Economic review

Our Treasury director-general has said that South Africa would decide by the end of this year which state-owned companies would be privatised or closed: ”I can say without fear of contradiction, before the end of this year, it will be possible to go beyond just the technical analysis and reporting and begin to point at which entities have got to fold and which ones must be merged.”

There is a perception that foreign day-workers will work for less. This has been debunked. What is true, according to a study byEcon3x3, is that of those found at pick-up points, some 55% are foreigners.

Our Sacci Business Confidence Index fell to an all-time low in May. This is the worst index level since June 1993. The RMB/BER equivalent is at a 7-year low.

Just last week, reports had it that commodities would never return to the so-called super cycle which had ended not long ago. The Bloomberg Commodity Index is 20% up above its low in January, which complies with the definition of a bull market. Citigroup also forecasts increasing returns from metals through to grains and an oil recovery. Very confusing.

Business review

Love your bank? Fintech, the company, is not about technology at all. It is about developing new transaction capabilities through innovative business models. So says Mark Shuttleworth, the creator of this entity which is set to tap into the demand for consumer-friendly financial services. Banks would appear to ignore this challenge at Lear Bill. The market is changing and banks need to revisit the business of customer loyalty, value-for-money and making sure that they provide the digital offering citizens seek.

Property review

The main property news this week was that the Ingonyama Trust had decided to issue titles to those living on its land. High time and a move called for by economists for some time. The enormity of the task boggles the mind: consider that, by its own say-so, not all residents are legally there. Beyond that, how does one demarcate residences scattered within agricultural land? To whom does one give the land: does this include spouses and, by the time all that needs to be done is done, heirs? What will the local authority structure be? This is relevant as the Chiefs in the area would probably want some say whilst the recipients would also fall under a municipal structure. Will taxes be paid? This will be a truly mammoth undertaking and will keep a lot of professionals busy for a very long time.

Our property market has accelerated more than was predicted. The acceleration is attributed to the Western Cape property market propping up the balance of the country. The Western Cape recorded a 12% year-on-year growth during the 1^st quarter compared to, for instance, the Eastern Cape at 7.6% (yes!), KZN at 5.6%, Gauteng at 3% and and the balance following..

Practice review:

The property market in Britain is already betting that the potential Brexit will be financially disastrous: so-called Brexit clauses are being inserted in commercial transactions which allows the purchaser to call off the transaction if Britain leaves the EU.

A luta continua: the Hlope saga continues. Two Constitutional Court justices have applied to their own court to reopen the matter in which the court had refused to give them leave to appeal.

Cases and such

Contractual vagueness

“It is truly astonishing how often businessmen conduct their affairs, involving at times huge financial interests, on the strength of crude and vague agreements and then rely on hope, good spirits, bona fides and commercial expediency to make such agreements work.” Leach JA, commenting on a do-it-yourself contract which had led to a dispute. The content is not important; the to-be-driven-home point is that one should be wary of informal business arrangements where large sums of money are involved. Differences of opinion develop into unpleasantness which become grist for the legal mill.

Hangar v Robinson SCA case 211/2015

Prescription of a claim for repayment: when does countdown start?

In this case, a loan agreement contained a clause contained an acceleration clause, i.e. a clause which provides that, if the debtor defaults, the full sum becomes payable in one go. When would prescription as regards the payment of the whole commence running? It was decided that prescription commenced running on the creditor making the election to cancel and claim the full sum.

Miracle Mile SCA case 187/2015

Removal of trustee on the grounds of misconduct

Does the Trust Property Control Act circumscribe the circumstances under which a court may remove a trustee on the grounds of misconduct? No. However this case bares reading.

Gowar SCA 149/2015

Sidumo revisited

I am by no stretch of the imagination knowledgeable about Labour Law. However, I have heard Peter Hobden expound on this case several times and, if this interests you I have an article written on the review test set out in this case as well as the extent to which the Labour court judges may interfere with the merits of awards. Ask me for a copy.

Labour matters: a new insertion provided by Peter Hobden of our Labour Department

EXTENTION OF COLLECTIVE AGREEMENTS TO NON-PARTIES

The Free Market Foundation’s attack on the extension of collective agreements to non-parties has come to nought. (Free Market Foundation v Minister of Labour [2016] JOL 35802 (GP)). The High Court was not persuaded that the powers given to the Minister to extend to non-parties was unconstitutional. Court was satisfied that the Minister’s powers were adequately fettered in circumstances where the decision is subject to PAJA. The constitutionality challenge on this issue seems to be nearing its end, PAJA reviews will likely be the next challenge.

