Legal Articles and Guides
Legal articles written by lawyers discussing aspects related to industries, businesses and individuals.
Communications Minister Faith Muthambi has defended her decision to permanently appoint Hlaudi Motsoeneng as the the SABC’s chief operating officer in a petition filed with the SCA yesterday (Thursday), says a report in The Citizen. Muthambi is seeking special leave from the SCA to appeal against a ruling by Judge Dennis Davis in the Western Cape High Court setting aside Motsoeneng’s appointment as irrational and unlawful. The judge in May dismissed an application for leave to appeal against his ruling. In 2015 he ruled that information before Muthambi at the time of Motsoeneng’s promotion had been muddled and unclear and put her in no position to exercise a rational decision to elevate him. The ruling followed an application by the DA based on Public Protector Thuli Madonsela’s findings ag ainst Motsoeneng in a 2014 report, including that he had fabricated his matric qualifications and increased his salary irregularly from R1.5m to R2.4m a year.
The silicosis case was back in court yesterday (Thursday), with lawyers representing mine workers arguing that allowing gold-mining companies to appeal against the Gauteng High Court (Johannesburg) landmark class action judgment would delay the resolution of the case, while litigants were dying without compensation, says a Business Day report. It notes May’s class-action certification judgment paved the way for billions in claims by former goldmine workers suffering from silicosis and tuberculosis. The size and scope of the class action is unprecedented. If the lawsuit were to go ahead on the basis certified by the High Court, it will be against almost all the major mining companies involved in goldmining in SA since 1965, including parent companies. It would cover their conduct for more than 50 years and th ere could be between 17 000 and 50 000 claimants.
A cloud-based court filing system could replace the ‘costly‚ cumbersome’ current practice, according to Litigator MD Bruce Henderson‚ who said ‘court rules have been amended to permit electronic service of litigation documents and that attorneys must embrace digital systems’. According to a TimesLIVE report, Henderson also noted that‚ ‘in 2014‚ Chief Justice Mogoeng Mogoeng called for the introduction of an electronic court filing system‚ to increase efficiencies‚ reduce costs and mitigate against the lost and stolen court documents’. An obstacle to this‚ he said‚ was ‘concerns as to the manner in which the service of documents is verified’.
Three senior lawyers have nominated Western Cape High Court Judge Siraj Desai as the next Public Protector, says a Cape Times report. The nomination, supported by Advocate Denzil Potgieter SC, Igshaan Higgins and Advocate Joel Krige, described him as an extraordinary leader. This week, chair of the ad hoc committee established to nominate the new Public Protector, Makhosi Khoza, announced that it had received 21 nominations and applications for the position. Parliamentary spokesperson Temba Gubula would not comment on the nomination yesterday as the deadline for submissions closes today. Desai – who marks his 30 years on the Bench next week – confirmed he had accepted the nomination. The committee tables its preferred candidate for Public Protector to the National Assembly on 31 August.
The growing threat of cybercrime is set to change the face of business and spark ethical dilemmas for company directors, according to BDO South Africa. A Moneyweb report notes that Graham Croock, director of IT audit and risk at BDO, speaking at the launch of the firm’s Cyber and Forensic Laboratory in Johannesburg, said the constitution of company boards has to change in order to mitigate risk, with engineers and science graduates likely to run companies of the future. ‘The old days of having accountants, auditors and lawyers sitting on boards, risk committees, audit committees is going to have to change. What you’re going to have to do is have a lot of younger, tech-smart people on those boards,’ he said.
Parliament has taken another knock with a Western Cape High Court ruling in favour of DA leader Mmusi Maimane, who was fined and reprimanded by Parliament's Ethics Committee because he failed to list additional income he had received. Maimane maintained that the funds were handled by his campaign manager in lieu of upcoming provincial elections. At no stage did the cash go into or through his bank account, he argued, according to a report in The Citizen. Maimane claimed the committee had acted in bad faith and hadn’t followed the rules of procedural justice, the Constitution or Parliament’s own code of ethics. The court agreed, finding the committee ‘did not follow fundamental rules of procedural justice, the Constitution and at the very least the very code of ethics they are required to enforce’.
