massmart’s complaint that the Excipients’ exclusive lease agreements with various shopping malls were anti-competitive and falls foul of the prohibition on restrictive vertical practices contained in Section 5(1) of the Competition Act 89 of 1998 (“the Act”).

Massmart initially self-referred the complaint to the Tribunal in 2015, following the Commission’s non-referral of Massmart’s 2014 complaint – the Commission put forth its decision to institute an enquiry into the grocery retail sector as the reason for the non-referral. A number of exceptions were raised to this first referral and Massmart was granted an opportunity to amend. Massmart’s amended referral was again the subject of a number of exceptions which were heard by the Tribunal on the 19th of September 2017 and resulted in the complaint finally being dismissed yesterday.

The common thread running through all the exceptions raised was the fact that Massmart’s complaint failed to make out a cause of action in respect of Section 5(1) of the Act – not only did Massmart fail to define the markets with sufficient particularity, it also failed to sufficiently demonstrate an anti-competitive effect. In this regard, the Tribunal stated that the “fact that Game is excluded from malls does not equate to an exclusion of competition if another rival is present…Mere proof of exclusion of a particular competitor does not suffice.

The Tribunal’s approach to exclusive lease agreements as demonstrated in this case, can be summed up by its statement that a “complainant needs to allege more than the existence of a contractual restraint.

by Misha van Niekerk | Associate


Commercial Attorney

View Profile


Commercial Attorney

Send Email


The annual legal Crammer events presented by leading intellectual property and commercial law firm, Adams & Adams, took place recently in Johannesburg and Cape Town, respectively – bringing together in-house legal representatives, entrepreneurs and executive decision-makers for a morning of intensive panel discussions and presentations. In focusing on trade mark, copyright, patent, commercial and property law developments, legal professionals and industry guest speakers reviewed interesting updates and legislative developments on subjects ranging from innovation funding, copyright and brand development, to data protection and a number of significant IP and commercial case law studies.

In various discussions – mainly centred on trade marks, patents and commercial law – speakers brought attention to topical matters affecting organisations in a South African context. An enthralling keynote address was delivered by historian and storyteller, Michael Charton, who, in the spirit of the event, was able to cram hundreds of years of South African history into a thought-provoking and insightful story presentation, “My Father’s Coat.”

The firm’s biggest and boldest Crammer® event to date, subjects ranging from tech innovation funding; to due diligence in IP; data protection and policy in light of happenings such as the “GuptaLeaks”; rules around community schemes; trade mark judgments by the SCA; and a number of significant IP cases drew a great deal of interest. There was even time to squeeze in a fascinating chat about the now-infamous ‘monkey selfie’ by Cape Town Partners, Charné Le Roux and Phil Pla.

“These kinds of innovative events and seminars are an important part of our firm’s efforts in actively engaging with both clients and lawmakers so that we are able to pro-actively promote our customers’ interests,” commented firm Chairman, Gérard du Plessis. “In another innovative move, and as part of our annual Africa IP Network Week in September, Adams & Adams co-hosted the inaugural Africa Patent Examination Summit with the European Patent Office (EPO), where registrars, officials and examiners from twenty African jurisdictions, as well as regional bodies such as WIPO, ARIPO and OAPI met to discuss the various approaches to patent examination available and to gain insights into developments in this regard around the world.”


Partner & Firm Chairman
Trade Mark Attorney

View Profile


Partner & Crammer MC (Johannesburg)
Trade Mark Attorney

View Profile


Partner & Crammer MC (Cape Town)
Patent Attorney

View Profile


The Dispute Resolution Review provides an indispensable overview of the civil court systems of 40 jurisdictions. It offers a guide to those who are faced with disputes that frequently cross international boundaries. This ninth edition follows the pattern of previous editions where leading practitioners in each jurisdiction set out an easily accessible guide to the key aspects of each jurisdiction’s dispute resolution rules and practice, and developments over the past 12 months. The South African Chapter has been authored by Jac Marais, Andrew Molver and Renée Nienaber from Adams & Adams.

Key developments in South Africa over the past year followed global trends and included:

  • Clarification of the effect of a pending application for a restraining order and the scope of issues capable of referral to court in terms of Section 20(1) of the Arbitration Act;
  • Further progress towards more active judicial management of the dispute resolution process;
  • Approval of the International Arbitration Bill; and
  • The Community Schemes Ombud Services Act coming into effect.

To read the full South African submission, CLICK HERE, or for the full Dispute Resolution Review publication, CLICK HERE.



Commercial Attorney

View Profile


Litigation Attorney

View Profile


Senior Associate

View Profile


The amount of time that a couple lives together does not translate into a default marriage. So, in a long-term relationship where marriage is not considered or possible, a cohabitation agreement is the smart way to live together without the fear of the future.

When asked at a recent Comic Con about the future living arrangements of their characters, Amy and Sheldon on the hit TV series The Big Bang Theory, Jim Parsons (Sheldon) quipped “Right now, there is such a new world of living together and what that means, and working that out.” 21st Century relationships come in all shapes, forms and sizes, but what are the risks of being in a long-term relationship that is not formally recognised as a lawful marriage?

“At the outset it is important to stress that there is no such thing as a common law marriage or spouse”, says Shani van Niekerk, an Associate at Adams & Adams. “The amount of time that a couple lives together does not translate into a default marriage. We’ve had clients ask us about a “six-month rule”. It’s a total myth unfortunately.”

The consequence is that at the dissolution of the relationship, or in the event that a cohabitant dies without leaving a Will, partners are left very vulnerable and without the legislative protection which married individuals enjoy. For example, when a cohabitant dies without leaving a valid will, the partner has no right to inherit under the Intestate Succession Act. A cohabitant also cannot rely on the Maintenance of Surviving Spouses Act to secure maintenance should a partner pass away. There’s no legal obligation on either person to maintain the other – meaning no enforceable right to claim maintenance from each other.

So what can you do to protect your interests in a cohabitation relationship? Shani suggests taking a leaf out of Sheldon’s script. “The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement is in the best interests of both parties in a relationship and clarifies the expectations of the partners.”

A cohabitation agreement regulates the rights and duties between partners, and could almost be compared to an ante-nuptial contract in a civil marriage. The agreement can provide for the division and distribution of assets if the relationship ends, the rights and obligations towards each other with regards to maintenance, and parties’ obligations and respective financial contributions towards the joint home. A cohabitation agreement will be legally binding as long as it contains no provisions that are immoral or illegal, however it is important to note that a cohabitation agreement will not be enforceable insofar as third parties are concerned.

In a long-term relationship where marriage is not considered or possible, a cohabitation agreement is the smart way to live together without the fear of the future. Chatting to an experienced family law attorney and getting a cohabitation agreements drawn up may help you avoid the financial risks and potential trauma of a possible break-up.

by Shani van Niekerk | Associate



Please wait...


Commercial Attorney

View Profile


Commercial Attorney

View Profile


On 31 March 2016, the Constitutional Court of South Africa ruled unanimously in favour of the applicants in the matter regarding Nkandla, President Jacob Zuma’s homestead, as well as the powers of the Public Protector. Andrew Molver, Partner at Adams & Adams, offers his insights into this pivotal ruling.

Q: As attorneys of record for the Public Protector, what role does Adams & Adams play in the functions of her office?
A: The Office of the Public Protector is equipped with a highly skilled staff complement that manages any legal matters it’s faced with. Generally, we’re only instructed upon the anticipation or institution of formal proceedings. In that regard, our primary role has become one of defending the reports issued, findings made and remedial action taken by the Public Protector.

Q: From a personal point of view, what has it been like to work with the former Public Protector, Adv Thuli Madonsela?
Working with the Public Protector has been by far the greatest highlight of my career. One of the greatest lessons I’ve learnt from her is how she remained determined to ascertain a proper definition of the Public Protector’s powers throughout the Nkandla debacle. She remained focused on helping the “Gogo Dlaminis” of the world, as she calls them, when she could quite easily have become consumed and distracted by the highly politicised and sensationalised nature of the ordeal. Even in those trying circumstances, she was steadfast in her commitment to the helpless and to leaving a legacy of empowerment to her successors by upholding the powers of her office.