SETTING CCMA SETTLEMENTS ASIDE

Increasingly we are seeing disgruntled parties to CCMA facilitated settlement agreements looking to the possibility of setting these agreements aside. Unhappiness typically stems from parties believing that Commissioners have bullied them, and that the correct legal position has not been properly disclosed at the time of entering into the agreement. The High Court (Lawrie v Nursing Response CC and Others) has held that it has jurisdiction to determine such application. You may therefore elect Labour Court or High Court. The usual legal principles for setting a contract aside apply. (Misrepresentation, duress, undue influence and bribery).

EQUAL PAY FOR EQUAL WORK

In one of the first equal pay for equal work judgements on equal pay , it was not particularly surprising that the Labour Court in PIONEER FOODS (PTY) LTD v WORKERS AGAINST REGRESSION (CASE NO: C687/15, 19 APRIL 2016) has held that there is a rational connection between length of service and difference in remuneration. In rejecting a claim that employees who were paid 80% of the normal rate for their first two years were discriminated against, the Court sets out the test for a claim on an “unlisted” ground and then found nothing irrational or capricious.

Quotables

“Progress is a nice word. But change is its motivator. And change has its enemies.” Kennedy

Comment

South Africa is indeed a strange place: some years back the Communists were going to destroy our economy. Today a Communist, Mr Gordhan, is the much welcomed guardian angel of our economy; Rob Davies, also a Communist, the Minister of Trade and Industry!

Bowdlerise: defined as removing material considered proper or offensive resulting in a weaker text; the older generation would be familiar with this process in our schools. A similar phenomenon is occurring at the America’s colleges and universities: There is a drive to clean up words, ideas, and subjects that might cause discomfort or give offence. One could also see this in South Africa. Whether this is a good or a bad thing is debatable, but one needs to be aware that one cannot teach persons to deal with unpleasantness if they are not exposed to it. Also, controlling what another is allowed to see and hear is quite Orwellian.

On being right: Isaiah Berlin wrote, “Few things have done more harm than the belief on the part of individuals or groups that he or she or they are in sole possession of the truth: especially about how to live, what to be and to do – and that those who differ from them are not merely mistaken, wicked or mad and need restraining or suppressing. It is a terrible and dangerous arrogance to believe that you alone are right, have a magical eye which sees the truth, and that others cannot be right if they disagree. ”I in this respect you might consider the take of our current chief of the SABC.

On elections: the troubled relationship between the SACP and the ANC seems to be coming to a head: the SACP plans to ditch palace consultations on state capture and mobilise rolling mass action against the ANC-led government. It is adamant that it will not endorse the corrupting of the ANC processes that led to the nomination of Ward candidate lists and so on. A contraire, it still intends standing as tripartite partner with the ANC in the election. Eish, clearly a principled bunch.

Lawfare: You must have noticed that the State seems to lose considerably more cases than it wins. The Daily Maverick this week commented on this phenomenon by saying that our government’s win/loss ratio in court is worse than that of the Southern Kings! Indeed a compliment for the latter.

The statement by Matthews Phoza that corruption has become systemic, may well be true: it is probably also an indication that his political future is over? Or would this be over cynical?

Lighten up

“Alcohol is not the answer: but it does help you forget the question.”

Extracts from insurance claims:

the pedestrian ran for the pavement, but I got him.
The pedestrian had no idea which way to run as I ran over them.
The car in front it the pedestrian but he got up so I hit him again.

Ex The Idler (for our partner Goebbels-- liberties taken with spelling – who has an Italian spouse): Five Germans arrive at the Italian border in an Audi Quattro. The Italian customs officer stops them and says: ”Itsa illegal to putta da five people in a Quattro.”

“Vot you mean illegal?”

Quattro meana four. ”

“Quattro is ze name of ze bloomen automobile. Look ze damn papers: ze car is designed to karry five people.”

“You canta pulla thata one on me. Quattro meana four. You have 5five–a people ina your car, yourra breaking da law.”

“Dumkopf! Get ze supervisory year. Some-vun viz brains!”

“He can’ta come. He a busy witda two guys in da Fiat Uno.”

On Bowdlerisation: