Undocumented children and their right to basic education: ‘Once you learn to read you will forever be free’ - Frederick Douglass

“Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”. The right to a basic education in s29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. This right is therefore distinct from the right to “further education” provided for in s 29(1)(b). The State is, in terms of that right, obliged, through reasonable measures, to make further education “progressively available and accessible.” - Governing Body of the Juma Musjied Essay NO 2011 (8) BCLR 761 (CC).

Why contracting parties need to understand when contract terms are implied

The recent case of Starways Trading 21 CC and Others v Pearl Island Trading 714 (Pty) Ltd and Another (232/2018) [2018] ZASCA 177 has once again highlighted the importance of being aware that in addition to the express terms of a contract as agreed (whether orally or in writing) between the parties, other terms may be incorporated into the contract by implication, even to the extent of varying the express terms.

Is "Big Brother" still watching?

Envisage a scenario where you witness two respected politicians colluding in the orchestration of a corrupt deal. You contact a journalist to tell your story to expose the corruption, but in return you expect to be protected as a source, for fear of retribution. Little do you know that officers have obtained an interception order under RICA to intercept the journalist’s communications with various sources, and your call has been intercepted and recorded. Not only would you never know that your communication had been intercepted, depriving you of your right to approach a court for wrongful interception, but the intercepted information could be stored at a statutory interception centre in perpetuity, where it can potentially be copied or seen by unauthorised eyes. As of September 2019, such alarming intrusion of your privacy should no longer be a reality, as the High Court has declared certain provisions of RICA unconstitutional.

Update: Ladies and gentlemen, it’s time to place your (secret) ballots

The requirement to hold a secret ballot before embarking on strike action has been a hot topic of late. Here’s a recap: S19 of the Labour Relations Amendment Act, No 8 of 2018 (Amendment Act) requires trade unions (and employers’ organisations) to amend their constitutions to provide for secret strike ballots prior to embarking on strike action, in the event that their constitutions do not already provide for this.

Is an employer restricted to the categorisation of the charges during the disciplinary proceedings?

Procedural fairness in disciplinary proceedings requires an employee to be made aware and understand the charges against him. This is not only to assist the employee in deciding how to plead but also to ensure that the employee understands the case he has to answer. Is an employer restricted to the manner in which the charges are categorised or can it find the employee guilty of competent verdicts? This question was dealt with by the Labour Appeal Court in EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57.

Customs & Excise Highlights

Herewith below selected highlights in the Customs & Excise environment since our last instalment.

Carbon tax – new legislation already changing but what about the regulations?

The Carbon Tax Act, No 15 of 2019 (Act) came into effect on 1 June 2019. Simply put, carbon tax is imposed on the carbon dioxide (CO2) equivalent of greenhouse gas emissions where certain thresholds are exceeded and is intended to encourage the reduction of greenhouse gas (GHG) emissions in South Africa and to ensure that South Africa meets its commitments under the Paris Agreement.

Can the real bidder please stand up: Fronting under the Broad Based Black Economic Empowerment Act

South Africa’s first democratic government set out to redress the gross inequalities of the past. Parliament, in 2003, enacted the Broad Based Black Economic Empowerment Act, No 53 of 2003 (Act). The fundamental objective of the Act is to advance economic transformation and enhance the economic participation of black people in the South African economy.

Constitutional damages and grief – the SCA will soon say

The issue of constitutional damages was first raised in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), when the Constitutional Court held that there was, in principle, no reason why an award of damages could not be made to protect constitutional rights, where damages would constitute “appropriate relief” considering the circumstances and the particular right infringed.

Renewable energy – a source of economic growth for South Africa

On 27 August 2019, Finance Minister Tito Mboweni released an economic Strategy Report (Strategy Report) prepared by National Treasury (Treasury) which detailed the structural reforms that could assist in reversing the downward trend in South Africa’s growth potential and competitiveness.

Can arbitration awards for compensation accrue interest pending review?

In Malatji v Minister of Home Affairs and Another (JA52/2017) [2018] ZALAC 23, the Labour Appeal Court was tasked with deciding whether mora interest should run, from the date an arbitration award is issued or from the date of judgment in a review.

Further steps towards enhanced regulation – trade reporting of OTC derivatives

As a G20 member country, South Africa has begun implementing robust new financial markets regulations aimed at promoting the safe and transparent trade of over-the-counter derivatives transactions (OTC derivatives or OTCs). For the first time in South Africa, sellers of OTC derivatives (also known as OTC derivatives providers (ODPs)) will have to be licensed with the South African Financial Sector Conduct Authority (FSCA).

Video: Nationals Schools Moot Competition Seminar hosted by the Pro Bono and Human Rights Practice

The National Schools' Moot Court Competition (the Competition) is a nation-wide high school level moot court competition aimed at building awareness amongst learners about the Constitution, providing them with exposure to the legal profession and facilitating access to legal education. It is a joint initiative of the University of Pretoria, the Department of Basic Education, the Department of Justice and Correctional Services and the Foundation for Human Rights.

Think twice before you tweet

South Africa has walked into a veritable social media storm in the early parts of the year, with employers increasingly being placed in the difficult position of having to decide whether or not to take action against employees for their behaviour online.

Cliffe Dekker Hofmeyr claims top spot by deal value for SA firms in Mergermarket’s M&A league tables for Africa and the Middle East

Cliffe Dekker Hofmeyr's (CDH) Mergers and Acquisition (M&A) team achieved first place by deal value for South African firms and 12th place internationally in the latest Mergermarket M&A Africa & Middle East 2015 Global League Tables. The team increased its deal value to $18.8 billion from $9.2 billion in 2014.

Cliffe Dekker Hofmeyr announces eight partner appointments in strategy to grow service offering in key client sectors

Cliffe Dekker Hofmeyr (CDH) business law firm in South Africa has made eight partner appointments to its finance and banking, employment and tax practices within the last month.

Uber: Convenience vs controversy

Members of public are increasingly making use of the convenient service offered by Uber. While this is undeniably an essential service, questions arise as to its legitimacy and whether this service is not already on offer by existing legitimate transportation services. The latter consideration sparked conflict between Uber service providers and the metered taxi industry and the issue was also recently debated in National Parliament.

The Sandton EcoMobility World Festival 2015

CDH is committed to being part of the transformative change during the Sandton EcoMobility World Festival 2015

Nicholas Preston comments on Shakes Mashaba and Isegund Gordan having a contract at the same time.

Newly appointed Bafana Bafana coach Shakes Mashaba arrives back in South Africa after a tour of Mali as the official coach of the senior national team. Isegund Gordan’s contract with SAFA runs until the end of the month, but a employment lawyer says this is perfectly legal that both men can be contracted for the same position at the same time. Director, Nicholas Preston gives comment.

Reactions to budget has been mostly mixed. To talk more on this is Emil Brincker, Director

Reactions to today`s budget has been mostly mixed. To talk more on this is Emil Brincker, Director and National Tax Practice Head.

Allan Reid elaborates about the 10th anniversary of the Mining Charter

Allan Reid, Sector Head of Mining and Minerals elaborates about the 10th anniversary of the mining charter.

Whistle blowing in SA is making South African multinational nervous

Chris Charter on new Competition Commission action against price collusion

Massmart has launched a complaint with the Competition Commission targeting Pick n Pay, Spar and Shoprite in a bid to end lease exclusivity clauses. Chris Charter, Head of our Competition practice comments.

Liquidation of various assets that are owned by former ANCYL leader, Julius Malema

There is a lot of interest in the liquidation of various assets that are owned by former ANCYL leader Julias Malema. Guests in studio are Marc Ashton, Editor of Finweek, Vincent Tadden Lending Product House at FNB Wealth and Julian Jones, National Head of the Business Rescue, Restructuring and Insolvency Sector.

Gillian Lumb talks about the gig economy and the employment questions raised in the recent Uber SA case.

Director and Regional Practice Head in Employment, Gillian Lumb, highlights some of the employment questions around doing business in the gig economy and the recent seminal decision of the Labour Court involving Uber SA.

Quintin Honey participated in a M&A panel discussion

Quintin Honey, Director in our Corporate and Commercial practice, participated in a mergers and acquisitions panel discussion on Classic FM.

Allan Reid speaks on the state of mining and mining transactions in South Africa

Corporate and Commercial Director and Head of Mining and Minerals sector, Allan Reid, joined Michael Avery on Classic FM where he discussed the factors impacting mining and mining deals in South Africa.

Sandra Gore speaks about the regulation around rehabilitation and mine closures.

Sandra Gore, Director in our Corporate and Commercial practice appeared on Classic FM. She speaks about the regulation around rehabilitation and mine closures.

Terry Winstanley speaks about climate change being a key subject at DAVOS

Terry Winstanley, head of our Environmental practice joined Channel Africa to talk about climate change being a key subject at DAVOS.

Giada Masina talk about the new Mining Charter and the state of the mining sector

Director Giada Masina joined Power FM to talk about the new Mining Charter and the state of the mining sector.