Former ANC MP Vytjie Mentor has filed corruption-related charges against three Cabinet Ministers and the Gupta family three weeks after the ANC closed its investigation into the family’s influence on the state, says a Sunday Times report. Mentor, who snubbed the ANC investigation, joined the chorus calling the probe led by Gwede Mantashe a whitewash and a waste of time. Instead of submitting a written statement to Mantashe as requested, Mentor last month filed corruption-related charges with the police against Minister of Public Enterprises Lynne Brown, Minister of Trade and Industry Rob Davies and Minister of Defence Nosiviwe Mapisa-Nqakula.
SA’s chronically delayed digital migration project is in legal limbo again after Communications Minister Faith Muthambi applied this week for leave to appeal against a judgment setting aside her policy on the matter. The Mercury reports this means the project to convert terrestrial television broadcasting in the country from an analogue signal to a digital one is likely to take even longer. Muthambi’s decision to prevent the government decoders – which are to be provided free to 5m poor households – from being able to receive an encrypted signal was set aside in the SCA last month, following an application by e.tv.
The 11 public works officials facing disciplinary charges in connection with the R246m upgrades to the President’s Nkandla home will appeal the KZN High Court (Pietermaritzburg) decision that granted the media access to the hearings, says a City Press report. Claude Naiker, spokesperson for the Public Servants Association, which is representing the 11 officials known in the media as the Nkandla ‘scapegoats’, confirmed the appeal would go ahead. Naiker said that they had studied the High Court’s judgment and believed there were grounds for appeal because ‘not much is said about the rights of workers’.
The struggle by a US-based Cape Town father for custody of his daughter is in the hands of Western Cape High Court Judge Siraj Desai after a Ohio court ruled against him, finding an earlier order he had obtained for temporary sole parental rights and responsibilities had been improperly granted. The man has a claim pending in the Western Cape High Court in terms of The Hague Convention for the return of the child to the US, notes a Weekend Argus report. His wife has countered that they were married by Muslim rites only and therefore their marriage was not recognised as valid, which, according to her lawyers, means she has sole custody of the child, unless a court orders otherwise.
Lawyers in the case of a Durban attorney accused of behaving ‘maliciously’ in a matter involving access to a child clashed this week, according to a report in The Mercury. Estelle de Wet, who specialises in family law, has come under fire from the office of the Chief Family Advocate for allegedly stoking already acrimonious fires between her client, the mother of the child, and the father of the two-year boy. The matter is before court in an application by the father for an order excluding De Wet from sitting in, as an observer, during his interview with a family advocate in his attempt to get more time with his son. He has alleged that De Wet smirks at him and makes him feel uncomfortable. De Wet has denied this, saying she neither likes nor dislikes him and is just doing her job.
The Gupta and Zuma-owned Tegeta Resources and Exploration is prepared to fight Eskom over a R2bn fine it inherited from Glencore when it bought Optimum coal mine this year, according to a Fin24 report. ‘We’re going to fight it, based on the evidence we’ve been shown now. So it’s going to be a wonderful fight between us and Eskom,’ Oakbay Investments CEO Nazeem Howa told Carte Blanche in a programme aired on Sunday. Eskom confirmed last week that its claim against Optimum for R2bn relating to out of specification coal delivered remained in place.
The SA Human Rights Commission says it has taken racist ranting motorist Vicki Momberg to the Equality Court for hate speech. According to a News24 report, the commission said it has been aware of the issue as early as February after the police officer involved in the incident lodged a complaint. South Africans reacted with outrage after eNCA released a video of a visibly upset and highly charged Momberg after a smash-and-grab incident in Johannesburg. In the clip, she is reportedly seen clutching a phone and shouting, ‘One k***** is bad enough. This happens all the time, all the time. The k****** here in Joburg are terrible. I'm so sick of it.’