Q: The powers of the Public Protector were challenged well before the Nkandla saga. How did this start?
A: The question of whether or not remedial action taken by the Public Protector is binding first arose in relation to the remedial action taken by the Public Protector in 2014 regarding the SABC and then acting-COO, Hlaudi Motsoeneng. The SABC and related parties argued that they were not bound to give effect to the Public Protector’s remedial action taken and, as they had procured an opinion from an independent law firm which cleared Motsoeneng of any wrongdoing, concluded that the findings of the Public Protector were incorrect.
In proceedings initiated by the DA as a result of the SABC’s conduct, we argued that remedial action taken by the Public Protector is legally binding and places an obligation on the subject of the remedial action to give effect to it unless and until it is reviewed and set aside by a court of law. Regrettably, the High Court did not find favour with this argument and took the view that remedial action by the Public Protector is not binding.
Fortunately, in its judgment of October 2015 in the SABC case, the Supreme Court of Appeal (SCA) set the record straight and found that remedial action taken by the Public Protector is indeed valid and binding until reviewed and set aside by a court of law and that, absent any such review, a subject of such remedial action is obliged to implement it, and cannot disregard it.

Q: Why was the Public Protector never a main applicant in either the Nkandla case or in matters beforehand? How did this help the Public Protector’s standing?
A: The SABC matter was launched by the DA, which cited the Public Protector as a respondent in the matter. The so-called Nkandla applications were launched by the EFF and the DA respectively. While the DA cited the Public Protector as a respondent, the EFF omitted to do so, which required us to apply to the Constitutional Court to intervene as a respondent in the EFF’s application.
We found it preferable for the Public Protector to be in the position of a respondent as this enabled her to abide the relief sought, as opposed to having to seek it directly, as an applicant would. This was more in keeping with the politically neutral position occupied by the Office of the Public Protector and allowed the Public Protector to avoid being drawn into the political war being waged through the litigation. In addition, by not being preoccupied with seeking the enforcement of her remedial action, the Public Protector was able to focus her submissions on obtaining a proper interpretation of her powers, which would significantly outlast any particular remedial action that formed the focus of either the SABC or Nkandla matters.

Q: Your team referred to the “Oudekraal” matter in written submissions. What is this and why was it relevant?
A: “Oudekraal” refers to the well-established principle (deriving from the matter of Oudekraal Estates (Pty) Ltd v City of Cape Town) that until a decision of an administrative nature is set aside by a court in proceedings for judicial review, it exists in fact and has legal consequences that cannot be overlooked. In its judgment in the SABC matter, the SCA found this principle to apply to reports issued and remedial action taken by the Public Protector, even if the Public Protector isn’t a typical public functionary or body, as the underlying principles arguably find greater application in her context.

Q: The Nkandla matter found that the Public Protector was correct in her assessments that the President was required to pay for a portion of the upgrades that took place at his homestead. More importantly, it confirmed the powers of the Public Protector as a Chapter 9 institution. What are those powers?
A: In essence, the Public Protector’s direct constitutional powers enable her to investigate irregular conduct in state affairs or public administration, to report on that conduct and to take appropriate action.

Q: What ideologies or approaches differentiate Adams & Adams from other commercial law firms?
We try to approach our admin and constitutional matters by retaining a strong focus on why the matter is important to the client. This isn’t always obvious and often various considerations are involved. For example, in the SABC and Nkandla matters, it would have been tempting to enter the fray by siding with one of the political parties involved and attempting to enforce the remedial action in question. But what made the matters important to the Public Protector went beyond that. As mentioned, a proper definition of the powers of her office held far greater value. Apart from the objective to define the Public Protector’s powers, it was also important that she did not compromise the independence of her office thereafter. We also have a firm commitment to litigating in a manner which we believe upholds the Constitution and ensures that good law is made in its interpretation and application.


This article is part of a new quarterly digital publication, Adams on Africa. The publication aims to provide you with the necessary information and updates on developments in business and the law in Africa. We welcome your feedback. Articles in this issue:












Andrew molver

Litigation Attorney

View Profile


In an employer-employee relationship it often happens that an employee violates his employment agreement in a manner that results in the employer suffering damages. For example, an employee performs his duties in a grossly negligent manner and the employer suffers a financial loss or an employee decides to quit without giving the agreed upon notice.

If such a situation occurs, the employer is always left wondering whether it can proceed against the employee, and if so, how to proceed and whether, it can recover damages from the employee in question.

In South Africa, it is generally believed that South African labour legislation is overprotective of employees and offers little to no protection to employers. This is evident from the myriad labour statutes that protect the rights of employees in South Africa and the high rate of success of cases brought against employers. The misconception as to the protection offered to employers is well demonstrated in the case of Rand Water v Johan Stoop (JA 78/11) where counsel for the defendant argued that the Basic Conditions of Employment Act (BCEA), 1997 was designed to only permit claims by employees against their employers and not vice versa.

However, the court in the above matter held as follow:

“there is simply no warrant for interpreting the BCEA in a partisan manner. The BCEA benefits both employers and employees….The BCEA was designed to promote the right to fair labour practice which is available to everyone employees and employers alike. If the employee can claim damages for breach, so too can the employer, to suggest otherwise is to argue that this section is unconstitutional.”

Section 77(3) of the BCEA stipulates that ‘the Labour Court has concurrent jurisdiction with the Civil Courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.’

This provision of the BCEA clearly applies both ways and permits the employer to sue and recover from an employee damages caused by the employee, if the wrongful conduct constitute a breach of the contract of employment. Obviously, the normal principles of common law applicable to claims for damages will apply to such a claim.

For example, an employer will have to prove that it actually suffered damages or loss as a result of the breach of contract. The courts have wide powers in terms of the BCEA and may make any order considered reasonable on any matter concerning a contract of employment, including an award of damages. For example, the courts have upheld claims for payment of damages resulting from the repudiation of an employment contract by an employee, and a failure by an employee to work his full notice.

However, a claim for damages may not always be the simplest and most effective route for an employer to take and there are less acrimonious courses of action to pursue. For example, an employer may make salary deductions from an employee’s remuneration, to recover loss or damages only if such damages occurred in the course of employment and was due to the fault of the employee.

For such a deduction to be in compliance with the BCEA, the employer must comply with a number of requirements, such as, the employer must follow a fair procedure and give the employee a reasonable opportunity to show why the deductions should not be made, the total amount of the debt must not exceed the actual amount of the loss or damage, and the total deductions from the employee’s remuneration must not exceed one-quarter of the employee’s remuneration in monetary terms.

Unfortunately, these formalities cannot be seen as mere guidelines and have to be complied with strictly. This was confirmed by the court in Shenaaz Padayachee v Interpark Books (D243-12) where the court stated that the BCEA confers a right on the employer to make deductions from an employee’s remuneration in respect of damages or loss caused by the employee but stipulates that this cannot be done unless the prescribed formalities are complied with. These prescribed formalities include an internal hearing to determine the liability of the employee and a written agreement by the employee to reimburse the employer in respect of the damages.

If the employee does not admit liability, and consequently, does not agree to the salary deductions the employer can proceed with court action and claim contractual damages. In this instance, the employer will rely on section 77 (3) of the BCEA as set out above and establish a case of breach of the relevant employment contract. The normal principles of common law applicable to claims for damages will apply to such a claim.

In conclusion

Employers should not labour under the misconception that its employees are immune to civil action. In fact, the above principles clearly demonstrate that an employer can recover damages from an employee under Section 77(3) of the BCEA if the breach by the employee of his contract of employment resulted in damages or financial loss to the employer.

It has also been established that an employer can recover damages by making deductions from an employee’s salary, subject, the formalities prescribed by the BCEA.

by Thami Khoza | Candidate Attorney

Andre Visser

Commercial Attorney

View Profile